CCPR/C/123/D/2747/2016
constitute, for their practitioners, religious obligations or rites, just as wearing the full-face
veil does for followers of that custom. But the Committee has always considered the former
practices to be contrary to the provisions of the Covenant and has consistently called on
States to abolish them. Surely then it is contradictory to decide in one case that it is the
prohibition of one such practice, which undermines equality between citizens and the
dignity of women, that contravenes the Covenant, while deciding in another case that it is
the practices that contravene article 18?
7.
A more serious problem must be raised. It concerns the concept of “living together”
championed by France and which led to the adoption of Act No. 2010/1102. I entirely
disagree with the Committee that “the concept of ‘living together’ is presented by the State
party in very vague and abstract terms” and that “the State party has not identified any
specific fundamental rights or freedoms of others that are affected”. On the contrary, the
preamble to the Act deals fully with this issue and clearly states that concealment of the
face goes against the social contract, basic good manners, and the notions of fraternity and
living together. Unfortunately, the Committee fails to note that the fundamental right that is
violated in this instance is not that of a few individuals, nor of any particular group, but the
right of society as a whole to recognize its members by their faces, which are also a token
of our social and, indeed, our human, nature. Contrary to the Committee’s assertions, the
concept of living together is neither vague nor abstract, but rather, precise and specific. It is
founded on the very simple idea that a democratic society can only function in full view of
all. More generally, as I have already suggested, the most basic human communication,
preceding language of any other kind, is conveyed by the face. By totally and permanently
concealing our faces in public, especially in a democratic context, we renounce our own
social nature and sever our links with our peers. To prohibit the wearing of the full-face veil
and penalize it with a small fine is therefore neither excessive nor disproportionate. In this
connection, there can be no comparison between the hijab and the niqab. The two are
essentially different.
8.
By considering that “the criminal ban introduced by article 1 of Act No. 2010-1192
disproportionately affects Muslim women who, like the author, choose to wear the full-face
veil and introduces a distinction between these women and other persons who may legally
cover their face in public that is not necessary and proportionate to a legitimate interest, and
is therefore unreasonable”, the Committee is simply turning rights upside down. It
concludes from this reasoning that article 1 of the Act constitutes a kind of intersectional
discrimination based on sex and religion that violates article 26 of the Covenant. Yet there
is no doubt that prohibition is necessary, if only because of the threat to security (see para. 2
above); it is also proportionate, as shown by the light penalty: a fine of 150 euros and a
course in citizenship, richly deserved given the seriousness of the infringement of equality
between citizens and of the dignity of women.
9.
Let us now turn to the question of those persons who, unlike women who wear the
full-face veil, are authorized by Act No. 2010/1192 to cover their faces. This, according to
the Committee’s Views, constitutes discrimination under article 26 of the Covenant. These
are the persons referred to in article 2.II of the Act, which establishes exceptions to the
prohibition. Can these exceptions be placed on an equal footing and compared with the
practice of wearing the full-face veil? Is article 2 of Act No. 2010/1192 discriminatory
within the meaning of article 26? I do not think so. These exceptions, generally speaking
circumstantial and temporary, are for the most part made for recreational, festive, carnival
or sporting purposes, or are required for service or security purposes, in particular road
safety. They exist in all countries and in no way constitute discriminatory symbols or
messages likely to trigger implementation of article 26 of the Covenant, as the full-face veil
would.
10.
I conclude that the prohibition of the wearing of the full-face veil and its
penalization by fine, especially in the French context, is neither contrary to article 18 nor to
article 26 of the Covenant.
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