Peeking Behind the Fears of the Burqa

A recent poll in the UK shows that following Switzerland’s minaret ban people in that country would be open to a similar minaret ban as well. In a related stream, France is reconsidering its proposal to ban the burqa completely, instead looking to prevent its use in public areas.

Posters supporting the minaret ban referendumAs with most political issues, there is a legal discourse that has occurred on this subject which preceded the controversy. Hafid Ouardidi, a resident of Geneva, has already filed a case at the European Court of Human Rights (ECtHR) in Strasburgh.

The backdrop of xenophobia and misinformation within the European judicial forum itself has not received the scrutiny that is should have, and it may reveal the motivation behind these measures.

The House of Lords in Begum, R (on the application of) v Denbigh High School [2006] UKHL 15, [2007] 1 Appeal Cases 100, dealt with Article 9 and Article 2 of Protocol 1 under the European Convention in the case of a schoolgirl who was prevented from a more extensive garb that had longer sleeves than the school uniform.

However, the court was careful to express,

…this case concerns a particular pupil and a particular school in a particular place at a particular time… The House is not, and could not be, invited to rule whether Islamic dress, or any feature of Islamic dress, should or should not be permitted in the schools of this country. That would be a most inappropriate question for the House in its judicial capacity, and it is not one which I shall seek to address.

In a split-decision resembling a balancing similar to our Oakes test, the majority held that no infringement on human rights had occurred, largely due to alternative education facilities available to her (L Scott at para. 90). While the minority held that her rights had been violated, it was done in a justifiable manner. The pressing justification in this case was the mere effect of peer pressure on other students to dress the same way (B Hale at para. 98).

Baroness Hale did note, however, in para. 94,

If a Sikh man wears a turban or a Jewish man a yamoulka, we can readily assume that it was his free choice to adopt the dress dictated by the teachings of his religion. I would make the same assumption about an adult Muslim woman who chooses to wear the Islamic headscarf.

The apparent contradiction within the House of Lords’ decision might be explained by the numerous Turkish cases they cite: Karaduman v Turkey (1993) 74 DR 93, Kalaç v Turkey (1997) 27 EHRR 552, and most importantly, Sahin v Turkey (2005) 41 EHRR 8, which was heard before the ECtHR.

John Finnis, a University of Oxford Professor of Law and Legal Philosophy, states in Endorsing Discrimination Between Faiths: A Case of Extreme Speech,

To a far greater extent than the judgments disclose, counsel for the school had rested his argument about justification squarely and almost exclusively on Sahin, where both chambers of the Strasbourg Court had deferred, with little sign of strain, to the rulings of the Turkish courts and other authorities. It is in Sahin that the real premise and thrust of Begum can be found.
[emphasis added]

What exactly is this premise behind Begum and the current discourse on the hijab, niqab, burqa, and possibly even the minarets? According to Finnis, it is that the “intimidatory pressures for conformity…” are an “…early precursors of jihad.”

Yes, the public policy interest in controlling what women choose to wear is that they are the front-line soldiers for an all-out invasion. The only thing missing from this conspiracy theory of the highest order is a “Protocols of the Elders of Mecca.”

Finnis points to the submissions made by government of Turkey before the Third Section of the Strasbourg Court in Sahin,

In order to attain its ultimate goal of replacing the existing legal order with sharia, political Islam used the method known as “takiyye”, which consisted in hiding its beliefs until it had attained that goal.

Taqiyyah has even been cited by former CIA Director, James Woolsey and other supposed “experts” on the subject, including Dr. Andrew Campbell, who states,

Lawyers associated with defending Muslims charged with terrorist offences should, in many cases, be subject themselves to security-checking to ensure that their motives are bona fide and that they are not secret converts, under the control of a foreign intelligence service or devotees of taqiyya.

The problem here is that the taqiyya doctrine discussed here is almost exclusively Shi’a, and is not even used in this way by the Shi’a. It has no absolutely no relevance to terrorists, the (Sunni) parties in Sahin and Begum, or the majority of Muslims around the world.

