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La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
Il documento riporta il testo della sentenza di una Corte di Appello inglese contro una decisione di una corte amministrativa in merito alla questione della libertà religiosa, dei simboli... Vedi di più

Esame di Diritto Costituzionale Avanzato docente Prof. F. Cerrone

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At the Appeal hearing the Claimant indicated that although she does not regard Muslims who wear the shalwar kameeze as bad people, she does think better Muslims wear the jilbab. I

would not wish to see the introduction of two classes of Muslim, the inferior class that wears the shalwar kameeze and the better Muslim who wears the jilbab. In my view that would lead to

real risk of pressure being brought upon Muslim girls to wear the jilbab or be regarded as religious inferiors. I would fear that this could lead to some girls feeling pressured into wearing the

jilbab when they would prefer to wear the shalwar kameeze and might wish to avoid being classified with the kinds of people they believe wear the jilbab."

He ended by expressing a concern that if the school uniform was changed in the way the claimant suggested, this would lead to divisiveness within the school and would threaten the

cohesion within the school.

52. Mr Connor, who has been the Deputy Headteacher since 1997, had six years’ experience in the culturally diverse London Borough of Brent in the late 1980s. The earlier part of his

statement was devoted to the concerns on health and safety grounds that are not now being pursued on this appeal. He then turned to explain that a major learning objective on the part of

the curriculum concerned with citizenship was for pupils to work together positively and co­operatively in a community that fosters respect for all.

53. In this context he drew on his experience of working in schools that incorporate wide diversity. He said there is the potential for pupils to identify themselves as distinct from other groups

along cultural, religious or racial grounds, and for conflict to develop between such groups. He recalled an earlier incident in this school which had involved a very difficult and potentially

dangerous situation of intransigent conflict between two groups of pupils who defined themselves along racial grounds. This was one of the reasons for a uniform policy that did not allow

pupils to identify themselves obviously as belonging to a particular religion or race.

54. It was important in his experience to recognise that many adolescents require a lot of support to understand the importance of inclusion, equal opportunities, mutual respect and social

cohesion, such as was fostered by the school’s uniform policy. He attested to the same concerns among a number of girls at the school as Mr Moore had mentioned, and he believed that the

school had a duty to protect these pupils from inappropriate peer pressures, or pressures from outside extremist groups. There had been an incident in February 2004 when some young

men who represented an extremist Muslim group had picketed the school gates and distributed leaflets to the pupils which exhorted Muslims not to send their children to secular schools. A

number of pupils understandably felt harassed by these activities.

55. At the end of his statement Mr Connor expressed a concern that any erosion of the uniform policy would make it more difficult for the school to recruit and retain staff. This was partly

because he believed that the present clear policy contributed to the school’s ethos of good behaviour and discipline. It was also partly because this was a secular school, and this was very

important to many teachers who believe strongly that they do not wish to be associated with promoting a particular faith. If a new school uniform policy resulted in a significant proportion of

pupils outwardly identifying themselves according to their faith, this could create the impression that this was a school which favoured that faith.

56. Mrs Bevan, the Headteacher, gave evidence similar to that given by Mr Moore and Mr Connor about the concerns expressed by children at the school, both Muslim and non­Muslim, and

also by a number of parents. She said that she had been given the firm impression that a number of girls relied on the school to help them resist the pressures from the more extreme

groups. She was afraid that if the school uniform were to be adapted to include the jilbab these girls would be deprived of proper protection and would feel abandoned by those upon whom

they were relying to preserve their freedom to follow their own part of the Islamic tradition. She also referred to the picketing that had taken place "by groups of mainly young men who would

appear to be from the more extreme Muslim traditions".

57. She said that all the requirements of the school uniform were well publicised before the claimant chose to attend the School. She was being treated in exactly the same way as all other

pupils, a very high percentage of whom were Muslim, and since the requirements of the uniform policy were satisfactory to her for two years, and were also satisfactory to all the School’s

other pupils both past and present, she did not see how the School was discriminating against her.

