Articel Content
Criminalizing the veil?
Text: Tobias Ehrenbold
Switzerland is set to vote on whether covering one’s own face should be a punishable offense. Having weighed up the arguments employed by proponents of the initiative, Basel legal scholar Bijan Fateh-Moghadam concludes that a general ban on face coverings is incompatible with the country’s liberal federal constitution.
No other garment is as hotly debated in Europe as the face veil worn by certain women of Muslim faith. A little over ten years ago, the question of whether burqas or niqabs should be banned in public was still a purely hypothetical one in Europe, recalls Bijan Fateh-Moghadam, Professor of Legal Theory and Life Sciences Law at the University of Basel. Back then, hardly anyone was interested in the relationship between religion and criminal law – one of Fateh-Moghadam’s research areas, alongside biomedical law. A short time later, the debate on “burqa bans” had spread like wildfi re, with several Western democracies seeing a resurgence of stateimposed dress codes.
Following bans already in place in countries such as France or Austria, Switzerland is expected to vote on a nationwide ban on face coverings in 2019. If the proponents of the popular initiative have their way, wearing a face veil will become a criminal offense. Fateh-Moghadam looked at how their arguments hold up from a jurisprudential point of view. “From a criminal law perspective, the key questions are: Who or what is the ban intended to protect? And is the ban necessary in order to safeguard free and peaceful coexistence in Switzerland?”
Muslim women are not hooligans
The popular initiative takes its cue from the canton of Ticino. In the first two years after the ban was introduced there, charges were brought against a total of 37 people. Of these, 30 were masked sports fans, and less than five were women wearing face veils. On one hand, these figures reflect the scarcity of burqas and niqabs in Swiss public life, Fateh-Moghadam refl ects. However, he is reminded of the posters used to campaign for the ban. They depict a fully veiled woman next to a football hooligan brandishing a Molotov cocktail – a highly problematic juxtaposition that Fateh-Moghadam sees as tantamount
to discrimination against a religious group.
What is more, he argues, a ban on face coverings is not needed to tackle the problem of masks at demonstrations or sporting events, as this issue is already covered by existing security legislation. He believes that the controversial confl ation of Muslim women and hooligans reveals the initiative’s true motive: portraying the Muslim faith as a threat to public security. In other words, right-wing populist propaganda rather than a serious attempt to find solutions for the real social problems arising from migration.
Punishing the victim
“It is perfectly legitimate to expect the state to intervene if women are being forced to wear a veil,” Fateh-Moghadam clarifies. “This goes without saying, as it would constitute an infringement of that woman’s rights: her religious freedom and her right to self-determination, which includes the right to dress as she chooses. However,” he adds, “forcing someone to wear a veil is already an off ense – the criminal off ense of duress (Art. 181 of the Swiss Criminal Code).”
What the expert finds absurd is that the ban is aimed at women who are presumed to be wearing a face veil involuntarily. “It is precisely in cases where we think that women are being forced to wear the veil that the ban makes no sense, as it would punish women who are being coerced by their husbands or some other third party.” Applying criminal law to the victim renders it inherently selfcontradictory, he argues.
Aside from the fact that face veils worn in public are a rare sight in Switzerland anyway, there are no studies indicating that women are being forced to cover their faces. “The vast majority of these women appear to be wearing the veil for religious reasons of their own free will,” says Fateh-Moghadam. “Many of them are converts – Swiss women, for example, who have adopted orthodox forms of Islam.” In these cases, it makes little sense to argue that the veil is worn by compulsion, he points out, adding that for these women to be aff ected by the ban would be a violation of their religious freedom and freedom of self-expression.
Tolerance or neutrality?
Fateh-Moghadam is heartened by how clearly the Swiss Federal Council expressed its commitment to the liberal constitution in its counter-proposal. Ultimately, he believes, the initiative is less about the actual issue of face coverings than it is about the fundamental relationship between state and religion. “I have observed a gradual shift in the principles that guide legislation on religion. Unfortunately, the trend is a regressive one.”
Historically, he traces a progression from religious legal systems, under which minorities were repressed, to limited conceptions of tolerance, and finally to the modern principle of state neutrality. Fateh-Moghadam advocates neutrality, he clarifies. He believes it is an accomplishment that issues pertaining to the choice of religion or world view are left entirely to civil society. However, he fears that this principle is now under threat from the rise of tolerance as a legal principle. Counterintuitively, tolerance is actually a backwards step when it comes to jurisprudence, he explains: the ban on face coverings, or the minaret initiative already adopted in Switzerland, are instances of a state taking a religious and ideological stance, and saying "we” – the Christian majority – are tolerant of religious minorities, but our tolerance has limits – which we are now
defining.
The return of religion
In this sense, tolerance as a legal principle constitutes a return to a religiously and ideologically defi ned understanding of the state, he argues. Repressive “tolerance laws” such as a ban on face coverings are, he adds, incompatible with a liberal, religiously and ideologically neutral conception of the federal constitution. “The proponents of the initiative claim that the veil has no place in Swiss culture,” Fateh-Moghadam says. “But a defi ning characteristic of culture is precisely that it does not depend on legal enforcement for its survival. If not covering one’s face is a part of Swiss tradition, then this tradition will prevail with or without a ban.”
Bijan Fateh-Moghadam is active in teaching and research as Professor of Legal Theory and Life Sciences Law at the University of Basel’s Faculty of Law.
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