OSCE MEETING 2013: Report on Hungarian Law on Churches and its implications on freedom of religion

24 09 2013
Plenary Session of the annual meeting of the Organization for Security and Co-operation in Europe, September 24, 2013, Warsaw, Poland.

Plenary session of the annual meeting of the Organization for Security and Co-operation in Europe, September 24, 2013, Warsaw, Poland.

ORGANIZATION FOR  SECURITY AND CO-OPERATION IN EUROPE
OFFICE FOR DEMOCRATIC INSTITUTIONS AND HUMAN RIGHTS

HUMAN DIMENSION IMPLEMENTATION MEETING 2013
FREEDOM OF RELIGION OR BELIEF

 September 2013, Warsaw, Poland

REPORT ON HUNGARIAN LAW ON CHURCHES AND
ITS IMPLICATIONS ON FREEDOM OF RELIGION

 By Jura Nanuk, Forum Religious Freedom Europe (FOREF-Europe)
Coordinator for Central & Eastern Europe
Foref-LOGO-E2

Current Hungarian legislation seriously violates numerous standards and recommendations of European and UN human right bodies regarding freedom of religion.

Jura Nanuk, President of Central-European Religious Freedom Institute and FOREF Europe Coordinator for Central & Eastern Europe, submitting report on religious freedom in Hungary at OSCE plenary session.

Jura Nanuk, President of Central-European Religious Freedom Institute and FOREF Europe Coordinator for Central & Eastern Europe, submitting report on religious freedom in Hungary at the OSCE plenary session, September 24, Warsaw, Poland..

In summer 2011, Hungarian Parliament adopted the Law on Freedom of Conscience and Religion and the Legal Status of Churches, Denominations and Religious Communities (in further text: Law) which stripped hundreds of religious communities from their status of recognized churches. Only fourteen communities – 12 Christian and two Jewish – were granted the right to keep their status.

All other religious communities in Hungary were forced to undergo an absurd and highly arbitrary re-registration procedure which, amongst a whole range of barriers, included a final obstacle of being voted on by the Parliament, as to whether each group is a religious organization or not.

Such procedures could hardly be much further away from international human rights standards and academically accepted determinations of what constitutes a religion.

The fact that only fourteen religious communities were automatically granted the status of religion by the new law, but Muslims, Hindus, Buddhists and hundreds of Christian denominations have been rejected – clearly shows how arbitrary and discriminatory the law was.

 Although the original arbitrary list of 14 churches was latter extended due to increasing international pressure, it is clear that the Law and the consequent Amendments on the Constitution still don’t guarantee the freedom of religion.

Providing that the religions can even overcome the administrative barriers and meet the arbitrary standards that were imposed on them through standards made up by government committees and imposed by civil servants, they will only be finally accepted if they can get a 2/3 majority vote by Members of the Parliament. As a journalist of Hungarian daily newspaper Népszava noted in an article about the Law, “Gods are sitting in the Parliament and will be able to decide what is a religion and what is not”.

Nine Hungarian churches which lost their church status – three reformed Jewish communities and six Christian denominations – filed a claim to European Human Rights Court in Strasbourg after exhausting all available domestic legal remedies (ECHR Application no. 70945/11, Hungarian Mennonite Christian Church and Jeremias Izsak-Bacs against Hungary and 8 other applicants). At the present, the case is still ongoing, prolonged by several changes of the Law as well as latest Amendments on the Constitution which demanded further clarification from the Hungarian Government and responses from the claimant churches.

It is interesting to note that the Law was twice rejected by Hungarian Constitutional Court, but both times Hungarian Government managed to uphold it with questionable legal maneuvers. First time, in December 2011, after Hungarian Constitutional Court rejected the Law based on a procedural mistake, the Government withdrew it, and submitted the same Law just a few days latter with minor changes, none of which contributed to religious freedom.

