Religious Rights of Minorities in EU Law. Sharia Law Compatibility with European Human Rights Concepts

Table of Content

Chapter 1
Introduction
Research problem
Aim and Research Questions
Delimitation
Relevance to the Human Rights
Material
Theory
Method

Chapter 2 Universal European Human Rights and their Relationship with Islam
EU Human Rights Models
Political Discourse of Human Rights

Chapter 3 Political Compatibility between Islam and Human Rights as Liberal Political Concept
Sharia through the Course of Time
Sharia the Islamic Law
Sharia Understanding towards Becoming a State Law
Concept of Secular State and Islam

Comparison of Pakistan and Turkey In Relation to Sharia Law and Human Rights
Islamic Republic of Pakistan
Republic of Turkey

Analysis

Conclusion

Bibliography

Abstract

In my research, I considered finding out if there is a possibility to consider reconciliation between Islam a minority religion and European law in regards to human rights. My aim was to understand the conflict between Islam and liberal political concept human rights law to present a picture that can show human rights protection in European society of which Muslims have become an essential part. Sharia law is taken as an Islamic legal and political manifestation that considered being in conflict with contemporary liberal political concepts like European Union and its laws. With the help of comparative analysis of Islamic countries both in a non European country and a country that is a party to European convention, and historical practices of Muslim societies and regimes in relation to value of Sharia in Islamic civilizations and contemporary world. It was observed that Sharia has never been the primary source of legal and political fabric of Islamic rules throughout the history and a larger part of Islamic morals and values recognize modern liberal political concepts and values such as constitutionalism and human rights which are also practiced in modern Muslim majority states like Turkey. John Rawls’ theory of overlapping consensus is used in support of my standing which says that a desired consensus is only possible if a concept affirms a political conception that is sufficient to express values under favorable conditions make a just constitutional regime despite other values may oppose them.

KeyWords:

Islam, Human Rights, Sharia Law, Liberal Political Concepts, Comparative Analysis, Islamic Civilization, Overlapping Consensus, Islamic Dynasties, constitutionalism,just constitutional regime.

Chapter 1 Introduction

We are living in a world where we have to interact with each other in many capacities, individually and together as a part of a society, with other groups of people whom we can assume a society with difference in their behaviors, associations, and commitments. Going further deep, we can find others different in their beliefs and cultures and sometimes some can say that there are differences so deep that these are considered as clash between civilizations or some see it as between people of faith and rational realities based on evidence. Among these differences, we as humans have fought and evolved in our human morals and ideals through ajourney of enlightenment by very harsh historical discourses. Modern day form of society which is a highly achievable fabric of social ingredients like political morals, citizenship,justice, law, constitutional supremacy, democracy, and human rights etc, is a society that has experienced in past divine forms based on so called comprehensive doctrines of creating and managing people. Since three hundred years a series of revolutions in the West, modernity has concluded that a society based on single or group sovereignty against or above all others has never been stable and beneficial at all to serve the basic unit and theme of the society, the human being.¹

Human rights in Islam have become a hardcore topic of the present day uncertain situation where religious and political ends seem in collision in relation to the recent problem of Islamic terrorism. Islamic law (Sharia Law) is thought to be in contrast with modern human rights laws as practiced by some Muslim countries particularly as a traditional and cultural phenomenon. Islam is divided into many sects; with every sect has its own understanding of its subjects which are not limited to only human rights, economy, politics, law, and religion. Because of its divers and multifaceted nature it remains understudied but its followers also over-generalize it out of their emotional relationship with their religion and it becomes prone to be easily misrepresented and misunderstood from within and by the outsiders.

