Stculcw Fuvuiawiev\fcall >v)a': Fvttdov\A. Rvcd the "B>$i/viaXia,0 o~f Muslln/i hteadscarves Ua, France

Transcription

1 Stculcw Fuvuiawiev\fcall >v)a': lojlous Fvttdov\A. Rvcd the "B>$i/viaXia,0 o~f Muslln/i hteadscarves Ua, France Deporting on the storming of the Bastille, France s political prison, on 14 July 1789, the London V\Times said that 'the right hand... of tyranny is cut off. 1 Charles James Fox, leader of the Whig party sang in tune with the chorus of applause with his statement: Flow much the greatest event it is that ever happened in the world! And how much the best!.2 Central to the French revolution of 1789, and the euphoria with which it was met, was the division it imposed between politics and religion. With Napoleon Bonaparte s Concordat of 1801, the separation of church and state was written into law by the Third Republic, at which point laicite or secularism became a cornerstone of French republicanism. Exactly two hundred years after the attack on the Bastille another revolution began in Paris when two Muslim girls stormed into their school, refusing to remove their headscarves in an attempt to liberalise interpretations of laicite by asserting their right to wear a religious symbol in public. According to many observers, including the International Helsinki Federation for Fluman Rights (IHFFIR), the headscarf issue has been simmering in France ever since.3 The latest instalment in a 200-year-old French battle 4 has only just unravelled with the Lower Flouse of the French Parliament overwhelmingly voting to make into law the proposal to ban the wearing of ostensible religious symbols including yarmulkes, large crucifixes and the veil. The introduction of this new law - in respect of which Germany and Belgium (at least) are expected to follow suit - has sparked debate worldwide, the move labelled secular fundamentalism.5 In the paper that follows I seek to analyse the context of the French law with respect to the class of people it specifically targets - namely Muslim women - in order to demonstrate that the law is premised upon false assumptions and fails to achieve its stated aims. The presupposed ideas upon which the law is based first, the nature and purpose of veiling (these notions informed and influenced by a long history of Orientalism), and second, perceptions of public space as neutral in character - will be examined and shown to provide an insufficient justification for the imposition of the law. Flaving considered how these two presumptions underlying the law are easily challenged and therefore significantly undermine the law s validity, the international law implications of the laicite reforms will be briefly addressed. 1. Secularism in contemporary France In his speech to the National Assembly concerning the bill on the application of the principle of laicite in state schools on 3 February 2004, the Prime Minister of France, M. Jean-Pierre Raffarin, reaffirmed the centrality of secularity to the French Republic, stating that it is at the heart of our Republic. It is simultaneously a tradition, a way of life and a promise of freedom 6 (emphasis added). With these words, Prime Minister Raffarin demonstrates the extent to which laicite goes beyond a political understanding and instead has become a more overt belief-system. The quasi-religious nature of laicite is further reinforced by Raffarin s multiple use of the term fundamental in stressing the significance of the new bill and secularism. To Raffarin, secularism constitutes our fundamental values on which we must stand firm.7 Such statements support Astier s claim that France is not the only Western country to insist on the separation of church and state - but it does so more militantly than any other. 8 Though emphatically expounded, however, secularism has a unique definition in France. As it has its roots in the end of the domination of the Catholic Church over the state, with the Constitution enshrining this division, laicite is described as something of an 'uneasy compromise that French people have made between the letter of the Law of Separation of State and Churches and its peculiar implementation within French culture (3) Polemic (2004)

2 Today, the French challenge is not Catholicism but Islam. Through a framework that she posits as the French Version of the Clash of Civilisations, Jocelyne Cesari aptly analyses the French apprehension towards Islam.10 Within the particular context of French laicite, resentment towards Islam, she argues, runs yet higher because its arrival inflames old passions that have long simmered beneath the surface of laicite. Muslim settlement in France, Cesari argues, has disrupted the uneasy peace that other major religious groups - Christian and Jewish - have made with laicite by relegating religious expressions to private domains. Far from adhering to this example, the Islamic presence has created new confusion over boundaries between public and private spaces, which is exemplified by the aforementioned Islamic Headscarf affair. In a 1989 ruling by the Administrative Appeal Court, the Conseil d Etat, headscarves and other signs of faith were allowed in state schools so long as they were not obtrusive.11 This was seen to be a significant development from 1837 when the Minister for Education instructed head teachers to keep all religious signs out of their establishments,1 yet still exposes the tenuous legality of the headscarf. Increasingly, the headscarf not only supplies information about the bearer, but it is also subject to public perception and thereby communicates the individual and collective motivations of those who adopt it as much as the perceptions of those who reject it. 13 Thus, the Muslim veil has become the site at which relationships between public and private, secular and religious are negotiated. 