French face-covering ban comes into force – Eoin Daly
12 April 2011
Against the backdrop of much fanfare and polemic, France’s controversial prohibition on face-veiling came into force yesterday. The law has met with derision and scepticism internationally, and internally, from a surprising source, in the guise of a police union which “denounced” the law as “unenforceable”.
The law, which was passed by the Senate in September, was motivated by a number of political concerns.
First, it was rationalised with reference to the value of gender equality, and the concern that the republican state should take a stand against the symbols of value in the public square.
Second, it was motivated by an idea that the much-cherished principle of laïcité, or secularism, should preclude “ostentatious” or threatening displays of religious affiliation in the public square.
Third, it was thought that the imperative of republican civility, or what feminist Elisabeth Badinter bizarrely termed the “obligation of fraternity”, precluded the practice of hiding one’s identity in public.
Fourth, and far from least, the recent populist turn of the French government and president, under pressure from the new leader of the resurgent National Front, has fed a parallel discourse surrounding the imperative of integrating Islam in French society. By this light, the “full” veil was perceived as an ostentatious marker of difference or segregation, an indication of creeping “balkanisation” or “communautarisation” of French society.
On this narrative, cultural integration required the abandonment of cultural or religious practices perceived as alienating and threatening to “French values”. Therefore, curiously, the rationale for the law has a dual character, both emancipatory and disciplinary – it is suggested that the republican state will emancipate veiled women from pressures and domination imposed within family and community (quite how it will empower the victims of gender oppression is unclear) – but also, that the law imposes an obligation to temper the intensity of one’s religious affiliation for the sake of national and social cohesion.
This populist turn, and a rather disproportionate preoccupation with Islam, culminated recently in the staging by the ruling UMP party of a public debate on the integration of Islam within the French model of laïcité. This mirrored the President’s botched 2010 initiative surrounding townhall-style debates on “national identity”, which was broadly critiqued as abusively subsuming the question of “national identity” within a broader disourse about immigration and integration. Following last week’s laïcitédebate, the UMP has promised to set down a parliamentary resolution on laïcité, without amending the cherished 1905 law of separation of churches and state.
This was set against the backdrop of President Sarkozy’s recently expressed reticence surrounding Muslim street prayers and the construction of Minarets – which seemed to follow on the heels of Marine Le Pen’s absurd depiction of street prayers as a “foreign occupation”.
By this light, it seems that the French model of secularism is increasingly being interpreted as entailing an obligation of discretion, for private citizens, in the manifestation of their religious beliefs – extending beyond the mere ideal of State-religion relationship which it has historically embodied, at least since the 1905 law of separation of churches and state, which privatised religions at the institutional and juridical levels.
Indeed, the UMP’s debate on Islam and secularism was boycotted by the Left and civil society, who objected that it risked “stigmatising” French Muslims. Indeed, the governing centre-right’s focus on Islam has recently been subject to something of a public backlash – Sarkozy’s former “diversity adviser” quipped that French Muslims “should wear a green star” to remind the government of the historical legacy of stigmatisation and victimisation on religious grounds. As one op-ed contributor objected, overzealous secularists denounce requests for accommodationist measures, such as recognition of feast days, as a form of “communitarian” special pleading – without acknowledging the embedded Christian bias of the ostensibly public calendar.
The historical anticlericalist claim to force religions themselves to internalise democratic precepts has apparently subsided – except in the case of Islam, as evident in various unlikely proposals, such as the suggestion that imams should preach only in French, or that the 1905 law should be amended to allow for the funding of “moderate” mosques. It was objected “the majority of French citizens believe that western culture has ceased to be determined by religion, and that only the Other remains impermeable to secularisation. So Christmas and Easter are part of the common culture of all the French, while feasts associated with Islam are seen as particularist expression of ‘communitarianist’ rebellion … [to denounce this] as communitarianism rests on the assumption of Islam as an essentially foreign entitity.”
A rather incongruous backdrop to the “burqa debate” has been provided by a number of high-profile prosecutions under France’s comparatively extensive hate-speech laws, which include an offence of “incitement to discrimination”. These illustrate the intensity of public debate surrounding Islam and secularism.
For example, a man was convicted to a three-month suspended sentence for urinating on a copy of the Koran, and broadcasting the event on the internet. Civil society groups lodged a police complaint in relation to an intervention by the Minister of the Interior, Claude Guéant, in which he said that “the growing number of Muslims, and a certain section of their behaviour, causes problems”. A former interior Minister, Brice Hortefeux, was convicted by a lower court for an ostensibly jocular remark, in relation to a young UMP militant of North African origin, that “when you have one of them it’s alright, it’s when you have too many, it’s a problem”.
As for the practical and doctrinal scope of the anti-veiling law, it takes the form of an interesting device – although the political discourse animating the law suggested it was the burqa and niqab – as such – which were to be the object of the prohibition, the law itself is “facially neutral” with regard to religion or the religious character of dress (this has probably been adopted as a constitutional precaution). Thus, the measure simply prohibits dress which “hides” the user’s “face”.
