'In Europe, secularism is optional'

Nonetheless, a close reading of the various arguments presented by the parties to the case, a number of intervening NGOs and Member States and, last but certainly not least, by Judge Giovanni Bonello himself in his concurring opinion, shed valuable light on a number of crucial issues which we often seem to prefer to skirt round or simply ignore. Not least the commonly held myth that “Malta is a secular state”, simply because we say it is via a process of wishful thinking.

Indeed, the Lautsi judgement quite clearly demonstrates that a number of European states, including Malta, Armenia and the Russian Federation, very much wear their non-secularism as a badge of pride. Consequently, in various ways, reading this judgment critically should serve as a good reality check for many a glib opinion columnist.

Our discussions on a host of issues from divorce to censorship to religious education in schools to the opening of the forensic year to the ceremonies marking the beginning of the academic year at university as well as the Independence Day celebrations, should be read in the light of this important case – which provides a useful key to understanding a few fundamental truths about our constitutional and political set-up.

Below are a few key extracts which I have lifted from the judgment and which, I feel, open up a host of issues for possible debate in this country.

Previous rulings from member States’ supreme courts

“The question has been brought before the supreme courts of a number of member States.

In Switzerland the Federal Court has held a communal ordinance prescribing the presence of crucifixes in primary school classrooms to be incompatible with the requirements of confessional neutrality enshrined in the Federal Constitution.

In Germany the Federal Constitutional Court has ruled that a similar Bavarian ordinance was contrary to the principle of the State’s neutrality and difficult to reconcile with the freedom of religion of children who were not Catholics.

In Poland the Ombudsman referred to the Constitutional Court an ordinance of 14 April 1992 issued by the Minister of Education prescribing in particular the possibility of displaying crucifixes in State-school classrooms. The Constitutional Court ruled that the measure was compatible with the freedom of conscience and religion and the principle of the separation of Church and State guaranteed by Article 82 of the Constitution, given that it did not make such display compulsory.

In Spain the High Court of Justice of Castile and Leon, ruling in a case brought by an association militating in favour of secular schooling which had unsuccessfully requested the removal of religious symbols from schools, held that the schools concerned should remove them if they received an explicit request from the parents of a pupil.”

Submissions of governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta and the Republic of San Marino

“They pointed out that there was a huge diversity of Church-State arrangements in Europe and that more than half the population of Europe lived in non-secular States...The position adopted by the (first) Chamber was not an expression of the pluralism manifest in the Convention system, but an expression of the values of a secular State. To extend it to the whole of Europe would represent the “Americanisation” of Europe in that a single and unique rule and a rigid separation of Church and State would be binding on everyone...In their submission, favouring secularism was a political position that, whilst respectable, was not neutral”.

Submissions of the non-governmental organisations International Commission of Jurists, Interights and Human Rights Watch

“They added that, as several supreme courts had held, State neutrality as among religious beliefs was particularly important in the classroom because, school being compulsory, children were vulnerable to indoctrination at school. They went on to reiterate the Court’s finding that, although the Convention did not prevent States from imparting through teaching or education information or knowledge of a religious or philosophical kind, they had to ensure that this was done in an objective, critical and pluralistic manner, and free of any indoctrination. They stressed that the same applied to all functions carried out in the area of education and teaching, including the organisation of the school environment”.

Judge Giovanni Bonello’s strongly-worded Concurring Opinion

“In parallel with freedom of religion, there has evolved in civilised societies a catalogue of noteworthy (often laudable) values cognate to, but different from, freedom of religion, like secularism, pluralism, the separation of Church and State, religious neutrality, religious tolerance.

“All of these represent superior democratic commodities which Contracting States are free to invest in or not to invest in, and many have done just that...

“The Convention has given this Court the remit to enforce freedom of religion and of conscience, but has not empowered it to bully States into secularism or to coerce countries into schemes of religious neutrality. It is for each individual State to choose whether to be secular or not, and whether, and to what extent, to separate Church and governance…

“In Europe, secularism is optional, freedom of religion is not.”