International Human Rights and Religious Expression

International Human Rights and Religious Expression


International law is a much-ignored essential component of legal studies, especially in Pakistan. Dilemmas faced by religious minorities, even in developed Western states, are on the rise due to the lack of tolerance, mutual respect and protection against direct and indirect discrimination. The trend to cover such acts with legal blankets, through enactments which seem to appear neutral but are intended to target a specific group of people, not only leads to a sense of deprivation and hatred, but also raises questions about the credibility of international safeguards. The rise of Islamophobia in Europe, simultaneously/at par with Europeanism, is the root cause for the widespread intolerance against the Muslim community. To curb the basic internationally safeguarded freedoms, the justification often provided is the idea of ‘living together’ for the integration of citizens, whereas in reality, such forced and specifically targeted measures lead to increased remoteness and a sense of isolation faced by aggrieved persons. Security concerns are also cited as reasons to curb public manifestation of religion, especially in the aftermath of the tragic incident of 9/11, but a particularly indecent act of a few should not unjustly affect the majority of innocent people. Equality in practice, in justice, in fair treatment, and in rights, is the need of the hour and should prevail across borders for people of all religions, castes, creeds, sects and ethnicities.

This paper revolves around the pivotal modern concept of international human rights. In addition to the definition, the author will examine how this fundamental principle has had evolved to its present point of significance. Human rights is a concept that has not evolved over the blink of an eye, it is an idea that has had come to existence and recognition over centuries. Human rights are simply the rights that a person is entitled to, just for being a human being. Subsequently, the freedom of religious expression is an essential right. For better understanding, the right can be broken down into the freedom of religion and its expression. The two rights are closely linked, as the freedom of expression is an important part of the freedom to practice and hold on to one’s religious beliefs. The author will discuss the broader human rights aspect and then the freedom of religious expression with respect to four specific problems:

  1. Firstly, the legality of French/Belgian burqa/veil ban;
  2. Secondly, the legality of the Swiss minarets ban;
  3. Thirdly, whether existing UK laws would allow similar bans (on veils and minarets) to be implemented within the UK or if amendments would be needed;
  4. Lastly, the legality of staging a film festival in the UK/European jurisdictions that would showcase controversial religious films in theater/cinema and advertise them on television channels.

It would not be completely wrong to say that international human rights only received global limelight until the 20th century, although their roots can actually be traced back to ancient times when a person used to be entitled to some rights and protection for being a member of a certain tribe, race, religion, family or community. Our ancestors had an important role in developing the foundations of modern human rights principles. These include instruments such as the first known codes of conduct, the Law of Tehut;[1] the first written law codes, the Code(s) of Hammurabi;[2] the world’s first human rights charter, the Cyrus Cylinder which included the freedom to worship;[3] the first introductory textbook of legal institutions, the Institute of Gaius;[4] the first known written Constitution of the first known modern nation-state, the Charter of Madinah[5] which included the freedom to choose and practice one’s own religion; the first known English Coronation Charter, the Charter of Liberties;[6] the charter which established the supremacy of law over everyone including the King, the Magna Carta;[7] the British Petition of Rights, which demanded not to be imprisoned without cause;[8] the Habeas Corpus Act, which ensured that a detainee received a fair trial, avoiding unlawful detention;[9] the Bill of Rights, which allowed free speech in parliament;[10] the Virginia Statute of Religious Freedom, which ensured that everyone had the right to choose their faith without oppression;[11] the French Declaration of Rights of Man and Citizen, which granted certain significant rights such as people “being born free and remaining free and equal in rights”;[12] the International Committee of Red Cross, was established for rendering medical treatment to wounded soldiers, alongside military medics;[13] and the First Geneva Convention, the Convention for the Amelioration of the Condition of Armies in the Field, for protection of the wounded and immunity to medical and Red Cross staff during war.[14]

The first of formal global instance where protection of rights was safeguarded was in 1919, when world leaders decided to bring an end to World War 1 and 39 countries participated in the Paris Peace Conference leading to the Treaty of Versailles, stressing upon rights of minorities, including the right to liberty, right to life and freedom of religion. The International Labor Organization was founded in 1920 as part of the same Treaty and had formulated Conventions for the protection of rights of workers. The League of Nations Covenant was also signed as part of the same Treaty. Several attempts were made to establish international human rights commitments for the first time and in 1922 the International Federation of Human Rights Leagues was established.[15] But soon afterwards, all previous attempts to safeguard human rights turned out to be in vain and the World War II (Holocaust) broke out, where millions of people had been subjected to brutal and inhuman treatment. In 1945, the United Nations Charter came into existence and was signed by 50 nations. The Commission on Human Rights was developed and assigned to formulate the International Bill of Human Rights. The Bill comprised of the Universal Declaration of Human Rights (UDHR) which came into force in 1948 at UN General Assembly in Paris, which was further divided into the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) including its Optional Protocol.[16] The UDHR is recognized as a customary international law.[17] As part of the League of Nations Covenant, the Permanent Court of International Justice was established in 1922 but was later replaced by the International Court of Justice in 1946.[18]

Inspired by the UDHR, the European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR) were set up in 1953 by the Council of Europe which itself was formed in 1949 to uphold human rights, fundamental freedoms and the rule of law in the aftermath of World War II. In 1998, the UK incorporated these rights and provisions into its domestic law by enacting the Human Rights Act.[19]

Le us take the discussion further towards religious expression and the four specific issues. The principles of human rights are meant to protect rights that are “accessible, effective and enforceable”,[20] which is in respect to the rule of law and the right to an effective remedy. However, depending on the type of right, it may be subjected to legitimate interference in certain situations.

  • The first type of rights are absolute rights, which cannot be subjected to limitations or qualifications in any circumstances, such as the prohibition of torture, inhuman or degrading treatment or the right to hold a religious or non-religious belief.[21]
  • The second type of rights are limited rights, such as the right to liberty,[22] which, for instance, can be taken away in case of conviction from a court of law.
  • The third type of rights are qualified rights, where a right is first adduced, such as the right to manifest one’s religious beliefs, then through the relevant course of law, legal restrictions can be exerted by the state, if the tests of legality, proportionality, necessity and non-discrimination have been met.[23]
  • The fourth type of rights are derogable and non-derogable rights. Such rights can also be categorized on one hand as rights which can lawfully be derogated from during times of national emergency or war or for the protection of the rights of others, and on the other hand as rights that are strictly not allowed to be derogated from.[24] States may derogate from their duties and obligations during times of public emergency under Article 4 of ICCPR. Nonetheless, the freedom of thought, conscience and religion is not amongst the rights which are allowed to be derogated from.

