Tag Archive | "religious freedom"

LIBERTÉ, EGALITÉ, NON VOILÉE* : THE BURQA BAN IN FRANCE

* “Liberté, Égalité, Fraternité” is defined as a “principle” of the French Republic

 

 

Credit: www.aufait.ma

In 2010, France banned the wearing of the full-face veil in public pursuant to Law no. 2010-1192 of the 11th October 2010 (herein after as the Law). The Law strictly forbids anyone to conceal their faces in public places on pain of criminal sanctions (punishable by a fine of 150 euros maximum and an obligation to follow a citizenship course). Its application is not contingent to any religious practice and is limited in the subject matter:  only the concealment of the face is prohibited irrespective of the reason.

Still, the fact and the matter is, it primarily affects Muslim women wearing the full-face veil in public places and thereby of expressing their religious beliefs.

In 2014, a French national lodged a complaint before the European Court of Human Rights (herein after as ECtHR) against France claiming that the ban was depriving her of the exercise of certain rights protected in the European Convention of Human Rights (herein after as the Convention). The case called SAS v. France, has attracted numerous reactions in the academic world and reignited a long debate in France on the expression of religious beliefs in public. This article purports to understand the grounds upon which the applicant’s claim was dismissed and the ban upheld. For this purpose, we will later ask the opinion of Professor Maleiha Malik, Professor in Law at King’s College London, Author, Barrister and specialist on discrimination law.

In SAS v. France, the applicant alleged that there had been a violation of Article 3 (Prohibition of Torture and Inhuman Treatment), Article 8 (Right to a private and family life), Article 9 (Freedom of Thought, Conscience and Religion), Article 10 (Freedom of Expression) and Article 11 (Right to Protest and Freedom of Association) of the Convention, taken separately and together with Article 14 (Non-Discrimination) of the Convention.

The Court found the parts of the complaint based on Articles 3, 10 and 11 ill-founded and therefore inadmissible. The debate was more intense with regards to alleged violations of Articles 8 (Right to a private and family life), 9 (Freedom of Thought, Conscience and Religion) and 14 (Non-Discrimination) of the Convention.

The Court found the Law, as a measure which restricts a choice of clothing, constitutive of an interference with or a limitation of the exercise of the rights protected by Articles 8 and 9 of the Convention [para.110]. However, the limitation to the exercise of a freedom can only be justified by a legitimate aim as enumerated in the second paragraphs of Articles 8 and 9.

The French Government had two lines of defense:  First, the wearing of the full-face veil in public was banned on grounds of public safety. Second, the wearing of the full-face veil in public was banned on account of the principle of “vivre ensemble” (living together) and the respect for the minimum set of values of an open and democratic society.

Regarding public safety, the Court found that the ban could only be deemed proportionate in the context of a general threat to public safety [para. 139]. Yet, the arguments of the French government fell very short to demonstrate such a situation in France.

Finally, with respect to the second legitimate aim raised by France, the Court had to “link” it with the aim of protecting of the rights and freedoms of others enshrined in the second paragraphs of Articles 8, 9. On the latter, the Court stated that it falls within the powers of the State to secure the conditions whereby individuals can live together in their diversity and that a State may find it essential to give particular weight in this connection to the interaction between individuals and may consider this to be adversely affected by the fact that some conceal their faces in public places [para. 141]. Consequently, the ban was justified as far as it seeks to guarantee the conditions of “living together” [para. 142].

It must be noted here that the Court, compliant with its jurisprudence, afforded Frances a wide margin of appreciation in deciding upon what enters the realm of private or public interest (See ECHR – Evans v. the United Kingdom [GC]). As such, it does not determine at any point the legal or legitimate status of the wearing of the full-face veil in public with regards to the provisions of the Convention. Simply, it undertakes an analysis based on the particularities of the French society and its “compatibility” with the wearing of the full-face veil in public. And here lies the challenge!

