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The
Burqa Challenge to Europe
by Paul Cliteur and
Machteld Zee
Middle East Quarterly
Spring 2016 (view PDF)
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In
the summer of 2014, the 47 justices of the European Court of Human
Rights upheld previously passed French legislation, popularly known as
the "burqa ban." While women in Muslim-majority countries had
been progressively un-veiling for most of the twentieth century, this
practice has reversed due to the Islamist resurgence of the last four
decades.
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In the summer of 2014, the European Court of Human Rights (ECHR)
upheld previously passed French legislation, popularly known as the
"burqa ban."[1]
In doing so, it accepted the argument that the public wearing of this
Islamically-connected full-body and face veiling violated a core value of
French society, the principle of "living together" (le vivre
ensemble). A review of how the court arrived at this conclusion, and
what other arguments against the burqa it chose to ignore, may offer
clues as to what forebodes for European Union societies and their
relations with burgeoning Muslim populations.
To Cover or
Not to Cover?
The ECHR's decision originated in an application against the French
Republic lodged with the court under Article 34 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms on
April 11, 2011.[2]
The applicant, known only by her initials, S.A.S., is a Pakistani-born
French national, who, according to her testimony, is a devout Muslim and
wears the full-body and face veil. She claimed to do so in accordance
with her Islamic faith, her culture, and her personal convictions, and
she emphasized that neither her husband nor any other member of her
family put pressure on her to dress in this manner.[3]
The burqa was virtually unseen in
the West before 2000 but now is donned by approximately 1,900 women in
France.
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The burqa is a recent phenomenon in the West, virtually unseen before
the year 2000, but, some ten years later, donned by approximately 1,900
women in France. The practice is controversial, not only due to its
extreme nature but also because some Muslims question whether it is truly
Islamic. The four Sunni schools of jurisprudence differ regarding the
obligation for women to cover their face, with the Hanbali school,
prevalent in Saudi Arabia, the strictest observer. For their part, Shiite
Muslims do not believe that the face of a Muslim woman is a part of the
body that needs to be covered in public although Iran's current
theocratic rulers insist that women wear the chador, a cloak that leaves
the face open, in public. In Turkey, Lebanon, Tunisia, Malaysia, and
before the civil war, in Syria, the face veil has been subjected to bans,
mostly in public and educational institutions, as it is considered to run
counter to national values and traditions.[4] Yet while women in
Muslim-majority countries had been progressively un-veiling for most of
the twentieth century, this practice has reversed due to the Islamist
resurgence of the last four decades.
It is in the West that the most outspoken Muslim critics of full-face
veiling are active. Sihem Habchi, for example, president of the French
feminist movement Ni putes ni soumises (Neither whores nor
submissives)[5]
has stated passionately and categorically: "As a woman, as a French
citizen, and as a Muslim woman, I demand that the Republic protect me
from the vilest fanaticism that is infecting our public space."[6]
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The
most outspoken Muslim critics of full-face veiling are active in the
West where the ability to speak one's mind is protected by the state.
French Muslim Fadela Amara, a women's rights activist, wrote that it
"is a mistake to see the veil as only a religious issue. ... it is
first of all a tool of oppression, alienation, discrimination, and an
instrument of men's power over women."
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These sentiments were echoed by French Muslim women's rights activist
Fadela Amara who wrote that it "is a mistake to see the veil as only
a religious issue. We must remember that it is first of all a tool of
oppression, alienation, discrimination, and an instrument of men's power
over women. It is not an accident that men do not wear the veil."[7] Thus in the eyes of burqa
opponents, the state must fulfil its positive obligation to protect human
rights: Women should be made safe from severe pressure to cover.
At the same time, women, including many converts, voluntarily choose
to cover their faces. When the French burqa prohibition came
into force on April 11, 2011, S.A.S. found herself in a dilemma: Either
obey the ban and compromise her personal beliefs, or ignore it and risk
criminal charges in the form of a €150 fine. Instead, she decided to put
her faith in Strasbourg.
