In some countries of the Commonwealth Caribbean, concessions are made to religious legal traditions, in particular Muslim law and Hindu law.34 This occurs in those countries which have large Muslim and Hindu populations, specifically, Trini-dad and Tobago and Guyana. In both these countries, Muslim religious adherents are not only free to practice their religion but certain important religious traditions are recognised by law. Notably, followers of the Muslim or Hindu faiths can marry according to their religious legal traditions. This is affirmed by statute.35 The law also recognises religious divorces and holidays. Further, some acknowledgment is given to the Hindu language and modes of dress which conform to religious beliefs.
This recognition of religious legal traditions is also found in Suriname, a CARICOM Member State and a highly pluralistic society. Here, there also appears to be a recognition of religion in the law, for example, in the recognition of religious
34 See also Chapter 1 (‘Introduction to Law and Legal Systems in the Commonwealth Caribbean’).
35 See, eg, the Muslim Marriage and Divorce Act 1980 of Trinidad and Tobago, Chap 45/02, the Hindu Marriage Act 1980, and 1993 of Trinidad and Tobago, Chap 45/03 and the Hindu Midhi-Hindu Foundation of Trinidad and Tobago (Inc) Act 1990. Note that the Orisa may also be married according to their own traditions. However, mechanisms under the law are rela-tively undeveloped and are, therefore, not discussed further here. See, however, Chapter 1, (‘Introduction to Law and Legal Systems in the Commonwealth Caribbean’) for a discussion on the Orisa group.
marriage, both for Hindustanis and Islamists, as they are called there. The age permit-ted for religious marriage is lower than that for secular marriages and parental consent is not necessary. Islamic divorce, whereby the husband only has to say a particular formula of words, is accepted by the law.36
Most significantly, one may find Muslim or Islamic courts along similar lines, in terms of structure, to those found in Islamic countries. The important difference in the region, however, is that the Islamic court has no binding legal authority in the land and is not formally recognised as a legal institution. It functions like an arbitrating body and must rely on legal processes within the dominant secular legal tradition for its effectiveness. For example, the parties to a judgment of the court must sign an agreement, recognised as a formal contract, agreeing to the terms of the ‘judgment’ of the court. It is really that contract which is binding and recognised as a enforceable legal document.
Religious marriage and divorce
With respect to marriages, the State has been sensitive and quite facilitating. In Trini-dad and Tobago, for example, not only does legislation exists which permits Muslims to marry in their own religious rites, but a system is in place which gives authority to elders of the faith to perform these rites with legal authority. Thus, Muslim marriage officers are appointed and registered by the State as marriage officers and in this way Muslim marriages are legitimised. The marriageable age for women also conforms to Muslim religious traditions (12 years). Notwithstanding, polygamy, a characteristic feature of Muslim marriage norms, is not legalised. As with secular marriages, Muslim marriages are to be registered before they are deemed legal.
The incidence of polygamy in Muslim marriages was at one time an obstacle to certain legal rights accruing from marriage, such as maintenance of the wife or chil-dren and claims to marital property. In the early case of Henry v Henry,37 for example, a wife in a Muslim marriage who had been legally married under the Muslim Marriage and Divorce Ordinance Chap 29 brought a maintenance claim before the courts. The court refused the claim on the basis that only monogamous marriages in the Christian sense entitled persons to remedies, adjudication or relief in marriage claims, thereby Muslim marriages were excluded. Counsel for the applicant argued successfully that Islamic law was not part of the colony and was ‘highly repugnant’ to local matrimony law because of polygamy.
The same issue arose with respect to Hindu marriages in Maharaj v Maharaj,38 but with contrasting results. The question was whether the Supreme Court had jurisdic-tion to pronounce a decree of divorce in relajurisdic-tion to a registered Hindu marriage under the Hindu Marriage Ordinance Chap 29, that is, whether the Hindu marriage could be recognised for the purpose of relief. The court found that while Muslim marriages were limited under the law, Hindu marriages were not. Further, the court recognised the indigenous practice of Hinduism in Trinidad, finding that while in England Hindu marriages were potentially polygamous and would not be recognised by the courts, in Trinidad and Tobago the position was different and Hindu marriages were
36 Munneke, fn 21, op cit, p 1554.
37 (1959) 1 WIR 149.