The motion for a resolution entitled ‘Compatibility of Sharia law with the European Convention on Human Rights: can States Parties to the Convention be signatories of the “Cairo Declaration”?’² was referred to the Committee on Legal Affairs and Human Rights on 27 January 2016 for report.³

The need of such report was a result of a long standing continuity of conflict between Muslim citizens and laws that are considered as violations of religious rights of a minority religion and discrimination in comparison to other religions as the case of Salman Rushdie’s Stanic Verses, a blasphemous novel towards Islam, where courts in UK said that the same blasphemy law cannot be used to limit freedom of expression that protects Christianity.⁴ When the case was taken to EU Commission under article 9 and 14 of EU Convention, the Commission determined that the British government had not interfered with right to freedom of religion and belief because there was no positive obligation on states under the ECHR to protect all religious sensibilities.⁵ Few years before this case the Commission had upheld the successful prosecution of a British magazine for publishing a poem found to be blasphemous to Christians partly on the basis that the "main purpose" of the English common law offense of blasphemous libel is "to protect the rights of citizens not to be offended in their religious feelings by publications.⁶ In last two decades we have seen many incidents where Muslims took their case to the courts but mostly remained unsuccessful in getting their case of minority religious rights of Muslims to get acknowledged whether it be the case of caricatures of Prophet Muhammad in Denmark, the case of Hijab in Turkey or Burka in France, and Minarets in Switzerland etc. Such treatment of a minority is a result that Islam is taken to be contrary to human rights laws conceived by European human rights documents.

These limits to the practices of Muslim minority across Europe is a result of the conflict that Islam specifically does not recon human rights and it is being in contrast to the universal nature of internationally recognized human rights, for example the rights defined in the European Convention of Human Rights and Charter of Fundamental Rights of EU, is a statement nurtured due to a hybrid of different reasons and factors related to internal and external misrepresentations, misunderstandings, and deliberate actions related to different sections of human understandings of complex phenomenon. Comparing a religion, a highly complex phenomenon related to unnatural and divine characteristics, to a certainty of evolutionary and gradual understanding of present day political and social achievements is not only difficult but shall always remain a mystery under the present circumstances and manipulating behaviors will continue in both conflicting sides, if a resolve is not considered to be possible.

Research Problem

My focus is on EU human rights law in relation to Islamic doctrines that involves fundamental Islamic practices that are needed to be fulfilled as religious belief and are not welcomed in Europe that do not have similar understanding. Muslim countries with different beliefs as Saudi Arabia, Iran, Afghanistan and Pakistan, which are Muslim majority states but have contrary beliefs to each other based on mainly Suni and Shia and other beliefs and all of them have a basic form of national laws based on Sharia law. It is evident that these countries are practicing Sharia law as state law and they are observed as prominent in human rights violations among Muslim countries because of which there is an understanding that Islam specifically does not recon human rights and is in contrast to the universal nature of internationally recognized human rights. My aim is to make it understand that limiting religious practices only by legal limitations is not resulting in helping to resolve conflict but we are experiencing more depth in division European society as the right wing politician are getting stronger. We need to understand that there are also Muslim countries like Turkey with 99.8% of their population are Muslims and they are practicing the separation of religion and politics by not considering Sharia law and they are practicing human rights in a similar way as any other secular state in the West. The inability to practice human rights by most Muslim countries as I have said earlier is due to a hybrid of different reasons and factors. Comparing religion, a highly complex phenomenon related to unnatural and divine characteristics, to a certainty of evolutionary and gradual understanding of present day liberal citizenship and social achievements is not only difficult but remains a mystery under the present circumstances and manipulating behaviors of both conflicting ends.

