14/07/2005 Nº 18 HOME AFFAIRS ISLAM IN SCHOOLS Alfredo Dagnino Legal Advisor to the Council of State Western democratic societies area facing the challenge of teaching Islam in schools. It is essential to question whether, within a democratic State, a government can actively promote teachings that are incompatible with certain constitutional values and the fundamental rights established in the Constitution, such as respect for the dignity of the individual, in particular the dignity of women, and the legal equality of all members of society. Democratic society is founded on these values and rights. Introduction Recent political changes in Spain have brought the question of religious instruction in schools into the limelight. One of the new Government s first measures was to freeze the implementation of the Quality in Education Act (LOCE) where it
affected the subject of Society, Culture and Religion. What is more, it did so through the scarcely appropriate means of modifying the Royal Decree that established the Act s timetable for implementation. It was thus decided that it would be compulsory for teaching centres to offer religion as a subject, but students would only have to study it if they chose to. Furthermore, students who studied religion would not have to necessarily pass the subject in order to progress to the following year, and applications for grants or access to university would not depend on the results attained in this subject. All of this was done in order to provide sufficient margin to promote a new educational Act which, in its draft goes even further and removes the obligation imposed on teaching centres to offer the religion professed by the immense majority of Spaniards. At the same time, the Government announced measures aimed at facilitating the teaching of Islam in State schools. This appears to be the most urgent educational question now requiring a solution. It is striking that the rights being acknowledged for Islam a minority belief in Spain should at the same time be denied for Catholicism, a belief professed by the immense majority of Spaniards. The situation is a consequence of a form of laicism that seems to have emerged as one of this Government s defining characteristics. This incoherent approach is compounded by a further contradiction. There are aspects of the Islamic doctrine that, in the widespread interpretation accepted in numerous Muslim countries, clearly go against the basic values of Western democratic societies, such as the dignity of individuals and respect for their inalienable and inviolable rights. There are aspects of the Islamic doctrine that, in the widespread interpretation accepted in numerous Muslim countries, clearly go against the basic values of Western democratic societies, such as the dignity of individuals and respect for their inalienable and inviolable rights Proof of Islam s difficulty in fully accepting human rights is provided by the reaction of numerous Muslim countries when the General Assembly of the United Nations adopted the Universal Declaration on Human Rights in 1948. These Muslim nations claimed that the fundamental human right of religious freedom breached Islamic law and was therefore unacceptable. Islamic countries have formulated their own confessional alternatives to this Declaration, but they differ significantly from the Declaration on Human Rights with regard to essential aspects such as religious freedom, apostasy, female genital mutilation, corporal punishment and the triple inequality derived from the alleged superiority of male Muslims over slaves, non-muslims and women. In order to give an accurate idea of the challenge entailed in teaching the Islamic religion in Western democracies, we will highlight just a few aspects of Islamic doctrine, based on widely accepted interpretations: 128
1. Rejection of the principle of religious freedom and consequent punishment of apostasy. 2. The application of corporal punishment and inhumane and degrading treatment in cases such as adultery or petty theft. 3. Lack of consideration for the dignity of women under Islam, including: Physical maltreatment. Acceptance of polygamy. Repudiation of women. The differing value given to men s and women s testimonies in a court of law. Discrimination against sisters and in favour of brothers in questions of inheritance. Discrimination against women when it comes to contracting marriage (prohibition against marrying a non-muslim, which does not apply to a male). Finally, the desire to cater for the demand to teach the Islamic religion is not reciprocated in Muslim countries by any measures aimed at facilitating the teaching of Catholicism or other non-muslim beliefs. In short, we are faced with the delicate problem of weighing up the scope and limits to the right to religious freedom and the specific forms in which this right is manifested, such as religious instruction in schools, when certain interpretations of certain beliefs openly clash with the values on which our democratic systems are based. The desire to cater for the demand to teach the Islam religion is not reciprocated in Muslim countries by any measures aimed at facilitating the teaching of Catholicism or other non-muslim beliefs Scope of the Right to Religious Freedom A) Article 16.1 of the Spanish Constitution acknowledges and guarantees Freedom of ideology, religion and worship with no other restriction on their expression than may be necessary to maintain public order as protected by law. Both types of freedom, ideological and religious, have a negative dimension, in the sense that they delimit an irreducible field of personal self-realization conferring the right of non-interference in individuals ideas and beliefs, and a positive dimension, which recognizes the freedom to express their religion ( agere licere ) based on full immunity from the coercion of the State or of any social group, without suffering any penalty or demerit or any compulsion or interference from the public authorities. B) Article 16.3 of the Spanish constitution enshrines the secular nature of the State, by stating that No religion shall have a State character. Neutrality must be 129
