Last week the Belgian Constitutional Court rejected a claim to annul the ban on face coverings, better known as ‘burqa ban’. This ban prohibits the wearing of clothing that covers the face, or a large part of it, in the public space. The Constitutional Court (hereinafter the “CC”) concluded that the ban does not violate fundamental rights such as the right to freedom of religion, the right to freedom of expression and the right to private life, provided that the ban is not interpreted in such a way that it also covers places of worship.
The Belgian ban was voted on the 28th of April 2011 and came into force on the 13th of July of the same year. It stipulates that
“Will be punished with a fine of 15 to 25 Euro and/or detention of 1 to 7 days, those who, except for contrary legal provisions, are present in places that are accessible to the public with their faces completely or partially covered or hidden, such as not to be recognizable.” (for a more detailed discussion see previous post by Eva Brems)
Although the ban is formulated in general terms the public and parliamentarian debates were clearly focused on the Islamic face veil. Two women wearing the face veil challenged the legislation before the Constitutional Court, together with human rights NGO’s such as the Flemish and Walloon human rights leagues and the organization “Justice and Democracy”.
The Constitutional Court accepts that the ban interferes with the rights of the applicants and accepts that the aims pursued by the legislator are legitimate. These aims were public security, equality between men and women and “a certain conception of ‘living together’ in society”. (§B.17)
No violation of freedom of religion and freedom of expression
Having accepted the three goals of the legislation as legitimate aims, the Constitutional Court turns to an assessment under article 9 ECHR and article 19 of the Belgian Constitution of the necessity and proportionality of the ban.
Concerning the safety argument, the CC considers that identity checks “could be made more difficult” when a person covers his/her face and would refuse cooperation with such controls. Moreover, the constitutional court adds that people covering their face are in general not, or less, recognizable when they would commit an offence or disturb the public order. (§B 20.2) Furthermore, the CC argues that “[i]t is not because a certain behavior would not yet have attained a level that would endanger the public order or the public safety, that the legislator would not be allowed to intervene. He [the legislator] cannot be blamed for a timely anticipation to such risks by penalizing behaviors when it is certain that the generalization of this behavior would entail such a real danger.”(B20) Therefore, the constitutional court concludes that the ban is necessary to protect public safety.
Throughout the judgment a lot of weight is given to the second aim based on “a certain conception of ‘living together’ in society”. This concept of “vivre ensemble” is inspired by the French debate on the ban of face veils. The CC starts by stating that “[t]he individuality of every ‘law subject’ (sujet de droit/rechtssubject) in a democratic society is unthinkable without his face, fundamental element of [his individuality], being visible”. “Taking into account the essential values that he [the legislator] wishes to defend”, the legislator could, according to the CC presume that the creation of human relationships, which are considered to be necessary for life in a society, is made impossible by the presence [circulation] in the public sphere of persons “of whom this fundamental element of individuality is not visible”. The CC therefore concludes that the ban on face coverings answers “an urgent societal need in a democratic society”. (§B.21)
A third argument of the legislator was the protection of the principle of equality between men and women. The Constitutional Court first recognizes that the full veil can be a manifestation of a religious choice and that this choice can have different motives and different symbolic meanings. (§B. 23) However, the CC proceeds, even if the wearing of the full veil is a consequence of a well considered choice, the CC considers that the argument of gender equality justifies that the state can oppose to “the manifestation of a religious conviction through a behavior that is not compatible with the principle of equality between men and women”. The CC adds that the full veil takes away a fundamental element of a woman’s individuality, which it considers necessary for social life and social relationships.
After having found that the ban on face coverings is necessary to preserve public safety, “living together” and the equality between men and women, the CC examines whether the penalty imposed on women wearing the full veil is proportionate to the aims pursued. Again, basing itself on the principle of individuality in a society, the CC argues that “the legislator can assume that the hiding of the face endangers the good functioning of the society and that it should therefore be penalized”.(§ B28) Since the legislator has chosen for the lightest sanctions in this case, the CC concludes that the imposed sanctions are proportionate.
For the same reason of individualization, the CC doesn’t find a violation of the right to freedom of expression.