58. The reasons given by the Chair of the Governors and by the Governors’ Complaints Committee in the autumn of 2003 for rejecting SB’s complaints did not add significantly to the

reasons given by the School’s senior staff. The Complaints Committee observed that they did not purport to have the legal knowledge to interpret complex legislation.

59. On the assumption (which he had rejected) that Article 9(1) was engaged in this case, the judge accepted the School’s case that the limitations on the claimant’s right to manifest her

religion or beliefs were necessary for the protection of the rights and freedoms of others. His reasons can be summarised in this way:

i. The School is a multi­cultural, multi­faith secular school;

ii. The school uniform policy clearly promoted a positive ethos and a sense of communal identity;

iii. There was no outward distinction between Muslim, Hindu and Sikh female students, and the shalwar kameeze also satisfied the right of Muslim female students to manifest their religion;

iv. Any distinction between Muslim students who wore the jilbab and those who wore the shalwar kameeze was avoided;

v. The present policy protects the rights and freedoms of not an insignificant number of Muslim female pupils who do not wish to wear the jilbab and either do, or will feel pressure on them to

do so from inside or outside the school;

vi. If the choice of two uniforms were permitted for Muslim female pupils, it could be readily understood that other pupils of different or no faiths might well see this as favouring a particular

religion.

60. The judge concluded in these terms (at para 91):

"In my judgment the school uniform policy and its enforcement has, and continues to have, a legitimate aim and is proportionate. The legitimate aim was the proper running of a multi­cultural,

multi­faith, secular school. The limitation was also proportionate to the legitimate aim pursued. The limitation was specifically devised with the advice of the Muslim community. Although it

appears that there is a body of opinion within the Muslim faith that only the jilbab meets the requirements of its dress code there is also a body of opinion that the Shalwar Kameeze does as

well. In my judgment, the adoption of the Shalwar Kameeze by the Defendant as the school uniform for Muslim (and other faiths) female pupils was and continues to be a reasoned,

balanced, proportionate policy."

61. I turn now to set out my conclusions on this appeal. In my judgment, the limitation on the claimant’s Article 9(1) freedom was one that was prescribed by law in the Convention sense. The

governors were entitled by law to set a school uniform policy for the School. They published a clear, written policy which was available to all who might be affected by it, and the requirements

of the ECHR for law that is both accessible and clear were satisfied in this respect. But was that limitation necessary?

62. The ECHR caselaw to which we were referred related to countries like Switzerland and Turkey which maintain a national policy of secular education in their state maintained schools. I

did not derive any assistance from the cases we were shown which related to employment disputes.

63. In Dahlab v Switzerland (15th February 2001; Appln No 42393/98) the court declared inadmissible a complaint by a primary school teacher who had been prohibited from wearing an

Islamic headscarf at her school. The court acknowledged the margin of appreciation afforded to the national authorities when determining whether this measure was "necessary in a

democratic society", and explained its role in these terms (at p 11):

"The Court’s task is to determine whether the measures taken at national level were justified in principle that is, whether the reasons adduced to justify them appear ‘relevant and sufficient’

and are proportionate to the legitimate aim pursued In order to rule on this latter point, the Court must weigh the requirements of the protection of the rights and liberties of others against the

conduct of which the applicant stood accused. In exercising the supervisory jurisdiction, the court must look at the impugned judicial decisions against the background of the case as a

whole..."

64. In that case the need to protect the principle of denominational neutrality in Swiss schools was treated as a very important factor which militated successfully against the applicant’s case.

