Burkini Ban: Violating both facets of religious freedom

This blog post is by the undergraduate LLB (Hons) candidate Shanardra Fadhilah. It is based on the presentation she gave at the recent Lawyers Without Borders conference hosted at the University of Aberdeen, which she was selected to give after winning a competition amongst her fellow students.

Take a deep breath and focus on your thoughts. At your core, what guides your actions? Your moral compass? Your conscience? The values instilled in you since young? For a lot of people these all fall under one umbrella – religion. It serves as a compass for the right and wrong, a conscience to guide them through the grey area and a set of values to uphold throughout life.

Religion continues to be fundamentally important in society. Hence why it is still maintained as a human right – a right one has for simply being human. As a human right, freedom of religion is enshrined in various international instruments, including Article 18 of the Universal Declaration of Human Rights and the two international human rights covenants (on civil and political rights and economic, social and cultural rights) as well as Article 9 of the European Convention of Human Rights.

In the mentioned instruments, freedom of religion is captured as a 2-dimensional right that may be exercised alone and in community with others. The first aspect speaks of the right to freely choose one’s own religion. This is absolute in nature and cannot be circumvented. The second aspect is the right to manifest religion, which on the other hand can be limited. Even so, rule of law requires the limitations be necessary and legitimate. The main reasoning for the constraint is because the right to manifest religion bleeds into the public sphere. In order to safeguard the rights and freedoms of others, this limitation is needed so that human rights do not conflict with each other.

But as with most things, a simple categorical division on paper does not accurately reflect the reality. Religion is not something that is only practiced in private or can be separated from the public sphere. This is reflected in the second strand of religious freedom: the right to manifest religion. However, the fundamental freedom to choose one’s religion is intrinsically connected with the right to manifest it. A person chooses their religion because they agree with its teachings and want to practice it. Thus, it follows that the right to choose one’s religion is only as useful as its right to manifest it.

Religious manifestation includes religious expression, which is where religious clothing stems from. This brings us to the issue at hand: the burkini ban in France.

In 2016, mayors in about 30 French coastal resorts banned the burkini. Although not expressly stated, the clothing banned is indicative of a burkini and mainly target female Muslims who wear them in beaches. In late August of last year, the Council of State held that the ban in one of the towns was a serious and manifestly illegal attack on fundamental freedoms. Local authorities could only curb individual freedoms if there was a “proven risk” to public order. Significantly, it was ruled that, “the emotion and the concerns arising from terrorist attacks” was not legally sufficient to justify a ban.

While this ruling may set a precedent for the other French towns, which have implemented the burkini ban, after the ruling some mayors have said they would refuse to lift the decree. There are several arguments put forward in favour of the ban. The burkini is allegedly an affirmation of political Islam in the public space and incompatible with the French concept of secularism. Furthermore, it is argued that the ban will allow for social and cultural integration; ultimately, serving to empower women.

A similar development is the burqa or face veil ban in France that was introduced in 2010. It makes it illegal for a person to conceal their face in a public place. This has also been criticised as targeting Muslim women. In the case SAS v France (reported at (2015) 60 EHRR 11) the European Court of Human Rights upheld the ban and accepted that the French are seeking to protect social interaction between people.

But, at a closer glance, this argument is actually counterintuitive. How does criminalizing a deeply significant form of religious clothing serve to improve social interaction when it will only further segregate them from society as they opt not to go to public spaces?

Furthermore, note that the ‘margin of appreciation’ allowed for the qualified right to manifest religion displays that the different national contexts require for varying implementation of the right. If we extract this line of reasoning – we can apply it to the conception of human rights in general.

Why do we so easily ignore the fact that there are various frameworks for human rights and favour the ‘universal’ conception? Setting aside pragmatism for a moment, it seems strange that Court allows for a wide margin of appreciation for enforcement of the right to manifest religion but no consideration is given to the different cultural conceptions of human rights. This is significant because the different conceptions result in different understandings of human rights. It is connected to the degree of importance attached to the right to religious manifestation and expression by various faiths that is not reflected in most international human rights documents.

