Hostname: page-component-cd9895bd7-8ctnn Total loading time: 0 Render date: 2024-12-26T05:29:46.341Z Has data issue: false hasContentIssue false
  • English
  • Français

What not to Wear: Religious Rights, the European Court, and the Margin of Appreciation

Published online by Cambridge University Press:  17 January 2008

Tom Lewis
Get access Rights & Permissions [Opens in a new window]

Extract

The issue of religious dress, specifically female Muslim religious dress, has been the subject of intense controversy within Europe over recent years. In the United Kingdom comments by Jack Straw MP, Leader of the House of Commons and a former Home and Foreign Secretary, that he felt uncomfortable talking to women at his constituency surgery who wore the Muslim veil sparked a storm of intense and, at times, acrimonious debate.1 In France the banning of headscarves in State schools has provoked major controversy.2 In the Netherlands the Dutch Parliament voted to ban the burka in public places3 and in five Belgian towns its wearing has been banned on pain of a fine.4

Type
Shorter Articles, Comments, and Notes
Information
International & Comparative Law Quarterly , Volume 56 , Issue 2 , April 2007 , pp. 395 - 414
Copyright
Copyright © British Institute of International and Comparative Law 2007

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Lancashire Telegraph (5 10 2006)Google Scholar; Guardian (London, 6 10 2006)Google ScholarPubMed; The Times (London, 7 10 2006).Google Scholar

2 Art L41–5–1 Education Code of 15 Mar 2004.

3 Not implemented—pending an inquiry as to whether the ban is compatible with the Constitution, BBC, Mark Mardell, 16 01 2006 (available at <http://news.bbc.co.uk/2/hi/europe/4616664.stm>).).>Google Scholar

4 ibid.

5 See, eg, in Germany, Bundesverfassungsgericht (BverfGE), 2 BverfGE 1436/02 Judgment of 24 Sept 2003 (‘teacher-head scarf’ decision); in the United Kingdom, R (on the application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15Google Scholar; in Switzerland, Dahlab v Switzerland App No 42393/98, admissibility decision (2001).Google Scholar The issue has not been confined to Europe see, eg, Li-ann, Thio and Jackly, Ling-Chien Neo, ‘Religious Dress in Schools: The Serban Controversy in Malaysia’ (2006) 55 ICLQ 671Google Scholar; Mahabir, C, ‘Adjudicating Pluralism: The Hijab, Law and Social Change in Post-Colonial Trinidad’ (2004) 13 Social and Legal Studies 435.CrossRefGoogle Scholar

6 See, eg, Modood, T and Werbner, P (eds), The Politics of Multiculturalism in the New Europe (Zed Books, London, 1997)Google Scholar; Parekh, B, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Macmillan, London, 2000)Google Scholar; Knights, S, ‘Religious symbols in the school: freedom of religion, minorities and education’ (2005) 5 European Human Rights Law Review 499.Google Scholar

7 Huntingdon, S, ‘The Clash of Civilizations’ (1993) 72 Foreign Affairs 22.CrossRefGoogle Scholar

8 See, eg, John, Reid MP, Home Secretary, Speech 20 09 2006Google Scholar; Eliza, Manningham-Buller, Director General of the Intelligence Service, Speech 10 11 2006.Google Scholar

9 See, eg, Ruth, Kelly MP, Communities Secretary, Speech 24 08 2006Google Scholar; Trevor, Phillips, Chairman of Commission for Racial Equality, ‘After 7/7: Sleepwalking to Segregation’, Speech 22 09 2005.Google Scholar

10 See, eg, Raday, F, ‘Culture Religion and Gender’ (2003) 4 International Journal of Constitutional Law 663CrossRefGoogle Scholar; Lyon, D and Spini, D, ‘Unveiling the Headscarf Debate’ (2004) 12 Feminist Legal Studies 333CrossRefGoogle Scholar; Davies, G, ‘Banning the Jilbab: Reflections on Restricting Religious Clothing in the Light of the Court of Appeal in SB v Denbigh High School’ (2005) 1 European Constitutional Law Review 511CrossRefGoogle Scholar; Habermas, J, ‘Intolerance and Discrimination’ (2003) 1 International Journal of Constitutional Law 2CrossRefGoogle Scholar; Baroness Hale of Richmond in Begum (n 5) amongst many others. Of particular difficulty is the paradox that religious injunctions on women to wear particular clothing in public space have been portrayed by liberals as repressive; but cases are brought by women themselves claiming the right to wear this dress.

