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Muslim Women, Human Rights and Religious Freedom: Europe Under the Spotlight of National and International Law

08 March 2004

How France, Germany and Belgium hav eundermined their own constitutions and violated human right sprinciples and laws in their proposed hijab bans.

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Islamic Human Rights Commission
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8th March 2004

Muslim Women, Human Rights and Religious Freedom: Europe Under the Spotlight of National and International Law

INTRODUCTION

In December 2003, French President Jacques Chirac declared his support for a law that would ban the hijab (the headscarf worn by Muslim women) and other ‘ostentatious’ symbols of religious expression from all public schools. As the rest of the world geared up to show disgust at this flagrant violation of basic human rights, certain other European countries, such as Germany and Belgium, echoed calls for legislation along similar lines. In an increasing determination to uphold the values of secularism, considered to be under threat by the ‘aggression’ of religious belief, the governments of so called civilised, pluralistic societies are abandoning the core of human rights principles enshrined in the treaties that they themselves have ratified.

The idea of human rights is that people make national laws in so far as they are compatible with the fundamental values enshrined in certain treaties - freedoms that are considered so important as to transcend the vagaries of human decision making. A brief look at, inter alia, the European Convention on Human Rights, will reveal that freedom of thought, conscience and religion is one of the most basic of all human rights that must be protected by states. Yet, perhaps it is one of the greatest ironies that as we witness the emergence of international human rights standards to protect the diversity of an increasingly globalised world, we are also witnessing a congruent willingness to accept of the violation of these fundamental standards.

PROPOSALS

Whilst a debate relating to the wearing of the hijab could be expected in countries such as Tunisia and Turkey (i) where the issue has been controversial for some time, it is perhaps surprising that the debate has come to Europe - in countries traditionally considered as the champions of rights and freedoms. In this briefing, the cases of France, Germany and Belgium will be considered. However, it is important to note that similar issues have been raised in countries as diverse as Norway (ii), the UK (iii) and Canada (iv).

a. France

In December 2003, French President Jacques Chirac, following the recommendation of a Commission headed by Bernard Stasi to look into the issue, decided to support a new law to ban ‘conspicuous’ religious signs from state schools. Earlier in the year, French Prime Minister Jean-Pierre Raffarin had already shown his support for the view that state educational institutions were no place for the ‘ostentatious expression of religious affiliation,’ declaring that, ‘schools cannot be a place to express religious commitment or launch political or religious propaganda’.

On 10 February 2004, a bill containing proposals for legislation to this effect, passed its first reading in Parliament with 494 parliamentarians voting in its favour. The bill would prohibit the wearing of the Muslim headscarf, Jewish kippa, Sikh turban and large crucifix in state schools. During its passage, Parliamentary Speaker, Jean-Louis Debr╚, a member of the ruling UMP party, stated, ‘[w]hat is at issue here is the clear affirmation that public school is a place for learning and not for militant activity or proselytism’. There were only 36 votes opposed to the legislation largely on the grounds that it was discriminatory against Muslims. The bill is now set to be debated in the Senate in March 2004 and will then return to the lower house of Parliament for final approval - a mere formality since both the UMP and the opposition Socialists are in favour of it. It is set to be implemented from September 2004 - the next academic year and will be in place for one year, following which it will be reviewed.

The reasoning behind the legislation is based on the notion that France’s principles of long-established secularism are under threat without such a law. Secularism, it is claimed, is crucial to the social harmony and national cohesion of France and its citizens. According to statistics, up to 70% of public opinion in France supports this ban and indeed, this is the culmination of a long history of incidents in France concerning the hijab beginning over a decade ago(v).

b. Germany

This controversial issue has not remained specific to France. In September 2003, the highest Court in Germany ruled that a regional state was wrong to ban a teacher from wearing a headscarf in school. The state had argued that a teacher with a headscarf violated ‘the strict neutrality of public schools in religious issues’. The Court ruled that states must find ‘arrangements acceptable for everyone’ in striking a balance between religious freedom and neutrality in schools. However, the Court went on to declare that states could take such action to prevent undue influence on children but the matter was too contentious to be decided on an ad hoc case by case basis - thus seemingly leading the way for legislation on this issue.