65. In Sahin v Turkey (29th June 2004; Appln No 44774/98) the applicant had been denied access to written examinations and to a lecture at the University of Istanbul because she was

wearing an Islamic headscarf. This was prohibited not only by the rules of the university but also by the Constitution of Turkey, as interpreted in 1989 and 1991 by the Constitutional Court of

Turkey. The European Court of Human Rights noted (in paragraphs 53 to 57) that attitudes towards wearing the Islamic headscarf in schools differed in different European countries. It

accepted (at para 71) that the applicant was motivated by her desire to comply strictly with the duties imposed by the Islamic faith. It found (at para 81) that there was a basis for interference

in Turkish law which was accessible and sufficiently precise in its views. The applicant conceded (at para 83) that in view of the importance of upholding the principle of secularism and

ensuring the neutrality of universities in Turkey, the interference could be regarded as compatible with the legitimate aims of protecting the rights and freedoms of others and of protecting

public order. She vigorously disputed, however, the contention that the interference was necessary in a democratic society.

66. The Court first discussed the relevant principles and then applied them to the facts of this particular case. Although it made reference to the principle of gender equality, it placed most

weight on the principle of secularism in Turkey. It said (at para 99)

"In a country like Turkey, where the great majority of the population belong to a particular religion, measures taken in universities to prevent certain fundamentalist religious movements from

exerting pressure on students who do not practise that religion or on those who belong to another religion may be justified under Article 9(2) of the Convention."

67. It went on to say (at para 101) that where questions concerning the relationship between State and religion were at stake, on which opinion in a democratic society might reasonably differ

widely, the role of the national decision­making body had to be given special importance. In such cases it was necessary to have regard to the fair balance that must be struck between the

various interests at stake: the rights and freedoms of others, avoiding civil unrest, the demands of public order, and pluralism.

68. In applying these principles to the facts of the particular case the court said (at paras 104­6)

"104.It must first be observed that the interference was based, in particular, on two principles secularism and equality which reinforce and complement each other.

105.In its judgment of 7 March 1989, the Constitutional Court stated that secularism in Turkey was, among other things, the guarantor of democratic values, the principle that freedom of

religion is inviolable to the extent that it stems from individual conscience and the principle that citizens are equal before the law.Secularism also protected the individual from external

pressure. It added that restrictions could be placed on freedom to manifest one’s religion in order to defend those values and principles.

106.This notion of secularism appears to the Court to be consistent with the values underpinning the Convention and it accepts that upholding that principle may be regarded as necessary

for the protection of the democratic system in Turkey."

69. The court also noted (at para 107) the emphasis placed on the Turkish constitutional system on the protection of the rights of women. Gender equality recognised by the European Court

as one of the key principles underlying the Convention and a goal to be achieved by member States of the Council of Europe had also been found by the Turkish Constitutional Court to be a

principle implicit in the values underlying the Turkish constitution.

70. Matters the court took into account (at paras 108­109) when concluding that the national authorities in Turkey were entitled to prohibit the wearing of a Muslim headscarf in a university

included:

i. The impact which wearing a headscarf, which is presented or perceived as a compulsory religious duty, might have on those who chose not to wear it;

ii. The fact that Turkey was a country where the majority of the population, while professing a strong attachment to the rights of women and a secular way of life, adhered to the Islamic faith;

iii. In such a context, imposing limitations on freedom in this sphere might be regarded as meeting a pressing social need by seeking to achieve those two legitimate aims, especially since

the Muslim headscarf had taken on political significance in Turkey in recent years;

iv. The fact that there were extremist political movements in Turkey which might seek to impose on society as a whole their religious symbols and conception of a society founded on religious

precepts: a Contracting State was permitted, in accordance with the ECHR provisions, to take a stance against such political movements, based on its historical experience.

71. Against this background the court dismissed the applicant’s complaint, saying (at para 110) that it was understandable in such a context where the values of pluralism, respect for the

rights of others and, in particular, equality of men and women before the law, were being taught and applied in practice, that the relevant authorities would consider that it ran counter to the

furtherance of such values to accept the wearing of religious insignia, including, as in the present case, that women students cover their heads with a headscarf while on university premises.

