The clothing at issue was the female Muslim dress known as the niqab and burqa. The former covers the body and leaves the face covered in a mesh veil. The latter covers the whole face with only a gap for the eyes.
The law itself allowed for facial concealment at sporting events, festivities or for occupational reasons. The indirect effect being that religious dress worn on a daily basis would be banned.
It is because of this indirect effect that a female French national brought the appeal to the Court. As a Muslim, she argued that the law breached her rights under the European Convention on Human Rights (ECHR). Known as SAS, it was made clear to the Court that she was wearing the garments without coercion or force from anyone else.
During the case a number of international organisations took part as third party interveners. Amnesty International argued that it violated a woman's right to "freedom of expression and religion". Other international organisations such as Liberty, Soros foundation and Article 19 also submitted written observations in support of the appeal.
The French government's response was founded on a number of arguments. One being that individuals should be identifiable when required for security purposes. Allegations of discrimination were countered by explaining that the law helped to prevent gender discrimination. That is, wearing a face veil is not widely accepted Muslim practice so the law does not discriminate against the overall Muslim community. Instead it ‘protects’ the female minority who were to have their faces concealed. France also argued that the law’s aim was to defend the dignity of human beings, a point that seemingly ignores the concept of religious dignity and self-determination. Critics deriding the law for impeding on the right to private life were levelled with the response that the law only applied in public spaces. The foundation to the appeal, and one the Court was most susceptible to accepting, was that the ban promoted integration. This was an extension of the French government’s aim to balance unity with “secularist pluralism”.
The Court found the law did not breach the ECHR and that furthering conditions aimed to enhance the notion of “living together” was a legitimate aim. This promotion of social integration would otherwise be undermined by permitting clothing that concealed citizens’ faces.
But the issue here is proportionality. Social cohesion may well be a legitimate aim and restrictions used to achieve this goal proportionately would be welcome. Yet the Court recognised that the restrictions impeded on articles 8 (right to respect for private and family life) and 9 (right to practice a religion) of the ECHR. But the ban was also found to protect the rights of the majority to reside in harmony. This harmony seemed to be affected by concealing a citizen’s face in public due to voluntary religious expression. As such the restriction was justified by the need to protect the majority's rights.
The Court granted France a ‘margin of appreciation’ to restrict these rights and allowed the creation of the untested doctrine of ‘living together’ to complement it. The combination of the two has created a grey area in the law for some and a precedent within the EU is now set.
For now France and Belgium are the only countries to introduce the ban. That the Court has permitted a broad governmental restriction of minority rights, based on loose notions of community is dangerous territory. By stretching its interpretation of law and governmental flexibility to fit the Member State hymn sheet, the result is one many will feel uncomfortable with.comments powered by Disqus
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