A ban on the wearing of items of clothing and other symbols of religious significance - Essay Example

?A ban on the wearing of items of clothing and other symbols of religious significance is proportionate due to the democratic values that such a ban protects. Introduction Since the beginning of twenty-first century, increasing number of European countries are facing dilemmas arising from the use of hijab (headscarf) and the burqa or niqab (the full veil) by Muslim women in public places and social institutions, like schools and colleges. These Islamic dresses have raised various questions related to gender equality, freedom of religion and liberalism, and currently these issues are under serious contentions in Western Europe. Within this atmosphere of hot debate, France, which has around five million Muslims (the largest in population of Muslims in Western Europe), has taken a ?rm stand and became the first nation to pass a legislation that banned both headscarves and full veils (BBC News, The Islamic Veil Across Europe, 22nd September 2011). As per the legislation which became effective from 11 April 2011, it is now illegal for women in France (French or foreign), to leave their homes with their face covered with a veil, and women found flouting rules are liable to pay a heavy fine. UK, which promotes multiculturalism, have not imposed any ban on clothing or other accessories with religious significance; however, schools are allowed to establish their own dress code following a 2007 court directive (BBC News, The Islamic Veil Across Europe, 22nd September 2011). However currently in UK, Face Coverings (Regulation) Bill 2010/11 brought in by Mr Philip Hollobone is under consideration, which proposes to ban the covering of faces in public spaces (Face Coverings (Regulation) Bill 2010/11, 2011). However, the bill did not get a majority as most of the MPs were against it. Damian Green, the Minister for Immigration, had in fact claimed that banning Islamic veils is completely "undesirable," "un-British" and not suitable for a "tolerant and mutually respectful society" like U.K (Stratton, 2010). Belgium however passed a law banning the complete veil, which became effective from July 2011 (ibid). While there is no nationwide ban in Spain yet, Barcelona and other smaller towns have imposed a ban on full-face veils in public spaces (ibid). In Netherlands, there is a proposal to ban full-face covering Islamic veils, in order to safeguard the country's culture and lifestyle. Russian Supreme Court had ordered a complete ban on use of veils in public spaces and offices, which is however not followed in Chechnya. In Germany, even though the court ruled in favour of a teacher wanting to wear a scarf to school, there are provisions for modifying laws locally, and many states have imposed a ban on Islamic veils. Austria and Switzerland are also considering a probable ban, in case there are too many women wearing the veil (ibid). From a scholarly viewpoint, even though the hijab and the niqab may have various cultural and religious connotations, but in the context of present debates over issues of gender equality and tolerance, there are claims that Muslims often tend to use veils to make their presence felt in the European countries (Teitelbaum, 2011). It is owing to such suggestions that the issue of wearing veils has currently taken a political shape, and many citizens and politicians view Islamic veils as a sign of radical Islam or fundamentalism. In the context of the current debate, that questions the reasoning behind implementing a legal ban on wearing of Islamic veils, there are varying viewpoints. According to the Commissioner of Human Rights (Council of Europe) Thomas Hammarberg, this ban on veils would not help to achieve the desired effects of gender equality or end oppression of Muslim women. Instead, he claimed, “Prohibition of the burqa and the niqab would not liberate oppressed women, but might instead lead to their further alienation in European societies. A general ban on such attires would constitute an ill-advised invasion of individual privacy. Depending on its precise terms, a prohibition also raises serious questions about whether such legislation would be compatible with the European Convention on Human Rights” (Hammarberg, 2010). On the other hand, in UK, we find that Tony Blair, the former Prime Minister of UK labelled full-face veils worn by Muslim women as a "mark of separation," which made others "outside the [Muslim] community feel uncomfortable" (BBC online, Blair's concerns over face veils, 17 October 2006). Which Rights Are Affected? The provisions made within the Council of Europe’s Convention on Human Rights (ECHR) to safeguard religious rights were incorporated into UK laws though the Human Rights Act 1998, which included freedom of religion or belief. In ECHR under Article 9 we find that it constitutes the Freedom of Thought, Conscience and Religion and states: 1. “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and 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. 