Next time, in February 2013, the Constitutional Court again rejected the Law, on the basis that the Law failed to stipulate that detailed reasons must be provided when a request for the church status is refused, no deadlines are specified for the Parliament’s actions, and no legal remedy is offered. The Court also stated that granting church status by parliamentary vote can result in political decisions. Hungarian Parliament then decided to incorporate parts of the Law in the Constitution itself. This unheard of manoeuvre rendered Constitutional Court unable to examine the Law, as the Law was technically incorporated in to the Constitution itself, so it cannot be said that it is unconstitutional.

This move didn’t pass unnoticed and Hungary was again receiving harsh criticism for violating fundamental rights. In June 2013, the Venice Commission of Council of Europe in its report regarding the parts of the Fourth Amendment concerning religious communities, stated among other things the following:

“The Venice Commission is worried about the absence in the Act of procedural guarantees for a neutral and impartial application of the provisions pertaining to the recognition of churches.”

 “According to the latest information at the disposal of the rapporteurs, Parliament adopted a Bill of Recognition on 29 February 2012, with 32 recognized churches. It is entirely unclear to the rapporteurs and to the outside world, how and on which criteria and materials the Parliamentary Committee and Members of Parliament were able to discuss this list of 32 churches, to settle the delicate questions involved in the definition of religious activities and churches supplied in the Act, within a few days, without falling under the influence of popular prejudice.”

One in a series of arbitrary criteria that religious communities must satisfy before they are voted upon by Parliament, is the request that they don’t represent any threat to national security. Churches which would be rejected because they would allegedly represent threat to national security, would not be informed why they are considered as a threat or what should they change or improve, and they would have no legal remedy available.

Such “national security” criteria is in direct contradiction with 2004 OSCE Guidelines for Review of Legislation Pertaining to Religion or Belief, prepared by OSCE/Office for Democratic Institutions and Human Rights, adopted by Venice Commission. In the Guidelines it is clearly stated that “’national security’ is not permissible limitation under European Convention on Human Rights article 9.2 or International Covenant on Civil and Political Rights article 18.3”.

Just ten days ago, the 5th Amendment on the Constitution was accepted by the Hungarian Parliament which was supposed to handle the criticism of the Law and the 4th Amendment. Hungary’s State Secretary of Justice, Robert Repassy, announced that the government would adjust the recent, highly controversial amendments to the country’s Constitution adopted by the Parliament in March 2013. Repassy admitted that the modifications contained in the 5th Amendment of the Constitution were initiated as a result of pressure from the European Union and various human rights organizations, which had criticized the March 2013 revisions as violating certain fundamental rights.

It is obvious is that the Government didn’t introduce any measures that would improve the situation of the religious freedom in Hungary. The 5th Amendment was nothing but a failed attempt to make it seem as if Hungary had listened to its critics while actually not changing anything.

In the recent report about the 5th Amendment on the Law, Human Rights Watch stated the following:

“The Hungarian government’s largely cosmetic amendments show it’s not serious about fixing the human rights and rule of law problems in the constitution It’s come to the point where the European Council and the European Commission need to make clear there will be consequences for Hungary, and to move from talk to action.

“While allowing any religious group to refer to itself as a “church,” the amendments do not address the discrimination against churches the government has not recognized. A parliamentary committee, instead of an independent body, confers recognition, which is necessary for a church to apply for government subsidies.”


RECOMMENDATIONS

We demand that the degree of freedom of religion in Hungary is restored to its pre 2011 level and that the legislation concerning freedom of religion in Hungary is adjusted with European and UN guidelines and recommendations.

We believe that the legislation violating fundamental human rights should not be ignored as it can serve as dangerous precedent and a bad example that other countries in the region might follow.

*****

To see this report in OSCE database, click here.

76436_OSCE_Logo





Open Letter to pastor Keith Cressman of St. Mark’s United Methodist Church in Bethany, Oklahoma

30 06 2013
Sacred Rain Arrow statue in Tulsa, Oklahoma

Sacred Rain Arrow statue in Tulsa, Oklahoma

Dear Pastor Cressman,

I sincerely hope the God whom you preach will open your eyes and enable you to see absurdity of your claim. I am appalled by your lack of accord for cultural heritage of indigenous American population and I sincerely believe suing the state of Oklahoma for an innocent Native American symbol on its license plate is below pathetic.

