Introduction
The wearing of religious relics and symbols has brought about a ton of controversy in both socio-political and legal circles. The lawfulness or the legal nature of issuing bans on wearing of religious symbols has been immensely debated in different contexts. The question of who the ban is addressed to as well as where it should be applied in terms of location, for example, public places or schools have all been answered with different perspectives on the issue. Religious freedom has always caused a lot of tension where cultural and or religious practices and customs have been at crossroads with legal requirements. The main cause of this is many states and regimes in the world having more or less restrictive measures on matters concerning the wearing of religious symbols.
Legal Background
Religious symbols comprise a charter of symbols that include Muslim headscarves otherwise known as hijabs, Sikh turbans, for instance in the case of Mandla v Dowell Lee on indirect discrimination against Sikhs, Jewish kippas and various overt symbols that are religious-based. The reason for most of these bans is due to secularism, or open-face communication being an indispensable requirement within the realm of ‘rights and freedoms of others’ as can be seen in Article 9 paragraph 2 of the European Court of Human Rights. In the jurisprudence of the Court and according to the Convention on Human Rights, the matter has been looked at in terms of the freedom of religious expression and not so much in terms of the belief or internal freedom of religion. The wearing of religious symbols has been the subject of adjudication before the European Court in some occasions and it has involved a lot of petitions on several religious symbols.The European Court of Human Rights has also recently established a new ground to justify this interference with the right and freedom to religious expression through the article mentioned above.
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This article has made a lot of critic’s question the expansion of existing grounds of justification as there is no sufficient legal basis to come up with such a provision exists. It is due to this that the basis for grounds of justification has come into the spotlight for further examination considering the evolution of the Court’s jurisprudence regarding the wearing of religious symbols. While proselytism and international and public security have been accepted as legitimate reasons for this infringement, the Court’s acceptance of secularism as a reason for this interference has been viewed as a contradiction of the term ‘tolerance’ as has been claimed in case-law.
The United Nations Human Rights Committee’s position on this has been called into question as they have also followed suite on the provisions of Article 9. This has been through the support of the infringement on the rights of wearing religious symbols especially in public areas which also encompass the educational system and the courts.
The most affected religious symbol without a doubt is the Muslim headscarf and burqa. In Europe, the new approach of the Court has placed substantial bans on face-covering religious cloth, and it goes without saying that this has brought with it a lot of dispute and dissension in many states that have been significantly affected by this interference. By issuing bans with its basis firmly placed in Article 9 of the ECHR, the Court has expanded the grounds of justification for this interference to the considerations of the interest of the general public. The main reason for this intrusion has been ‘to protect the rights and freedoms of others and this, in turn, has greatly undermined the individual protection that is found in Article 9 regarding the freedom of thought, ethics, and religion. According to the Court and as it is provided for in the European Convention on Human Rights, everyone has the freedom to manifest their religion or beliefs and this right should only be subject to limitations provided by law in the interest of public safety, protection of public order, health and in the protection of the privileges and freedoms of others.
An alarming number of European countries have passed or are still legislating on the issuing of restrictions on religious dressing especially in public. France, for example, has a criminal blanket ban on the full covering of one’s face in all public areas at all times and this sanction was deemed legal by the European Court of Human Rights as there was a legitimate aim in attaining togetherness. The impetus for the placing of these sanctions is the growing discord in Europe regarding Muslim veils and radical Islam being linked to such is not helping the cause of staunch honest Muslims. European countries such as France and Belgium have wrestled with the issue of the Muslim veil which has come in the form of the burka, hijab and the niqab. This debate though has brought together many aspects in the form of religious freedom, female equality, secularism and quite seriously fears of terrorism. This is one of if not the most important justification of state bans on the wearing of religious symbols. This though is a part of the wider issue of the existence of multiculturalism that has taken over Europe with many advocating for greater effort in the assimilation of European and religious cultures.
Just recently, the European Court of Justice ruled that employers can legally ban employees from wearing the Muslim scarf as a part of a larger ban on other religious symbols as well as was in the case of Leyla Sahin where for the first time the court ruled on cases on religious symbols on their merits. The French law prohibits the wearing of religious symbols in public schools in a bid to separate education which is seen as a state activity and religion which is personal. In France, civil servants including teachers are prohibited from wearing any religious clothing or symbols. In the famous case of Shabina Begum in the United Kingdom, where a Muslim schoolgirl wanted to increase the size of her religious covering, the House of Lords had a dissenting view to that of the England and Wales Appeals Court while in France no such case can be tolerated. Rulings on upholding bans are quite common and generate little controversy in France because the country believes in a deep-rooted form of secularism that is supposed to mark the divide between religion and social life. Both France and Belgium have laws against face-covering in public areas, legislation that is quite understandable since radical Islam has caused terror more than once in this two countries. Almost a year ago both countries had terror attacks on their largest airports thus necessitating thorough security checks at airports and consular premises. Along with this is the requirement that all persons appear bareheaded on identity photographs that are intended for official use.
Equality and Freedom from Discrimination
The ban on certain items of clothing belonging to Muslim women has caused worldwide debate. The question of whether the normative basis of their right to equality and freedom from discrimination has been infringed on has received many responses and opposing views. It is true that all persons are equal before the law, and everyone has an inherent right against discrimination of whatever kind be it sex, race, language or religion, but the issue of whether the Court was right in passing such international legislation though particular to European members still stands. This issue can be looked in several perspectives, but the main question is, is there a legal basis or a justification rather for the interference due to the creation of the provisions of Article 9 ECHR? If the answer to this is yes, then the right to equality and freedom from discrimination has not been infringed on, if no, then the opposite passes. This has been evidenced in cases such as that of Ladele v London Borough of Islington.
