By Niaz Murtaza

France has recently banned the burka and other face covers in public ostensibly on security grounds. However, the accompanying statements made by senior officials have created the strong impression that the law mainly targets the burka.

Originally published by Dawn

The ban has divided even liberal opinion vertically. Some support the ban, arguing that the burka is a symbol of oppression. Others argue that since many women in France wear it voluntarily, the ban violates their personal freedom. Which viewpoint is closer to the truth?

Liberal democratic states maximise personal freedom, restricting it only where it harms oneself or others. However, people are given greater licence to harm themselves than others. All actions that cause clear physical, economic and psychological harm to others or restrict their personal freedom, whether immediately or later, are banned.

On the other hand, liberal states only restrict actions which cause clear and relatively immediate physical self-harm. So, suicide and the use of hard drugs are banned. However, they rely on awareness-raising and not bans for dealing with practices that cause lower levels of self-harm. Thus, smoking, which causes clear but non-immediate physical self-harm, is not banned except in public where it harms others. Let us view the burka issue within this framework.

According to this framework, states clearly have the right to ban the practice of forcing women to wear burkas as it violates their personal freedom. However, if women wear burkas voluntarily, the state has a weaker case for a ban since there is no clear and immediate physical self-harm.

If a state fears that the voluntary adornment of the burka causes psychological and economic harm to women, the appropriate response to this lower level of self-harm should be awareness-raising rather than the imposition of a ban, as in the case of smoking. States must adopt interventions proportionate to the level of self-harm. Thus, the burka ban is not in line with the norms of proportionate response in liberal democratic countries.

Some argue that burka adornment even by adult women cannot be truly voluntary being based on years of childhood indoctrination. This may often be true. But liberal states do not normally override the decisions of adults based on this argument. For example, the adoption of the gypsy way of life in Europe is the result mainly of childhood indoctrination for there are few cases of people adopting it later in life. But this lifestyle has been not banned even though some people argue that it reduces the economic and political welfare of gypsies.

The case for childhood indoctrination would be much stronger in totalitarian societies that ban alternative sources of information. In France, where the dominant discourse is anti-burka, this argument seems weak. Taking action based on it means that the state arrogates itself the right to decide what is good or bad for people even when there is no clear physical self-harm.

The ban is also justified based on the invocation of the principle of harm to others. It is argued that a person wearing a face cover is difficult to identify and can more easily commit a crime.

However, a law adopted on this ground must satisfy two criteria. First, it must be non-discriminatory. The French law meets this criterion for it covers all forms of face covers. Second, the law should be based on empirical evidence. The French law is on weak grounds here for there does not seem to be any systematic analysis by criminologists that proves that the use of face covers increases crime.

The French government would have done much better both in terms of fairness and good public relations had it adopted the law by first convincingly demonstrating the increased crime risk caused by face covers. Moreover, it should also undertake similar analyses for guns and gloves for they can also facilitate crime.

Some support this law by arguing that it helps reduce public manifestations of religion in a secular society. However, if this is the intent, then again the state must be non-discriminatory and should ban all religious dresses in public. It must also tear down all easily recognisable religious places and replace them with nondescript, boxy places if worship. Clearly, this would be taking secularism to ridiculous heights.

Secularism means that the state should not get involved in religion, not that religion should be banned completely from the public sphere. Such an approach seems fit for totalitarian Soviet-style societies rather than liberal democracies.

Others support the ban because of the partial similarity of wearing the burka voluntarily with it being forced on women. However, this is like arguing that volunteerism should be banned because of its partial similarity with slavery. Others argue that the burka does not fit in with French culture. But this makes the ban similar to the practice of more autocratic states, e.g., Turkish restrictions on Kurdish culture.

Thus, this framework highlights the overkill involved in the French burka ban. However, the utility of this framework extends beyond that, for we can strengthen our arguments against the French ban if we can first be sure that the Pakistani state properly protects the rights of women and minorities.

Unfortunately, this framework reveals that Pakistan is a much bigger transgressor than France. It provides little protection to women who are often forced to wear burkas, marry, procreate, vote and remain at home against their will. Pakistani laws discriminate against minorities, for example by banning them from occupying the highest offices of the land. Pakistan also bans many activities that cause neither harm to others nor clear and immediate physical self-harm.

While we are right in criticising the French law, for the sake of consistency we must also criticise all those Pakistani laws that are discriminatory and capricious and place unnecessary restrictions on personal freedom. Let us not just ask for justice for ourselves but for everybody, for in doing so we make justice more assured for ourselves.