72. I have considered the case of Sahin in some detail for four main reasons. First, it is a recent judgment in which the European Court of Justice has set out carefully the structured way in

which issues of this kind are to be considered under the Convention. Secondly, it shows that context is all­important: there are considerations to be applied in a state which professes the

value of secularism in its Constitution which are not necessarily to be applied in the United Kingdom. Thirdly and we did not receive any argument on this issue there are clearly potential

tensions between the rights and freedoms set out in a Convention agreed more than 50 years ago between Western European countries which on the whole adhered to Judaeo­Christian

traditions, and some of the tenets of the Islamic faith that relate to the position of women in society. And fourthly, it is clear that a decision­maker is entitled to take into account worries like

those expressed by the senior teaching staff of the School when it is deciding whether it is necessary to prohibit a person like the claimant from manifesting her religion or beliefs in public in

the way in which she would wish.

73. The United Kingdom is very different from Turkey. It is not a secular state, and although the Human Rights Act is now part of our law we have no written Constitution. In England and

Wales express provision is made for religious education and worship in schools in Chapter VI of the 1998 Act. Schools are under a duty to secure that religious education in schools is given

to pupils, and that each pupil should take part in an act of collective worship every day, unless withdrawn by their parent. Sections 80(1)(a) and 101(1)(a) of the 2002 Act require the inclusion

of religious education in the basic curriculum.

74. The position of the School is already distinctive in the sense that despite its policy of inclusiveness it permits girls to wear a headscarf which is likely to identify them as Muslim. The

central issue is therefore the more subtle one of whether, given that Muslim girls can already be identified in this way, it is necessary in a democratic society to place a particular restriction on

those Muslim girls at this school who sincerely believe that when they arrive at the age of puberty they should cover themselves more comprehensively than is permitted by the school

uniform policy.

75. The decision­making structure should therefore go along the following lines:

1)Has the claimant established that she has a relevant Convention right which qualifies for protection under Article 9(1)?

2)Subject to any justification that is established under Article 9(2), has that Convention right been violated?

3)Was the interference with her Convention right prescribed by law in the Convention sense of that expression?

4)Did the interference have a legitimate arm?

5)What are the considerations that need to be balanced against each other when determining whether the interference was necessary in a democratic society for the purpose of achieving

that aim?

6)Was the interference justified under Article 9(2)?

76. The School did not approach the matter in this way at all. Nobody who considered the issues on its behalf started from the premise that the claimant had a right which is recognised by

English law, and that the onus lay on the School to justify its interference with that right. Instead, it started from the premise that its uniform policy was there to be obeyed: if the claimant did

not like it, she could go to a different school.

77. The chair of the governors, whose decision is set out in full in paragraph 25 of Bennett J’s judgment, adopted this line. He ended his decision dismissively by saying that it would not be

appropriate "to make any further provisions for individuals’ interpretations of religious codes." The Complaints Committee, too, was satisfied that the shalwar kameeze constituted

"appropriate Islamic dress" or was "in accordance with the tenets of Islam", and while it accepted that the jilbab constituted proper Islamic dress for adult Muslim women, it did not explore the

reasons why the claimant sincerely believed that she must wear it. Indeed, the committee could see no good reason for the local mosques "apparently changing their minds", without

appreciating that the two Imams had been addressing two quite different questions (see paras 45­48 above), namely whether the shalwar kameeze was or was not inappropriate for Muslim

girls, and what in their view the teachings of Islam really required.

78. In my judgment, therefore, because it approached the issues in this case from an entirely wrong direction and did not attribute to the claimant’s beliefs the weight they deserved, the

School is not entitled to resist the declarations she seeks, namely:

i. That it unlawfully excluded her from school;

ii. That it unlawfully denied her the right to manifest her religion;

iii. That it unlawfully denied her access to suitable and appropriate education.

79. So far as this third matter is concerned, I am satisfied that the claimant is entitled to this declaration without the need for any inquiry into the rights and wrongs of what actually happened

during the two years in which she was away from school when the School maintained that it was trying to send schoolwork to her at home. Any such expedient would have been inferior to a

proper education, at best: compare A v Headteacher and Governors of Lord Grey School [2004] EWCA Civ 382 per Sedley LJ at [60].

