In my first post, I commented on the Spanish Supreme Court’s (SSC) ruling regarding the burqa and niqab in Spain. I would like to pay special attention to the approach taken by the French and Belgian Constitutional Courts, and how this differs from the SSC. The French Constitutional Court (FCC), on 5 March 2013, and the Belgian Constitutional Court (BCC), on 6 December 2012, considered that their prohibitive laws were in conformity with the European Convention of Human Rights (ECHR). The SSC, however, repealed the local law that prohibited the burqa and niqab in public spaces in Catalonia.
Ruling of the French Constitutional Court, 5 March 2013
The FCC, on 5 March 2013, held the French law (LOI n° 2010-1192, 11 October 2010) that prohibited the concealment of the face in public spaces to be consistent with the ECHR. The FCC recognized that article 9 ECHR includes the right to manifest a religious belief, provided that it does not interfere with public order. Indeed, the FCC acknowledged that the maintenance of public order was the rationale behind the law (See also, Cour de Cassation, Chambre Criminelle, nº 12-80891, 5 March 2013).
The SSC’s judgment clearly differs from the FCC’s approach. Specifically, the SSC noted that restrictions on religious freedom cannot be used as a preventive measure to avoid potential risks, and that limiting religious freedom may in fact intensify these risks (see, SSC 14 February 2013, ground 9). Particularly, discrimination against women may increase with a general prohibition due to the residual effects, like social isolation and public harassment.
Ruling of the Belgian Constitutional Court, 6 December 2012
The Belgian law prohibiting the burqa and niqab, as in France, was subjected to a constitutional appeal. This appeal was resolved on 6 December 2012 and highlighted the reasons why the BCC considered the burqa-ban to be consistent with the Belgian Constitution (see, Cour Constitutionnelle, Arrêt nº 145/2012, 6 December 2012). In particular, the BCC stated the protection of public order and gender equality to be of paramount importance, and therefore legitimate aims to prohibit the full-face veil in public, a finding that greatly contrasts the conclusion of the SSC.
- Protection of public order and safety:
Regarding the prohibition of the burqa and niqab in public spaces, the BCC stated that the legislature is authorized to intervene when public order or safety may be at risk. In this respect, the legislature can anticipate a risk and limit certain behaviors so as not to compromise the legitimate aims at hand (Cour Constitutionnelle, Arrêt nº 145/2012, paragraph B.20.3).
The position of the BCC, however, differs greatly from that of the SSC. The SSC views that only when the existence of a threat to security and public order is proven, may a limitation of religious freedom go into effect (see, SSC 14 February 2013, ground 9). It therefore opposes the stance of the BCC to interpret potential risks of public order and safety and act in a preventive way by limiting freedom of religion. Lastly, the SSC believes that banning the full-face veil in public spaces in an effort to maintain security and public order is not legitimate, for the same objective can be achieved with laws already in place that are less restrictive (see, SSC 14 February 2013, ground 9).
- Gender Equality:
The BCC held that, even if a woman voluntarily chooses to wear the full-face veil, the promotion of gender equality by the State is justified. This implies that Belgium can oppose a manifestation of religious beliefs that is not viewed as being compatible with the principle of equality between men and women (Cour Constitutionnelle, 6 December 2012, paragraph B.23). The BCC therefore recognized that wearing the full-face veil interferes with gender equality, since only women, not men, are required to do so. Lastly, it concluded that women who are fully covered are deprived of a crucial element of individuality that is essential for life in society and the establishment of social ties (Cour Constitutionnelle, 6 December 2012, paragraph B.23).
The decision of the BCC widely differs from the stance of the SSC, which assumes that women in Spain are free to wear the religious garments of their choice, and will have legal resources to act against any impositions of the sort. Indeed, the SSC regards that a general prohibition of the full-face veil may be counterproductive, particularly implying that a ban may cause discrimination and result in social isolation for the woman, which would counteract the goal of integration (SSC 14 February 2013, ground 10).
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