2. A veiled understanding It seems clear that a key contributor to restrictions upon the wearing of Muslim headscarves is a simple misconception of the religious symbol, with Cesari claiming that misunderstanding of [the] religious display further increases French animosity for Islam.14 A. Orientalism and the othering of Muslim women This misunderstanding is nothing new, and draws on a history of representation of the so-called Orient (be it Arab, Turk, Ottoman or Muslim) manifested through literature and discourse and heightened by a number of misconceptions which have more to say about the observer than they do about the object represented. Consequently, when M. Jacques Chirac, President of the Republic states: [T]he Islamic veil, regardless of the name you give it... [has] no place in State schools. State schools will remain secular... Our objective is to open hearts and minds. It is to make young people understand what is at stake and protect them from influences and passions which, far from liberating them or allowing them to make free choices, constrain or threaten them. he expresses an underlying assumption - one that has its densely woven roots firmly embedded in history - that the poor, repressed Muslim woman needs to be saved or liberated from the shackles of the veil which constrains her. This reflects the argument that the Orient figures as the harem fantasy of European imperialism that shows the East as the obscure object of western desire - an object over which power is exerted by way of an overarching Orientalist narrative.15 As perceived by Kabbani: The Western male could possess the native woman by force of his dominion over her native land; she was subjugated by his wealth, his military might, and his access to machinery. She was his colonial acquisition, but one that he pretended enjoyed his domination and would mourn his departure.16 In such a way the Muslim woman s story is not told by her but by the western male who - through defining her narrative - ultimately asserts control and authority over her, thereby subjugating her. Such attitudes towards the veil also demonstrate the Othering of the Muslim woman. This is most obviously present in the work of one of the most influential feminist thinkers during the French revolution, Mary Wollstonecraft, particularly Vindication of the Rights of Woman (1792) in which she attempts to establish a connection between the subordination of women in Islam and in Europe. In Vindication, Wollstonecraft discusses the way women are treated as a kind of subordinate being, and not as a part of the human species, in a manner exactly like what she calls the true style of Mahometanism, 17 which is a reference to the widespread Christian misconception that in the religion of Islam women do not have souls. 18 The term Mahometanism itself was used, as it still is today in some quarters, as a synonym for Muslim, on assumptions made not on the basis of evidence internal to Islam, but rather on the basis of a logic deliberately outside Islam. 19 Wollstonecraft incorporates various conventional representations of Islam, women and seraglio (harem) life into her argument to depict the degradation and lack of education that women have been subjected to Polemic 13(3)

3 Muslim Headscarves in France in Britain and France respectively, which is exemplified by the following passage: It is acknowledged that [women] spend many of the first years of their lives in acquiring a smattering of accomplishments; meanwhile strength of body and mind are sacrificed to libertine notions of beauty, to the desire of establishing themselves, - the only way women can rise in the world, - by marriage. And this desire making mere animals of them, when they marry they act as such children may be expected to act: they dress; they paint, and nickname God s creatures. - Surely these weak beings are only fit for a seraglio!20 Thus, Mahometanism, for Mary Wollstonecraft is a figure for an error she finds central to Western culture: the refusal to grant women full membership as rational beings in the human race as [References to the harem, to Mahometanism, and to symbol. This is exemplified by Prime Minister Raffarin s statement: It has to be recognised that certain religious signs, among them the Islamic veil, are now becoming more frequently seen in our schools. They are in fact taking on a political meaning and can no longer be considered simply personal signs of religious affiliation.22 More than this, the connection is unquestionably forged between the veil and violence, with this perceived link a clear influence on the laicite reforms. Though the IHFHR contends that for many Muslim women wearing a headscarf is a deeply personal choice and a sign of their religious conviction and has nothing to do with Islamic fundamentalism,23 in a BBC News Online article, Henri Astier claims that For many, militancy and headscarves are a way of expressing anger and forging an identity.24 Further, Cesari claims that nobody has any doubt that the law is aimed at Muslims, the Government has made clumsy efforts to present it as an even-handed policy affecting all religions equally The myth of neutral public space Another problematic premise upon which the laicite law is based is that of the notion of a neutral public space. Arguably not even the most fundamentalist secularists can speak of the French public space as necessarily neutral.27 As explored by Gray, the basic paradox that secularism has yet to confront is that although secular societies have theoretically left religion behind, all they do is substitute one set of myths for another. 