11 (2007) 44 EHRR 5.Google Scholar

12 Note also the use of Art 9 in tandem with Art 11—see, eg, The Moscow Branch of the Salvation Army v Russia App No 72881/01, 5 10 2006. Issues of religion may also arise under Art 8 and Art 14 (freedom from discrimination in relation to ECHR rights) and Art 2 of the First Protocol (education).Google Scholar

13 For recent commentary on the application of the Margin of Appreciation by the Strasbourg institutions see, eg, Arai-Takahashi, Y, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia, Oxford, 2002)Google Scholar; Yourow, H, The Margin of Appreciation in the Dynamics of European Human Rights Jurisprudence (Kluwer, The Hague, 1996)Google Scholar; Hutchinson, M, ‘The Margin of Appreciation Doctrine in the European Court of Human Rights’ (1999) 48 ICLQ 638Google Scholar; Sweeney, J, ‘Margins of Appreciation: Cultural Relativity and the European Court of Human Right in the Post Cold War Era’ (2005) 54 ICLQ 459.Google Scholar

14 Handyside v UK (1976) 1 EHRR 737, para 48.Google Scholar

15 Şahin (n 11) para 109. See, eg, Wingrove v UK (1996) 24 EHRR 1, para 58Google Scholar; Kokkinakis v Greece (1993) 17 EHRR 397, para 47.Google Scholar

16 Şahin (n 11) para 109.

17 There are difficult questions, beyond the scope of this paper, concerning what constitutes ‘political’ and ‘religious’. In Şahin (n 11) it was noted that the wearing of the headscarf in Turkey had taken on a ‘political significance … in recent years’ para 115. See Evans, M, Religious Liberty and International Law in Europe (CUP, Cambridge, 1997) 284–6.CrossRefGoogle Scholar

18 (2002) 34 EHRR 10.Google Scholar One might also contrast eg Wingrove (n 15) and Jersild v Denmark (1994) 19 EHRR 1.Google Scholar

19 (2004) 38 EHRR 13.Google Scholar

20 ibid para 37.

21 ibid para 67.

22 See Geddis, A, ‘You Can't Say “God” on the Radio: Freedom of Expression, Religious Advertising and the Broadcast Media after Murphy v Ireland’ (2004) 2 European Human Rights Law Review 181.Google Scholar

23 For discussion of the various philosophical justifications of freedom of expression that have been advanced see Barendt, E, Freedom of Speech (OUP, Oxford, 2005) ch 1.Google Scholar

24 See, eg, Lingens v Austria (1986) 8 EHRR 407Google Scholar; Castells v Spain (1992) 14 EHRR 445Google Scholar; United Communist Party of Turkey v Turkey (1998) 26 EHRR 121; The Moscow Branch of the Salvation Army v Russia (n 12) para 60Google Scholar; Mowbray, A, ‘The Role of the European Court of Human Rights in the Promotion of Democracy’ [1999] Public Law 703.Google Scholar

25 Geddis, A (n 22) 189. These issues are considered more fully in Part III.Google Scholar

26 Raz, J argues in The Morality of Freedom (Clarendon Press, Oxford, 1986) 261 that the ‘argument for the entrenchment of liberal constitutional rights derives … from several sources … the interest of the right holder itself … is insufficient to justify that degree of protection. It gets it because it is instrumentally useful to the preservation of a certain political culture, to the protection of various public or even collective goals.’Google Scholar

27 See the debate between Mahoney, P, ‘Universality versus Subsidiarity in Strasbourg Case Law on Free Speech: Explaining Some Recent Judgments’ (1997) 4 European Human Rights Law Review 364Google Scholar and Lord Lester of Herne, Hill, ‘Universality versus Subsidiarity: A Reply’ (1998) 1 European Human Rights Law Review 73.Google Scholar

28 See Part III below. Some religions, eg Jehovah's Witnesses, require believers to bear of witness, teach and preach—but this is due to perceived religious duty to ‘try and convince one's neighbour’. See Kokkinakis v Greece (n 15) para 31.

