The Right to Religious Freedom - Case Study Example

Name of the Student: The right to religious freedom will remain theoretical and illusory as long as states are allowed a wide margin of appreciation in imposing inconsistent and often discriminatory restrictions on different religious group Name of the Student: Name of the Instructor: Name of the course: Code of the course: Submission date: Introduction The margin of appreciation is a concept used in international law, mainly in the European Court of Human Rights and the United Nations legislation which gives a maneuvering space to national authorities in the course of fulfilling the obligations set by the conventions of human rights. Ideally, the margin of appreciation gives the national judicial systems a chance to interpret certain legal issues pertaining to human rights with respect to the national legislation, hence providing justice to the subjects in context (Tumay 2008, p.202). The margin of appreciation is based on the fact that national judicial systems are better placed to make appropriate judgments about a case, taking into consideration that they have the full knowledge of the social, cultural, environmental and political situations influencing the case under context as compared to international judges, who only make rulings according to the international laws. Therefore, it was deemed fit to give national judicial systems a space (margin of appreciation) which makes it possible for the making of appropriate rulings with respect to the consideration of all the factors involved (Takahashi 2002, p.237). Moreover, the convention of human rights in the European Convention sought to bring together several member states each of which had different legal and cultural traditions, hence making it hard to come up with specific international standards of governing human rights in the different countries. This made it necessary for the establishment of the margin of appreciation which made it possible for the consideration of the varying legal and cultural traditions of the member countries of the European convention of human rights (Bakircioglu 1999, p711). There has been a lot of criticism of the margin of appreciation, leading to the creation of two sharp divisions. Ones side supports the doctrines while the other is against it, citing that it does not have the capacity to ensure that human rights are upheld in the region (Kratochvil 2011, p.326). The following essay will take a deep insight into the margin of appreciation doctrine. Drawing arguments from several aspects of the doctrine; hence identifying whether the right to religious freedom will remain theoretical and illusionary as long as states are allowed a wide margin of appreciation in imposing inconsistent and often discriminatory restrictions on different religious groups. At the end, the essay will state why the margin of appreciation is good. The Right to Religious Freedom The right to religious freedom is a basic human right prescribed by the United Human rights convention. As a result of this other international, regional and national human rights conventions have this right as one of the main rights in their statutes (Gray 2008, p.4). Under this right, an individual has the right to belong to any religious group of his/ her choice. Moreover, an individual has the right to partake of all the activities of his/ her religious group of choice, either as an individual or in association with other believers (European Union 2000, p. 10). However, as indicated earlier, various countries have various cultural and legal traditions which limit the extent to which a religious movement can be deemed as legal. For instance, some legal and generally accepted religious activities in one country may be illegal and unacceptable by the society in another country (Durman 1999, p.2). This means that there cannot be any international standard to govern the right to freedom. This gives the need for a legal framework which provides for the scrutiny of the various cultural and legal settings by a national judicial system as opposed to an international judicial system, hence providing a means by which the right to religious freedom can be upheld, under the confinements of the cultural and legal provisions of a specific society (Benvenisti 1996, p.844). This legal framework is provided by the margin of appreciation. However, the size of the space given to national legislation systems to govern the right to religious freedom is the bond of contention. It is seen as if that the wide margin of appreciation given to national judicial systems to enforce the right to religious freedom gives too much leeway for the abuse of this right on a national level (Butler 2008,p.690). The discussion of the doctrine of the margin of appreciation in the following sections will make it possible to conclude whether or not the right to religious freedom will remain theoretical and illusionary as long as states are allowed a wide margin of appreciation in imposing inconsistent and often discriminatory restrictions on different religious groups; hence identifying if the margin is good or bad. Application of the Margin of Appreciation With Respect To Religious Freedom As indicated earlier the margin of appreciation provides for a degree of flexibility on the legal zone on which a decision can be made (Letsas 2006, p. 705). The MOA is a rather contentious way of settling issues related to religious freedom and other human rights and freedom issues (Tumay 2008, p.203). This is due to the lack of universal standards which can be used for the analyzing of such cases, hence the different laws and policies which have been used by various countries to influence religious freedom related issues (Cakmak 2006, p.19). The following section will analyze some of the religious freedom cases which have been influenced by the exercising of the margin of appreciation. The cases will be analyzed with respect to various tools which national authorities use to influence religious related activities in their respective countries. Laws Various countries in the world have various laws which govern religious activities and religious institutions in their own countries. The establishment of the