28 The intensity and literalism with which laicite is pursued in this present case demonstrates the extent to which it has become a self-fulfilling and therefore unquestionable belief unto Despite statements that the Bill was not drafted against a particular group or religion, notions that such religious symbols represent a threat to the secular republic seem to stem predominantly from attitudes towards the Muslim veil. the seraglio... form a persistent thread in her text. 21 Wollstonecraft s Vindication demonstrates the extent of the Othering of the Muslim woman - the Other within the Other who is doubly repressed - presumably by a religious system and then consequently by the very system that claims to speak in her best interests (in this case feminism and the French laicite establishment). B. The veil as a religious, rather than political, symbol At the core of misconceived presuppositions regarding the veil and informing the argument that the Muslim woman must be liberated from the oppressive veil - is the assumption that the veil is a political 11 13(3) Polemic (2004) many French people have been misled by the coincidence of local increases in Islamic visibility and the rise of political Islam within the Arab and Muslim world and in their confusion, they wrongly associate peaceful French Islam with the wider movement of Islamic fundamentalism... for them Islam constitutes a cultural or ethical frame of reference, fairly detached from ritualistic practice. 25 In this light, despite statements that the Bill was not drafted against a particular group or religion, notions that such religious symbols represent a threat to the secular republic seem to stem predominantly from attitudes towards the Muslim veil. It has been argued that while itself. This is exemplified by the Minister for Education, Luc Ferry s,29 recent assertion that his ideal is a system of religious-style ethics : a secular system that goes deep but keeps religion well out - he called it sacred secularism. That the Minister s statement was not challenged as contradictory is perhaps because it perfectly illustrates the French paradox. 30 In reflecting specifically on the laicite reforms, the IHFHR has stated that the intensity [with which] the French state now promotes secularism appears to amount to advocacy of one world-view and so seems to contradict the principle of neutrality to which the state proclaims to be committed. 31

4 The concept that secularism allows for a neutral public space is further challenged in that certain aspects of the religious self must be shed upon leaving the private realm, whilst others are allowed to be manifested. This double standard is apparent in the speeches before Parliament of both the Prime Minister and the President who stated respectively that dietary customs, and funeral traditions... must be respected in our country and no pupil must be penalised because he or she respects the great religious festivals and I want no pupils to have to apologize for absence justified by a major religious festival like Yom Kippur or Aid el Kebir... it goes without saying that examinations should not be held on those days. A public space that can accommodate religious festivals, dietary restrictions and funerals in its day-to-day schedule is certainly not neutral in that arguably it grants certain privileges to particular religious groups which are openly not granted to others. How is it that religious necessities such as strict dietary requirements and festivals can be meticulously accommodated while the veil, which is also a personal act of religious observance, violates the notion of the neutrality of the public space? The drawing of these distinctions between religious symbols and observances that are acceptable and those that are not, suggest that to conceive of French public space as neutral is to misunderstand the meaning of neutrality. 4. International law implications All principal international human rights mechanisms provide for the freedom of thought, conscience and religion and the right to practice according to those beliefs. For instance, Article 18 of the International Covenant on Civil and Political Rights protects not simply the freedom to believe but also the freedom to manifest that belief in practice and expression.32 The manifestation of religion or belief can take many forms, some of which are outlined in Article 6 of the UN Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief.33 Though religious dress is not included here, the wording of Article 6 is such that it is illustrative rather than exhaustive. Such provisions make it clear that the right of an individual or a community to manifest their belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others (emphasis added). 34 The UN committee has also emphasised that restrictions to this right must be non-discriminatory in character and that they must relate directly and be proportionate to the aim they were introduced for. 35 As stated by the IHFHR, no derogation from Article 18 is allowed, even in times of public emergency. Similarly, Article 9 of the French Muslim women protest against the laicite reforms European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) reiterates the content of Article 18 with the addition that all restrictions must be necessary in a democratic society. That is to say, they must respond to a pressing social need and must be proportionate to the legitimate aim pursued, according to the European Court of Human Rights. Furthermore the Court has stated that the right to freedom of religion as guaranteed by ECHR excludes any discretion of the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate. 36 The militancy with which France s laicite or secular policy is pursued with respect to the outlawing of ostensible religious symbols, particularly the headscarf which is the site at which the reform is made extremely acute, clearly