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Referendum on banning the Burqa?: No thanks

By Paula Gerber and Farinaz Ashni - posted Monday, 2 February 2015

Pauline Hanson is once again fuelling the flames of racism and xenophobia in Australia by suggesting that we should hold a referendum on banning the burqa.

Hanson has joined a number of politicians who have a similar preoccupation with what Muslim women should wear. Following the high profile anti-terrorism raids in Sydney in September last year, Senator Cory Bernardi tweeted 'Note burqa wearers in some of the houses raided this morning? This shroud of oppression and flag of fundamentalism is not right in Australia.' Senator Jacqui Lambie quickly jumped in with a call to 'ban the burqa'. Even our Prime Minister finds the traditional Islamic covering a 'fairly confronting form of attire and frankly I wish it weren't worn.'

Let's not even start on the fact that it is extremely rare for Muslim women in Australia to wear the burqa, and what they are really talking about is the niqab.


On the other side of this debate about how Muslim women choose to dress are Islamic clerics who claim that women who do not wear the veil are like 'uncovered meat'. Somewhere in-between these two extremes are the majority of Australians, unsure about how to balance women's rights and religious freedom.

As a way to provide clarity to this inflammatory debate, we should calmly consider the key schools of thought on this subject

The Islamic law view

The Qur'an states: 'Say to the believing women that they should lower their gaze and guard their modesty ... They should draw their files over their bosoms and not display their ornaments.'

Some Islamic religious scholars interpret this to mean that women must cover their faces, revealing only their hands. But other scholars reject this view. Many feminist and liberal reformist Muslims argue that the true message of the Qur'an has been distorted by a patriarchal interpretation designed to control women.

Overall, there is no consensus within Islam on the form of dress necessary for women to lead a modest lifestyle. Modern interpretations of Islam do not require women to wear a veil. Nevertheless, many women choose to do so. Is denying women the choice to wear the burqa consistent with human rights law?


The human rights law view

Last year, the European Court of Human Rights rejected a 24-year-old woman's appeal against the French ban on burqas on the basis that the Government was best placed to determine what limits are necessary to promote a harmonious society. The Court held that the government was entitled to encourage citizens to integrate and live together, and one way to do this is to ensure that individuals can communicate with each other face to face.

The Court's decision has been widely criticised. Two judges issued a joint dissent, arguing that the French law violated the right to privacy as well as freedom of conscience and religion. The minority view is the correct one. Denying Muslim women the right to cover their faces is a breach of international human rights law – in particular, the International Covenant on Civil and Political Rights.

The UN Human Rights Committee held as much in Raihon Hudoyberganova v Uzbekistan when it found that:

the freedom to manifest one's religion encompasses the right to wear clothes or attire in public which is in conformity with the individual's faith or religion. Furthermore, it considers that to prevent a person from wearing religious clothing in public or private may constitute a violation.

The feminist view

Some feminists, such as Virginia Haussegger, assert that the burqa is a form of female subjugation, and support its ban. They see it as oppressive and dehumanising and even a form of "gender apartheid".

But these feminists are seeking to dictate what women should wear (or not wear) in much the same way as clerics and politicians. Feminists who support women's rights should be respecting women's autonomy, equality and dignity. They should not be deciding for them what they should or shouldn't wear.

So, about that referendum…

Australiashould NOT hold a referendum on 'banning the burqa'. Although it is extremely unlikely that a referendum would succeed, (after all, of the 44 referendum Australia has had, only eight were successful), it would be a divisive move that would give license to supporters of a ban, to voice their prejudices and bigotry (and we know everyone has a right to be a bigot!). It would inflame rather than calm relations between Muslim and non-Muslim Australians.

Human rights belong to all individuals and cannot be removed by popular vote. In a free and democratic country such as Australia, we must respect the right of religious minorities to dress according to their faith, regardless of how confronting that attire may be for some people.

In the end, we should be guaranteeing the human rights of Muslim women by respecting their autonomy, equality and dignity, rather than compelling them to dress according to the dictates of others, be they Islamic clerics, vocal politicians or well-intentioned feminists.

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About the Authors

Paula Gerber is Deputy Director of the Castan Centre for Human Rights Law and an Associate Professor at the Monash University Faculty of Law. She specialises in international human rights law generally, with a particular focus on children's rights and gay rights, including same-sex marriage. She tweets @DrPaulaGerber

Farinaz Zamani Ashni (@Fantastic_Faz) is an academic at Monash University Law Faculty and author of 'Burqa: Human Right or Human Wrong?' with Paula Gerber.

Other articles by these Authors

All articles by Paula Gerber
All articles by Farinaz Ashni

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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