C Explanatory memorandum by Mr Constantinos
Efstathiou, rapporteur for opinion
1 The legal question
of the compatibility of Sharia law with the European Convention
on Human Rights
1. As Plato said in his Republic, there is no point in talking
about law (I could add the rule of law) or justice unless you place
it in the context of Society. The latter should not be considered
as an abstract concept but rather as a tangible and measurable reality.
2. The protection of human rights and the prevalence of the rule
of law are the pillars of our European society that embraces all
Europeans and is based on democracy and freedom. We aim to be a
“democratic society” where all persons fully enjoy the human rights
and fundamental freedoms which are inherent to their quality as
human beings and share the same common values and principles with
no discrimination based on their race, colour, language, sex, religion,
beliefs, political affiliation, social status, sexual orientation
or other considerations.
3. The universal respect of human rights, democracy and the rule
of law can only be achieved if these values are universally recognised
and if in all our States there are institutions and instruments
to uphold them and ensure their effective implementation.
4. The preamble of the European Convention on Human Rights states
that European countries “have a common heritage of political traditions,
ideals, freedom and the rule of law”, and that they “take the first
steps for the collective enforcement of certain of the rights stated
in the Universal Declaration” which are mentioned, described and
protected in the Convention.
5. In this context, the question whether Sharia Law is compatible
with the European Convention on Human Rights and whether States
Parties can be signatories to the Cairo Declaration on Human Rights
in Islam is a crucial test for the resilience of our European democratic
society and its institutions, as the Cairo Declaration challenges
the foundations of what we call “democratic society” as they are
proclaimed in the Preamble to the Statute of the Council of Europen
(ETS No. 1), according to which individual freedom, political liberty
and the rule of law are the “principles which form the basis of
all genuine democracy”.
As Mr Johan Nissinen, the previous rapporteur for opinion,
concluded in the memorandum he submitted to the committee in April
is no doubt that an extended range of human rights which are enshrined in
the Convention are denied by certain articles of the Cairo Declaration.
The question therefore arises as to whether we can accept, within
our European democratic society, a parallel “informal society”,
which would be based on values and principles that contradict the
essential values and principles whose legitimacy is sourced in the
The excellent and detailed report of Mr Gutiérrez comes to
the same conclusion about the incompatibility of Sharia Law with
the Convention, with very pertinent examples from the United Kingdom,
Western Thrace in Greece and the Russian Federation. I welcome the
fact that the rapporteur underlines the significance of the cases
of the French Territory of Mayotte and Turkey,Note
since these prove
that religion can co-exist with the rule of law and the respect
for human rights. No religion or “tradition” can be offended by
the implementation of the rule of law or the application of human
rights. Such an interpretation has been invalidated by history itself.
2 Beyond the legal
issue, the cultural dimension of the problem
8. The question as to whether
States Parties to the European Convention on Human Rights can be signatories
to the Cairo Declaration does not cover all the issues at stake.
Indeed, in stringent legal terms, there can be no doubt that the
Convention and the commitments it entails are not subject to any
limitations which could result from the provisions of the Cairo
Declaration, as the latter does not generate legal obligations for the
signatories. However, neither this acknowledgement nor the conclusion
that the civil law of member States prevails over Sharia law solves
all the problems.
9. The endorsement of the Cairo Declaration has a clear political
relevance for all its signatory countries. As the vision of the
fundamental human rights which inspires this text is not consistent
with the vision underlying the Convention, the proper implementation
of the latter can (and is most likely to) be hampered in many ways.
10. The European Convention on Human Rights (and in general the
various systems which are intended to protect human rights at regional
or universal level) have a “subsidiary role” to the protection of
human rights under the national legal orders. If the endorsement
of the Cairo Declaration reflects (as it seems logical to assume)
the prevailing legal traditions of a country, there is a high risk
that not only national policy makers (governments and national assemblies)
and public administration (including police) but also the judiciary
could have a distorted perception of what the Convention indeed
requires of them and (willing or unconscious) resistance to its
proper implementation would be a logical consequence.
11. In addition, the weight of the prevailing legal culture will
also influence the training of lawyers (including through university
studies); not to mention the social pressure that those “victims”
of the violation of rights guaranteed by the Convention could suffer
if their prejudice is justified by the Sharia: the “chilling effect”
is evident to me.
12. In other terms, the protection of human rights is not only
a legal issue, but also a cultural one. I would be tempted to say
that it is primarily a cultural issue. The Convention is the result
of centuries of nurturing the meaning of human dignity, equality
and freedom. We have to act in order to consolidate this shared
culture on human rights in and beyond Europe. The shared principles
and rules enshrined in the Convention are not to be seen as a kind
of external imposition: they have been chosen by the family of European
democratic States as the foundations of our European societies;
they need to be deeply understood, fully endorsed and be rooted in
our daily lives; policy and decision makers, and indeed all members
of the national communities, shall have no doubts that they are
inherent to a democratic society because we consider that they are
inherent to humanity.
13. We are speaking here of the
basis on which the Council of Europe is built: these pillars are
not negotiable and we shall stand for our common values together,
with no hesitations. There can be no derogation from the implementation
of human rights nor any challenge to the primacy of the rule of
law. Otherwise there can be no future for Europe.
As the French Declaration of the Rights of Man and of the
Citizen (1789) says in its opening statement: “The ignorance, the
oblivion or the contempt of Human Rights are the only causes of
public misfortunes …” Our society needs to be based on, and must
function with, institutions created only by law; unless there is
a firm organisation of justice, there will be “no arts, no letters,
no society and, which is worst of all, continual fear”.Note
That is the end of civilisation as we know
15. States that are members of the Council of Europe and Parties
to the Convention shall not maintain equivocal positions. It is
necessary to call them not only to keep their distance from the
Cairo Declaration as it stands now, but even to act in order to
avoid that Islam as a faith could generate an insidious Islamism.
16. In this respect, I value that the draft resolution submitted
by the Committee on Legal Affairs and Human Rights, in its paragraph
11, calls on Council of Europe member States and those whose parliaments
enjoy partner for democracy status with the Assembly not only to
“accept that the Convention is an international instrument binding
on all Council of Europe member States” but also to “bolster pluralism,
tolerance and a spirit of openness by proactive measures, taken
by governments, civil society and religious communities, whilst respecting
common values as reflected in the European Convention on Human Rights”.
17. To conclude, I fully back the excellent draft resolution.
I would just suggest adding a new sub-paragraph to paragraph 11
of the draft resolution.