In November 2009, 57.5% of Swiss voters, in a fit of anti-immigrant and anti-Muslim sentiment, accepted a direct-democratic initiative against minarets. Ever since, article 72 para 3 of the Swiss constitution states that “The construction of minarets is prohibited.” Soon after, representatives of Muslim communities in Switzerland took the issue to the European Court of Human Rights (ECHR) in Strasbourg, the supreme court in Europe for such issues. The court issued its verdict in early July of this year (ECHR documents no. 65840/09 and 66274/09).
In a decision many legal experts had expected from the start, the court dismissed the case and left it open whether the Swiss ban on minarets violates the European Convention on Human Rights. This Convention guarantees the freedom of religion and prohibits discrimination of religious communities. The court argued that the complainants were not victims in the sense of the European Human Rights Convention, primarily because they had not been prevented by Swiss authorities from building a minaret in a specific case. A valid case, in the court’s view, would involve a formal request to a local authority for permission to build a minaret, refusal by the respective authority to issue a construction permit, and unsuccessful appeals within the Swiss national legal system. The ruling of the ECHR in the minarets case is clearly in line with the court’s role as a judicial decision-maker in specific cases of suspected human rights violations. The ECHR does not act as a constitutional court that can evaluate and formally invalidate national laws.
The most appropriate (because democratic!) way of getting rid of the shameful and disgraceful provision in the Swiss constitution would be to launch a follow-up initiative. This requires support from 100,000 eligible voters. Such an initiative could propose to reverse the earlier decision and remove the minarets provision from the constitution. It is very unlikely that such an initiative will be launched anytime soon, and its fate, when put to a vote, would be uncertain.
The best approach – from the perspective of opponents of the minarets ban – in the foreseeable future is to take the problem through the courts, rather than democratic politics. In view of the ECHR ruling, this means that someone has to set up a specific construction project for a minaret in Switzerland. After lengthy legal proceedings from local courts all the way to the ECHR, this is likely to leave Switzerland with an “emasculated,” i.e. non-implementable, provision in its constitution. The Swiss constitution may, de jure, still ban the construction minarets. But once the ECHR has approved an appeal in a specific case, local Swiss authorities and courts will be much less likely to refuse construction permits for minarets with reference to the respective provision in the Swiss constitution. The reason is that they know that appeals are very likely to succeed in higher-level courts.
How to set up such a construction project in order to maximize the chances of then winning the legal battle? For an almost guaranteed winner, look at this picture:
This building, including both towers, is real. Trust me! It is located in Chania, the second largest city on the Greek island of Crete. It was first built as a Christian church in 1320. In 1645, it was taken over by the Turks under the Ottoman Empire and converted into a mosque (with a minaret added). In 1918, it was transformed back into an Orthodox Christian church. Unfortunately, the eventual Christian occupants were not interested in sharing the building with Muslims – most of them were in fact deported in the infamous 1923 population exchange between Greece and Turkey. But, interestingly, neither of the two types of occupants dismantled the tower of the other over the centuries.
Inspired by the building in Chania, I would suggest that a Christian and a Muslim congregation in Switzerland join forces and submit a building request for a combined church-mosque with two towers, to be used by both congregations for their respective services and rituals. I find it very hard to imagine what kinds of reasonable and defensible arguments a court could use to prohibit such a project symbolizing mutual religious tolerance, respect, and cooperation.
And if any of the two congregations using the joint church-mosque had, at some later stage, second thoughts about this arrangement, its skeptics could simply take a little walk around the building, as I did in Chania. Amazing, how this can change your perspective!
As a Muslim, you might be pleased to observe the building from this side.
And, as a Christian, from this side…
This, at least to me, appears to be a more civilized way of coping with the “power of towers” than including blatently discriminatory rules in an otherwise wonderful national constitution.