French burqa ban upheld: a victory for democracy and a setback for human rights

This post was written by Frederick Cowell, a lecturer in Birkbeck’s School of Law. It was originally published on The Conversation.

The European Court of Human Rights has upheld a French ban on the wearing of face veils in public. The French Senate voted on the ban in 2010 and people who wear the burqa or niqab in public risk being fined. The anonymous woman who appealed the ban argued she was making a free choice to wear the burqa, and that the law banning it infringed her right to privacy and her right to freedom of religion, under Articles 8 and 9 of the European Convention on Human Rights (ECHR).

The Court’s judgement held that whilst there had been an interference with her rights under Articles 8 and 9, this limitation of rights was necessary to protect the “rights and freedoms of others”.

Ultimately, the court sympathised with the French government’s position that seeing a person’s face whilst walking along the street was an essential part of “living together” in society.

A step too far

The court had previously ruled that the Turkish ban on the hijab in universities was not a violation of Article 9, reasoning that it was necessary to protect against extremist movements and promote secular education. The UK House of Lords followed this decision when a pupil at Denbeigh High School was expelled from school after she broke school uniform policy by wearing a jilbab, rather than the uniform-mandated hijab.

In 2009 the European Court held that the display of the cross in Italian classrooms violated a child’s right to a secular education. This decision caused a political uproar in Italy, where all school classrooms had been displaying the cross for decades, and the decision was later overturned in the Grand Chamber (the European Court’s appeals body).

There, it was held that the display of the cross was allowed in classrooms as it was an essentially passive symbol. This has led some commentators to surmise that the Court has a mildly secular leaning.

But the French ban goes much further than any of the above cases. It applies to any public space, not just an institution such as a school or university where there may be good educational reasons to limit religious freedom.

The European Court of Human Rights knows best?

Where the judgement is particularly problematic is in its treatment of the margin of appreciation doctrine, which holds that the court will not interfere where the state party is “best placed” to determine the appropriate limits of a particular right.

For example, if one country that is signed up to the court has lax laws on pornography and another country imposes tighter censorship, both laws can still be compatible with the protection of free speech provisions in the ECHR. However this is not a blank cheque; states have to show that any restrictions on rights are necessary for their society, and the court has frequently held that restrictions of rights in some countries go well beyond the margin of appreciation.

In the burqa ban judgement, the court held that the ban was within France’s margin of appreciation as it “constituted a choice of society”. It further stated that the democratic nature of the decision meant that different social interests had been correctly balanced. This in essence condoned the idea that a majority can legitimately remove minority rights under the aegis of democratic decision making.

This raises further questions about the relationship between democratic decisions and the protection of rights. In 2005, the court ruled that the UK’s blanket ban on prisoner voting was a violation of the right to participate in elections. But in 2011, the British Parliament voted by an overwhelming majority to reject this ruling. In principle, if democratic decision-making is allowed to restrict one minority’s rights, there’s no reason it can’t restrict another’s.

“Living together”

In the burqua ban case, the court argued that the objective behind the ban – the promotion of “living together” – was a legitimate social aim. This is weak reasoning. The court has rejected many other cases involving seemingly nebulous social aims. For example it has consistently ignored claims from states that laws limiting the rights of the LGBT community are representative of the morals of society.

This case is symptomatic of a deeper problem with the court. When it was set up in 1950, it was designed to safeguard democracy against the external threats of totalitarian fascism and communism; the political consensus behind the court’s continued operation is based on the narrative of protecting democracy. This makes it politically difficult for the court to rule against states when they make democratic decisions restricting rights.

To make matters worse, along with other European institutions, the court is now the target of popular political rage and many Eurosceptics deride it as anti-democratic.

Upholding the burqa ban was a weak legal decision, but it will prevent a row between the court and the French government. After it’s row with the UK government over prisoner voting this may be a blessing in disguise.

The Conversation

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