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Banning the burka in France

While the British government bans Islamist groups, it looks very much as though some kind of ban is going to be imposed in France on being completely veiled – wearing the niqab, chador and burka – in public. A committee of the National Assembly has been considering the current position since last summer, and there is support for a ban of some kind among MPs from President Sarkozy’s UMP party, Jean-François Copé wanting to move quickly to legislation, pre-empting the committee’s findings (Authueil has the text; Jules at Diner’s Room argues that it’s unconstitutional). Ministers are divided, employment minister Xavier Darcos arguing against a ban, which he argues is unenforceable, preferring instead a Parliamentary resolution, which he sees as potentially authorising public officials and others to require unveiling when doing business with them. Interior minister Brice Hortefeux is in favour of a limited ban, for instance in the context of public services. Prime Minister François Fillon is also in favour.

In that context, Nicolas Sarkozy’s most recent intervention can be seen as an attempt to unite his supporters. He’s calling for a Parliamentary resolution first, to be followed up by some form of legislation. The opposition socialists are divided, Laurent Fabius being open to a ban while Martine Aubry is opposed. I really can’t understand Julien Dray’s position, which is apparently to say the burka is unacceptable in France but to oppose a ban, preferring a “pro-dignity law”.  The effect of which is not clear.

There’s some division among lawyers, too. Anne Levade from the University of Paris XII told the Parliamentary committee that a general ban would be in breach of fundamental rights, though some specific limitaitons on the full beil could be defensible; Bertrand Mathieu of the Sorbonne agrees. But in the same session, Guy Carcassonne from the University of Paris Ouest argued that the European Court of Human Rights would uphold a ban on all face coverings in public imposed on grounds of public order and security.

Une loi fondée sur l’ordre public n’exposerait pas la France à une condamnation par la CEDH : il ferait beau voir que la Cour de Luxembourg expliquât à la France que le fait de cacher son visage aux autres est un droit inaliénable et sacré !

[Legislation on public order grounds wouldn’t result in France’s being found in breach by the ECtHR: I’d like to see the Court in Luxembourg tell France that concealing your face from others is an inalienable, sacred right!]

Apart from the classic howler of misplacing the European Court of Human Rights in Luxembourg (that’s the European Court of Justice; the ECtHR is actually in France, at Strasbourg), surely this is too confident. While Sahin v Turkey makes it clear that a ban even on wearing a headscarf can be justified in terms of the right to freedom of religion, that was a limited ban in public educational intstitutions. I don’t think it can be safe to assume a general legal ban would be okay. More importantly, I think the problem with his approach is that his law would be based on dishonest grounds. If I were a judge in Strasbourg I doubt I could honestly find a ban justified on public order grounds if that was not the real policy purpose behind it. The real reason for considering a ban is to combat extremism and protect women’s rights. If one is imposed, it should be justified in those terms.

If I were advising the French government, I’d suggest something along the lines Sarkozy has proposed: wait for the committee’s report, pass a resolution (these steps may help France’s defence in Strasbourg) and then consider legislating in some form. I reckon legislation could defensibly outlaw wearing the veil in the public sphere (by public servants on duty, in courts, in education and so on; perhaps releasing public authorities such as benefits offices from any obligation to deal with veiled customers) and give special protection to employers who justify banning the veil.

I wonder what the former justice minister and MEP Rachida Dati thinks of all this. As a matter of interest, she’s just become an avocate. That seems to be a fashionable move among French politicians for some reason.

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  1. This article was so interesting to read; to my mind one of the inherent problems with trying to come to terms with certain elements of Islamic convention in the context above is motivation.

    On the one hand, if one is trying to cover up to avoid being recognised, one could say that convention was being used as a political smokescreen and removal of the veil could be justified; on the other hand, a devout Muslim woman may feel unable to worship ‘completely’, to fulfil her daily duties and her dedication to her most profound beliefs if she cannot wear the veil.

    Most interestingly for me at least, is the paradox prevalent, not in religious motivation, but in the West’s understanding of Islam and its customs. The various different ministers mentioned above clearly oscillate from one type of awkward logic to the next; removing the right to the veil under one pretext to fulfill another as Carl points out, to the rather clumsy assertion that a piecemeal deal would actually be contemplated by practicing Muslims or even enforceable bearing in mind it focuses on the most religious, the most orthodox of worshippers.

    And then there’s the thorny issue of women’s rights. The veil is a choice for many, not a compulsion under duress. Do we have the right to tell one demographic how to dress and not another?

    The reality, to my mind, is that this debate is not about Islam; it is about Islamism or to move away from what is often seen as a potentially offensive alter ego, some might prefer to call it extremism or Wahabi philosophy. It is also seems to be about fear, confusion and power struggles and when such heady igredients find themselves in one discussion, the result, it would seem, rather unfortunately, is a very illogical jumble of thoughts which really have very little to do with the real issues at hand.

