July 09, 2014
As this blog already features an excellent post on SAS v France, this is a brief contribution, with a specific focus, namely SAS v France as a problematic precedent beyond the issue of the face veil and even beyond religious freedom cases. I shall focus on two problematic aspects of the judgment: its acceptance of the promotion of ‘living together’ as a legitimate ground for the restriction of fundamental rights, coupled with a wide margin of appreciation; and the way it assesses the seriousness of the interference.
1. A wide margin for states to restrict human rights in the name of the promotion of ‘living together’
Of the three arguments that were invoked to justify the adoption of the French face covering ban, the argument about the alleged anti-social character of the face-veil – the face veil as a threat to ‘le vivre-ensemble’- is in my opinion the one that best reflects the real reason why so many people are in favour of such bans, i.e. the fundamental unease of a large majority of people with the idea of an Islamic face veil, and the widespread feeling that this garment is undesirable in “our society.” The fact that this is an authentic and widely shared feeling however does not make it any less problematic, as everything indicates that this feeling is based on prejudice against (conservative) Muslims and Islam.
Can a government legitimately promote a certain way of living together in society? Yes, of course. Can a government legitimately restrict fundamental rights in the name of the promotion of a certain way of living together? Apparently yes. The European Court of Human Rights has interpreted this as a way of ‘protecting the rights of others’, more specifically the ‘right of others to live in a space of socialisation which makes living together easier’ (para 122 of the judgment). What kind of a right is this? It is certainly not recognized as a legal right in France or elsewhere. As a moral right, it appears to be the right of some against the behaviour of others that the first category experience as undesirable. Manifestly, no objective basis is required, nor is it a problem for the Court if the reason behind the perceived negative impact on ‘living together’ is discriminatory bias. Empirical research has shown that women who wore the face veil in France before the ban, did not shy away from social interaction in the public sphere. It has also shown that many people in the public did not wish to interact with veiled women, and that these women were the subject of regular harassment in the public sphere.
So in the concrete case, the ‘others’ in the name of whose ‘right to live in a space of socialisation’ the ban is upheld, are the very people who chose not to want to socialize with veiled women. The Court accepts that these people’s ‘right to live in a space of socialisation’ is upheld by removing from the public sphere the individuals with whom they do not wish to socialize, or by making these individuals change their looks in such a way that they cause less visual disturbance to the ‘space of socialisation’ where these other people socialize amongst each other.
What is there to stop a European government from clearing the streets from Roma people in a country where people do not like to socially interact with Roma, in the name of the protection of ‘the right of others to live in a space of socialisation which makes living together easier’?
There is the one sentence in para. 122: ‘in view of the flexibility of the notion of “living together” and the resulting risk of abuse, the Court must engage in a careful examination of the necessity of the impugned limitation’. But once the Court gets to the proportionality assessment, 30 paragraphs later, it finds that such careful examination is not necessary because ‘the question whether or not it should be permitted to wear the full-face veil in public places constitutes a choice of society’ (para. 153). Instead, France is granted a wide margin of appreciation, and the Court ‘has a duty to exercise a degree of restraint in its review of Convention compliance, since such review will lead it to assess a balance that has been struck by means of a democratic process within the society in question’, and because ‘in matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight’ (para. 154).
And to say that the French Gérin Commission that prepared the face covering ban was reluctant to accept that they could not base it on ‘laïcité’, the French version of state neutrality, because the ban concerns private behaviour in the general public sphere. Who needs the cover of neutrality, now that it is allowed for societies to openly choose to be intolerant for minority expressions that disturb the majority?
How will the Court distinguish the choice of French society to ban an expression of Muslim piety because it makes the majority of the French feel uncomfortable, from, say, the choice of Russian society to ban what they call ‘homosexual propaganda’ because it makes many Russians uncomfortable? Or what if the Flemish government in Belgium decided to ban all French speaking children from the schools, day care centres and sports facilities it sponsors? If a face veil hinders socialisation, surely lack of a common language to communicate does? So wouldn’t that be a valid choice of Flemish society?
It would be interesting to see how the Court wriggles itself out of these situations, without giving the impression that the real difference is that between Russia and France, or that between a minority that is relatively popular in Europe as a whole (LGB people) and one that is not at all (conservative Muslims).