Indeed, the Court dismissed the gender equality argument insofar as the practice at hand was defended by women. In addition, the public safety aim was also rejected although, arguably, a ban was possible for public safety reasons and growing extremism, as it is the case in some Muslim states and regions in the world (Chad, Congo, Muslim region of Xinjiang in China, banned and later relaxed in Syria etc…). In SAS v. France, the crux of the case laid in the fact that women decided on their own, for religious and other personal reasons to wear the full-face veil in public. Righteously, one can feel in discomfort at the first sight of a fully veiled women but discomfort is no harm.

As the Court admitted, the second legitimate aim raised by France (the principle of living together and the respect for the minimum set of values of an open and democratic society) is not listed in the articles of the Convention concerned.  However, one can argue that the concept of “living together” is non-legal per se and quite subjective. On this note, Professor Maleiha Malik, explains in The Return of a Persecuting Society (Malik, 2014), that “a value-based reasoning can construct certain religion as “radical” and incompatible with French citizenship” thereby forcing a compulsory clash of cultures.

Indeed, this principle of “living together” rests on the fact that France is based upon the constitutional principle of “Laïcité” :  as provided by the 1905 law, the State is separated from the Churches and must remained independent of any religious practice. Furthermore, the insertion of immigrants in France is based, since colonial time, on the idea of their assimilation to the French culture. In other words, immigrants are required to integrate with the dominant culture in place of individualistic self-identity. Consequently in the application of assimilation of immigrants, there is a French culture versus another culture :  a marriage of the two must automatically undermine one culture for the other to prevail.

By stating that wearing the full-face veil in public is “incompatible” with the idea of living together in the French society [para. 141], France takes a huge risk in trying to define a stagnant French society to which people should either integrate or be in conflict with it.

Professor Maleiha Malik notes in “Complex Equality :  Muslim Women and the ‘Headscarf’”, that the law has a constitutive role in society and plays an important p in constructing behaviour :  giving it sense and meaning, and influencing the self-interpretation of the participants. It is therefore very alarming to read that the rationale behind the ban, according to the Report of the French parliamentary commission, is that the full-face veil represented a denial of fraternity, constituting the negation of contact with others and a flagrant infringement of the French principle of living together – “vivre ensemble[para. 17].

I asked additional questions to Professor Maleiha Malik on this decision, cultural relativism and more. Here is what she had to say:

Alexandra Esmel (AE) : In SAS v. France, the French Government argued that the reciprocal exposure of faces was fundamental in French society to which the applicant responded that this argument failed to take into account the cultural practices of minorities which do not share this philosophy. Where do you draw the line, if you believe there is, between cultural relativism and multiculturalism.

Professor Maleiha Malik (MM) : I use the harm principle – if the practice is not causing substantial harm and it is freely chosen by an adult (as with the face veil) then what is the justification for using state coercion?”

AE : The main argument of the French Government in S.A.S argument is the principle of “living together” in the French society. The question is therefore whether or not you can force somebody to reveal their faces in public. Is that/ should it be a requirement in society? What are your views on the fact that there could be a social contract which require its participants to respect written (i.e. the law) and unspoken rules (politeness; revealing one‘s face)?

MM : “I think living together may be an important value or goal for a country. The problem with SAS v. France is that they recognised that her human right to wear the face veil is part of her freedom of religion that is protected, but they compromise this individual human right for the sake of the collective goal of living together. This is a serious contradiction of the principles of liberal constitutionalism that require us to give priority to individual human rights. I think a restriction on the face veil may be justified in some circumstances such as giving evidence or teaching in school etc, but it is wrong to have a vague general ban using the criminal law in all public spaces as in France.”

AE : The term “incompatible” was heavily cited in the decision and France insisted that the wearing of the full-face veil was “incompatible” with the French society and with the “objective of ensuring the social integration of groups of immigrant origin”. What are your thoughts on this? – Is the French Law of 11 October 2010 simply a reflection of France rejecting a societal change? Do you assimilate that notion of the “incompatible” to the “Bad Other” as explained in your introduction to Anti-Muslim prejudice in the West, past and present: an introduction?