understood as non-identification, preventing religious values or interests from becoming a parameter used to measure the legitimacy or justice of the public authority s regulations or acts, whilst also prohibiting any confusion between State and religious functions. With regard to education, the secular nature of the State means that teaching in State schools must be ideologically neutral, as established by the Constitutional Court. The notion of ideological and religious neutrality should not be understood to be solely applicable to confessional beliefs, but also to laicism, which represents an ideological option in itself. The only restriction placed on the principle of neutrality in State school teaching refers to the duty of the State and the public authorities to apply Article 27.2 of the Spanish Constitution, by which they must educate students to have a respect for democratic principles and basic rights and freedoms, an objective that requires the active promotion of these basic ethical and political values of democratic life. Spain is not a lay state (in the sense of a state based on laicism), but a secular State in which no religion is of State character and in which there can be no discrimination based on religion. The Spanish Constitution recognizes and guarantees religious freedom and freedom of worship and establishes that the State must maintain cooperative relations with the Catholic Church and with other confessions C) Article 16.3 of the Spanish Constitution reflects a favourable view of the religious dimension present in Spanish society and directs that the public authorities must maintain appropriate cooperation relations with the Catholic Church and the other confessions, introducing an idea of secularism or positive laicism, one that acknowledges an historical and sociological reality. Spain is not, therefore, a lay state (in the sense of a state based on laicism), but a secular state in which no religion is of State character and in which there can be no discrimination based on religion. The Spanish Constitution recognizes and guarantees religious freedom and freedom of worship and establishes that the State must maintain cooperative relations with the Catholic Church and with other confessions. The secular nature of the State emerges as the condition and guarantee for the effective exercise of the religious freedom of all. The secular nature of the State means that teaching in State schools must be ideologically neutral, as established by the Constitutional Court. The notion of ideological and religious neutrality should not be understood to be solely applicable to confessional beliefs, but also to laicism This is undoubtedly a balanced way of understanding the relations between the State and the Catholic Church or other religions. It is a move away from the his- 130
torical formulations typical of a confessional State which, like those enshrined in certain previous constitutions (such as those of 1812, 1845 and 1876 and the Fuero de los Españoles of 1945), proclaimed the Catholic religion as the only true faith. However others such as the Republican Constitution of 1931 gave rise to irreversible conflict. The current Constitution is also in agreement with the teachings of the confession (Catholic) professed by the majority of Spaniards regarding religious freedom and relations with secular society, as established on repeated occasions by papal teachings and by the Second Vatican Council. This is not the case with the Islamic religion, which in widely accepted interpretations of doctrine does not agree with the constitutional model of religious freedom and does not condone separation of religion and the State. Restrictions on the Right to Religious Freedom The right to religious freedom has certain limits. This is inherent in any democratic system, irrespective of the fact that it may cause controversy on certain occasions. In fact, the European tradition of fundamental rights necessarily entails certain limits, including those that must be imposed in order to preserve the dignity of the individual. These limits are quite simply indispensable, because we are dealing with the essential principles and values of democratic society. In the case of religious freedom, the limits are expressly reflected in Article 16 of the Spanish Constitution, which refers to the requirement to maintain public order as protected by law. This notion must be interpreted as the legal order of the State, in other words the series of principles and basic values on which the legal system is based and which are indispensable for any democratic society. The believer, whether on an individual or collective basis, cannot seek to violate the fundamental rights of others, which are based on the concept of freedom of belief enshrined in the Constitution. Neither can he or she modify basic constitutional values based on this same guarantee of freedom, and qualify them to a degree that is unsustainable in terms of the very survival of the democratic State and the rule of law. The right to religious freedom has certain limits. The believer, whether on an individual or a collective basis, cannot seek to violate the fundamental rights of others, which are based on the concept of freedom of belief enshrined in the Constitution. Neither can he or she modify basic constitutional values In this respect, recognition of the right and its limitation are two sides to the same coin ensuring the preservation of the democratic system and guaranteeing fundamental rights and freedoms. They cannot be separated. The notion of democratic society is especially important when it comes to judging how to restrict the rights of conscience and religion, which must both be placed at the service of the survival of democratic society itself. It is within this context that we must analyse the problems relating to the acceptance of Islam in Spain. Religious Instruction in State Schools as an Expression of Religious Freedom Religious freedom entails the right of all persons to receive and impart religious teachings and information of all kinds, whether orally, in writing or by any other 131