The very situation is described by many social science scholars and one of them is John Rawls who not only identified the problems or difficulties but solutions as well to have some form of an ideal society and proposed it as a consensus which can be a resolve to our misunderstandings and problems faced, and achieving a better relation with societies that are supposed different. Rawls says that all such concepts that emphasize to advance through their comprehensive doctrines whether religious or philosophical, are not necessarily reason of selfishness or ignorance or they are false and we must overcome these concepts anyhow. But he argues that such disagreements are a part of human nature and the free society. He further explains as mentioned by Andrew F. March;

“Public language of justification based on the truth of any single doctrine will either face perennial opposition from some segments of the population or rely on state coercion (including indoctrination) to secure assent. Thus, however sincere or well motivated they are in their adherence to their deepest philosophical belief; persons who seek to impose those beliefs through the estate are fundamentally unreasonable in the sense of being unwilling to “propose and abide by fair terms of cooperation” or by failing recognize fellow citizens as free and equal. Citizens so motivated will thus leave little to no loyalty to a liberal political regime.”⁷

Historically, religious involvement in the political and state maters has produced a very bad name for it as we can see religion possessed a background of religious wars which is still alive with their destruction and fanaticism as a horrible past. The stereotypes about religion are the dominant story that traditionally religious authority opposes to secular Enlightenment and individuals as bearers of human rights which has voiced so loudly that as a result, citizens and political leaders have made up their arguments about human rights not only in secular and political but also in religious-free public language.⁸

Hence religion and especially Islam in some situations is in context to my research problem is seen as in sever contrast to liberal political morals as human rights. It is considered that there is no possibility for Islam to show any compatibility with contemporary achieved political, social and legal morals for it is its harsh legal (Sharia law), politically (Jihad, and concept of Islamic state) ambitious as well as discriminatory rules as minority rights and women’s equality makes it impossible to compromise.

Aim and Research Questions

The European Court of Human Rights in the Refah Partisi v. Turkey case affirmed that: ‘It is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverges from Convention values.⁹ It is unfortunate that the Islamic world has gained bad name of holding extreme teachings that are contrary to humanity because of extremist groups like al Qaida who portray Islam to revive Islamic Caliphate strictly governed by Sharia Law. They portray The Ottoman Empire as a model political system upon which to re­build a global Caliphate and through the implementation of Islamic legal and political system, these extreme groups who misuse the Islamic faith ask for the rejection of liberal values as European human rights laws and the modern political and social systems in place. It is to be shown that it is not Islam but Muslims misguided by such groups and Muslim clergies that have their own invested agendas and theocratic ambitions to create a place in political systems in Muslim world. Islam throughout the history and in present time does not clash with very systems as such groups seek to present. In direct contrast to the extreme ideologies, Ottoman Empire in the Tanzimat Reform period (1839-76) was infect attempting to secularize their laws rather than introducing narrowly interpreted laws. These Ottoman Empire reforms were purely based on human rights acknowledgement that during this period homosexuality was decriminalized, they removed any kind of punishment such as stoning, and death penalty for Apostasy was not implemented any more.¹⁰ In relation to the conflict between Islam and universally recognized human rights as EU human rights, my aim and emphasize is to engage possibility for religiously legitimate practices for present day pluralistic and integrated European society where all human being could live as political equals in social and political cooperation. Hypothetically, I consider that there is possibility of consensus between an Islamic society and European human rights laws as it was observed during Ottoman Empire and in case of Refah Partisi v. Turkey in which a Muslim country ‘Turkey’ baned a political party which demanded for Sharia laws to become state laws assumed in accordance to European human rights laws and values by the EU Court of Human Rights and the Court stated that ‘a political party whose actions seem to be aimed at introducing Sharia in a State party to the Convention can hardly be regarded as an association complying with the democratic ideal that underlies the whole of the Convention’.¹¹ The demand for Sharia law by the Muslims as their political system is the main conflict that is unacceptable for the today modern political legal system as European Union which is becoming a reason for European states to limit Islamic practices and beliefs across Europe from Stanic Verses by Salman Rushdie to Burka ban. My aim is to understand whether Islamic political legal concepts really exist and are the problem? Existing reservations in relation to Islamic laws and political legal ethics which are tried against in my work using a political and moral theory, makes an analysis of Islamic attitudes towards human rights with the help of comparative political ethics. It is going to be an academic discussion answering the question;

Is reconciliation between Islam and EUHuman Rights possible?

