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Sunday, September 26, 2021

Burqa ban is symbol of majoritarianism in Sri Lanka – Dr Jayampathy Wickramaratne PC

Image courtesy of Le news.

The proposal to ban the wearing of the burqa and the niqab has given rise to much discussion about the freedom to manifest religion and the right of the State to restrict such freedom. The burqa is a full-body covering, including a mesh over the face, while the niqab is a full-face veil leaving an opening only for the eyes. References to the burqa in this article include references to the niqab.

Readers of my generation will agree with me that we hardly saw a Muslim woman wearing a burqa in the first half of our lives. The veil (mottakkiliya) that loosely covered the head was quite common, and no one had anything to say about it. There are various theories as to how the burqa became to be worn in Sri Lanka. One is that returnees from the Middle East popularized it. Another is that it is the result of radicalization in the Islamic world. Yet another is that Arab-style dresses, both female and male, are reactions to the growth of anti-Muslim sentiment.

Arguments for and against

Let me make it clear that I do not like the burqa. I think that it takes away the human dignity of women. But I support the right of every woman to wear it as much as I support the right to resist conservative attempts to force it on women. Many Muslim friends say that Islam only requires men and women to dress modestly but that the Islamic piety movement that spread globally and called for adherents to be more religious, led people to transform not only in dress but in other practices as well.

Many Muslim women’s rights activists who rightly call for reform of Muslim personal laws have pointed out that a ban would restrict women’s freedom of movement even more, as happened in 2019 after the ban consequent to the Easter Sunday carnage. Some had even to resign from their jobs and depend on husbands even more. But, unfortunately, not many such activists call for the freedom of women to refuse to wear the burqa. An exception is a lawyer who told me that the burqa is neither a religious requirement nor a test of religiousness but a misogynistic ideology of some Muslim-majority countries. Its origin lies in the deep-rooted suspicion of sexual appetites in men and women. She, however, emphasizes the need to distance ourselves from the ban and challenge the racist and nationalist agenda of its proponents.

Muslim women who support the right to wear a burqa say that it is a matter of choice. Some even consider it a safety measure against sexual harassment, both physical and otherwise. However, very few such women support the right of their Muslim sisters to refuse to wear the burqa. Muslim men who insist on the burqa take refuge in religion.

Constitutional provisions

Religious dress is part of the freedom to manifest religion, guaranteed by Article 14(1) (e) of our Constitution. Of course, it is not absolute and is subject to ‘restrictions as may be prescribed by law in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society’ as laid down in Article 15 (7). As the Supreme Court has emphasized, restrictions must be reasonable and proportional to the mischief to be eliminated.

Some argue that a ban is necessary for ‘law and order’ while some invoke ‘national security’. A distinction between an order for the maintenance of public order and one made for the maintenance of law and order was drawn in Ram Manohar Lohia v State of Bihar. While ‘maintenance of public order’ meant the prevention of disorder of a grave nature, ‘maintenance of law and order’ means prevention of disorder of comparatively less gravity. Hidayatullah J took the example of three concentric circles in which ‘law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of the State.’ Article 15 (7) permits restrictions within the two inner circles only.

Allowed in France for the necessity to interact, not for public safety

The total ban from wearing a full-face veil in public was the subject matter of S.A.S. v France handed down in 2014 by the European Court of Human Rights (ECtHR). The applicant did not claim that she should be able to keep the niqab on when undergoing a security check, at the bank or in airports and agreed to show her face when requested to do so for necessary identity checks.

The French Government contended that the ban aimed at protecting public safety by making it possible to identify persons, which prevented danger to person and property and combatted identity fraud. It also aimed to protect the rights and freedoms of others by ensuring ‘respect for the minimum set of values of an open and democratic society’. The face plays the most significant role in interactions between people, while concealing one’s face in public breaks social ties and expresses a refusal of the principle of ‘living together’. It also promoted gender equality. The full-face veil is an affront to human dignity as it resulted in women being ‘effaced’ in public. The law was both necessary and proportionate.

The ECtHR did not accept all of the government’s purported aims. The Court recognized two legitimate aims that may be applicable: the protection of public safety and the protection of the rights and freedom of others.

