Netherlands: State Council expresses opinion against the proposed burqa ban

The Government’s legislative initiative to introduce a ban on the burqa does not have the blessings of the country’s State Council (Raad van State) which handed down a rather negative opinion on 6 February 2012.

Essentially, the Raad van State has stated that the proposed general ban would limit the freedom of religion for no good reason.

A law banning the burqa is one of the demands of the Government’s embarrassing ally, the Freedom Party (PVV) and the negative advice of the Raad van State will certainly not stop the minority ruling coalition from pushing ahead with its legislative initiative.

The Raad van State has only an advisory role when giving its opinion on proposed legislation.

It opinion is therefore not binding and governments, especially the present one, have, on many occasions, chosen not to take it into account when going ahead with the legislative procedure.

The only real sanction for disregarding an advice that a certain Bill will not be compatible with EU and/or international law is when a legal case arises after the law comes into effect.

Courts having to rule on the matter will then recall the opinion of the Raad van State and will generally take it seriously.

However, courts are also not obliged to take into account the expressed view of the Raad van State.

Besides, governments know only too well that it will often take years before a first test case challenging a law arrives before a court.

In its opinion, the Raad van State said that a general ban that would suppress the choice of some women to wear a burqa.

On the question of security, the Raad van State said that “subjective feelings of insecurity” are no basis for a general ban on face-covering garments.

Women should be free to decide for themselves whether they want to wear face-covering garments.

The Government, who has already sent a Bill banning the burqa to parliament, has argued that it is necessary for reasons of public order and security.

Moreover, according to the Government, many citizens “feel threatened by people who conceal their faces”.

The ban also covers full-face helmets and balaclavas.

Furthermore, the Government argued that the burqa and similar articles of clothing run counter to the principle of equality between the sexes.

On the question of security, the Raad van State said that “subjective feelings of insecurity” are no basis for a general ban on face-covering garments.

As for the principle of equality between the sexes, the Raad van State considered that this is something for individual women to judge for themselves.

In a related development on 5 February 2012, an MP of the PVV, Joram van KLAVEREN, speaking on a talk show on national television, demanded that the police force enforce the burqa ban when it is introduced.

Mr van KLAVEREN was unhappy about remarks made earlier by the chief of the Amsterdam police force, Pieter-Jaap AALBERSBERG, who said that it should be left up to the police officer on duty to decide whether or not to impose a fine on Muslim women wearing a burqa or niqab in public.

The police chief said that a warning should also be an option.

Earlier, the police chiefs of several other cities said that they did not intend to enforce the new law after it came into force.

Backed by the Minister of Justice, Ivo OPSTELTEN, on this issue, the PVV has demanded that the ban be enforced by the police once it is implemented.