    In my opinion, the issues of duress (being forced to wear the veil), covering up with a view to going undetected and doing business with westerners who need to see facial features for communication are all separate issues, issues which are important and need to be addressed, but not like this.

    Yet, if the aim was to get rid of the veil because it genuinely caused tangible problems in business and did not sit at all with the cultural norms of a society, perhaps it might make more sense to pass a law that forbade all religious attire that masked the face from being worn in public. Just as Middle Eastern countries insist that certain clothes are worn and that modesty is preserved, I would argue along similar grounds that here in the West, if people wish to be a part of society, then in public they must dress as westerners do. I would however, allow religious attire to be worn in private and would consider that aspect of life not open to state intervention.

    There is perhaps also another problem: religious attire has been magnanimously accepted by Western countries, unlike its Middle Eastern counterparts and surely, to retract that right now may inflame the already delicate relationship between the two regions. The discussion on the veil may result, in the end, in everyone losing face.

    So, just as the veil may mask an anti-Western perspective, so too can democracy mask the mists of terror-mania.

    To my French compatriots – Bonne Chance!

  2. Dress is the business of the dresser and the consequences of adopting certain styles of dress is theirs to deal with. Functional aspects of dress – keeping warm, hiding, flaunting, declaration, do not really conflict with using physical characteristics as identifiers. In case of determined need to ascertain identity by inspection, it can always be removed, in whole or in part.

  3. I think it’s really difficult to know what to do about this – but the really interesting point is perhaps how much further French politicians are prepared to go compared to British politicians. Just to say you don’t like burkas is to cause controversy here; they’re, they’re considering banning it.

    For years I took the view that you shouldn’t have any laws about what people can wear. There is a certain irony is wanting to stop some women wearing what they want, or say they want, because you want women to be free. What’s made me less sure is that this is not just about some fashion that runs counter to feminist orthodoxy and that some women adopt just for themselves; and we’re not just talking about a harmless minority religious practice. Of course not every woman in a full veil is an extremist – far from it – but there is a minority of people pushing an extreme, violent political ideology, and symbols like the full veil may help them, I think, normalise their beliefs and impose them within the Muslim community. That worries me.

    I’m not saying I think we should ban the full veil. But I can’t help disapproving of it, or at least of what seems its increasing prevalence where I live. I don’t want anyone to be abused or made to feel threatened, but sometimes it strikes me that cross-dressing is more practised at home than in the streets not because of law, but for other reasons. It’d certainly be a better world if it were considered more embarrassing for a woman to be seen in a burka than it is for a man to be seen in a dress.

    Actually, more men in dresses would wind up the Anjem Choudarys of this world quite marvellously, so I may take up wearing one myself as a political statement.

    A final thought: I honestly think radical Islam in England will pass fairly quickly – I think it is growing right now, but like, say, hippydom or the mods, or even the IRA, I fully expect it to be history, no more than a memory, in 20 or 30 years time. I think Islam generally and all religion is in decline, here too, and that surprisingly soon we’ll have disused mosques as well as disused churches. Perhaps the best thing is to leave these things well alone to exhaust themselves, without giving them the piquancy of being disapproved.

  4. Interesting. In 2007, some guidance was issued about the wearing of veils in British courts:

    http://www.judiciary.gov.uk/publications_media/media_releases/2007/1607.htm

    Is this guidance sensible or is it just skirting around the issue?

    We saw another story recently about Muslim defendants refusing to stand as a District Judge (Magistrates’ Courts) entered the courtroom. This was a clear decision on their part and, they argued, it was based on their religion. It seems that some compromise was made with them so that they could enter the court after the judge. Is it right to make such compromises with defendants?

    There is a clear element within the Muslim Community who wish to see the replacement of English law with some version of Sharia. That cannot be doubted. The legal system has gone along with this in so far as settling certain civil disputes is concerned. Some would argue that this only encourages them to press for further concessions.

    Many questions are being raised and will have to be answered. France is seeking an answer to one of the issues and it will be of interest to see how it goes.

  5. The settling of civil disputes using Sharia is not a concession of any sort. It is done through the auspices of the Arbitration Act, which is based upon the ancient English tradition of freedom of contract. To not allow disputes to be settled in this way would be to make a special exception to the law, which would presumably not be applied to the Beth Din (Jewish court) or to commercial arbitration. Similarly, women can wear whatever they like, not because of any compromise, but simply because the law does not feel that it is appropriate to dictate to people what to do, although Britain, unlike France, does have a long history of religious tolerance, reaching back to the Whigs in the nineteenth century, and which is part of our political and legal tradition.

    Muslim extremists are, of course, far from satisfied with this situation, but they should not be allowed to set the agenda. I agree with Carl that their view will decline and cease to be a threat within a few decades. The only thing that can prevent this from happening would be to say to moderate Muslims that they must choose between radical Islam and full assimilation. Destroying the middle ground is the worst thing that can be done in this situation.
    .-= James Medhurst´s last blog ..Countdown to Buckland – 23 days to go =-.

