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An Echo of France’s Anti-Separatism Bill: Will the Hijab Ban Bring Back the Secular Notions of ‘The French Republic?
A Post on State, Secularism, and Religious Freedom.
By GJEL Posted in France, Fundamental Rights on August 5, 2021 0 Comments 11 min read
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By Sarthak Gupta

Sarthak Gupta is an undergraduate law student at the Institute of Law, Nirma University, Ahmedabad. His scholastic interest follows Constitutional Law, Human Rights & Gender Studies, Arbitration Law, and International Law.

An Echo of France’s Anti-Separatism Bill: Will the Hijab Ban Bring Back the Secular Notions of ‘The French Republic’?

In February 2021, the French National Assembly passed an amendment banning publically worn hijabs for minors. The amendment, which is yet to be approved by France’s lower house, has as its objective the enhancement of France’s ‘republican principles’. The bill’s concerted attempt to reaffirm the country’s traditional secular identity is effectively realised by its intention of eliminating the foundations of ‘Islamist separatism’ across the country. Due to this, the bill is regarded controversial and is criticized as discriminatory and a violation of the right to freedom of religion. In this article, the author attempts to analyze the ban on wearing headscarves for minors in the proposed bill concerning the notions of French secularism.

Ban on Burqa: France’s Notorious Interposition

France’s anti-separatism bill is crafted to counter Islamic terrorism, and France’s increased anxieties vis-à-vis Islam, by forbidding public behavior that attempts to impose and disrespect religious beliefs. One of the provisions of the proposed bill states a ban on minors wearing the hijab and the niqab [headscarves and veils] with a rationale that the ban is a necessary step for protecting women’s rights and ‘french traditional values.’ However, such a ban by France is not the first attempt to violate women’s right and autonomy to practice their freedom of conscience, breach which undermines France’s ubiquitously carried notions of ‘liberty’ and ‘equality.’

In 2011, France became the first nation in Europe to outlaw full-face veils, burqas, in public. This was reminiscent of the French right-wing rhetoric, as they initiated a countrywide discourse on Muslims in France while extolling the country’s ‘Christian culture.’ Anti-Islamic legislation has been passed under the pretext of law, order, and ethnic sovereignty over the ages. These measures demonstrate the French government’s systematic endeavor to take away Muslim women’s autonomy and power, as well as their freedom of religion. The French authorities are intending to ‘liberate’ Muslim women by eliminating the headscarf from public spaces, However, the government’s intrusion into an individual’s realm is a blatant instance of the state interfering with religion. Furthermore, this is in violation of the constitutional notion of laïcité, French secularism philosophy, which proclaims a distinct separation of state and religion. France’s efforts has become a precedent for other European countries. A ‘right-wing’ political organization in Switzerland is advocating for a resolution to prohibit facial veils such as niqabs and burqas. Subsequently, other European countries such as the Netherlands, Norway, Bulgaria, Denmark, Austria, Latvia, and Belgium still possess partial or complete prohibitions on burqas.

Notion of Laïcité

To comprehend the erroneous perception of French lawmakers, we need to look to a fundamental and republican anticlérical notion of laïcité [secularism]. The most common interpretation of laïcité is ‘state secularism’, which alludes to the state’s neutrality in religious concerns in juxtaposition with people’s freedom to religion. It was authorized by a 1905 statute articulating the segregation of religion and state which was considered a triumph of the so-called ‘republican model’ at the time. Laïcité culminated in a progressive secularisation of the public realm and the subordination of religion to the private space. The notion was strongly tied to the ‘republicanising’ of France, and was hardly present prior to its codification, as evidenced by Emperor Napoleon III ratifying a sénatus-consultes on the citizenship of Algerian colonists in 1865, in which they would be conferred French citizenship if they renounced being Muslim.

Emperor Napoleon III

Since 1905, the ‘freedom to practice religion’ has been acknowledged, and rather than becoming a bludgeon against religion, the 1905 statute constituted ‘state secularism’ in the public sphere. The French ideology of’ secularism, in theory, favors no precise religion and facilitates the harmonious coexistence of everyone with a distinct separation of state and religion. The French Constitution explicitly states that the two institutions are distinct. Article 1 of the French Constitution underlines the value of an ‘indivisible, secular, democratic, and social’ French Republic, ensuring equality to all citizens regardless of ‘race, religion, or origin,’ with the objective of ‘respecting all beliefs.’ The Hijab ban is a violation of this since it makes a clear distinction based on religion and disparages the Islamic ‘beliefs’ that the hijab is premised upon. The deeds of the French state indicate symptoms of systematic deliberate discrimination against Islam in particular and Muslim women especially, despite the notion of a coherent division between the state and religion.

Notion of liberté, égalité, fraternité

The proposed ban on the hijab, but also France’s prior burqa ban, contravene the republican principle (and the national motto of France) of ‘liberté, égalité, fraternité’ [freedom, equality, fraternity]. Article 18 of The Declaration of the Rights of Man and the Citizen 1789, [the French Revolution’s human civil rights declaration] signifies ‘the freedom to practice any religion,’ and is accompanied by Article 10 of the Charter of Fundamental Rights of the European Union [EU Charter] and Article 9 of the European Convention on Human Rights [ECHR], which ensures ‘the freedom to manifest one’s religion or belief individually or within a community’, as much in the public space as in the private space. France has the greatest Muslim populace in Europe, with 5.7 million Muslims.

