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France, the veil and freedom of religion

This week the French National Assembly has finally been debating the government’s proposed legislation banning the wearing of the “full face veil” – the niqab, burka or any other piece of clothing that hides the face. I wrote in January about the plans of Jean-François Copé and of President Nicolas Sarkozy. Well, in May the Assembly passed the resolution Sarkozy envisaged as the “first stage”. Now it’s at the legislative stage. Here’s the text of the government’s projet de loi, and here’s a surprisingly good Google translation of it. Crucially, it aims at a total ban on the wearing the veil in public.

The legislation is bound to pass when deputés vote on it next Wednesday, especially since most of the socialist group won’t be voting. I’m afraid that’s a ridiculous position for them to take. If they think the ban is too wide to be constitutional or if, more importantly still, they think it’s wrong, then they should oppose it – explaining why they want a more limited ban, if they do, or why they’d prefer not to legislate. I think it does them no credit at all to seek credit for not supporting this measure while also avoiding populist anger for being against it. If, on the other hand, they’re happy for it to go through, they should support it. I’d have liked their leader Martine Aubry to have shown braver leadership on this. Even allowing socialist members a free vote – publicly admitting that the left is divided on this – would have been more honest, and better.

The surprise, though, is that Jean-François Copé, the effective leader of the anti-burka cause, has now said he wants the Conseil Constitutionnel to rule on the legislation before it comes into force. The Conseil isn’t a supreme court, but a sort of grand panel of supposedly “wise” men (well, there is a woman among them), Valéry Giscard d’Estaing and Jacques Chirac being among the members, who can give rulings on the constitutionality of legislation. Presumably Copé thinks the Conseil will uphold the measure; we’ll see.

In any event, as Gilles Devers pointed out in February in his blog Actualités du Droit, the European Court of Human Rights earlier this year made a ruling that strongly suggests the French legislation would breach the article 9 Convention right to freedom of religion, in the case of Arslan v Turkey. The judgment is only in French at the moment.

Arslan was about members of a particular Muslim sect who wear special robes and turbans, some of whom were prosecuted by the Turkish authorities for wearing these outfits in public, including in court when initially arraigned. Turkey’s case was that its strongly secularist laws are needed in order to prevent Turkish society from pressure from those who’d like to abandon secularism and democracy. But it lost. Here’s my quick and dirty translation of the key conclusions:

49. The Court recalls its finding that the applicants were sanctioned because of the clothing they wore in public places open to everyone, such as roads or public squares. This case does not therefore concern the regulation of the wearing of religious symbols in public institutions, in which context the importance of neutrality as regards belief may outweigh the free exercise of the right to manifest one’s religion. It follows that the jurisprudence of the Court emphasizing the particular importance of the role of national decision-makers in the context of banning the wearing of religious symbols in public schools (see, inter alia, Leyla Şahin supra, § 109) does not apply in this case.

50. The Court finally notes that it is not apparent from the record that the way the applicants demonstrated their belief in a specific place did, or was likely to, constitute a threat to public order or to exert pressure on others. Indeed, the applicants at the beginning of the period of the commission of the offences under the relevant legislation, gathered outside a mosque at the place in question, for the sole purpose of participating in a religious ceremony.

51. As to the contention of the Government alleging possible proselytizing by the applicants, the Court observes that nothing suggests that the applicants tried to exert undue pressure on passers-by in the public streets and squares in a desire to promote their religious beliefs (see, mutatis mutandis, Kokkinakis v. Greece, May 25, 1993, § 48, Series A No. 260-A). …

52. Accordingly, the Court finds that here the necessity of the restriction in question is not convincingly established. In conclusion, in all the circumstances of this case, the Court considers that the infringement of the applicants’ right to freedom to manifest their belief was not based on adequate grounds under Article 9 of the Convention. Accordingly, their convictions violated Article 9 of the Convention.

Could the French legislation possibly survive scrutiny in Strasbourg? I doubt it.

There are arguments available to France that weren’t available to Turkey. For a start, the veil raises issues of sex equality and avoiding pressure on girls that did not arise in Arslan. Second, covering the face is a more socially extreme practice than merely wearing identifiable religious clothing. But in the absence of any attempt to pressurise anyone else to cover her face or to evangelise, I doubt this ban can be upheld in current social conditions. I think the European Court would be likely to permit a total ban only if the wearing of the burka or niqab becomes a much stronger movement than it is now, threatening order and democracy or seriously affecting women’s and girls’ choices.

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