On its face (no pun intended), it is a prohibition on public disguise. It then proceeds to exempt various forms of socially-acceptable face-veiling, except religious face coverings. It exempts cultural, artistic, health-related, “traditional”, “carnival”, sport and professional activities (Santa Clauses will apparently be safe, despite the technical similarity of the niqab to the standard-issue white beard.) Similarly, I was able to confidently reassure a nuch-relieved colleague today that traditional wedding veils would remain unmolested (republican universality, and the “obligation of fraternity”, seem to have their cultural and contextual limits after all…)
Thus, in formal terms, religiously motivated face coverings are caught within a generally applicable prohibition on the secular act of face-covering. This is actually the converse to the 2004 law on religious dress in schools, which prohibited attire “which, by its conspicuous nature, indicates a religious affiliation”. In contrast, otherwise permissible conduct was prohibited specifically by virtue of its religious character and motivation, in contrast to a situation where religiously motivations are not exempted from a broader category of prohibited activity.
The law will be enforced by a €150 fine or attendance at a citizenship class. It was ordained in a recent circular that police will have no power to remove veils in public, but may require veiled persons to attend a police station where they must identify themselves. The measure also creates a separate offence of forcing persons to wear a face-covering, by threats or violence, which carries a penalty of one year’s imprisonment and a fine of up to €15, 000 for those who force women to wear veils, through threats or violence (Art. 225-4-10).
The constitutionality of the provision has been upheld by the French Constitutional Court. Its compatibility with the ECHR has not yet been tested by any court (this responsibility would fall to the Council of State, the administrative court of final appeal).
Eoin Daly is a Lecturer at the School of Law and Government, Dublin City University. This guest post first appeared on the Human Rights in Ireland Blog and is reproduced here with permission and thanks.
I wondered where this legal will lead us. I believe that this will have terrific impact on French hierarchy of norms as:
– it is very likely that the law will be quashed by Strasbourg;
– However, the law has been declared as conform to the constitution, which does refer to human rights in its preamble.
Therefore, we are about to see a clash between two different “version” of human rights: those deriving from the Constitution (which embodies the whole history of human rights in France by reference to the Constitution of 1946 – the theory of “Bloc de constitutionalité”) and those deriving from the ECHR system. How on earth will it be possible to reconcile such a schizophrenic position with the universal nature of these rights??
Women who choose to only venture outside wearing a veil, or those that have that choice made for them, are unlikely to modify this practice. These liberated women will presumably now enjoy the freedom of never leaving the home. I am sure they will be grateful!
Great posts all, esp. Tara.
Last year the Conseil d’Etat gave (as far as I can remember) a pretty damning advisory opinion when asked about bans on face veils. I’d imagine that a pressure group might be well served by getting someone arrested and putting this in front of the courts to see of it’s ECHR compatible.
It appears to me to be a clear case of ‘indirect discrimination’ as the right not to be discriminated against is violated when states (France) ‘…without an objective and reasonable justification fail to treat differently persons whose situations are significantly different…’ (Thlimmenos v Greece).
Only the wearing of the islamic veil concerns the French inrelation to its arguments of gender equality and priciples of secularism. These two arguments have no weight when applied to alternative non-veil face coverings such as a balacava, which would be covered by the law.
What a balancing act:-
Can you ban Hoodies (mostly men) and let people go fully covered (mostly women)
Can a woman be considered equal if she must cover her face in public when men do not have to cover their faces?
Could a group of people be considered as discriminated against if they have to cover their faces in public?
Should a group be banned from wearing the cross because it is a religious symbol or suffer arrest for urinating on or burning their own book (no matter what the book is) or suffer arrest for wearing a burka because it is a religious garment?
Women in France are not allowed by law to go naked in public and this is enforced (save on some beaches) Women in France are not allowed to go fully veiled in public and this must also be enforceable
But should the state anyway legislate what people wear, what they urinate on or burn perhaps not! But they have done so for as long as man walked the earth and called himself civilized.
One aspect overlooked outside muslim circles is the feminist aspect. There is a long tradition of liberating oppressed people [solidarity] – whether they want to be liberated or not. It beggars belief that anyone is wearing a niqab or burka voluntarily. What the niqab is is oppression of the individual – either via cultural pressure or personal or “religious”.
There has been a drift in French culture towards preferring discretion in public manifestation of primitive religious twaddle – and that is a good thing.
As a woman I agree wholeheartedly as this symbol and form of oppression (the burka) demeans every woman and brings forth the fear that allowing this to be worn will push women’s rights back to the middle ages.
Such a symbol has no place in a society which upholds Human Rights and equality.
My only reserve is that it is a form of dress and legislation against what is worn seems itself archaic.
But in this case it is justified as it is in the wider Public Interest
“It beggars belief that anyone is wearing a niqab or burka voluntarily.”
Are you sure that this is fact (i.e. no-one could ever wear a veil voluntarily) rather than a lack of imagination on your part? I don’t think it’s possible to say that converts didn’t choose to wear the veil voluntarily. In that case, it’s hard to call banning veils ‘liberation’.
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