Controversy about the Muslim burqa was sparked by federal Senator Cory Bernadi after an armed robbery in Sydney in which one bandit reportedly wore a burqa. Bernadi says on his blog that the burqa (a veil covering the body from head to toe) has “no place in Australian society” and should be banned “for safety” reasons. Bernadi’s comments come against an international backdrop where European nations have moved to outlaw certain forms of Muslim dress. In Italy, a woman was recently fined 500 euros for wearing a burqa. France has banned the wearing of hijabs, as well as other prominent religious symbols, from state schools.
The case highlights the challenge of balancing rights in today’s society. Open, democratic nations like Australia and those in Western Europe are multi-cultural, multi-faith societies. In fact, the very values our society is built upon have led to the thriving cultural and religious diversity we see today. For this reason, appealing to Australia’s ‘values’ – as politicians like Bernadi are apt to do – merely begs the question. Senator Bernadi criticises the burqa for repressive values whilst at the same time calling for it to be outlawed based on “Australian values and freedom that have built our great nation.” He favours ‘equality’ over ‘freedom’ without showing how one trumps the other in this particular case.
How can human rights help us navigate these challenges? In this case a human rights balancing process would ask the following question:
- is there a legitimate and important goal in restricting the wearing of burqas?
(arguably, yes, the goal is the equality of women)
Following on, we might ask whether imposing such restrictions on Muslim women is justifiable? To unpack that, three further questions can be posed:
- how clearly does a law against burqas improve women’s equality? (especially for Muslim women)
- is there any other way of getting to the goal without infringing on Muslim religious freedom?
- is a ban a proportionate response to the issue in question?
While this balancing process doesn’t make the dilemmas posed by Burqa-wearing disappear, it does provide a framework for analysing the underlying issues.
Some might think that because European countries have a human rights Convention and are still imposing restrictions on Muslim (or other religious) dress, that Charters or Bills of Rights offer no help. This is wrong for at least two reasons.
Human rights instruments like Conventions or Charters can act as a brake on societies from infringing further on fundamental rights than they might otherwise. They don’t force outcomes because they are inevitably subject to the political process. In France, for instance, courts have overturned a number of Muslim-dress related school expulsions. In Britain, the UK’s Human Rights Act was used to avoid more extreme post 9-11 anti-terror laws and as recently as March, the Parliament’s joint committee on human rights has called for further review of the legislation.
It’s also important to recognise that human rights debates don’t operate the same everywhere. Human rights are interpreted and acted upon within any given country’s cultural and political environment. How a secular Muslim country interprets and applies its international human rights obligations may well differ from the approach of a Nordic country. This doesn’t mean human rights are hopelessly relative. At least vastly differing cultures and nations are using a common framework, even if each comes to it from their own viewpoint.
Returning to Senator Bernadi’s controversial suggestion, how might human rights tools like Charters improve our debate? First, human rights documents set out systematically what values we’re talking about. Second, they help by providing an additional check on government power. Third, they provide a useful framework for analysing complex issues through a series of simpler questions.