These stances against specific styles of dressing are not at all uncommon. When you look at the development of society, there were various cases when the introduction of novel fashion trends have been met with opposition as it does not fall in line with the societal values of the time. But this current move in Western culture towards wearing as little clothing as possible being equated to the emancipation of women is misleading as empowerment actually comes from choicenot a certain style of dressing.

For Muslim women, it is the act of dressing modestly which reflects their choice to submit to Islam. This is the root for wearing the burkini. It is a cultural interpretation of modesty as mandated by religion. So when this dress is banned – the consequences are not only literal but transcends to the constraint of the fundamental exercise of the religion. It is the criminalisation of being a Muslim woman who wants to go to the beach but also maintain her modesty.

Essentially, here the State is enforcing how strictly a woman can follow their religious teachings. The state has criminalized a form of religious expression and in doing so constrained the overall religious freedom in general. Religious clothing is highly important to Muslim women who choose to manifest modesty in such form. The burkini ban was enacted to respond to the terrorist threat in France. But placing the blame for such terrorist attacks on the whole Muslim community, especially the female Muslims does not make sense. Human rights should not be curbed discriminatorily – let alone as a method to punish a large group of people for the actions of a few.

Syrian Refugees in Europe: what’s happening?

The following is the text of remarks made by our Dr Justin Borg-Barthet at a panel discussion organised by the Aberdeen University Yad’am Society on 6 February 2017.

Introductory remarks

To begin with, it is worth considering why we in Europe should be concerned about the Syrian refugee crisis.  Syria, after all, is not a European state and Syrians do not traditionally consider Europe to be their most immediate cultural hinterland.  It is arguable, therefore, that Syria and Syrian refugees are not European problems.

But let’s be clear that since the end of the Second World War, at least, we have all embraced the principle of a common humanity.  This is not merely a political statement, but is a principle entrenched in international law – like the 1951 Refugee Convention – and in the human rights law of the European Union and the European Convention on Human Rights (ECHR).

In the spirit of a broader humanity, I will not confine my comments to matters solely pertaining to the Syrian crisis.  That crisis is simply the most recent in a series of developments which have seen the European Union fall short of its humanitarian and human rights obligations in respect of refugees and asylum seekers.  It illustrates, in stark terms, an ongoing systematic and systemic problem in the EU’s relations with its neighbourhood.

In these brief remarks, I will address two main points.  First, I wish to highlight a failure to comply with obligations.  Secondly, I will consider briefly the constitutional policy implications of this failure, and make modest recommendations about how the Union could seek to address persistent problems.

Humanitarian and human rights obligations

EU human rights law has come a long way since the first steps towards European integration in the 1950s.  This is most clearly seen in recent judgments of the Court of Justice of the European Union (CJEU) regarding relocation of asylum seekers.  In the NS case, Afghan asylum seekers in the UK were to be returned to Greece, which was their point of entry into the EU.  Under the Dublin Regulation, Greece was responsible for processing the asylum claim.  It was found, however, that the applicants’ right to be free from inhuman and degrading treatment would be at risk due to systemic problems in Greece.  It followed that the UK could not return the asylum seekers.

The decision of the CJEU is, of course, to be applauded.  It demonstrated a shift in emphasis from the rights of states to those of individuals.  However, that judgment did nothing to alter the facts on the ground for most asylum seekers in Europe.

Reception conditions

Greece, Italy and Malta are the main ports of entry for refugees and asylum seekers from Africa, the Middle East and further afield.  Each of those states has been found to be in breach of the European Convention on Human Rights due to their inadequate treatment of refugees (e.g. M S S v Belgium and Greece (2011) 53 EHRR 2; Aden Ahmed v Malta ECHR App No 55352/12 (23 July 2013); Hirsi Jamaa v Italy (2012) 55 EHRR 21).  In particular, reception conditions have been found to breach the prohibition of the right to liberty (due to forced detention) and, consequently, the prohibition of torture (due to the adverse effects of detention on mental health).