laws is based on the cultural and legal traditions of the specific countries, hence the decisions that are made within the confinements of the specific traditions (Council of Europe 2012a, p.1). The following section will analyze some religious freedom cases whose rulings were influenced by the exercising of the margin of appreciation. The banning of the wearing of Hijab in Europe Hijab is a religious headscarf worn by Muslim women. Ideally, the Hijab or the Muslim veil represents modesty in a woman. A woman without a veil is regarded to as an exposed woman; hence lacking the modesty desired for in a woman. The issue about the Muslim veil has been in contention across many countries in Europe and the world at large. The wide margin of appreciation bestowed to national authorities by the human rights convection provides a basis which the national authorities use to impose restrictions on religious clothing for instance the hijab or the Muslim veil. The following section will analyze the restriction imposed on the wearing of the Muslim veil across several countries in Europe. France The banning of the wearing of the hijab in public places in France was one of the first moves by national authorities in Europe to impose restrictions on the wearing of the Muslim veil. The French government banned the wearing of a full hijab which covers the full face of a woman. The argument of the government was that the full veil was an action of oppressing women. Ideally, the argument makes sense from the perception that the veil was used by the Muslims to cover women from the world. Just as a recap, Islam regards women lowly as compared to men; hence they have to cover themselves when they are in public. Therefore, the banning of the wearing of the full face veil in public places in the country was a good move towards liberating Muslim women from the chains of religious oppression. On this point, the French President Sarcozy openly said that the full face veils are not welcomed in France since they tend to oppress women. However, this move restricts the freedom of religion of the women since they are not given the right to wear what they want to wear, which is a fundamental human right which each and every human being should have. With the banning of the hijab in 2011 on the 11th day of April, women who were found wearing the full face scarf would have to part with a 159 euro fine. The ban also specified that a fine of 30,000 Euros would be charged on any person who was found guilty of forcing a woman to wear a full face veil. Restrictions on the Wearing Of the Muslim Veil in Other European Countries Just as it is in France, Belgium also has a law which bans the wearing of the Muslim full face veil in public places. The law came into effect in the country in 2011. Besides the banning of Muslim’s full face veils, the law also bans the wearing of any clothing that hides the identity of the person wearing the cloth. In Spain, the wearing of the full face Muslim veil in public places is banned in Barcelona. In the United Kingdom, schools are given the right to dictate on the school wear, hence there is an opportunity for the possible banning of some religious clothing such as the Muslim veil. However, the country does not have any legislation banning the wearing of the Muslim veils public places. In Italy, the wearing of full face veils is also illegal (Morini n.d, p.2). In Germany, several states have banned the wearing of full face veils in schools and other professions. From the above discussions on the banning of the wearing of the Muslim veil in public places in several countries in Europe, the practical exercising of the margin of appreciation has been seen in full effect. On this point, it is important to acknowledge that the margin is wide, hence the different degrees of restrictions in the various countries discussed above (Radacic 2010, p.599). Taking a critical look at the debates which were there before the various laws banning the wearing of the hijab were affected, it can be seen that the cultural traditions of the various countries have played a very major role. Although the intentions of the various governments can be justified from the specific countries’ cultural traditions, it is important to acknowledge that the laws breach the right to religious freedom on the sides of the people who are affected by the bans. Therefore, the exercising of the margin of appreciation in these countries makes the right to religious freedom an illusion. The case Dahlab versus Switzerland is an example of a legal case which involved the infringement in the freedom to the right of religious freedom. Ms Dahlab was taking Switzerland government to court for baring her to wear a head scarf, Hijab, in the classroom, as she was a primary school teacher (Minority Rights Group International 2001, p.1). The banning of the wearing of the headscarf by Dahlab was an act of the utmost exercise of the margin of appreciation (European Court Of Human Rights 2001, p1). This breached her right of religious freedom as she was not allowed to wear the hijab, which has a religious meaning to her. Restrictions on specific religious groups Under the margin of appreciation, national authorities have been able to impose restrictions which target specific religious groups or activities. More often than not, the restrictions are discriminatory from the perspective of a religious activist. According to a research study done by The Pew Research centre, there has been a gradual increase in the level of government restrictions on specific religious across the world (Pew Review 2012, p.1). For instance, Muslims are given unwarranted searches and attention in the European and American regions due to their being suspected of being linked with terrorism. Ideally, there has been a sharp divide between the western countries and the Islamic countries, and the religion affiliations of the various countries are fueling factors to the division. Consequently so, there are several discriminatory restrictions on the Muslims in the west and of the Christians in the Islamic world (Persecution.Org. 2012, p.1). On the other hand, the various traditions which countries uphold also play an important role in defining