29 (1982) 4 EHRR 149.Google Scholar

30 ibid paras 56–7.

31 ibid para 52. See also Norris v Ireland (1991) 13 EHRR 186.Google Scholar

32 Mill, JS, ‘On Liberty’ (1859) in Collini, S (ed), On Liberty and Other Writings (CUP, Cambridge, 1989) 13.Google Scholar

33 On Art 9 generally see Evans, C, Freedom of Religion Under the European Convention on Human Rights (OUP, Oxford, 2001)CrossRefGoogle Scholar and Evans, M (n 17) 10–12.Google Scholar See also Langlaude, S, ‘Indoctrination, Secularism, Religious Liberty and the ECHR’ (2006) 55 ICLQ 929. For historical background to the Article see C Evans ch 3 and M Evans ch 10.Google Scholar

34 It as been argued that this split between the forum internum and the forum externum has the effect of favouring post-Reformation Christianity which emphasizes more the internal holding of faith than outward display of it; one of the central issues of the European Reformation was whether justification could be sola fide, by faith alone, (Martin Luther's position) or whether good works were necessary: see Collinson, P, The Reformation (Phoenix, London, 2005) 47–9.Google Scholar Other faiths, by contrast, place much more weight on outward observance: see C Evans (n 33) 202; Edge, PW and Harvey, G (eds), Law and Religion in Contemporary Society (Ashgate, Aldershot, 2000) 7–8.Google Scholar

35 The quote originates in Kokkinakis (n 15) para 31 and has been intoned by the Court in virtually every Art 9 case.

36 See, eg, Locke, John, ‘Letter Concerning Toleration’ (1685) in David, Wootton (ed), John Locke Political Writings (Penguin, London, 1993) 390.Google Scholar

37 The same point might be made about human rights generally. See Gearty, C, Can Human Rights Survive? (CUP, Cambridge, 2006) esp ch 2.CrossRefGoogle Scholar

38 As opposed to justifications based on religious perspectives on which see eg Ahdar, R and Leigh, I, Religious Freedom in the Liberal State (OUP, Oxford, 2005) ch 1; C Evans (n 33) 25–8.CrossRefGoogle Scholar

39 eg the Wars of Religion following the Reformation in Europe.

40 J Locke (n 36) 431.

41 GA Res 36/55, UN GAOR, Supp (No 51) 171, UN Doc A/36/684 (1981).Google Scholar

42 Ahdar, R and Leigh, I (n 38) 53–4Google Scholar; Evans, C (n 33) 23.Google Scholar

43 Such arguments have been offered as the basis for human rights generally. See eg Dworkin, R, Taking Rights Seriously (Duckworth, London, 1977)Google ScholarPubMed; Rawls, J, A Theory of Justice (Clarendon Press, Oxford, 1999)Google Scholar; J Raz (n 26); Griffin, J, ‘First Steps in an Account of Human Rights’ (2001) 9 European Journal of Philosophy 306CrossRefGoogle Scholar; Feldman, D, Civil Liberties and Human Rights in England and Wales (OUP, Oxford, 2002)Google Scholar; Ahdar, R and Leigh, I (n 38) 57–60Google Scholar; Evans, C (n 33) 29–33.Google Scholar

44 Raz, J (n 26) 369–71.Google Scholar

45 Dworkin, R (n 43) 272.Google Scholar

46 Raz, J (n 26) 398–9.Google Scholar

47 ibid 395–9.

