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— "AYNHA Hüquq Jurnalı" (III Sayı)- A ban on full-face veil as competing interests
 

13-10-2017, 11:59

 

"AYNHA Hüquq Jurnalı" (III Sayı)- A ban on full-face veil as competing interests

Fuzuli Jabraylli (LL.M in PIL/HR)

A ban on full-face veil as competing interests

Table of Contents

Abstact........................................................................................................1

Keywords......................................................................................................1

1. Introduction..............................................................................................1

2. A violation of individual liberties.................................................................2

2.1 The attack on devout women’s personal belief and life .............................2

2.2. A danger to human personality and discrimination...................................3

3. The securing women’s dignity and public order .........................................3

3.1. Protection securing women’s dignity and freedom...................................3

3.2. Securing public safety and order, and "living together" ...........................4

4. Conclusion..............................................................................................5

Bibliography...............................................................................................6

 

Abstact

Some European countries imposed a ban on full-face veil reportedly because of the protection of human dignity, public order and health, and other similar reasons. One group of scholars, politicians, and human rights defenders have been interpreting a blanket ban as a violation of inalienable rights of women, and an attack against some groups of muslims. However, there have been several authorities in the fields of politics and law to defend the ban on the basis of securing public order, and even if, human personality. 

 

Keywords

Human rights, public order, full-face veil, public safety, women’s dignity, living together

1. Introduction

Originally, the restriction of wearing of Islamic veil always sparks a debate among the lawyers, politicians and academicians. A number of cases are concluded by international courts such as the European Court of Human Rights (ECtHR) around Islamic veil, but the disputes go on incessantly.

In particular, the discussions have taken in religious freedom, human dignity and personality, pressure on females, personal choices after a law banning the full-face veil came into effect in France and Belgium,[1] the Netherlands and some areas of Spain, Switzerland, Italy and Russia.[2] The opponents of the ban read the decision as an attack on devout women’s personal belief and life, a danger to human personality and discrimination under the Universal Declaration of Human Rights (UDHR), the European Convention on Human Rights (ECHR) and other human rights acts.  In contrast to this, supporters interpreted the law as the securing women’s dignity and freedom and protecting public safety and order.

At the sake of absolute objectivity, the author addresses the issue from the aspect of international human rights standards, and indicates the arguments of each party. Admittedly, all statements towards the blanket ban cannot be investigated in one paper, for this reason, only the most frequent arguments will be analysed.

[1] Formally, in Belgium and France, prohibitive laws do not directly target full-face Islamic veil, but aim to forbid the concealment of one’s face ((SAS v. France (Application no. 43835/11), Judgment of 1 July 2014 (Grand Chamber), para. 88)).

[2]“The Islamic veil across Europe.” BBC News. December 06, 2016. Accessed January 20, 2017. http://www.bbc.com/news/world-europe-13038095.

2. A violation of individual liberties

Under universal human rights principles, any interference by the public authorities to personal belief and life should be considered unacceptable in democratic societies. Starting from this, every person can decide independently to wear or not any religious symbol, including the burka[3]and the niqab.[4] In addition, improving one’s personality is a fundamental human right without any discrimination between males and females.

[3]  “A long loose piece of clothing that covers the whole body, including the head and face, worn in public by some Muslim women” ((Oxford Advanced Learner’s Dictionary of Current English, Ninth edition (Oxford: Oxford University Press, 2015, p. 193)).

[4]A piece of cloth that covers the face but not usually the eyes, worn in public by some Muslim women”(Oxford Dictionary, p. 1013).