Answering the question, there can be many possible ways to solve the issues regarding the conflict between Islamic and secular or modern day liberal ethics known as human rights laws. A purely secular and stereotypical answer would be rejecting the Islamic theologies as outdated and negative approach towards contemporary issues. There can also be a superficial denial of the existence of the moral disagreement. Both two ways would be a source of confusion that political determinations are anyhow the outcome of moral, ideological, or religious beliefs. Therefore, in answering the problem, I take the way to engage comparative research leading to a consensus and moral agreement that includes a political and legal justification. Motivated by the idealized moral, political and legal reconciliation we have to pay attention to the possible reservations in relation to demonstrate compatibility between Islam and human rights. Conflicts and the problems associated with the struggle to their resolve in respect to our moral commitments, do not remain only historical products or religious doctrines but can be perceived as prevailing effect of power imbalance. My research would be more on political terms rather confusing the matter on theological discussions for involving religion we cannot consider the variety of theological debates as there are always found teaching that can be interpreted as moral and extreme as well. Hence I would consider the political Islam that is manifested as Sharia law implementation as state law that is the source of conflict in practicing human rights in Muslim countries. Furthermore, Islam is not only theoretical philosophy consisted of laws or doctrines manifested in its religious law (Sharia), but it is a culture and civilization consisted of politics and society which becomes a source of anxiety, if in conflict, for political-economic- cultural apparatus. Prior to these above mentioned categories or possible passages of conflict we should not take Islam a straightforward case of moral conflict without regarding the historico-political misunderstanding between Muslims and non-Muslims as well as within its own different schools. Taking all such inconsistencies we cannot rule out the possibility that people in power initiate the debate on grounds which are convenient for them consciously or unconsciously.¹² I would like to consider the political and legal aspect of the problem, historically as well as its contemporary understanding, as how a consensus within political liberalism is possible to which Muslims and their critics can regard as acceptable. To satisfy from the political and legal aspects in reference to the resolve and better understanding of the conflict through knowing the internal intricacies of Islamic law and its relation with politics and the contemporary liberal values as human rights, I would put some sub­questions relating to political and legal understanding of the prime question as mentioned above.

Who suggest that Islam does not take full account of Human Rights?

What are the stereotypes of Islam and how Islam champions these?

Having answered sub-questions in which we get a satisfactory result to establish a reconciliation with the help of proving the internal flexibility in Islamic doctrines toward a better understanding and adoptability in relation to liberal political and legal aspects by comparing Muslim countries which happen to be a so called Islamic state and those who do not consider their political structure exclusively Islamic although they are Muslim majority country as Turkey is. Now we move towards our primary question related to the possibilities of cooperation between Islamic ideologies and the contemporary liberal political morals and values, human rights. Regarding the search for compatibility between Islamic morals and the European human rights we aim to search for the common grounds and foundations for moral, political and legal cooperation. In answering the sub-questions we have built these foundations. Then, to find a solution, to remove the moral conflict between Islam and universal European human rights through cooperation between different sources to search a moral foundation, we are helped by the political philosophy found in John Rawls political liberalism, the concept of overlapping consensus. Jack Donnelly have described the concept of overlapping consensus as it is the answering to, “How is it possible that there can be a stable and just society who’s free and equal citizens are deeply divided by conflicting and even commeasurable religious, philosophical, and moral doctrine?”¹³ Jack Donnelly further remarks as this consensus is a political rather than moral but not merely political and its relation to international human rights means there is striking convergence on a vision of the limits of political legitimacy in contemporary world.¹⁴ In relation to my thesis which is an implicit endeavor towards Islamic understanding in political, legal, and moral concepts, the overlapping consensus is a best suitable theory to resolve the conflicts in hope of a healthy plural society within Muslim world. John Rawls himself explains in his work ‘Political liberalism’, “there are many reasonable comprehensive doctrines that understand the wider realm of values as these specified by a political conception ofjustice for a democratic regime.”¹⁵ It is further stated by him that society enjoys overlapping consensus when it is, in fact, the case that comprehensive religious and philosophical doctrines endorse the political conception each from its own point of view.¹⁶

