Pierre Cloutier ll.m & David Rand
2021-02-26, Minor correction 2022-04-22
The Great Little City of Geneva
The city of Geneva, tucked away in the westernmost corner of Switzerland, where the Rhône exits Lake Geneva, is not very large. Its population is only about 200,000, which is considerably less than half that of even Quebec City. Nevertheless, it is the largest city in Romandy or Suisse Romande, the French-speaking part of the country, and capital of the Republic and Canton of Geneva (RCG) which has a little more than half a million inhabitants.
More importantly, Geneva is a major centre for finance and diplomacy and the home of numerous international organizations, including the headquarters of many agencies of the United Nations and the Red Cross. It is also the place where the Geneva Conventions were signed, the principal one in 1949, a set of major international agreements on the humanitarian treatment of prisoners and non-combatants during wartime. The city has a long tradition of being a place of refuge and tolerance, having offered refuge to persecuted protestants in the 16th century and to Voltaire in the 18th, for example. Geneva is considered to be the international capital of human rights.
On February 13th 2021, Pierre Cloutier, AFT member and director, gave an on-line talk for AFT entitled “The Secularism Law of the Republic and Canton of Geneva.” This legislation, known as the Loi sur la laïcité de l’État (LLE) was adopted in 2018 and came into effect on March 9th 2019.
In the Swiss Confederation, of which the RCG is of course a member, the constitution (Article 3) specifies that cantons have sovereign jurisdiction in areas which are not explicitly attributed to the federal government. In other words, residual powers belong to the Cantons—unlike in Canada where the federal government retains residual powers not explicitly attributed to provinces. Additionally, Article 72 of the Swiss constitution specifies that relations between religion and State are under the jurisdiction of the cantons. Furthermore, the constitution of the Republic and Canton of Geneva declares that the State is secular, that it observes religious neutrality, and that it neither pays the salaries of religious personnel nor subsidizes any religious activity.
The Geneva Secularism Law
The Secularism law or LLE repeats (in Article 3.1) these secular constitutional provisions and extends them in several ways. In particular:
- In the provision of public services, it forbids discrimination on the basis of religious convictions or lack thereof, and it forbids all forms of proselytism. (Article 3.2)
- It specifies that ministers of State, municipal council executives and judges must observe religious neutrality in the performance of their duties and must refrain from indicating their religious affiliation, whether by words or by visible symbols, when in contact with the public. (Article 3.3)
- It specifies that legislative members and municipal councillors must refrain from indicating their religious affiliation by visible symbols when sitting in plenary session. (Article 3.4)
- It specifies that agents of the State, the Canton or a municipality must observe religious neutrality in the performance of their duties and must refrain from indicating their religious affiliation, whether by words or by visible symbols, when in contact with the public. (Article 3.5)
- It specifies that religious activities must take place in private or, if they occur in public, are subject to the same restrictions as non-religious public activities. (Article 6)
- In order to prevent serious disturbances to public order, the Council of ministers of State may restrict or ban, for a limited period, the wearing of ostentatious religious symbols in public, in public buildings, in schools and universities. (Article 7.1)
- It specifies that the face must be visible in civil services, public buildings and before the courts. (Article 7.2)
The similarities between the Geneva law and Quebec Bill 21 are obvious, as they both declare State secularism and put restrictions on the wearing of religious symbols by civil servants on duty and on the wearing of face-coverings by both civil servants and users of civil services. However, the Geneva law is clearly more extensive. In particular, it bans religious symbols for all civil servants, whereas Bill 21 only bans them for civil servants in positions of authority. However, the wording of the Geneva law qualifies the ban on wearing religious symbols, while simultaneously providing a very brief explanation of that ban, when it specifies that it applies only when State agents are in contact with the public.
Challenge to the Geneva Law
Like Quebec Bill 21, the Geneva law is the target of a court challenge. Furthermore, just as in Quebec, among the opponents are Islamists and the objective allies of Islamism (i.e. anti-Enlightenment pseudo-leftists). For example, Hani Ramadan—grandson of the founder of the Muslim Brotherhood, Hassan al-Banna, and brother of the infamous Tariq Ramadan—is a vocal opponent of the Geneva Law.
Just as the Geneva Law is a few months older than Quebec Bill 21, the court challenge to it is a little further along. A decision has already been rendered (in November 2019) by the first-level court which is the Constitutional Chamber of the Court of Justice of the Republic and Canton of Geneva. The plaintiffs are an association of Swiss Muslims whose president is David Imhof. The association contested most of the provisions summarized above. The Court rejected all challenges except the challenge to Article 3.4 which deals with legislative members and municipal councillors whom the Court ruled to be representatives of the people and not agents of the State. The Court therefore considered Article 3.4 to be unconstitutional and struck it down, while maintaining all other articles.
The arguments made by the plaintiffs included the following:
- The law violates freedom of conscience, religion and expression.
- The law is discriminatory, violating the right to equality.
- The law violates the political right of citizens to elect the person of their choice.
- The law is imprecise.
- The law is not in the public interest and exaggerates the danger of religious disharmony.
- The law stigmatizes persons who display their religious convictions.
Here are some of the conclusions reached in the Court’s decision.
- The law has limited scope, concerned only with words and external symbols when the State representative is on duty and in contact with the public. Thus, it respects the principle of proportionality.
- The law does not target the intangible core of freedom of conscience and religion.
- The law serves the public interest by protecting the rights of others in well prescribed ways, thus respecting once again the principle of proportionality.
- The law’s objective is in the public interest: to protect public order, to respect cultural, economic and social values and the rights of others, as well as to promote religious harmony in a spirit of openness and tolerance.
- The law is not discriminatory because it applies equally to all persons and all religions.
- The law does not violate political rights as it does not prevent citizens from voting for the candidate of their choice, as long as those candidates respect the rules of eligibility.
- The law’s requirement to show one’s face is necessary for purposes of identification, regardless of religion, and applies to all citizens equally.
The plaintiffs have appealed the Court’s decision, so the next step will be before Swiss federal court. Their arguments are similar to those used in the lower court. Details can be found on the website of David Imhof.
The Republic and Canton of Geneva, despite its small size, has its own constitution, as well as the jurisdictional competence to adopt its own secular legislation.
Geneva’s secularism law is more extensive than Quebec’s law as its ban on the wearing of religious symbols has much wider scope (Bill 21 being limited to civil servants in positions of authority), it puts limits on public religious activities and it allows for temporary bans on ostentatious religious symbols in public if serious circumstances warrant such bans. Furthermore, Geneva’s ban on face-coverings applies to the courts, unlike Quebec’s. On the other hand, the Quebec face-covering ban applies to public and private transit systems, while Geneva’s does not.
Given Geneva’s reputation as the international capital of human rights, it is reasonable to predict that the decision of its Court upholding the law will be found consistent with Swiss, European and international law. Furthermore, given that Quebec Bill 21 has generally less scope, it is also reasonable to hope that it will be found compatible with both Canadian and international law. But of course, nothing is guaranteed. As we write these lines (late February 2021), we await the decision of Quebec Superior Court which is expected within days or weeks. And regardless of that decision, it is expected that an appeal will be made to the Quebec Court of Appeal and probably the Supreme Court of Canada as well.