2.1. The attack on devout women’s personal belief and life

 

First of all, Article 9 of the ECHR states the right of religious freedom involving to manifest personal belief. If a woman considers wearing the burka or the niqab in public places as a statement of religious belief, in this case, the ban deprives them of realising a fundamental right. In respect to this, according to Resolution 1743 (2010) of the Parliamentary Assembly of the Council of Europe (PACE), a general ban on the full-face Islamic veil means denying women who want independently to conceal their face, however, the same act approves legal restrictions for democratic society and security purposes.[5]

 

Secondly, the ECHR Article 8 declared the right of respecting for personal life and denied any discrimination depending on one’s religion or sex. Prohibition of putting on any clothes is a serious interference in private life. According to “personal autonomy” principle regarding the interpretation of respect to private life, all individuals are entitled to establish details of their identities.[6] Such that, it may be also applied to the Human Rights Committee’s decision in Hudoyberganova v. Uzbekistan, in which to limit women from wearing religious clothing is considered as a violation of Article 18 of International Covenant on Civil and Political Rights (ICCPR).[7]

 

Finally, it should be drawn a line between to restrict to dress certain religious clothes in the official office and public places under the ECHR Article 8 (2) or 9 (2). At the sake of secularism,[8] to promote the common interests of society, to guarantee the religious neutrality,[9] to stipulate the protection of public health or morals, and other similar reasons, the state can impose some restrictive measures on religious dresses in state buildings, however, the same attitude can be questioned under allowing authorities to accept arbitrary decisions on matters concerning freedom of belief or religion, and respect to private life. Nevertheless, criminalising to having distinctive religious clothes in non-official buildings, such as streets[10] definitely means to ignore human existence. It leads to claim that by doing this the state coerces women to take off their certain religious clothes in order to be part of a human community and therefore, contravene forum internum.

 

[5]Council of Europe: Parliamentary Assembly, Resolution 1743 (2010) on Islam, Islamism and Islamophobia in Europe, 23 June 2010, 1743 (2010), para. 16.

 

[6] Christine Goodwin v. UK (Application no. 28957/95), Judgement of July 11, 2002 (Grand Chamber), para 90.

 

[7]Hudoyberganova v. Uzbekistan  (The United Nations Human Rights Committee) (931/2000) 18 January 2005.

 

[8] Leyla Şahin v. Turkey (Application no. 44774/98), Judgement of 10 November 2005 (Grand Chamber), para. 90-3.

 

[9] Dahlab v. Switzerland (Application No. 42393/98), Judgement of 15 January 2001.

 

[10] Ahmet Arslan and Others v. Turkey (Application no. 41135/98), Judgement of 23 February 2010, paras. 49-50.

2.2. A danger to human personality and discrimination

 

Despite its neutral formulation, for example, in France and Belgium, the blanket ban especially targets women and therefore, definitely, means “discrimination” under universal human rights standards. Full-face veiled women cannot put into practice their basic human rights such as education, employment, participating in elections and public referendums. This opens the way to make women being a second-class citizen and imposes a big threat to full-face veiled women’s existence. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) which has been constructed on the basis of equality between the sexes warns the government about equal rights and fundamental human rights. Removing females from political and social life for their clothing is not only sex-based discrimination but it is also discrimination among women.

 

From another perspective, Article 22 of the UDHR states the rights of females’ dignity and free development of their personality. Obviously, the women cannot realize these rights in a vacuum, without communications with the public, because the law prohibits wearing the full-face Islamic veil in public places. The ban isolates the women from social life, decreasing their roles in society and revokes their rights of employment. In other words, it creates an opportunity for locking women in the house.

3. The securing women’s dignity and public order

Inevitably, limitations to realising of human may be essential for public interests. Unfortunately, the full-face veils are misused for domineering women and disturbing public health under religious freedom. That’s why a general ban on the burka and the niqab is justifiable for the protection of women and public safety and order.

3.1. Protection of women’s dignity and freedom

Principally, the ban has been constructed as blocking the way leading to put pressure on females by forcing them to wear the full-face veil. The veil is interpreted as a danger to women’s dignity and freedom in the Report of the Committee on Culture, Science, and Education of the PACE.[11] In this respect, Article 15 of the Resolution 1743 (2010) perceives the burka and the niqab as an appearance of men’s domination over women, restriction of women’s professional life, social and economic activities, however, PACE recommends member states not to establish a general ban on any special religious clothing, including the burka and the niqab in the same act.[12]  Additionally, wearing full-face Islamic veil is not the Koran’s request and some Islamic scholars recognise the full-face veil as a cultural tradition rather than religious obligation.[13] However, this approach can be criticised whether the courts or executives exceed their authorities,[14] because they are not entitled to determine and to interpret the religious duties, in other words, the decisions or judgements should be rendered in accordance with universal human rights standards, but not to going deep into the religious disputes.