I don’t know if you are aware that the very name of the state in which you live and preach is derived from the Choctaw words okla and humma, meaning “red people”. Do you plan to request changing the name of Oklahoma because it violates your own religious beliefs by reminding you of “pagan” religion?

I find it necessary to remind you of the fact that the land you live on was taken away from those okla humma people and that having Native Indian symbol on your state’s license plate is a symbolic way to show them due respect. After taking their land away from them and forcing them to live in reservations don’t you see that having their symbol on license plate is symbolic way of saying “sorry”? Why do you see it as a problem?

Did it ever occur to you that instead of pretending to be a victim due to your hurt feelings you might show some compassion for people who were taken to the brink of extinction by your ancestors?

I sincerely hope your God will forgive you your ignorance and lack of compassion.

Sincerely yours,

Jura Nanuk,
Founder & President of
Central-European Religious Freedom Institute

Related post: Methodist pastor suing the state of Oklahoma for Native American symbol on the license plates
oklahoma-license-plate





Hungary’s Top Court Overturns Controversial Church Law

1 03 2013

By Stefan J. Bos, Chief International Correspondent BosNewsLife reporting from Budapest for Radio Vatican

BUDAPEST, HUNGARY (BosNewsLife)– Hungary’s top court on Tuesday, February 26, overturned controversial religious legislation that dramatically reduced the number of recognized churches, but the government threatened to challenge the ruling with constitutional amendments.

0012xsUnder the recently adopted ‘Law on the Right to Freedom of Conscience and Religion, and on Churches, Religions and
Religious Communities’ only 32 of over 300 faith groups in Hungary received formal recognition by Parliament to operate as churches.

However the Constitutional Court said the law failed to “stipulate that detailed reasons” must be provided when a request for church status is refused.

It also complained that “no legal remedies” were provided to those being refused church status and said granting church status by parliamentary vote “could result in political decisions”.

Hungary’s center-right government argued that the ‘church law’, as it also known, aims to prevent abuse of Hungary’s tax regulations and related legislation.

FILTERING GROUPS

The court ordered Parliament, however, to establish new rules “to filter out groups” that claim to be churches but do not carry out religious activities.

Formal recognition gives churches tax-free status, qualifies them for government support and allows them to collect donations during services and do pastoral work in jails and hospitals of this heavily Catholic nation of some 10 million people.

Hungary’s Ombudsman Máté Szabó, an elected official for civil rights, had asked the Constitutional Court to rule on the law amid concerns the legislation violated religious freedom and the constitutional separation of church and state.

Jura Nanuk, the founder and president of the Central-European Religious Freedom Institute in Budapest welcomed Szabó’s legal challenge.

“There are things in this law that are contrary to many international recommendations on such laws. I believe it is a very good thing what the ombudsman did, I appreciate what he did,” Nanuk told BosNewsLife.

INTERNATIONAL CONCERN

Critics claimed the European Union’s most restrictive church bill only served the interests and ideology of Prime Minister Viktor Orbán.

The EU and the United States have also questioned the legislation and Orbán’s perceived crackdown on previously independent institutions.

Some evangelical Christians and former democracy activists compared the legislation to Hungary’s Communist-era when religion was discouraged.

Szabó said earlier that the concerns expressed by faith groups prompted him to launch the legal challenge. “…Freedom of religion makes it indispensable that the decision on the recognition of the church, on rendering the religious status meets all guarantees protecting fundamental rights,” he stressed.

While Tuesday’s outcome came as a moral victory for churches, including several evangelical congregations, trial observers cautioned that Prime Minister Orbán wanted to use his Fidesz party’s super-majority in parliament to change the constitution it passed in 2011.

CONTROVERSIAL PROPOSALS

Among the proposed changes included in the constitution — or Basic Law as it is known in Hungary — would be Parliament’s right to decide which churches are officially recognized. That would make it impossible to challenge the legislation, and effectively bypass the ruling of the Constitutional Court.