48 Raz, J, ‘Multiculturalism: A Liberal Perspective’ in Raz, J, Ethics in the Public Domain: Essays in the Morality of Law and Politics (OUP, Oxford, 1994) 164.Google Scholar

49 Dworkin, R (n 43) 272–3.Google Scholar

50 Dworkin, , ‘Liberalism’ in Hampshire, S (ed), Public and Private Morality (CUP, Cambridge, 1977) ch 6 127Google Scholar; Raz (n 26) 110. There is a debate between proponents of perfectionist and antiperfectionist or ‘procedural’ liberal thought—those who believe the State should remain strictly neutral as between different conceptions of the good (Rawls (n 43), Dworkin (n 43)) and those who consider that the State may endorse certain values as good (Raz (n 43); Galston, WA, Liberal Purposes (CUP, Cambridge, 1991)).CrossRefGoogle Scholar See Adhar, R and Leigh, I (n 38) 42–3.Google Scholar

51 The Court's case law reflects the liberal principle of neutrality; the State has a duty to remain neutral and impartial and is not entitled to assess the legitimacy of religious beliefs or their means of expression: see, eg, Hassan and Chaush v Bulgaria (2000) 30 EHRR 50, para 78.Google Scholar

52 Evans, C (n 33) 32–3.Google Scholar

53 Ahdar, R and Leigh, I (n 38) 60–1.Google Scholar

54 Evans, M, ‘Religion law and human rights: locating the debate’ in Edge, PW and Harvey, G (n 34) 182.Google Scholar See also Raday, F (n 10) 663.Google Scholar

55 Gearty, C, ‘The Holism of Human Rights: Linking Religion Ethics and Public Life’ (2004) 6 European Human Rights Law Review 605.Google Scholar See Ahdar, R and Leigh, I (n 38) 60–4.Google Scholar

56 See Ahdar, R and Leigh, I (n 38) 62–3Google Scholar; Garvey, J, ‘Free Exercise and the Values of Religious Liberty’ (1986) 18 Connecticut Law Review 779, 791Google Scholar; Edge, PW, ‘Religious rights and choice under the European Convention on Human Rights’ (2000) 3 Web Journal of Current Legal Issues.Google ScholarThis point was made by the government before the Chamber in Şahin v Turkey (2005) 41 EHRR 8, para 92.Google Scholar

57 eg the literal meaning of ‘Islam’ is ‘surrender [to the will of God]’. See Armstrong, K, The Battle for God (Harper Collins, London, 2000) 375.Google Scholar Some commentators have argued that the whole notion of individual rights sits uneasily with some religious cultures, eg, the Islamic concept of ummah or community raises potential difficulties for Muslims bringing individual human rights claims; see Bradney, A, ‘Law and Religion in Great Britain at the End of the Second Christian Millennium’ in Edge, PW and Harvey, G (n 34) 24–6.Google Scholar

58 Ch 24 (the Light) Verse 31.

59 Ch 33 (the Clans) Verse 59. There are many translations of these verses. The above are taken from that of MAS Abdel Haleem (OUP, Oxford, 2004).Google Scholar

60 Documented reports of the sayings of the Prophet Muhammad that do not appear in the Qur'an but were recorded for posterity by his close companions and family.

61 Sunan Adbu-Dawud: Book 32 Hadith 4092. Beliefs as to what these verses actually require by way of dress differ widely within Islam. See, eg, the judgment of Brooke, LJ in R (on the application of Begum) v Denbigh High School Governors [2005] EWCA Civ 199Google Scholar; [2005] 1 WLR 3372, paras 31–48.Google Scholar

62 Note the Court's vague pronouncements on pluralism and the importance of religion to the individual believer (n 35).

63 See n 16 and n 21.

64 App No 16278/90 05 1993, 74 DR 93.Google Scholar For comment and comparison with Şahin see Gilbert, H, ‘Redefining Manifestation of Belief in Leyla Şahin v Turkey’ (2006) 3 European Human Rights Law Review 308.Google Scholar

65 Dahlab (n 5) 15. For comment on both Karaduman and Dahlab see D Lyon and D Spini (n 10).

66 (2003) 37 EHRR 1.Google Scholar For comment see Cumper, P, ‘Europe, Islam and Democracy— Balancing Religious and Secular Values under the European Convention on Human Rights’ (2003/2004) 3 European Yearbook of Minority Issues 163.Google Scholar

67 Refah had been elected as the largest party in the Grand National Assembly in 1995. Party members had, inter alia, called for jihad, encouraged the wearing of Islamic headscarves, advocated the introduction of sharia law and a plurality of legal systems.

