Matter of Malika Boukbout - Case Study Example

Malika Boukbout v. France The secularism is not meant that state has to compromise on the basic rights. Though Malika Boukbout has every right to believe and practice her religion, she needs to recognise the superiority of the state. The present case the matter of matter of Malika Boukbout v. France has its genesis in a French law enacted to prohibit students wearing signs or attire through which they exhibit conspicuously a religious affiliation in public elementary schools, junior high schools and high schools. In addition, the law also authorise school management to introduce internal regulations to take required disciplinary procedures, which can be taken after consultation with students. Malika Boukbout is a French citizen of Moroccan descent. She has been living in La Courneuve, a lower-middle class Parisian suburb largely populated by Moroccan and Algerian immigrants, with her mother, father, and four older brothers. She and her family members are practicing Muslims, and specifically observe the practices and customary laws of the Malikite School of Islamic religious theory, which is predominate throughout Northern Africa. From her first year of elementary education until February 2004, Mlle. Boukbout has attended co-educational schools in the French public education system wearing hijabs. France, which has a long history regarding the separation of church and state, has permitted students in public schools to wear religious symbols until recently. The Constitution of France also states that France is to be a laïque (secular) Republic and a 1905 law prohibits the state from recognizing or funding any religion. It is also says that schools, which receive all funds from public sources, must not, by law, promote any religion and must remain open to children of all or no faith. From the late 1980s lot of Muslim girls in public schools have been wearing headscarves in schools. When controversy emanated over students wearing headscarves in French society, President Chirac constituted a Commission to examine how the principle of laïcité should apply. After a five month investigation commission has recommended enacting a law prohibiting students from wearing religious symbols in public funded schools. This decision was taken to prevent cultural clashes that had been taking place in schools, which leads to violence, threats to individual freedom, and to generally preserve public order. The French parliament has enacted legislation with the purpose. The law was passed in the parliament with more than 2/3rd majority to ban the wearing of ostensible religious signs in schools, including the Islamic headscarf, large Christian crosses, Jewish skullcaps, and Sikh turbans. Upon approval of the upper chamber, Law 2004-228 of March 15, 2004 (Loi encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics) went into effect. The law says that in public elementary schools, junior high schools and high schools, students are prohibited from wearing signs or attire through which they exhibit conspicuously a religious affiliation. It has to be noted that there has been no discrimination against any religion in the law. It is also prohibiting other major religious exhibitions. Following the enactment of the law, Mlle. Boukbout, who was a strong proponent of religious freedom, has been arguing that the new law would violate their rights to freedom of religion and expression. Her argument is that wearing an Islamic headscarf is not only her religious freedom but also political solidarity with other Muslims, who are being oppressed in Europe, Palestine, the United States, and Iraq. Following the enactment of law, school authorities have told Mlle. Boukbout that she would be denied access unless she removed her headscarf upon entering school grounds. Upon her refusal to do so, she received two written warnings and was then formally suspended from school. Since February 2004, Mlle. Boukbout has been attending a very small, private religious school located in the home of one of her neighbors, where her education consists primarily of religious lessons with four others. Then Mlle. Boukbout has pursued pleaded before the European Court of Human Rights. She has specifically asserted claims under Articles 8, 9, 10, and 14 of the European Convention for the Protection of Human Rights and under Article 2 of Protocol No. 1 to the Convention. Her argument is that as France is a party to the European Convention since 1974 and has made no reservations relevant to the articles under which this case is being pursued. The Protocol 1.of Article 2 says that no person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religions and philosophical convictions. (Article 1 of the International Covenant on Economic Social and Cultural Rights. http://www.hri.org/docs/ECHR50.html#P1.Art2) Article 13 of the Convention says that States should recognise the right of everyone to education. It says that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace. (Article 13 of the International Covenant on Economic Social and Cultural Rights. http://www.unhchr.ch/html/menu3/b/a_cescr.htm) The state parties should agree that Primary education shall be compulsory and available free to all and Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education. Her major argument is that the State should have respect for Covenant which says that guardians can choose their children’s schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions. The present