Now let us discuss the two countries in the first issue, France and Belgium, which are neighboring countries in western Europe, and have been amongst the founding members of the Council of Europe and subsequently ratified the ECHR into their domestic laws and became part of the ECHR system as well as the UDHR system by means of adoption and due to the fact that it has been recognized as customary international law.[25][26] Lately, both countries have placed a ban on clothing that hides the identity of an individual in a public place. Banning clothing that hides identity is not as innocent a direction as it seems because of its religious significance for Muslims who in the next 40 years are set to become a majority as compared to the native population of the older Europe region which includes the two countries in question. According to recent population statistics, there are around 6.7 million Muslims residing in France, constituting 10% of France’s total population,[27] and around 0.8 million Muslims in Belgium, constituting 11.3% of Belgium’s total population.[28]

For Muslims, the clothing that hides someone’s identity in public can have several forms, like the niqab or burqa, functioning as a partial/full face/body veil for women. It would be important here to specifically describe and distinguish the different types of religious veils.

  • The first is usually referred to as the hijab, though the term itself actually has a broader meaning, which is to dress up decently and cover up in public so as to avoid unwarranted sexual attention. A headscarf worn by Muslim women in public is also called hijab, which covers the head and neck.
  • The second is known as the niqab, which Muslim women wear in public. It covers the whole face except the area around the eyes.
  • The third type is the burqa, which is single lose piece of cloth, worn by Muslim women in public to covers themselves from head to foot (including the whole face).[29]  

To assess and analyze the legality of the French/Belgian ban on the wearing of clothing that hides someone’s identity in public places, the author would first discuss France’s and Belgium’s international human rights commitments (also applicable to Switzerland and UK, as will be discussed later). As described earlier, the right to freedom of religion is a non-derogable right under Article 4(2) of the ICCPR, but it can be made subject to restrictions laid down in Article 18(3) of the ICCPR, for instance to protect the rights of others or for public safety. International human rights laws allow every individual the right to adopt and manifest or express their religious beliefs. The freedom of thought, conscience, religion and belief under Article 18 of UDHR, defined further under Article 18 of ICCPR,[30] is a fundamental and far-reaching right.[31] It includes freedom of thought in relation to all matters such as the commitment to a religion or belief, whether manifested individually or in a community with others, either in public or privately. The right also includes, subject to certain limitations, the manifestation or demonstration of religious beliefs, by means of teaching, practicing and worshiping. Significant religious protection to minority groups such as the Muslims in European states with native majority has been provided under the Article 27 of ICCPR which states the following,

“…in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group to enjoy their own culture, to profess and practice their own religion, or to use their own language.”[32]

The interpretation of ‘religion’ by UNHRC includes theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. It extends to the right to embrace a religion of ones’ own choice and to also convert to a new religion by leaving one’s previous religion. Parents are also provided with the protection to raise their children in conformity with their own religious affiliations, under Article 18(4), ICCPR. Article 18 also differentiates freedom of thought, conscience, religion or belief from the freedom to manifest a religion/belief. An unconditional protection is bestowed upon these rights, namely, the right to hold opinions without intervention under Article 19(1), ICCPR and the right not to be forced to disclose thoughts about, or faithfulness to, a religion or belief under Articles 17 and 18(2) of the ICCPR. It is also important to note here that the freedom of expression, as mentioned earlier, forms the foundation of religious activities, hence it is used jointly with the right to freedom of thought and assembly. Also important is that thoughts only become culpable if they are expressed (or made public), hence, the private freedom of religion and thought are absolute rights that cannot be restricted.[33] Another important religious and anti-discriminatory safeguard was the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief endorsed by the United Nations General Assembly (UNGA) in 1981.[34] Moreover, inspired by the protection for religious minorities, contained in Article 27, ICCPR, UNGA adopted the Declaration on the Right to Persons Belonging to National or Ethnic, Religious and Linguistic Minorities in 1992, which imposes an obligation on states to safeguard the rights of religious minorities.[35] In addition to these safeguards, another important provision is Article 26 of the ICCPR, which emphasizes on non-discriminating equality for everyone before the law, on grounds of religion, amongst others.[36]

Regional human rights’ bodies/charters like those in the European region contain similar religious protections. For example, Article 9 (right of thought, conscience, religion and belief) of the European Convention on Human Rights (ECHR) contains the same protection as embodied under Article 18 of the ICCPR discussed earlier. Article 9(2) of the ECHR states that the right to manifest one’s religion or belief can only be subjected to restrictions “as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”[37] Moreover, another religious protection for the rights of members of a religious minority, is contained within the Framework Convention for the Protection of National Minorities which came to force in 1998. Article 5(1) of the Framework states the following:

“…the Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage.”

Further, Article 8 of the Framework states that,

“…the Parties undertake to recognize that every person belonging to a national minority has the right to manifest his or her religion or belief and to establish religious institutions, organizations and associations.”

Another European human rights monitoring body, the European Commission against Racism and Intolerance (ECRI) formed in 1993, deals with racism, intolerance on basis of discrimination on the grounds of religion, race, nationality and ethnic origin.[38] It is important to note that Article 8 (the right to respect for private and family life) and Article 10 (freedom of expression) are both important rights and are exercisable jointly with Article 9 and Article 14 (protection of religious minorities against discrimination) for the purposes of religious rights issues, among others.[39] Furthermore, the Organization for Security and Co-operation in Europe (OSCE), formed in 1973, also recognizes the right to freedom of religion. In its conference held at Helsinki, Finland in 1975, the Helsinki Final Act was issued. Principle VII of the Act states the following:

“…the participating States will respect human rights and fundamental freedoms, including the freedom of thought, conscience, religion, or belief, for all without distinction as to race, sex, language or religion.”[40]

Another important religious protection is embedded in Principles 11, 13.7, 16, 59 and 68 of the Concluding Document of Vienna 1989, based on the 1986 meeting between European states. These principles meant that states would respect the fundamental freedom of their citizens and their right to freedom of thought, conscience, religion or belief without discrimination or distinction and that the states would create an atmosphere of religious tolerance among believers of different communities and ensure that minorities were allowed to keep and develop their own culture, including religion.[41] Moreover, the Charter of Paris for a New Europe was adopted in 1990, vide the CSCE (Conference on Security and Co-operation in Europe), a European platform, which affirmed that every individual had the right to freedom of thought, religion, conscience or belief, without discrimination.[42] Additionally, direct/indirect discrimination by employers on the basis of religion was also prohibited by Council Directive 2000/78 of 27 November 2000, regulating ‘equal treatment’ in employment.[43] Moreover, Article 10 of the Charter of Fundamental Rights of the European Union of 7 December 2000, also protects the freedom of thought, conscience and religion.[44]

