The burqa’s legal standing in Europe was dealt another blow in July after the European Court of Human Rights (ECHR) ruled that Belgium’s ban on face coverings is lawful under convention rules and “necessary in a democratic society”.
The Strasbourg-based court’s unanimous ruling determined that the 2011 Belgian law, which prohibits people from wearing clothing that partly or completely covers the face in public, is justifiable under the European Convention on Human Rights because it aims to “guarantee the conditions of ‘living together’ and the ‘protection of the rights and freedoms of others’”. The two Muslim women — one a Belgian national, the other Moroccan — who had brought the case to court argued that the ban violates the rights of veiling-wearing women to religious freedom and privacy. The court ruled that it does not.
This isn’t the first time the ECHR has come to this conclusion. When the court considered France’s burqa ban in 2014, it accepted the French government’s argument that the ban was aimed not at targeting Muslim women’s freedom of religion, but rather at the “legitimate aim” of preserving the idea of living together. Citing its previous ruling in the S.A.S. v France case, ECHR said in the decision that “the concern to ensure respect for the minimum guarantee of life in society could be regarded as an element of the ‘protection of the rights and freedoms of others’ and that the ban was justifiable in principle solely to the extent that it sought to guarantee the conditions of ‘living together’.”
Though the ECHR isn’t bound by judicial precedent in the way most courts are, Dr Eva Brems, a professor of human rights law at Ghent University and a former Belgian lawmaker, told me the court’s ruling suggested that it kept its previous ruling in mind. One way it did this, Brems said, was by choosing to defer to the opinion reached at the domestic level, as it had done with the French ban. “In France, there has been a very long process with dozens of hearings and a very long report on the desirability of the ban,” she said. “What I was really dismayed to see in the Belgian judgement is that they simply said, ‘In Belgium, it has been thoroughly discussed by parliament and by the constitutional court.’”
Brems warned that legislating on the principle of “living together” could be risky in practice.
Brems had been present in parliament for those discussions while she was a Green party lawmaker. “I can say that if I hadn’t been there, no one would even have raised the issue of human rights in the whole parliamentary process,” she said. “No one wanted to engage with that argument — it was just dismissed out of hand.”
Brems was the sole MP to vote against the ban when it was put to a vote by the country’s legislators in 2011. At the time, she argued the law violated the basic human rights of Muslim women who chose to wear the veil — a number she said stood at between 200 to 300 people in a country of more than 11 million inhabitants.
There are other instances in which the ECHR has cited the principle of “living together” in cases concerning religious freedoms. In January, the court ruled a Swiss school’s obligatory mixed-gender swim classes did not violate the religious freedoms of two students as their parents had claimed (in this particular case, the parents argued the classes violated their daughters’ Muslim faith because they required them to wear swimsuits in front of their male peers). Though the court didn’t explicitly use the words “living together”, it noted in its ruling that the obligatory swim classes were lawful because they aimed at protecting the students “from any form of social exclusion”, not at violating the students’ religious beliefs.
Brems warned that legislating on the principle of “living together” could be risky in practice. “It’s not a criteria that is actually in the convention… and yet, it’s accepted as legitimate grounds for restriction,” she said. “If there’s a societal consensus against a particular group, that’s where human rights are most needed, and that’s when you have to be most alert.”
If the ECHR’s latest decision is any indication, other countries seeking to impose their own bans may have greater discretion to do so under convention rules.
Deferring to societal consensus could, however, be seen as a straightforward approach for a court that oversees the human rights cases of 47 countries. Mark Movsesian, the director at the Center for Law and Religion at St John’s University, told me this has its basis in a provision of the convention that says some freedoms may be subject to restriction in certain cases prescribed by law, such as those that are “necessary in a democratic society” or those that are aimed at securing “the protection of the reputation or rights of others”.
“According to the European Court of Human Rights, governments have a certain discretion in deciding exactly how to incorporate the treaty into their own societies,” Movsesian said. “With regard to the burqa ban, the court said there isn’t a European consensus on this — it’s not like all countries allow it or all countries don’t allow it, so you can’t say there is a ‘European viewpoint’. So when you put all that together, countries actually have a great deal of leeway in deciding how to approach these matters, and outright bans are permissible.”
France and Belgium are not the only European countries to have imposed bans on partial or full face veils. Since 2011, Austria, the Netherlands, and Bulgaria have all imposed similar restrictions. And others may soon join them. In December, German Chancellor Angela Merkel endorsed banning the full face veil “wherever legally possible”, noting that, “In communication between people, which is of course essential to our living together, we have to show our faces.”
If the ECHR’s latest decision is any indication, other countries seeking to impose their own bans may have greater discretion to do so under convention rules. “As is often the case, a judgement finding ‘no violation’ can be read as a how-to guide to pass such restrictive legislation without having any problems,” Brems said. “As long as you don’t say something openly Islamophobic or openly sexist, if you say the right thing — ‘we are doing this for social cohesion’, for example — it will pass.”
Hailey Gates investigates France’s burqa ban in the first episode of States of Undress season two, airing Thursday 7 September at 8:30pm on SBS VICELAND.
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