Recent policies have already impacted churches. “Many of the churches which lost their status last year have disappeared or have turned themselves into associations,” said lawyer Szabolcs Hegyi of the Hungarian Civil Liberties Union in published remarks.

“The government’s good will and assistance would also be needed to restore the churches’ rights and that is far from being the case.”

Szabó has made clear he hopes Hungary’s legislature will uphold religious rights for all churches. “On the basis of the principle of separation of power the Parliament cannot exercise tasks, during which it makes political decisions affecting fundamental civil rights, without having appropriate constitutional guarantees,” he said in an earlier statement obtained by BosNewsLife.

News of Tuesday’s ruling came a day before EU President Herman Van Rompuy was due in Budapest to meet Orbán in an attempt to ease tensions.





Bodhi Day, the day when Siddhartha Gautama attained enlightenment

8 12 2012

Buddha-under-Boddhi-tree

By Lewis Richmond

Lewis Richmond is a Buddhist writer and teacher, and the author of the upcomingAging as a Spiritual Practice, to be published Spring, 2012. Lewis leads a Zen meditation group, Vimala Sangha, and teaches at workshops and retreats throughout the San Francisco Bay Area. He has published three books, including the national bestseller Work as a Spiritual Practice. Lewis also leads a discussion on aging as a spiritual practice at Tricycle magazine’s online community site.

On Dec. 8 Buddhists the world over will celebrate Bodhi Day, the day when Siddhartha Gautama, on seeing the morning star at dawn, attained enlightenment under the Bodhi Tree and became the Buddha, the “Awakened One.” Buddha’s enlightenment has for 2,500 years been the central article of faith for Buddhists of every school, sect and nationality, as well as being the unifying principle of all Buddhist teaching. For Buddhists everywhere Bodhi Day is an opportunity to acknowledge our dedication to the principles of wisdom, compassion and kindness — the distinguishing features of the Buddhist worldview. I also think it is an opportunity to understand the relevance of Buddha’s enlightenment to today’s world, where Buddhism is enjoying something of a renaissance at a time when a troubled planet needs kindness and compassion more than ever.

I think of three ways that the traditional story of Buddha’s enlightenment can be reassessed in the light of modern sensibility. The first has to do with Siddhartha’s identity as a man, a prince and a warrior. The second has to do with his intention. And the third has to do with humility.

buddha-under-bodhi-tree-sml_1Historically, Buddhism has been a male-dominated religion, and today’s inclusion of Buddhist women as equals is a revolutionary development. Scripture tells that the Buddha himself was reluctant to include women in his monastic order and down through the centuries Buddhist women have for the most part been treated as second class citizens. Historians can say this was culturally normative, but that is not an excuse. Recently an influential young Tibetan Lama announced in public that this historical bias against women was simply a mistake that now needed to be corrected. This is good.

The Siddhartha of scripture was born into privilege as a prince, and his spiritual journey has the archetypal quality of the warrior hero, making death-defying efforts, battling the delusions of Mara the Tempter, and achieving final victory in the face of difficult odds. Siddhartha was a loner, too. He abandoned his family in favor of the spiritual life; he had named his son Rahula, which means a fetter or chain. I doubt that these elements of Buddha’s story resonate much with women practitioners of today, who juggle the demands of work, relationship, family and children and still find time for spiritual practice. One of the ways we can rectify the “mistake” the Lama spoke of is to imagine a Buddha story and Bodhi Day that celebrates the experience of modern Buddhist women.

The first step in Buddha’s eight-step Path is Right Intention, and it is important to remember why Prince Siddhartha abandoned his royal privilege and set out on his spiritual journey. It was not to become famous, charismatic, wealthy or powerful. He already had all of that through his birth. His motivation was to solve the riddle of human suffering. Why do people suffer and cause suffering for others? How can their suffering be eased? This was Siddhartha’s life question. He came to realize that no privileges of birth were useful in solving this riddle. In ancient times or modern, very few people turn their back on wealth and power for such a reason (St. Francis of Assisi was one Western exception.) The fact that Siddhartha did this is inspiring; that he pursued his spiritual question to the end is what we celebrate on Bodhi Day.