38 TT 1958 HC 1.
monogamous. Further, the Hindu Marriage Ordinance expressly proclaimed the validity of such marriages when it read:
such [Hindu] marriage shall . . . be as valid as if it had been solemnized in conformity with the provisions of the said Marriage Ordinance.39
The effect of this provision was to equate registered Hindu marriages with those registered under the Marriage Ordinance which applied generally.
The inequitable and intolerant position relating to Muslim marriages thus had to be changed by statute, initially by the Muslim Marriage and Divorce Ordinance 1961, the forerunner of the current legislation. This profound change in the law was recog-nised in Rafique v Rafique.40 The question whether the newly enacted Muslim Marriage and Divorce Ordinance, No 7 of 1961 had put Muslim marriages on a par with all other marriages recognised by the law of the land was answered in the affirmative, both with respect to the status of such marriages and the remedies which were possible under the law. 41
Significantly, however, even the new law did not recognise the polygamous aspect of Muslim marriage. Section 7(3) of the Act states specifically that polygamous marriages are not validated. This led the court in Rafique to observe that:
although the Moslem religion may approve and exalt to equality as wives women other than the wife of a valid monogamous marriage, the status of such women in the eyes of the law of the land would be no different from that of paramours whose existence is condemned by the Christian religion . . . and in the Courts it is the law of the land that governs.42
It is clear, therefore, that the law does not recognise all facets of religious marriage but only those compatible with Christian marriages.
Similarly, rights and benefits for children born into Muslim marriages have proved litigious. The position now seems settled, however, that such children are recognised by the law as having equal entitlements to other children in the State. Their legal status is derived first from the fact that their parents are party to a marriage known and recognised by the law of the land.43 The second basis upon which such children have recognised entitlements is through the recognition of common law marriages by the law. Consequently, although the law does not recognised polygam-ous marriages (and all Muslim marriages are treated as potentially polygampolygam-ous),44 children from such marriages are entitled.
As with marriages, the law makes provision for divorce according to religious legal traditions. Such divorces are typically less cumbersome than in Christian or secular divorces. Divorce officers are appointed by the State who operate under the jurisdiction of a Council of Divorce, the chairman of which is an attorney at law of at
39 Section 10 of the Ordinance.
40 T&T 1966 CA 132; (1966–1969) 9 T&TLR 184.
41 See, eg, s 7 of the Act: ‘Every marriage effected or contracted under this Ordinance . . . shall . . . be as valid as if it had been solemnised or contracted in conformity with the provisions of the Marriage Ordinance’.
42 Above, fn 40, p 133.
43 See, eg, Mohammed v Mohammed (1960) 3 WIR 202, which also involved a successful mainten-ance suit on behalf of the wife.
44 See Henry v Henry, above, fn 37.
least three years’ standing.45 This Council functions as a quasi-divorce court, hearing and determining petitions of Muslims for divorce according to Islamic tradition.46 For example, the standard of proof required for divorce for Muslims ‘shall be that required under Islamic Law’.47
The issue of Muslim divorces and the differences with respect to secular divorces was examined in Mohammed v Mohammed.48 It was confirmed in this case that dis-solution of a marriage by the Muslim Marriage Council constituted a valid divorce.
Despite the special jurisdiction afforded to Muslim and Hindu marriages and divorces, the courts of the land are not precluded from assuming jurisdiction in such matters. In Mohammed,49 for example, the court ruled that the legislative ouster clause declaring Muslim divorces determined by the Divorce Councils final and conclusive could not stand. It is clear, therefore, that the courts of the land retain inherent supervisory jurisdiction to review such decisions on marriage and divorce.
A broader point on the jurisdiction of the courts over such marriages and divorces was confirmed in the Trinidadian case of Ali v Ali.50 Here the High Court examined the legal history of the Muslim Marriage and Divorce Act 1961 and the mischief that it attempted to cure, that is, to introduce status and remedies to Muslim marriages and divorces and provide for the maintenance of children in such marriages. However, the court noted that although special Divorce Councils existed to determine Muslim divorces, a petitioner’s right to seek relief before the High Court was not abolished.