contravenes these international human rights standards. Arguing that the wearing of religious clothing can be an inherent part of the manifestation of one s religion, the IHFHR, for one, clearly condemns the French ban on religious symbols as being in violation of international laws and agreements in regards to freedom of religion. With reference to the articles outlined above, the IHFHR clearly states that it is not at the discretion of a state to determine which religious manifestations are legitimate as long as these manifestations do not violate other people s basic human rights or endanger public safety, health, or morals. The IHFHR believes that in its advocacy of one world-view of intense secularism, the French government does not promote equality between all religions and world-views as it claims to do, but that it instead estranges Muslim people: At issue is specifically the question on how to best integrate Muslims into French society and take a firm stand against the alleged increasing militancy among the French Muslim community. The IHFHR believes... that adopting legislation to ban headscarves in public institutions would not be an adequate measure to promote integration and to combat Islamic militancy but might, indeed, contra-productively result in increased alienation and marginalisation of Muslims living in France.3,7 5. Conclusion Though Charles James Fox identified the two limbs of power resting in the Church and the State and claimed that the right one had been cut off (namely the religious arm - albeit superficially), the other arm still remains and has demonstrated its potential to be just as oppressive as its religious adversary. This arm of tyranny has been extended to oppress at least half of France s four to five million minority Muslim group - specifically 13(3) Polemic (2004) 12

5 Muslim Headscarves in France its women - in the name of the liberal vision of equality and freedom which is perceived as only capable of realisation through the neutrality of the public space. Yet the validity of this vision and the efficacy of laicite reforms in this respect is at least questionable. It seems that the notion that the veil poses a threat to equality and freedom is founded on significant misconceptions and that the assumption that the public space is impartial and must be protected as such is easily contradicted. The repressive French laicite reforms, then, are based on false assumptions and Muslim women are restricted in their freedom of religious expression for no good reason and in contradiction of international obligations. Perhaps it is appropriate then to conclude with an entreaty from the Vindication stressing the importance of having Muslim women educated at state institutions: Let an Enlightened nation then try what effect reason would have to bring them back to nature, and their duty, and allowing them to share the advantages of education and government with man, see whether they will become better, as they grow wiser and become free. They cannot be injured by the experiment; for it is not in the power of man to render them more insignificant than they are at present. Endnotes Anne Mellor & Richard Matlak (eds), British Literature: (1996) at 9 International Helsinki Federation for Human Rights, A French Ban on Religious Symbols Would Violate International Protections of Freedom of Religion 4 Apr 2004 < (04 April 2004) Sophie Masson, 'France's Great Paradox to Pursue Secularism with Religious Zeal' The Sydney Morning Herald (12 Feb 2004) 15 See for example, Secular Fundamentalism? France and the Headscarf Issue. in The Europeans Radio National (8 Feb 2004) Jean-Pierre Raffarin, Bill on the Application of the Principle of Secularity (Laicite) in State Schools: Speech by M. Jean-Pierre Raffarin, Prime Minister, to the National Assembly 5 Apr 2004, < (5 Apr 2004). Henri Astier, The Deep Roots of French Secularism 28 Mar 2004, < > (28 Mar 2004). Jocelyne Cesari, "Islam in France: The Shaping of a Religious Minority" in Yvonne Haddad-Yazbek (ed), Muslims in the West, from Sojourners to Citizens (2002) ibid Astier, above n8 Nilufer Gole, "The Voluntary Adoption of Islamic Stigma Symbols - Part III: Individual, Family, Community, and State" (2003) Social Research < (14 Apr 2004) Cesari, above n9 Kamil Aydin, Turkey as Represented in English Literature of the Time: A Ph.D. Thesis Completed at University of Warwick 8 Jul 2002, < (8 Jul 2002). Rana Kabbani, Europe's Myths of Orient: Devise and Rule (1986) at 81. Mellor & Matlak, above n1. See Astier, above n8 Edward Said, Orientalism (1995) at 280. Mellor & Matlak, above n1 at 375. Joyce Zonana, "They Will Tell the Truth of My Tale : Safie s Letters as the Feminist Core of Mary Shelley's Frankenstein' (1991) 21 Journal of Narrative Technique at 173. Jean-Pierre Raffarin, above n6. Astier, above n8 Cesari, above n9 Peter Wilson, 'A Veiled Threat to La France' The Weekend Australian (12 Feb 2004). See for example, John Gray, 'Exposing the Myth of Secularism' Financial Review (3 Jan 2003), in which Gray successfully establishes that the secular realm is a Christian invention and that the religious roots of the first liberals as being churchmen. Luc Ferry is the Minister for Education who prepared the Bill on the Application of the Principle of Secularity (Laicite) in State Schools. Masson, above n4 Human Rights and Equal Opportunity Commission, Freedom of Religion (1998) at 23 See. These elements include worshipping and assembling, and maintaining places for this purpose; practicing religious rites and customs; writing and dissemination of religious publications, teaching of religion and belief; and communicating with individuals and communities on matters of religion and belief. w Mellor & Matlak, above n1 at # 13(3) Polemic {2004)