In October 2003, 7 of the 16 regional states in Germany showed support for the view that the hijab should be banned from public schools. Subsequently, on 9 December 2003, the government of Bavaria unveiled a draft law prohibiting the wearing of the hijab in public schools. The Bavarian Minister for Education, Monika Hohlmeier, declared that in doing so, Bavaria was ‘defending pupils against a potential fundamentalist influence and…respecting the wishes of the majority of the parents’. In order to take effect, the draft measure must be ratified by the regional parliament, regarded as a formality because of the support of Christian Democratic Union majority.

In Germany, unlike in France, the debate is focused on the essential Christian nature of the country. Thus the law is specific to the hijab and will not ban Christian and Jewish religious symbols. In justification of this, the Regional Culture Minister, Annette Schavan declared that the state constitution placed Christian and Western values and culture at the heart of the education system. She further justified the ban by claiming that the headscarf is ‘seen as a symbol of cultural division and part of a history of oppression of women.’

President Joahnnes Rau stated his opposition to the discriminatory nature of the laws, stating, ‘[s]tate schools must respect each and everyone, whether Christian or pagan, agnostic, Muslim or Jew…If the headscarf is an expression of religious faith, a dress with a missionary character, then that should apply equally to a monk's habit or a crucifix.’ Edmund Stoiber, Bavarian state prime minister and head of the Christian Social Union, Germany's main opposition in parliament, responded by stating that the President had no right to ‘cast doubt on our national identity, distinguished by the Christian religion’, further describing Islamic headscarves in schools as ‘a political symbol incompatible with our democracy’. Other German states planning similar legislation are Baden-Wuettemberg, Brandenburg, Lower Saxony, Berlin, Hesse, and Saarland (the latter three are proposing to extend the prohibition to all public institutions).

c. Belgium

Similarly, in December 2003, two Belgian Senators presented a draft law to the Belgian Senate to prohibit the wearing of the hijab and other overt religious symbols in state schools. The ban is once again being enforced in the name of secularism, Interior minister Patrick Dewael noting, ‘[t]he government should remain neutral…in all circumstances and be represented as such…that means no distinctive religious symbols or veils for police officers, judges, clerks or teachers at public schools’. Furthermore, Senator Anne-Marie Lizin offended Belgium’s nearly 350,000 Muslims (mainly from North Africa and Turkey) by saying that the ban was needed to oppose Islamic sexism, as ‘the veil amounts to the oppression of the individual in the name of religion’.

Even though the legislation is yet to take effect, there have already been incidents of enforcement of a hijab ban. In September 2003, a French speaking school near Brussels banned its students from wearing the hijab. Five public hospitals in Brussels and certain medical schools have also already banned the wearing of hijab by their staff or students.

VIOLATIONS OF LAW

The question arises as to whether such a ban would be in violation of national law as well as the numerous international human rights treaties to which France, Germany and Belgium are signatories. The countries’ national constitutions and domestic laws contain provisions relating to the freedom of religion and freedom from discrimination. At a regional level, the ban may violate the European Convention of Human Rights (ECHR), which provides substantive protection for an individual’s rights and provides enforcement mechanisms where states fail to act in the protection of fundamental freedoms.

NATIONAL LAW

In France, under the 1905 Act separating the Church and the State, Section 1 declares, ‘[t]he Republic shall ensure freedom of conscience. It shall guarantee free participation in religious worship, subject only to the restrictions laid down hereinafter in the interest of public order.’ Furthermore, the 1958 French Constitution provides, ‘France is an indivisible, secular, democratic and social Republic; it shall ensure the equality before the law of all citizens, without distinction as to origin, race or religion. It shall respect all beliefs.’ (A.2). Further, the Constitution goes on to guarantee the autonomy of individuals before the law, claiming that ‘[A]ll citizens shall be equal before the law, regardless of their origin, race or religion. They shall have the same duties’ (A.77).
The German Constitution contains similar provisions. A.3(3) states, ‘Nobody shall be prejudiced or favoured because of their sex, birth, race, language, national or social origin, faith, religion or political opinion’. A.4 explicitly provides freedoms relating to religion - A.4(1) states that freedom of creed, of conscience, and freedom to profess a religious or non-religious faith are inviolable. Further, ‘the undisturbed practice of religion is guaranteed’ under A.4(2). The Constitution also provides that, ‘equal enjoyment of civil and political rights, eligibility for public office, and rights acquired in the public service are independent of religious denomination. No one may suffer any disadvantage by reason of his adherence or non-adherence to a denomination or to a philosophical persuasion’ (A.33).
Similarly, under A.11 of the Belgian Constitution, ‘[e]njoyment of the rights and liberties to which Belgians are entitled must be safeguarded without discrimination. To this end, laws and decrees shall guarantee especially the rights and liberties of ideological and philosophical minorities’.