To answer such a question, the extent and limitations of possible grounds to ban the wearing of these religious symbols would have to be examined. The relation between improper proselytism and secularism and the evolutionary process of the jurisprudential basis for the infringement would have to be examined. The recognition of secularism in society and most notably Europe by the Court along with its prohibition on improper proselytism can be said to have led to the recent expansion of grounds for justification. The jurisprudence of the ECtHR on the wearing of religious symbols can be justified to a point, for instance, public safety, thus negating an infringement on women’s right to equality but the notion of togetherness can be deemed a bit too soft to expand the grounds of justification in the manner in which it has been done.
Public Security and Public Order
Public security and order are the best grounds for the justification of the interference on the freedom of religion. Public security and order refer to the protection of the state and its citizens as well as the necessary maintenance of peace and harmony which is crucial to any country’s development, progress, and growth. Public security is a relevant ground of justification in terms of wearing of religious symbols. With regards to public areas, interference has been permitted in cases where sensitive security interests have been at stake and thus it is crucial that everyone be identifiable in order to deal with such insecurity, with indirect discrimination and reasonable accommodation being overlooked in some instances as was in the El Morsli case. Cases of where people have been required to identify themselves and have failed to do so are becoming more common, and the judicial systems of several countries have not seen any violation in individuals being denied entry into public spaces or mandatory searches at security checkpoints. The ECtHR has found many of these requirements in stablishing identity to be a necessary interference in the protection of legitimate public safety. The Court has placed even higher restrictive standards where security interests of the public are concerned in contrast to areas where sensitive security measures have to be in place. In such public places, the Court has set higher requirements for a situation to be considered dire and a threat to public safety. State bans on such religious attire can only thus only be considered necessary in cases where imminent danger is posed.
Preventing Improper Proselytism
The prohibition on improper proselytism can be said to have been a major factor in the expansion of grounds for justification. It goes without saying that the authorities are alarmed in cases concerning negative freedom of religion. This refers to the impact of the exercise of one’s religion on others as many religions believe in the active conversion of non-believers. This religious practice may at times infringe on the freedom of others, and this may be considered as a negative impact of religion. It is therefore very crucial to be able to make the distinction between valid attempts to convert other people and improper proselytism. It is therefore of significant importance that these two aspects of the freedom of religion be correctly differentiated. The freedom of religion can sometimes have a negative impact on other people, and it is crucial that the rights of others be protected by the law from improper proselytism. This aspect of religious freedom has gone as far as to the impact that any actions of a teacher could have on students and the impact of a worker on their colleagues. The state has on more than one occasion engaged in the safeguarding of the rights and freedoms of other citizens in the face of impermissible invocation of freedoms thus bringing to light another aspect of the Court’s jurisprudence on the grounds of justification namely secularism.
The Safeguard of a Secular Society
Secularism is recognized and protected and rightly so in places that multiculturalism is prevalent, this description is very pertinent to Europe’s case. This has been widely used as grounds of justification for encroaching on religious freedoms, and its acceptance has been in a bid to distinguish and dissociate religion from social lives of people in society. The Court has used and recognized secularism as a valid ground to justify the imposition of restrictions and bans on religious freedom and thus been the guide on protecting public order form negative religious freedom.
The Court, amidst all the touting of banning certain religious symbols and attire, should put more effort in establishing the aspects of secularism that have to be met in order to form valid grounds for interference with religious freedom. The main reason secularism has been held in high regard in European states and the European Convention on Human Rights is due to one of its more significant functions which is secularism as a tool used for the protection of the freedom of religion and thus it qualifies as a necessary ground for the justification of interference of freedom of religion.
Conclusion
The wearing of religious symbols has been a long and tough ride as it has received a lot of attention and thus controversy has emerged between the cracks. At times the Court has displayed valid concern for public safety and thus made significant decisions in trying to curb insecurity and terrorism but has also at times dropped the ball and given too much attention to the national notion of secularism which has also served the same purpose; ensuring public safety and order and upholding the freedom of religion while at the same time trying to eliminate negative religious freedom.
The legal framework surrounding the wearing of religious symbols is a bit dubious and at times is steadfast depending on the discretion of the human rights courts especially in Europe where steps on fighting terrorism are in play. Herein, the legal principles regarding the right of individuals to wear religious symbols have been discussed at length with the aim of establishing whether the creation of Article 9 was legal or illegal and whether it infringed upon the individual rights of persons. To an extent, this infringement has been justified especially in the protection of public safety and public policy. The courts have thus done a great service in the protection of international human rights, even with the curtailing and interference of some individual rights.
- Howard, E., Law and Wearing of Religious Symbols (London Routledge, 1st edn, 2012)
- European Court of Human Rights [1959] Article 9 par.2 ECHR
- De Freitas S, ‘Proselytism And The Right To Freedom From Improper Irreligious Influence: The Example Of Public School Education’ (2014) 17 Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad
- Evans M and Weber A, Council Of Europe Manuals – Human Rights In Culturally Diverse Societies (2 Vols (1st edn, BRILL 2014)
- Howard E, Law And The Wearing Of Religious Symbols (1st edn, Routledge 2013)
