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2010
"Rulings anywhere
that women must wear the burqa should be condemned - but banning such
dresses here would be wrong" says Commissioner
Hammarberg
[08/03/10]
Prohibition of the burqa and the niqab would not
liberate oppressed women, but might instead lead to their further
alienation in European societies. A general ban on such attires would
constitute an ill-advised invasion of individual privacy. Depending on
its precise terms, a prohibition also raises serious questions about
whether such legislation would be compatible with the European
Convention on Human Rights.
Two rights in the Convention are particularly
relevant. One is the right to respect for one’s private life and
personal identity (Article 8). The other is the freedom to manifest
one’s religion or belief “in worship, teaching, practice and observance”
(Article 9).
Both
articles specify that these human rights can only be subject to such
limitations as are prescribed by law and are notably necessary in a
democratic society in the interests of public safety, for the protection
of public order, health or morals, or for the protection of the rights
and freedoms of others.
Those
who have argued for a general ban of the burqa and the niqab have not
managed to show that these garments in any way undermine democracy,
public safety, order or morals. The fact that a very small number of
women wear such clothing has made proposals in such a direction even
less convincing.
Nor has
it been possible to prove that these women in general are victims of
more gender repression than others. Those who have been interviewed in
the media have presented a diversity of religious, political and
personal arguments for their decision to dress themselves as they do.
There may of course be cases where they are under undue pressure - but
it is not shown that a ban would be welcomed by these women.
No
doubt, the status of women is an acute problem within some religious
communities. This needs to be discussed, but prohibiting symptoms like
clothing is not the way to do it, especially as these may not always be
the reflection of religious beliefs, but the expression of broader
cultural aspects.
Rightly, we react strongly against any regime ruling that women must
wear these garments. This is absolutely repressive and should not be
accepted. However, this is not remedied by banning the same clothing in
other countries.
A
serious approach requires an assessment of the genuine consequences
of decisions in this area. For instance, the suggestion to ban the
presence of women dressed in the burqa/niqab in public institutions like
hospitals or government offices may only result in these women avoiding
such places entirely.
The
fact that the public discussion in a number of European countries has
almost exclusively focused on what is perceived as Muslim dress
has been unfortunate and created the impression of targeting one
particular religion. Some of the arguments have been clearly
Islamophobic and that has certainly not built bridges or encouraged
dialogue.
Indeed,
one effect is that the wearing of a full cover dress has become a means
of protesting against intolerance in our communities. The insensitive
discussion about prohibitions has provoked a polarisation.
In
general, the approach should be that the State must avoid legislating on
how people dress themselves. It is, however, legitimate to regulate that
those who represent the State, for instance police officers and judges,
do not wear clothes or carry symbols which signal a partisan religious –
or party political – interest. Likewise, civil servants in contact with
the public should not have their face covered.
This
is where the basic line should be drawn.
The European Court ruled recently in
this spirit. This was in a case about the criminal conviction of
individuals who had worn headgear and religious garments in a public
place. The Court found that this conviction constituted a violation of
their right to freedom of conscience and religion and that the
interference was not "necessary in a democratic society".1
Beyond
this, there are particular situations where there are compelling
community interests that make it necessary for individuals to show
themselves for the sake of safety or in order to offer the possibility
of necessary identification. This is not controversial and, in fact,
there are no reports of serious problems in this regard in relation to
the few women who normally wear a burqa or a niqab.
A
related problem has come under discussion in Sweden. A jobless man of
Islamic faith lost his subsidy from a State agency for employment
support because he had refused to shake the hand of a female employer
when turning up for a job interview. He had claimed religious reasons.
A court
ruled later, after a submission from the Equality Ombudsman, that the
agency decision was discriminatory and that the man should be
compensated. Though this is in line with human rights standards, it was
regarded as controversial in the public debate which followed.
It is
likely that more issues of this kind will surface in the coming years
and, on the whole, it is only healthy that they should be discussed - as
long as Islamophobic tendencies are avoided. However, attempts should be
made to broaden the discourse to cover essential matters, including how
to promote understanding of different religions, cultures and customs.
Pluralism and multiculturalism are essential European values and should
so remain.
This in
turn may require more discussion of the meaning of respect. In
the debates about the Danish cartoons from 2005 it was repeatedly stated
that there was a contradiction between demonstrating respect for
believers and protecting freedom of expression as stipulated in Article
10 of the European Convention.
The
Strasbourg Court analysed this dilemma in the famous case of
Otto-Preminger-Institute v. Austria in which it stated that “those
who choose to exercise the freedom to manifest their religion … cannot
reasonably expect to be exempt from all criticism. They must tolerate
and accept the denial by others of their religious beliefs and even the
propagation by others of doctrines hostile to their faith”.
In the
same judgment the Court stated that consideration should also be given
to the risk that the respect for religious feelings of believers may be
violated by provocative portrayals of objects of religious significance
and that “such portrayals can be regarded as malicious violation of the
spirit of tolerance, which must also be a feature of democratic
society”.
In
other words, tolerance is a two-way street.
The
political challenge is to promote diversity and respect for the beliefs
of others and at the same time protect freedom of speech. If the wearing
of a full-face veil is understood as an expression of a certain opinion,
we are talking here about similar or identical rights – though seen from
two different angles.
A prohibition of the
burqa and the niqab would in my opinion be as unfortunate as it would
have been to criminalise the Danish cartoons. Such banning is alien to
European values. Instead we should promote multicultural dialogue and
respect for human rights.
Thomas Hammarberg
Notes:
1. Ahmet Arslan and Others v
Turkey, judgment of 23 February 2010.
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