Home > Immigration and Asylum, Law, Culture and Religion, Race > The Swiss Minaret Ban: Key Points

The Swiss Minaret Ban: Key Points

8 days ago, the news was announced that over 57% of Swiss people voting in a referendum had chosen to amend Article 72 of the Swiss Constitution. All but 4 of Switzerland’s cantons voted in favour. The Article currently reads:

(1) The regulation of the relationship between church and state is a cantonal matter.

(2) Within the limits of their competencies, the Federation and the Cantons may take measures to maintain public peace between members of the various religious communities.

As a result of the referendum, a third clause is automatically added to the constitution, to incorporate the sentence: ‘The construction of minarets is forbidden’.The vote was in response to a proposal by the right-wing anti-immigrant Swiss People’s Party (SVP) – the country’s largest party – and the ultra-conservative Federal Democratic Union. Proponents of the ban argued that minarets bring Islam out into the public domain and symbolise a demand from political power which asserts a demand for religious freedom at the expense of the rights of others. The SVP’s campaign rhetoric sought to link the construction of minarets to an undesirable ‘creeping Islamisation’ of Switzerland; for instance a controversial poster promoting the amendment depicts the dark figure of a woman in a burkha next to minarets rising like rockets out of the Swiss flag (a debate about whether these posters defamed Islam, were racist, or were a legitimate exercise of free speech grew up as an offshoot of the minaret debacle, with some cities banning the posters while others allowed them to be displayed. The Federal Commission Against Racism published this opinion, in which it noted the destructive impact of the posters’ reliance on negative stereotyping of Muslims). The sponsors claimed that“[t]he minaret is a sign of political power and demand, comparable with whole-body covering by the burqa, tolerance of forced marriage and genital mutilation of girls”. Some Swiss women appear to have found these analogies especially persuasive. The prominent Swiss feminist Julia Onken said in the lead-up to the referendum that “[m]osques are male houses, minarets are male power symbols…The building of minarets is also a visible signal of the state’s acceptance of the oppression of women.”

Some 350,000 Muslims live in Switzerland, which has a population of over 7 million. The majority come from the Balkans. At present Switzerland has four mosques with minarets and none of these broadcasts the call to prayer. Two more were planned for construction, but in any event, Swiss planning laws – insofar as they regulated the types of structure which could be built in old cities – tended to limit the scope for the construction of minarets. The construction of minarets is in itself a less important issue than the effect which the political discourse around a Swiss Islam, which grew up around this referendum has had on the politics of Swiss Muslims’ place in the nation-state. In this respect, the Swiss Minister for Justice has referred to the minaret campaign as a ‘proxy war’. One leading Swiss imam has claimed that the ban will fuel religious extremism in Switzerland, damage integration efforts and harm Swiss relations with Muslim countries. His concerns have been echoed by others. Geneva’s main mosque was vandalised in the run-up to the vote. The Swiss also fear economic backlash in the form of boycotts of Swiss goods and the reluctance of companies from majority Muslim countries to do business in Switzerland.

A number of organisations – including the OHCHR – have expressed their dismay that the vote appears to reflect a Swiss movement away from values of tolerance and pluralism at the very moment when, as H.A. Hellyer notes here, European Muslims are visibly beginning to engage with the content of those values at a political level. This was the line which the Swiss government adopted in its failed bid to convince voters to reject the amendment. The Justice Minister in particular had argued that “a ban would clearly run counter to the basic values of the Swiss state, and would be incompatible with the fundamental rights and principles laid down in the constitution…” Arguing that a ban which targeted only one religious group was inherently discriminatory, she insisted that “[w]e demand that the Muslims of Switzerland should respect our system of law and society…If we expect this of Muslims, we must also treat them in the same way as everyone else living in the country as regards religious freedom.” Politicians will be conscious of a growing problem with institutional and popular racism in Switzerland: in September the European Commission Against Racism and Intolerance documented Muslim migrants’ experience of direct racial discrimination.

Although it has promised to respect the outcome of the referendum, such that no new minarets will be built in Switzerland, the government has  sought to assure Swiss Muslims that a ban on minarets was “not a rejection of the Muslim community, religion or culture” and that Muslims were free to practice their religion in Switzerland as before. Of course, the SVP has also said that Muslims remain free to practice their religion,but insists that Muslim religious symbols will not be allowed to make their mark on the public sphere. Speaking in the aftermath of the referendum Oskar Freysinger of the SVP said: ‘I would like to say to all the Muslims listening that this will in no way change their right to practise their religion, to pray or to gather [in mosques],” he said. “However, society wants to put a safeguard on the political-legal wing of Islam, for which there is no separation between church and state’. This, interestingly, is also the line taken by Ayaan Hirsi Ali.