68 Refah (n 66) para 99.

69 ibid para 93. The Court cited the Turkish Constitutional Court's strong affirmation of secularism (para 40) and endorsed that court's strong critique of sharia law as incompatible with democracy (para 123).

70 ibid para 92.

71 This was pursuant to a series of judicial decisions of the Turkish Administrative and Constitutional Courts. For comment see Human Rights Watch Briefing Paper, ‘Memorandum to Turkish Government on Human Rights Watch's Concerns with regard to academic Freedom in Higher Education, and Access to Higher Education for Women who Wear the Headscarf’ (29 06 2004).Google Scholar

72 She also claimed breaches of Art 2 of Protocol 1, Art 8, Art 10, and Art 14. For comment see Marshall, J, ‘Religious Freedom and Gender Equality’ (2006) 69 Modern Law Review 452CrossRefGoogle Scholar; S Langlaude (n 33). For comment on the Chamber judgment see Decker, D and Lloyd, M (2004) 6 European Human Rights Law Review 672Google Scholar; H Gilbert (n 64); Human Rights Watch: Human Rights News, ‘Headscarf Ruling Denies Women Education and Career’ (16 11 2005).Google Scholar

73 Art 2 of the Turkish Constitution states: ‘The Republic of Turkey is a democratic, secular (laik) and social State based on the rule of law, respectful of human rights in a spirit of social peace …’

Art 10 states: ‘All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion … Men and women shall have equal rights. The State shall take action to achieve such equality in practice …’

74 Judgment of 7 Mar 1989 cited in Şahin (n 11) paras 39 and 113. See also the quotes from the Turkish Constitutional Court cited in Refah Partisi (n 66) paras 40 and 123.

75 Şahin (n 11) para 114.

76 ibid para 115 (quoting paras 107–9 of the Chamber judgment).

77 See, eg, Refah Partisi (n 66).

78 Şahin (n 11) paras 115–16

79 ibid para 121.

80 The majority also found there to have been no breach of the other Articles. The only one considered in any detail was Art 2 of the First Protocol (n 11) paras 134–42.

81 Şahin (n 11) Judge Tulkens's dissent para 3. See Langlaude, S (n 33) 936–7.Google Scholar

82 Translated into Art 9(2) terms it was held to be necessary in order to protect the ‘rights and freedoms of others’ and ‘public order’.

83 Şahin (n 11) Judge Tulkens's dissent para 7. She also contrasted the position of students (in the instant case) with that of teachers (eg in Dahlab (n 5)): ‘While the principle of secularism requires education to be provided without any manifestation of religion and while it has to be compulsory for teachers and all public servants, as they have voluntarily taken up their posts in a neutral environment, the position of pupils and students seems to me to be different’. See Langenfeld, C and Mohsen, S, ‘Germany: the Headscarf Teacher Case’ (2005) 3 International Journal of Constitutional Law 86, 92–3 commenting on the German position.CrossRefGoogle Scholar

84 Şahin (n 11) (Judge Tulkens) para 8. See Davies, G (n 10) 520.Google Scholar

85 Şahin (n 11) (Judge Tulkens) para 5.

86 Şahin (n 11) (majority) para 115.

87 Şahin (n 11) (Judge Tulkens) para 9. See also Baroness Hale's speech in Begum (n 5) para 96, Davies, G(n 10) 520.Google ScholarOtto-Preminger Institute v Austria (1994) 19 EHRR 34 would seem to be an exception to this.Google Scholar

88 Şahin (n 11) (Judge Tulkens) para 10.