Lately, Islamic veils have gained significant limelight in the European part of the larger Eurasian supercontinent, due to issues related to the blending of Muslim populations with the native population, threats of terrorism/extremism and limitations on the freedom of religion. In Europe, the drive to disallow Muslim women from wearing veils started off with the advent of the current twenty first century. Even though the European Convention on Human Rights protects the freedom of religion, the European Court of Human Rights has had received an increasing number of case related to discrimination against minorities on religious grounds. French President, Sarkozy, in a public speech on 22 June 2009, stated that, “to protect women from being forced to cover their faces and to uphold France’s secular values” a legislation to ban the veil was necessary. Soon afterwards, wearing full-face veils (face concealment) in public, was subjected to a country wide ban (Article 1 of the Act) for the first time by France on 11 October, 2010 (Law No. 2010-1192) by means of an enactment after the declaration of it being constitutional by the French Constitutional Court on 7 October 2010.[45] It came into force on the 11th of April 2011. Its introduction caused massive riots and hostile reaction from the public, at-least in one of the reported incidents that took place in Trappes, a town outside Paris.[46] Violation of the law carries criminal penalties, including a fine of up to 150 Euros[47] and a requirement to undergo a citizenship course (Article 3).[48] The only exception for when veils would be allowed would be where face concealment/veils have been allowed by legislation, justified for health or professional reasons, or for sporting, artistic or traditional events (Article 2). The ban would also not be effective in places for worship which are open to public, as per the French Constitutional Court while upholding Article 10 of the French Declaration of Rights of Man and Citizen.[49] The French law also prohibits head-covers of religious significance on pictures for identity cards and passports, etc. Subsequent appeals against this law have been successful though.[50] Prior to this nationwide ban, to promote secularism, Laicite,[51] the French Parliament had enacted a law for schools which came into force on 2 September, 2004, and aimed to ban Muslim girls from wearing headscarves, while also targeting Christian children wearing large crucifixes, Jewish children wearing skullcaps and Sikh children wearing turbans, among other religious symbols.[52]

The nationwide ban of 11th April, 2011 had been taken to the European Court of Human Rights by an unnamed devout French Muslim woman of Pakistani origin (S.A.S. – name anonymized at her request) on the same day as the ban came into force i.e. 11th April, 2011. She claimed that she regularly wore a veil covering herself from head to foot and also covering her face, leaving only the area around eyes to be visible, by wearing the burqa and niqab, respectively, “in accordance with her religious faith, culture and personal convictions”, [53] in public and/or in private. She also claimed that she did not cover herself under duress nor did she aim to annoy others with her practice, but that she did so to “feel at inner peace with herself”.[54] In her application, she relied on the breaches of Articles 8, 9, 10 and 14 of the ECHR. On 28 May, 2013, the case had been assigned to the Grand Chamber for a public hearing on 27 November, 2013.[55] The judgment was announced on 1 July, 2014, which held that there had not been any violations of the provisions relied upon by the applicant, which had been claimed to have resulted from the ban by the French government.[56]

The French government’s apparent aim and version behind such law is that since it applied to all sorts of face concealment, it did not specifically discriminate against Islamic veils and merely aimed at normalizing and integrating the lives of citizens.[57]

“I am proud that Belgium would be the first country in Europe which dares to legislate on this sensitive matter… This is a very strong signal being sent to Islamists…”

These were the words of Belgium MP, Denis Ducarme, when his liberal party was drafting the Bill which eventually led to a country-wide ban on the burqa/niqab amongst other face-concealing veils in Belgium.[58] Though the Bill had been passed from the lower House of Parliament in April 2010, Belgium eventually became the second country after France, to have had imposed a country-wide ban on veils, as the law came into force not before the 23rd of July, 2011, and declared constitutional on 6 December, 2012 by the Constitutional Court of Belgium.[59] This law, referred to by its original title i.e. the “Law of 1st June 2011 on introducing a prohibition on wearing clothing that partly or completely conceals the face”,[60] is popularly known as the “burqa ban” because of its primary effect on Muslim women wearing the niqab (full-face covering veil). Article 2 of this law creates a new Article 563 to the Penal Code, stating that those “who appear in publicly accessible places with the face completely or partly covered, and such they are unrecognizable” would be in violation of the law and would be penalized for a criminal offence, including fines of 15 Euros up to 25 Euros and/or imprisonment of up to seven days.[61] Exceptions to this law include instances where the covering of the face has been permitted by local municipalities for carnivals etc. or by labor regulations.[62]  This Act also includes Article 3, allowing municipalities to continue with the imposition of local laws with regards to veils.[63]

The Belgian government’s apparent aim behind such law had been to allow integration between citizens, securing public safety and upholding women rights, under the justification that since the law did not specifically target Islamic face-veils but other full-faced concealments as well, it was not discriminatory in nature.[64]

The Belgian burqa law like the French burqa law was challenged in the Belgium Constitutional Court by two niqab-wearing Muslim women, Ms. Belcacemi and Ms. Oussar, along with some human rights NGOs on the grounds of freedom of religion, legality, non-discrimination, freedom of expression and the right to private life.[65] The Belgian Constitutional Court, like the French Constitutional Court, rejected the application for annulment on 6 December, 2012, with one reservation that the law would not be applied at religious places of worship.[66] On 31 May, 2013, Ms. Belcacemi and Ms. Oussar registered their application with the ECHR, relying on Articles 8, 9, 10 and 14.[67] Subsequently, on 11 July 2017, a Chamber of ECHR held that there had not been any violation of the provisions relied upon by the applicant, resulting from the ban by the Belgian government.[68]

Even before the country-wide ban, full-face veils had been banned in several local municipalities across Belgium in 2008, such as in Pepinster, Dison and Verviers.[69] Maaseik was another municipality in Belgium where the first incident had taken place when a woman had been served with an administrative fine for appearing in public while covering her face by wearing a niqab. The Police Court of Tongeren, on 12 June, 2006, affirmed the local ban against the full-face veil and set precedent for other municipalities to follow.[70] A more recent case took place in the municipality of Etterbeek where a woman, while picking up her children from the school gate, was fined two times, for wearing the niqab in public. The woman challenged it in the Police Court of Brussels while refusing to pay the fines and subsequently won the case, on 26 January, 2011, owing to a breach of Article 9 of ECHR.[71] The wearing of veils had also been banned in the French speaking schools of Belgium on 25 August 2005.[72] The burqa/niqab bans continued to be enforced in other municipalities with the passage of time, such as in Sint-Truden, Antwerp, Ghent, Lebbeke,[73] Charleroi, the City of Brussels, Lier, Mechelen and Turnhout.[74]