MM :“ As I argue in my chapter, I think the French law is a product of far-right racism and exclusionary nationalism that has moved from the Front National [extreme-right French Party] far right into the mainstream. I believe the ban is harmful. It persecutes the women. It perpetuates discrimination. It is an authoritarian law.

The ECtHR noted itself in SAS v. France that the role of the authorities is not to remove the cause of tension [between groups] by eliminating pluralism, but to ensure that the competing groups tolerate each other. France is demographically changing and is meant to change with time. Only, the interaction of these changes with internal policy will shape the present and future identity of France.

Posted in 1TVFA Posts, 2Featured Articles, 4Guest & Faculty Articles, Alexandra EsmelComments (1)

March 14 attack in Nigeria

Critical Analysis: Religiously Motivated Violence Escalates in Nigeria

On Monday, April 7, the University of Denver Sturm College of Law will welcome Nigerian human rights attorney Hauwa Ibrahim. Ibrahim has spent her career protecting woman from the harsh penalties meted out under Shariah law in Nigeria’s northern states such as death by stoning and amputations for stealing. Another area of grave concern in Nigeria is the lack of religious freedom, primarily due to attacks by the Boko Haram, a fundamentalist terrorist group that seeks to overthrow the secular Nigerian government and replace it with a theocracy based on Islamic law.

Nigeria is the largest country in Africa with a population of over 177 million people. The country is divided approximately equally between Muslims and Christians. Islam is the dominant religion in the northern states, including the twelve northern states that have adopted Sharia law, while Christianity is most prevalent in the southern states. Interreligious conflicts occur frequently along Nigeria’s central states, or the “Middle Belt” where Christians and Muslims live in approximately equal numbers.

March 14 attack in Nigeria

The March 14 attacks killed approximately 150 people and destroyed 240 homes (World Watch Monitor)

On Friday, March 14, the tragic trend of sectarian violence continued in three villages in the central northern state of Kaduna. At about 11 pm, Muslim Fulani herdsmen raided the mainly Christian villages with guns and machetes. The Fulani are one of Nigeria’s 250 ethnic groups, are predominately Muslim, and have a history of land grievances against Nigerian Christians. The herdsmen descended on the villages and burned 240 houses and three churches to the ground. More than 150 people were killed and the victims were buried in mass graves.

One survivor, Emmanuel Tonak, recounted the attack: “We were fast asleep when we heard gun shots and chanting of ‘Allahu akbar’ [God is great]. Suddenly we came out and saw them advancing and some houses in flames. They came around 11 pm. I escaped into the forest, when they came I started hearing cries and gun shots.” Because the villagers’ homes were destroyed, many other survivors slept in the local primary school and other areas nearby. Sadly, the attack in Kaduna is unlikely to be the last. Since 1999, religiously motivated violence has killed more than 14,000 Nigerians, both Christian and Muslim, displaced thousands, and destroyed churches, mosques, businesses, and private homes.

The United States Commission on International Religious Freedom (USCIRF), an independent bipartisan commission that monitors global religious liberty and makes policy recommendations to the President, Secretary of State, and Congress, has recommended that Nigeria be labeled a “Country of Particular Concern” for the past four years for its systematic, ongoing, and egregious violations of religious freedom. As USCIRF explains, the United States can play a role in mitigating the sectarian violence in Nigeria including by prioritizing religious freedom in U.S.-Nigerian bilateral relations (which is significant as Nigeria is the eigth largest U.S. aid recipient) and officially designating Nigeria as a Country of Particular Concern under Section 402(b)(1) of the International Religious Freedom Act.

 

Bryan Neihart is a third year law student at the University of Denver Sturm College of Law and the Survey Editor of the Denver Journal of International Law and Policy. 