INTERNATIONAL LAW

a. Freedom of thought, conscience and religion

The Universal Declaration of Human Rights 1948 spoke of the ‘advent of a world in which human beings shall enjoy freedom of speech and belief’. Freedom of thought, conscience and religion is considered a fundamental human right. Indeed, as noted by the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religious Belief 1981 (‘1981 Declaration’) ‘religion or belief, for anyone who professes either, is one of the fundamental elements of his life’(vi). Under the A.9(1) of the ECHR,

Everyone has the right to freedom of thought, conscience and religion; this right includes…freedom, either alone or in community with others and in public or private, to manifest his religion or belief in worship, teaching, practice and observance (vii).

The European Court of Human Rights has consistently stated that this right is at the core of a democratic society, claiming that ‘[i]t is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been won over the centuries, depends on it’ (viii).

The second part of A.9(1) protects the freedom to ‘manifest’ ones religion or belief ‘in public or in private, alone or with others’. The manifestation may include ‘worship, teaching, practice or observance’. In Vereniging v Netherlands, (ix) the European Commission of Human Rights stated ‘A.9 primarily protects the sphere of personal beliefs and religious creeds….[i]n addition it protects acts which are intimately linked to these attitudes such as acts of worship or devotion which are aspects of the practice of the religion or belief in a recognised form’. Indeed, in Mannousakis v Greece (x), the Court held that the right of manifestation of belief excludes the discretion of states to determine ‘whether religious beliefs or the means used to express them are legitimate’.

Under A.9(2) ECHR, ‘[f]reedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals or for the protection of rights and freedoms of others’. Indeed, the right enshrined in A.9 is so fundamental that the limitations in A.9(2) are even narrower than those relating to the freedom of expression, association and assembly contained in the ECHR. The European Court has consistently stated that there must be a narrow construction of these limitations together with a broad interpretation of the freedoms guaranteed. Any restrictions on freedoms must be ‘construed strictly’ and can be justified only by ‘convincing and compelling reasons’ (xi).

It is fundamental to remember that, to a Muslim woman, the wearing of the hijab is not merely a personal display of faith - it is an obligation imposed by her religion. Proponents of the ban claim that the hijab cannot be tolerated in a secular state educational system because the mere fact of wearing it amounts to proselytism. Yet for those who wear it, it is simply a matter of personal obedience to God. It is also imperative to remember that even if evidence is adduced to show that the hijab amounts to proselytism - this is not a legitimate reason under international human rights law to ban it from being worn. In fact, such a manifestation of one’s religion would be protected under ECHR provisions relating to freedom of expression. A.10 ECHR provides that this right includes, ‘freedom to hold opinions and to receive and impart information and ideas without interference’. This right is often considered the cornerstone of personal freedom and is vigorously upheld. Indeed, the Court has stated that it ‘constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every man’ and applies to the freedom to express an opinion, even when it might ‘offend, shock or disturb’ (xii). In reality, this is the same freedom of expression advocated by European countries which criticise states such as Saudi Arabia or Afghanistan for their human rights standards. Human rights law is not specific to culture or country - it exists precisely to contradict every form of state oppression - whether it be in the name of religion or secularism.

A further argument being made to support the ban is that childrens’ autonomy is being overridden by parents and communities who are coercing them into wearing the hijab. However, once again, there is little evidence to support this and even if this is the case - it is impossible to justify replacing parental control over a child’s actions with state control over the dress of individuals of an entire section of the community. Indeed, the idea of human rights is based on the notion that for each individual there is an area of personal liberty immune from state invasion. In recognition of this principle, A.2 of the First Protocol to the ECHR (1952) (to which France, Germany and Belgium are signatories) states, ‘[n]o person shall be denied the right to education…the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions’. This is one example of the intention of international legislation to endorse the right of parents to protect children against the use of educational institutions by the state for ideological indoctrination of its own ideas. It seems that while the apparently proselytising nature of the hijab is being criticised by state authorities, the same authorities are also engaging in their own form of proselytism by banning religious symbols - that of furthering their own secular agenda. This has particularly serious consequences if we remember that it is precisely in the human mind that attitudes and prejudices take form. By imposing the fictional absence of religion in schools that exist within a multi-faith society, it is arguable that the Government is simply promoting the development of uniform intolerant attitudes within young minds.

