Niqab, Burka and Burkini
Change and development of laws and policies are motivated by various factors and issues which arise as time goes by in a dynamic society. Analysing a policy is the comprehension of what governments do and what difference it actually makes (Dye, 1997) wher
(In this writing Burka refers to both Burka and Niqab since they raise the same issues)
The legislator who is in power to serve the citizens in a liberal democratic state takes into consideration the common good, without imposing rules that may hinder the freedom of choice of minorities.
It should be noted that at present, a law exists stating that a person is guilty of a contravention if in any public place wears any mask, or disguises himself, except at the time in the manner allowed by law’ (Criminal Code Malta, Art 338n). However, due to its ambiguity the Attorney General has advised the authority that persons wearing a burka are not to be arraigned in court.
France is not the only state banning the burka. Both Belgium and recently the Netherlands followed in banning the burka, whereas in some places in Italy, Spain and some cantons in Switzerland also outlawed the full veil.
One of the imperative questions surrounding this issue is whether it is a case of precluding freedom of choice for women or rather challenging an imposition on women adopted by cultural norms or religious beliefs.
Referring to such a ban as an act of racism is in my view a point of question since, as Dawkins puts it, religion is not a race just as much as socialism is not a race (Dawkins, 2014), but a set of rules and doctrine agreed upon and bestowed by a denomination. One cannot cop out of a race, however the same cannot be said about religion. It goes without saying that this is a debatable theory. On the other hand, Karl Marx believed that like any other social institution within a society, religion interrelates and depends on economy. In his view, religion deludes the working class by making them believe that suffering is a virtue which will be vindicated in the afterlife and such belief creates a false consciousness and by such maintains that religion is the opium of the people (Marx, 1843).
In light of both views, why should an illusory belief prevail on security or oppression?
Former French president Nicholas Sarkozy, prior to the implementation of the law, stated that it is unacceptable in France that women are prisoners behind a screen deprived from social life and identification, moreover it does not represent religion but rather subservience and a sign of degradation (Sarkozy, 2009).
The Muslim Canadian congress beseeched the Canadian federal government to outlaw the burka stating that it has no basis in Islam yet it hinders public safety since it conceals identity. Spokesperson for the group Farzana Hassan added that if the government firmly believed in equality between sexes, supporting such practice was unreasonable (Farzana Hassan, 2009).
In France when the act of prohibiting concealment of the face in public space was passed in September 2010, a Muslim Member of Parliament also voted for the ban. Fadela Amara a Muslim Housing Minister called the Burka ‘a kind of tomb, a horror for those trapped within it’ and ‘a visible symbol of the subjugation of women’, whereas the Mufti of the Paris Mosque (Dalil Boubaker) stated that in no instance the Quran obliges women to wear the Burka whilst insisting about its inconsistency with French secularism.
Imperative was the case S.A.S vs France which was brought before the European Court of Human Rights by an individual of a Pakistani origin who remained anonymous, challenging the French law on banning face covering including the burka on the basis of violating the ECHR provisions in the right to privacy and freedom of religion. The ECHR upheld the French law on face covering claiming that the aforementioned rights were not infringed (S.A.S vs France, 2011)
Au contraire one might argue that even if the burka is a sign of oppression women should still have the choice to wear it and the solution should be toughening laws against women oppression rather than creating another law restricting the freedom of choice.
In fact, British Conservative party member Jacob ReesMogg defends the minority stating that it is up to the woman to decide what to wear and she should be free to make her own choice. He added that it is easier to defend practices which albeit being harmful are considered as a part of cultural norms such as smoking and drinking (Jacob Rees-Mogg, 2013)
On the other hand in a piece he wrote on the New York Times, French politician JeanFrançoise Copé stated that freedom of dress to a certain extent is limited. He maintained that just as an individual cannot decide to traipse around the streets in the nude the same applies to individuals who opt to wear a headgear making them unidentifiable. He also added that as a mayor guaranteeing security to the residents for whom he is responsible is near to impossible when individuals are free to roam about wearing a headgear. This doesn’t mean an attack on the individual liberty. Furthermore, he reiterated by saying that with every individual liberty comes individual responsibility.
Even if in some circumstances, especially security related, individuals wearing the burka do remove such garments, is this enough, especially during an era when most public places are set up with security video cameras intended to monitor possible crimes? If it is unlawful for a person to roam around in public places with a motor helmet or a ski mask because of concealed identity, shouldn’t it apply as well to burkas? What about picking children from school or any other social club – is it safe to let women pick up their respective kids notwithstanding the possibility of a person in disguise? Shouldn’t it be the employer’s prerogative whether an individual wearing a burka is engaged with the company especially in front office, customer-related post? Moreover aren’t women wearing the burka in disadvantage in both social and economic life? Does it not mean that they are precluded from having equal opportunities?
Regarding the Burkini (which has nothing to do with the Burka) it was just a matter of time until a high court suspended the ban. The identity is not concealed and thus there’s no security issue (the same applies to the hijab and chador). In this case the state is interfering with no justifiable reason with the freedom of choice. It is so annoying when individuals on social media justify the ban by saying “F’pajjiżhom lanqas b’dublett qasir ma jħalluk imbagħad jippretendu li jagħmlu li jridu f’pajjiżna” (they don’t even allow someone with a short skirt in ‘their’ country, how can they expect to impose their cultural norms in our country). The reasoning is wrong because it is obvious we do not condone the rules and laws of oppressive governments (everyone agrees on this) yet these individuals instead believe that we, as a country, should resort to the same rules (the sort of eye for an eye).