We Want to See Your Face: The Burqa in France, Belgium and Quebec
On International Women’s Day, the EU Commissioner for Human Rights, Thomas Hammarberg released a viewpoint which argued against restrictions on women’s religious dress. He stated that:
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.
Hammarberg seems to be in something of an unfashionable minority.In the past fortnight, three significant stories have broken about the regulation, in France, Belgium and Quebec, of the niqab and burqa worn by some Muslim women.
Eoin has today outlined the Council of State’s opinion on the legality of proposed restrictions on the burqa in France (see previous posts on the evolution of that story here and here and Siobhan Mullally’s post on IntLawGrrls here). As the Telegraph reports, Jean-François Copé of the beleagured UMP has responded by saying that while he respects the Council’s conclusions, parliament is not bound by them. He said that “We must not lose sight of the fact that we need to respond to the imperatives of public security, that the question of the full veil is also a question of living together.” There is considerable appetite within the party for a total or near total ban on this form of dress, and for legislation which would set its face against the Council’s advice. Le Monde makes the link between this desire for legislation and the party’s efforts to lay claim to potential National Front voters. For France, this is an issue which will not – or will be allowed to – go away. For instance in February, the French Minister for Immigration recommended that French citizenship be denied to a Muslim man, in part because he ‘forced’ his wife to wear the burqa. In February, Ni Putes Ni Soumises contested the selection of Ilhem Moussaid (who describes herself as “feminist, secular and veiled”) as a candidate for the New Anti-Capitalist party (NPA) in the March regional elections. The objection was rejected by the Conseil d’Etat at the end of March. (h/t Eoin and see comment by Tariq Ali here)
Under the proposed law, groups could apply for a temporary derogation for festivals or other special events. The legislation does not apply to headscarves, but will make it illegal to wear any garment concealing the whole face or making it unrecognisable.
The ban would be imposed in streets, public gardens, sports grounds and buildings “meant for public use or to provide services” to the public, according to draft bill.
Penalties could include fines or short periods of imprisonment. The House of Representatives will vote on the proposal on April 22. If the law passes, Belgium will be the first European country to ban the full veil. The Belgian Council of State has already expressed reservations about headscarf bans in certain schools in Flanders. The Wall Street Journal reports on the motivations of those who proposed the Belgian ban:
In Belgium, the proponents of the ban argue that such all-covering garb poses security issues and threatens democratic values. Some feared, however, that the bill wouldn’t stand a legal challenge.
“We cannot allow someone to claim the right to look at others without being seen,” said Daniel Bacquelaine, who proposed the bill. “It is necessary that the law forbids the wearing of clothes that totally mask and encloses an individual,” he said, adding he wasn’t targeting the classic headscarf worn by many Muslim women.
The lawmakers are specifically targeting the body-covering burqa and face-veiling niqab, which are still rare features in Belgian public life.
“We have to act as of today to avoid [its] development,” said Mr. Bacquelaine. “Wearing the burqa in public is not compatible with an open, liberal, tolerant society.”
Finally, in Quebec, the Justice Minister has tabeled ‘Bill 94’ in the National Assembly which states that
“The practice whereby a personnel member of the Administration or an institution and a person to whom services are being provided by the Administration or the institution show their face during the delivery of services is a general practice.
“If an accommodation involves an adaptation of that practice and reasons of security, communication or identification warrant it, the accommodation must be denied.”
The Bill could be adopted by the end of the Spring and it has received the support both of the Canadian Prime Minister and of the Liberal leader Michael Ignatieff, who have expressed admiration for its ‘balance’. Both had previously rejected the idea of a total ban on the burqa. Harper’s approach to the burqa shifts with the political winds but he said in November that ‘in an open and democratic society like Canada, individuals are free to make their own decisions regarding their personal apparel’
Quebec Premier Jean Charest says of the Bill:
“This is a symbol of affirmation and respect — first of all, for ourselves, and also for those to whom we open our arms…This is not about making our home less welcoming, but about stressing the values that unite us….An accommodation cannot be granted unless it respects the principle of equality between men and women, and the religious neutrality of the state.”
This is not Canada’s first brush with religious dress. Last year, for instance, controversy erupted when a Toronto judge asked a woman to remove her niqab while testifying in a sexual assault trial (see Natasha Bakht’s article on this type of case here) and in 2007 a furore developed over the decision of Canada’s Chief Election Officer to allow niqab or burqa-clad women to vote without showing their faces.The Quebec Bill is frequently presented as having its origins earlier this month in the case of Naemma Ahmed, a niqab-wearing 29 year old Egyptian pharmacist who was twice expelled from government-mandated French language classes for migrants (see Sheethal Pathak’s enumeration of differing versions of and reactions to the story here and this excellent commentary on the incoherence of the expulsions in the Globe and Mail.) The Immigration Minister very quickly elevated the question of religious dress in the classroom to one of national values. “There is no ambiguity on this question” she said “If you want to (participate) in our classes, if you want to integrate into Quebec society here, our values are we want to see your face.” Christine St-Pierre, Quebec’s minister for the status of women similarly said that “There are people in Quebec, in Canada, and other countries around the world, who have gone to Afghanistan and spilled their blood so that these things won’t be tolerated. Here, we cannot tolerate this sort of thing.” (Contrast this statement of Salam Elmenyawi, chairman of the Muslim Council of Montreal. “We travel thousands of miles and kilometers to go to … Afghanistan to teach woman in [niqabs], because we claim the Taliban denies an education,” said Elmenyawi. “When they come to us here in Montreal, we tell them, no, we won’t give you access. What is the difference between them and the actions of Taliban?”).
