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The Burqa Ban: a Step Backwards in the Fight for Rights

About The Author

Ivonna Beches (Writer)

Ivonna is a third year law student at Durham University, currently undertaking a study year abroad at the University of Groningen in the Netherlands. Ivonna aspires to be a barrister, and has a keen interest in immigration law. Outside her studies, Ivonna is a keen writer, and is currently working on a novel.

On the 1st of July 2014 the European Court of Human Rights (ECtHR) in Strasbourg handed down its judgement in the case of S.A.S v France on the question of whether or not the French ban on wearing clothing designed to conceal one’s face in public places can be said to be proportionate and pursuing a legitimate aim. In light of the fact that the decision supported the ban, this article will consider the origins of the statute which unfairly targets a specific minority of Muslim women living in or visiting France, and will discuss the arguments presented by both sides in S.A.S v France. Ultimately this article will argue that the ban, as it was formulated, is wholly unnecessary, and that the true motive for its implementation is brushed aside by both the French government and the ECtHR which presents a separate problem in itself.

The French legislation on the ban, Loi interdisant la dissimulation du visage dans l'espace public was approved by the Senate on the 11th of October 2010 but only came into force six months later on the 11th of April 2011, as prescribed by Article 5 of the statute. The process through which legislation is implemented in France is commonly known as “the Shuttle” and it involves the provisions of the statute being read by the two houses of Parliament, the National Assembly and the Senate, with each house having the power to make any amendments they see fit before approving the legislation.  The government retains the power to stop the Shuttle after two readings in each House, and make an attempt to find a compromise for the provisions on which the Houses cannot agree. In the case at hand however, this last resort approach was not necessary as the statute passed through the houses fairly easily without any major amendments being required.

The law itself leaves little room for creative interpretation. Article 1 sets out straightforwardly that ‘no one shall, in any public space, wear clothing designed to conceal the face’ while Article 2 includes public highways and any premises open to the public or used to provide public services in the definition of a public space. Equally as important, Article 2 also sets out certain exceptions to the law, namely that the prohibition does not apply if the concealing clothing is required or prescribed by another legislative provision, is justified for health reasons or is part of sporting, artistic or traditional festivities. While these exceptions are very limited they fall in line with the purposes of the statute as presented by the French government: to ensure that all members of French society fully integrate into the society and to protect the interests and freedoms of women in French society. Particularly in line with the second purpose, Article 4 makes compelling any person to conceal their face by reason of their gender an offence punishable by one year’s imprisonment and a fine of €30,000, with the offence being increased to two years’ imprisonment and a €60,000 fine if the victim is a minor.

On the day of its introduction the ban was immediately met with protest from subjects of the ban which at the time resulted in the arrest of two women protesting outside the Notre Dame. Although the ban had ‘enjoyed wide public support’ when it initially made its way through Parliament in 2010, it is questionable what relevance this public support had, given that the law only targets a small minority of people, approximately 1,900 women, even within the Muslim French community.  In addition, the French police force criticised the ban as it deemed it ‘difficult to apply’ and concluded that it would be applied very rarely. The main reason behind the criticism lies in the fact that police were instructed not to use force against women who refused to remove their veils; the only appropriate response outside of imposing a fine against them is to contact a prosecutor for further legal action, and imprisonment could only be a solution in very extreme cases. Nevertheless, a recent decision in the ECtHR has, controversially, condoned the ban.    

The case of S.A.S v France involved a French national born in 1990, who made her submission to the ECtHR soon after the initial implementation of the ban on the grounds that not being allowed to wear clothes designed to conceal her face in a public place was a violation of her rights under Articles 3, 8, 9, 10 and 11 under the ECHR separately and in conjunction with Article 14. The court however only considered the argument in light of Articles 8, 9 and 10 namely the infringement of the right to respect for private life (Article 8), the right to exercise religious belief (Article 9) and the right to freedom of expression. Notably, all three of these rights can be limited by the government through restrictions as long as those restrictions are prescribed by law, are intended to protect public safety and are necessary in a democratic society.  

