Barbara Kay: Niqab case a welcome ruling

Human rights is the great issue of our day, and yet weeks ago the European Court of Human Rights (ECHR) made a significant ruling that flew under the radar of North American pundits: The court upheld France’s ban on the wearing of the niqab in public.

The controversial law was effected by Nicolas Sarkozy’s government in 2010 as a counter-measure to the symbolic Islamization represented by the niqab’s 2000-some wearers (out of five million Muslims). In 2011 a 24-year old French woman known only by the initials SAS initiated the ECHR case, arguing that the ban violated her freedom of religion and expression.

The ECHR ruled that the ban “was not expressly based on the religious connotation of the clothing in question but solely on the fact that it concealed the face.” And, to be more precise, the court found that concealment of the face breaches the “right of others to live in a space of socialization which [makes] living together easier.”


I welcome the ruling. The ECHR cut to the heart of the issue: If social reciprocity – or the possibility for social reciprocity – is not the default condition reigning in the public forum, then there exists a state of social inequality. If my face is visible to my fellow citizens, but some citizens’ faces are not visible to me, psychological tension is bound to colour relations between our two groups. Free people show their faces to each other, and the burden of accommodation must be assigned with a view to optimal trust in shared spaces, not the individual right to create social barriers.

As the ruling opens the door to other countries in the EU to impose a similar ban, predictable protest by human rights groups ensued. “’How do you liberate women by criminalizing their clothing?’ asked Liberty director Shami Chakrabarti.”

Along with many other pundits, Chakrabarti here muddies the issue in his use of the word “clothing” to describe the niqab.

The niqab is not clothing; it is a mask. When a mask is removed, a person is still clothed. If you subtract those masks worn to protect the face from cold or germs, and those collaboratively agreed-to for specific entertainment purposes, you are left with masks that seek to conceal one’s identity, that deliberately de-personalize the face behind them. In such cases, no good motivation prevails, and no good social consequence ensues. The ECHR made the right decision.

The Hustings