Posted in 2Featured Articles, Bryan Neihart, DJILP StaffComments (0)

Critical Analysis: The Deliberate Campaign Against Christians in Syria

Amidst a civil war and pervasive persecution, nuns gather for mass in the Catholic Patriarchate in Damascus in September. Source: Christian Post

Amidst a civil war and pervasive persecution, nuns gather for mass in the Catholic Patriarchate in Damascus in September. Source: Christian Post

News of human rights abuses in Syria, ranging from the plight of more than two million refugees to the use of chemical weapons against civilians, has filled international headlines over the last few months.  Conspicuously absent from any significant media coverage, however, is the persecution of the Christians remaining in Syria.  Though all religious communities have been devastated and suffered unthinkable harm, the Christian community in Syria faces an “existential threat.”

Prior to the current war, approximately seventy-four percent of the Syrian population was Sunni Muslim while thirteen percent were members of other Muslim groups, including Alawites, Ismailis, and Shi’a Islam, and Shi’as.  Members of the Druze sect accounted for approximately three percent of the population. And the ten percent of the country belonged to various Christian groups, including Greek Orthodox, Syriac Orthodox, Maronite, Syrian Catholic, Roman Catholic and Greek Catholic.  These religious communities enjoyed a “modicum of freedom of religion” under Assad’s authoritarian regime, tempered by government control of the selection of Sunni Muslim imams, occasional minor tensions between religious groups, and other restrictions.

As early as February 2012, whatever religious freedom existed in Syria had vanished.  Christian families expressed their fear of being trapped and targeted during the civil war.  Their fears have been confirmed. In early September 2013, Christians were forced to flee the ancient Christian town of Maaloula after extremist Islamists led an incursion into the town.  Maaloula is home to two of the oldest surviving monasteries in Syria and is now nearly empty of inhabitants.  Due to the heavy shelling, one of the monastery was bombed, and more than thirty Christians went missing and six were killed. On September 21, rebels brutally beat a 26-year-old Assyrian Christian to death after they learned he was a Christian.  On September 26, 36 ulemas of Douma, a large suburb of Damascus, issued a fatwa justifying the confiscation of Christian homes and property to purchase weapons, to help orphans and the poor, and to provide for the families of martyrs. In October, Islamist militias began raiding Sednaya, another Christian village north of Damscus, killing and wounding some of the Christians who lived there.

These attacks are part of a pattern that some Syrian Christians believe is an attempt to eradicate them from the country.   As Nina Shea, a human rights activist and former commissioner on the United States Commission on International Religious Freedom, has explained that rebel groups have also targeted Christian leaders.  In June a Catholic Syrian priest was murdered, allegedly by beheading.  Priests and clergyman from various backgrounds were abducted, kidnapped, and killed during the summer.

In this context, it is naïve to think that the end of persecution will follow the end of the civil war.  The Christian population in Iraq has plummeted by fifty percent since 2003 due to religiously motivated acts of violence and intimidation.  In Egypt, the fall of Mubarak has led to a rise in attacks on Coptic Christians and their places of worship.  In fact, throughout the Middle East, sectarian bombings, murders, kidnappings, and threats have caused an exodus of Christians from the faith’s birthplace.  These precedents are ominous for Syrian Christians. The Apostle Paul visited the thriving church in Damascus in the first century, but if the suffering of Christians in Syria continues to be ignored, this millennia-old population, including some who even speak Aramaic, the language of Jesus, could become extinct.  It is time for this possibility to rank equally with the other human rights violations in Syria.

Bryan Neihart is a third year law student at the University of Denver Sturm College of Law, a master’s candidate at the Korbel School of International Studies, and the Survey Editor of the Denver Journal of International Law and Policy. 

Posted in 1TVFA Posts, 2Featured Articles, Bryan NeihartComments (0)

Critical Analysis: Muslim and Jewish Faiths Fight Poland’s Ban on Ritual Slaughter

In November 2012 Poland’s Constitutional Court held that the religious slaughter of animals for Muslims and Jews violated the country’s constitution and animal welfare laws. The European Union rule that went in to effect on January 1st allows an exception for religious slaughter. With the E.U.’s exception to the rule that all animals be stunned prior to slaughter, Poland’s court ruling has now been in conflict with the exception. This past July Poland’s lawmakers introduced a law to allow an exception for religious slaughter but it was then voted down. Leaders of the Jewish and Muslim faiths are concerned that Poland’s refusal to allow a ritual exception will limit their right to religious freedom. Both groups are now requesting the Polish court to examine the law again.