case has some similarity with case of Leyla Şahin v. Turkey, the European Court of Human Rights (Fourth Section), deliberated in private on 2 July and 19 November 2002, and 9 December 2003. The case originated in an application against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Leyla Şahin (“the applicant”), on 21 July 1998. Leyla Sahin was a practicing Muslim and a student at the Faculty of Medicine at Vienna University. She considers wearing the Islamic headscarf as her religious duty. Leyla Sahin enrolled at the Cerrahpaşa Faculty of Medicine at the University of Istanbul, after her fifth year at the Faculty of Medicine at the University of Bursa. She had been wearing the Islamic headscarf during the four years she spent studying medicine at the University of Bursa. But on 23 February 1998, the Vice-Chancellor of Istanbul University issued a circular regulating students’ admission to the university campus. It says that by “virtue of the Constitution, the law and regulations, and in accordance with the case-law of the Supreme Administrative Court and the European Commission of Human Rights and the resolutions adopted by the university administrative boards, students whose ‘heads are covered’ (wearing the Islamic headscarf) and students (including overseas students) with beards must not be admitted to lectures, courses or tutorials. Consequently, the name and number of any student with a beard or wearing the Islamic headscarf must not be added to the lists of registered students. However, if students whose names and numbers are not on the lists insist on attending tutorials and entering lecture theatres, they must be advised of the position and, should they refuse to leave, their names and numbers must be noted and they must be informed that they are not entitled to attend lectures. If they refuse to leave the lecture theatre, the teacher shall record what has happened in a report explaining why it has not been possible to give the lecture and shall bring the matter to the attention of the university authorities as a matter of urgency so that disciplinary measures can be taken.”(Strasbourg Judgement, European Court of Human Rights, Council of Europe, Fourth Section, Case of Leyla Sahin v Turkey, 29 June, 2004) Upon this order the university authorities denied Leyla Sahin the access to leacture hall and examinations as she was wearing headscarves. Then she had approached the Istanbul Administrative Court pleading to set aside the circular issued by the university authorities. Consequently the university authorities had taken action against her on the grounds of students’ disciplinary procedure rules. She was then suspended from the university. Wearing the Islamic headscarf to school and university has been a cause of extensive discussion in Turkish society. While some people favours headscarf wearing as a duty and/or form of expression linked to religious identity, whereas those against regard it as a symbol of a political Islam that is seeking to establish a regime based on religious precepts and threatens to cause civil unrest and undermine the rights acquired by women under the republican system. The accession to power on 28 June 1996 of a coalition government comprising the Islamist Refah Partisi, and the centre-right Doğru Yol Partisi, has given the debate strong political overtones. The ambivalence displayed by the leaders of the Refah Partisi, including the then Prime Minister, over their attachment to democratic values, and their advocacy of a plurality of legal systems functioning according to different religious rules for each religious community was perceived in Turkish society as a genuine threat to republican values and civil peace (Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003-II). Consequently the applicant had submitted before European Court of Human Rights that that the ban on wearing the Islamic headscarf in higher-education institutions constituted an unjustified interference with her right to freedom of religion, and, in particular, her right to manifest her religion. She relied on Article 9 of the Convention, which provides right of freedom of thought, conscience and religion. But the government denied that there has been a breach of privilege. The Court reiterated that though the freedom of religion is most vital elements, it is also a precious assets for other sections such as atheists, agnostics and the unconcerned. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (Kokkinakis v. Greece, 25 May 1993, Series A no. 260-A, p. 17, § 3; and Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I) The applicant said that her manner of dressing had to be treated as the observance of a religious rule which she regarded as a “recognised practice”. She maintained that the restriction and her resulting exclusion from the University of Istanbul was a clear interference with her right to freedom to manifest her religion. The court said that there has been no disciplinary action against the student for observing the religious codes. The Court reiterates its established case-law, according to which the words “prescribed by law” not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V). The Court has also noted that in democratic societies, where several religions coexist, it may be necessary to place restrictions on freedom to manifest one’s religion or belief in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected (Kokkinakis, cited above, p. 18, ) This observance is indicated that the French Government has