2. Freedom 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 the rights and freedoms of others” (Convention for the Protection of Human Rights and Fundamental Freedoms, 1950) The Article 9 of ECHR has been cited and challenged in a large number of court cases in various parts of Europe, owing to which European law now acknowledges a classification pertaining to ‘religion or belief’ that is viewed almost as one division where the term 'belief' has an expansive and well-reasoned interpretation. This is well-expressed in the Kokkinakis v Greece case “freedom of thought conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It 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, sceptics and the unconcerned” (Kokkinakis v Greece, 1994, para. 31). In the Manoussakis v Greece case, in para 47, it was observed by the court that right to freedom of religion as provided by ECHR, bars use of any caution by the States while ascertaining whether ‘holding’ certain beliefs (religious ones) or the means used for ‘manifesting’ or expressing these religious beliefs are legal. Here it clearly distinguishes between holding and manifesting (as was made clear in article 9 of the ECHR). Holding a belief pertains to faith, which is more than holding mere opinions or some deep emotions, and there must essentially be holding of some kind of philosophical or spiritual convictions that would have some form of a distinguishable matter (McFeely v UK, 1981). Manifesting belief is to express one’s own beliefs in a manner that is visible to others, like through wearing specific accessories or clothes. As in the R (on the application of Watkins-Singh) v. Governing Body of Aberdare Girl’s High School [2008] EWHC 1865 (Admin) case, the court held that the school authorities had shown religious discrimination, through a school uniform policy that had banned the wearing of jewellery (a bangle or a ‘kada’) which had religious significance for the Sikhs. Within a democratic setting, it is necessary that each citizen be allowed to maintain his dignity, follow and manifest his or her beliefs, provided they do not have adverse effects on the democracy of a country (Hoffman, and Rowe, 2010). If the ban on clothing or other religious accessories are made effective, then it is likely that article 9 under ECHR that provides for a right to manifest one’s belief, will be affected, hence violating the true spirit of democracy. Other rights that are likely to be affected are the Right to Respect for private and family life (article 8) and freedom of expression (article 10). A look at the three articles reveal that they clearly specify that these human rights can be restrained or limited as per the country’s laws and the restrictions can be imposed within a democratic system only for the sake of protecting citizen rights, protecting public morals, health, or order, and safeguarding freedom and rights of others. Therefore, we find that a state is within its rightful means to impose restrictions on one’s beliefs or on manifestation of such beliefs, if it finds that they can potentially curb or demean the democratic values of the state. The ban on the wearing of the burqa and niqab, which directly violate the right to manifest one’s religious beliefs (article 9) and the right to express (article 10), however fails to justify itself, as there are no logical evidences which show these Islamic veils to work towards curbing a country’s democratic values, or threatening public systems, order or safety. Moreover, the very fact that only few women actually wear these veils makes the ban appear even less convincing. Is a ban on religious clothing (and other items) lawful? The framework on which debates on imposing a ban on religious clothing (and other items) takes place contain many aspects of the relationship that exists between an individual’s beliefs, the state, and legal system. An individual’s wish to express or manifest his or her beliefs using his or her clothes, and state’s desire to restrain his or her from doing so, have consequences that go well beyond the article 9 of ECHR. The main problem faced by courts pertains to whether the wearing of religious clothes or other accessories can be viewed as manifestation of one’s personal belief, and in most of the cases, the courts tend to keep some degree of a threshold level in the ‘seriousness’ of beliefs as generally claimed. In the cases R (X) v Headteachers and Governors of Y School [2006] EWHC 298 and R (Begum) v Denbigh High School [2006] UKHL 15, the