Update: 17.01.2018

Popular initiative on the burqa ban: the Federal Council’s counter proposal

The popular initiative “Yes to a ban on full facial coverings” passed narrowly with 105,553 valid signatures on 11 October 2017. The initiative was launched by the Egerkingen Committee on 15 March 2016. Its aim is to ban religious facial covering in public places except religious buildings (i.e. burqa ban) and to prohibit wearing facemasks during demonstrations.

On 20 December 2017, the Federal Council announced that it had rejected the popular initiative. Then on 27 June 2018, it put forward an indirect counter-proposal envisaging alternative legislative measures.

Below is a chronological summary of the political discussion on the ban on burqas in Switzerland followed by the pros and cons of such a ban from a human rights perspective.

Ticino’s burqa ban

65.4% of voters in Ticino accepted a popular initiative for a ban on facial coverings in September of 2013, thus establishing it in the Ticino cantonal constitution. The ban not only prohibits wearing facemasks during demonstrations but also affects women wearing burqas and niqabs that completely cover the face except for the eyes.

In March of 2015, the National Council and the Council of States accepted the canton of Ticino’s change to its cantonal constitution following a motion by the Federal Council, thereby communicating that the Ticino regulation is compatible with federal and superior law.

After the Ticino cantonal parliament passed the respective law in November 2015, Ticino became the first canton with a legal ban on burqas, which has been in force since 1 July 2016.

Consent of the Federal Council after ECHR judgement

For a long time, the Federal Council had spoken out against political initiatives for a ban on full facial coverings. But on 14 November 2014, the Federal Council reluctantly agreed to the canton of Ticino’s burqa ban. In a media release, the Federal Council stated that it felt the ban was illogical given the very limited number of veiled women in Switzerland. However, it did confirm that the wording of the ban complied with federal law.

Apparently, a European Court of Human Rights (ECHR) judgement encouraged the Federal Council to take this position. The ECHR judgement accepted a French act generally banning full facial coverings in public. The wording of the Ticino constitutional article was inspired by the French act passed in July 2011.

Popular initiative “Yes to a ban on full facial coverings”

The national popular initiative “Yes to a ban on full facial coverings” was finally launched on 15 March 2016 by the so-called Egerkingen Committee which had previously imposed a ban on the construction of minarets on a federal level by means of a popular initiative. The burqa ban initiative was handed in shortly before the deadline with 105,553 signatures. On 11 October 2017, the Federal Chancellery confirmed the initiative.

What are the initiative’s aims?

The intended new Art.10a in the Federal Constitution carrying the title ban on full facial coverings is three paragraphs long. The first paragraph states that no one is allowed to cover his or her face in public or generally accessible places. The second paragraph says that “No one is allowed to force a person to cover his or her face because of their gender.” The third paragraph allows exceptions for “sanitary, safety-related, or climatic reasons or for reasons of local traditions.” Exceptions for religious reasons, save in sacred buildings, are excluded. As Walter Wobmann, co-initiator and co-president of the initiative committee, confirms on his website, the initiative “explicitly targets full facial covering for religious reasons.”

No breach of the principle of non-discrimination

The text of the initiative deliberately avoids any direct reference to any form of Muslim veiling, likely so as not to violate the principle of non-discrimination. The generally worded initiative’s text does not include any violation of the legal principle of non-discrimination, even though discriminating motives against the tiny minority of fully veiled Muslims in Switzerland can be inferred. The ban would also apply to disguised demonstrators, and such bans on face coverings for authorised demonstrations already exist in various cantons.

The Federal Council offers an indirect counter-proposal

In December of 2017, the Federal Council rejected the popular initiative and put forward an indirect counter-proposal. The consultation procedure started on 27 June 2018. In its press release, the Federal Council explained that it rejected a solution for the whole of Switzerland because the cantons would not be able to regulate the issue themselves. Interactions with veiled tourists from Arab countries in particular require different cantonal solutions.

However, the Federal Council is aware of the problems that might arise with face coverings. The indirect counter-proposal states that a person’s face must be unveiled when in contact with authorities under certain conditions, and makes it punishable to coerce someone to wear a veil. For this reason, a new federal act on veiling will be passed and the offence of coercion will be backed up by an amendment that sanctions anyone who forces another person to wear a veil in public or private.

The end of the consultation procedure on 18 October 2018 will probably mark the beginning of a long and tedious process. The Federal Council can still change its draft based on consultation process results before presenting it to parliament, which can also make changes to the draft.

Although the indirect counter-proposal is aimed at getting the authors of the popular initiative to withdraw it, this is very unlikely given the ideological basis of the “Egerkingen Committee”. The Federal Council’s counter-proposal would only be taken into account, if the initiative on the burqa ban had previously been rejected by the people. And even then, the new legal provision would be exposed to the optional referendum.

Human rights reasons for and against a ban

Both supporters and adversaries of a ban on full facial coverings use human rights arguments to support their positions in the public debate. The arguments are similar to the ones used in the discussion on headscarves. Opponents of a ban emphasise the right of Muslims to self-determination, and advocates argue that tolerating full facial coverings equates to tolerating the repression of women.