The applicant’s submission highlighted that the legislation does not protect public safety adequately as it is a blanket ban that covers all public places and is mostly targeted towards women who wear the burqa or the niqab. The submission suggested that a more appropriate way of meeting this requirement would have involved a ban that was constructed around addressing ‘specific safety concerns in places of high risk such as airports’ (paragraph 77). Moreover, the applicant argued that the ban is in no way empowering to women who choose to cover their faces, as, on the contrary, it robs them of their agency and it takes away their ability to socialise, and that as far as the aim of social integration is concerned, respect for the variety of faiths, religions and cultures present in French society is a far more successful approach than an attempt to suppress differences. Thus, regardless of the political support behind the statute, the conclusion of the argument was that this ban is not necessary in a democratic society.  

In response, the French Government reasserted the largely weak reasoning utilised to implement the ban in the first place. It argued that the ban ensured public safety by satisfying the need to identify individuals for the ‘safety of persons and property and to combat identity fraud’ (paragraph 82). Furthermore, the submission of the government emphasised that persons who cover their faces cannot fully take part in social interactions, as they cannot be identified as individuals. Studies which supported the idea that Muslim women in French society choose to wear the veil and consider it an empowering choice were dealt with in a very dismissive manner, on the basis that the samples used in the studies were very small – regardless of the fact that the group affected by this ban is in itself a very small minority.  With regards to the necessity of the legislation the government simply reasserted the political support behind the statute and stated that a law that only punished those who coerced women into covering their faces would not be sufficient, as the majority of women in those situations would be reluctant to report such incidents. The benefits of presenting the women in question with a €150 fine regardless of the reason why their faces were covered, however, were not discussed.

Fourteen of the sixteen judges in the Grand Chamber of the ECtHR came to the conclusion that there had been no violation of Articles 8-10 separately and in conjunction with Article 14. While the main breadth of the judgement recognised that the ban is far too broad to simply exist for the purpose of protecting public safety, and that the government’s assertion that the legislation works in favour of Muslim women has no real basis in fact, the court found that ‘the impugned ban can be regarded as justified in its principle solely in so far as it seeks to guarantee the conditions of ‘living together’’ (paragraph 142). In addition, as a result of the fact that the law does not affect any citizen’s ability to wear clothing relating to their faith as long as it does not cover their face, the court presented the French government with a wide margin of appreciation in relation to a policy deemed to be constructed around protecting the democratic interests of French society.

Notably, the dissenting argument presented by judges Nussberger and Jaderblom discussed those ideas which the majority and the respondent party had failed to address. In particular the inseparable relation between the burqa and its religious significance was pointed out, as well as the lack of explanation provided by the government for why a less forceful or less restrictive response to the issue of the burqa was not employed. The example provided by the judges was a soft measure such as a strengthening of civic education courses for both men and women. Nevertheless, despite the strength of the dissenting argument, the ban was still fully endorsed by the ECtHR and it is this response which will be utilised by other European states seeking to implement measures similar to the ones in France and Belgium.

Considering that a number of European countries have and are still considering imposing overarching bans on the burqa and the niqab, this decision could prove to be extremely detrimental to the protection of individual rights and freedoms of expression. The verdict essentially suggests that states can have relatively free reign to dictate the concept of individuality with relation solely to the views of the majority of citizens within its society. However, what is perhaps more harmful is the two underlying messages of this decision: that a statute which is discriminatory in fact is still permissible as long as the language of the act does not overtly express this aspect of it, and that even where a statute is quite clearly a means of tightening security measures, if it is not presented in such a way, then its primary purpose can be ignored. The latter statement is particularly important because in an age where it is becoming increasingly common practice for emergency measures which derogate from Convention rights to become entrenched in the law of the state, a complete denial of the true function of a limitation such as the burqa ban is just another facet of this practice. 

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Tagged: Human Rights, Justice, Religion, Rule of Law

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