neither interfered in the right to religion and education if this taken in Malika Boukbout v. France case. The Government has all rights to place restrictions on freedom to protect democracy. Also in this case she is not wearing headscarf as part of religious belief. But she says that she wears as a religious freedom and a symbol of political solidarity with other Muslims, who are being oppressed in Europe, Palestine, the United States, and Iraq. Here how can one correlate religious freedom with political freedom. Here it is evident that she using right to education for fulfilling her political ambitions in some other parts. In modern societies, there is typically a multiplicity of religious beliefs and identities, and –so we are told they can be held together only by a formal separation between religious belonging and political status, and by the allocation of religious belief to the private sphere. To be fully part of a democratic community, citizens holding different religious beliefs (or none) must share values that enable them to have a common political life. These values reflect the unity of the state that represents them. Without shared values there can be no integration, without integration no political stability, without some measure of stability no justice and freedom. Secularism provides the framework for realizing this sequence. France is, after all, a democratic country in which various liberties are safeguarded, legal Researchers have enquired into the reasons for their lack of integration into French society. Western Christendom adopted the cuius regio eius religio principle (the religion of the ruler is the religion of his subjects). This agreement is part of the genealogy of secularization in that it attempted to resolve particular religious problems by adopting a general political principle at a time when “the core of religion” was coming to be seen as an internal matter.  It is estimated that more than half the inhabitants of French prisons are young Muslims of North African origin. (See Jerusalem Report, May 6, 2002.) When in 1882 the Third Republic made secular schooling compulsory for six- to thirteen-year old children, national education became a means for inculcating positivist humanism in its future citizens and weaning future generations away from the historical Church. It was coincidentally then, under the Third Republic, that a significant extension of France’s colonial conquests took place, justified by its mission civilisatrice, the crusading complement to its positivist nation-building at home One way of looking at the problem that interests me is this: Since “religion” directs the attention of subjects to other-worldly concerns, state power needs to define its proper place for the worldly well-being of the population in its care. The commission was headed by ex-minister Bernard Stasi, and it heard testimony from a wide array of persons. In December 2003 a report was finally submitted to the President recommending a law that would prohibit the display of any “conspicuous religious signs” (des signes ostensibles) in public schools – including veils, kippas, and large crosses worn around the neck. On the other hand, medallions, little crosses, stars of David, hands of Fatima or miniature Qur’ans, that the report designates “discreet signs” (les signes discrets) are authorized.  The object of the whole exercise is of course to ban the Islamic veil partly because it is “religious” but also because it signifies “the low legal status of women in Muslim society” (a secular ignification). However, the girls who are the object of the school ban are French living in France; they are therefore subject to French law and not to the shari’a.  Since French law no longer discriminates between citizens by gender or religious affiliation, the sign designates not a real status but an imaginary one, and therefore an imaginary transgression. It is worth remarking that solicitude for the “real” desires of the pupils applied only to girls who wore the headscarf. No thought appears to have been given to determining the “real” desires of girls who did not wear the headscarf From its beginning the idea of the secular Republic seems to have been torn in two conflicting directions – insistence on the withdrawal of the state from all matters of religion (which must include abstention from trying to define what is “really religion”), and the responsibility of the state for forming secular citizensThe question remains as to whether there is any place in laïcité for rights attached to religious groups. And the answer is that indeed there is, although such groups are usually thought of as exceptions. Perhaps the most striking are Christian and Jewish schools, “private” establishments under contract to the government that are heavily subsidized by the secular state. In these state-supported religious schools, where it is possible, among other things, to display crosses and kippas, and where religious texts are systematically taught, pupils nevertheless grow up to become good French citizens Reference: Article 1 of the International Covenant on Economic Social and Cultural Rights. Article 13 of the International Covenant on Economic Social and Cultural Rights. Kokkinakis v. Greece, 25 May 1993, Series A no. 260-A, p. 17, § 3; and Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I Loi encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics http://www.unhchr.ch/html/menu3/b/a_cescr.htm http://www.hri.org/docs/ECHR50.html#P1.Art2v Read More