All this shows how the Court in SAS is drifting away from the very core of what human rights protection is supposed to be about. Would human rights have had any bite against racial segregation of the type historically witnessed in South Africa or the US, if it had been accepted that states have a wide margin to make a societal choice organizing the social sphere in a way that makes the majority more comfortable?
2. Assessing the seriousness of the interference in a way that is not serious
Self-constrained by the large margin of appreciation it granted France, the Court does very little by way of a proportionality analysis. Yet what it does, is detached from reality in a very unfortunate manner.
First the Court notes that the ban ‘does not affect the freedom to wear in public any garment or item of clothing – with or without a religious connotation – which does not have the effect of concealing the face.’ (para. 151) This is a clever way to reduce the weight of any human rights interference: tell people to be glad that even worse interferences did not happen. It is ‘less restrictive means’ reasoning in reverse. So it is a ban on face veils only, it does not apply to the covering of one’s hair, legs or décolleté. Hurray! Are we expected to see any criminal ban that does not ban everything as evidence of admirable restraint by the authorities?
The Court goes on to say that it ‘finds it to be of some significance that the ban is not expressly based on the religious connotation of the clothing in question but solely on the fact that it conceals the face’ (para. 151). This is formalism to the extreme. The judges of the European Court of Human Rights live in France. They cannot have missed the fact that the face veil is banned because it is an expression of conservative Islam. Obviously no constitutional state can write this in a law, or in its conclusions before a human rights court. Yet it suffices to read the report of the Gérin commission and the parliamentary debates to know that the reason why the French feel so disturbed by the face veil is Islam.
Finally, the Court points out that ‘the sanctions provided for by the Law’s drafters are among the lightest that could be envisaged, because they consist of a fine at the rate applying to second-class petty offences (currently 150 euros maximum)’ (para. 152). Even the dissenters miss the essence, when they –rightly -point at the fact that face veil wearers who continue to wear the face veil after the ban are likely to incur numerous fines, as they are guilty of an offence whenever they go out. But the main point – which appears clearly from empirical research done in France after the ban that was submitted to the Court – is a different one. What is criminalized is these women’s daily behaviour. The reason why many women after the ban decided not go out anymore except by car, is not in the first place the amount of the fine. It is the fact that whenever they close their front door behind them, and wherever they go about their errands – picking up the kids from school, doing the groceries…- the police may stop them on the street. It is the humiliating experience for a housewife to be treated like a criminal as the police awaits her when she leaves the supermarket where another customer had called them to complain about her illegal presence. It is the constant fear, caused by the law. The amount of the fine may be a relevant factor in the proportionality analysis in some situations, for example a newspaper being sued for defamation. Yet when citizens’ regular behaviour that used to be ignored by the law, is turned into an offence, the amount is secondary, it is the criminalisation that matters.
These are three lines of reasoning – reverse less restrictive means reasoning, blind formalism, and measuring severity by the amount of the fine – that can do a lot of harm in other human rights contexts as well. Not less harmful is the fact that at the same time the Court refuses to engage with the most prominent proportionality issues: the broad scope and blanket nature of the ban, and more fundamentally, the use of criminal law restricting fundamental rights to pursue a goal that is much more likely to be achieved through other policies that do not affect fundamental rights.
Whatever happened to the Court’s ambition to protect – in its own words– ‘rights that are practical and effective, not theoretical and illusory’?
The harm directly caused by the SAS judgment is undistinguishable from the harm already done by the nationwide face covering bans in France and Belgium and the local or regional bans elsewhere. The harm to women who wear/wore the face veil in France has been documented by Open Society Foundations. Moreover, in several countries, the news of the judgment was met with renewed political calls for the introduction of a ban.
Yet in the longer term, the SAS judgment may produce harmful effects in other contexts as well. I have briefly mentioned a few problematic lines of reasoning, of which it is hoped that they remain confined to this case.
 This is just a hypothetical example, but not entirely unthinkable, as French-speaking children have been refused in a summer camp organized by a Flemish municipality, and as the Flemish schools in Brussels are very popular – too popular according to many- among French speakers.