Burkini Ban: Violating both facets of religious freedom

This blog post is by the undergraduate LLB (Hons) candidate Shanardra Fadhilah. It is based on the presentation she gave at the recent Lawyers Without Borders conference hosted at the University of Aberdeen, which she was selected to give after winning a competition amongst her fellow students.

Take a deep breath and focus on your thoughts. At your core, what guides your actions? Your moral compass? Your conscience? The values instilled in you since young? For a lot of people these all fall under one umbrella – religion. It serves as a compass for the right and wrong, a conscience to guide them through the grey area and a set of values to uphold throughout life.

Religion continues to be fundamentally important in society. Hence why it is still maintained as a human right – a right one has for simply being human. As a human right, freedom of religion is enshrined in various international instruments, including Article 18 of the Universal Declaration of Human Rights and the two international human rights covenants (on civil and political rights and economic, social and cultural rights) as well as Article 9 of the European Convention of Human Rights.

In the mentioned instruments, freedom of religion is captured as a 2-dimensional right that may be exercised alone and in community with others. The first aspect speaks of the right to freely choose one’s own religion. This is absolute in nature and cannot be circumvented. The second aspect is the right to manifest religion, which on the other hand can be limited. Even so, rule of law requires the limitations be necessary and legitimate. The main reasoning for the constraint is because the right to manifest religion bleeds into the public sphere. In order to safeguard the rights and freedoms of others, this limitation is needed so that human rights do not conflict with each other.

But as with most things, a simple categorical division on paper does not accurately reflect the reality. Religion is not something that is only practiced in private or can be separated from the public sphere. This is reflected in the second strand of religious freedom: the right to manifest religion. However, the fundamental freedom to choose one’s religion is intrinsically connected with the right to manifest it. A person chooses their religion because they agree with its teachings and want to practice it. Thus, it follows that the right to choose one’s religion is only as useful as its right to manifest it.

Religious manifestation includes religious expression, which is where religious clothing stems from. This brings us to the issue at hand: the burkini ban in France.

In 2016, mayors in about 30 French coastal resorts banned the burkini. Although not expressly stated, the clothing banned is indicative of a burkini and mainly target female Muslims who wear them in beaches. In late August of last year, the Council of State held that the ban in one of the towns was a serious and manifestly illegal attack on fundamental freedoms. Local authorities could only curb individual freedoms if there was a “proven risk” to public order. Significantly, it was ruled that, “the emotion and the concerns arising from terrorist attacks” was not legally sufficient to justify a ban.

While this ruling may set a precedent for the other French towns, which have implemented the burkini ban, after the ruling some mayors have said they would refuse to lift the decree. There are several arguments put forward in favour of the ban. The burkini is allegedly an affirmation of political Islam in the public space and incompatible with the French concept of secularism. Furthermore, it is argued that the ban will allow for social and cultural integration; ultimately, serving to empower women.

A similar development is the burqa or face veil ban in France that was introduced in 2010. It makes it illegal for a person to conceal their face in a public place. This has also been criticised as targeting Muslim women. In the case SAS v France (reported at (2015) 60 EHRR 11) the European Court of Human Rights upheld the ban and accepted that the French are seeking to protect social interaction between people.

But, at a closer glance, this argument is actually counterintuitive. How does criminalizing a deeply significant form of religious clothing serve to improve social interaction when it will only further segregate them from society as they opt not to go to public spaces?

Furthermore, note that the ‘margin of appreciation’ allowed for the qualified right to manifest religion displays that the different national contexts require for varying implementation of the right. If we extract this line of reasoning – we can apply it to the conception of human rights in general.

Why do we so easily ignore the fact that there are various frameworks for human rights and favour the ‘universal’ conception? Setting aside pragmatism for a moment, it seems strange that Court allows for a wide margin of appreciation for enforcement of the right to manifest religion but no consideration is given to the different cultural conceptions of human rights. This is significant because the different conceptions result in different understandings of human rights. It is connected to the degree of importance attached to the right to religious manifestation and expression by various faiths that is not reflected in most international human rights documents.

These stances against specific styles of dressing are not at all uncommon. When you look at the development of society, there were various cases when the introduction of novel fashion trends have been met with opposition as it does not fall in line with the societal values of the time. But this current move in Western culture towards wearing as little clothing as possible being equated to the emancipation of women is misleading as empowerment actually comes from choicenot a certain style of dressing.

For Muslim women, it is the act of dressing modestly which reflects their choice to submit to Islam. This is the root for wearing the burkini. It is a cultural interpretation of modesty as mandated by religion. So when this dress is banned – the consequences are not only literal but transcends to the constraint of the fundamental exercise of the religion. It is the criminalisation of being a Muslim woman who wants to go to the beach but also maintain her modesty.

Essentially, here the State is enforcing how strictly a woman can follow their religious teachings. The state has criminalized a form of religious expression and in doing so constrained the overall religious freedom in general. Religious clothing is highly important to Muslim women who choose to manifest modesty in such form. The burkini ban was enacted to respond to the terrorist threat in France. But placing the blame for such terrorist attacks on the whole Muslim community, especially the female Muslims does not make sense. Human rights should not be curbed discriminatorily – let alone as a method to punish a large group of people for the actions of a few.

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