Delimitations

I confine my research work to emphasis to the study the political aspect of Muslim law, which is seen as problem for EU human rights laws, through the traditions of Islamic historical and traditional working of relationship between rulers and Muslim scholars in relation to the involvement of religious text in statehood and along with it, the understanding the universal nature of human rights and their worldwide adoption and in Muslim countries. Secondly I tried to understand how Islam interacts to the modern concept of statehood in terms of European secular human rights laws and equality of its citizens by separation of state and religion as well as if a Muslim country adopts religious law. For this purpose I choose two Muslim majority countries, Turkey as a signatory to EU Convention to Human Rights and a member of Council of EU and Pakistan a Muslim state included Islamic Laws into its state laws and Constitution, to give a thorough comparison how Islamic law acts when it is considered as primary source of law of state and how if a Muslim state takes secular form of state by remaining impartial in case of relationship between religion of its citizens and state affairs.

Relevance to the EU Human Rights Law

We know that there is an argumentative rivalry among religion, liberalism, and secularism in terms of philosophical motivations. The problem is in the application of Sharia law by some Muslim countries as state law, in case of Saudi Arabia or Iran who applied self proclaimed Islamic law, and in case of its partial application in some other Muslim countries for example in Pakistan and Sudan, and a continued demand by a large number of Muslims in Muslims countries and sometimes in European countries. The Sharia as it is perceived by the contemporary Muslims and its demand to make it part of contemporary political setup is in direct conflict with contemporary European human rights laws which are universally recognized. On the other hand, EU political liberalism is considered to be in favor of a certain kind of secularism which conducts that in contemporary society we cannot assume that all the members of a society can be united on a single platform in relation to their religious associations because it is political legitimacy that is justified that all persons are subject to it as public deliberation is related to “public reason” accessible to all regardless of their religious association. This understanding is associated to the bases for modern secular argument behind the concept of the separation of religion and state. We shall discuss this nexus of religion, secularism, and political liberalism in answering the primary and sub-questions to identify how it relates to Islamic political and legal structure that is in conflict to Human rights. Such concept of public reason and separation of state and religion also limits secular public reason similarly as it denies the truth of religious belief and law that is seen as contrary to human rights. Where it closes the doors for any possibility for religious political and legal authority to dominate as a coercive state institution, it also initiates a belief in religious believers that not affirming religious doctrine equals to denying it. On these grounds it is believed that there is an unavoidable conflict between religious laws and political liberal laws as human rights which is needed to be protected to assure equal rights to all in the society.¹⁷ We can see Islam in such circumstances needs to consider available options for its believers that can make them understand the possibility for a consensus that ensures human rights for all. As well as, we are concerned with implicit inquiry and analysis for our research and make changes within the Islamic practice and understanding to consider its compatibility with liberal political setup. Islam needs to understand and understandably adopt some form of the concept of the separation of state and religion as impartial phenomena, an equal guardian to all without considering their religious association. Secondly, Muslims have to replace their political beliefs at least those which are in conflict with liberal justice and equality, by introducing new ones or adding new articles to the existing beliefs for example freedom to religion and belief and capital punishment for apostasy and blasphemy. Both of these recommendations are considered in accordance to the comparison of our two Muslim countries in the later parts of my thesis.