A woman in Poland protests ritual slaughter for kosher and halal meat.   (Source: blogs.ft.com)

A woman in Poland protests ritual slaughter for kosher and halal meat.
(Source: blogs.ft.com)

Humane laws aim to reduce animal suffering by requiring that animals be stunned prior to killing but the traditional customs of Jews and Muslims follow a different method. Livestock animals are killed by slitting the throat and allowing it to bleed out while still conscious. Religious leaders argue that their practice has been used for thousands of years and it is consistent with humane treatment of animals because they require the animals to be healthy and uninjured prior to death. They do not believe in treating the animals in a cruel manner and argue that their method of slaughter delivers a quick death.

The research provides conflicting views. A study from University of Hannover in Germany suggests that with the ritual slaughter properly performed, after the first three seconds the animal will fall into a deep sleep-like consciousness due to the loss of large amounts of blood, which cuts off oxygen to the brain. On the other hand, a 2009 study from New Zealand’s Massey University claimed that although a calve loses consciousness after several seconds pass, the pain sensations will continue for up to two minutes. That study then applied the stun method and claimed the pain on the electroencephalography ceased immediately.

The differences in slaughtering methods has caused some tension. Poland’s population is estimated at around 38 million with about 20,000 to 30,000 members in both the Jewish and Muslim communities. Because they are the religious minorities, some have suggested that the kosher slaughter laws, which began in 1936, are part of anti-Semitic efforts to push Jews out of Poland. However, Poland’s president, Bronislaw Komorowski, has stated he supports the rights of the religious minorities to kosher slaughter and would work to resolve the issue because he believes the religious freedom of the “Jewish community to be a national interest of supreme importance.”

Although the majority of Polish people are Catholic, democratic ideals urge the rights of religious freedom should be protected for all of the various groups of faith. Recently, Pope Francis has expressed his concerns and opposition to restricting religious freedoms and has ordered an investigation in to Poland’s ritual slaughter ban. On the other hand, Terry Sanderson of the National Secular Society, believes the Pope’s actions will “interfere with the democratic processes of an independent nation like Poland.” He argues that an attempt to overturn parliamentary or judicial decisions threatens democracy and would be an abuse of the Catholic Church’s power. The Vatican announced that there will be a follow-up meeting after the investigation conducted by Cardinal Kurt Koch is complete.

The loss of ritual slaughter not only raises concerns for religious freedoms but also increases economic and financial troubles for Poland’s citizens. Ten percent of the cows and chickens are slaughtered by kosher and halal methods and those slaughterhouses employ 4,000 people. Poland subsequently exports that meat to twenty different countries. Last year commercial butchers exported $460 million worth of kosher and halal meat. In preparation for Jewish New Year, Rosh Hashanah, kosher meat was imported from Vienna and Budapest, although some slaughterhouses in Poland are continuing their traditions and ignoring the ban.

Other countries that ban ritual slaughter include Sweden, Norway, Iceland, Switzerland, and Latvia. The Dutch government also introduced a ban but it was later abandoned and the community instead reached a compromise on the length of time the animal could be conscious. When the Polish court revisits this issue it will look to clarify the factors weighing on the matter. The court will need to consider the religious rights of Jews and Muslims, the rights of the animals under their animal welfare regulations, the EU law, the Constitution of Poland, and the religious and economic implications of allowing or banning the exception to ritual slaughters. The pressure of these numerous factors may lead the government to seek a compromise in Poland, similar to that used by the Dutch.

Kristen Pariser is a 3L, a Staff Editor for the Denver Journal of International Law and Policy, and the Executive Editor for The View From Above blog.

Posted in 1TVFA Posts, 2Featured Articles, DJILP Staff, Kristen PariserComments (0)


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