What Will the ECHR Do?

The Roman Orator, Cicero in his masterpiece, Tusculanae Disputationes wrote as follows; “Diseases of the soul are more dangerous and more numerous than those of the body”. He was well on the mark. Fanaticism masked as secularism has become a tool in stifling and subverting the religious freedoms of the individual under the law.

I remember writing a blog on the banning of the Burka and Niqab and the effect it will have on the Muslim population in France. The National Assembly has just approved the new laws and it is almost certain that with the support or abstention of the socialists, the UMP will be able to push the legislation through in the Senate.

There will be challenges to the new legislation in the European courts of Human rights. I wonder did the much vaunted French civil service consult the legal mandarins in Strasbourg before the enactment of the new laws? If so, what advice did the Law Lords bequeath to them?

It will be interesting to see what procedure the courts will follow in the interpretation of the new legislation vis a vis Art 9 of the European convention on Human rights.

Will it adopt a ‘narrow’ margin of appreciation in interpreting the new legislation and deem them to be; “necessary in a democratic society” and “in accordance with the laws of France” or hold them to be in contravention of the spirit of Art 9?

When Karl Von Savigny enunciated his theory of the Volksgeist, he had in mind a more complex and nuanced approach to the concept of the ‘spirit of the people’. It is not in doubt that the spirit of the French is republican and secular in nature, but does that exclude any references to or sympathies for religious totems and symbols?

If it does, the new legislation will be the most devastating blow to the tenets of religious freedom and the rights of the individual since the enactment of the Edict of Fontainebleau in 1685 by the sun king, Louis XIV which led to the mass expulsion of the Huguenots from Paris to the foreign shores of England, Spain, Germania and the low countries of Holland.

This is not the first time that assaults have been launched on the rights of the individual in Europe. A while ago, the Swiss Parliament in a fit of pique, (it was embroiled in a diplomatic spat with the Libyans) had banned the use of minarets in summoning the faithful to prayers by the muezzin in the mosques of Berne.

The laws were passed because Minarets were deemed to be a form of alien culture which had no place under Swiss mores and traditions. The ECHR will almost have to make a ruling on this and I doubt if the new laws will pass the test of compatibility under Art 9 of the convention.

Minarets are a manifestation of the religion of Islam, just as church bells are of the Christian faith.

Will the garbs of the Orthodox Jews or the riotous celebrations of the Hare Krishna converts face similar actions? I would have thought that what was good for the goose would be excellent for the gander.

In the United Kingdom, a row recently ensued over the rights of women to cover their faces with Islamic veils. A woman lost her job in a public school for refusing to uncover face whilst teaching her students, despite entreaties from her employers. The matter went to an industrial tribunal for wrongful dismissal.

She lost and it is entirely possible that an appeal will be lodged at Strasbourg. The school will argue that her dismissal was not a violation of her rights under the convention, because she had signed an agreement with her employers to follow the rules of her contract and that by refusing to uncover her face she was in breach of the agreement.

A fortiori, the ban only ran within the writ of the school premises and did not extend outside. The other employees had also expressed some reservations about the veil because they could not effectively communicate with her and the kids had been frightened of the garb.

Is it not strange that double standards are been applied by various societies in Europe? Whilst it is illegal to wear an Islamic headgear in a public place in France, (punishable with a fine of €150 and a year in prison for a male accomplice), it is fashionable to don a crucifix or turban in England or Italy.

This is permissible under the margin of appreciation given to domestic states in the interpretation of their laws by the ECHR.

A British Airways staff who was fired for wearing a conspicuous crucifix under her uniform got her job back when the British tabloids got wind of the story and raised a rumpus about the whole affair. Would the Press have adopted a similar attitude, if the roles had been reversed and the woman had been Moslem?

The events of 9/11 in New York and the train bombings in Madrid and London has unwittingly turned every Moslem into a potential terrorist and jihadist capable of unleashing mayhem on innocent citizens and passers-by. Guilt by religion has become the norm of judgment and been Moslem has become a crime under the law.

I am of the opinion that the French have adopted the wrong approach to the policy of assimilation in France. Singling out Moslem women will backfire and create more problems than solutions. Banning the Burka and Niqab by an Act of Parliament is akin to using a sledgehammer in disposing of a fly.

Before the new laws were considered for legislation, a census was carried out on the number of women who wore the Islamic garbs in Marseilles, Toulouse and Paris. The number did not exceed more than 2,000 in total. Would it not have been wiser to ignore the offenders and focused on more pressing issues like social cohesion and race relations?

The French economy is in a dire condition, the recession is biting hard, unemployment is rising sharply, (more than 17%) and Nicholas Sarkozy’s popularity stands at 26%. Would it not have been preferable to have spent the mammoth amount used in drawing up the new laws in getting the unemployed back to work?

Now, there could be acts of civil disobedience on the streets of France and arresting offenders will make martyrs of them and draw attention to a non issue which no one cares or talks about. Nicholas Sarkozy has made much of the role that was played by the states of the Maghreb in the liberation of Paris during the 2nd world war.

He invited soldiers from the former colonies in Africa to participate in the celebration of the storming of the Bastille, (an event that occurred during the French revolution in 1789). He has also raised the pensions of former soldiers from these countries to be at par with their French counterparts

I wonder what they will make of the new laws? Will it be applicable to their spouses when they come to France on holidays or to reside? Opinion polls show that more than 70% of the French are in favor of the new legislation banning the Burka and Niqab. But then have the French not always been a fickle and emotional race?

More than two centuries ago, the French monarch, Louis XV1 and his wife, Marie Antoinette were the most hated couple in France and the Parisian mob had heckled them as they went to the guillotine at the height of the Reign of Terror.

Opinion polls conducted recently show that Louis Capet is one of the most admired figures in French History and many express remorse at his execution. Hmmm……How times change!

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