The problems in these three states are compounded by the fact that they bear the brunt of responsibility for dealing with migration to the EU.  Whatever lofty declarations are made in the north and west of Europe, and despite images of hundreds of people trekking across a continent, the fact remains that pressures are concentrated in a small number of member states, which brings us to another problem of so-called burden sharing.

Burden sharing

A number of EU member states have long argued that there should be a system of compulsory burden sharing.  In other words, the responsibility for hosting and processing asylum seekers should be shared between the Member States rather than being concentrated in border-states.  The Geneva Convention arguably requires burden sharing as a matter of international law.  EU law itself is founded on the principle of solidarity between states and people.

But still, wealthier states which are geographically insulated from the crisis have resisted compulsory burden sharing.  Instead, they initially accepted a voluntary system.  Latterly, a system of agreed relocation has been put into place, but the Member States have been very slow in taking any practical steps to ensure that pressures are distributed.

This is important to member states which face significant financial and social burdens.  And because of those burdens, it is also important to asylum seekers.  No member state is able single-handedly to accommodate and welcome the numbers that have been crossing the Mediterranean Sea.  In the absence of collective action, asylum seekers remain vulnerable to the inadequacies of ill-equipped states.

Relocation to third countries

Following repeated failures in seeking compulsory burden-sharing within Europe, southern EU member states have changed their strategies.  Rather than advocating relocation of asylum claimants within the EU, they have successfully argued for the externalisation of problems through so-called reception centres in Turkey and Libya.  An agreement with Turkey is now fully operative.

Of course, there is nothing wrong, in principle, with supporting Turkey in its own efforts to provide reception to migrants, or in discouraging dangerous sea-crossings.  But the fact is that, for all the failures of EU member states, the treatment of asylum seekers in Turkey and Libya leaves far more to be desired.

You may recall that I mentioned the judgment in NS earlier.  In that case, it was decided that Member States could not return migrants to other EU States if there were systemic problems in the destination state.

There is no logical reason why that principle should not be applied between the EU and third countries in the same manner as it is applied within the EU.  Fundamental rights, after all, bind the member states whether they are acting unilaterally or collectively.  The principle of non-return in the judgment in NS should preclude the return of asylum seekers to Turkey.  Yet, just last week, the informal council meeting in Malta concluded that the Turkey agreement should be replicated in Libya.  Far from questioning the strategy, the Member States are seeking instead to entrench and extend it to ever more questionable destinations.

Tellingly, humanitarian corridors were not addressed in the council conclusions, but were determined to be a matter for the future.  We will deal with that once we have secured the border.  Now where have we heard that before?

Constitutional observations

The refugee and migrant crises expose cracks in the institutional architecture of the European Union.  There has been a consistent failure to act according to constitutional principles due to the stranglehold that the member states hold over law and policy-making processes.  If they refuse to act, the Union’s principles are meaningless in practice.  While the EU rightly baulks at President Trump, its own record of treatment of refugees has not been pristine.

Of course, it is difficult for the Union and Member States to act when public opinion is unsupportive.  But let’s not forget that public opinion is divided.  It is far from unanimous in its opposition to migration.

And there is equally a great danger in failing to uphold and defend principles.  If constitutional principles are not upheld, this lends an air of legitimacy to the ideologies that are threatening the EU’s collective model itself.  By reducing the stranglehold of states, and focusing instead on representation of people and rights of people, the Union could ensure that collective action remains possible, and that it is given further effect in future.

In other words, far from the answer being less Europe; far from the answer being the dismantling of Schengen; and far from the answer being border fences between states; the answer is a more principled Europe – a more meaningful European Union that is capable of acting internationally in accordance with its founding principles.

Dr Borg-Barthet is the co-author (with Carole Lyons) of an analysis article in the 2016 Edinburgh Law Review. ‘The European Union Migration Crisis’ is currently the ‘Most Read’ article online.

yadam-syria-poster
The poster for the recent event hosted by the Yad’am Society

The debate about the justification of constitutional review: six theses

This blog post is by Dr. Tamás Gyorfi.