80. The claimant no longer seeks a mandatory order that the School make swift arrangements for her return to school, and she also no longer seeks damages.

81. Nothing in this judgment should be taken as meaning that it would be impossible for the School to justify its stance if it were to reconsider its uniform policy in the light of this judgment

and were to determine not to alter it in any significant respect. Matters which it (and other schools facing a similar question) would no doubt need to consider include these:

i. Whether the members of any further religious groups (other than very strict Muslims) might wish to be free to manifest their religion or beliefs by wearing clothing not currently permitted by

the school’s uniform policy, and the effect that a larger variety of different clothes being worn by students for religious reasons would have on the School’s policy of inclusiveness;

ii. Whether it is appropriate to override the beliefs of very strict Muslims given that liberal Muslims have been permitted the dress code of their choice and the School’s uniform policy is not

entirely secular;

iii. Whether it is appropriate to take into account any, and if so which, of the concerns expressed by the School’s three witnesses as good reasons for depriving a student like the claimant of

her right to manifest her beliefs by the clothing she wears at school, and the weight which should be accorded to each of these concerns;

iv. Whether there is any way in which the School can do more to reconcile its wish to retain something resembling its current uniform policy with the beliefs of those like the claimant who

consider that it exposes more of their bodies than they are permitted by their beliefs to show.

82. All this is for the future, and this case has achieved the result of ensuring that schools will set about deciding issues of this kind in the manner now required of them by the Human Rights

Act. It may be thought desirable for the DfES to give schools further guidance in the light of this judgment: one is bound to sympathise with the teachers and governors of this school when

they have had to try and understand quite complex and novel considerations of human rights law in the absence of authoritative written guidance. For the present, however, I would allow this

appeal and grant the claimant the three declarations she seeks.

Lord Justice Mummery :

83. For the reasons given by Brooke and Scott Baker LJJ I agree that this appeal should be allowed. I only wish to add short comments on three points.

A. Justification

84. The claimant has succeeded in demonstrating that her right under Article 9(1) was engaged. She had the right to manifest her religion in the matter of dress at School. The effect of the

School’s stance on its uniform policy was that the claimant was unlawfully excluded from the School for not wearing the uniform, to which, for religious reasons, she objected. It was no

answer for the School to say that she could have attended School if only she had chosen to wear the school uniform. Nor is it relevant to compare her position with that of an employee who

is free to leave his employment and to find work with a different employer. (Ahmad v. UK (1981) 4 EHRR 126 and Stedman v. UK (1997) 23 EHRR CD 168 were cited on the position of

employees asserting Article 9 rights). It is irrelevant to the engagement of Article 9 that the claimant could have changed to a school which accommodated her religious beliefs about dress.

Education at the School or at another school was not a contractual choice. There was a statutory duty to provide education to the pupils. The School did not follow the proper statutory

procedure for excluding her from education.

85. As the claimant has now moved to another school and will not be returning to the School, that is the end of the matter as far as she is concerned. She does not pursue a claim for

damages. The case is about a point of principle. Declaratory relief is an adequate remedy. It should be emphasised, however, that, in general, the engagement of the right would not be the

end of the matter. In fact, it would be the beginning of another stage. The next stage would be considerably more complex. The scope of the right and its exercise would be subject to the

limitations in Article 9(2), which the School may seek to rely on to justify the school uniform policy. Freedom to manifest one’s religion is subject, for example, to such limitations prescribed by

law as "are necessary in a democratic society for..the protection of the rights and freedoms of others."

86. The process of justification of a limitation on the right to manifest one’s religion involves a careful and wise analysis in the very difficult and sensitive area of the relation of religion to

various aspects of the life of the individual living in community with other individuals, who also possess rights and freedoms. The right to manifest one’s religion under Article 9 is not

necessarily a valid reason for overriding the social responsibilities of the individual holder of the right to others living in the community.