The ECtHR received several applications from across Europe for cases relating to prohibitions on Islamic veils. One such instance was the case of Dahlab v Switzerland[75] (ECtHR, 15 February 2001), where the Court disallowed a primary school teacher from wearing an Islamic headscarf at school in order to ensure neutrality in schools as per domestic law and for the protection of religious beliefs of the students and their parents.[76] The joint case concerning four combined applications by Christians dealing with religious discrimination issues by their respective employers was the case of Eweida and Others v The United Kingdom (ECtHR, 15 Jan 2013).[77] Two of the applicants (joint because of the same nature), Ms. Eweida and Ms. Chaplin, had been refused by their respective employers to continue with their jobs until they had removed their visible small crosses chained around the neck, which they wore as a requirement of their faith. The other two applicants, Mr. MacFarlane and Ms. Ladele, believed that homosexual relationships were unacceptable in society. In Ms. Eweida’s case, the Court held that, “…the State (UK) had failed to adequately protect Ms. Eweda’s Article 9 right,” and she was awarded with 30,000 Euros for costs and 2,000 Euros as compensation.[78] Ms. Chaplin’s, Ms. Ladele’s and Mr Macfarlane’s claims were subsequently rejected.[79] In Leyla Sahin v Turkey,[80] the applicant, while being a student of University of Istanbul, had been denied access to written examinations and lectures because she wore a headscarf. She got suspended from the university later on for being a part of a protest against the dress code which had disallowed wearing a headscarf or keeping a beard. The Grand Chamber rejected the claim and held that the prohibition was reasonable since it upheld pluralism and secularism and protected the rights of other women who chose not to wear the headscarf.[81] In Dogru v France[82] & Kervanci v France[83] (ECtHR, 4 December 2008), the applicants had attended physical and sports classes at school while wearing a headscarf, despite a warning from the school’s management citing a secular policy. They continued to wear it, resulting in their expulsion from the school. The Court held that the interference was justified and that, “…the State may limit the freedom to manifest religion.[84] However, the ECtHR’s rulings on such issues are said to be lacking consistency, as seen in Lautsi v Italy[85] (ECtHR, 18 Marh 2011). The applicants claimed that the display of crucifixes in the classrooms of all state schools damaged the secularity principle. The Court held that it was not the case as the symbol was not of an influencing nature because it was just a national symbol displayed in all Italian schools.[86]  This contradiction has been explained by Stijin Smith, a jurist, in the following words:

“Is the logical link to make not that the school (representing the authority of the State towards children in education) finds Christianity so important that it requires each classroom to be equipped with a cross with Jesus Christ on it? And what message does this send to children who are still developing their own (non-) religious views?”[87]

Keeping in view the above discussion on the first issue and in light of the relevant provisions of law and case-law, the author believes that there is a dire need for enactment of laws without direct/indirect discrimination and the implementation of laws to be done in the way in which they had been intended, without bias. There is a need for ‘tolerance’ and ‘mutual respect’. Many European states are aiming to ban the veil, an apparently neutral prohibition but which is targeted at Muslim minorities, in order to curb what it is now known in the West as ‘Islamophobia’, and to strengthen ‘Europeanism’. The bans aiming at promoting the principle of ‘living together’ in turn leaves veil-wearing women to stay in their homes, resulting in lesser social interaction and creating a further divide and sense of hatred, deprivation and discrimination. The author, while understanding the security concerns of states in the aftermath of 9/11, still believes that instead of out-rightly imposing bans, the citizens, especially women who wear the veil, should be guided in terms of security cooperation at security check-points. Veil-wearing women may be required to remove their veils for identification purposes by law enforcement agencies such as the police. The bans on the other hand, as they are now in force, are contradicting the essential elements of democracy, liberty, equality and the respect for human rights.

The second issue concerns Switzerland’s ban on the construction of buildings with minarets with regard to its international human rights commitments. Switzerland lies in the European continent,[88] but interestingly, it is not part of the European Union. On 20th May, 1992, Switzerland had requested to accede to the EU, but was not interested in taking back the request amidst a number of referendums favoring withdrawal of the application.[89] The withdrawal finally took place on 14 June, 2006.[90] But, Switzerland had ratified the European Convention on Human Rights in 1974, which receives hundreds of applications each year from the Swiss.[91] Switzerland is also dedicated to the purpose of the UN and is currently a member of the UN Human Rights Council, for the third time, as well as hosts the UN Human Rights headquarters in Geneva.[92] The ECHR[93] and UN[94] human rights provisions discussed earlier, would thereby also be applicable to Switzerland.

To set off the discussion on the legality of the Swiss ban on ‘minarets’, it would be important to get acquainted with the definition, description and significance of minarets. Minarets are associated with Islamic architecture and considered to be a distinctive feature of a mosque where Muslims gather five times a day to pray. Minarets are the towers from where the muazin calls Muslims to prayer, by reciting the azaan. Minarets are also considered to be landmarks of Islam, sufficiently heightened to be visible from long distances.[95]

The Swiss ban on minarets came into force because of a referendum held on 29 November, 2009, approved by 57.5% of the voters. The proposal to voters had been whether to insert a prohibition on constructing minarets on Swiss territory into the federal Constitution of the Swiss federation. Subsequently, the insertion was made by the inclusion of a new Article 72 (Church and State) Para 3 of the Constitution which now states that, “The building of minarets is prohibited.”[96] Thus, Switzerland became the first European country to limit Muslim religious practices.[97] In addition to the ECHR and UN provisions discussed earlier, Article 15 of the federal Constitution of the Swiss Confederation guarantees religious freedom and conscience to all citizens (Article 1), everyone has the freedom to choose their religion and to profess them alone or in community (Article 2), and everyone has the right to get affiliated to a religious community and follow its religious teachings (Article 3).[98]

The majority vote in favor of the ban was seen by many as surprising because there had been no signs of Islamic militancy and there had only been four mosques with minarets in the whole country. Moreover, Muslims constitute 4.3% of Switzerland’s total population, which is around 400,000.[99] The aim behind the ban on minarets has explained precisely by Jean-Francois Mayer in the following words:

“The most frequently mentioned motive of supporters of the initiative was the wish to give a clear signal against the expansion of Islam and the type of society associated with this religion. As several articles in the first pre-vote editions of this book already demonstrated, the vote’s real objective was not the minaret as such. Rather, the minaret was being turned into a symbol of the issues raised by Islam. The target of the ban was Islam itself, not Muslim immigrants.”[100]

In the days leading to the referendum, on 5 November, 2009, Swiss Peoples’ Party’s Youth Wing President, Benjamin Kasper, during a demonstration at a town, delivered a speech emphasizing the need to stop the expansion of Islam, saying that the ban on minarets would be a way of safeguarding national identity and that “the Swiss guiding culture, based on Christianity, cannot allow itself to be replaced by other cultures.”[101] This act of racism towards a minority group eventually reached the Swiss Federal Tribunal on the application of an NGO, the Foundation against Racism and Semitism (GRA) whereby the Tribunal held that the remarks did not fall under the ambit of racism. Subsequently, in 2013, GRA took the issue to the ECtHR and eventually, on 9 January, 2018, the Swiss government was fined £35,000. [102]

Soon after the ban came into force, it got challenged at the Swiss Federal Supreme Court (SFSC) on the grounds of discrimination and illegality. But the two applications were turned down since the SFSC could not hear applications that resulted from a popular majority vote referendum.[103]