Introduction

The justifiability of constitutional judicial review is one of the perplexing questions of constitutional theory. Every generation of constitutional lawyers has struggled with the issue without being able to provide knock-down arguments that would have settled the controversy. In the UK, the adversaries of the two positions are (for better or worse) called political and legal constitutionalists, respectively. Since almost all public law textbooks cover this controversy, the debate is familiar to every undergraduate law student in the country. All this suggests that there is hardly a more hopeless enterprise in constitutional theory than to make a new contribution to this debate. Nonetheless, in my new book, titled Against the New Constitutionalism, I endeavoured to tackle exactly this issue.

My book develops a liberal defence of political constitutionalism and argues that in consolidated democracies, the strong form of judicial review cannot be justified. It is for the readers to judge whether I managed to provide a sufficiently unique combination of arguments and carve out a distinctive place in the political constitutionalist camp. The aim of this post is not to summarise my arguments or convince the reader that political constitutionalism has the upper hand in the controversy. Rather, I would like to put forward a few theses about the nature, the state and the relevance of the debate.

The debate about constitutional review has both an academic and a more popular version and there is a huge discrepancy between the fortunes of the two rival positions at these two levels. The discourse seems to lose its momentum at both levels, albeit for very different reasons. In the academic discourse, many people feel that everything that can be said on the issue has been already said. The debate seems to have reached an impasse, where people with different intuitions reach different conclusions. By contrast, in the more popular version of the controversy, legal constitutionalism has almost conclusively defeated its opponent. As a result of this, virtually every democracy has introduced some type of constitutional review.  As Alec Stone Sweet correctly registers, “As an overarching political ideology, or theory of the state, the new constitutionalism faces no serious rival today” (Stone Sweet 2000, 37). I will address the academic and the popular versions of the discourse in turn.

Thesis One: we can still make progress in the debate

Since the topic has generated a voluminous literature, it is not implausible to argue that the prospects of progress in the debate are rather dim. So can we expect any new insights from further debates?

My answer to this question is an emphatic yes. Let me explain the reasons for my optimism. The justification of constitutional review certainly requires the mobilisation of some fundamental political principles and it is indeed true that a lot has been said about those principles. However, I believe that the proponents of the so-called “institutional turn” are straightforwardly correct in claiming that the argument about constitutional review cannot be won by appealing purely to political principles. Political principles alone are incapable of determining whether we should confer the authority to specify abstract human rights provisions on courts or legislatures (or we should share that authority between the two institutions). The debate about constitutional review is both about political principles and institutional capacities. To assess the capacities of institutions, we need sophisticated theories about the epistemic performance and motivations of our decision-makers.

Those who are sceptical about the possibility of progress in the debate must hold either that (1) such institutional considerations are irrelevant or that (2) new research cannot result in significant progress in the study of institutional capacities. However, it seems to me that the first claim is simply wrong and the second one is unsubstantiated. Contrary to the second thesis, I believe that Adrian Vermeule is right to claim that our understanding of institutions’ capacities is still rather rudimentary (Vermeule 2003, 3).

Thesis Two: doctrinal legal scholarship is (almost) irrelevant for the debate

Above I made the rather cautious and safe claim that when we tackle the justifiability of judicial review, institutional analysis matters. Now I want to make a much stronger and much more controversial claim.

In a slightly exaggerated and provocative form the claim says that doctrinal legal scholarship is irrelevant for the purposes of the debate.

The role of institutional analysis is to say something about which institutions will produce the best outcomes under certain circumstances. Human rights lawyers engage in a rich discourse about what constitutes the best outcome in rights-related issues. Should assisted suicide ever be made legal? Under what conditions is affirmative action justified? Should an employer accommodate its employees if they want to wear religious symbols?