means; to choose for themselves, and for dependent minors and the incapacitated, both within and outside the school sphere, the religious and moral education that corresponds to their own convictions (Article 2.c, LOLR, the Religious Freedom Act). Religious instruction in schools constitutes a specific form of exercising the freedom of religion and convictions. Article 27.3 of the Spanish Constitution establishes that The public authorities guarantee the right of parents to ensure that their children receive religious and moral instruction in accordance with their own convictions. This right derives from the principle of freedom of teaching enshrined in the Constitution, based on the ultimate objective of ensuring the full development of human personality with due respect for the democratic principles of coexistence and for basic rights and freedoms. The way that Islamic communities in Spain are financed is unclear, whilst the process by which imams are appointed is far from desirable, and the infiltration of radical and fundamentalist groups and their connection with terrorism is a reality As far as the teaching of Islam is concerned, Act No. 26/1992 guarantees students and their parents the students right to receive Muslim religious instruction in State teaching centres and State-assisted private schools, provided that the exercise of this right does not contradict the character of the teaching centre itself. The levels correspond to Nursery Education, Primary Education and Secondary Education (Article 10.1). The responsibility for imparting these teachings is with the faith, not the State (Article 10.4). The teachers must be appointed by the Islamic Community in question, and approved by the Islamic Commission in Spain. The texts used for teaching must also be provided by the Islamic Community, and approved by the Islamic Commission (Articles 10.2 and 3). Another and more controversial question is whether the State should contribute to the financial maintenance of Islamic teaching or not. Act No. 26/1992 contains no mention of direct financing. The way that Islamic communities in Spain are financed is unclear1, whilst the process by which imams are appointed is far from desirable (we might recall the Imam of Fuengirola, who encouraged Muslim men to practice physical violence against their wives), and the infiltration of radical and fundamentalist groups and their connection with terrorism is a reality. In an interview with the newspaper La Razón in September 2004, President of the Association of North African Workers and Immigrants in Spain, Mustafá El Mrabet, declared: The Muslim community must urgently reform Islamic practices in Spain, dignify religious practice and isolate the extremist groups using some of the 270 Spanish Mosques Anarchy reigns supreme in the practice of Islam in Spain, he continued, adding that the aim has to be to clarify the situation and disassociate Islam from terrorism, and to restrict the number of radicals within the Islamic Community in Spain. 1 Although it is impossible to provide a reliable figure, Spain has some 400 places of worship and study, including mosques and oratories, many of them financed by states such as Saudi Arabia, Syria, Iran, Libya and Morocco. A total of 231 Islamic associations appear on the Register of Religious Bodies. 132
Islam, Individual Freedom, Citizenship and Democracy The Islamic cultural world, the only world that belongs to Arabs, cannot accept the modern ideas of individual freedom and citizenship that dominate the Western world. This was not written by the censured Oriana Fallaci, or by any enemy of Islam, or by Samuel Huntington, but by Georges Corm, an expert on Arab political thought and former Minister of Finance in the Lebanon, who cannot be accused of trying to incite prejudice against the Arab world or, in particular, against the Muslim world. If we understand democracy to be a system of organizing political power with peaceful alternatives to the current holders of power made possible through the staging of free and transparent elections, it is difficult to find an Arab country in which democracy is a reality It is no coincidence that the processes of democratization that have been witnessed in recent decades throughout Latin America, East Asia and Eastern Europe have had hardly any echo in the Arab countries. If we understand democracy to be a system of organizing political power with peaceful alternatives to the current holders of power made possible through the staging of free and transparent elections, it is difficult to find an Arab country in which democracy is a reality. Algeria, to a certain extent, is an exception. It is no coincidence that Turkey is the only Muslim country to have adopted democracy as a form of political organization, given its strict application of the principle of secularism. Final Reflections The lines above have no other purpose than to attempt a clear reflection on the current situation and highlight the challenge that Western democratic societies face with regard to the teaching of Islam in State schools, at least when it comes to some of the doctrinal interpretations popular today in many Muslim countries. We cannot remain impassive to the fact that teachings may be imparted and received in State schools that are incompatible with the dignity of individuals, with the protection of their lives and their natural freedoms, with the fundamental equality of all citizens and with the rights and dignity of women We cannot remain impassive to the fact that teachings may be imparted and received in State schools that are incompatible with the dignity of individuals, with the protection of their lives and natural freedoms, with the fundamental equality of all citizens and with the rights and dignity of women. In short, these teachings are incompatible with respect for the inviolable and inalienable rights, values and principles of the individual, which form the foundation of democratic society. The debate that took place within the Congress of the Christian Democratic Union in Germany in December 2004 in Düsseldorf is enlightening in this respect. The meeting concluded with the unanimous approval of a motion entitled For German Interests: Encouraging and Requiring Integration and Combating Islamism. This document raised the issue of the conditions that those wishing 133
to live in Germany should meet, ranging from an acceptance of the country s values and a desire to learn the language, to participation in integration courses. The document even highlighted the need for them to clearly distance themselves from words and acts incited by Islamism, which was labelled a totalitarian ideology. The CDU document was based on the idea that If there is a lack of willingness to integrate, society s capacity for integration is exhausted and parallel societies are established, accompanied by the danger of considerable social tensions, making it more difficult to promote the integration of future generations. According to the CDU, There is no place in our country for those who reject our system of values, our liberal and democratic culture, for those who mock this system or fight against it. Germany requires its citizens of foreign extraction to accept the basic and universal values that derive from the Christian and Western tradition, such as human dignity, justice, solidarity, freedom and equality between men and women. FAES, the Foundation for Social Studies and Analysis, does not necessarily identify with the opinions expressed in the texts it publishes. FAES, Fundación para el Análisis y los Estudios Sociales and the authors. D.L.: M-42391-2004 134