The Swiss government has characterised the outcome of the vote as the product of fear and misinformation, and has committed itself to tackle those failings in the Swiss political process. This is a point picked up by Amnesty International, which criticises the failure of Swiss civil society organisations to mount an effective campaign against the ban.The Swiss Muslim academic Tariq Ramadan has argued for Muslims to participate more visibly in party politics and to form alliances with sympathetic political representatives in order to cultivate a stronger voice in the Swiss public sphere. The Swiss Green Party, which strongly opposed the ban, favours the legal route to resolution of this dispute and now proposes to take the issue to the European Court of Human Rights in Strasbourg. It is also arguable that the construction of minarets falls within the scope of Article 15 of the Swiss Constitution, which protects freedom of religion. The SVP insist that a minaret ban would not violate Muslims’ freedom of religion, since several mosques in Switzerland and elsewhere do not have minarets. Amnesty International have argued that the ban constitutes an undue interference with religious freedom as protected by Article 9 ECHR and Article 18 ICCPR and discriminates against Muslims on religious grounds, in contravention of Article 14 ECHR and Article 2 ICCPR. Anne Peters has a comprehensive post about how the ban will fit with Swiss and international law at EJIL Talk here.

  1. pmcauliffe
    December 7, 2009 at 1:21 pm

    One can only regret the minaret ban. I agree with the Swiss Justice Minister who that “a ban would clearly run counter to the basic values of the Swiss state, and would be incompatible with the fundamental rights and principles laid down in the constitution”, though this smacks somewhat of closing the stable door after the horse has bolted. It is objectionable because it impedes integration and was motivated in significant (but not invarable) part by Islamophobia and xenophobia. To the extent that church towers can stand and minarets cannot, there is a strong case for discrimination based on religon which should fall foul of the ECHR. What is interesting is Anne Peters examination of the likely result of the ECHR decision on the separate issue of freedom of religon. I’ll quote the piece on freedom of religon at length:

    “The scope of the right to exercise one’s religion has usually been construed broadly by the Strasbourg court. Although not every act motivated or inspired by a religion or belief is protected, not only those activities or instruments that are strictly necessary for the exercise of belief enjoy protection. For instance, a state making it impossible for eating meat from animals slaughtered according to the religious prescriptions of Jewish orthodox communities interferes with the freedom of those communities to exercise their religion. In various cases, governmental prohibitions to construct or to rent buildings for religious use, licensing schemes and the like have been qualified as an interference with the fundamental right to freedom of religion. It is therefore immaterial whether a Muslim cult can also be practiced also without minarets, as long as Muslims themselves consider the minaret to form part of the expression of their religious beliefs.”

    It is difficult to see how minarets (which, as far as I am aware, were not used for their purpose of calling believers to prayer on account of strict Swiss noise pollution rules) which aren’t required parts of a mosque (in th absence of a Muslim Vatican or central authority, uniformity of opinion within the ulema is hard to find but the news articles I have read suggest they are not a required part of a mosque or Muslim community) could be considered anything more than tangential to Muslim worship. Indeed, many cities do not have any minarets. Predictably, as Mairead notes, Amnesty International have argued that the ban constitutes an undue interference with religious freedom, as it so often does obviating any duty to seriously consider deeply the meaning of the rights it professes to uphold. If Peters is correct, and I expect she is, Strasbourg will agree. This is of concern because the Court slowly but surely exchanging rigorous conceptions of fundamental rights for enforcing what the it believes to be morally good or socially egalitarian. The minarets ban may be discriminatory as as such offers fertile ground for challenge, but to say it is an interference with freedom to practice religon, even in a limited sense, makes a mockery of the concept

    As Peters notes, “the freedom of religion as guaranteed under the ECHR contains a strong component of religious neutrality, impartiality, and tolerance” but reversing the democratic will of the Swiss to prevent building of something utterly tangential and non-essential to worship as minarets goes far beyond that. To take a hypothesis remomved from the senstive area of Muslim-State relations in Europe, if a Muslim state (democratically or otherwise) banned the erection of churches, it would be a breach of their Christian population’s right to religious freedom. If it instead merely banned giant crucifixes, Marian shrines or grottos in urban areas, would we be up in arms about an interference about deprivations of freedom of religion (or conscience?).

    The minaret ban is discriminatory. This is the ground on which it is best opposed.

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