The preponderance of these Muslims are of Maghrebi ethnicity, originating from Algeria, Morocco, and Tunisia. A state-imposed prohibition on a cornerstone religious belief of Maghrebi Muslims also places the ethnic identity of the Maghrebis in menace. The outlawing of a religious activity that is widely practiced by an ethnic group implies discrimination based on ethnicity and origin, in conjunction with religion. The perception of French lawmakers framing legislation against their notions remains beyond any rationale and leaves the door open for deliberations such as:

  • Is the hijab ban assisting to foster positive relationships between equal citizens by eradicating overwhelming liberty of religious identity?
  • Is it drawing the doctrine of fraternity by flattening out their discrepancies?
  • Or does it, on the reverse, demonstrate new roadblocks to the exertion of fraternity by constraining a group’s freedom of expression, political existence, and possibilities?

Notion of ‘Vivre ensemble’

The fundamental freedoms of religion, rights against discrimination and individual’s privacy, are all enshrined in the EU Charter and ECHR. There is no precise European Union Law or international law which explicitly delivers the rationale on the ban of such freedom and rights. In absence of these statutes, we look to the Courts to provide guiding principles. However, both the jurisprudence of the Court of Justice of the European Union [CJEU] and the European Court of Human Rights [ECtHR] do not provide the leading light for equality and liberty, and fail to recognize women’s freedom of religion, and right to privacy and autonomy.

In 2014, France’s 2011 legislation on the ban of wearing burqas, and other clothing that conceal one’s face in public spaces, was challenged before the ECtHR in SAS v. France on the ground of prohibition of degrading treatment [Article 3], the right to respect for private life [Article 8], the freedom of religion [Article 9], the freedom of expression [Article 10] and the freedom of association [Article 11] of the ECHRs, taken sequentially and following the prohibition of discrimination [Article 14]. 

The French government countered that concealing one’s face in public places does have the consequence of shattering social ties and demonstrating a reluctance of the French principle of ‘vivre ensemble’ [‘living together’]. It argued that the face performs a ‘significant role in human interaction’ and that women that wear the niqab or burqa are effectively ‘effaced’ from public spaces/ The burqa or niqab were ‘hardly compatible with the affirmation of a social existence’ and with the principle of ‘La République se vit à visage découvert’ [the Republic is seen with its face uncovered].

The ECtHR concluded that a French law banning face-concealing in public spaces does not violate the ECHR and fundamental freedoms. While the prohibition compromises on the right to freedom of thought, conscience, and religion [Article 9], as well as the right to private and family life [Article 8], the government was justified in upholding it on the premise that it safeguards the rights and freedoms of others. However, in the dissenting opinion, Judges Nussberger and Jäderblom concluded that the blanket prohibition violated Articles 8 and 9 of the Convention, and expressed skepticism that the blanket ban on the burqa represents a legitimate purpose because the notion of ‘living together’ appears ‘far-fetched and vague’ and does not firmly descend within any of the rights and freedoms ensured by the Convention. They also stated that ‘in any case, such a wide-ranging prohibition…is not essential in a democratic society’. 

On a European Union level, the CJEU followed in the ECtHR’s footsteps when examining the legality of employers banning headscarves in the cases of Achbita and Bougnaoui. Here the CJEU ruled that a prohibition on wearing a hijab or any visible representation of political or religious beliefs during the course of employment does not constitute discrimination as enshrined in Article 2(2)(a) of Directive 2000/78. The Court recognizes two conflicting rules which it attempts to balance; It contends that the Directive is a concrete implementation of Article 21 of the EU Charter, and that the right to equality before the law and protection against discrimination is a basic human right. But on the other hand, the Court notes that an employer’s inclination to demonstrate a policy of political, philosophical, or religious neutrality in interactions with customers is reasonable and protected by Article 16 of the EU Charter. The Court showed that an employer’s wish for neutrality weighed heavier than the protection against discrimination, and build on this further in IX v Wabe eV and MH Müller Handels GmbH v MJ. Here the Court once more confirmed that employers can prohibit their employees from wearing identifiable religious or political symbols, such as headscarves, in order to reflect a neutral impression. The Court incorporates the notion of ‘neutrality’ and held that,

indirect discrimination on the grounds of religion or belief resulting from an internal rule of an undertaking prohibiting, at the workplace, the wearing of visible signs of political, philosophical or religious beliefs with the aim of ensuring a policy of neutrality within that undertaking can be justified only if that prohibition covers all visible forms of expression of political, philosophical or religious beliefs

Diversely, the Human rights Committee [Committee] in Hebbadj v. France and Yaker v. France repudiated France’s assertion, which the ECtHR had approved in SAS v. France. The Committee observed that the ban formed a restriction on women’s right to express their religion under Article 18 because the law compelled them to choose between acting in compliance with their religious beliefs or facing punishment under the law. The Committee also ruled that the notion of ‘living together’ is not a fundamental right and that France ceased to draw a correlation between any fundamental rights of others and the potential to see the faces of veiled women in public spaces. The Committee concluded that the ban vastly disproportionately influences Muslim women and generates an unjustifiable distinction between them and other individuals who are authorized to cover their faces, thus it violates women’s right to non-discrimination under Article 26 of the Convention.

Despite the committee’s ruling, France’s government continues to take away women’s autonomy and their right to freedom of religion in the face of their so-called ‘French republic principles’.

Conclusion

The term French term of Anticonstitutionnellement, signifies anti-constitutionality, and the very expression symbolizes the predicament of women who aren’t allowed to wear a hijab or burqa. Prohibiting people from engaging in public discourse merely based on their religious beliefs is both anti-constitutional and anti-democratic. Religious freedom and rights violations, along with an upsurge in Islamophobia, will eventually lead to a Europe where antagonism and ethno-religious discrimination is becoming a cornerstone of European hegemonic cognition . Thus, it demands a call for action to realize this ‘majoritarian reality’ and efficiently identify it now before it’s too late.


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