Saïla Ouald Chaib

Doing Minority Justice Through Procedural Fairness: Face Veil Bans in Europe

Abstract The French and Belgian bans on face veils in public places have been subjected to strong substantive human rights critiques. This article takes a complementary approach, examining the bans from the perspective of procedural fairness. Indeed, the French and Belgian bans are extreme examples of legislative processes taking place above the heads of the people concerned, neglecting the ban’s possible human rights impact. After exploring what the social psychology notion of procedural fairness entails for the judiciary and the legislator, especially in a multicultural context, this article details procedural fairness shortcomings with respect to the face veil ban in France and Belgium. Subsequently, the article sets out how the European Court of Human Rights might compensate for these shortcomings.

Uncovering French and Belgian Face Covering Bans

This paper analyses the French and Belgian bans on face covering by taking a close look at the aims they are intended to serve in the eyes of the legislators in the two countries. These stated aims are the basis for a critical assessment of the bans from a human rights perspective. The authors conclude that the reasons proffered for the prohibition can legitimize at most a limited set of contextual bans, not the broad nationwide bans that are in place.

The Belgian ‘Burqa Ban’ confronted with insider realities

This chapter confronts the stated motives of the Belgian legislator who banned face covering in public with the experiences and views of women who wear the face veil in Belgium. Contrasting the insider experiences of the women concerned with the assumptions of the Belgian legislator, it argues that on account of its relying on erroneous assumptions, the Belgian ban does not actually serve its stated purpose, that it is disproportionate and that it denies procedural justice.

“Burkini” bans in Belgian municipal swimming pools: Banning as a default option

Muslim women’s religious dress is a matter that exercises many minds and the recent public debate on the so-called “burkini” (preferably phrased as “body covering swimwear”) is the umpteenth variation on the theme. Following the French commotion on the presence of “burkini” wearers at the coast in 2016, the “burkini” became the subject of public debate in Belgium. Whereas the “burkini” did not cause much public unrest in the context of the Belgian coast, the majority of local swimming pools in the Flemish region of Belgium do have dress codes banning the “burkini”, even before the (inter)national media outcry. This article discusses the prevalence of these restrictive dress regulations and scrutinizes the rationalisation behind local “burkini” bans in municipal swimming pools. These findings are complemented with the perspectives and experiences of “burkini” wearers, who challenged the “burkini” bans before the court. Finally, this article analyses the “burkini” bans in light of European human rights standards.

Head-Covering Bans in Belgian Courtrooms and Beyond: Headscarf Persecution and the Complicity of Supranational Courts

ABSTRACT: The Islamic headscarf is banned in an increasing number of contexts in Belgium. According to the authors, this pattern can be characterized as “head-scarf persecution.” A topical example relates to access to courtrooms, which is evidenced by Lachiri v. Belgium, a case pending before the European Court of Human Rights. This article first reviews the interpretation of the ban on head-coverings in the courtroom. On the basis of a poll conducted among judges, their approach toward religious and non-religious head-coverings in courtrooms is discussed in practice. The matter is then considered within the broader Belgian social and legal context, and lastly analyzed in light of the case law of the European Courts.