The two applications were subsequently submitted before the European Court of Human Rights. The first application was made by Hafid Ouardiri, a former spokesperson of the Geneva Mosque and a member of the Inter-Knowing Foundation, on 15 December, 2009 (Ouardiri v Switzerland).[104] The second application was made by a foundation and three associations, Swiss Muslim League, Geneva Muslim Community, Neuchatel Muslim Cultural Association and Geneva Muslims’ Organization, on 16 December, 2009 (Ligue des Musulmans de Suisse and Others v Switzerland).[105] The latter applicants relied on Article 9 and 14 of the ECHR, while the former applicants, in addition to Articles 9 and 14, relied on Article 13[106] (lack of effective remedy from a national authority and the constitutional amendment being in breach of the Convention). However, both applications emphasized that the prohibition in question was in breach of the religious freedoms safeguarded by Convention and amounted to discrimination on religious grounds. The Court, on 8 July, 2011, declared the applications to be inadmissible on the grounds of Article 34 which required applicants to manifest before the Court that they had been ‘victims’ of the said violation of the Convention. The applicants failed to reveal to the Court whether the disputed constitutional provision had any effect on them, thus, they were not considered to be direct or indirect victims of the alleged violation of the Convention.[107] The ban has been criticized for its clear bias against Muslims, as stated by the High Commissioner for Human Rights, Navi Pillay, who condemned the discriminatory law in the following words:

“I hesitate to condemn a democratic vote, but I have no hesitation at all in condemning the anti-foreigner scare-mongering that has characterized political campaigns in a number of countries, including Switzerland, which helps produce results like these.”

He further added that a ban of this nature is:

“…discriminatory, deeply divisive and a thoroughly unfortunate step for Switzerland to take, and risks putting the country on a collision course with its international human rights obligations.”[108]

Asma Jahangir, UN Special Rapporteur on the freedom of religion or belief, also conveyed her reservations over the ban, stating the following:

“Indeed, a ban on minarets amounts to an undue restriction of the freedom to manifest one’s religion and constitutes a clear discrimination against members of the Muslim community in the Switzerland.” [109]

The issue becomes more complex if only one religious minority group is targeted specifically. The Swiss government has not placed reservations/limitations, such as those on Islamic minarets, on Sikh, Buddhist or Hindu temples, nor does their construction produce an outcry as is heard when a Muslim centre is in question.[110]

The author believes that bans of such nature create resentment and a sense of deprivation in the targeted community. The Swiss, in the wake of being defensive against 4.3% of their population and with obvious reasons to curb the element of what is now known as ‘Islamization’ in the country, have been caught red-handed in broad daylight by showing to the world the current and continued discriminatory mindset of European states against the minority Muslim population. Furthermore, the ban, now included directly into the Constitution as an addition to the existing ‘State and Church’ provision rather than being part of the building/construction provisions, depicts the fear resulting from the political and economic instability across Europe which has been misdirected against Muslim minorities. The law should be the same for everyone and it should be applied equally, especially in the context of the freedom to manifest one’s religion in public, guaranteed, as discussed earlier, under Articles 9 and 18 of ECHR and UDHR, respectively.

The third issue is whether the UK would allow such prohibitions (on veils and minarets), as imposed by other countries. The Muslim population in England and Wales is 4.7 million, comprising 4.8% of UK’s total population, as per the 2011 census.[111] The United Kingdom of Great Britain and Northern Ireland comprises three distinct legal jurisdictions, England and Wales, Scotland and Northern Ireland. Geographically, Great Britain includes England and Wales, and Scotland.[112] Owing to human rights concerns, the UK in 1951 became signatory to the ECHR but it was not until 1966 that it allowed its citizens the right to petition before the European Court of Human Rights.[113] It was only in 1998 that the ECHR became part of UK’s domestic law, with the enactment of the Human Rights Act (HRA). The freedom of thought, conscience and religion has been protected under Article 9 of HRA 1998, which includes the freedom to change a belief or religion and includes freedom to manifest religion or belief in worship, teaching and practice, either alone or in a community, in private or in public. The freedom, however, is not absolute and can be subjected to limitations.[114] The UK is one of the Charter members of the UN since 1946 and is a permanent member of UNSC, among other countries,[115] and has also ratified its provisions.[116] So the international human rights provisions discussed earlier would also be relevant in UK’s context.

In UK, the controversy over the Islamic veils came to light on 6 October, 2006, when a British MP, Jack Straw, while criticizing the Islamic veil, stated that he felt uncomfortable talking to someone he couldn’t see.[117] Supporting this stance, on the 17th of October, 2010, the then British Prime Minister, Tony Blair, marked the Islamic full-face veil as a “mark of separation”.[118] Major political parties in the Britain also registered their support in favor of a ban on veils. In 2010, the first Britain party to call for a complete ban on burqas was the UK Independence Party, whereas another major political party, the Britain National Party, called for a ban on veils in schools throughout the UK.[119] A major step in this direction was taken by an MP Philp Hollobone, who had presented a Bill in the House of Commons on the 30th of June, 2010 for first hearing, which was the Face Covering (Regulation) Bill 2010-2012,[120] with the purpose of making it illegal for Muslim women to wear burqas/niqabs in public places. The Bill, however, was not successful in passing through Parliament by the end of its relevant session.[121] In the aftermath of the French burqa ban and a similar Bill proposed in the UK, a poll was conducted in 2010 in the UK which concluded that 67% of the poll participants agreed with the notion that the burqa be banned completely.[122]

Similarly, in the context of adopting a ban on minarets in the UK, a survey was conducted on 21 December, 2009 by Angus Reid Public Opinion which concluded that, “Britain would vote to ban minarets,” provided that a referendum took place in the UK as was held in Switzerland.[123] In this regard, permission was sought from the Oxford Central Mosque in January 2008 to transmit the azaan, the call to prayer through speakers, from the minaret, which faced immense resistance in the locality and the application was subsequently requested to be pended, partly also because the mosque was still under construction.[124]

The author would now analyze whether the law in the UK would allow the prohibitions under discussion. UK has two official Churches, the Church of England and the Church of Scotland, which are recognized by law. The Queen is the “Defender of Faith and Supreme Governor” of the Church of England and a member of the Church of Scotland. Key appointments, such as Archbishops, are also made by the Queen.[125] So, unlike France, UK is not a secular state. This can further be elaborated by the result of a survey conducted in 2011, which concluded that 59% of people in the UK were Christians.[126]

In the eighteenth, nineteenth and twentieth centuries, several enactments were made to provide relief to the Roman Catholics, the latest of such Acts being the Roman Catholic Relief Act 1926,[127] which, in the present times, is still said to be discriminating against Roman Catholics since there are several restrictions in effect, including the restriction that a Roman Catholic cannot be a Monarch.[128] There had been several enactments aiming to curb discrimination on various grounds, including the Sex Discrimination Act 1975, the Race Relations Act 1976,[129] Employment Equality (Religion or belief) Regulations 2003 (implementation of Directive 2000/78EC) [130] and the Equality Act 2006[131] Part 2 etc, which had been repealed, merged and replaced by a single law, the Equality Act 2010,[132] which now specifically also covers discrimination on the grounds of religion or belief.