With regard to necessity in relation to public safety, the Court observed that an obligation to remove clothing with a religious connotation in the context of security checks and the obligation to appear bareheaded on identity photos for use on official documents did not violate the freedom to manifest religion. However, in view of its impact on the rights of women who wish to wear the full-face veil for religious reasons, a blanket ban on wearing in public places clothing designed to conceal the face can be regarded as proportionate only in a context where there is a general threat to public safety.

The Court found that the ban can possibly be regarded as justified in its principle solely in so far as it seeks to guarantee the conditions of ‘living together’. It remained to be ascertained whether the ban is proportionate to that aim. On that issue, the Court fell back on the margin of appreciation doctrine to validate the French law, saying that that the question of whether or not to permit the wearing of the full-face veil in public places constituted a choice of society and that France had a wide margin of appreciation in the instant case.

Two judges who dissented concluded that the ban was disproportionate to the aim of protecting the idea of ‘living together’—an aim which cannot readily be reconciled with the permissible grounds for the restriction of basic human rights. It is not clear as to what may constitute ‘the rights and freedoms of others’ outside the scope of rights protected by the European Convention. The very general concept of ‘living together’ does not fall directly under any of the rights and freedoms guaranteed within the Convention.

Burkini ban suspended

On 05 August 2016, the mayor of the French city of Villeneuve-Loubet issued a decree that had the effect of prohibiting beachwear, which clearly manifested a religious affiliation during bathing and on the beaches. The object of the decree, it was clear, was to ban the wearing of the burkini, a swimsuit covering the whole body except the face, hands and feet. The decree was issued in the aftermath of terrorist attacks in neighbouring Nice in July 2016.

The League of Human Rights (LDH) and the Committee against Islamophobia in France (CCIF) instituted proceedings before Nice Administrative Court for the suspension of the decree. The Court dismissed the petitioners’ claim, rejecting arguments that the decree violated several fundamental rights and freedoms, including the freedom of religion and freedom of expression. The Court held that pursuant to the July 2016 terrorist attacks, the ban on wearing burkinis seemed ‘necessary, appropriate and proportionate’ to eliminate extremism and preserve public order. The Court further held that the ban was consistent with French law regarding prohibiting actions that neglect the ‘relations between public authorities and private individuals on the basis of religion.’ LHD and CCIF appealed to the French Conseil d’État (Council of State).

The Fench debate

The Conseil d’État allowed the appeal and suspended the impugned decree. It stated that the mayor, who is responsible for ensuring public order, safety, security and sanitation, must reconcile the accomplishment of his mission with respect for the freedoms guaranteed by law. It follows that the police measures that the mayor of a coastal municipality enacts in order to regulate access to the beach and the practice of swimming must be adapted, necessary and proportionate with regard only to the necessities of public order, as they arise from the circumstances of time and place, and taking into account the requirements implied by good access to the shore, bathing safety as well as hygiene and decency on the beach.

The Council observed that no evidence was produced before the judge in summary proceedings that risks of disturbing public order have resulted, on the beaches of the town of Villeneuve-Loubet, from the attire adopted for swimming by certain people. In the absence of such risks, the emotion and the concerns resulting from the terrorist attacks, and in particular that committed in Nice on 14 July, cannot be sufficient to legally justify the contested prohibition measure. In those circumstances, the mayor could not, without exceeding his police powers, enact provisions that prohibit access to the beach and swimming when they are not based on proven risks of disturbing public order or, moreover, on the grounds of hygiene or decency. The contested decree thus seriously and manifestly unlawfully infringed the fundamental freedoms of freedom of movement, freedom of conscience and personal freedom.

It must be noted that the decision of the Conseil d’État came after almost two years of the ECtHR decision in S.A.S. v France. Clearly, the Conseil d’État did not consider the ban to be necessary in a democratic society to ensure ‘respect for the minimum requirements of life in society’ or the notion of ‘living together’, indicating a possible shift in French thinking.

HRC strikes down burqa ban

The criminalization of the wearing of a full-face veil came up before the Human Right Committee, the treaty body of the ICCPR, in Yaker v France, decided in 2018. The committee concluded that France failed to demonstrate how wearing the full-face veil in itself represents a threat to public safety or order that would justify such an absolute ban.

