Conseil d’État rejects proposed prohibition of burqa, niqab

The French Conseil d’État, in its capacity as advisory body rather than as administrative court of final appeal, yesterday issued a lengthy report, on the request of the Prime Minister, on the “legal possibilities surrounding the prohibition of the full veil.” This follows controversy and debate in France in recent months surrounding the wearing of the burqa in particular, the publication of the Gerin parliamentary report in January, and the report today that Belgium appears likely to become the first European state to legislate on this issue. In a measured, comprehensive and nuanced report, the Conseil concluded, somewhat predictably, that an outright prohibition on the wearing of the full Islamic veil would like contravene a number of provisions of the French Constitution as well as the European Convention on Human Rights (the report is published online here and the very useful summary here; it is unlikely, however, that either will receive an official translation into English).

The report asserted that “any absolute prohibition of the full veil as such could have no incontestable juridical foundation.” It emphasised, however, that persons could already be required to remove the full veil in certain circumstances in accordance with generally applicable laws and regulation, while asserting that a prohibition targeted at the burqa specifically would likely be held unconstitutional. Under French law, the religious character of the veil does not exempt persons from existing requirements relating to the verification of identity, uniform requirements in the public service, and the requirement of identification for the purposes of access to places where such identification is deemed necessary to public order. Thus, the Conseil has confirmed that the requirement of revealing one’s face and identity, in certain contexts and in accordance with the requirements of public order, is already provided for in law.

More interestingly, the Conseil found that the principle of laïcité, recognised in the French Constitution, could not underpin or justify any potential ban on the wearing of the full Islamic veil as such. This is important, as the governing UMP has, rather abusively, attempted to translate this longstanding principle of French public law and political tradition as a requirement with which to regulate intense, devout or fundamentalist forms of religious expression, or as justifying a state commitment to secularising ways of life and mitigating “communitarian” tensions. The report noted that “the principle of laïcité applies directly to public bodies, which justifies an obligation of neutrality for public agents in the exercise of their functions. However, it cannot be applied directly to society or to individuals.” Thus, the Conseil has affirmed that laïcité does not, in itself, warrant State interventions in the sphere of religious choice. Furthermore, it expressed scepticism as to the application of the principle of equality between the sexes to the wearing of the burqa, as it doubted whether the principle “could be directed to the exercise of personal liberty, or behaviour, voluntarily adopted, contradicting this principle.”

Furthermore, the report noted that the imperative of public security could not justify a prohibition on the mere wearing of the full veil in the absence of a further specific threat, stating that any such general ban would be “fragile” from the standpoint of non-discrimination; it also dismissed the possibility that the prohibition could be justified through an extension of the “traditional” principle of public order to a “non-material” realm encompassing “les règles essentielles du vivre-ensemble” (roughly translated as “the essential requirements of social co-existence”).

Finally, the report suggested that the legal obligation to reveal one’s face or identity could be bolstered in certain limited ways, not specific to the Islamic veil or religious garb as such. The police could be granted extended powers to require persons to prevent persons from concealing their faces in contexts where this would pose security threats; alternatively, legislation could define contexts in which a prohibition on the concealment of identity could be imposed, but only where this were essential to the “correct functioning of public service”, such as polling booths, marriage ceremonies and the collection of children from schools.