Endorsing Discrimination between Faiths: A Case of Extreme Speech?

Abstract

The question whether government and law can discriminate between different religious faiths (or their adherents as such) is given a resounding 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 ground 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 (and even if adopted democratically and without threats of force) incompatible with the European Convention on Human Rights and the conceptions of democracy and the rule of law which the Convention enshrines. 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 [2006] UKHL 15, [2007] 1 AC 100. The present paper, written for a volume of essays on extreme speech and democracy, 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 not extremist, or a case of extreme speech, to propose discrimination analogous to that endorsed by the Strasbourg Court in those cases.

Keywords: Justified discrimination, religion, faiths, shariah, immigration, speech, Begum, Refah Partisi, human rights litigation