The politics of the veil
Speaking at the final Judges in Conversation event for 2016 last week, Professor Ratna Kapur of Jindal Global University said human rights interventions sometimes harm more than help.
Professor Ratna Kapur with the Hon Justice Susan Kenny
In a discussion that explored the politics surrounding Muslim women in Europe who wear the veil, the postcolonial feminist legal thinker said legal interventions to protect human rights in liberal democratic states often exclude or restrict protections for minority communities.
Speaking on a panel with the Hon Justice Susan Kenny and the Hon Justice Debra Mortimer of the Federal Court of Australia, Professor Kapur discussed Dahlab v Switzerland, which involved a Swiss primary school teacher who converted to Islam, and was banned from teaching because she wore a headscarf. In this case, the European Court of Human Rights upheld the state’s right to force Ms Dahlab to remove her headscarf. The Court reasoned that the interference with the teacher’s freedom to manifest her religion was justifiable to protect the freedoms of the schoolchildren at her school.
According to the Court, the headscarf was “hard to square with the principle of gender equality” and “might have some kind of proselytising effect” on the schoolchildren. The Court also held that it “appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils.”
Even though the Court had no evidence of any proselytising effect on the children, nor any evidence that Ms Dahlab was subordinated on the basis of her gender and was forced to wear the headscarf – on the contrary, she gave evidence that she wore it voluntarily – Ms Dahlab was prevented from wearing traditional Muslim clothing at work.
Professor Kapur explained that the human right to freedom of religion extends not just to actions, but also to beliefs. According to the European Convention on Human Rights (PDF), “Everyone has the right to freedom of thought, conscience and religion”, which includes the freedom to manifest that “religion or belief in worship, teaching, practice and observance” (Art. 9.1). Freedom to manifest religion can be restricted by the state, but only in circumstances that are “prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others” (Art 9.2).
Professor Kapur said Dahlab v Switzerland demonstrates a state exercising its prerogative to restrict Muslim women’s freedom to manifest their religion, due to a perception that the veil is a potential danger to society.
“The Veil per se is seen as something negative,” she said. “The veil is not seen as an expression of her freedom of belief, but a negative manifestation of belief that the state can control.”
She also said that when states impose limits on how Muslim women can dress, this forces them to undergo a “cultural strip” to assimilate to Western liberal values, ignoring the women’s agency to manifest their faith in the manner of their choosing. This “cultural strip” can also lead to a literal undressing, as was demonstrated earlier this year when French police officers forced a Muslim woman in a beach in Nice to remove her burkini. The scene was captured in a photograph that has since gone viral around the world.
This “othering” of Muslim women also puts the onus on them to adjust their culture and traditions to live with the majority population, the Professor said.
To achieve greater equality for Muslim women, Professor Kapur said the normative assumptions behind decisions such as the Dahlab v Switzerland judgement, or France’s burqa ban, must be challenged. This would involve recognising that the veil, far from a negative manifestation of belief, is often meaningful to the identity of the wearer and is tied to her sense of inner freedom.
Professor Kapur also encouraged her audience to reconsider the assumption that Muslim wearers of the veil are subjugated or oppressed figures that need rescuing from the liberal West.
“Maybe there are non-liberal ways of living in the world? What can we learn from that? Maybe this woman has something to teach us,” she said.
By Roselina Press