February 14, 2013
In a recent decision, the Human Rights Committee of the UN found a violation of the right to freedom of religion in a case concerning the famous and highly debated French law of 2004 that prohibits the wearing of religious garment in public schools. Accordingly the UN Committee called upon France to revisit its legislation. This UN Committee’s decision is remarkable, especially since the European Court of Human Rights was also confronted with the same question —whether expulsing pupils from school because of their wearing of religious garment is violating fundamental rights such as the freedom of religion and the prohibition of discrimination—, but contrary to the UN jurisdiction, the ECtHR declared the claims manifestly ill-founded. This recent development is also relevant for the Belgian context, where the debate on headscarves in public schools has been reopened after the Flemish board of public schools announced two weeks ago that they will implement a general ban on religious “signs” for pupils and members of personnel. In this post, I will first summarize the UN decision and subsequently compare it to the Strasbourg case law.
Bikramjit Singh v. France
Based on the 2004 French legislation, Bikramjit Singh, a young Sikh aged 18, was denied access to his classes because of the wearing of a keski (“a small light piece of material of a dark colour, often used as mini-turban”, see par. 2.3) . Instead he had to sit in the school’s canteen to study on his own. After a short period of dialogue between the school authorities and the family Singh, the school decided to definitively expel Bikramjit from school since he refused to comply with the school’s demand to remove his keski in the school premises.
Like the European Convention on Human Rights, the ICCPR also foresees in article 18 in the possibility to limit the manifestation of religion when it is detrimental to the public safety, order, health or morals or the fundamental rights of others. The Committee recognizes in this case that France’s aim was to protect the freedoms of others, public order and safety and acknowledges the importance of secularism as a means to protect the rights of others. Yet, secularism is clearly not considered as a carte blanche to limit the rights of individuals. The Committee notes in particular that France does not furnish “compelling evidence that by wearing his keski the author would have posed a threat to the rights and freedoms of other pupils or to order at school”. Additionally, the Committee is not convinced that the “dialogue between the school authorities and the author truly took into consideration his particular interests and circumstances”. (par. 8.7) The Committee also observes that the “harmful sanction” of expulsion was not imposed because of a particular conduct or risk, “but solely because of [Singh’s] inclusion in a broad category of persons defined by their religious conduct”. In conclusion the Committee finds the expulsion of the pupil because of his wearing of a religious garment disproportionate and unnecessary and therefore finds a violation of the freedom of religion.
ECtHR cases: Same issue, manifestly different jurisprudence
As mentioned above, the European Court of Human Rights was confronted with the same issue in several cases. Ranjit Singh v. France and Jasvir Singh v. France concerned pupils wearing a keski (substituting a turban) and the case of Aktas v. France, Bayrak v. France, Gamaleddyn v. France and Ghazal v. France concerned Muslim pupils wearing a bonnet (substituting a headscarf). On 30 June 2009, the European Court of Human Rights declared the claims of all these applicants manifestly ill-founded in similar inadmissibility decisions. The Court based these six decisions on the reasoning used in the earlier judgments of Dogru v. France and Kervanci v. France concerning pupils who were prohibited to wear a headscarf during sport education classes. In the latter cases, the Court strongly relied on the margin of appreciation and observes that it is to the national authorities “to take great care to ensure that, in keeping with the principle of respect for pluralism and the freedom of others, the manifestation by pupils of their religious beliefs on school premises did not take on the nature of an ostentatious act that would constitute a source of pressure and exclusion”. (Dogru par.71) The Court also referred to the role of the principle of secularism which it interprets to be “a constitutional principle, and a founding principle of the Republic, to which the entire population adheres and the protection of which appears to be of prime importance, in particular in schools.” (Dogru par. 72)
In the present cases of Ranjit Singh, Jasvir Singh, Aktas, Gamaledynn, Bayrak and Ghazal, the Court sees no reason to deviate from this case law even though the scope of the 2004 prohibition legislation is wider than a prohibition to wear headgear in sport education classes. The fact that the applicants in these cases proposed to wear a more ‘discrete’ headgear such as a keski instead of a turban and a bandana or bonnet instead of a headscarf, also fell within the State’s discretion according to the Court. In fact, the Court subscribes to the opinion of the national jurisdictions that these accessories also constitute of an ‘ostentatious’ manifestation of religion. Finally, the Court does not consider the expulsion disproportionate since the applicants were, during a period of dialogue, proposed alternative ways of education such as private schools or home schooling. The Court therefore concludes that the religious convictions of the applicants “were fully taken into account” in light of the legitimate aim of protecting the rights and freedoms of others and the public order. The claims concerning the right to freedom of religion were thus all declared manifestly ill-founded. As to the discrimination claim, the Court argues that the law is applicable to all ‘ostentatious’ religious signs and that it pursues to preserve the neutral and secular character of the schools and to protect the rights and freedoms of others and that it does not particularly target the religious affiliation of the applicants. Also this claim was accordingly dismissed as being manifestly ill-founded.
A clash of jurisdictions?
This is not the first time the UN Committee adopts a reasoning differing from the jurisprudence of the European Court of Human Rights in freedom of religion cases. In a previous post I already commented on the case of Ranjit Singh v. France — not to be confounded with the ECtHR case mentioned above— concerning a Sikh wearing a turban on an identity document. (see Ranjit Singh v. France: The UN Committee asks the questions the Strasbourg Court didn’t ask in turban case). In both cases the Human Rights jurisdictions do not only differ on outcome (violation v. inadmissibility) but their approach towards the applicant is completely opposite. While the ECtHR views the cases merely in light of the interests of the State, the UN Committee balances the arguments of all parties in a more convincing way, taking the fundamental rights of the applicants seriously all the while acknowledging the State’s interests. Hence, with this case the UN Committee gives again a clear signal that a general principle such as secularism, however important, cannot blindly trump individuals’ rights, such as the right to freedom of religion, without looking at the particularities of the case.
The question now arises what consequences these cases might have at the domestic level, such as for example in Belgium where the board of Flemish public schools announced that they will introduce a blanket ban on religious symbols in all their schools starting from next school year. The least that can be said is that – while the domestic authorities confidently used to refer to ECtHR case law to justify their ban on religious garment in schools – from now on the issue is not clear-cut anymore. The ECtHR refers to the margin of appreciation of the State. What the UN Committee makes clear here is that while dealing with these issues, the authorities should take the interests of the individual truly into account and should be careful not to “sacrifice” his or her fundamental rights in an unnecessary and disproportionate way.