89 ibid para 11.

90 See, eg, A v UK (1998) 27 EHRR 611Google Scholar; X and Y v Netherlands (1985) 24 EHRR 188.Google Scholar On positive obligations generally see Mowbray, A, The Development of Positive Obligations under the European Convention on Human Rights (Hart Publishing, Oxford, 2004).Google Scholar

91 Kokkinakis (n 15) paras 48–9.

92 Arguments of this kind were influential in the Court's decision in Murphy (n 19) paras 77–8.

93 See Sales, P and Hooper, B, ‘Proportionality and the Form of Law’ (2003) 119 Law Quarterly Review 426.Google Scholar

94 App No 72881/01 5 10 2006 (Chamber: First Section).Google Scholar

95 The grounds for the refusal changed throughout the course of the domestic proceedings. They included: an insufficient number of founding members and the absence of documents showing their residence in Russia; the paramilitary structure of the organization; inconsistent indication of the organization's religious affiliation.

96 Salvation Army (n 94) para 58.

97 ibid para 61.

98 ibid para 76.

99 Contrast with the Art 11 claim in Refah where the Court found that the party's policies were anti-democratic and thus contrary to the entire ethos of the Convention (n 68). The Court in Salvation Army concluded that despite its paramilitary structure and appearance ‘[i]t could not seriously be maintained that the applicant branch advocated a violent change of constitutional foundations or thereby undermined the integrity or security of the State’ (n 94) para 92.

100 Davies, G (n 10) 528.Google Scholar

101 Evans, M (n 54) 183.Google Scholar See also A Bradney (n 57); Martinez-Torron, J, ‘The European Court of Human Rights and Religion’ in O'Dair, R and Lewis, A, Law and Religion (OUP, Oxford, 2001) 185, 203; F Raday (n 10); S Langlaude (n 33).Google Scholar

102 Raday, F (n 10) 663Google Scholar; Bradney, A (n 57) 24.Google Scholar

103 Begum (n 5) especially the speech of Baroness Hale, para 97; Raday, F (n 10) 663.Google Scholar

104 Dahlab (n 5); for arguments on the German ‘headscarf-teacher case’ (n 5) see C Langenfeld and S Mohsen (n 83); Gerstenberg, O, ‘Freedom of Conscience in Public Schools’ (2005) 3 International Journal of Constitutional Law 94.CrossRefGoogle Scholar

105 Refah Partisi (n 66) paras 107–8.

106 Şahin (n 11) para 115.

107 See, eg, Brogan v UK (1988) 11 EHRR 117Google Scholar; McCann v UK (1995) 21 EHRR 97.Google Scholar It is worth remembering that during this period the United Kingdom Cabinet was blown up in the Grand Hotel, Brighton on 12 Oct 1984 and 10 Downing Street was subjected to a mortar attack on 7 Feb 1991. I am grateful to Peter Cumper for this point.

108 E Manningham-Buller (n 8).

109 Begum (n 5).

110 ibid para 33.

111 Indeed their Lordships rejected the ‘procedural’ approach of the Court of Appeal (n 61), which had found that the school had approached the issue from the ‘wrong direction’ rather than deciding on the substance of the matter. See Lord Bingham paras 27–31, Lord Hoffmann para 68.

112 Begum (n 5) para 63 citing the dicta of Lord Hope in R v Director of Public Prosecutions, Ex parte Kebilene [2000] 2 AC 326, 381.Google Scholar

113 Begum (n 5) para 62.

114 ibid para 63.

115 ibid para 64.

116 Evans, M (n 54) 177.Google Scholar

117 The recent approach of the majority of the Supreme Court of Canada demonstrates how courts may drill down into the facts of individual cases rather than accept generalized fears as justifying prohibition: Multani v Commission scolaire Marguerite-Bourgeoys and AG of Quebec [2006] SCC 6.Google Scholar

118 Paraphrasing the comment of a Muslim woman interviewed in Unveiled, BBC Radio 4, 12 10 2006.Google Scholar