France’s Burqa Ban Passes Constitutional Muster

Photo by Bernard Gagnon (April 2010).

The French government’s ban on clothing that covers an individual’s face when in public, including the burqa and the niqab worn by Muslim women, has passed its last domestic legal hurdle. The traditionally Afghan burqa is a full-body garment with a narrow gauze-covered eye opening while the niqab, its Arab equivalent, has just a narrow eye opening. France’s Concealment Act (Act No. 2010-1192), which prohibits the covering of the face in a public space, passed through France’s National Assembly and Senate with overwhelming support earlier this year. On October 11, 2010, the Constitutional Council’s decision No. 2010-613 rendered the Act constitutional. Constitutional approval, however, does not mean that the law faces no further obstacles. Concerns over possible human rights violations could result in the Concealment Act needing to answer to an international authority, specifically the European Court of Human Rights (ECtHR).

The French Constitutional Council (Council), France’s highest legal authority, ruled that the law does not create disproportionate punishments and therefore conforms to the constitution. The Council found that the Concealment Act did not violate Article 10 of the French Constitution pertaining to religious expression, after it had amended the text to state: the ban cannot apply in places of worship. The Council believes this amendment to the Concealment Act will protect women’s rights to worship or wear such garments in a place of worship.  Anyone violating the ban will be subject to a fine of €150 or required to complete a citizenship course and anyone who forces another individual to conceal her face in public will be subject to a one-year prison term or a fine of up to €30,000.

In reviewing the law, the Council expressed one exception: that the ban should not “restrict the exercise of religious freedom in places of worship open to the public.” The Council did not specifically mention the wearing of face-covering clothing in mosques, but it did suggest that extending the ban to places of public worship could be unconstitutional, because it may violate religious freedom.

This new law extends the prohibitions of French law No. 2004-228 of 15 March 2004, which banned the displaying or wearing of overt religious symbols in all public schools, including headscarves worn by Muslim schoolgirls. Although similar, the 2004 law is distinguishable in that it specifically applies to the public display of religious symbols or clothing whereas the text of this law does not make explicit reference to Islam or the Islamic veil. French President, Nicolas Sarkozy has eluded that the Concealment Act is aimed at Muslim women, stating: “In our country, we cannot accept that women be prisoners behind a screen, cut off from all social life, deprived of all identity … The burqa is not a religious sign, it’s a sign of subservience, a sign of debasement … It will not be welcome on the territory of the French Republic.” However, the Concealment Act does not specifically mention the words “Muslim,” “women,” or “veil” in any of its six articles; rather, the law generally references clothing designed to cover the face. Even though the law does not explicitly target Muslims, many fear that it will disproportionately stigmatize France’s Muslim population, which at five million, is the largest in Europe where an estimated 2000 women wear these types of veils.

Many human rights organizations, including Amnesty International, view the ban as a violation of essential human rights defined by the Charter for the Fundamental Rights of the European Union (Charter) and the European Convention on Human Rights (ECHR), to which France is a state party.  Both Article 9 of the ECHR and Article 10 of the Charter, seek to ensure freedom of thought, conscience, and religion including the freedom to manifest religion or belief in worship and observance. The same is true for Article 18 of the United Nations Universal Declaration of Human Rights (UDHR) and Article 18 of the International Covenant on Civil and Political Rights (ICCPR). Concurrently, the principal document enunciating women’s rights, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) recognizes a state obligation to take measures to abolish laws, regulations, customs and practices that discriminate against women (Article 2) and to modify social and cultural patterns to eliminate discriminatory practices (Article 5).

Rather than an infringement on religious freedom, the French government views the decision by the Council as an important affirmation of French values – equality between men and women, and secularism. The French government also justifies the ban on the basis of national security. French authorities assert that “the ability to cover the face in a public place is a security hazard in a time of increased threat from terrorist organizations.”

Now that France’s Constitutional Council has approved the Concealment Act, only the ECtHR can strike it down and render a binding opinion on France. The likely success of a claim against the ban before the ECtHR is uncertain. In Aktas, Bayrakand and other v. France (no. 435631/08) Decision of June 30, 2009, the ECtHR rejected the admissibility of complaints filed by four Muslim girls and two Sikh boys, who were expelled from public schools in France in 2004 for violating the law prohibiting the wearing of clothing or symbols expressly showing the students’ religion. The ruling upheld the 2004 law reasoning that the restrictions on the manifestation of religion were necessary to guarantee public order and maintain the rights and freedoms of others.

The French law reflects a growing tension between the right to religious freedom in a secular country and the affirmation of women’s rights, two principles that are promoted and protected by international law. While France claims the new law is a step forward for the rights of Muslim women, and Muslim leaders concur that Islam does not require women to hide their faces, the ban elicits outcries from both Muslim fundamentalists and human rights advocates. With this new law, France may be trying to enforce women’s rights within CEDAW, but in doing so, France is infringing on what many Muslim women in France may regard as their religious freedoms.

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