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Caught You Red-Handed

Tu Ne Cede Malis, Sed Contra Audentior Ito

And the Debate About the Full-Face Veil Continues in Spain…

Last February, the “Tribunal Superior de Justicia de Cataluña” (TSJC) suspended the municipal ordinance of Reus (Catalonia), which prohibited individuals from fully covering their faces in public spaces. The TSJC referred to the ruling of the Spanish Supreme Court (SSC), which concluded that it is not legitimate for a municipality to ban a fundamental right like freedom of religion (See, SSC 4118/2011, 14 February 2013). In other words, the SSC ruled that a municipality, in that case Lleida (Catalonia), overreached its powers for the following reasons:

  1. The city council enacted a local ordinance exercising its powers to impose sanctions.
  2. The local ordinance enacted caused an interference in the religious practice of some women who wore the burqa or niqab.
  3. The limitation of a fundamental right can only be determined by a law passed by the Spanish Congress and Senate.

burka-117519_1920

The SSC also examined whether gender equality, public order, and the “disturbance of public tranquility and peace” were legitimate aims to prohibit wearing the full-face veil in public spaces.

  1. Public order: The SSC claimed it did not find the full-face veil to be an interference with public order, specifically noting that public order could not be interpreted as a preventive clause (See, SSC 14 February 2013, ground 10º). In other words, it must be established that there is a certain, rather than potential, danger that threatens public order.
  2. Gender Equality: the SSC assumed that adult Muslim women who wear the integral veil in Spain do so voluntarily (See, SSC 14 February 2013, ground 10º). In this respect, the SSC referred to the recommendation of the Council of Europe on Islam, Islamism, and Islamaphobia, which encourages avoiding a general ban of the full-face veil, stating that it may hinder the integration of women in host societies (See, SSC 14 February 2013, ground 10º).
  3. The SSC considered that the “disturbance of public tranquility and peace” was difficult to justify, for if it is assumed that everyone has the right to see the face of another, that would imply denying the right of each person to show it. The SSC ruled that it was not sufficiently demonstrated that the full-face veil provoked a “disturbance of public tranquility and peace” (See, SSC 14 February 2013, ground 10º). Particularly, the SSC cited the case of “Leyla Sahin v. Turkey”, where the ECtHR established that “democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position” (See, Leyla Şahin v. Turkey, Application nº 44774/98, judgment of 10 November 2005, paragraph 108).

Despite the positive SSC ruling, the debate surrounding the prohibition of the full-face veil in all public spaces is far from settled in Spain. Firstly, the SSC has no jurisdiction to determine whether a general ban on the full-face veil is legitimate statewide because that falls under the authority of the Spanish Constitutional Court (SCC). Secondly, neither the Spanish Congress, nor the SCC has provided a legal solution to the issue of whether a general prohibition of the burqa and niqab is legitimate.



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