Notwithstanding the arrangements made for marriages and divorces, a serious defect remains in the system. Since polygamy, a characteristic trait of Muslim mar-riage traditions, is not recognised by the law, the status of women in such marmar-riages in relation to property rights which typically accrue in marriage, is vulnerable. While the rules of equity can help to remedy this defect, in situations, for example, where a wife has contributed in tangible ways to marital assets,51 this is not equivalent to a general legal entitlement. Similarly, for religious marriages which have not been registered, the status is that akin to common law marriage.
An example of an enlightened equitable judgment is found in the Guyanese case of Rahieman v Hack.52 The parties had been married according to Muslim rites but never registered the marriage. In a subsequent property dispute between them, the court was willing to apply the equitable principles of the trust giving the ‘wife’
property rights on the basis of culture and recognition of their religion. The court found the wife to be deserving since the relationship of the parties was of ‘some permanence and flows from a marriage in accordance with their religion. This view appears to be consonant not only with reason and palpable justice but also with the culture and way of life of so many of our citizens . . . many persons who are married
45 See the Muslim Marriage and Divorce Act, above.
46 Ibid. See especially reg 5(1): ‘Either party to a marriage shall be at liberty to apply to the Muslim body . . . for the dissolution or annulment of the marriage by filing the application therefore with the Secretary of that body’. Further, under reg 11, the determination of the Council ‘shall be final and conclusive’.
47 20 March 1998 (HC, T&T), per Sinanan, J.
48 Above, fn 43.
49 Ibid.
50 TT 1991 HC 175.
51 See, eg, Khan v Khan, 30 December 1970 (HC, Guyana). The rules relating to common law marriages for unions which are well established and qualify under the law, may also assist.
52 GY 1975 HC 24.
according to their religion appear not to be interested in registering their marriages accordingly.’53
Religious dress and expression
Apart from marriage and divorce, the law also acknowledges certain aspects of dress which are viewed as symbols of religious faith. We have already discussed the case of Mohammed Moraine54 where a Muslim schoolgirl in Trinidad challenged the rules of a convent high school which prohibited her from attending school wearing her hijab.
This was a landmark case which was won on grounds of judicial review and not constitutional redress. The school’s decision was held to be unreasonable in that it took irrelevant considerations into account.55
There is evidence that the law recognises other forms of religious dress and religious symbolism. The issue of the beard, a religious symbol of Islam, has also been litigious. In Mohammed v the Commissioner of Police,56 for example, the court upheld the provisions of the Prisons Act 1838, which acknowledged the Islamic tradition by providing that ‘the hair and beard of a Mohammedan shall not be cut except on the written order of the Medical Officer . . .’.57 Mohammed was at the time serving a prison sentence for breach of a maintenance order.
In a rare case involving African religions and religious expression, Enyahooma et al v AG of T&T,58 the applicant sought constitutional redress alleging that a magistrate had breached his rights to freedom of religion and equality under section 4 of the Constitution by refusing to allow him to retain his tahj in court. He was also ejected from the court upon his refusal to take the tahj off when requested to do so. The issue turned on whether the applicant had informed the magistrate that he was dressed in religious attire and the court concluded that he had not. The court conceded however, that had it been made clear that the applicant was wearing a tahj, a form of religious attire, he should have been permitted to wear the religious garment. The court also noted that other forms of religious head dress such as the orni, worn by Hindu women, were permitted in the courts.
Indeed, in the Guyanese case of Dick v R,59 the Court of Appeal noted the court’s tolerance to different religious beliefs in that country, explaining that three religious books were allowed in the courts of the land for swearing in purposes, ‘thus underlin-ing that court’s official cultural awareness of certain social patterns within the society.’60
53 Ibid, p 28.
54 (1995) 49 WIR 371; [1996] 3 LRC 475. See also Chapter 1 (‘Introduction to Law and Legal Systems in the Commonwealth Caribbean’).