No violation of individual freedom and private and family life
The applicants also complained that the ban forces women to stay at home and that the ban compels them to make a choice between respecting the law and fulfilling their religious concerns. The CC considers that the women’s staying at home is a consequence of a personal choice not to respect the ban instead rather than an illegitimate consequence of the ban itself. (§§ B40.2 and B46.3)
As to the discrimination claim, where the applicant allege that even though the ban is formulated in general terms, it creates a situation of indirect discrimination since the ban is in particular interfering with the rights of women wearing a full face veil. The Constitutional Court recognizes that this might be the case, but concludes, referring to the conclusions reached under the other claims, that this limitation is not disproportionate, that it is necessary in a democratic society and that therefore no differential treatment of women wearing the Islamic full veil is needed. (§B56)
Art 23 of the Belgian constitution protects “the right to lead a life in keeping with human dignity”. Also relying on article 3 of the ECHR, the applicants allege that the ban interferes with their human dignity by the criminalization of a behavior that does not consist of a criminal activity and that the ban therefore stigmatizes an entire group by depicting them as a danger for the public safety. The Constitutional Court did not examine this issue separately, arguing that this claim is not different from the claim raised under the freedom of religion argument. (§B51)
The Belgian Constitutional Court starts its reasoning under article 9 with a reference to the famous judgment of Leyla Sahin v. Turkey. In that judgment the Court’s Grand Chamber stated as a matter of principle that
“Pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position (…). Pluralism and democracy must also be based on dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals which are justified in order to maintain and promote the ideals and values of a democratic society”. (Leyla Sahin v. Turkey (GC), 2005, §108)
Unfortunately, this principle is not reflected in the CC’s judgment. If there is one red thread through the entire debate concerning the so-called burqa ban it is exactly the lack of dialogue and balance. In the debate at the national level, in the parliament, and now also in the CC, the issue of the full veil was mainly observed from one side. The way the ban is imposed above the heads of the women concerned is probably unprecedented. The ban was rushed through the parliament in times of political crisis, resulting in a quasi unanimous voting (2 abstentions, 1 nay). Both a request for the hearing of experts in the field and a request for legal advice of the Council of State were rejected. The general dislike of the face veil was sufficient to vote in favor of the ban, the fundamental rights of women wearing the face veil was however not a prior concern. The question whether we like or approve the face veil or not, is from a fundamental rights’ perspective not the main question. The legality of the ban and the social opinion on the veil are two different things. (see also M. Nussbaum, Towards a New Religious Intolerance, p. 117)
The Constitutional Court’s judgment reflects a lack of balancing of the interests at stake. The arguments made by the legislator are easily accepted without a thorough proportionality analysis. The analysis of the safety argument is based on hypothetical situations and questions. If women wearing the face veil would refuse to identify themselves and if they would commit crimes with their face covered this would entail a risk for the public safety, according to the CC. Although it can be accepted that states have to take precautions in order to guarantee safety, the rights of the persons concerned must still be genuinely taken into account. The question that could have been asked by the CC is: does the aim of public safety justify a general ban on the covering of the face (with for example face veils) every time and in all public places? Could the ban not be limited to places with a higher safety risk? If security was the real issue here, is there not an alternative measure that would limit the rights of the persons concerned in a less restrictive way? (Compare with the European Court of Human Rights’ reasoning in the case of Arslan v. Turkey discussed here and here)
But even more one sided is the argumentation concerning the interpretation of “living together”. The individuality of a human being is according to the CC expressed through his face and covering this ‘essential element of individuality’ would make living together impossible. Hence, the Constitutional Court fully endorses the vision of society expressed during the parliamentarian debates. The fact that the face constitutes an important element of people’s individuality cannot be questioned. However, stating that covering the face entails that living together is made impossible goes one step too far. On what basis does the CC come to this conclusion? Can we assume that women covering their face are isolating themselves and are not open to communication? (This is contradicted by empirical research) Does this assumption a contrario entail that people who are not covering their face make societal life always possible? Moreover, a following question would be: even if we would assume that people who cover their face are less open to a societal life, can the law force them to be more social? And subsequently: if we decide to prohibit the covering of the face for societal purposes, will we also prohibit other forms of appearances that might be interpreted as limiting once openness towards social relationships in the public sphere, such as for example wearing headphones?
The Constitutional Court makes an exception for the wearing of face coverings in places of worship. Prohibiting it in these places would constitute a violation of freedom of religion. At first sight, this looks like a concession towards women wearing the face veil. (inspired by the decision of the French Constitutional Council) However, the question arises whether this implies a limitation on the manifestation of religion through religious dress to places of worship. Moreover, on a more pragmatic level, the question can be asked how the CC sees this exception in practice. Women wearing a face veil are not allowed to wear their veil until they get to the mosque’s door, but when entering the mosque they can put it on again. Although for a majority of people this might seem a reasonable compromise, the perspective of the women concerned is also absent here. The fact that the CC did not examine separately the claim of stigmatization through the criminalization of the women concerned, which appears from empirical research to be the main concern of the women wearing a face veil, adds once more insult to injury.
Some of the claimants announced that they consider to bring the case in front of the European Court of Human Rights. In any event, the issue of face veil bans is already pending before the ECtHR in the case of S.A.S. v. France. The Court is thus faced with the important challenge of doing justice on a topic that is highly debated in all levels of society. Part of the challenge will be to finally make a distinction between the popular debate and the human rights questions and to genuinely listen to the people behind the topic of the face veil and to take their claims seriously.