Legal Opinion Analysis by Ahmad Khzaie, Contributor and Tala Karkanawi, Staff Writer

December 16th, 2020

On the fourth of June of 2020, both citizens and residents of the Kingdom of Belgium were revealed to the Constitutional Court’s decision authorizing the interdiction of the display of all religious symbols by users of public higher educational institutions, affirming the rooted attachment to the principle of neutrality. This came into light following a query submitted to the Constitutional Court by the President of the First Instance Court of Brussel, regarding a lawsuit advanced by Muslim, legally capable adult students, questioning the constitutionality of an act taken by a higher education institution. This latter had adopted internal regulations banning any display of religious symbols, invoking the principle of neutrality of education not being affiliated to any religious, political, or philosophical links. 

The Constitutional Court considered that this internal regulation, dictating students’ attire and setting outlines to their freedom of expression – notably that of religious, political and philosophical basis, is not in violation with the dispositions of the Constitution, nor with the stipulations of the European Convention of Human Rights, to both of which legislations and regimentation must adhere. The decision rendered by the constitutional court was in affirmation of a singular act taken by a higher education institution, and not that of a law. The particularity is that the majority of students at higher education institutions are legally, completely, mentally and jurisdictionally capable, in other words, not minors. 

Amidst controversy, certain Belgian universities have deemed it fit to refrain from putting in place the application of this act interdicting religious, political, or philosophical attire, as they consider that the principle of neutrality extends to cover only public institutions and establishments’ display, administration, policies, services and functions; this principle of neutrality does not apply over the users of the aforementioned establishments. 

The role of the Constitutional Court is to examine the constitutionality of an act; this means its legality with respect to constitutional dispositions. In that, the Belgian constitution would very much beg to differ with its nineteenth article on what the Court had ruled; freedom of worship, its public practice and freedom to demonstrate one's opinions on all matters are guaranteed. This disposition is followed directly by a limit to this guarantee, being that offences committed when this freedom is used may be punished.

However, consulting the definition of an offence as to being the transgression of the law, or the breach of a law or a rule that is given by the state, with a foreseen sanction; the display of religious symbols falls in line with liberties accorded by both the constitution and the European Convention of Human Rights of 1953. 

Jurisprudentially, offences in the aforementioned article are interpreted in a manner that includes:

• Being vocal about anti-Semitism

• Bearing arms in the name of religion or political parties

• Not peacefully expressing religious practices

As to what concerns the definition and constitution of an offence, it is simply a breach of a law that is given by the state or the government; it is an illegal act conducted that is punishable by the law. In essence, the Court had not ruled over the constitutionality of a law, but that of an act, that must adhere to a law. Ergo, displaying a religious, political, or philosophical attire or symbol may not constitute an offence, as the latter would be an opposition to a law. Once again, the act in question is not one of legislation, but of internal regalement, that must fall in line with the freedom given by the law on beliefs and their expression.

Admitting the possibility for higher education institutions to conclude internal regulations that contain clauses intruding on the concerned parties’ private lives and choices, especially when it comes to conviction and belief, is an attack on fundamental liberties binding European states through the European Convention of Human Rights. This comes in light of interest as it coincides with the International Day of Human Rights, during which Europe had invested in displaying itself as a hub and a focal point for freedom and dignity. 

Referring to the well renowned jurist, Hans Kelsen—possibly one of the most referenced jurists of modern history; he has artistically illustrated a pyramid portraying the hierarchy of norms, in which the inferior norm must be in conformity with the superior. That given, the block on conventionality is superior to internal legislation. Consequently, internal regulations must be in harmony with internal laws, which must be in accordance with the stipulations of all European directives, ratified international conventions and treaties, and the Constitution. 

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations 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, as stipulates the ninth article of the European Convention of Human Rights, to which Belgium is a signatory. That given, internal regalement must concur with legislation, which must be in accordance with ratified conventions, such as the European Convention of Human Rights – ratified by Belgium in 1955. 

One must ask, is the interdiction of expression not a discriminatory act in itself? 

Additional Protocol 12 of the European Convention of Human Rights in its first article regarding general prohibition of discrimination states that the enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1. 

Given that there are two individuals, one of whom wishes to express his or her beliefs in public, met by another who wishes to suppress his or her convictions, would the public expression by the former weigh pressure on the latter to express (or not) his or her beliefs? This was the question facing the Constitutional Court on which it based its reasoning, justifying its decision by saying that “The Court found legitimate the objective to ensure a totally neutral educational environment in order to protect students who do not wish to make their beliefs visible from the social pressure that might be exerted on them by those who wish to make their beliefs visible”.

Not only is it discriminatory, it poses a question touching the right of education guaranteed by the second article of the First Additional Protocol to the same Convention of 1953.

Applying this certain internal regulation contradicts, not only internal law that must find harmony with higher norms, but also the European Community’s purpose of fighting for religious freedom and an expressive freedom of one's thoughts, religion, and beliefs, framed by the aforementioned more superior norms. 

Wearing a hijab, a cross, a turban, or any other symbol in a higher education institution does not interfere with the level of knowledge the person may possess, nor does it affect the neutrality of the establishment in itself, but only demonstrates the knowledge and distance of that criticising it from meritocracy and equity.

The court’s decision has paved the way to plenty of criticism as its wording and the language used were vague as opposed to what one would anticipate from a constitutional court, which is known as the highest jurisdiction in the land. One would perceive it to provide constitutional interpretations in a just, equitable, and well-reasoned manner. 

One would say dura lex sed lex, the law is hard but it’s the law, notwithstanding the purpose of law remains jus est ars boni et aequi, law is the art of all that is beautiful and equitable.