State Council in France upholds legal challenge to the French ban on burkinis

The State Council in France, the highest administrative court, has ruled that local authorities could only restrict individual liberties if there was a ‘proven risk’ to public order. The State Council effectively found that there was no such ‘proven risk’ in this case and women should be allowed to wear a ‘burkini’ while visiting a public beach in France.

The case was taken by the Human Rights League following a decision by a tribunal in Nice to uphold a ban on the wearing of clothing that symbolises religious beliefs. The tribunal held the ban was justified on the ground that it was ‘necessary, appropriate and proportionate’ to prevent public disorder following a string of terrorist attacks in France. In 2010 France introduced legislation which prohibits the concealment of the face in public space. As a result of the law, the only exceptions to a woman wearing a niqāb will be if she is travelling in a private car or worshiping in a religious place. The most recent ban was seen as a further encroachment and attack on civil liberties.

The judgement was expected to set a precedent for all the other cities and towns (approx. 30) that have already banned the burkini. It was also welcomed by the French Council of the Muslim Faith (CFCM) and Amnesty International. Amensty’s European director, John Dalhuisen stated that “by overturning a discriminatory ban that is fuelled by and is fuelling prejudice and intolerance, today’s decision has drawn an important line in the sand”.

The judgement was initially seen as a step towards taming the tension and controversy that was being sparked in the media. For example, reports of armed French police who asked a woman to remove her burkini on a beach in Nice, and a woman who was fined on a beach in Cannes for wearing leggings, a tunic and a headscarf.

However, whilst the ruling was binding on Villeneuve-Loubet, which was obliged to immediately lift the ban, several other mayors are refusing to lift the restrictions. In fact, only two mayors lifted their ban following the judgement – the Socialist mayor of Oyg-Plages near Calais and the centrist mayor of Eze in the Alpes-Maritimes. The mayor of Cannes, David Lisnard, was the first to ban burkinis this summer, and has stated that the ruling “does not in any way change my conviction that ostentatious dress, whatever the religion, is a problem in the current context”.

This has created a problem for the French state, which must ensure that the rule of law is respected. The issue has furthermore been considered a priority of the political agenda, with the presidential elections coming up next year. There are differing views between potential political candidates and debates are beginning over the French principle of secularism. It remains to be seen how many mayors will follow the ruling of the State Council.

Click to read the commentary from The Guardian and The Journal.

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