European Court’s Ruling on the Veil (2): A Subjective Judgement

ECHRVeil

“…the role of the authorities … is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other. By banning the full-face veil, the French legislature… has not sought to ensure tolerance between the vast majority and the small minority, but has prohibited what is seen as a cause of tension.”

(SAS v France, Dissenting Opinion)

The Judgment

In what must be one of the most conflicting judgments written by the European Court of Human Rights (ECtHR), the tension between the neo-colonialist narrative of using the human rights discourse as a stick to beat minorities with, and actually applying the definitive rights set out in the European Convention of Human Rights was visible in the rhetoric of the judgement.

The ruling concluded that the French “measure has an objective and reasonable justification”.[1] What follows shows that the French prohibition was anything but objective in its justification.

As already highlighted, the French legislation was enacted against the rise of Islamophobia in Europe, and the intervening human rights organisations and NGO which supported the Muslim Frenchwoman’s claim highlighted that the rhetoric espoused in the French National Assembly was distinctly anti-Muslim, thereby alluding to the bigoted intention of the legislature. The French government neutralised any reference to Islam and Muslims and highlighted security concerns as one of the aims which it pursued in justification for the interference of the claimant’s right. The court recognised that,

“it may admittedly be wondered whether the Law’s drafters attached much weight to such concerns.”[2]

But then, referencing certain memorandums of explanations of the legislation and some discussions around the security implications of the covering the face, concluded that the legislature sought to address security concerns, despite the fact that the Muslim woman had no qualms in doing removing the veil for facial recognition were security necessitated it.

The Court in large rejected the subjectively biased arguments around equality put forward by France and the judgement came down to France’s assertion of a certain conception of “living together” in society. This ambiguous notion, it was submitted, constituted a legitimate aim to pursue justifying the interference of the freedom of religion (Art. 9) for the extremely tenuous reason that it linked to the legitimate aim of the “protection of the rights and freedoms of others” (which provides for an exemption). No justification for this link nor precedent was given. The requirement of “living together” mandated an obligation to communicate with others, whilst freedoms, by definition do not carry affirmative duties per se upon individuals. The Belgian state which also intervened in favour of France, explained that,

“Taking into account the essential values that the legislature sought to defend, it was entitled to take the view that the creation of human relationships, being necessary for living together in society, was rendered impossible by the presence in the public sphere, which quintessentially concerned the community, of persons who concealed this fundamental element of their individuality.”[3]

Even if we accept this unlinked link, to claim that the state necessitates human relationships on individuals in public is absurd and somewhat “illiberal”. It can also be argued that if the veil, through which women can speak, is a barrier to living together, then so is a motorcycle helmet, which is exempted from the French legislation. Furthermore, if we take such a priori reasoning, then any recluse should be banned from taking such actions which violate the ambiguous principle of “living together”. Staying in the private sphere only would “render impossible” the “creation of human relationships” in public, thus “quintessentially concerning the community” and violating “living together”. This would include the French cloistered nuns in the south of France, which not only cover-up like Muslim women, but go a step further and do not even leave the walls of their papal enclosures, completely shutting off from society.

Such absurdities seem to be a hallmark of the judgment. For the sake of brevity, I have bullet-pointed them below. The Court,

  • regarded the French measure proportional despite it being recognised that it affects mainly Muslim women numbering 1,900 (France’s population is 66 million),
  • recognised the “broad national and international actors” which regard the ban as disproportionate yet the court regarded still decided it was proportionate,[4]
  • recognised the existence of Islamophobia and that the ban targets mainly Muslim women, yet dismissed this on the notion that the ban did not explicitly target the religious connotation of the clothing,[5]
  • recognised that the French fines for wearing the veil can be “traumatising” but are considered them “light” therefore not an issue,[6]
  • acknowledged that the measure restricted pluralism, but then took France’s incredibly convoluted argument that it violates “living together” and interaction, which is necessary for expression of pluralism,[7] (i.e. the restriction of pluralism is justified because said application of pluralism unverifiably limits pluralism).

Interpretations of Secular Liberalism

What becomes evident from the judgement is that a very particular, narrow interpretation of secular liberalism is being employed, with applications of pluralism, which is inherent in democracy, varying. This is manifested from the fact that 45 of the 47 states have not legislated against the ban. It is also noted that from the four organisations which intervened on behalf of the applicant, including Liberty and Amnesty international, a very different understanding of the conception of human rights was being employed. Not only does the rationale of Belgium, France and the ECtHR differ with specialist rights organisations, it also differed with international human rights treaties, something which even the majority judgment recognised. [8]

The secularism of France with its extreme Laïcité concept is distinct from the secularism of Britain and other European countries. In such a case, the application of extreme interpretations can result in a detrimental impact on the applicant and those like her who wear the veil, restricting their movement, and forcing them into a position of compromise or criminalisation. Which interpretation of understanding of secular liberalism should the States be taking? The fact that no NGO, human rights organisations or think-tank intervened on behalf of France and Belgium is telling of their discriminatory position.

As the dissenting opinion noted,

“It seems to us, however, that such fears and feelings of uneasiness are not so much caused by the veil itself, which – unlike perhaps certain other dress-codes – cannot be perceived as aggressive per se, but by the philosophy that is presumed to be linked to it. Thus the recurring motives for not tolerating the full-face veil are based on interpretations of its symbolic meaning.”[9]

And

“The Court refers to “pluralism”, “tolerance” and “broadmindedness” as hallmarks of a democratic society… and argues in substance that it is acceptable to grant these values preference over the life-style and religiously inspired dress-code of a small minority if such is the choice of society… However, all those values could be regarded as justifying not only a blanket ban on wearing a full-face veil, but also, on the contrary, the acceptance of such a religious dress-code and the adoption of an integrationist approach. In our view, the applicant is right to claim that the French legislature has restricted pluralism, since the measure prevents certain women from expressing their personality and their beliefs by wearing the full-face veil in public… Therefore the blanket ban could be interpreted as a sign of selective pluralism and restricted tolerance.”[10]

The selective application of principles masks a more serious issue of concern in the judgement: ethnocentric bias. This dangerous element is reminiscent of the colonialist era of humiliation of the colonised by the “civilised” supremacist colonisers. This will be delved into in the third and final part of this analysis.


 

First part of this analysis can be read here

Third part of this analysis can be read here


 

Footnotes:

[1] S.A.S v France [2014] ECHR 695

[2] Ibid. para.115

[3] Ibid. para.42

[4] Ibid. para. 147

[5] Ibid. para. 151

[6] Ibid. para. 152

[7] Ibid. para. 153

[8] Ibid. para.147

[9] Ibid. Dissenting Opinion, para.6

[10] Ibid. Dissenting Opinion, Paras. 13-14

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