Material

For the purpose of conducting my research I used European human rights law documents EU Charter of Fundamental Rights, EU Convention of Fundamental Rights along with few books and articles from the field of human rights and international relations. I chose some literature as primary source of my research as I used John Rawls theory of overlapping consensus and used his article “The Idea of an Overlapping Consensus” and then for my research topic and different chapters of my thesis I used, “Islam and the secular state” by An-Na’im and “Religion and Global Politics of Human Rights” compiled by Banchoff & Wuthnow, “Sharia in Corporatated; A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present” by Ian Michiel Otto, and Jack Donnelly’s “Universal Human Rights in Theory and Practice” as primary source. Whereas, “Islam and Liberal Citizenship, The search for an Overlapping Consensus” by Andrew F. March and “Social Research Methods” by Bryman and then Tim May’s “Comparative Research, Potentials and Problems” and “An Outline Theory of Human Rights” by Turner B.S were used as secondary source along with some other articles and and journals were also considered for research.

Theory

Considering human rights as an essential part of liberal constitutional democracy, political liberalism, and international laws; the search for a theory of human rights that regards religious involvement as a case of cultural relativism, destroys the historical bases of rights theory depending on natural- laws. For my research that involves religion’s relationships with human rights, I consider a political theory which is in line to the universal nature of human rights. The concept of universality of rights does not follow to limit the idea of citizenship that is based on membership of a nation state. The EU acceptance of human rights do not let rights remains a mare social issue but an idea of EU citizenship in sociological literature. Classical sociology along with the concept of political liberalism neglect human rights being an empirical issue and it did not develop social rights as a general theory to become institutions and remains skeptical about historical and comparative grounds for the social existence of universalistic rights. It certainly makes concepts of rights central to political theory.¹⁸

[...]

¹ Banchoff, T & Wuthnow. R, (2011) Religion and the Global Politics of Human Rights, (NY: Oxford University Press)

² Doc. 13965 of 27 January 2016 , Committee on Legal Affairs and Human Rights, Council of Europe.

³ Reference to Committee No. 4188 of 4 March 2016.

⁴ Parte Choudhury,1991 1 All E.R. 306 (Q.B) at 308.

⁵ R v. Chief Metro. Stipendiary Magistrate (Ex Parte Choudhury),1991 1 All E.R.306 (Q.B) at 308.

⁶ Gay News Ltd. v. United Kingdom, App. No. 8710/79, 5 Eur. H.R. Rep. 123, 130, 11(1982).

⁷ Rawls, John (1987) The Idea of an Overlapping Consensus, Oxford Journal of Legal Studies, Vol. 7, No. l,pp. 1-25

⁸ Banchoff, T & Wuthnow. R, (2011) Religion and the Global Politics of Human Rights, (NY: Oxford University Press)

⁹ Refah Partisi and Others v. Turkey, Application No. 41340/98, 31 July 2001, paragraph 72, cited in the Refah Partisi and Others v. Turkey judgment of 13 February 2003, paragraph 123.

¹⁰ Hussain, Ishtiaq, (2011) The Tanzimat: Secular Reforms in The Ottoman Empire.

¹¹ Refah Partisi and Others v. Turkey, Application No. 41340/98, 31 July 2001, paragraph 72, cited in the Refah Partisi and Others v. Turkey judgment of 13 February 2003, paragraph 123.

¹² March, Andrew F, (2009) ‘Islam and Liberal Citizenship: the Search for the Overlapping consensus’, ( NY: Oxford University Press.)

¹³ Donnelly, Jack (2013) Universal Human Rights in Theory and Practice, 3rd edition, (US: Cornell University Press)

¹⁴ Donnelly, Jack (2013) Universal Human Rights in Theory and Practice, 3rd edition, (US: Cornell University Press)

¹⁵ Rawls, John (1987) The Idea of an Overlapping Consensus, Oxford Journal of Legal Studies, Vol. 7,No. l,pp. 1-25

¹⁶ Rawls, John (1987) The Idea of an Overlapping Consensus, Oxford Journal of Legal Studies, Vol. 7,No. l,pp. 1-25

¹⁷ March, Andrew F, (2009) ‘Islam and Liberal Citizenship: the Search for the Overlapping consensus’, ( NY: Oxford University Press.)

¹⁸ Turner, B. S. (1993) Outline of a Theory of Human Rights. Sociology, 27 (3), pp. 489-512