The Equality Act 2006 allowed the formation of Commission for Equality and Human Rights (CEHR), with the aim to strengthen and uphold equality and counter illegal discrimination in aspects which had not precisely been covered by the earlier relevant provisions of law – namely age, sexual orientation, religion or belief, and the preservation of all human rights – and encourage compliance – by public authorities – of rights contained in the Convention with Article 6 of HRA 1998.[133] The Equality Act 2006 also allows the Commission to provide legal assistance and confers this right to individuals under Section 28(12) of the Act to seek assistance from the Commission in relation to a provision of Community law which is discriminating against them on grounds of religion or belief, amongst others.[134]

Religion, or belief, falls under the category of “protected characteristics” under Section 4 of the Equality Act 2010.[135] Religion is defined under Section 10(1) of the Act as “any religion” and can also refer to a “lack of religion”. Belief is defined under Section 10(2) as “any religious or philosophical belief” and includes reference to a “lack of belief”.[136] Direct discrimination and indirect discrimination is prohibited under the Equality Act 2010, Sections 13 and 19 respectively, on grounds of religion or belief, etc.[137] The Act also disallows harassment and victimization through Sections 26 and 27 respectively on grounds of religion or belief, amongst other “protected characteristics”.[138] Section 39 of the 2010 Act prohibits discrimination against an employee by an employer during his or her employment on grounds of religion or belief, amongst others.[139] Similar protection is provided under Section 59, School Standards and Framework Act 1998, for teachers in educational institutes who do not have affiliations with any religion, to continue with their religious beliefs with freedom.[140][141]

The remedies for an affected party under the Equality Act 2010 are contained within Section 119 of the Act, which are mostly civil in nature. In case of a contravention of a provision under tort proceedings by a County Court (Sheriff’s Court in Scotland), remedies can be granted by a High Court or through a claim under judicial review. Damages would be in the form of compensation for the aggrieved party.[142] Additionally, the Act also contains permissions for positive actions under Section 158 for a person believing to be at a disadvantage in relation to “protected characteristics” such as religion or belief, or in need of motivation as an ethnic minority to avail opportunities.[143]

The author believes that the introduction of such bans is only plausible if amendments have been made to the existing strict provisions on the religious protection of minorities, as discussed. Interestingly, one such proposition that is under consideration is regarding the proposal of the Conservative Party to repeal the Human Rights Act 1998 and the establishment of the Commission on Bill of Rights for the introduction of the Bill of Rights and Responsibilities.[144] One of the propositions of the proposal is to “introduce a new parliamentary procedure under which judgments of the ECtHR were to be advisory only.”[145] The proposal has not, however, yet been published. The Commission was set up because of the Coalition Agreement of 2010 to build on ECHR standards and keep it as the minimum standard for the future Bill.[146] This step to repeal a strong, core human rights protection structure under HRA 1998 can be argued to be depicting the apparent intention to let go of the strict protections contained therein and pave way for imposing prohibitions (on manifesting religion in public, etc.).

Case-law can also be discussed to analyze whether the bans on veils and minarets in the UK should be allowed. In the UK generally, there are no prohibitions on manifesting religion publicly, in private, or in community with others (Article 9, HRA 1998), including building minarets or displaying religious symbols such as wearing Islamic veils. In Azmi v Kirklees Metropolitan Borough Council (UK Employment Appeal Tribunal, 20th March 2007),[147] a 24-year-old Muslim teaching assistant at the Headfield Church of England Junior School in Dewsbury, Yorkshire, Aishah Azmi, was suspended for refusing to remove her Islamic veil in the classroom while assisting a male teacher. She appealed her case in the Employment Tribunal at Kirklees Council on the grounds of harassment and discrimination, which she subsequently lost, but still got compensated with 1100 pounds for victimization and injured feelings.[148] In Begum (Otherwise SB), Regina (On the Application of) v Headteacher and Governers of Denbigh High School (UKHL, 22 March 2006),[149] a UK school prohibited a student SB, from wearing a jilbab.[150] Citing the school policy having been passed by Muslim clerics and considering that the shalwar kameez[151] and headscarf would be sufficient, the court rejected her claim and found no breach of the applicant’s reliance on Article 9, HRA 1998.[152] In Watkins Singh, Regina (on the application of) v The Governing Body of Aberdare Girl’s High School and Another (ADMN, 29 July 2008),[153] Ms Singh was not allowed by her school to wear a kara (bracelet/bangle), essentially one of the five outward signs of Sikhism, which Sikhs have to follow by displaying. The court held that the school didn’t take into account their own anti-discriminatory laws with regard to this specific case and subsequently her claim succeeded.[154] In R (On the Application of Playfoot) v Governing Body of Millais School (ADMN, 16 July 2007),[155] the school prohibited the applicant from wearing a purity ring which she wore to depict her devotion to celibacy before marriage. The court held that the school was not in breach of Article 9 of HRA 1998 and that such a manifestation was contrary to the school’s uniform policy which the applicant had agreed to at the time of admission.[156] In Eweida v British Airways plc (EAT, 20 November 2008),[157] Eweida was a Christian who used to wear a cross, which was against the British Airways policy requiring employees to conceal any jewelry worn with uniform. She claimed direct and indirect discrimination on the grounds of religion as well as harassment by the employer. The Employment Tribunal rejected her claim and held that there was no indirect discrimination, citing that this was her personal belief which was not shared by other Christians working with her.[158] With similar facts in the case titled Chaplin v Royal Devon and Exeter NHS Foundation Trust (EET, April 2010), Ms Chaplin was a Christian nurse who was denied wearing a cross while performing her nursing duties and for not following the Trust’s health and safety policy. She was subsequently posted in another department which didn’t have the same uniform restrictions. The Employment Tribunal held that there had not been any religious discrimination and that the uniform policy was not advantageous to others.[159]  In Ladele v London Borough of Islington (CA, 15 December 2015),[160] Ms Ladele being a registrar of marriage, presided over civil weddings. She declined to preside over same-sex civil partnerships, citing them to be contradicting her Christian religious beliefs. She claimed religious discrimination. The court held that she had not been discriminated against, rather she herself was discriminating against same-sex couples by not presiding over their marriages as she was a registrar of marriages and being a public authority had to adhere to the principles of equality by acting in a non-discriminatory manner.[161] In McFarlane v Relate Avon Ltd (CA, 29 April 2010),[162] a person worked as a sex therapist, having accepted the employer’s equal opportunity policy but later realizing that his Christian beliefs were conflicted while providing sex therapy to same-sex couples. He was subsequently dismissed. He appealed on the grounds of religious direct and indirect discrimination, which was rejected by the Employment Tribunal and subsequently by the Employment Appeal Tribunal which had found similarities in its findings with the previous case of Ladele.[163]

The author believes that in pursuance of the common law case decisions discussed above, courts tend to decide individual cases on their merits. However, it can be argued that if such bans on the public manifestation of religious beliefs are introduced in the UK, it is unlikely that the courts would provide any relief to the aggrieved parties by going against any relevant future prohibitory statutory provisions.

