Burqa Ban: Values under the veil of democracy

Many media outlets have been highly critical of France’s 2010 law banning face coverings and local decrees adopted this year banning full-body “burkini” swimsuits on public beaches. On one side, the proponents of these measures contend the historical and socio-political reasons as a means of justification whereas on the other side those who criticize these measures voice their concerns against the suppression of religious faith and expression.

The ban on Burqa and more. France has stuck by its stance. Image Source : Pickering Post

Is this law a populist ploy aimed at stigmatizing France’s six million Muslim community or is it an act of putting a veil on the more dire economic problems plaguing the French society (such as high unemployment and sluggish growth)?

This article seeks to accentuate both the sides of the contention to arrive at a conclusion as to how veracious has the French government been to its constitutional principles and to its member nations of the European Union.

Firstly, the foremost reason for this ban is that the veil represents the subordination of women, their humiliation and their inequality. This is contradictory to French values which dictate the freedom to wear clothing of one’s choice. In high schools near Lyon, Muslim students have asked their headmasters to provide them with a room where they can change and wear clothes similar to those worn by other students as their parents were forcing them to wear clothes hiding all signs of femininity. The French society believes in secularism and gender balance which is enshrined in the French Constitution under Article 1 and therefore sees this ban on face coverings as an appropriate measure to curb these inexplicit pressures on women. The veil represents a symbol of subservience and infringes on the right to freedom.

Secondly, it is erroneous to say that this law is an attack on Islamic fundamentalism. The legislation adopted makes no reference to Islam. To better understand this it is imperative to take into cognizance that the law pertains to the niqab, which covers the entire body excluding the eyes, the burqa which covers the entire body and has a mesh grille in front of the eyes and the sitar which is an additional veil that covers the eyes. Dr. Dalil Boubakeur, former rector of the Paris Grand Mosque testified that the burqa and niqab existed much before the advent of Islam. It is an archaism that has nothing to do with Islam. The practice of wearing them is simply a tradition upheld for generations and has no connection with religion. Moreover, the niqab originally was a piece of clothing designed to protect oneself from the sun. Therefore, criticizing this law on absolute religious grounds is not a substantial argument and embellishes a wrong perception that the French government is hurting Muslim sentiments by prohibiting the right to freedom of religion.

Advocating the Muslim community residing in France, firstly, this law violates the EU antidiscrimination law which states that all EU citizens are entitled to “legal protection against direct and indirect discrimination on the grounds of race or ethnic origin”. Given the ban on face coverings which implicates a fine of $190 and the requirement of a course on republican values, French citizens are being denied “legal protection” as mandated by the law. Moreover, the “right to human dignity” is one of the republican values preached in the course. This is highly ironical given that the 1946 Preamble of the French Constitution reminds us that “the French people proclaim anew that all human beings have inalienable and sacred rights”. What’s further confounding is that the French Justice Minister Michele Alliot-Marie defends the legislation by saying that “It is a question of dignity and equality in our republic”!

Secondly, the apex body responsible in the European Union to determine the validity of the burqa ban is the European Court of Human Rights (ECHR). This determination requires the interpretation of Article 9 of the European Convention which states that:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Understanding the context herein is essential in determining the impact of an expression. The status and treatment of this article might differ on a case by case basis due to the different legal system in each state. The ECHR herein uses the “margin of appreciation” to base its judgement. This means that Article 9(2) is not absolute and may be subjected to restriction if the restriction is “proscribed by the law” and is “necessary in a democratic society”. The “proscribed by law” point concedes to the 2010 legislation banning the burqa. However, the ban on burqa is not necessary in a French democratic society. This is because the community of people who advocate the burqa are a minority in the nation. They haven’t stirred Islamic extremism or caused interference with the nation’s progression.

The ECHR did support a similar ban in Turkey (pertaining to headscarves), but it is imperative to consider the fact that the demographic situation was different there. 99.8% of the Turkish population is Islamic and therefore the fact that one could unduly influence/pressurize a person who does not wear a headscarf into wearing one was a cause of concern. Thus the ECHR should have treated France as a starkly different case and stuck down on the ban on burqa.

Integrating the above arguments on a common platform, France needs to figure out how to reconcile its republican and secular values with more assertive expressions of Islamic faith. French politicians such as Nicolas Sarkozy need to revaluate their judgements when they say that the burqa is “a sign of enslavement and debasement”.

The sentiments and practices of the minority need to be supported in order for it to be in harmony with French democracy. Democracy does not mean that the majority must always prevail. A balance should be achieved to ensure the fair treatment of people from minorities and avoid any abuse of a dominant position.

Ayush Banerjee

Ayush Banerjee

Policy Intern at InPRA
Ayush Banerjee has completed his bachelor's in economics from Narsee Monjee Institute of Management Studies. He has been associated with several NGO's (Round Table India, Make a Difference, Save the Children etc.) in the past and is committed to making a positive difference. An avid follower of activist investing and Buffetology, he aspires to become a successful value investor in the Indian equity markets.
Participating in debates and MUN's has motivated him to research on international law and change the public perception about the prevalent laws by conducting a deep dive analysis of policies and it's ramifications. He hopes to do the same by writing for InPRA.
Ayush Banerjee