"Vivre
Ensemble"
When the ECHR rendered its decision, it essentially echoed the
reasoning found in the "Gérin report" of 2010. This derived
from a June 2009 decision by the conference of presidents of the French
National Assembly, which established a parliamentary commission
comprising members from various parties and presided over by the
left-wing politician André Gérin, with the task of drafting a report on
"the wearing of the full-face veil on national territory." In
January 2010, the commission published its findings on the topic based on
interviews with more than two hundred witnesses and experts.
To establish a social bond, every
person must be able to see everyone else's face.
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The report criticized the practice as being "at odds with the
values of the Republic," as expressed in the maxim "liberté,
egalité, et fraternité" (liberty, equality, and fraternity), and
of violating the fundamental French value of laïcité or
secularism.[8]
Full-face veiling, it argued, infringed on the principle of liberty by
being a symbol of subservience that negated both principles of gender
equality and the equal dignity of human beings. Moreover, by setting up a
significant barrier to contact with others, this practice was a denial of
fraternity and a flagrant infringement of the French principle of living
together (le vivre ensemble).[9] An explanatory memorandum
accompanying the burqa ban bill states that the "voluntary and
systematic concealment of the face is problematic because it is quite
simply incompatible with the fundamental requirements of 'living
together' in French society" and that the "systematic
concealment of the face in public places, contrary to the ideal of
fraternity ... falls short of the minimum requirement of civility that is
necessary for social interaction."[10] Hiding one's face in
general—not just by means of a burqa—therefore, is at odds with the
"respect for the minimum requirements of life in society," and
banning the full veil can be linked to the legitimate aim of the
"protection of the rights and freedoms of others."[11] Individuals in France thus
have the human right to live in a society where one is not confronted
with face covering veils in public spaces.
The bill was supported by the National Assembly's Delegation on the
Rights of Women and Equal Opportunities and was formulated in general
terms—as the Gérin committee had advised—thereby deflecting a legal
debate on religious freedom. What became law no. 2010-1192 was passed by
the National Assembly on July 13, 2010, with 335 votes in favor, one
against, and three abstentions, and shortly thereafter, by the Senate on
September 14 with 246 votes for and one abstention. On October 7,
France's Constitutional Council ruled that the ban was compliant with the
constitution, and thus the law was enacted on October 11, 2010.
The plaintiff then took her case to the ECHR in the hope of having the
bill overturned. On July 1, 2014, the Grand Chamber, the ultimate court
within the ECHR released its verdict, supporting the French prohibition.
The court extensively cited past jurisprudence on religious freedom
and acknowledged that the ban had indeed a significant negative impact on
the lives of those women who had chosen to wear the veil for religious
reasons.[12]
But it concluded that the ban did not violate the right to respect for
private life (Article 8 ECHR), freedom of religion (Article 9 ECHR), or
freedom of expression (Article 10 ECHR). The decision hinged on the
notion of vivre ensemble as being a sufficient and compelling
enough factor to enable the French to ban the burqa without violating the
convention.[13]
It agreed with the French rationale that the social bond that citizens
form with one another is an essential foundation of democracy. To
establish that social bond, it is imperative that every person be able to
see everyone else's face. This argument is detached from the religious
aspect of face veiling and encompasses every form of face concealment in
a public setting.
Accusations
of "Islamophobia"
Although the final rationale for the burqa ban centered around the
secular values that had been an integral part of the French Republic
since its inception, both critics and supporters of the ban raised
additional arguments to buttress their case, and it is instructive to
look at them since they may play a role in future decisions or challenges
to the current one.
Many critics claimed that the push for a ban was actually a
manifestation of "Islamophobia." Coined in the late 1980s, the
term gained greater currency after the 1997 publication of a British
report, "Islamophobia: A Challenge for Us All,"[14] and was widely adopted by
Muslim advocacy groups after the 9/11 terror attacks in reaction to the
worldwide critical focus on Islam and Islamism.