Human rights organisations against a ban

In 2010, Amnesty International (AI) took a position against legal bans of full facial coverings. AI believes it is the state’s duty to ensure that no woman is forced by her family or other person to wear a facial covering, and it does not consider a ban to be an automatic step towards more women’s rights since veiled women would be additionally marginalised in everyday life by bans. Limits to when people can wear veils may be legitimate, such as in cases of danger to public security or if special regulations apply to certain jobs. For example, it is acceptable to ask women to lift their veil for identity control purposes, but these measures may not be implemented in a discriminatory manner.

In August 2016, the human rights organisation Terre des Femmes (TdF) voiced clear criticism against a burqa ban. In TdF’s view, it is “hypocritical” to call for a burqa ban on behalf of gender equality since this “racially instrumentalises” gender issues. A full body veil is “not the cause of any kind of problem” but rather “a symbol that can be interpreted in many different ways.”

Operation Libero is also campaigning against a possible burqa ban in the name of personal freedom. They believe the ban contradicts “the liberal constitution, women’s self-determination, and a diverse society.” Oberation Libero sees the initiative as simple symbol politics, since in Switzerland hardly any women wear burqas.

No clear dividing lines

The call for a burqa ban does not only come from right-wing nationalist and anti-Muslim backgrounds. Some conservative women, women with a migration background, and even some feminists strongly support a burqa ban. Some male left-wing politicians, too, position themselves differently to the main party line, such as Zurich Cantonal Councillor Mario Fehr, at the right end of the Social Democratic Party range, and Vaud Cantonal Councillor Pierre-Yves Maillard, at the left end of the Social Democratic Party range.

In an interview with the newspaper Le Matin Dimanche, Maillard stated that the achieved freedoms of women are non negotiable and these freedoms are fragile since nothing is more widely accepted than the worldwide oppression of women. He continued to argue that many women are fighting for these freedoms on all continents and that some of them are paying with their lives. To support these women in their fight for freedom, he believes we must stop tolerating discrimination against women in Switzerland. Maillard advised the political left to promote reasonable legal provisions on full-body veils instead of fighting the popular initiative.

It is obvious that opinions on the burqa ban do not split along political party lines, if it comes down to discussion. This was made clear in a debate on radio DRS: right-wing Swiss People’s Party politician Claudio Zanetti vehemently called against a burqa ban on grounds of the ethos of freedom, while Christian Democratic People’s Party National Councillor Elisabeth Schneider-Schneiter advocated for a ban, although not by means of a popular initiative.

Commentary: The popular vote as a trap

The ban on “full facial coverings” interferes with individuals’ personal freedoms, including protesters who choose to disguise themselves and women who voluntarily wear the burqa or the niqab. There must be a legal basis to justify such an interference with fundamental rights, there must be public interest, and the interference must be proportionate.

In the canton of Ticino and in the rest of Switzerland, it is rare to see fully veiled women. It is controversially disputed how strongly this fact reduces the public interest in a respective ban. There could also be other valid reasons for a public interest in such a ban, such as gender equality.

There is concern that a ban will upset individual members of religious minorities and have a negative effect on the religious peace in the country. But it is unclear whether this concern matters more than the desire to set limitations in this extreme example of female gender codification. The discussion on this issue is just as valid as the discussion about whether or not such a limitation is proportionate. A slightly bizarre contrasting example is the cantonal ban on naked hiking by the Federal Supreme Court on 17 November 2011, against which the public did not protest.

It is obvious that the very liberal argument according to which the full-body veil is an extreme but legitimate variety of freedom of expression has its weaknesses, too, because even freedom of expression has its limitations in a liberal society.

That does not mean that the common arguments against the burqa ban are wrong. What is wrong is the self-assurance that these arguments are a priori the better arguments without ever having verified the motives and arguments of supporters of such a ban. Anyone who takes a closer look at the issue will realise that it includes ambivalent aspects; the perfect starting position for profound considerations.

But the fact is that this popular initiative does not really address the issue but is being used to stage an emotionally charged political confrontation in public. It is for this reason that the initiators are unwilling to withdraw their bill in view of the Federal Council’s pragmatic and suitable counter-proposal.

The most important argument against the burqa ban initiative thus is not of a factual but of a political nature. The most important argument against the popular initiative on full facial coverings is therefore not based on fact but on ideology. There will be a great public debate on this issue that has been deemed unimportant and the political script of initiative supporters is clear. Political parties whose popularity is in part due to the scaremongering about everything foreign will not want to miss this opportunity to further fuel the anti-Muslim sentiment in the country. The bill will therefore only serve as a symbol for an attitude which will further divide the country.

Fact-based arguments for and against the burqa ban initiative will therefore not be thoroughly considered but will be misused by the friend/foe mentality. A broad movement needs to be created to undermine this political scenario by visibly refusing such dramatic polarisation because it is harmful to society. A boycott would be a striking statement against the misuse of direct democracy, but it remains wishful thinking. In politically realistic terms, we are all caught in the popular vote trap and its detrimental social dynamism. Saying no in this situation is not the way out, but still it is the better option, because it can also be interpreted as saying no to the question.

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