[11]Doc. 12266 25 May 2010 Report of the Committee on Culture, Science and Education by Mr. Morgens Jensen, Denmark. Islam, Islamism and Islamophobia in Europe; paras. 12-14 and 60-63.

[12] Supra Note 5, para. 17.

[13]Crosses, Veils and Other People: Faith as Identity and Manifestation. Michael Ipgrave. Religion and Human Rights 2 (2007), pp. 163-180.

[14] Leyla Şahin v. Turkey (Application no. 44774/98), Judgement of 10 November 2005 (Grand Chamber), dissenting opinion of judge Tulkens, para 12.

3.2. Securing public safety and order, and “living together”

Additionally, Article 9.2 of the ECHR entitles the governments to restrict one’s religious freedom for the protections of public safety. From this viewpoint, French and Belgian governments claimed that the purpose of banning law was preserving “public safety” in the case of S.A.S. v. France.[15] Concealing one’s face may endanger the others in practice, for instance, the terrorists may exploit religious symbols such as the burka and the niqab for their criminal acts. For example, Chad’s government banned the burka after Boko Haram used it for camouflaging the suicide-bombers.[16] For this reason, the wearing of full-face Islamic veil could be restricted for the maintaining public order and security of other members of society. Moreover, the others can be influenced psychologically while observing such people and therefore, the ban assures the protection of the rights of “living together” in society. In this respect, Resolution 2076 of PACE enables member states to invoke “socialization which facilitates living together” in order to justify “restrictions on religious practices” if the measures comply with the requirements of Article 9(2) of ECHR.[17] Hence, on account of pluralism, tolerance and broadmindedness, the states stipulate the protection of a principle of social communication and interaction among individuals while banning the concealment of one’s face.[18]

In contrast, although neither core universal human rights treaties, nor the ECHR explicitly recognises the restrictions on human rights under “living together.” Additionally, The Human Rights Centre at the Ghent University Law Faculty, which took part in the case of S.A.S. v. France as a third-party intervener refuted the argument based on that full-face veiled women impress others with their appearance. It indicated the result of empirical researches fulfilled in Belgium, France and the Netherlands which show that this allegation is groundless.[19] By the way, during the proceedings, Amnesty International, Article 19, Liberty and the Open Society Justice Initiative supported the applicant’s complaint statements, in other words, declared their negative vote to the criminal prohibition of concealment of one’s face in public.[20]

[15]SAS v. France (Application no. 43835/11), Judgment of 1 July 2014 (Grand Chamber), paras. 82 and 87.

[16]The veil in west Africa. Banning the burqa. Why more countries are outlawing the full-face veil.” The Economist, January 16, 2017, accessed September 11, 2016,  http://www.economist.com/news/middle-east-and-africa/21692902-why-more-countries-are-outlawing-full-face-veil-banning-burqa

[17] Council of Europe: Parliamentary Assembly, Resolution 2076 (2015) on Freedom of religion and living together in a democratic society, 30 September 2015, para. 5.

[18]  Supra note 13, paras. 128 and 153.

[19]Eva Brems. The Experiences of Face Veil Wearers in Europe and the Law (Cambridge: Cambridge University Press, 2014), pp. 17-161.

[20]Supra note 13, paras. 89-105.

 

4. Conclusion

In sum, a violation of the women’s rights is the main point of disputes as always happens. A general ban on the full-face Islamic veil victimises certain women by anyways. However, it is understandable that the governments have to struggle with negative impacts of anything on public order by laws, on the other hand, it must be avoided any limitations to human rights within this period as possible. Consequently, the authorities have to shoulder the responsibility of finding a fair balance between public and individual interests.

