French face-covering ban comes into force – Eoin Daly

12 April 2011 by Guest Contributor

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.