What about spiritual leaders of today? Some go on talk shows, attract large numbers of Twitter or Facebook followers, publish books and preside over spiritual centers and legions of rapt followers. The Buddha was not like that. He lived as a homeless mendicant and walked from village to village, devoting his life to easing the suffering of others. This is not to say he was naïve; when he needed a park or a forest for his monastic community he used his personal connections with local aristocrats to acquire them. Undoubtedly Buddha’s royal pedigree helped him as a spiritual teacher in numerous ways. But he clearly lived a life of humility — the most difficult of all spiritual virtues to inhabit and sustain.

Living in the light of humility, kindness and compassion is the deep lesson and timeless inspiration of Bodhi Day. When we celebrate Bodhi Day this year I hope that we can celebrate it as a 21st century holiday, embracing the full weight of Buddhism’s long history without being limited by it. Enlightenment exists partly outside of history and partly within it. The suffering of humanity and its causes persists today as it did in Buddha’s time; the life question of the Buddha remains — how do we overcome greed, anger and confusion and create a truly kind and compassionate persons and societies? What is our authentic response to the world’s pain as it exists today? To paraphrase an old teaching from the Zen tradition: every day is Bodhi day.

*****

In the name of Central-European Religious Freedom Institute, we wish you happy, blessed
and enlightened Bodhi Day.

Tibor Krebsz, Executive Director
Jura Nanuk, President               





Rosh Hashanah, the Jewish New Year

16 09 2012

In the name of the Central-European Religious Freedom Institute, I wish sweet and happy Rosh Hashanah to all Jewish communities around the world. 

Shana Tova Umetukah, 

Jura Nanuk, Founder & President

The Meaning of Rosh HaShanah

Rosh HaShanah literally means “Head of the Year” in Hebrew. It falls in the month of Tishrei, which is the seventh month on the Hebrew calendar. The reason for this is because the Hebrew calendar begins with the month of Nissan (when it’s believed the Jews were freed from slavery in Egypt) but the month of Tishrei is believed to be the month in which God created the world. Hence, another way to think about Rosh HaShanah is as the birthday of the world.

Rosh HaShanah is observed on the first two days of Tishrei. This year Rosh Hashanah is celebrated on September 17-18. Jewish tradition teaches that during the High Holy Days God decides who will live and who will die during the coming year. As a result, during Rosh HaShanah and Yom Kippur (and in the days leading up to them) Jews embark upon the serious task of examining their lives and repenting for any wrongs they have committed during the previous year. This process of repentance is called teshuvah. Jews are encouraged to make amends with anyone they have wronged and to make plans for improving during the coming year. In this way, Rosh HaShanah is all about making peace in the community and striving to be a better person.

Even though the theme of Rosh HaShanah is life and death, it is a holiday filled with hope for the New Year. Jews believe that God is compassionate and just, and that God will accept their prayers for forgiveness.

Rosh HaShanah Liturgy

The Rosh HaShanah prayer service is one of the longest of the year. Only the Yom Kippurservice is longer. Rosh HaShanah service usually runs from early morning until the afternoon and is so unique that it has its own prayer book called the Makhzor. Two of the most well known prayers from Rosh HaShanah liturgy are:

  • Unetaneh Tohkef – This prayer is about life and death. Part of it reads: “On Rosh HaShanah it is written, and on Yom Kippur it is sealed, how many will leave this world and how many will be born into it, who will live and who will die… But penitence, prayer and good deeds can annul the severity of the decree.”
  • Avienu Malkeinu – Another famous prayer is Avienu Malkeinu, which means “Our Father Our King” in Hebrew. Usually the entire congregation will sing the last verse of this prayer in unison, which says: “Our Father, our King, answer us as though we have no deed to plead our cause, save us with mercy and loving-kindness.”