  6. That sounds about right; you could get a legal ban on face-masking in some spheres, but which ones you’d be able to make it stick in is another question. We have the example of Aishah Azmi (I don’t know if this has gone to appeal)

    http://news.bbc.co.uk/1/hi/england/bradford/6066726.stm

    where the tribunal decided that in the event of a conflict between the right to express a religion and the welfare of children, the children took priority. That, however, was specific. It’s by no means clear that post-18 students complaining they could not understand a lecturer because of the lecturer’s face being obscured, would succeed.

    Obscuring the face is in fact very common. Sunglasses, ordinary glasses, beards, makeup, all of these serve to disguise the face either directly or as a side-effect. Ban a particular variant and you’d simply find women walking around in wrap-around sunglasses with a false Karl Marx beard and moustache. It can hardly be regarded as equality if Anjem Choudray is allowed to obscure his fizog by putting on a pair of Oakleys and a comedy nose, but his wife is forbidden. (What do you mean, you thought he was wearing a comedy nose.)

    One argument should be dropped immediately: that banning the burqha would do anything for womens’ freedom. This contains the false assumption that if the garment were banned, the women would be able to go out unveiled. They wouldn’t be allowed out at all. This would impose a regime on a number of women which is considerably worse than they have even in Saudi Arabia. The burqha acts like a eruv does, to extend the area which counts symbolically as home so that at least they can go round Morrisons without male relatives.

    I recently went for a walk where face-masking was an issue.
    http://www.the-daily-politics.com/2009/11/mrs-raft-goes-for-walk-november-5th.html
    Putting a token plastic over my face attracted police attention. At parliament, even if one could understand the panic over the face masks, it isn’t clear why they think wearing a bad wig is any less legal than wearing a good one. Do cancer sufferers have special rights to wear a wig or keep their head-coverings on? Appparently they do, but how the Westminster staff differentiate medical from political reasons without being doctors is not known. I was also asked to take off my hat, but only when crossing in to the Chamber, on the grounds that nobody keeps their hat on in in the Queen’s house. (One person was cautioned for refusing). I complied on account of being a sentimental old Royalist but it was apparent that there were plenty of exceptions to this rule and that it may have been complete bunk as differential whims apply to women anyway.

    One interesting thing I learned on the walk was that people immediately invest masks with symbolism. They can’t avoid it; humans are pre-programmed to construe meaning on to faces . I was approached several times by people asking what this one signified. There was a difference between the meaning the public construed on a mask, which was generally humorous as they recognized it as a well-known theatrical symbol, but contained fury from some of the Westminster staff. They correctly identified that the very existence of the mask was a challenge to the institution – and that was even those who plainly did not know the story.

    That’s the heart of the matter and it can’t be solved by law, let alone law tinkering. It’s elemental power politics; the burqha is the visible symbol of an alien theocracy asserting authority over British nationals on British soil in the way that other religious costumes, even the visible ones (Sikh turbans, Jewish orthodox dress) do not.

    The law can concern itself with cases where specific questions arise and rule on whether a mask does or does not interfere with the process of justice, teaching, medicine, what ever. That is entirely beside the point; the same question can reasonably be asked of me if I decide to wear a mask more often. The nark is that we don’t like what it means when a middle-aged housewife with no public role trudges round the supermarket and goes to parents evenings in a burqha. She is not the problem. The problem is what her dress signifies.
    .-= Woman on a Raft´s last blog ..CLIMATEGATE II – NASA AND NOAA IN THE FRAME =-.

  7. I agree about arbitration, James – but family law disputes can’t be settled by arbitration, can they? And are not settled by arbitration in the Beth Din, either.

    The religious law aspects of marriage are settled by the Beth Din, yes – but then they are settled by sharia councils too. The “Rowan Williams” issue is whether sharia councils should be recognised as giving civil divorces, ancillary relief and children orders, a recognition no religious court has at the moment.

    That in my view would be an incredibly radical and dangerous step.

  8. I wasn’t actually talking about Rowan Williams but I am aware that he is there in the background. Part of the problem is that it was not entirely clear what he was saying and, at times, he appeared to be arguing for the introduction of things that already existed. The one scary word in the speech is ‘marital’ but, even then, as you say, religious courts already have jurisdiction over religious divorce. I have not seen any mention of children by Rowan Williams, Lord Phillips or anyone else involved in the debate. Mainly what they both seemed to be saying is that it is worth looking at whether some accomodation is possible, without any knowledge or confidence about whether it would be or not. I cannot disagree with that. Some of it, I suspect, was also spin, albeit not particularly well calculated.
    .-= James Medhurst´s last blog ..Continuing acts =-.