Thursday, January 7, 2010

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 had occurred, largely due to alternative education facilities available to her (L Scott at para. 90). While the minority held that her human 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 (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, KalaƧ 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, the subjective beliefs of an individual of a bona fide 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. 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.

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