Customs and Symbols

On Rosh HaShanah it is customary to greet people with “L’Shanah Tovah,” which is Hebrew that is usually translated as “For a Good Year” or “May you have a good year.” Some people also say “L’shana tovah tikatev v’etahetem,” which means “May you be inscribed and sealed for a good year.” (If said to a woman the greeting would be: “L’shanah tovah tikatevi v’tahetemi”). This greeting refers to the belief that a person’s fate for the coming year is decided during the High Holy Days.

The shofar is an important symbol of Rosh HaShanah. It is an instrument often made of a ram’s horn and is blown one hundred times during each of the two days of Rosh HaShanah. The sound of the shofar blast reminds people of the importance of reflection during this important holiday. 

Tashlich is a ceremony that usually takes place during the first day of Rosh HaShanah. “Tashlich” literally means “casting off” and involves symbolically casting off the sins of the previous year by tossing pieces of bread or another food into a body of flowing water. 

Other significant symbols of Rosh HaShanah include apples, honey and round loaves of challah. Apple slices dipped in honey represent our hope for a sweet new year and are traditionally accompanied by a short prayer before eating that goes: “May it by Thy will, O Lord, Our God, to grant us a year that is good and sweet.” Challah, which is usually baked into braids, is shaped into round loaves of bread on Rosh HaShanah. The circular shape symbolizes the continuation of life.

On the second night of Rosh HaShanah it is customary to eat a fruit that is new to us for the season, saying the shehechiyanu blessing as we eat it to thank God for bringing us to this season. Pomegranates are a popular choice because Israel is often praised for its pomegranates and because, according to legend, pomegranates contain 613 seeds – one for each of the 613 mitzvot. Another reason for eating pomegranates on Rosh HaShanah has to do with the symbolic hope that our good deeds in the coming year will be as many as the seeds of the fruit.

Some people choose to send New Year’s greeting cards on Rosh HaShanah. Before the advent of modern computers these were handwritten cards that were snail mailed weeks in advance, but nowadays it is equally as common to send Rosh HaShanah e-cards a few days before the holiday.

Source: About.com





HUMAN RIGHTS ALERT: Discriminatory actions against Hungarian Jai Bhim Buddhist Community

23 02 2012

By Jura Nanuk/CERFI

Hungarian Jai Bhim Buddhist Community operates several educational programs for Roma children and young adults in Hungary, using philosophy of Buddhism to help their integration into Hungarian society. In their work they are following the example of Bhimrao Ramji Ambedkar, Indian political leader and philosopher, born in untouchable caste, so called Dalits. Ambedkar converted to Buddhisms and inspired many of Dalits to do the same thus escaping humiliating life of untouchable Indian caste.

On February 23, police came to Sajokaza village to “investigate” the fact that in small Roma village 300 inhabitants identified themselves as Buddhists in last population census. Authorities found this suspicious and started an “investigation”, which might represent violation of Data Protection Law, as religious affiliation is considered sensitive personal data per Hungarian law, and nobody has the rights to investigate somebodies religious affiliation.

Day latter, police entered Jai Bhim school building in Sajokaza, arresting three teenage girls. The girls were arrested and handcuffed and taken into local police station. From the recording of the school security cameras which recorded in full the arrest, it is clearly visible there was absolutely no need to use the handcuffs as the girls were not resisting the arrest and were not representing threat to themselves or others.

Needless to say, Hungarian Jai Bhim community lost their religious status due to repressive Hungarian law on churches  which affected hundreds of Hungarian religious communities.  When Jai Bhim’s  request for re-registration was refused by justification that they filed the papers one day too late which has nothing to do with the truth.

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Banning the burqa and the European identity crisis

23 02 2012

By Maurits Berger of Leiden University 

The Dutch cabinet announced on January 27 that it will submit to parliament a bill banning burqas and niqabs, full casket helmets and balaclavas from Dutch streets. The latter are only meant to answer the need for non-discriminatory legislation, because the true intention of the bill was effectively a “burqa ban.” If the bill becomes law, offenders will have to pay a €390 fine.

Whether the bill will pass the two houses of parliament remains to be seen. A burqa ban has been submitted twice in the Netherlands before, in 2007 and 2008, but both came to naught, not in the least because several committees, institutions and the State Council strongly advised against it.

