1. Preliminary remarks
1. I first wish to thank Mr Antonio Gutiérrez
for giving prominence to questions of gender equality and women's
rights in his report and in the draft resolution which has been
adopted by the Committee on Legal Affairs and Human Rights.
2. The draft resolution tackles mainly the following issues:
- the compatibility of the Cairo
Declaration on human rights in Islam with international human rights standards;
- the work of Sharia councils in England and Wales, bodies
which have no legal status and no legally binding authority;
- the application of Sharia law to Muslim Greeks in Western
Thrace, which is based on the Treaty of Lausanne and regulated by
Greek law.
3. Each of these issues is very specific and complex and would
have deserved to be examined in its own right. Since the common
thread is the reference to Sharia, addressing these issues in the
same report might give the impression that Sharia is gaining ground
in Europe as a source of law. This is not the case: at the moment,
no Council of Europe member States has Sharia as a source of law,
with the exception of the specific situation of the territory of
Western Thrace in Greece where Sharia law can be applied within
limits that are set out in the law and provided that this does not
lead to a violation of the European Convention on Human Rights (ETS
No. 5, “the Convention”). The application of Sharia by Sharia councils
in England and Wales does not produce legal effects. By the same
token, no Council of Europe member State, whether or not subscribing
to the Cairo Declaration, has given an indication of wishing to
introduce Sharia law in its legal system.
4. The broader issue of the compatibility of Sharia law with
human rights should be addressed with legal rigour as well as political
sensitivity, avoiding the stigmatisation of Islam as such. Islam
is the second most widely practised religion in Europe and the one
followed by a majority of the population in some Council of Europe
member States. The most pressing challenge is how to ensure that
all Europeans, irrespective of their religious beliefs, feel part
of the same community which values human rights and democracy above
any other allegiances, and enjoy the same rights and opportunities,
free of discrimination and prejudice.
5. For the preparation of this opinion, the Committee on Equality
and Non-Discrimination heard Dr Ioana Cismas, lecturer at the York
Law School and the Centre for Applied Human Rights, York, United
Kingdom, a specialist of the Cairo Declaration, on 3 December 2018.
It also consulted the minutes of the excellent hearings organised
by the Committee on Legal Affairs and Human Rights for the preparation
of the report by Mr Gutiérrez.
2. The Cairo Declaration
6. The Cairo Declaration is not
in line with the main international human rights instruments. As
Mr Gutiérrez points out in his report:
- it omits freedom of association and freedom of religion
and expression;
- it allows discrimination based on sex/gender;
- it does not mention the prohibition of discrimination
on grounds of sexual orientation or gender identity;
- it does not recognise the universal nature of human rights;
- it makes human rights subject to the provisions of Sharia
law, which is also considered the sole source of reference for interpreting
the declaration.
7. Sharia law is not a set of fixed norms but a dynamic concept
open to interpretation which can evolve. It is not uniformly interpreted
or comprehensively applied in all its aspects in the countries where
it is a source of law.
8. As the European Court of Human Rights has emphasised in its
judgments, some provisions of Sharia law are not compatible with
the European Convention on Human Rights.
The
report prepared by Mr Gutiérrez lists the most problematic aspects
which relate above all to inequality between women and men in the
areas of family law, inheritance and personal status; freedom of
religion and expression; and the admissibility of cruel, inhuman
and degrading punishment in the field of criminal law.
2.1. Cairo Declaration
and Council of Europe member States
9. The title of the report asks
whether Council of Europe member States, which are all Parties to
the European Convention on Human Rights, can also be signatories
of the Cairo Declaration. In legal terms, the answer is clear: they
can. In the event, Turkey is the only Council of Europe member State
that was a member of the Organisation of the Islamic Conference
(OIC) when it approved the Cairo Declaration. Albania and Azerbaijan
joined the OIC later. Albania and Azerbaijan joined the Council
of Europe after joining the OIC: the question of any incompatibility
was never raised in negotiations regarding membership, nor was it
raised in the work of the Parliamentary Assembly within the framework
of that procedure.
10. This is not surprising since, as underlined by the rapporteur,
the European Convention on Human Rights and the Cairo Declaration
are different types of instrument: the former is a legally binding
treaty whereas the latter is merely a political declaration with
no legal effects. The reference to Sharia law in the Cairo Declaration has
no consequences in Albania, Azerbaijan and Turkey, being secular
States in which Sharia law does not constitute a source of law.
2.2. Cairo Declaration,
Sharia and partners for democracy
11. Jordan, Morocco and Palestine,
whose parliaments enjoy partner for democracy status with the Parliamentary
Assembly, were members of the OIC when it adopted the Cairo Declaration.
The Kyrgyz Republic joined later. Their endorsement of the declaration
was not mentioned as being a problem during the procedure for granting
them that status.
12. Withdrawing support to the Cairo Declaration would have a
highly symbolic value but no practical impact, as Sharia is included
as a source of law in the legal systems of Jordan, Morocco and Palestine.
