APPROACHING THE BURQA ISSUE, INTERNATIONALLY.

10/17/2016 07:33:00 pm Sylwia Angelika Heller 0 Comments

Muslims immigrating from Syria and other Middle East countries to Europe face difficulties as they integrate into different laws and cultures as an increasingly heated debate rages in some European countries, many ask whether Muslim woman should wear burqas.
In a society of free expression, is this a problem?

The approach to Muslim tradition differs from state to state. In Turkey, wearing burqas is not allowed as expressed in the case of Leyla Sahin v Turkey (2005). This case was brought by a medical student who was not allowed to enter her university campus wearing the headscarf. In this case, the European Court on Human Rights (ECtHR) held that prohibition of wearing a headscarf as required by Islam does not breach Article 9 of the European Convention on Human Rights which gives a right to manifest religion.
Image result for burqa
No breach of her human rights took place due to the culture and constitution of Turkey, which vouches for the equality of men and women. Besides, the purpose for this prohibition appeared legitimate as it aimed to ensure equality between men and women, whilst freeing women from religious constraint.

However, women continue to defend their right to wear burqa, making it hard to argue that the new law aims to protect their dignity.

In a similar case, approached in an identical manner again taken up in court,  the case of SAS v France 2014 became the focus.  In this appeal, a Muslim woman was not allowed to wear a burqa which would cover her face in public places. It was justified as wearing a burqa negates the principle of gender equality and of human dignity.

Having said this, security reasons were also considered by the court as it is important for police officers to be able to identify people on CCTV cameras on streets and in shops if a crime occurs. Alongside this, uncovered faces enable social interaction, providing a justification for the ban, and a proportionate guarantee under the heading and condition of “living together”.

The ban was not created exclusively for Muslims and applies to anybody whose attire restricts the authorities from recognising them. Therefore, there was no breach of Article 14 of the ECHR which prohibits discrimination on any ground.  When a general measure, even without discriminatory intent causes discrimination of a group, it is illegal but still has the presence of a legitimate aim…..making it legal.

Furthermore, Judge Spielmann decided that the extent of limitations of human rights is properly evaluated by states themselves. It therefore assumed that states are in the best position to solve such issues.

According to the United States Commission on International Religious Freedom (USCIRF), an independent commission of the US, the ECtHR made a wrong decision when it rejected all claims of Muslim girls and Sikh boys in 2004-5. The claimants applied to be allowed to cover their hair in public schools in France. According to the organisation which monitors religious freedom abroad, there was no evidence in these cases that covering hair can cause a threat to public order.

Moreover, Leonard Leo, USCIRF chair, highlighted that according to international standards everyone is allowed to manifest their religion both privately and in public. Nevertheless, those students were expelled from their schools, which was a seemingly disproportionate action in hindsight.

The students claimed that it was their religious obligation to cover their heads. The court admitted that their right under Article 9 has been restricted. But, it also said that it was justified by secularism, public order and rights of others.

Further argument was indicated that in a democratic society there is a need to enter into compromises. The girls proposed that they could wear hats instead of head scarves. Boys also could wear keski, which are smaller than turbans. It could be seen as a compromise, but they were expelled from the school anyway.

Therefore, is a ban on wearing a burqa or headscarf an appropriate response when considering  the “dangers”, supposedly extenuated as a result of wearing them. However, the law forbidding burqa introduced by Nicholas Sarkozy, the President of France, in 2010 imposed a control which was especially directed at Salafists, a radical group of Muslims.
Controlling their attire would hardly have a direct correlation to their behaviours.

There are only 2000 Salafists in France, but 1546 have already been penalised. But, Rachid Nekkas, a French businessman set up a fund to pay fines for Muslim women, with the purpose of allowing women to wear the burqa, which raises questions about the effectiveness of this law.

So, it is a just act to place a ban on Muslims to wear a burqa or headscarf, because of the rights of others, in the name of public security?

Also available at: https://theinflectionist.com/2016/10/11/approaching-the-burqa-issue-internationally/

Image source: https://www.frontpagemag.com/sites/default/files/uploads/2013/02/black-burqa.jpg

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