The committee considered the concept of ‘living together’ to be very vague and abstract. France has not identified any specific fundamental rights or freedoms of others that are affected by the fact that some people present in the public space have their face covered, including fully-veiled women. Nor has it explained why such rights would be ‘unfairly’ obstructed by wearing the full-face veil, but not by covering the face in public through the numerous other means that are exempted from the law. The right to interact with any individual in public and the right not to be disturbed by other people wearing the full-face veil is not protected by the ICCPR and therefore cannot provide the basis for restrictions.

Burqa and face mask–what is the difference?

Measures imposed all over the world in response to the outbreak of the COVID-19 pandemic include wearing of face masks in public. This experience would, no doubt, compel courts to seriously reconsider in the coming years whether wearing a face mask is incompatible with the fundamental requirement of ‘living together’. France, the respondent state in S.A.S. v. France and Yaker v France, made wearing a face mask compulsory on public transport, workplaces and some public spaces. France thus requires people to wear face masks to fight against COVID-19 and, at the same time, fines women for wearing full-face veils.

In an article titled ‘Requiring face masks to fight COVID-19 while upholding niqab bans shows irony lost on leaders’, Marco Perolini said:

‘The way we interpret specific customs or behaviours is often socially and culturally constructed. Prejudice, stereotypes, and ‘othering’ often contribute to how we perceive specific practices. Governments and large sections of society in many countries have framed full-face veils and, more generally, covering one’s face, as threats to security and/or as a manifestation of gender inequality. They have presented their interpretations as dogmas.

However, these are just social and cultural constructions and they can change over time—we have already seen how the COVID-19 pandemic is disrupting them. Policy makers must use this opportunity to scrap laws prohibiting the wearing of full-face veils and blanket bans on wearing face masks in protests. The other option is requiring people to wear face masks to fight against COVID-19 and, at the same time, fining women for wearing full-face veils or protesters covering their faces. The irony, hypocrisy and discrimination of this situation should not escape us. Is a face mask used to fight the virus really that different from a niqab?’

Effectiveness of the ban

Many restrictions in the name of ‘national security’ have been found to be of no effect and yet those who criticize them are labelled ‘traitors’. A case in point is Rodrigo v Imalka, Sub Inspector, Kirulapone, which concerned checkpoints in Colombo during the separatist war. The IGP produced a circular issued by his predecessor which stated very categorically that ‘checkpoints’ erected in all police areas throughout the country have been of ‘minimal use’. It further stated that there had been very few arrests at checkpoints and only a few instances of persons taking illegal items such as weapons and explosives. The IGP stated that it had been discovered from a confession of a suspect arrested elsewhere that terrorist suspects had transported two boats filled with explosives up to Negombo, passing ten checkpoints. The Supreme Court observed that no person who has committed an offence, let alone a terrorist, would ever drive up to such a checkpoint and virtually submit himself to be arrested. That observation applies equally well for a burqa ban.

The writer submits that knee-jerk reactions such as the ban imposed in 2019 as well as restrictions imposed in the guise of ‘national security’ but with racial/religious undertones would only foment extremism. What is needed are measures that are effective. As the HRC stated in Yaker v France and the ECtHR observed in S.A.S. v France, it should be possible for states, in certain contexts, to be able to require that individuals show their faces, which might entail one-off obligations for individuals to reveal their faces in specific circumstances of a risk to public safety or order, or for identification purposes. There cannot be any objection to such measures applied in a reasonable manner but certainly not to be put into practice by the Police requiring every burqa-clad woman visiting the Galle Face Green to reveal her face!

In the writer’s view, most Sri Lankans who call for a burqa ban do so not out of concerns for national security but for majoritarian hegemonistic reasons. ‘National security’ is just a good excuse which overawes those who say a ban is useless.

Finally, the Muslim community and its leadership, political and otherwise, as well as women’s rights groups, must stand up not only for the right of women to wear but also for the right to refuse to wear the burqa. There are disturbing reports of male students in universities ‘policing’ women’s dress and compelling them to wear the burqa. For quite some time, there have been reports of similar ‘policing’ in the Eastern Province, about which the Muslim leadership has been silent.

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