I have a huge respect for those scholars who engage with these types of questions. I myself have strongly held views on many of these issues and consider myself a participant in this discourse. However, the problem is that in most complex constitutional issues, like the ones mentioned above, competent constitutional lawyers will disagree. In a pluralistic society, in such cases, we are unable to provide conclusive arguments as to what constitutes the correct outcome. Institutional analysis should, therefore, be limited to general epistemic, motivational and procedural considerations. Is the diversity of a decision-making body more important than the ability of individual decision-makers? To what extent is the decision-making of our institutions distorted by self-interest? Which procedure is the most conducive to producing good outcomes? For instance, what is the right balance between transparency and secrecy in a decision-making environment? These questions are very different from the ones that I mentioned above and are not doctrinal in their nature. Constitutional lawyers whose primary expertise is related to doctrinal issues are, therefore, not the best qualified to answer such general institutional questions.

Thesis Three: the debate must be contextual

Although championing contextual analysis generally seems a safe methodological bet, it is far from self-evident that we need such an approach here. Many of the available argumentative strategies claim that judicial review is justifiable/unjustifiable across the board, regardless of the specific features of a political system. If someone believes, for instance, that the lack of democratic legitimacy is, in itself, a decisive argument against judicial review, then she must claim that judicial review is unjustifiable everywhere. If, by contrast, someone believes that the interpretation of human rights is primarily a technical legal exercise, she must hold that judicial review is always justified, provided that human rights themselves are justified.

However, it might be the case that: (1) although the set of relevant arguments is the same everywhere, their strength will differ from jurisdiction to jurisdiction; and (2) the relevant arguments pull in different directions. In that case, one might conclude that constitutional review is justified in certain countries but is unjustified in other ones. I argue in my book that both of the aforementioned conditions are met. Both of the adversaries in the debate have strong arguments, and the strength of at least some of these arguments is not constant but depends on the particular features of the political system in question. One could argue, for instance, that the political process has malfunctions everywhere in the world, but these malfunctions are clearly not equally severe in each political system. If there are strong arguments on both sides, it does matter how severe these malfunctions are and this factor might be decisive in the overall balance of arguments.

Thesis Four: tertium datur

The debate about judicial review usually pitches the legislative body or the elected branches in general against courts or a specialised constitutional court. In that binary framework, an argument against one of the institutions is automatically treated as an argument for the other. This binary framework fits well with many argumentative strategies that are used routinely in the controversy. If, for instance, the lack of political accountability is a conclusive argument, the issue is settled: in that case, constitutional review cannot be justified. Similarly, if the protection of human rights is understood as a technical legal issue, the superiority of courts will be beyond doubt and the justifiability of constitutional review is difficult to challenge.

When we form an overall judgement about the justifiability of judicial review, we have to consider both process-related and outcome-related reasons. Some of the latter can be classified as epistemic, others as motivational arguments. In my book, I argue that we do not have strong epistemic arguments to justify judicial review. The strongest argument of legal constitutionalism is motivational rather than epistemic. Even the most ardent opponents of judicial review would have to admit that the political process has many blind spots. Let us suppose that this motivational argument outweighs all the objections made by political constitutionalists. In the binary framework, this would imply that judicial review should be considered justified. However, once we give up the binary framework, it becomes clear that the arguments against the normal political process do not automatically support judicial review.

The argument that relies on the malfunctions of the political process suggests that the main asset of the judiciary in the interpretation of human rights is its independence. But independence is not unique to the judiciary. I also argue in my book that legislatures are superior institutions to courts in epistemic terms so far as the specification of human rights are concerned. What gives them an edge in this comparison, is their greater cognitive diversity. I do not expect the readers of this post to accept my empirical claim about legislative bodies. However, they might accept that (1) cognitive diversity is a crucially important epistemic asset; (2) courts are very far from the ideal of an epistemically diverse institution; (3) independence is not unique to the judiciary. If these conditions are met, it is at least conceivable that a third institution combines independence and cognitive diversity better than a constitutional court.

Thesis Five: the debate can shape the future of weak judicial review

The above four theses have focused on the academic debate. However, since in most jurisdictions the power of specifying the meaning of abstract human rights has already been conferred on courts, one could ask whether the debate matters any more. Let me offer two reasons to support my affirmative answer.