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Demonstrators
protest against the French ban on burqas. The decisive argument for the
ban was that the burqa represented a denial of French fraternité by
setting up a significant barrier to contact with others and thus was a
flagrant infringement of the French principle of living together (le
vivre ensemble).
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There were several submissions by outside parties in the S.A.S. v.
France case that stated that the French ban was an
"Islamophobic" and populist reaction to a minority already
facing tough times in an increasingly intolerant Europe. For instance,
Thomas Hammarberg, commissioner for Human Rights of the Council of
Europe, was cited as arguing that the prohibition would lead to further
exclusion of the Muslim community and that it had not been proven that
burqa-wearers "are victims of more gender repression than
others."[15]
Likewise, Amnesty International asked the ECHR to examine the case,
contending that the debate surrounding the ban and the ban itself
reinforced "negative stereotypes and Islamophobia."[16]
Although the court upheld the ban, it did not ignore this argument
altogether. In its own words, "the Court is very concerned by the
indications of some of the third-party interveners to the effect that
certain Islamophobic remarks marked the debate." Additionally, it
claimed that "the debates surrounding the drafting of the bill may
have upset part of the Muslim community, including some members who are
not in favour of the full-face veil being worn."[17]
While some proponents of the "Islamophobia" charge may be
motivated by true concern for anti-Muslim discrimination, there is
another, pernicious side to the ledger that the court seemed to ignore,
namely, the common use of "Islamophobia" to silence and defame
legitimate criticism of Islam and Muslims. There is absolutely no reason
why Muslim beliefs should be spared the free and vigorous debate,
including abrasive lampooning and ridicule, to which Christians, Jews,
atheists, or any other group have long been subjected. In a free society,
Muslims and Islam should not be exempted on the grounds of some sense of
fear or hostility unless that critique takes the form of incitement to
hate and/or violence. Nor does favoring a burqa ban mean ipso facto
hostility to Islam. The overwhelming majority of Muslim women do not wear
burqas while many abhor it because it gives Islam a bad name. Numerous
Muslim intellectuals, men and women, have spoken up in favor of a ban and
have done so in Muslim-majority countries as well.[18] One can only wonder whether
the court is aware of the implicit message it is sending: first, that
"Islamophobia" is a phenomenon deserving recognition by
Europe's highest court, and second, that fierce (and at times uncivil)
debate can be so upsetting to one bloc of people—which the court has
lumped together based on their cultural heritage regardless of individual
differences—that the rights of free expression of individuals, who
are the actual carriers of the liberties that the Convention for the
Protection of Human Rights bestowed upon them, may be trampled upon.
A Threat to
Civil Society?
There are two other arguments, cited in the Gérin report and the
French bill's accompanying explanatory memorandum, that the ECHR chose to
dismiss. The first contention is that Islamist women wear burqas (or
Islamist men put women under pressure to wear burqas) as a way of
expressing solidarity with and identifying themselves as adherents of a specific,
political belief system. This makes the outfit not just an expression of
religion but a political statement informed by a totalitarian ideology.
The other anti-veiling argument
maintains that such garb is a threat to public safety.
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French philosopher Élisabeth Badinter, for example, has called the
burqa "the Salafists' banner"[19] and does not consider it to be
"clothing."[20]
Others have derided full-face veiled women as "the Trojan horse of
extremist Islamism ... the cloth hides not only a face but secret
intentions as well: to attack secularism and impose Islamic rule."[21] Seen from this perspective,
banning the burqa—as well as outlawing Nazi uniforms—is a justified act
of "militant democracy," that is, the use of legal restrictions
on political expression and participation in order to stop
anti-democratic political groups and movements from gaining currency.[22]
The other anti-veiling argument, articulated most prominently by
American political commentator and historian Daniel Pipes, maintains that
such garb is a threat to public safety. Both in his personal writings and
in the archives of Islamist Watch, a project of the Middle East Forum,
which he heads, Pipes has documented cases worldwide involving crimes
committed by burqa-clad perpetrators. There are more than one hundred
cases listed, including incidents of child abduction, robbery, bombings,
murder, theft, acid attacks, and suspects evading justice under the cover
of this garment (most notably the 1937 flight from Palestine of the
notorious Jerusalem mufti, Hajj Amin Husseini).[23]
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There
is a well-documented concern that the burqa is a threat to public
safety. Worldwide, there have been more than one hundred cases of
criminals hiding under the burqa to perpetrate murders, child
abductions, acid attacks, bombings, and robberies like the one
attempted on this British shopkeeper in 2013.