55 The decision had important social consequences as it paved the way for Muslim school-children being allowed to go to school in religious dress, forcing a change in school policy.
56 12 January 2005 (HC, T&T). The issue has also come before the United Nations Human Rights Committee when prisoners from Trinidad and Tobago made complaints on the ground of freedom of religion. See, eg, Boodoo v T&T UNHRC Comm No 721/1996.
57 Rule 248.
58 TT 2002 HC 103.
59 GY 1985 CA 3.
60 Ibid, p 4. But contrast the court’s attitude in Dookie v The State, TT 1989 CA 1, where a Trinida-dian court treated with some disdain a defendant accused of murder when he explained in a somewhat bizarre defence as to why he had murdered his wife that he was a Hindu and believed that he and his children would be reincarnated after death and go on to a better life!
In recent times, similar issues have been hotly contested before the European courts and there appears to be a swing against the freedom to manifest one’s religion.
This seems to be a response to allegations of religious extremism, particularly Islamic extremism, since the terrorist events of September 2001.61 As yet, the West Indian courts have not taken this approach.
Legal pluralism or legal tokenism?
Although the Hindu and Muslim religions are practised by these large communities and influence the cultural outlook of their respective countries, it is difficult to per-ceive any true corresponding penetration into the dominant legal traditions of these countries. Both Hindus and Muslims must come before the common law courts for legal remedies and redress. Similarly, their legal transactions and practices, apart from the instances mentioned above, must conform to the common law or ordinary statute applicable to the entire population. It is therefore their non-contentious social and religious beliefs, rather than general legal aspects of their traditions, which are exhibited in the Commonwealth Caribbean.
Thus, even in relation to these concessions to marriage and religious symbolism, upon closer examination of the attitude of the courts, it is difficult to discern any genuine accommodation of these religious traditions when it matters most, that is, when they appear to conflict with the dominant Christian religious beliefs of the society. The refusal to accommodate polygamy for Muslims is but one example. In other instances, while the courts have been anxious to proclaim religious freedoms, they have curiously found several other ways for denying such freedoms, in a host of technical and perhaps circuitous ways, such as in Enyahooma, proclaiming that a magistrate has no duty to ascertain a person’s religious beliefs as manifested in dress, thereby placing the burden on an applicant to demonstrate the religious significance of his dress or beliefs. In a similar vein, in Re Orisa Movement EGBE,62 the Orisa Move-ment, a body of African religious believers who had incorporated their group, failed in its bid to assert a violation of their rights to conscience when the national television company broadcasted a programme which they alleged presented them in a negative light. One of the arguments raised against their action was that, as a corporate body, they could not enjoy freedom of conscience.
We may argue that Rastafarianism is another minority religion in the Common-wealth Caribbean, one worthy of examining whether there are separate legal influ-ences. However, as we have seen,63 the courts have had difficulty accepting the religious tenets of Rastafarianism (such as the use of ganja) and sometimes have even been reluctant to regard it as a religion, on grounds such as its recent origin and non-theistic character. Here too, we see a failure to accommodate religious doctrine where it conflicts with that of Christian doctrine.64
The cases discussed do not necessarily demonstrate inaccurate reasoning by the various courts. They do, however, challenge the assumptions made about West Indian
61 See, eg, Monribot v Société Sagem 23 ILLR 121 (France); Dahlab v Switzerland 21 ILLR 13; Shabina Begum v The Headteacher, Governor of Denbigh High School [2004] EWHC 1389; (2006) UKHL 15.
62 TT 1983 HC 121.
63 See Chapter 1 (‘Introduction to Law and Legal Systems in the Commonwealth Caribbean’).
64 See, eg, Dawkins v Dept of the Environment [1993] IRLR 284; Chikweche [1995] 2 LRC 93; Grant and Chin v Principal of JCPS et al [1999] CILR 307.
societies, in particular, Guyana and Trinidad and Tobago, that they are pluralistic.
Rather, it is evident that while different ethnic groups are given some acknowledge-ment by the law, the concept of legal pluralism cannot be said to exist. Any such pluralistic elements remain essentially in the social and cultural domain.