UK court accepted that the beliefs of the claimants,’ which manifested in their wearing a niqab were ‘sincere,’ even though it upheld the school uniform policy banning the niqab veil as lawful. Similarly, in R (Playfoot) v Governing Body of Millais School [2007] EWHC 1698 the court believed the claimants belief in pre-marriage chastity as a ‘sincere’ one, however it regarded the wearing of the accessory (a silver ring) was not closely associated with that belief, and hence could not be a manifestation of her beliefs. Another problem faced by the courts is the complaint of interference, which was evident in the Sahin v Turkey (2007) 44 EHRR 5. Ms Sahin, a student from a conservative family wished to wear the Islamic headscarf while completing medical studies from the Istanbul University. However, a 1998 rule passed in Turkey prohibited students from wearing Islamic veils, which forced Ms. Sahin to complete her studies in Austria. During the case proceedings, the court however found that in not allowing Ms. Sahin to enter her class, no violation of any provision under Article 9 had occurred. The court further held that the country’s laws had specific legal grounds for interfering with her right to express or manifest her beliefs. Since it was already specified under the Constitutional Court that wearing Islamic veils in schools and colleges were not permitted, the court felt that Ms Sahin, should have been aware of these restrictions. In this regard, the court felt interference was ‘necessary’ for protecting the democracy of society, as have been specified under article 2 and 9. In the Dahlab v. Switzerland [2001] ECHR 42393/98, where a primary school teacher’s (a convert to Islam) desire to come wearing veil to school was dismissed on grounds that it would affect the young minds of the children, thus declaring that a ban on the teacher wearing a headscarf was proportionate. Again, in the Dogru v. France [2009] 49 E.H.R.R. 8, the court found no breach of Article 9(1), where a school had dismissed two students on grounds that they had refused to remove their religious veils during sports training. Therefore, from a review of the majority of the court rulings it is observed that a ban on the wearing of religious clothing and other symbols of religious significance is proportionate due to the democratic values that such a ban protects. Conclusion From the above discussion it is clear that the limitations imposed on the manifestation of religious belief are legitimate only when they negatively affect citizen rights, and public morals, health, or order. It is only under such conditions where there is a real threat to democracy a state has the legal right to interfere and impose restrictions on the manifestation of one’s beliefs. References BBC online, 17 October 2006. Blair's concerns over face veils. [Online] available at, http://news.bbc.co.uk/2/hi/uk_news/politics/6058672.stm [Accessed 18th April 2012] BBC News, 22nd September 2011. The Islamic Veil Across Europe. [Online] Available at http://www.bbc.co.uk/news/world-europe-13038095 [Accessed 17th April 2012] Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and No. 14, Rome, 4.XI.1950, [online] available at, http://conventions.coe.int/treaty/en/Treaties/Html/005.htm [Accessed 18th April 2012] Dahlab v. Switzerland [2001] ECHR 42393/98 Dogru v. France (2009) 49 E.H.R.R. 8 Face Coverings (Regulation) Bill 2010/11, 2011. House of Commons. [Online] available at http://www.publications.parliament.uk/pa/cm201011/cmbills/020/11020.i-i.html [accessed 18th April 2012] Hammarberg, T., 2010. Rulings anywhere that women must wear the burqa should be condemned - but banning such dresses here would be wrong. Council of Europe, Commissioner of Human Rights. [Online] available at http://www.coe.int/t/commissioner/Viewpoints/100308_en.asp [accessed 17th April 2012] Hoffman, D., & Rowe, J., 2010. Human Rights in the UK. Pearson, London. Kokkinakis v. Greece (1994) 17 E.H.R.R. 397. Manoussakis v Greece [1996] 23 EHRR 387. McFeely v UK [1981] 3 EHRR 161. R (Playfoot) v Governing Body of Millais School [2007] EWHC 1698 R (X) v Headteachers and Governors of Y School [2006] EWHC 298 R (Begum) v Denbigh High School [2006] UKHL 15 R (on the application of Watkins-Singh) v. Governing Body of Aberdare Girl’s High School [2008] EWHC 1865 (Admin) Sahin v Turkey [2007] 44 EHRR 5 Stratton, A., 2010. Copying French ban on burqa would be un-British, says minister. The guardian [online] available at http://www.guardian.co.uk/uk/2010/jul/18/burqa-ban-unbritish-immigration-minister [accessed 18th April 2012] Teitelbaum, V., 2011. The European Veil Debate. Israel Journal of Foreign Affairs V: 1, [online] available at, http://israelcfr.com/documents/5-1/5-1-5-VivianeTeitelbaum.pdf [Accessed 18th April 2012] Read More