b. Freedom from discrimination

Under the ECHR, the limitations on freedom under A.9(2) are subject to A.14 which provides that Convention rights ‘shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’ (xiii) The European Court has stated that discrimination on the basis of certain grounds, such as race and sex, is particularly serious and has stated that ‘very weighty reasons’ would have to be advanced before such treatment could be regarded as compatible with the Convention (xiv). A ban on the hijab, turban and kippa is unfairly discriminatory towards particular ethnic groups - namely Jews, Sikhs and generally Muslims from a particular racial group. Furthermore, in Germany, the ban is only applicable to the hijab and specifically excludes Jewish and other religious symbols - a clear instance of religious discrimination. Although Germany has purported to justify this on the grounds of the Christian nature of the country, it is unlikely that the European Court will consider Germany’s margin of appreciation in interpreting the ECHR wide enough to allow such flagrant discrimination.

Furthermore, a ban on the hijab would clearly affect women for whom this religious dress is considered mandatory under Islam. The Convention on the Elimination of all Forms of Discrimination Against Women 1979, to which France, Germany and Belgium are signatories, provides that the term ‘discrimination against women’ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women…on a basis of equality of men and women, of human rights and fundamental freedoms…’ (A.1). A.2 places an obligation on states to ‘condemn discrimination against women in all its forms’ and ‘to pursue by all appropriate means and without delay a policy of eliminating discrimination against women…’.

c. The right to education and work

The right to education is recognised in many major human rights instruments, including the Convention on the Rights of the Child 1989 (A.28) and CEDAW, which provides for equal rights for men and women the field of education (A.10) and employment (A.11) (xv). UNICEF has recently reported that millions of children worldwide are still denied the basic right to education - with gender disparity ensuring that the majority of those children (65 million) are girls (xvi), many of them being in the Arab states or sub-Saharan Africa. Perhaps it is then ironic that the ban on headscarves in public schools will deny girls access to schooling in countries of the so-called ‘developed’ world. No child should have to choose between practicing the tenets of their faith and acquiring a basic education - yet for Muslim girls in certain European countries - this may be the stark choice that they face.
Furthermore, for the proponents of the ban to argue that the hijab inhibits the successful integration of Muslim girls into French society is paradoxical. Integration is, after all, a two way process. France cannot expect Muslim girls to become its integrated citizens while marginalising them by effectively denying them education. A ban would lead to increased educational exclusion, lack of employment opportunities and thus social deprivation - ironically adding to the myth of the ‘oppressed’ Muslim woman in a veil. The end result would be the creation of an ‘apartheid’ system in the heart of Europe - discrimination against a group of citizens who are denied education (or forced into substandard educational systems) and effectively the right to work thus forcing them into a spiral of economic and social isolation.

REMEDIES

Under CEDAW, states must implement measures to abolish all discriminatory laws and ensure the effective protection of women against discrimination. CEDAW does not give an individual the right to complain against discriminatory treatment - it merely requires states to submit a report to its Committee at least every 4 years indicating the measures they have adopted to give effect to the provisions of the CEDAW. The Committee discusses these reports and action to be taken with the country concerned. The idea is that a report will force states to undertake a self evaluating exercise and result in an improvement in the law. The reality is that reports can often lack detail and the Committee has no force of its own to ensure that a report is submitted on time or to enforce its rulings (xvii). This reporting mechanism has been used in the past by CEDAW to criticise the gender disparity in the social and economic treatment of women in, for example, Arab states. It remains to be seen whether such critical treatment will be voiced by UN bodies on the current prejudicial treatment of girls facing a hijab ban in European countries.