87. As is pointed out in the judgment of Brooke LJ (paragraph 82) it would still be possible for the School, on a structured reconsideration of the relevant issues, including the Article 9 right of

a person in the position of the claimant, to justify its stance on the school uniform policy. If it could, there would be no breach of the Article 9(1) right.

B. The Role of the Court

88. In some quarters this decision may be seen as an instance of the court and/or the claimant overruling the Headteacher and the Governors of the School, undermining their authority on

an internal school matter and interfering in the running of the School. That would be a misconception. The role of the court is confined to deciding whether the claimant was unlawfully

excluded from the School and unlawfully denied her right to manifest her religion. The court has found that the relevant issues were, from a legal aspect, approached from the wrong

direction. The result is that there was unlawful treatment of the claimant. As already explained, this does not mean that would be impossible for the School, if the matter were approached

from the right direction, to justify the school uniform policy with regard to another pupil adopting the same position as the claimant.

C. Guidance

89. I agree with Brooke LJ on the need for teachers and governors to be given authoritative written guidance on the handling of human rights issues in schools. There are many issues that

members of the staff, parents and pupils could raise under the Human Rights Act 1998 in respect of most of the Articles in the Convention. Headteachers and governors of all kinds of

schools need help to cope with this additional burden. They need to be made aware of the impact of the 1998 Act on schools. They need clear, constructive and practical advice on how to

anticipate and prepare for problems, how to spot them as and when they arise and how to deal with them properly. It would be a great pity, if through lack of expert guidance, schools were to

find themselves frequently in court having to use valuable time and resources, which would be better spent on improving the education of their pupils.

Lord Justice Scott Baker:

90. I agree with the judgment of Brooke L.J and the declarations that he proposes. In particular I wish to associate myself with his observations about the decision­making structure that

should have been followed and should be followed in similar circumstances in future.

91. I have, however, considerable sympathy with the School and its governors in the predicament that they faced. They did not appreciate that they faced four square an issue that engaged

Article 9 of the ECHR. It is perhaps understandable that a school that can rightly be proud of its contribution to the welfare of members of a multicultural society should have taken the line

that it did, albeit one that on careful analysis has been shown to be erroneous in law.

92. Had the School approached the problem on the basis it should have done, that the claimant had a right under Article 9(1) to manifest her religion, it may very well have concluded that

interference with that right was justified under Article 9(2) and that its uniform policy could thus have been maintained. Regrettably, however, it decided that because the shalwar kameeze

was acceptable for the majority of Muslims the claimant should be required to toe the line.

93. As Brooke L.J. has pointed out, there are two different views in the Muslim community about the appropriate dress for women one, held by very strict Muslims, being that it is mandatory

for women to wear the jilbab. The fact that this view is held by a minority, or even a small minority is in my judgment nothing to the point in considering the issue whether Article 9(1) is

engaged. There is in my view force in the criticism that it is not for school authorities to pick and choose between religious beliefs or shades of religious belief.

94. The United Kingdom is not a secular state; there is no principle of denominational neutrality in our schools. Provision is made for religious education and worship in schools under

Chapter VI of the School Standards and Framework Act 1998. Every shade of religious belief, if genuinely held, is entitled to due consideration under Article 9. What went wrong in this case


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DESCRIZIONE DISPENSA

La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
Il documento riporta il testo della sentenza di una Corte di Appello inglese contro una decisione di una corte amministrativa in merito alla questione della libertà religiosa, dei simboli religiosi; in particolare al diritto di presentarsi a scuola con la jibab islamica.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
Università: Perugia - Unipg
A.A.: 2011-2012

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Costituzionale Avanzato e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Perugia - Unipg o del prof Cerrone Francesco.

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Altri appunti di Diritto costituzionale avanzato

Carta dei diritti fondamentali dell'Unione Europea
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