CHANCHARADE

What is private then, is excluded from public power, or deprived, as the word privare suggests. This literary meaning of the word also reveals the premise of the public sphere in order to determine what is in fact public or private. But in practice, it is difficult to reduce freedom of religion to a mere question of division between public and private spheres. Freedom of religion, as we have seen in the previous chapter, brings about quite difficult considerations concerning its scope and limits that are not always simply translations of those boundaries between the public and private sphere. Moreover, it is generally accepted that human rights in general, and freedom of religion in particular, entail more than purely legal liberties and may bring about State responsibilities. According to Steinberger: “many of the activities characteristic of the private sphere turn out to be activities toward which no responsible public authority could possibly remain indifferent.” While it was argued that such responsibilities cannot usually be derived from the legal right to freedom of religion only, the combination of the purpose of religious freedom with principles of pluralism and of equality and non-discrimination may lead to specific state obligations, granting additional claim-rights or immunities, which also concern religion. There is therefore an important public dimension to freedom of religion as a human right.

Another complication with the old public-private distinction is that it is increasingly difficult to make. In modern days, people have a thousand ways to organise themselves, to access information, to influence government policy and public opinion. Large-scale corporations lobby in the national and international political scene. At the same time, governments have introduced instruments for ‘direct democracy’ and have decentralised power by creating semi-public institutions. As a consequence of these developments, the border between ‘public’ and ‘private’, or ‘state’ and ‘non-state’ has faded.
Thus, while freedom of religion on the one hand refers to a distinction between public and private spheres – indicating an area of personal freedom, deprived of public interference – it at the same time reaches beyond that distinction, as it may also play a role in government activities. The ‘principle of separation of State and church’, it will be argued in the following chapter, is indicative for the positioning of the State toward religion, rather than its separation from it. It’s meaning, besides the interpretation of ‘separation’, depends of course on the conception one has of ‘state’. Therefore, while it would reach beyond the scope of this thesis to try to define the concept of “state”, it deserves some further exploration.

The most common use of the word State refers to its geographic quality; a country and its geographic borders. Clearly, the principle of separation of state and religion does not refer to a the State as a geographic entity – it does not ban religion from the country as such. Rather, ‘State’ refers to public authority, primarily the essential power-holding institutions of the State. State power is traditionally distinguished in the legislator, judiciary and government. These powers form the heart of the identity of the State. Other institutions may also fall under its definition, depending on what are considered to be public tasks. Public tasks come with public power. An essential task of the State is the enforcement of laws and borders by its monopoly of violence. Other public tasks are more focussed on welfare and care, for example education and housing. To what extent these tasks are viewed as public and what their content is, is largely a matter of policy and justice.

1.1 Constitutional traditions in a nutshell

The perception of the State, it’s character, responsibilities and public tasks, is the result of historical events and traditions in a country. The constitutional order that follows from it sets the framework for the way in which freedom of religion and the principle of separation of State and religion are approached. Each country has its own particularities. The United Kingdom for example may be characterized by the important role of custom and traditions. The British State ‘developed along pluralistic lines, favouring the representation of local and functional authorities in parliament, allowing the control of government by social elites and thus precluding the autonomization of the State’. Public law and the concept of State have never become as intertwined as in some other countries, partly due to the fact that the fact that the UK has a common law system and no written constitution. Technically, there is no difference between ‘ordinary’ statutes and ‘constitutional’ law. Sovereignty of parliament is also the basis for the dualist approach of the UK to the relationship between municipal and international law. The House of Lords - which functions as the court of last resort in the UK - does not have the power to exercise judicial review over acts of parliament, although it may declare a law inconsistent with the European Convention on Human Rights. While parliamentary sovereignty could theoretically lead to radical changes depending on the majority in parliament, in reality the constitutional order has proven very solid and sensitive for convention. The British monarchy and the established Anglo-Saxon Church must also be seen in this tradition and their role in the constitutional system is generally accepted to be of a largely symbolic nature, not opposing the generally pluralist approach of Britain.

Poland on the other hand, radically broke with its constitutional past when it abolished communism in 1989 and became a liberal democracy. Many developments since can be seen as a reaction to that past. An important role in the collapse of communism was performed by the Roman Catholic church, then the only institution that was able to openly criticize the communist government and intercede for the oppressed. When communism collapsed in 1989, the church was the “unquestioned moral authority in society”. Notably, more than 96 percent of Polish citizens are identified as Roman Catholic. Poland is thus by far the most monoculture country examined here. After communism, the church has tightened its grip on Polish society, helped in recent years by the governance of the conservative brothers Kaczyński. As a consequence, one can detect a new moral conservatism in modern legislation and governance. Examples are the strict anti-abortionist legislation, the abolition of sexual education in schools, the discrimination of homosexuals. It has been submitted that this conservatism also extents to the Constitutional Tribunal, specifically in its judgements concerning abortion and sexual education. In general, the powers of the Constitutional Tribunal are limited: it can only submit a law which it considers to be inconsistent with the constitution, back to parliament for reconsideration. If parliament overrules the decision, the parliamentary resolution becomes final and binding and cannot be take into consideration again by the Tribunal.

Like in the UK, Judges in the Netherlands are not allowed to assess the constitutionality of law. This prohibition has lost relevance due to review on the basis of international conventions, which are on top of the hierarchy of legal sources, and is therefore likely to be abolished. A number of State tasks in the Netehrlands has been assigned to organs with a supposed independent status and to organizations in civil society The strongly organized civil society goes back the period of pillarisation in the 1950’s. Society was basically set on 4 pillars; the catholic, protestant, socialist and liberal pillar each formed their own institutions and had their own political representation – even their own broadcasters, newspapers and schools. On each own, each pillar was a minority. They were therefore forced to negotiate to accomplish real differences. Although society has de-pillarised, this striving for consensus is still decisive in Dutch politics, which is nowadays referred to as the Dutch polder-model: employers, trade unions and government sit around the table until they reach an agreement in labour policy. While the pillars are no longer existent, the many organizations and institutions that function in the area between State and Society have not disappeared. This has provoked the question whether the introduction of Islam in fact necessitates the creation of a ‘fifth pillar’, or rather the abolition of the idea of pillars in society altogether.