This third time, however, there is more political clout to pass such a bill, because the burqa ban was made conditional to the formation of the current government. An example has been set by France, where their parliament passed the bill in 2010 despite the French State Council strongly advising against it.

It is clear that the burqa ban is not a legal necessity, but a political one. The exact number of women wearing the burqa is not known, but is estimated to be few: several hundred in the Netherlands (out of a population of 16 million) and about 2,000 in France (out of a population of 65 million). And while such attire may be a nuisance or a shocking experience to people encountering them, these women have not manifested themselves as a threat.

Although certain behavior creates disquiet in society, solid legal arguments must support any prohibitions. If, for example, people find it discomforting to stand in the schoolyard among several face-covered black-clad mothers when picking up their children, what exactly are the elements that make up this discomfort? We may not want it or like it, but there are lots of things we do not want or dislike. When do we cross the line where prohibitions are required in order to maintain society’s sense of peace and comfort?

It comes as no surprise, then, that the law passed in France and Belgium, and those recently submitted in Netherlands and Spain, are a wondrous jumble of arguments justifying the burqa ban, ranging from a revival of the “social contract” that allegedly demands open-face encounters to condemnations of Islamic oppression of women. Central themes in the recent Dutch bill are integration and gender equality, with communication as a common denominator (interestingly, freedom of religion is not mentioned).

The integration argument, in short, is as follows: to advance one’s situation one needs to participate in society, and because the Netherlands is “an open society” one can only successfully interact by means of open-face interaction. Covering one’s face is an impediment that, even when self-inflicted, needs to be avoided at all costs – or at least at the cost of €390.

Gender equality is also a recurring theme, but with various twists. The Dutch legislature condemns the face veil as a symbol of women’s oppression, as a means to set women apart from men as non-communicable objects, and as an indicator that men are sexual predators.

These arguments are feeble because their alleged object or aim of protection differs distinctively from the intention of that protection. The aim of the integration argument basically is that women need to be protected against themselves, because wearing the face veil cuts them off from society. The aim of the gender argument is the legislators’ concern with the plight of oppressed women.

Quite awkward, then, to fine the women one wants to protect. However, the intention of the bill is not the welfare of these women, but society’s discomfort with their behavior. Moreover, the ban’s justification is based on the protection of women who have not asked for it.

This was also the main point of critique raised by the French State Council. It stated that the “principle of personal autonomy” is one of the fundamentals of French society, and as long as these women voluntarily choose to wear these garments, one needs to come up with justifiable arguments to impose any prohibitions. And the State Council had not found such arguments.

The Dutch State Council, after its rejection of the burqa ban bill proposed in 2005, was quick in its rejection of the 2012 bill. In doing so it followed its French colleague: women have a basic right to wear what they want, and any legislation imposing a ban on certain garments must have a solid reason to do so.

All of these arguments are legal in nature, however, and will clearly not deter the political will of parliament. Neither does the distinct risk of such a ban being nullified by a higher court such as the European Court for Human Rights. Such a response would take years, and during that time one could successfully impose the ban. A legal loss, but a political gain.

The main political gain, to my mind, is national identity. It is not coincidental that the Dutch and French bills considered in 2005-2007 and 2009-2010, respectively, happened at exactly the same time that the two countries were involved in nationwide debates on their national identities. Since it’s nearly impossible to define one’s identity, it is easier to say what it is not. The burqa served that purpose: wearing the burqa was definitely not French or Dutch.

No wonder that the burqa bans have such feeble legal arguments. Laws are not suitable tools to shape or maintain identities. If one wants to eliminate the burqa – and it is perfectly understandable why one wants to do so – one needs to turn to other measures rather than legislation.

Maurits Berger is the chair of Islam in the contemporary West at the Institute for Religious Studies at Leiden University, and is a senior research associate with the Clingendael Institute for International Relations in The Hague. His research includes the relation between law and religion and the role and influence of Sharia in Western countries.

Source: Human Rights Without Frontiers








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