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In the explanatory memorandum accompanying the burqa ban bill, the
French government made the case that in certain situations the practice
of concealing one's face in a public setting could represent a danger to
communal safety.[24] Concealing one's identity
would certainly hamper any criminal investigation. The public safety
argument is not then tied to any religious aspect of full face-veiling,
nor is it relevant whether or not the burqa is worn voluntarily. Everyone
needs to show their face, and this would include covering them by means
of helmets, masks, theatrical make-up, and so forth. The European Court
agreed that freedom of religion would not be unjustly compromised if
individuals had to show their faces "in the context of security
checks" and on identity photos for official documents. A blanket ban
for this reason, however, was deemed overkill and "proportionate
only in a context where there is a general threat to public safety."[25]
Yet, as Pipes' database makes eminently clear, security considerations
are far from hypothetical, for the simple reason that "one cannot
allow faceless and bodyless persons walking the streets, driving cars,
and otherwise making use of public places; the dangers are too
great."[26]
Indeed, the Belgian government seems to fully subscribe to this view.
Rather than wait for burqa-donning criminals to strike, it chose public
safety as one of the main reasons for its 2012 ban of the burqa, and the
Belgian Constitutional Court concurred.[27]
Conclusion
The drafters of the Gérin report, and subsequently French legislators,
and ultimately, the ECHR had a difficult task in deciding on the best
arguments for banning the burqa. Despite the generalized formulation
concerning the covering of one's face used in the laws eventually
adopted, it would be disingenuous to ignore the fact that the ban is at
least occasioned by the appearance of burqa-draped Muslims on the streets
of Europe.[28]
But despite an acceptance of cultural and religious differences on the
part of Europe's elites—an acceptance that may not necessarily be shared
by the European "man on the street" who views the burqa as yet
one of the foremost manifestations of the continent's growing
Islamization—tolerance toward the full-face covering has reached its
limit at least in France and Belgium. Vivre ensemble—the
principle of "living together"—was the one ground the European
Court of Human Rights latched on to as a means of upholding the French
burqa ban despite other equally significant arguments. By setting aside
other similarly important, yet perhaps more politically sensitive
arguments, such as gender equality, human dignity, or the outlawing of
Islamist symbols, the court followed the carefully constructed French
reasoning, which sought to disentangle the issue from the claims of
religious discrimination.
This ruling paves the way for more European countries to ban full-face
veiling, as demonstrated by the 2015 banning of face-covering Islamic
veils in schools, hospitals, and public transportation in Netherlands.[29] As Western European societies
are overwhelmed by a tidal wave of Muslim immigration, it remains to be
seen how widespread this ban will become.
Paul Cliteur is professor of
jurisprudence at the University of Leiden and visiting professor of
philosophical anthropology at the University of Ghent. His book The Secular Outlook (Wiley-Blackwell,
2010) is in translation as La visione laica del mondo
(Nessun Dogma, 2014). Machteld Zee is a political scientist and legal
scholar. She holds a Ph.D. in jurisprudence from the University of
Leiden. Her most recent book is Choosing Sharia?
Multiculturalism, Islamic Fundamentalism and Sharia Councils (Eleven
International Publishing, 2016).
[1] The
term burqa is used in this article interchangeably with niqab. The
difference between the two veils is that niqab covers the entire face
with a small space cut out for the eyes while burka has a mesh over the
eye opening.
[2] Law
no. 43835/11.
[3] S.A.S. v.
France, European Court of Human Rights, Strasbourg, France, July
1, 2014, para. 10-12.