2.3. Promoting tangible
progress
13. From the outset, the Council
of Europe and its Parliamentary Assembly have engaged with the partners for
democracy in a spirit of dialogue and co-operation: the aim is helping
to bring legislation and policies of these countries more closely
into line with human rights standards as set out in the main international instruments,
including the European Convention on Human Rights.
14. Engaging in a spirit of dialogue should not be understood
as readiness to compromise over values and standards. Constructive
criticism is possible and is even more effective when it seeks to
have a tangible impact on laws and policies. In this context, dialogue,
training, the provision of expertise and exchanges of experience between
elected representatives through inter-parliamentary co-operation
activities are the best means of bringing about change.
15. In 2018, for example, the Committee on Equality and Non-Discrimination
discussed topics such as the participation of women in politics
and combating violence against women with parliamentarians from
Morocco, Jordan and Palestine at two events organised in Rabat on
5 July and in Paris on 20 September respectively. These exchanges
of views gave participants the opportunity to discuss recent legislative
progress in the South-Mediterranean region, learn about the political
and societal challenges and promote Council of Europe instruments
such as the recommendations of the European Commission for Democracy
through Law (Venice Commission), Assembly resolutions and the Convention
on Preventing and Combating Violence against Women and Domestic
Violence (CETS No. 210, “Istanbul Convention”). Efforts must continue
in this direction, with an emphasis on tangible reforms. And these
are possible in areas such as family or personal status law, where
Sharia is the basis of the normative framework.
16. In parallel, the Assembly should invest in the role which
its partners for democracy, and more so Albania, Azerbaijan and
Turkey as Council of Europe member States, can play within multilateral
organisations like the Organisation of Islamic Cooperation to further
promote the respect of human rights outside the Council of Europe
region.
17. In this connection, it should be recalled that there have
been calls for a revision of the Cairo Declaration. This avenue
remains to be explored but it would be a mistake to give excessive
attention to the Cairo Declaration. According to Dr Cismas, only
one signatory of the declaration, Saudi Arabia, has ever invoked
it to justify lack of compliance with international obligations.
Efforts
should be rather channelled into promoting compliance with human
rights law and the recommendations of human rights mechanisms.
3. Application of
Sharia law in Council of Europe member States
18. The report by Mr Gutiérrez
describes the specific situations in which Sharia law is applied,
legally or informally, in certain parts of some Council of Europe
member States. I would advise in favour of the deletion of the sentence
“The Assembly is aware that informal Islamic Courts may exist in
other Council of Europe member States too” in the draft resolution
(Amendment A) since there
is no mention of it in the report. This is to avoid that this sentence,
taken out of context, is used to fuel fears about a possible spreading
of the application of Sharia law in Europe and is maliciously used
by political forces to stigmatise Islam and Muslims.
3.1. Application of
Sharia law by Sharia councils in England and Wales
19. Mr Gutiérrez’s report describes
in detail the questions arising from the activities of Sharia councils
in England and Wales. The draft resolution reiterates the main recommendations
which were made by the Independent review into the application of
sharia law in England and Wales presented to parliament by the Secretary
of State for the Home Department, including its pragmatic approach
not to ask for a ban of Sharia councils.
I will not duplicate the information
contained in the main report but will add some considerations. This particular
issue, however, would have deserved a report on its own, as it is
extremely complex and politically sensitive and raises important
questions regarding equality and non-discrimination.
20. The evidence collected by the Independent review shows that
over 90% of those using the services of Sharia councils are women,
in most cases seeking an Islamic divorce. The main reason for this
is that currently the celebrant of Muslim marriages cannot register
marriages civilly, unlike the celebrants of Christian and Jewish
marriages. At the same time, many Muslim couples do not celebrate
two marriages, a religious and a civil one. When only an Islamic
marriage is celebrated, the couple is considered in the eyes of
United Kingdom law as merely cohabiting.
21. While Muslim men can unilaterally end an Islamic marriage,
women are required to obtain a decision. In this sense, the Independent
review found that Sharia councils respond to a need. Its main recommendation
is therefore to try to address the need by ensuring that Islamic
marriages are also registered under civil law, so that a divorce
can be obtained before the proper courts.
22. It should be noted that, when “pronouncing” a divorce, Sharia
councils also deal with aspects such as dowry forfeiture, financial
remedies, arrangements for children and issues regarding future
behaviour and conduct. These are sensitive areas in which decisions
taken according to Sharia law risk being discriminatory towards
women.
23. The Independent review believes that, as long as the need
for an Islamic divorce remains, banning Sharia councils would send
them underground, making discriminatory practices and human rights
violations even harder to detect. It recommends, instead, creating
a system of self-regulation of Sharia councils, including a code
of practice, and that compliance of Sharia councils with such a
scheme be monitored.
24. This approach was not unanimously shared by all the members
of the Review panel. A dissenting opinion is included in the report,
arguing that a State-endorsed regulation would give legitimacy and
a quasi-legal status to the councils: “The creation of state endorsed
regulation sends the message that certain groups have separate and
distinct needs and further that sharia councils are an appropriate
forum for resolution of their family disputes. In short it would
perpetuate the myth of separateness of certain groups.”