Although Finnis concedes that the Third Section and the Grand Chamber made no ruling about taqiyyah in Sahin, he does point to broader statements on this point made in Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003-II. If Finnis is correct about this, it does demonstrate to the lack of familiarity and knowledge that government lawyers, the ECtHR, the House of Lords, intelligence “experts” and legal academics have about other legal systems and beliefs.

Although these fears can and should be rejected and dispelled, there are other concerns that Finnis points to in Refah that are much more complex,

Even in the absence of threats of force, both sharia and plural religiously based legal systems are in themselves, even if democratically adopted, inherently incompatible (so the Court finds) with the European Convention on Human Rights and the conceptions of democracy and the rule of law which it enshrines.
[emphasis added]

Any broad and general blanket statements made about a complicated and diverse legal system should raise suspicions. But this is admittedly an area that has been neglected in academic study, which is why I am sharing a preliminary paper that outlines some of these issues,

The Role of Islamic Shari’ah in Protecting Women’s Rights.

I first presented this paper at the United Nations Economic and Social Council’s Commission on the Status of Women‘s 53rd Annual General Meeting, and further refined it after some comparative legal studies this summer.

The implications of blindly accepting Finnis’ proposition is somewhat disturbing,

Confronted by the grave warnings thus issuing from courts of great pan-European authority, citizens of countries whose Muslim population is increasing very rapidly by immigration and a relatively high birthrate may ask themselves whether it is prudent, or just to the children and grandchildren of everyone in their country, to permit any further migratory increase in that population, or even to accept the presence of immigrant non-citizen Muslims without deliberating seriously about a possible reversal – humane and financially compensated for and incentivised — of the inflow. Such thoughts, and the corresponding proposals that might be put forward for reflective deliberation, could not rightly be described as extreme, unless the judgments of both chambers of the Strasbourg Court in Refah are extreme.
[emphasis added]

That’s a chapter of Canadian history I’m glad is shut, hopefully for good.

Between Multani and Syndicat Northcrest, subjective beliefs of an individual for a bona fide religious requirement is all that is needed to invoke s. 2(a). Even the limitations in Huterrian Brethren are unnecessary, as women wearing the niqab/burqa already believe in concessions for identification and security purposes (including voting).

Fears recently raised about bank robberies are just as absurd, and would likely result in Santa bans too. Poor children. And Article 7 1.(d) of the Rome Statute might have something more to say about Finnis’ solution.

Unfortunately the debate is still out on America and Europe, but legal institutions should not continue to be accomplice to this ill-informed analysis. There were strong dissents in Sahin, which notably stated that the headscarf had no single meaning, and that the opinions of the women themselves were lacking from the analysis (Tulkens J). Judge Kovler expressed concern in his concurring opinion in Refah,

I also regret that the Court… missed the opportunity to analyse in more detail the concept of a plurality of legal systems, which is linked to that of legal pluralism and is well-established in ancient and modern legal theory and practice… This general remark also applies to the assessment to be made of sharia, the legal expression of a religion whose traditions go back more than a thousand years, and which has its fixed points of reference and its excesses, like any other complex system.

If law blogs really can influence the judicial process, let’s hope someone catches this post and offers some clarification to the legal discourse in Europe.

Prof. John Finnis will be teaching at UWO Law in the Spring term on the Moral Foundations of Law. Needless to say I will be avoiding that course, and I question greatly the moral foundations of the legal propositions raised above.

Update

Quebec’s Bill-94 will attempt to ban the niqab in that province, a move that will certainly be challenged in the courts.

