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Answer
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Name
Zakariyah Agboola
- Japan
Profession
webmaster
Question
Recently, the French Government has enacted a legislation that prohibits wearing of religious symbols including Muslim Hijab at the public schools. Is the European Union has power to revise the controversial enactment?
Answer
There are a number of potential European Union legal challenges to the French religious symbols ban. The most promising is the EU Race Discrimination Directive which came into force in December 2003. The key point is the directive may cover some religious groups as well as racial groups. If that is so we have the basis for a strong legal challenge to the ban. There are two basic procedures to challenge the law of a Member State of the European Union under EU law.
First, the European Commission can bring 'infringement proceedings' before the European Court of Justice in Luxembourg. Ultimately, the Court can order France to comply with EU law, and unlike the European Court of Human Rights in Strasbourg national courts must obey the Luxembourg court. The ECJ can even fine France.
However, the reality is that the European Commission would have to bring the case-and given its political sensitivities it would have to come under immense pressure before that happened. I have done my bit to try and encourage them to bring an action against France. In June I filed a complaint with the Commission-and they have promised me that they are looking into the case.
Incidentally, there is one special procedure that could be deployed another EU Member State could bring an action against France in the ECJ. This is very rare. It has only happened once-(needless to say it was the UK v. France) but if another Member State could persuaded to bring a case before the ECJ that would be one way of getting the legality of the ban before the Court.
The alternative approach is for an action to be brought by a girl wearing a hijab or by a Muslim association on her behalf in the French courts, presumably the local administrative tribunal. It is possible for even the lowest court in the French legal system to refer a case on EU law to the European Court of Justice. However, it is likely we would have to fight it to the French Supreme Court.
Name
Mohamed Hanipa Maidin
- Malaysia
Profession
lawyer
Question
If a person is legally permitted not to wear hijab/anything in the western countries why the reverse is intolerable? If this is not discriminatory what is?
Answer
Mohamed the basic legal principle in many western states is that you are free to do anything which is not prescribed by law. The default position is that you can do anything. Only if a law prohibits something are you banned. Hence non-Hijab wearers benefit from that basic legal principle. The key question therefore is whether the ban is justified objectively, under French, EU and human rights law.
Name
april
- Canada
Profession
teacher
Question
I think that the French government made the right thing by banning the hijab. The hijab may have been acceptable during the middle ages when it was ok for men to dominate women. But this is the 21st century and the hijab is a relic, a lasting symbol of oppression. Women in Muslim countries cannot go to schools, have a career. They are basically modern day slaves for there Arab husbands.
Answer
April, Factually you are not correct. Take Indonesia which is the world's largest Muslim country. Not merely has it just had a peaceful democratic election with a handover in power, the outgoing President is a woman. In many Muslim countries women can go to school and take up serious professional jobs some with some without the Hijab.
It's just not correct to say 'woman in Muslim countries cannot go to schools, have a career....ect'
Yes, of course it's true that there are Muslim countries that do restrict women's rights, but by no means even the majority of Muslim states.
On the specific Hijab issue, I would recommend you read the September 2003 judgment of the German Federal Constitutional Court. In that judgment the Court makes a very compelling case that in the 21st Century while the state may not order religious symbols such as crosses to be fixed to school walls-but that a liberal state should tolerate, even revel in the prospect of its citizens expressing its full ethnic, religious and cultural diversity in its schools, hospitals and offices and throughout the public arena of society.
The court provided this image of a school where in the morning you may be taught by a Dominican Monk of the Catholic Church in his white and black robes, after lunch, by a Jewish teacher in his skull cap and toward the end of the day by a lady in a Hijab......and the schoolchildren make their way home with pass a policeman in a turban.
April what the court was arguing for was 21st century toleration and diversity, rather than a severe 19th century separation of faith and state.
Name
Um Huda
-
Profession
Mother
Question
I have heard about a campaign in the UK called Assembly for the Protection of Hijab, I sent my membership form to their website www.prohijab.net where I read your name in one of their activities, I think it was a conference you spoke in. Do you think they will be able to face the legal challenge especially after the European Court for Human Rights Decision in June against one Turkish girl?
Answer
Hallo Um Huda, Yes, I spoke at the July meeting in London's City Hall on the legal issues involved in the Hijab ban.
My argument was that the human rights argument is not as strong as the EU legal argument under the Race Discrimination Directive. The problem with the human rights argument is that the human rights court in Strasbourg always grants the courts a significant degree of discretion-which makes a legal challenge to national rules difficult to win.
Name
fahd hussain
- Canada
Profession
finance
Question
Asalam Walaikum, I have a comment i would like to make. I am a dedicated Muslim and love Islam very dearly. However i have a concern in regards to the outrage Muslims feel toward the French government for banning the hijab in public. Sheik Tantawi the head of al-azhar stated that the French had the right to ban the hijab because it is not a Muslim country and that Muslims have to abide by the laws governing non-Muslim lands. I actually agree with this ruling. I do not agree with the ban on the hijab but i do agree that because France is a non-Muslim country they have the right to make laws that they feel is in the best interest in their country. Muslims should be more concerned about countries like turkey which is a Muslim country and has banned the hijab as well. Why no outrage over turkeys ban on the hijab, this is definitely a double standard. Also what countries like Saudi that force hijab on women? I think hijab should be a women's choice either for or against. Remember there is no compulsion in religion
Answer
Asalam, Yes, I fully agree there should be no compulsion in religion. When there is compulsion what claims to be religion loses its connection with God. The Saudi approach is thoroughly mistaken. There is however good grounds for challenging the French ban which affects all that wear large religious symbols, be they Muslims, Jews or Sikhs.