25. Introducing the right/obligation to register the Islamic marriage
civilly, although necessary, would not necessarily end recourse
to Sharia councils. Women may continue to address themselves to
Sharia councils irrespective of whether their marriage was civilly
registered or not, of their own will or because of the expectations
or pressure of their families or communities. Even if the Independent
review reiterates that Sharia councils should not be called “courts”
or “tribunals” and their members should not be referred to as “judges”, “the
power of Sharia councils lies in how they are perceived by their
communities”.
26. Hence the need to put an emphasis on dialogue, awareness-raising
and information campaigns. This work should be conducted extensively,
hand in hand with women’s organisations, other non-governmental organisations
(NGOs) and civil society, to inform Muslim women of their rights
and promote their empowerment. I therefore propose an amendment,
which adds to the need for awareness-raising campaigns the element
of women’s empowerment (Amendment E).
27. As I said at the beginning of this opinion, the challenge
is how to ensure that all Europeans, irrespective of their religious
beliefs, feel part of the same community which values human rights
and democracy above any other allegiances. But this challenge will
never be met unless all Europeans enjoy the same rights and opportunities,
free of discrimination and prejudice.
28. Muslim women are often portrayed as victims of highly patriarchal
religious or cultural traditions which confine them to a position
of inferiority to men, in the family and society. Unfortunately,
they are also the main target of Islamophobic, racist attacks and
stereotyping, a problem which has grown with the threat of terrorism. They
are victims of multiple and intersectional discrimination, as women
and Muslims. All too often, however, it is forgotten that Muslim
women can also be actors of change: the Muslim Women Network United
Kingdom, for instance, offers guidance to Muslim women seeking to
develop their role, and feminist movements within Islam exist both
in Europe and outside.
29. Unfortunately, access to justice is a key area in which Muslim
women face discrimination and barriers. This had already been described
by the Committee on Equality and Non-Discrimination in the reports
on “Equality and non-discrimination in the access to justice”
and on “Multiple discrimination
against Muslim women in Europe: for equal opportunities”.
30. In its latest Concluding observations on the United Kingdom,
the United Nations Committee on the Elimination
of Discrimination against Women (CEDAW) expressed concerns that
the reform of legal aid which had been introduced in the United
Kingdom in 2012 would have a negative impact on women’s access to justice,
amongst others, because it removed access to legal aid for litigation
concerning, for instance, divorce, property disputes, housing and
immigration matters. The Committee noted “with concern reports that
these limitations may push women, in particular those from ethnic
minorities, into informal community arbitration systems, including
faith-based tribunals, which are often not in conformity with the
Convention”. It therefore urged the United Kingdom: “(a) To ensure
effective access by women, in particular women victims of violence, to
courts and tribunals; (b) To continuously assess the impact of the
reforms of legal aid on the protection of women’s rights; (c) To
protect women from informal community arbitration systems, especially
those that violate their rights under the Convention”.
31. It is well beyond my possibilities with an opinion to assess
the impact of the legal aid reform in the United Kingdom but in
general terms it seems to me that a fundamental way to reduce Muslim
women’s reliance on Sharia councils is removing the barriers to
their access to the formal justice system. This is why I propose Amendment D, which also mentions
the particular vulnerability of women who have entered a marriage
which is not recognised civilly and who need protection and assistance,
especially if they want to come out of it.
3.2. Application of
Sharia law in Western Thrace
32. As regards the application
of Sharia law in Western Thrace, I would like to recall that the
report on “Promoting the rights of persons belonging to national
minorities”,
which will be debated
during the January 2019 part-session, mentions the Greek legal framework
applying to the Muslim minority in Western Thrace and therefore
provides a complementary background to the report by Mr Gutiérrez.
33. In addition, I would like to flag up that, after the adoption
of the draft resolution by the Committee on Legal Affairs and Human
Rights, the European Court of Human Rights made a Grand Chamber
ruling in the case
Molla Sali v. Greece,
already mentioned in Mr Gutiérrez’s report.
34. In its judgment, the Court recognised a violation of Article
14 of the European Convention on Human Rights (non-discrimination),
in conjunction with Article 1 of Protocol No. 1 to the Convention
(ETS No. 9) (right to property).
The Court also pointed out that freedom
of religion did not require the Contracting States to create a particular
legal framework in order to grant religious communities a special
status entailing specific privileges. Nevertheless, a State which
had created such a status had to ensure that the criteria established for
a group’s entitlement to it were applied in a non-discriminatory
manner. Furthermore, refusing members of a religious minority the
right to voluntarily opt for and benefit from ordinary law amounted
not only to discriminatory treatment but also to a breach of the
right to free self-identification, which is of crucial importance in
the field of protection of minorities.
4. Final remark
35. Some of the issues covered
by the report of the Committee on Legal Affairs and Human Rights
raise important questions as regards the promotion and protection
of women’s rights across society, the rights of minorities, the
prevention of multiple and intersectional discrimination and the
fight against intolerance and stereotyping. I invite the Committee
on Equality and Non-Discrimination to consider whether it should
follow up on some of these issues with the preparation of a specific
report.