the kind of restrictions which governments impose on specific religions. Surprisingly, the number of restrictions on religious freedom in most countries is increasing as opposed to reducing. This can be seen from the table below. (Pew Review 2012, p.1). As expected, the traditions o a country has a major role to play in the establishment of restrictive laws in the specific countries. Countries which uphold religion in their traditions have more restrictions as opposed to secular states. This can be seen in the following figure. (Pew Review 2012, p.1) The Banning Of Religious Symbols The Hijab is religious clothing, hence deserves the right to be referred to as a religious symbol. The debate about it wearing in the European region and other countries in the world has been discussed earlier (Eweida 2012, p.1). However, there are other religious symbols whose public wearing and use has generated a lot of fuss in various countries in the world. Key among them is the crucifix, which a Roman Catholic religious symbol is symbolizing the cross which Jesus Christ was crucified on; hence it’s through it that the Christians’ sins were washed away. The following section will discussed the margin of appreciation with respect to the restrictions imposed on the wearing and use of religious symbols. Italy Italy is one of the countries which have elicited a lot of attention on the international scene with respect to religious freedoms, specifically on the field of the public use of religious symbols. The famous case of Lautsi versus Italy. In this case, the Italian authorities had enforced that the display of Catholic symbols for instance the crucifix in classrooms was mandatory, as per the strict Roman Catholic rules on which the traditions of the country are based (Puppinck 2010, p.1). The Italian government had exercised the margin of appreciation in ruling a case in which My Lautsi had taken the government to court over the mandatory display of the crucifix in classrooms (Ronchi 2010, p.2). According to Mr. Lautsi, the display of the crucifix was not right since it did not take into consideration the non Catholics who were also students in the Italian education institutions. However, the judgment on the case by the Italian judicial system was in favor of the display of the crucifix on the classrooms’ walls, which was against the religious freedoms of the non Catholics in the country. The margin of appreciation was exercised in favor of the Italian government since under the constitution; there was no major division between the state and religion, hence the religious traditions of the country had to be taken into account while making the ruling (Woodhead 2012, p.1). Circumcision The ruling by the European council that male circumcision was illegal is another case which brings the doctrine of the margin of appreciation into scrutiny. The case which was ruled in the Cologne Regional Court found that it was illegal to circumcise young males (Cranmer 2012, p.1). This is a restriction to a traditional religious practice which has for a long time being assimilated into the culture of the various communities practicing the practice (Cranmer 2012, p.1). However, the exercising of the margin of appreciation by the court breached the freedom of religious freedom. With respect to morality, the margin of appreciation has been used over and over again to settle cases in the world. For instance the contentious issue about abortion has been settled using the margin of appreciation. Abortion is an illegal practice as per the various religions of the world. However it has been legalized in various countries oblivious of the fact that it is against the religious practices in those countries (Wicks, E., 2011, p.556). With respect to the marriage institutions, the margin of appreciation has been used to settle various issues related with the practice. For instance polygamy is a cultural tradition in many African countries, hence explaining the relaxed marriage laws which are enforced in African countries. The huge workloads which are associated with the social settings of the African socio– economic activities. Therefore, it becomes important that family unite have as many children and women as possible so as to share the various tasks at home. Moreover, the bigger the family that an individual in Africa has, the wealthier the individual. Therefore, polygamy is Africa is an acceptable issue. For instance the famous bridal gathering in Swaziland by the country’s president is an indication of the marriage institutions in the country. The openly choosing of virgins by the president is an indication that polygamy in Africa highly regarded. As a result of this, the margin of appreciation with respect to marriages is excersed on a wider margin in Africa as compared to other countries in the world. While making judgments related to the marriages, it is essential that the judicial systems take account of the marriage traditions in the society. Practice of the Margin of Appreciation (Narrowness and Wideness) The application of the margin of appreciation is limited by the degree of application provided for by the international law. As pointed out earlier, there is the ‘legal zone’ upon which national authorities can make decisions (Council of Europe 2012b, p.1). The degree of flexibility of a national authority in the zone of legality is determined by the narrowness or the wideness of the margin of appreciation (Moral 2006, p.611). The wider the margin, the more a national authority can make a decision based on its own legislations with respect to the international law and vice versa. The following section will discuss the application of the margin of appreciation in the international law. Most of the cases discussed will be with respect to the European Court of Human Rights. Application of the Margin of Appreciation The European Court of Human Rights is renowned for its application of the margin of appreciation (Bakircioglu 1999, p.713). As pointed out earlier, the aim of the doctrine is to provide for the making of judicial decisions pertaining human rights through the provisions of the national legal systems in the member countries of the European Union. Basically, the margin of