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Comments

  1. There is some truth to a lot of what is written here and in the linked article but I still have a number of issues with it

    1) I think there is an assumption made in the gender piece that a ‘separate but equal’ regime for women is justiable in a human rights context. The thrust seems to be that it is ‘ok’ to separate men and women in numerous respect as long as women aren’t getting beaten, etc. Omar goes to great lengths to argue that shariah law conforms with humanistic principles with respect to how we treat our fellow human beings but seems to acknowledge that shariah treats men and women differently. Much of the feminist movement in the west has been focused on allowing women the same opportunities as men and to abandon their previouos roles. As I see it as long as the law prescribes separate roles for men and women I don’t know if it can truly be called ‘equal’.

    2) My biggest problem in putting any stake in religious law systems of any kind is that they are fundamentally based on certain unchanging and unchallengable premises. The fact is that with most legal-political systems nothing is permanent. Basic principles can be tossed out by judges (ex. common law) politicians (ex. statutes) and other mechanisms (ex. constitutions). Nothing is sacred. Every principle must sink and swim on its merits.

    With religious law on the other hand, some principles are stagnant and unchangeable (what Omar calls the “Basic Code” in the gender piece) and while they may be reinterpreted from time to time they are what they are. Some might even call it blasphemy to suggest that some basic aspect of the law be changed.

    And lets not forget that many of us reject these ‘basic premises’. I don’t accept for a moment that Mohammed or Jesus were prophets or that the Quran or the Bible are divinely inspired. Therefore I’m not prepared to take anything contained in the books or said by the prophets at its face value. It is not a very compelling argument for anyone but a follower of a particular religion to say “well X says Y about Z” (which is what Omar does in the gender piece–the Quran or a hadith says X). These sources simply contain injunctions and we are expected to follow them. Whereas with mnany secular principles (freedom, equality, democracy) there is a wide body of literature about why these principles are ‘correct’ principles.

    So while I appreciate the concept of ijtihad, and recognize that there may be useful aspects of sharia, those aspects have to sink or swim on their own merits. In other words, if we were to adopt them we would adopt them because they make sense from a non-religious perspective not because they are purported to be handed down by god.

  2. “As I see it as long as the law prescribes separate roles for men and women I don’t know if it can truly be called ‘equal’.”

    As I see it as long as men and women use separate washrooms in public places they can not truly be called ‘equal’.

  3. I explicitly avoid the issue of equating exact treatment for both genders, or a culturally uniform understanding of human rights, because even in feminist literature there is dispute over it. Gender equivalence in some cases has been shown to be detrimental to women. In other cases I’ve suggested elsewhere that stereotypical (even if socially formed) roles of women may actually be more effective than males, and it’s the presumption of male superiority that needs to be challenged, not the difference.

    Instead, the intent of the paper was to be solution-oriented, with the hope of sparking more academic interest in the subject. In at least one example I do demonstrate that the different treatment actually benefits women over men, even in historic practice.

    The point of the article is mostly that the Basic Code is pretty basic, and does allow a great deal of flexibility. We have similar basic codes in the common law that are typically referred to as a Constitution (n.b. terminology of Basic Code is not mine, and is borrowed from the source cited).

    The extent of this flexibility has not been properly explored by academics in the modern context largely due to political and social constraints, and without this exploration it’s enormously misleading to state that the legal system definitively stands for one proposition or another. This is also what is alluded to in the Refah dissent. It’s irrelevant for you or I to actually believe in the merit behind specific religious injunctions – only ensure that they comply with broader notions of human rights. More importantly, those claiming to adhere to it will only abide by justifications provided within a framework that they recognize as legitimate.

    Even within religious-based legal systems (Islam is not the only one) social policy plays an enormous role, and has historically borrows heavily on many of the principles you cite. Although this needs to be developed further, it’s my premise that with enough academic investment into juristic institutions, many of these issues can be adequately resolved. It’s unlikely that this will occur in impoverished regions in the world given the relative priorities of basic sustenance. If this analysis does occur, for example, in European courts, I hope that it is done in an informed manner and not based on the misinformation and false paradigms that Finnis proposes above.

    On another note, it’s good to see you following my posts on other sites KC. Stay tuned for another one later today that expands on the above points even further.