After France, Belgium is the second European country to introduce a general prohibition on face-covering headgear in public life. A so-called ‘burqa ban’. The Act will enter into force on July 23.
Many Belgian municipalities had already banned the wearing of face-veils locally – before this general prohibition was introduced. This caused discussions to arise around the legality of such prohibitions, since a court had decided in January 2011 that fining a woman for wearing a niqab amounted to a violation of her religious freedom. It was after this ruling that support for a general ban gained momentum.
The new federal Act, amending the Belgian Criminal Code, renders it an offence to publicly “cover or conceal one’s face in whole or in part, so that one is unrecognisable”. Exceptions are limited to “legal provisions” and “labour regulations” that explicitly impose or allow face covering in public, and to “local ordinances regarding festivities”. The ban has three main goals: safeguarding public safety; promoting ‘living together’ (‘le vivre-ensemble’), with an emphasis on communication and recognition; and the protection of women’s rights.
Just like the local bans, however, the general prohibition is problematic. Its scope is extremely broad, whilst exceptions are very limited. A strict application would therefore lead to bizarre consequences, especially since intent is not required: negligence suffices. Such examples of what the Act would prohibit include: wrapping oneself up warmly in a scarf and cap in winter; wearing dust masks against smog on a bicycle; scouts leaders being disguised while supervising children’s games; mascots at sports events; and even wearing bandages after an accident or plastic surgery.
It is doubtful whether the ban’s aims can legitimate the restriction on religious liberty that it entails. Face covering is only a safety risk in specific circumstances - a general prohibition seems unnecessary and disproportionate. As for the goal of ‘living together’, the question is whether or not it is a matter of individual freedom to decide to have face to face contact with other people in the streets. This all leads to more questions, such as whether the Belgian government is planning on introducing bans on people walking around with iPods, or any other behavior that renders one less susceptible to communication and interaction in public.
And finally, women’s rights. A distinction can be made between women wearing a face veil out of choice and those doing so because they are being forced. For the former, a prohibition does not contribute to their rights, but instead limits their autonomy and choice. For women that are coerced to wear a face veil, on the other hand, it would not seem pertinent to combat such oppression by means of fining or imprisoning them. In fact, the chances are that the ban actually compounds the isolation these women suffer from, by preventing them from being allowed out of their homes at all.
Belgium’s ‘burqa ban’ raises fundamental legal questions. It is possible that it will not withstand constitutional scrutiny. Even aside from tensions with higher legislation, criminalisation should have been avoided for practical reasons. The estimated number of women wearing a face-veil in Belgium ranges between 200 and 270. In most cases it concerns a temporary phenomenon: many women wear the niqab only during a certain period in their lives. As long these facts remain as they are, emancipatory measures are preferable to repression. Especially since prosecution runs the risk of fostering resentment and radicalisation.