Between Legal Pluralism and Discrimination

Bearing in mind the above mentioned mapping of Islam in Greece, the generally applicable human rights law and the special jurisdiction of the mufti in Thrace, one question comes up: Does this variety of regimes represent a successful strategy to cope with legal pluralism, or does it embed the seeds of discriminative treatment? The case of the application of Shari^ta law by the mufti in Thrace is of key importance to this discussion.

A successful approach to dealing with legal pluralism ensures a balance between the legal orders involved, taking into account different ethno-religious particularities. It thereby allows for the accommodation of different social realities in the same legal order. The coexistence of different legal systems could be seen as a laudable case of pluralism of law, so long as it ensures everyone a choice to opt for one or the other legal system. In a case brought by a Roma woman from Spain, whose relationship was not considered a legal marriage by the authorities, the ECtHR^[249] said that that “the force of the collective beliefs of a community that is well-defined culturally cannot be ignored”. The Court also upheld that, while belonging to a minority does not create an exemption from the need for compliance with marriage laws, it may have an effect on the manner in which those laws must be applied. However, the special jurisdiction of the mufti in Greece provides such a possibility to Muslims of Thrace and thus one can say that in principle (unless a non-compliance to fundamental human rights is detected) it fits what the Court accepts as legal pluralism within a homogenous European legal order of human rights. On the other hand, the imposition by law of a certain jurisdiction -with no option to choose- is also highly problematic, especially when the latter is not compatible with fundamental human rights values and norms.

As the Court said, if a certain juridical system is imposed on the individual on the basis of religious affiliation, it would contradict the general principles and values of the European legal order and democratic society.^[250] ^{^[251] Therefore two issues need to be tackled: a. the mandatory imposition of a special legal system which contradicts the universal one; b. the implementation of certain legal norms that breach public policy (ordre public) and thus cannot be tolerated. Considering the status of the mufti within the Greek and European legal order inevitably touches upon the issue of how to accommodate non-liberal laws of a minority in a liberal legal context. To move forward, this discussion must manoeuvre between the demands for integration, preservation of minority identity, and the relationship between individual and collective identity as potential fields of normative action.22
Applying Islamic law within the framework of a European legal order seems to result in contradictions between individual rights and principles of equality, on the one hand, and religious freedom on the other. In short, Shari^ca law, when seen through the prism of human rights law, includes discriminatory provisions against women. In practice then, legal pluralism, as experienced within the Greek legal order, entails a paradox in which the violation of fundamental principles of a democratic society is retained in the name of respect for the minority’s religious specificity. This tension means that what may seem multicultural today, or is presented as an aspect of Greece’s multiculturalism, is just a persisting legacy of the Ottoman period, which entails elements that contradict current European human rights standards regarding equality of the sexes and the right to a fair trial. On the other hand, adjudication by the mufti is seen as of major importance for the preservation of minority identity for a part of the minority of Thrace.
Yet each member of the minority, in accordance with his or her freely formulated wishes, should be given a real opportunity to choose whether they wish to live according to the ‘juridical traditions’ of the group or not. According to the Court, legal categorisation according to one’s religion reduces the role of the state as of guarantor of human rights and freedom of religion in a democratic society, as the individuals are obliged to conform to religious jurisdiction.^[252] ^{^[253] If the individual is given no choice, direct discrimination is applied: Muslims of Thrace are deprived of their right to submit their case before the same courts (civil courts) as anyone else because of an objective and mandatory definition of their religious adherence which imposes a given jurisdiction (the mufti's courts) and a given law (Shari^ta). What is of prevailing importance for the rule of law is to guarantee all Greek citizens access to courts under the same law. The protective treatment of Muslims under special law can be attributed only on the condition that it remains optional. The imposition of a system of law that is, by the standards of the ECHR, inherently discriminatory has no place in a modern European state and undermines any legal protection of the free development of the personality (Art. 5.1, Constitution). Article 14 echr does not prohibit distinctions in treatment: on the contrary, it allows for different treatment in different situations/⁴ but it does not impose differentiation in treatment at the expense of universal human rights. The law has to handle equal situations with equal means: the right to bring a case before civil courts is accorded by the Greek Civil Code to all with no exception.
The criterion of being under the Lausanne minority protection framework is membership to the Muslim minority. Consequently, religion is discerned objectively and by default by the state authorities. However, religion can be held as a criterion only when a special right is granted, which is activated according to the desire of the bearer of the right, not the reverse, namely the discretion of the state. Minority rights constitute positive measures, which means that the bearer of the said rights enacts them according to his/her wish. Any mandatory referral by the courts on the basis of religion to special law, instead of the universal civil law, introduces differentiated treatment and therefore constitutes discrimination according to Article 14. Imposing Muslim law on those who have already opted for civil law is a disproportionate legal technique that cannot comply with the freedom to choose his/her jurisdiction (forum shopping).
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Source: Oberauer Norbert, Prief Yvonne, Qubaja Ulrike (eds.). Legal Pluralism in Muslim Contexts. Brill,2019. — x, 258 p.. 2019

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