In contrast to CEDAW, the ECHR has well developed enforcement machinery enabling an individual who believes his rights have been violated to bring a case before its Court in Strasbourg. Whilst an increasing number of cases are being taken to the Court, the process is not ideal - it can be costly and time consuming because all remedies before national courts must be exhausted first. Thus, even if a girl seeking to challenge the hijab ban in France knows that she will not succeed in French Courts, she must take her case up to the highest Court in France (a process which may take years) before she is able to make an application to the European Court in Strasbourg. Furthermore, the Court receives a large number of applications and it can take several years for a case to be decided. Added to this, many cases which are lodged before the Court are declared ‘inadmissible’ on various criterion and therefore do not even get to the Court for a full hearing. Finally, a problem that may be of significance in this area is that a ban of religious symbols in schools concerns children. Under the ECHR, children are unable to make a claim to the Court directly - an application must be made by an adult on their behalf.

It is important to remember that it is states that have primary responsibility for enforcement of human rights standards, which must be protected first and foremost, at the national level. By its citizens, law is seen as the principle carrier of the values shared by the community and national laws must not become neglectful when it comes to the protection of individual rights. It is only where national laws fail that international law has its most crucial role to play - to step in and safeguard fundamental freedoms that would otherwise be overidden.

CONCLUSION

In a multi-faith society, commitment to tolerance implies respect and public recognition of all. It seems that in the debate on the Muslim hijab, this small piece of cloth has become a symbol on which to project an intensification of peoples’ fears, anxieties and generalisations. France and other European countries need not be concerned that their ideals are under attack - indeed they should aspire to become nations that celebrate diversity. In a world facing increasing ideological conflicts, it seems that a person’s right to religion is likely to become the next major testing ground for the success or failure of human rights law as the divine and the secular world collide or learn to co-exist.

i In 1999, in one of the most shocking aspects of its implementation, a democratically elected MP from Istanbul, Merve Kavakci, was publicly forced out of her elected position in the Turkish Parliament for refusing to remove her hijab.
ii In Norway, the Progress Party’s deputy leader Siv Jensen raised a debate along the same lines as in France. However, he did not propose the prohibition of religious symbols such as the crucifix, turban or calotte because according to him, the hijab was not considered a religious symbol but a political one.
iii On 29 January 2004, Liberal Democrat MP Dr. Evan Harris declared that he would support a ban similar to the one proposed by the French Government’s symbols in state schools.
iv In September 2003, a Muslim teenager was expelled from a private school in Quebec for wearing her hijab. In 1995, the Quebecan Human Rights Commission had declared that banning headscarves from school contravened the Quebecan Charter of Human Rights and Freedoms.
v In 1989, 3 Moroccan girls were denied admission to the Caprielle Hafaz Institute in Paris for wearing the hijab. Since then there have been over 400 ‘veil problems’ according to statistics released by the French Le Nouvelle Observateur. In November 2003, a 12 year old was expelled from school in Northern France as she refused to respect the school rules by insisting on wearing clothes ‘of ostentatious religious sign on purpose to harass her colleagues, which runs counter to the secular nature of the school.’
vi Preamble, para. 4.
vii This is also guaranteed by the 1981 Declaration. Further, the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities 1992 provides that ‘States shall protect the existence and the…religious…identity of minorities within their respective territories’ (A.1). Further, it provides that minorities have the ‘right to enjoy their own culture, to profess and practise their own religion…freely and without any interference or any form of discrimination’ (A.2).
viii Kokkinakis v Greece, 25 May 1993, p.31.
ix (1995) App. No. 16616/90
x 23 EHRR 387 (1996)
xi United Communist Party of Turkey v Turkey, 30 January 1998
xii Handyside v UK (1976), para. 49
xiii The 1981 Declaration recognises the gravity of discrimination, noting that ‘[d]iscrimination between human beings on the grounds of religion or belief constitutes an affront to human dignity and…a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Huma Rights’ (A.3).
xiv Inze v Austria, App. No. 8695/79
xv Belgium in its Country Report to the Committee on the Elimination of all Forms of Discrimination Against Women noted that it will promote initiatives ‘that will promote the emancipation and integration of women of foreign origin, within a spirit of inter-cultural dialogue’, Combined third and fourth periodic reports, 2002, p.6
xvi State of the World’s Children 2004, Ch.3.
xvii On a more positive note, a ‘Communications Procedure’ has recently been established which gives individuals and groups of women the right to address complaints directly to the Committee. Furthermore, an Inquiry procedure now enables the Committee to conduct inquiries into grave or systematic abuse of women's human rights in countries - Optional Protocol to CEDAW passed by the UN General Assembly in 1999, signed by Belgium and ratified by France and Germany.

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