One of the points is that it is discriminatory in that it does not affect those who wear small religious object, such as Christians who wear crosses.
The second argument is deeper, that the basis for the French ban is the secularist principle-one of the 1789 principles. I think here that the French Muslim community could help the broader French community re-assess the secularist principle for the 21st century.
What the French Muslim community could do is make a strong case for re-assessment. That secularism should mean no state sponsoring of religion, but the state should support and encourage ethnic, religious and cultural diversity. A new secularism for a new century.
On Turkey, again I think one of the solutions here is for Turkish Muslims to engage in debate with the secularists to re-assess secularism at the beginning of the 21st century. I don't know enough about Turkey to know whether the state sponsoring/state encouraging distinction is workable, but a getting a dialogue going is a good first step and yes, there is an element of double standard-but my impression is that a lot of people have been complaining about Turkey's approach and there have been several cases before the European Courts.
Name
Khalid Ahmad
- Belgium
Profession
Question
I read on IslamOnline.net pages about a draft written declaration prepared by a group called Prohijab and Carol Lucus member of European Parliament, do you think the European Parliament will condemn the Hijab ban in France and will its decision force France to change its law? What can we do to help this Declaration to succeed? Thank you
Answer
Khalid, Frankly I doubt there is a majority in the European Parliament to support a resolution to condemn the headscarf ban. However, my impression is that there is a lot of potential support in the Parliament which could be developed to help the pro-Hijab campaign.
Name
hafeez
- Nigeria
Profession
legal practictioner
Question
European countries have been claiming to have championed the fight for human rights, most especially in undemocratic government. With the recent ban and proposed ban on the use of hijab in some European countries could their claim of fighting for human rights be justified?
Answer
Hafeez, I think the point here is human rights are universal-they apply to everyone, everyone is bound by them and everyone has rights under them. Its good when any government european or not stands up for human rights, but all governments have a tendency to abuse their powers, even democracies-thats why we need human rights.
Name
Hagar
- United States
Profession
Question
Do you see hijab bans such as the one in France spreading to other countries? If so is there any way to stop it?
Answer
Hagar, I think it depends on the cultural and legal traditions of the country in question. For example, its won't happen in the UK so long as the Church of England remains the 'church by law established', with the Sovereign as Supreme Governor and Tony Blair de facto appointing the Bishops.
You can hardly start banning religious symbols if you run a state church.
However, there are other countries with a more 1789 tradition where a ban could take place, for instance I understand there have been bans in some Belgian communes and in some German Lander.
Name
Salma Saeed
- Egypt
Profession
student
Question
Do you think this problem will be solved? I saw an advert on TV about my dear sisters in France, I feel angry and cried a lot because they were forced to take off their hijabs, my friend told me to send e-mail to info@prohijab.net, I did so and I want to ask all students in Egypt and everywhere to send e-mails to this address to support them, they are crying and we do nothing, I feel depressed. Dr Alan please help them please.
Answer
Salma, I think one of the major problems here is the grip that secularism now has on Western Europe, the most secular place on earth. I suspect that some of the 19th Century French secularists would have been as shocked as you are at the behavior of the modern French state.
19th century secularists had understanding of the importance of religion to believers. Unfortunately, I just don't think modern secularists understand where people with a religious sense and belief are coming from. They don't understand the distress their ban causes.
I think we can do a lot. The best suggestion is to engage with the French government-its by debating and talking that we can begin to understand each other and change views. That is the way forward.
Name
Aisha
-
Profession
Question
Many may see the legal channels in the hijab issue are blocked and will isolate the Muslims, what do you think?
Answer
Aisha, using the legal channels is only one part of a broader political and PR strategy. Are they blocked no? Will it be difficult to use them? Yes, But above all it's a broad approach political, engaged, reaching out to the broader non-Muslim community.
Name
Abdullah
- Australia
Profession
Question
Until now i can not understand the legal technical details, there are many laws in Europe and they is a real difference from country to another, how can the legal stances of these countries be changed towards the hijab issue?
Answer
Abdullah, there are indeed many laws in Europe, the EU alone has 25 Member States with 27 legal states (because typically the UK not content with one legal system, in fact has three!). But we also have European Union law as well, which applies across the whole of the EU, so if you change rules at EU level, then you have a result right across the whole EU in one go.
However, where there are problems in a particular country, we need a political, media and legal strategy on the ground and tailored to that country as well. As I explained above the difficulties with the Hijab are likely to be greater in one state than another across Europe.
Name
Adam
-
Profession
Question
How can any European Muslim citizen be more cultured about his civil and legal rights?
Answer
I think you mean informed about your rights?
There are lots of sources, particularly on the net, if you go to the European Court of Human Rights and the European Union websites there are lots of material setting out civil rights under the European Convention on Human Rights and the new EU Charter of Fundamental Rights. Plus there are usually lots of civil organizations in your home states and organizations like Amnesty International as well.
Name
Sally
-
Profession
Question
According to your experience, what is the best European legal system in your opinion?
Answer
Sally, that's a very unfair question!! I am an English lawyer, so I am always going to be biased. I of course think the English system is good. However, it could always learn from other systems, EG I think the US system provides better access to court, and the French system has a more accessible administrative law system. Lawyers are though always going to defend their own system.
Name
--------
-
Profession
Question
How do you evaluate the Muslims role in the European countries especially during the crisis like 9/11 and the hijab??
Answer
That's a very big question. I simply don't know what happened immediately after 9/11 and post the Hijab question in all the EU states alone never minds all of Europe. I will make two comments; first, there was clearly a great deal of fear once it became clear that the terrorists in NY and Washington were of the Muslim faith. Second, what I have observed after the Hijab ban was a near universal opposition amongst the Muslim communities across the continent.
