European court’s niqab ruling is flawed and wrong

Earlier this week, the European Court of Human Rights (ECHR) ruled that a French law that banned the wearing of the niqab was not in contravention of the European Convention on Human Rights. The ruling has serious consequences for the rule of law, respect for diversity and the future of liberalism in Europe.

The wearing of the niqab is a religious practice in Sunni Muslim jurisprudence. It’s not universally agreed upon and is the subject of some controversy in medieval texts, with jurists taking different positions on its virtue. Today, it is still a subject of controversy among specialists in Islamic law.

Culturally, the practice is hardly one of consensus in Muslim societies at large. It’s certainly more acceptable in some Gulf Arab communities than, for example, in some parts of North Africa. In many Muslim communities, there will be deeply religiously observant Muslims who will be vigorously opposed to the practice. On the predominantly non-Muslim European continent, it’s not surprising that there would be many opposed to the practice, for another set of reasons altogether.

It’s unsurprising – but it is also irrelevant. The EU is a continental grouping supposedly based on laws that were established according to considerations of justice and the public interest.

The ECHR is meant to be the final point at which laws are judged according to those standards, via the consideration of human rights covenants, based on European notions of liberalism. To put it simply: it is irrelevant in the legal context whether the niqab finds favour culturally or not.

Are there issues of justice and public interest involved when it comes to the banning of the niqab?

Certainly, there could be some deployed – particularly when it comes to security. In the UK, for example, banks have banned the wearing of the niqab when entering their premises. Judges have insisted that the niqab be removed for identification purposes at the start of court proceedings. But these are all temporary measures – the arguments behind them do not amount to a full ban.

How then did the court decide to uphold a ban? It used the following argument: “Respect for the conditions of ‘living together’.” The legal probity of that argument is deeply concerning. It does not have a historical pedigree in the development of European law. Where does this ability of the state to intervene into the private and personal decisions of the citizen begin and end, when such a legal argument can be deployed?

A further irony of the judgment is that within it, the judges actually delineate many of the risks involved by applying this ban.

It admits that the ban might appear “excessive”, considering so few women even wear the face-veil, and that a ban had “a significant negative impact” on those who chose to wear it for religious reasons.

It also indicated it was concerned about “Islamophobic remarks” made in the run up to the law’s implementation, and that a country “that entered into a legislative process of this kind took the risk of contributing to the consolidation of the stereotypes which affected specific groups of people and of encouraging the expression of intolerance, when it had a duty, on the contrary, to promote tolerance”.

Yet, inexplicably, none of this, seemed to be sufficient grounds for the court to strike down the law. It is hard to deny, therefore, that the court’s decision is deeply politicised – and must be taken against the backdrop of the rising influence of right-wing identity politics on the European continent. Such can be seen with the success of far-right populist parties in being elected to the European parliament recently.

The use of “living together”as a legal imperative (the judges accepted that “the barrier raised against others by a veil concealing the face in public could undermine the notion of ‘living together’”) appears to be a thinly veiled excuse to introduce social engineering.

Indeed, the dissenting opinions of two two German and Swedish judges remind us that the ban is disproportionate to the aim of protecting the idea of “living together”. They go on to note that such an aim “cannot readily be reconciled with the Convention’s restrictive catalogue of grounds for interference with basic human rights”.

That cannot be described as an act of promoting justice and the rule of law in a diverse Europe, let alone liberalism.

On the contrary, in allowing for this law to remain in force, the court has contributed to a breakdown of liberal values in the law, and reinforced the power of the state at the expense of individual freedoms.

At a time when Europe continues to ask itself what it stands for, particularly with the rise of the far-right, this is a grave disappointment from one of Europe’s most lofty institutions.

Dr HA Hellyer is an associate fellow at the Royal United Services Institute in London, and the Brookings Institution in Washington DC

On Twitter: @hahellyer

Published: July 3, 2014 04:00 AM


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