The formulation of law at the intersect between civil liberty, individual freedom and control by the state has always been thorny territory: a patchwork of compromise, a no mans land where we all must live.
The libertarians and the anarchists can’t be doing with it. They would rather kick the law up its backside till it goes nee-nawing off into the wilderness.
The control freaks would prefer to see every inch of our land covered by CCTV and by laws governing when and where you can hang your washing out and sneeze or fart in public.
Thus the protracted debate on the proposed law to ban the wearing of the burqa in France and other EU countries rumbles on and on, supported, it has to be said, by majority public opinion in most EU countries except perhaps the UK. Mind you, popular public opinion has never been a productive basis on which to build legislation, though clearly, some politicians are so tempted.
Obviously the debate goes way beyond what rags you are (or are not), allowed out in. Emotions run high, tempers flare, misunderstandings occur. It is definitely not a debate about fashion. But it does seems to take place in a fog ridden no-mans land, where it is easy to get lost, side tracked into argumentative cul-de-sacs. To get exasperated and confused by the demands to manifest religious expression in the public sphere (regardless of issues of security, equality, social cohesion, womens rights, employment law, integration and this that or whatever else. Equally, to get waylayed by arguments about the oppression of women within patriarchal fundamentalist religious cultures;with people second guessing what is going on in the mind of a women wearing a burqa and, (even if you could know that without asking), to reject it out of hand because of ones own cultural prejudice. All of that is going on and I suppose, in the end, it is all an attempt to get to the nitty gritty at the heart of the issue.
Which is what, exactly?
I have been lost in this fog too, havering between this or that position, getting confused, trying to juggle too many complex issues in my brain at once, or swayed by passionate arguments and, in the end, tending to side, (but not wholeheartedly), with the view that it would be contrary to our ‘values’ to impose such a law. That could be very wrong.
So here, I just want to avoid all these cul-de-sacs and focus very narrowly on considerations that will stem from an examination of EU Human Rights Legislation in the hope that it will help blow some of the fog away from my brain.
We enact laws that do, to a greater or lesser degree, reflect the core values society holds. If not that, then at least they give some indication of what those values might be. In the case of the French rebublic then, the notions of liberty, equality and fraternity, of laïcité.
Whether such laws shine or not in practice will not be my concern here. I don’t want to get lost in other arguments about whether laws are impractical, inoperable or unenforceable. We don’t, (or shouldn’t), shy away from creating laws because they will upset someone or be difficult to enforce. We create them because we have a notion that they will contribute to the common good somehow: they will have a net benefit to society, enhancing fairness, equality, justice or some other quality we consider desirable – (and yes, I know not all laws are created for these reasons).
So let’s fast forward then to the point where a law banning the wearing of the burqa in public is on the statute book in an EU country, and a test case is placed before the Strasbourg court for consideration. Of the EU countries, Belgium is the one furthest along the road to imposing an outright ban, with France following close behind.
Let us suppose that the respondent brings a case under article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms - as follows.
Article 9 – Freedom of thought, conscience and religion
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.
Article 9 then, enshrines the absolute right to hold a belief 9(1), and the qualified right to manifest that belief 9(2). The court will then have to consider whether there is justification under 9(2) for limiting or interfering with a muslim womans choice to manifest her belief by wearing a burqa.
And let us not get side tracked into considerations of a particular woman, in a particular place such as a university, a bank, an airport, a government office, a hospital, a place of employment or some other institution where limitations of freedom under 9(2) are justified for more or less obvious reasons and will be upheld by Strasbourg. We are talking of a woman in a public space and considering in 9(2) where and why a limitation on her freedom to so dress may be justified in law. Remember, for the time being anyway, to set aside such arguments as: because I don’t like it, because it makes me feel uncomfortable, because the women is being oppressed. All those things may be true but they are not relevant here. The French government is bound (as are we) by this convention and must therefore get any law they choose to adopt through the European Court of Human Rights (ECHR) where a challenge is bound to end up.
The appellants case must turn then on one or a combination of the following from 9(2): the interests of public safety, the protection of public order, health or morals, the protection of the rights and freedoms of others. The EHCR will, presumably, concern itself with whether or not the respondants Convention rights have been violated, and if so, will put the reasoning put forward under 9(2) under intense scrutiny. Would the court consider it a proportionate response to the problems being addressed, or, as Poole sugests - (Of Headscarves and Heresies, 2005, p691-695) - "a recipe for judicialisation on an unprecedented scale." I think he is wrong and is placing too much emphasis on the ‘slippery slope’ argument.
Here again, we might get side tracked into arguing that since Islam itself denies the freedoms outlined in 9(1) it would be somewhat hypocritical of it to then rely upon its protections. Or we might point out that it is all very well protecting the rights and freedoms of others, but what about protection for the rights and freedoms of the poor women compelled to wear a burqa? One might take the view that the wearing of such garb symbolises an aggressive challenge to laïcité, promotes parallel communities in society. living alongside but not with each other, and profoundly hinders social cohesion and integration within those communities. We might argue that a ban on the burqa and niqab will worsen the plight of women and make them prisoners in their own homes. We should explore all of these avenues of course but I am still going to stick with law here.
I think a respondents claim of article 9 violation will fall, not at 9(1), where interference may well be granted, but at 9(2) based on precedence (see Sahin v Turkey (2005) 41 EHRR 8). Here the European Court said:
"The Court observes that the role of the Convention machinery is essentially subsidiary. As is well established by its case law, the national authorities are in principle better placed than an international court to evaluate local needs and conditions. It is for the national authorities to make the initial assessment of the 'necessity' for an interference, as regards both the legislative framework and the particular measure of implementation...
Where questions concerning the relationship between state and religions are at stake, on which opinion in a democratic society may reasonably differ widely, the role of the national decision-making body must be given special importance. In such cases it is necessary to have regard to the fair balance that must be struck between the various interests at stake: the rights and freedoms of others, avoiding civil unrest, the demands of public order and pluralism.
A margin of appreciation is particularly appropriate when it comes to the regulation by the Contracting States of the wearing of religious symbols in teaching institutions, since rules on the subject vary from one country to another, depending on national traditions, and there is no uniform European conception of the requirements of 'the protection of the rights of others' and of 'public order'."
Although this case related to a headscarf prohibition in an educational establishment it went on to say that the "Turkish Constitutional Court was entitled to consider the headscarf prohibition necessary to safeguard the principle of secularism which guaranteed freedom of individual conscience, equality before the law, protection from external pressures and the rights of women." And it is difficult to see why this principle of safeguarding the principles of secularism should be not be applied to the wider society.
I used to hold the view that it was no business of the state what one wore in the public arena. I now think there may be justification for a limitation on freedom to wear partial or full face coverings on the principle that everyone should be identifiable in public and that Strasbourg might well be minded to uphold this on grounds of public safety and security. We shall have to wait and see. It depends on how the law is drafted.
Is it a minor opression to counter a major opression.? Probably.
Are there suitable dress alternatives for muslim women that fulfill the requirements of Islamic dress code without partial or full face coverings? Certainly, many.
Will political Islam scream discrimination from the rooftops? Certainly.
Will there be worse than that? Possibly.
Will the outcome in the end bring a net benefit to society? I don’t know.
Perhaps it is just that I am in no mood at the moment to compromise with a culture that enshrines the brutal suppression of womens human rights and freedoms and hands out barbaric degrading, and inhuman punishments to women on a daily basis.