Efforts by French politicians to “ban the burqa” hit the wall of constitutional reality today when the Council of State, France’s top administrative court, said there was no legal way Paris could completely outlaw full Islamic veils in public. The issue has been at the centre of complex and sometimes heated debate in France in recent months, but it wasn’t clear until now how far French and European law would allow the state to go. We still don’t know exactly what the law will look like, but the back story to today’s report is a tale in itself.
Sarkozy launched the veil debate last year in a replay of an earlier campaign strategy to capture votes from the anti-foreigner National Front by veering to the right. Regional elections were coming up this March and his right-wing UMP party hoped to win control of more than the 2 regions it governed out of the 22 regions in metropolitan France. In the end, they lost one of them in an embarrassing election wipeout that saw a strong showing for the National Front. So, shortly after that slap in the face, Sarkozy toughened up his stand a bit more. Among the measures he promised was a law banning the full Islamic facial veil.
“The full veil is contrary to the dignity of women,” Sarkozy said. “The response is to ban it. The Government will put forward a draft law prohibiting it.” He gave no details, though, because he was waiting for the Council of State’s opinion. The Council has now warned the government that it cannot take some of the giant steps the politicians want, and spelled out some precisely defined measures that should be constitutional.
There’s an interesting wrinkle in this procedure that could be called the “Sarkozy shuffle”. The Council of State usually rules on the legal conformity of new laws after they have been passed. Asking its advice in advance is an unusual step, which the government took to avoid the embarrassment of passing a stern law amid protests from French Muslims and other groups and then seeing it rejected by the top administrative court. Some politicians have been so vocal in demanding that facial veils be fully outlawed that legislators could well have gone too far in formulating the ban. So Sarkozy and his government promoted a sometimes raucous debate about national identity and banning Islamic veils, while consulting the Council of State in advance to make sure any law was kept within bounds.