For the purpose of the fourth and last issue, discussion will revolve around the UK and other European jurisdictions. The issue is whether there will be any hurdles if a party intends to stage a film festival showcasing controversial religious films at a cinema/theater and advertise it on television.

Showcasing of controversial religious films, or even debates generally, or over-emotive topics such as religion or belief, are naturally provocative. Based on this reason, countries tend to regulate such sensitive areas to curb the chances of violence, injured feelings/sentiments or anger in the masses. It can be said that the chances that a film would contain blasphemous content cannot be ruled out, since the films to be showcased are “controversial” religious films and not just “normal” religious films. For these purposes, the blasphemy laws would have to be analyzed as to whether there would be any hurdles if the films to be showcased included blasphemous content. Blasphemy has been defined in the following words:

“…the malicious or wanton reproach of God, either written or oral. In English law, the offence of speaking disparaging words about God, Jesus Christ, the Bible, or the Book of Common Prayer with the intent to undermine religious beliefs and promote Contempt and hatred for the Church as well as general immorality…”[164]

In the UK, specifically England and Wales, common law offences of “blasphemy” and “blasphemous libel” were abolished under Article 79 of Criminal and Justice Act 2008 with effect from 8 May, 2008,[165] whereas the said provision didn’t repeal the offence of blasphemy in Scotland and Northern Ireland. However, before the repeal of blasphemy laws in parts of the UK, the laws only safeguarded Christianity – the Church of England’s Christianity to be precise.[166] In European jurisdictions, blasphemy laws had been abolished in the Netherlands in 2014, in Iceland in 2015, in Malta in 2016, in France in 2017,[167] and more recently in Denmark, abolishing the 334 year old blasphemy laws which had prohibited disgracing religion like the burning of religious books. The recent abolition of blasphemy laws in European states are on the track to safeguard free speech in relation to religious issues,[168] whereas there are many European states which continue to keep intact the laws on religious insult or blasphemy, including Austria, Cyprus, Canada, Germany, Finland, Ireland, Greece, Kazakhstan, Italy, Poland, Liechtenstein, Portugal, Poland, San Marino, the Russian Federation, Spain, Turkey, Switzerland, the United Kingdom (Scotland and Northern Ireland) and the Vatican City.[169]

Prosecution on grounds of blasphemy has been very rare in these jurisdictions, except for a few instances, such as the issue that arose in Denmark when a man burnt the Holy Quran, filmed himself doing it and posted the recorded video on social media. It breached the Danish Criminal Code Clause 140 which allowed imprisonment or fine for insulting religious books, etc. but, the prosecution was withdrawn as blasphemy laws had been repealed. Prior to this incident, in 2006 a newspaper, Jyllands-Posten posted several editorial cartoons on 30 December, 2005, depicting Prophet Muhammad (peace be upon him). However, the prosecution, on the basis of finding no criminal offence, discontinued the investigation.[170]

In the UK, there has not been any prosecution, public in nature, on the basis of blasphemy since 1922 (R v Gott).[171] In R (Green) v City of Westminster Magistrates’ Court (ADMN, 5 Dec 2007),[172] however, there was a failed attempt to seek private prosecution against the BBC and theatrical producer of the play Jerry Springer: The Opera for blasphemous libel. The court held that the claim was against the Theatres Act 1968. The application was also rejected under judicial review and it was held that theaters and broadcasters were exempt from blasphemy laws.[173] In a case at the European Court of Human Rights, Wingrove v UK (ECtHR, 25 Nov 1996), an applicant’s video titled Visions of Ecstasy had been declined distribution certification on the basis of breach of blasphemy laws but declining it was held not to be in a breach of Article 10, ECHR.[174][175] In Otto-preminger-Institut v. Austria (ECtHR, 20 Sep 1994), the applicant’s institute managed a cinema and intended to show a video targeted at injuring the religious sentiments of the Roman Catholic religion. It was subsequently banned under Austrian laws. The court held that such a ban was not contrary to Article 10 of ECHR, citing its subsection 2 which emphasized on the obligation to avoid expressions which could be offensive to some, hence infringing their rights. This is a significant case where the court had to analyse the relationship between Articles 9 and 10 of ECHR. The court held that the banning of the film was pursuant to Austrian law for the protection of the rights of others, mainly the protection of freedom of religion.[176] In I.A. v. Turkey (ECtHR, 13 Sep, 2005), the applicant had violated the Turkish blasphemy law “against God, the Religion, the Prophet and the Holy Book” by publishing a controversial novel. The court held that there had not been a violation of Article 10 of ECHR and that Turkish law had a rightful aim to convict him to protect the rights of others, including the rights of a religious nature.[177] In Sunday Times (No.1) v. The United Kingdom (ECtHR, 26 Apr 1979),[178] the court held that there had been a breach of Article 10 on the grounds of prohibition on publication regarding a certain medicine and the litigation surrounding it.[179] More recently, there has been an instance where the Digital Cinema Media (DCM) has prohibited a Church of England advertisement from being depicted in certain cinema houses.[180]

International and national laws with respect to showcasing or broadcasting/staging such material would have to be discussed in order to reach a conclusion as to whether the decisions can be challenged.

Articles 19 of UDHR states the following:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”[181]

Article 19 of ICCPR contains a similar provision which has been further elaborated in the following words:

“Everyone shall have the right to hold opinions without interference” (19.1) and that “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” (19.2).

But, this freedom can be subjected to restrictions on the following grounds:

“Respect of the rights or reputations of other” or “for the protection of national security or of public order, or of public health or morals.” (19.3).[182]

However, it can be argued that in certain circumstances, the rights contained within Article 19 can conflict with those under Article 18 of UDHR and ICCPR. A significant provision in relation to religious discrimination leading to incitement is contained under Article 20 of the ICCPR which states that, “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” (20.2).[183]

Similar provisions are also contained under Article 10 of ECHR which states the following:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises” (10.1) but the freedom can be subjected to restrictions on grounds of “national security, territorial integrity or public safety” (10.2).[184]

Article 10 of HRA 1998 has the same text for the provisions contained in Article 10 of ECHR[185] as well.