[4] For
an overview of burqa bans in Islamic countries, see Phyllis Chesler,
"Ban the Burqa?
The Argument in Favor," Middle East Quarterly, Fall 2010,
pp. 33-45.
[5]
Fara Amara and Sylvia Zappi, Breaking the Silence: French Women's
Voices from the Ghetto, trans. Helen H. Chenut (Berkeley: University
of California Press, 2006), originally published under the title Ni
Putes Ni Soumises (Neither Whore nor Submissive).
[6]
André Gérin, et al., Rapport
d'Information (Paris: Assemblée Nationale, Jan. 2010), p. 324.
[7]
Karima Bennoune, "Secularism and Human Rights: A Contextual Analysis
of Headscarves, Religious Expression, and Women's Equality under
International Law," Columbia Journal of Transnational Law,
May-Aug. 2007, pp. 390-1.
[8]
Gérin et al., Rapport
d'Information.
[9] S.A.S. v.
France, para. 17.
[10] Ibid., para.
25 and 141.
[11] Ibid., para.
121.
[12] Ibid., para.
146.
[13]
Frances Raday, "Professor
Frances Raday Comments on SAS v France," Oxford Human Rights
Hub, University of Oxford, Oxford, July 19, 2014.
[14]
While the word "phobia" suggests fear, the term has commonly
referred to "dread or hatred of Islam—and, therefore, to fear or dislike
of all or most Muslims." "Islamophobia:
A Challenge For Us All," Commission on British Muslims and
Islamophobia, British Runnymede Trust, London, 1997, p. 1.
[15] S.A.S. v.
France, para. 37; see, also, Thomas Hammarberg, Human
Rights in Europe: No Grounds for Complacency. Viewpoints by Thomas
Hammarberg (Strasbourg: Council of Europe Publishing, 2011), pp.
39-43.
[16] S.A.S. v.
France, para. 98.
[17] Ibid., para.
148-9.
[18]
See, for example, Lydia Girous, Allah est grand la République aussi
(Paris: J.C. Lattès, 2014); idem, #Je suis Marianne (Paris:
Grasset, 2016); Mona Elthahawy, Headscarves and Hymens: Why the Middle
East Needs a Sexual Revolution (New York: Farrar, Straus and Giroux,
2015); BBC, July 19, 2010.
[19]
Salafism is an ultra-orthodox movement within Sunni Islam that condemns
any innovations or changes to the faith that are perceived as deviating
from the practices of the prophet Muhammad and his earliest followers.
[20]
André Gérin, et al. (Gerin Commission), Mission
d'information sur la pratique du port du voile intégral sur le territoire
national (Paris: Assemblée Nationale, Sept. 2009); Gérin, et al.,
Rapport
d'Information, p. 104.
[21]
Sylvie Tissot, "Excluding
Muslim Women: From Hijab to Niqab, from School to Public Space,"
Public Culture, Winter 2011, p. 43.
[22]
Paul Cliteur and Bastiaan Rijpkema, "The Foundations of Militant
Democracy," in Afshin Ellian and Gelijn Molier, eds., The State
of Exception and Militant Democracy in a Time of Terror (Dordrecht:
Republic of Letters Publishing, 2012), pp. 227-73.
[23]
Daniel Pipes, "Niqabs
and Burqas as Security Threats," DanielPipes.org, Mar. 7,
2002, updated Jan. 11, 2015.
[24] S.A.S. v.
France, para. 25.
[25] Ibid., para.
139.
[26]
Pipes, "Niqabs
and Burqas as Security Threats."
[27]
Jelle Flo and Jogchum Vrielink, "The
constitutionality of the Belgian burqa ban," OpenDemocracy.net
(Manchester, N.H.), Jan. 14, 2013.
[28]
Koen Lemmens, "Larvatus Prodeo? Why concealing the face can be
incompatible with a European conception of Human Rights," European
Law Review, Jan.-Feb. 2014, pp. 47-71.
[29] The
Guardian (London), May
22, 2015.
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