All states which apply to the ban should withdraw from the mentality that finds out the burka and the niqab as a threat to public order and democracy. Alternatively, a ban on the burka and the niqab may be perceived as an inevitable way of struggling with criminals who abuse the full-face veil in order to conceal their face. Furthermore, a general ban should be softened, for example, it may be allowed to wear full-face veils during Islamic holidays. This strategy aims to rehabilitate the human dignity of women whose lifestyles are affected as a result of the ban.

 

Bibliography

Primary resources

International legislation

  1.   1.  Convention on the Elimination of All Forms of Discrimination against Women (New York, 18 Dec. 1979) 1249 U.N.T.S. 13, 19 I.L.M. 33 (1980), entered into force 3 Sept. 1981.
  2.   2.  Council of Europe: Parliamentary Assembly, Resolution 1743 (2010) on Islam, Islamism and Islamophobia in Europe, 23 June 2010, 1743 (2010), available at: http://www.assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17880&lang=en.
  3.   3.  Council of Europe: Parliamentary Assembly, Resolution 2076 (2015) on Freedom of religion and living together in a democratic society, 30 September 2015, 2076 (2015), available at: http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=22199&lang=en.
  4.   4.   Doc. 12266, 25 May 2010, Report of the Committee on Culture, Science and Education by Mr. Morgens Jensen, Denmark. Islam, Islamism and Islamophobia in Europe, available at: http://www.assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=12479&lang=en.
  5.    5.  European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 Nov. 1950), 312 E.T.S.5.
  6.    6.  International Covenant on Civil and Political Rights (New York, 16 Dec. 1966) 999 U.N.T.S. 171 and 1057 U.N.T.S. 407, entered into force 23 Mar. 1976 [the provisions of article 41 (Human Rights Committee) entered into force 28 Mar. 1979].
  7.    7.  Universal Declaration of Human Rights (10 Dec. 1948), U.N.G.A. Res. 217 A (III) (1948).

Case law

  1.    1.   Ahmet Arslan and Others v. Turkey (Application no. 41135/98), Judgement of 23 February 2010.
  2.    2.   Christine Goodwin v. UK (Application no. 28957/95), Judgement of July 11, 2002 (Grand Chamber).
  3.    3.   Dahlab v. Switzerland (Application No. 42393/98), Judgement of 15 January 2001.
  4.    4.   Hudoyberganova v. Uzbekistan (Communication No. 931/2000), 18 January 2005 (UN HRC).
  5.    5.   Leyla Şahin v. Turkey (Application no. 44774/98), Judgement of 10 November 2005 (Grand Chamber).
  6.    6.   S.A.S. v. France (Application no. 43835/11), Judgment of 1 July 2014 (Grand Chamber).

 

  Secondary resources

 

  Books

  1.    1.   Brems, Eva. The Experiences of Face Veil Wearers in Europe and the Law. Cambridge: Cambridge University Press, 2014.
  2.     2.  Harris, O'Boyle & Warbrick. Law of the European Convention on Human Rights. New York: Oxford University Press, 2009.
  3.     3.  Oxford Advanced Learner’s Dictionary of Current English, Ninth edition, Oxford: Oxford University Press, 2015.

Articles

  1.    1.   Ilias Trispiotis. Two interpretations of "living together" in European human rights law. Cambridge Law Journal 75(3), pp. 580-607.
  2.    2.   Michael Ipgrave. Crosses, Veils and Other People: Faith as Identity and Manifestation. Religion & Human Rights 2(3), pp. 163-180.

 

Other resources

 

News

  1.    1.   “The veil in west Africa. Banning the burqa. Why more countries are outlawing the full-face veil.” The Economist, February 13, 2016, accessed January 16, 2017, available on: http://www.economist.com/news/middle-east-and-africa/21692902-why-more-countries-are-outlawing-full-face-veil-banning-burqa.

    2.    “The Islamic veil across Europe.” BBC News. December 06, 2016. Accessed January 20, 2017, available on: http://www.bbc.com/news/world-europe-13038095