By Waqqas Mir
July 13, 2014
How many in Pakistan would tolerate members of a minority religion wearing a particular dress that made the majority uncomfortable?
What we wear matters a whole lot. And if you ever needed a reminder of this, see the judgement titled S.A.S v France issued by the Grand Chamber of the European Court of Human Rights on the 1st of July, 2014.
In issue was France’s law No. 2010-1192 of October, 2010 which made it an offence for anyone to wear in public places “clothing that is designed to conceal the face”. The law was framed generally but it arguably had the greatest impact on Muslim women who wear the Niqab (veil covering the face except the eyes) or the Burqa (veil with a mesh to conceal the eyes and, of course, the face). One French national Muslim woman, who was born in Pakistan, challenged this law as violating particular provisions of the European Convention of Human Rights. Most important were Articles 8 (right to respect for family and private life), 9 (Freedom of conscience, thought and religion), 10 (freedom of expression), 11 (freedom of assembly and association) along with Article 14 (prohibition against discrimination).
The woman claimed that she was a devout Muslim and this law, among other things, prohibited her from complying with a tenet of her faith. She admitted that she did not always cover her face. She was adamant that she covered her face not because someone else expected or asked her to do so but because she took pride in observing this practice. It was, in essence, she argued a part of her identity and autonomy. At times she would socialise without covering her face and she had no issue with being asked to show her face at airports where this might be required.
Her fundamental issue was that the law was too broad and by imposing a ban on concealing the face in all public places her fundamental rights was violated. The law, admittedly, has some exceptions — some of which are logical, some contentious. The law carries a public safety exemption, i.e. wearing motorcycle helmets does not violate the law. Similarly, wearing a mask for medical reasons is allowed under the law. The controversial bit was the last exception which allows concealment of the face for festivities or traditional events (think Halloween or Santa Claus on Christmas) or processions to celebrate different occasions, including religious ones.
France argued that the law is not just aimed at Muslim women. It was applying a rule of general application — against concealment of face in public places — and if Muslim women were affected then this was ancillary. However, the European Court took into consideration the explanations accompanying the law when it was tabled as a Bill and noted that France was clearly disturbed by the growing incidence of Muslim women covering their faces in public. France’s second argument was that it was indeed a consideration but not the only one. The law was framed keeping in view public order and security concerns. However, the Court rejected these arguments. What won the case for France was another argument: France’s right to ensure that there exist, in a democratic society, certain minimum requirements to guarantee the conditions of “living together”. France took the position that the face has a prime role to play in ensuring social interaction. Furthermore, France’s culture had certain central values which merit protection and concealment of faces in public interferes with that.
The Court appreciated that in many matters relating to policy, members of a society could differ on the approach to take. And in such matters, a nation state (i.e. France in this case) has a wide ‘margin of appreciation’ to make a call as to which values matter more or merit precedence/protection.
The fact that the judgment of the European Court came out in favour of France has shocked some. Others see it as justice. But if you have been following the trend of rulings regarding head-scarves, this ruling was no great surprise. What bothers one while reading the judgement is state paternalism; a judgement that women who wear the Niqab are somehow enslaved. Of course the European Court did not buy into such paternalism but that does not mitigate the disturbing trends in French politics towards minorities. To counter this by saying that someone in Pakistan cannot criticise France’s practices (because of Pakistan’s horrible record with minorities) would be a non-starter. France claims to hold itself to higher standards (liberty, equality and fraternity) — and must be judged by them.
If a woman showing her skin is empowered when she does so, why would the same reasoning not apply to a woman who chooses to cover her head or face? I am no fan of Niqab or Burqa but I am someone who believes in an individual’s freedom to choose and act — as long as that does not harm others. If a woman chooses to cover her face then she clearly is demanding certain privacy in a public space. I may not like it but that is her right. Someone flaunting her bare back or bulging cleavage could interfere with sensibilities of people too but France respects that.
Two judges dissented from this ruling and noted that France’s law amount to a disproportionate measure. Their reasoning is highly persuasive: pluralism needs to be encouraged rather than being done away with in favour of homogeneity that makes everyone more comfortable. It is not as if France is crawling with women who sport theniqab. They are admittedly few in number and therefore not infringing on a society’s general values by any stretch of the imagination.
But there are strong arguments favouring France too. A secular state, just like an Islamic one, has certain values that it will enforce. Just like an Islamic state will punish you for being indecent in public, a secular state does not want you to wear your religion in such a way that it interferes with secular values.
Whether one should judge laws by their letter or their impact is likely to remain a lively debate. Ignoring the effects of laws on certain communities is not without its perils — and the Court was mindful of that in this case too. But since the Court found France’s argument for ensuring “living together” as objectively reasonable, it upheld it.
How many in Pakistan would tolerate members of a minority religion wearing a particular dress that made the majority uncomfortable? How many would question a law that was framed in general terms (i.e. applicable to all), of general application but had direct and oppressive impact on certain minorities? In France, Christians can still benefit under the ‘Santa Claus exception’ to the latest law and conceal their faces on Christmas.
Muslims and other religious minorities who have been wearing the Niqab either have to pay the fine or stay indoors.
Isn’t rampant secularism just as bad as rampant religiosity? Both can and often do infringe on individual freedoms in the name of the greater good. Both are paternalistic. Both are problematic.