Libertatem Magazine

Libertatem: Navigating Legal Perspectives


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Burqa, the lengthy flowing gown worn by Muslim women, has been the subject of debate for tens of years. Some see it as a “mobile prison” that restricts a woman’s right to participate in the society as an equal citizen while the others embrace it as a manifestation of freedom from false cultural standards of beauty. In this post-Renaissance World, wherein religion has become entirely a private affair and religion-based morality no longer serves as the defining thing it would be utterly futile, amidst the moral crisis in this debate, to base one’s arguments in religious or moral psychology to defend one’s stand for or against the burqa; because then the liberal, secular, democrats would cry “Premodernism.” It is therefore necessary that when faced with questions like “Whether burqa should be banned or not?,”  that we approach this debate not from the lens of religion or morality, but acknowledging the reality that the governing premise in today’s society lies in the ideals such as Liberty, Equality and Fraternity. We, therefore, are supposed to respond not as to whether the burqa is morally good or not but as to whether it is legally valid or not. This discussion furthers into questions such as: Does the State have the legal right to regulate our wardrobes? On occasion of conflict between the citizens’ rights and the State’s power to make laws pertaining to social security; where must one draw the line?

The modern, welfare state presumes that the sovereignty rests with the ‘citizenry’ which furthers the concept of constitutionalism, that the government through which the authority of the people is exercised should be free from absolutism and its powers should be driven and regulated by a Constitution. Liberty, Equality and Fraternity are essentially people-centric concepts that inherently imply that the State shall take appropriate measures to ensure that these values are protected. France, that is the epicenter of this debate, is believed to have stood up for ideals such as Liberty, Equality, Fraternity, Constitutionalism, Rights of Citizens, Popular Sovereignty, Natural Rights and Anti-Clericalism since the French Revolution in 1789. The Constitution of the Fifth French Republic which declares in the Preamble: “The French people solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946…” draws its strength from The ‘Declaration of Rights of Man and Citizen’ that was approved by the National Assembly of France on August 26, 1789. In the background of the recent incident in Nice that had the French police making a woman remove her clothing on a beach, it is worth considering these articles from the Declaration:

  • Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law.
  • Law is the expression of the general will. Every citizen has a right to participate personally, or through his representative, in its foundation. It must be the same for all, whether it protects or punishes. All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents.
  • No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.

Come question of rights, come the defense of “national security.” In the midst of this debate surrounding the topic of Muslim veil, many an argument has conjured up the question of the veil being a “security threat.” There are literally a handful of women across the French Republic who wear the veil. “The Interior Ministry estimated that just 2,000 French women wore the niqab (for reference, France’s Muslim population is now estimated at 7.5 million) and some think that even that estimate was faulty and potentially too high,” notes Adam Taylor in his article titled “7 facts about France’s Burkini Ban that make outsiders very uncomfortable” (The Independent, Thursday 25 August 2016). Furthermore, Jonah Levy, an Associate Professor of Political Science at University of Berkeley points out the following in his blog: “The French police are well equipped with sophisticated weapons; they are authorized to demand identity papers from people more or less at will; and they can jail suspects for several days without charging them.” (France: Repression is not the answer, January 9, 2015). If indeed the paranoid critic sees the covered women as a security threat, does that not imply that the State apparatus with all the resources and power in the World is failing in its duty to ensure safety of the French citizens when the “security threat” is the metaphorical David in the face of Goliath? Jonah Levy further points out and correctly so: “a pure law-and-order response will feed the narrative of the selective application, or even invention, of Republican principles as a means of discriminating against and persecuting Muslims — and not for the first time. The well-publicized French bans on the wearing of headscarves in public schools or burqas in public, while framed in universal terms, were clearly aimed at Muslim practices. Catholic children had worn crucifixes and Jewish students yamulkes for a century without anyone voicing concern that such behavior threatened the secular character of French public schools. It was only when Muslim girls donned headscarves that secularism was claimed to be in danger.”

The State, so to say, has no business regulating citizens’ wardrobes. The Islamophobic undercurrent in this ideologically-loaded debate is there for all to see. The pretext of “greater common good” just comes handy as a politically-correct way of pushing minorities further into the background. France, it seems, has played into the Islamophobic narrative at the expense of its lofty ideals of Equality, Liberty and Fraternity. Are the French ideals too idealistic to be realized, one continues to wonder.

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