In the UK, films/videos are very strictly scrutinized as compared to other Western countries. This is because every film being showcased in cinema or digital media has to pass through the British Board of Film Classification[186] (formerly British Board of Film Censorship) which has the duty to standardize content to meet its rules which may include age-related guidelines, or editing or censoring the material. BBFC is not a governmental authority. The national government enacts laws to prescribe responsibilities. Interestingly, the respective local councils have the final authority to allow cinemas to showcase films.[187] The task of film and video regulations in relation to classifications has moved from the Home Office to the Department of Culture, Media and Sport (DCMS)[188] since June 2001. DCMS has made efforts to merge the broadcasting of media, video and film under one regulatory authority, OFCOM, which is now the communications regulator in the UK, regulating Television, radio, etc.[189] It works under several Acts of Parliament but the most significant is the Communications Act 2003 which sets out its duties and responsibilities as a regulator. In addition to following OFCOM,[190] broadcasters would also need to meet the requirements of the UK Code of Broadcast Advertising (BCAP Code)[191] which stem from the Broadcast Committee of Advertising Practice (BCAP). There also exists an independent advertising regulator, the Advertising Standard Authority (ASA), which regulates media’s adherence to the Committee of Advertising Practice’s (CAP) advertising codes.[192] Both OFCOM and ASA share the task of broadcast advertising. They formed a co-regulatory partnership in 2004. The ASA is now responsible for supervising the adherence to the Code in day-to-day routine matters but can forward the broadcasters to OFCOM if any further action is required.[193] The Independent Television Commission[194] and the Broadcasting Standards Commission[195] were dissolved and replaced by OFCOM in 2003. Additionally, film, TV and other forms of media are represented by the British Screen Advisory Council (BSAC)[196] while broadcasting regulations, with regard to private television, are governed by the Broadcasting Act 1996.[197] Additionally, a “non-theatrical” film licence would be required in order to display a film in public, other than in a cinema. If the tickets are to be charged, then the type of licence required would be “premises licencing”. “Film copyright licencing” would be required to screen any film outside of home.[198] These licences and relevant provisions are supervised by the Independent Cinema Office which governs cinemas, film festivals and exhibitors.[199]

The Communications Act 2003, under Section 368F(4)(b), prohibits in an on-demand TV program, advertisements which include or promote discrimination on the grounds of religion or belief.[200] Furthermore, CAP has clearly stated that the advertisers should take caution with reference to religion as it could amount to serious offences with regard to the concerned faith. CAP provides guidance to advertisers to use religious language or imagery cautiously so that an advertisement is not disrespectful in nature. Not being careful when non-Christian faiths are the subject and not treating them more sensitively might cause major offences. Care needs to be taken in relation to the illustration of sacred elements of a religion, depiction of sexualized religious pictures, and the timing and specific place of advertising.[201] Similarly, ASA also provides guidance on the matter that “the Codes emphasize the care that advertisers should take to avoid causing offence on the grounds of race, religion, gender, sexual orientation, disability or age. Significantly, however the Code also states that an ad may be distasteful without it actually breaking the rules”[202] Furthermore, the BCAP Code also provides additional detailed guidance on religious advertisements under its Section 15, “Faith, religion and equivalent systems of belief,” which applies to “advertisements, about any matter, by or on behalf of bodies that are wholly or mainly concerned with religion, faith or other systems of belief.”[203]

Importantly, ASA also provides direction as to whether the TV channels that have not been willing to carry advertisements can be challenged legally:

“In terms of advertiser being refused space to run its ad, that decision is entirely at the discretion of the owner of the media space in which the ad is due to run. The ASA cannot intervene.”[204]

The author believes that both the staging of controversial religious films and their advertisement on TV would be troublesome. In the wake of religious awareness and rigorous competition, TV channels tend to be more conscious about their reputation. Depiction of such material can cause an uprising in the concerned religion’s followers, in addition to breaching the relevant codes and provisions covering broadcasting and films.




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[2] By King Hammurabi of Babylon in around 1792-1750 BC included the ‘eye for an eye’ principle amongst 282 other laws, Alice C. Linsley, Ancient Moral Codes, Ethics Forum <>
[3] By Cyrus the Great, the first ruler of ancient Persia in around 539 BC, The Cyrus Cylinder and Ancient Persia: A New Beginning for the Middle East, John Curtis and Neil McGregor, British Museum Press
[4] By Roman jurist, Gaius, in around AD 170, also established the difference between jus civile (local laws) and jus gentium (international laws), < >
[5] By Prophet Muhammad (P.B.U.H), the last Messenger of Allah (S.W.T) and the founder of Islam, for the multi-religious population of Madinah, establishing equal rights and responsibilities for every citizen, amongst many other significant principles and safeguards < >
[6] By King Henry 1 in the year 1100, provided freedom to the Church of England and abolished all evil customs, British Library < >
[7] The Great Charter was established by King John in 1215 also granted the right to free trial  and justice for all free men, British Library < >
[8] Initiated by Sir Edward Coke during reign of King Charles 1 in 1628 demanded not to allow soldiers from housing in private residences < >
[9] By British parliament during the reign of King Charles II in 1679 after the English Civil War  < >
[10] By British parliament in 1689, also disallowed hurdles in due course of justice
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[11] Drafted by Sir Thomas Jefferson in 1786, was adapted by Virginia, USA                                                                                      < >
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[13] By efforts of Henry Dunant in the aftermath of Battle of Solferino in 1863 <>
[14] <>
[15] Signed in 1864 by several European states,  Human rights timeline<>
[16] Guide to International Human Rights Practice, Edited by Hurst Hannum, 2nd Edition, University of Pennsylvania Press
[17] Leah Levin, Human Rights Questions and Answers, UNESCO, 5th Edition, UNESCO Publishing
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[19] The British Institute of Human Rights < >
[20] ICCPR Human Rights Committee
[21] Article 3, ECHR; Article 7, ICCPR
[22] Article 5, ECHR
[23] Test of proportionality, ICCPR
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[59] Belgian Law No. 145/2012  < >
[60] English translation of Belgian law text (in Dutch language) <>
[61] < >
[62] The Experiences of Face Veil Wearers in Europe and the Law, edited by Eva Brems, Cambridge University Press
[63] Uncovering French and Belgian Face Covering Bans, Journal of Law, Religion & State 2 [2013], Eva Brems, Jogchum Vrielink and Saila Ouald Chaib, Martinus Nijhoff Publishers
[64] < >
[65] Law No. 145/2012 < >
[66] < >
[67] ECHR judgement, ECHR 241 (2017) < >
[68] Ibid.
[69] < >
[70] The Experiences of Face Veil Wearers in Europe and the Law, edited by Eva Brems, Cambridge University Press
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The views expressed in this article are those of the author and do not necessarily represent the views of or any other organization with which he might be associated.

Muhammad Abdullah Saeed

Author: Muhammad Abdullah Saeed

The writer is an Islamabad-based lawyer, having recently graduated with an LLB (Hons) degree from BPP University, UK and currently pursuing an LLM degree from the University of London. He has worked as a Research Fellow at Courting The Law, sole-authoring the published research paper titled ‘The Complete Guide to Sino-Pak Bilateral Relations (1951-2018)’. He has completed the International Law certification course from the Research Society of International Law Pakistan and the International Maritime Law certification course from Bahria University in collaboration with Dalian Maritime University (China) and has worked as BPP University’s Teaching Assistant to LLB (Hons) first year classes and as a legal intern with a senior Advocate of the Supreme Court of Pakistan. He has keen interest in undertaking research and advocating for various issues in international law, international/national human rights law, international humanitarian law, international relations particularly international treaties, international dispute resolution, diplomacy, aviation and foreign/public policies. He can be reached at [email protected] and tweets @abdullahsaeedch