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Why the French Judiciary Got It Right

Simon Pelsmakher

Since France’s 2010 controversial ban on face-coverings, there has been a growing debate on the question of freedom of religion in Europe. While the 2010 law also called for the ban of balaclavas and hoods, it was largely seen as a ban on female Muslim head coverings such as burqas.

Arguably, the debate as it holds today seems to be centred on the role of Islam in the West, due in part to recent terrorist attacks led by proponents of radical Islam. Banning burqas is thus seen as an attempt to decrease what Western Europeans see as ‘symbols’ of such radicalization.

The danger, however, is that this debate could be easily hijacked by extremists on either end of the political spectrum, in order to discriminate against other minority groups such as Jews. This can be already seen with the rise of extremist political parties such as the Golden Dawn Party in Greece and the Jobbik Party in Hungary. Some have also pointed to mainstream calls to ban ritual slaughter in Europe as another symptom of this growing concern.

In the summer of 2016, the issue of freedom of religion and religious dress was once again revisited when several French towns along the Riviera enacted a ban on the ‘Burkini,’ a swimsuit designed for observant Muslim women to maintain their practices and traditions of modesty. A French court – the Council of State – went on to overturn this ban, yet the debate still remains.

Some French leaders, such as Prime Minister Manuel Valls, have argued that permitting individuals to wear Burkinis represents the display of “political Islam, [and its ban is designed for denouncing] fatal and retrograde Islamism.”

In response to this issue, the Council of State replied that, “The emotion and concerns arising from the terrorist attacks, notably the one perpetrated in Nice on July 14, cannot suffice to justify in law the contested prohibition measure.” In stating so, the Court effectively squashed the Prime Minister’s justifications for diminishing Muslim Europeans’ right to freedom of religion and freedom of expression, allegedly, in order to address concerns of radicalization and terrorism.

It is for this reason, that the court ‘got it right.’ As 20th-century European history rightly demonstrates, the discrimination of minorities can start with small and simple gestures, yet have unimaginably tragic results. While the debate regarding what strategies to pursue in relation to  radicalization and terrorism is ongoing, as President Obama argued, the solution to this issue should not require “us turning against one another.”

Rather, political leaders and the judiciary should act to ensure that basic democratic rights should be guaranteed to all, and not a select few. By overturning the Town of Villeneuve-Loubet’s ban on Burkinis, the French Judiciary took a meaningful and positive step in this type of a direction.

The Royal Canadian Mounted Police recently announced that female Muslim officers will have the right to wear their respected religious dress as part of their official uniforms. Federal courts have also recognized the rights of Sikh police officers to wear their own respective religious dress as part of their uniforms.The issue of religious dress and freedom of religion is not exclusive to Europe. In 2013, Quebec’s Parti Quebecois Government attempted to pass the controversial Charter of Values, which would have prohibited civil servants such as doctors, teachers, and others from wearing religious dress. Arguably, Quebec’s Charter was geared towards the display of Hijabs and other Islamic dress, yet it would have also prevented Jews from wearing Kippot, Christians from displaying Crosses, and so forth. The Parti Quebecois was voted out of government before the law was ever passed. Like France’s head-covering ban, arguably, this measure too would have ultimately discriminated against minority rights (allegedly in the name of ‘secularism,’ which too was used as justification for France’s actions).

Rather than discriminating against minorities, as per these latest examples, the law should continue to evolve in order to uphold and defend basic democratic rights for all.

In doing so, lawmakers can focus on developing more effective strategies to tackle radicalization, rather than being distracted by the mundane. France’s Council of State therefore got it right in this case, and its ruling serves as an example for the way forward. Indeed, as France’s National Motto goes: “liberté, égalité, fraternité!”… In 2016, this philosophy should certainly apply to all, and not the select few.

Passionate for International and Israel Affairs, Simon Pelsmakher is a Research Assistant at B’nai Brith Canada. He has previously written on Israel’s complex relationship with Turkey, the Peace Process, Canadian Foreign Affairs, Human Rights Law, and the security situation facing Israel from a strategic vantage point. He is studying law, and is excited to continue his writings from a legal perspective.