appreciation has two basic principles in its application. The first one is the judicial deference. On this principle, it is noted that international courts are obliged to give national authorities a given amount of deference from the international law (Moral 2006, p.627). Moreover, the judicial deference states that manner in which national authorities carry out their obligations to the international law should be respected. This is based on the facts described earlier that each and every country has its own unique cultural and legal traditions. Therefore, there is no any standard way of enforcing laws on the human rights in the countries but rather, the national authorities should be given a certain degree of allowance to make decisions based on the legal and cultural traditions in the specific countries (Shany 2006, p.910). For this reason, judicial deference is a major principle of the margin of appreciation. The main logic behind judicial deference is that international courts are not supposed to replace national judicial systems; but rather to make them stronger. Therefore, the international law on human rights gives the fundamental human rights and freedoms, upon which national authorities base their national legislations (Spielman 2012, p.11). The degree to which national judicial systems can make decisions is restrained by the wideness or narrowness of the margin of appreciation given to a specific case. The second principle of the margin of appreciation is normative flexibility (Letsas 2006, p.706). Normative flexibility provides a legality zone upon which national authorities can make decisions. This is the size of the margin of appreciation, normally referred to as being either narrow or wide. Bearing in mind that the international norms with respect to the margin of appreciation have for a long time been regarded to as open ended due to the fact that there are no specific standards with which national authorities can base their decisions upon (Benvenisti 1996, p.843). It is only the ‘legality zone’ provided for by the margin of appreciation that national authorities can confine themselves to. Based on the normative flexibility, national authorities can make their decisions with respect to two principles. The first one is the norm interpretation (Shany 2006, p.910). On this principle, national authorities have the flexibility to interpret international law with respect to their legal and cultural traditions. On this point, it is noted that national authorities in one country may interpret a specific international law article in a totally different manner from the interpretation in another country (Council of Europe 2012b, p.1). This is normative interpretation. The second principle of normative flexibility is normative application. On this principle, it is important to note that the application of a specific international law is different from one country to another (Drumbi 2007, p.188). This is due to the various legal and social factors affecting a country. For this reason, the margin of appreciation allows for a normative interpretation within the legal zone, upon which national authorities can interpret the international law. However, it is important to acknowledge that the provision of the margin of appreciation is not unlimited to national authorities (Drumbi 2007, p.56). This is due to the fact that there is a need to ensure that the international human rights laws are followed to the later; and decision deviations in the margin of appreciation are made with the best interests at heart. For this reason, there are limits to the practice of the margin of appreciation. The first one is that national authorities must exercise their margin of appreciation in good faith. On this point, it is important to acknowledge that various forces in a country may be behind the making of specific decisions as opposed to the urge of seeking justice (Butler, P.,2008, p.688). For example, the political setting of a country may influence a decision on the basis of margin of appreciation, hence leading to the loss of justice. For this reason, the international laws and conventions must identify that the margin of appreciation is done in good faith. Secondly, it is important to note that the exercising of the margin of appreciation by national authorities must make reasonable decisions (Spielman 2012, p.4). On this point, the international conventions must identify if the decisions being made by national authorities are aimed at upholding the norm which governs the specific case in context (Cakmak, 2006, p18). Conclusion In conclusion, the margin of appreciation is a good strategy of ensuring that there is justice for all. As seen in the essay, the margin of appreciation provides states with an opportunity of making decisions with respect to their specific cultural and legal values. This makes it possible for countries to make appropriate decisions with respect to their situations. The essay started by giving an introduction to the doctrine of the margin of appreciation. The essay then discussed about the right to religious freedom. This gave an insight into the concept and how it is linked to the margin of appreciation. The essay also introduces the two principles of the margin of appreciation which includes the normative flexibility and the judicial deference. It is upon the two principles that the application of the margin of appreciation is based. The essay has also made a detailed discussion of the degree of the margin of appreciation with respect to its narrowness and wideness. It has been identifies that narrow margins of appreciation limit the legal zones on which national authorities can make decisions as compared to wide margins of appreciation. Several examples of when the European convention of human rights allows for narrow and wide margins of appreciations and specific case examples of when such margins were applied have been discussed in the paper. The essay has also been linked to religious freedom and the restrictions which states impose on the different religious groups. From the discussion in the essay, it can be conclude that the use of the margin of appreciation is a good move. 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