Although most contemporary democratic states now subscribe to the strong form of judicial review, the constitutional review of many consolidated democracies still deviates from the paradigmatic examples of that institution, like the US Supreme Court or the German Constitutional Court. The New Commonwealth model of judicial review, well-known to comparative constitutional lawyers, represents one important deviation from the reigning paradigm. I argue in my book that the deferential judicial review of the Nordic countries should also be classified as a distinctive subcategory of weak judicial review. What gives the debate practical relevance is that these deviant forms of constitutional review are under immense institutional and intellectual pressure. Although in the New Commonwealth model legislative bodies have the final say in matters of constitutional law, they very often follow automatically the courts’ interpretation of constitutional rights. We cannot rule out the possibility that this practice solidifies into a constitutional convention and with time the ‘final say’ becomes a mere formality, like royal assent being applied to British legislation.

In the Nordic countries, courts tended to exercise their power with extreme self-restraint. Judges disapplied a legal provision only if it was manifestly in conflict with the constitution. This requirement of manifest conflict has been recently removed from the Swedish constitution and is also under attack in Finland. More importantly, the supervisory role of the Strasbourg court is inconsistent with the internal logic of both the New Commonwealth model and the deferential judicial review of the Nordic countries. The upshot is that political constitutionalism still has some strongholds in mature democracies but the judicial review of these countries is at a crossroads. Political constitutionalism can and must make an intellectual case for preserving the distinctive constitutional traditions of these mature, first-wave democracies.

Thesis Six: the debate is relevant for the secondary allocation of decision-making authority

It is an undisputed fact that in most countries the authority to specify the meaning of human rights provisions has been conferred on courts. However, we should keep in mind that the establishment of judicial review does not determine once and for all how courts can and will exercise their powers. Let me call the initial decision whether to establish judicial review the primary allocation of decision-making authority, and the fine-tuning of how this power should be exercised the secondary allocation of decision-making authority.

For instance, the Human Rights Act 1998 has fundamentally changed the British constitutional landscape by moving away from the traditional understanding of parliamentary supremacy. However, the Act requires fine-tuning. The question about the proper grounds and extent of judicial deference is one of the central issues of British public law today. The Act defines what the Parliament may do when a court issues a declaration of incompatibility. However, it leaves open what the legislature should do if that happens. Although the secondary allocation of decision-making authority is less dramatic than the primary one, it raises, nevertheless, many important questions. Therefore, we need a theory that guides the secondary allocation of decision-making authority and this theory will naturally draw on the arguments about the justifiability of judicial review.

Conclusion

My book is a plea for both institutional conservativism, and institutional experimentalism. On the one hand, the fifth thesis of the foregoing analysis suggests we should regret if the distinctive constitutional traditions of mature, first wave democracies are lost. I am not against significant reforms or giving human rights a more prominent place in those legal systems. However, moulding them into the uniform template that legal constitutionalism offers is something that we should regret.

On the other hand, my book is also a plea for institutional innovation and radicalism. Even if legal constitutionalists are right to claim that the normal political process has inherent blind spots and malfunctions, if cognitive diversity is as important as I think it is, I find it hard to believe that we strike the best balance between the relevant motivational and epistemic considerations by conferring the authority to specify abstract human rights on a fairly homogeneous judiciary.

Comment

“I have read Dr Gyorfi’s excellent book which as its name suggests is a full on attack on the supremacy of judges advocated by the New Constitutionalism. The attack is primarily theoretical but it is supported by empirical evidence. It is a brilliant vindication of why mature democratic societies should leave the last word on difficult, contested issues to legislatures rather than courts. I wholeheartedly recommend this book to anyone with an interest in how sophisticated democracies should structure their governance.”

Professor Paul Beaumont, School of Law, University of Aberdeen

Further “Critical Acclaim” is available online, as follows:

“Gyorfi’s book has the rare virtue of combining a refreshing theoretical intervention to the old – but ongoing – debate about the legitimacy of judicial review of legislation with a critical examination of different institutional attempts to balance democracy and human rights. It is a must-read for both constitutional theorists and comparative constitutional lawyers.”

Joel Colon-Rios, Victoria University of Wellington, New Zealand

gyorfi