A little time after her case, the Quebec Human Rights Commission made two decisions touching on the niqab and on the hijab. In relation to the hijab, it held that Quebec’s Health Insurance Board was not required to accommodate a customer who did not wish to be served by an employee wearing hijab. The Commission advised that “[i]t cannot be concluded that the neutrality of the public institution was called into question [because an employee wore hijab] because the service being delivered remained neutral.” In another decision, the Commission held that ‘when a woman wearing the Islamic face covering is required to identify herself and proceed with the photo session needed to produce a health insurance card, the Health Insurance Board has no obligation to accommodate her request to be served by a woman’. The National Post provides this troubling analysis:
The commission reasoned that a woman would only have to remove her veil briefly for purposes of identification. It drew a distinction with people who for religious reasons ask that a driving test be given by a member of the same sex. In an earlier opinion, the commission said the province should accommodate such requests because the person is in a confined space with a member of the opposite sex for nearly an hour.
These Commission decisions, in any event, appear to have been taken as establishing that neither employee nor service user should expect case-by-case accommodation of any religious dress.
The Globe and Mail and the National Post note that Bill 94 has secured the Charest government some of its first ‘positive’ press in the arena of multiculturalism in a long time. It is certainly helping to distract from the much larger and more expensive problem of social exclusion of Muslim migrants in Quebec. Polls, in any event, show that 95% of Quebec residents and 75% of Canadians support the Bill (Margaret Wente explores this challenge to the old chestnut of an idea that ‘French’ and ‘English’ Canada take different lines on religious accommmodation here). The Globe and Mail summarises the responses of Francophone pundits here and the Montreal Gazette provides a good sense of the outlines of the debate taking place in Quebec’s civil society here. Clifford Orwin, Professor of Political Science at the University of Toronto has a very strong argument against the Bill here, the McGill Tribune has an anti-Bill editorial here and Uzma Shakhir blogs to similar ends here while Tarekh Fateh of the Muslim Canadian Congress writes in the Bill’s favour here. Lorraine Weinrib of the University of Toronto Law School argues that the Bill, if it passes into law, will not survive challenge under the Canadian Charter:
Ms. Weinrib said although the province has the legal right to set standards for appearances and conduct on its property, the planned law to ban niqabs puts it at odds with Canada’s Charter of Rights. Canada’s Charter came into force in 1982 to enshrine a variety of individual rights, such as religious beliefs, minority protections and freedom of speech. Supreme Court rulings on Charter-related lawsuits have produced dozens of landmark rulings on language, gender, religion and privacy rights. By cutting off access to such services to health care and education to women who are following Muslim dress codes, Ms. Weinrib said Quebec is “discriminating” and “disadvantaging” people on the basis of their religion and gender.Denying people health care or other government services is such a draconian result, it seems extreme.
In a separate development, Canada’s national police force has now announced that it considers its officers empowered by law to charge anybody who refuses to remove a face covering for a post-arrest mugshot, and that its officers may use ‘reasonable force’ to compel removal.
Some 25 women in Quebec are believed to wear the niqab. Only 10 women who visited the Montreal health board office in 2008-2009 were dressed in this way. What is interesting is the number of commentators who attribute the Quebec developments – and the elevation of the behaviour of a handful women to a question of provincial if not national importance – to a sort of fear (see Haroon Siddiqui in the Toronto Star here, the Gazette here and the National Post here and here and the Canadian Press here). One significant worry is that, in Quebec’s haste to legislate against the burqa and niqab the government may install a series of prohibitions which are difficult both to interpret and to enforce.
It is hard to know where to begin to engage with this fast-moving set of developments, but for now, I would raise 5 questions:
- What should we think about the consistency in the reasons given for the proposed bans across three somewhat different jurisdictions? What, if anything, does it say about a ‘Western’ approach to the burqa?
- Can governments intervene in debates such as those around the burqa without effectively selecting between competing versions of particular religious beliefs (remember that there are strong self-identified Muslim voices in favour of bans on certain forms of religious dress). Do we care anymore?
- What should we think of the role of those bodies, such as councils of state and human rights commissions, which are charged with expounding the limits both of accommodation and of permissible discrimination? How should we characterise the actions of governments which legislate against the grain of such bodies’ advice?
- How do we view the implication of individual women, such as Naeema Ahmed and Ilhem Moussaid in these sweeping citizenship debates? Is it important that these were women who made significant efforts to engage with the vision of gender equality supported by their governments, by taking integration classes or standing for election? What does it mean that they were not ‘good enough’?
- What do we think of an approach to citizenship which freights even humdrum elements of daily life – going to school, going to the park, collecting welfare payments – with a significant element of ‘the public’, so that some citizens are in all places and all times required to demonstrate allegience to supposedly fundamental values of the state? What, in particular, does this insistence on ‘seeing one another’s faces’, and not being permitted to hide or turn away say about the obligations of citizenship in anxious times? And who are the ‘we’ who want to see their faces?