Such approach would be entirely in contradiction with the French republic, which is “indivisible” and highly centralised. The republic knows only French citizens, not groups. Every citizen engages in a direct relationship with the State, which is blind to differences in background, race, religion etc. France does not consider itself, nor is thought of, as a pluralist society. The national philosophy of republicanism is rather mono-cultural: “one is French through the practice of a language, through the learning of a culture, through the whish to participate in an economic and political life”. The civilizing mission of the State, in which schools have a central role to play, is central to the French republican ethos. The legal French tradition, the primacy of the law, must also be seen in the light of the French revolution and the republican tradition. Following Rousseau, the law is the expression of the “volonté generale”. This is also the basis for the conceptual approach with regard to fundamental rights, highlighted in the first chapter: “There is […] no State that could be viewed as a threat to liberty and against which citizens have rights” This legal conception of State in France is not its sole tradition; in the early 19th, late 18th century, syndicalists rejected the State as a form of power external and hostile to society, and preached its destruction.

1.2 Competence of the European Union

The examined countries are not only bound by the European Convention on Human Rights, but also by European Union law. Community law prevails above national arrangements. The Treaty on the European Community (TEC) states that the Community can only act within the borders of the competences and goals mentioned in the treaty. Human rights are not specifically mentioned, but article 6 of the Treaty of the European Union (TEU) declares that the EU “is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common for the member states”. The second paragraph continues that the Union has to respect fundamental rights as guaranteed by the ECHR and as they result from the constitutional traditions common to the member states as general principles of Community law. While more controversial, authors have in the past also suggested that article 306 TEC could form the legal basis for an EU human rights policy. This article allows the Council to take measures, if action by the community is needed to attain one of the objectives of the community and if the Treaty has not provided the necessary powers.

Originally the EU did not or scarcely get involved in cultural and human rights policies of its member states. Its role however is changing as the European integration process proceeds. As a consequence, the influence of European law on freedom of religion and the relation between state and religion is rapidly increasing.

Firstly, the growing competences in other fields of EU policy have an increasing chance of somehow affecting freedom of religion and state-religion relationships. Directives aiming at fields of EU policy such as public health or occupation, may have an effect on the free exercise of religion or state-religion relationships. Often in such cases, provisions are created to compensate for these effects; while the Directive of 26 June 1964 on health problems affecting intra-Community trade in fresh meat prohibited the inflation of organs, the amending Directive of 1969 created an exemption for religious rites. Similar exemptions are made for ritual slaughter without anaesthesia and with regard to weekly stock limits in slaughterhouses during religious holidays. The Council Directive concerning certain aspects of the organization of working time exempts workers officiating at religious ceremonies in churches and religious communities from certain requirements and the Directive on the harmonisation of certain aspects of copyright and related rights in the information society creates an exemption for the reproduction of material for use during religious celebrations. Sometimes religion is a specific ground for policy: the Directive and Regulation on the protection of individuals with regard to the processing of personal data and on the free movement of such data prohibits the processing of personal data revealing – among other things - religious or philosophical beliefs, and the Directive on television broadcasting activities, does not permit advertising and tele-shopping in religious broadcasts.

Secondly, in modern days, unlike the first 50 years of the Union, human rights are specifically aimed at in EU law. The Charter of fundamental rights of the European Union, which is supposed to form part of a future European constitutional treaty, prohibits discrimination, guarantees freedom of religion and states that the Union shall respect cultural, religious and linguistic diversity. It also refers to the ECHR, declaring that in so far as the Charter contains rights guaranteed by the Convention, the meaning and scope of those rights shall be the same as those laid down by the Convention. This provision, it states, shall not prevent European Union law providing more extensive protection. In practice, the EU specifically aims at providing extensive protection against discrimination. Article 13 TEC gives the Council the competence to take action to combat discrimination on the ground of, among other things, religion, “without prejudice to the other provisions of this treaty and within the limits of the powers conferred upon it by the Community”. And recently, the EU decided to establish its own human rights institute.

The acknowledgement of human rights as principles of the Union will most likely lead to new instruments that aim at influencing the position of those rights. However, in all circumstances the EU is bound by two main principles: respect for the national identities of member States and the principle of subsidiarity. These principles restrict the competence of the EU in particular matters The principle of subsidiarity indicates that the community can only act if the objectives of that action cannot be sufficiently achieved by the member states and if the action can, by reason of its scale or effects, better be achieved by the community. In case of State-religion relationships, it could be doubted whether the Union would be the more suitable party to create such policy, as they are so rooted in national culture. More important in this regard is article 6 paragraph 3 TEU, which states that “the Union shall respect the national identities of its member states”. The constitutional traditions of member states, as well as their cultural identity and their specific values have to be respected. State-religion relationships are typically part of these national identities. Their form is the result of specific historical and cultural circumstances of Member States, of which we have seen an brief example in the former paragraph. Also, the Declaration on the status of churches and religious organisations states:

The European Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States. The European Union equally respects the status of philosophical and non-confessional organisations.

While the declaration has no concrete consequences and no binding status, it may serve – together with the principle of respect for national identities - as an instrument of interpretation in the application of European law. In any case, it may easily be assumed that the European Union need to be cautious in creating provisions that might affect this relationship. More recent directives however, suggest that the Union is expanding its competence in this field too.