Endorsing Discrimination Between Faiths: A Case of Extreme Speech?
The question whether government and law can discriminate between different religious faiths (or their adherents as such) is given a resounding affirmative answer by a unanimous Grand Chamber (seventeen judges) of the European Court of Human Rights in Refah Partisi (No. 2) v Turkey (2003), upholding the dissolution of the largest political party in Turkey's legislature on the grounds that, as a dominant member of the governing coalition, it intended to introduce sharia law either for everyone or as part of a plural system of laws for citizens of different faiths. For sharia, the court held, is inherently incompatible with the European Convention on Human Rights and the conceptions of democracy and the rule of law which the Convention enshrines. That is, shariah (‘which faithfully reflects the dogmas and divine rules laid down by [a] religion’ and ‘is stable and invariable’) would be incompatible with human rights, democracy and the rule of law even if adopted democratically and without threats of force. This ruling in Refah in turn grounds the same Court's decision in Sahin v Turkey (2005), upholding the prohibition of the wearing of head scarves in universities in Turkey. And Sahin is, inconspicuously but clearly enough, at the foundation of the House of Lords' decision in R (Begum) v Denbigh High School Governors  UKHL 15,  1 AC 100. This chapter argues that despite its unpersuasive reasoning (in which essential premises such as those displayed in Sahin and Refah are never sufficiently articulated), Begum was rightly decided, and that — especially in relation to immigration — it is neither extremist, nor a case of extreme speech to propose discrimination analogous to that endorsed by the Strasbourg Court in those cases.
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