Legal expert casts doubt on French 'burkini' ban

By Hajer M'tiri

PARIS

A wave of bans on ‘burkinis’ on French beaches is gaining ground as more mayors prohibit the concealing swimming suit worn by some Muslim women.

Reasons given for the measures range from calling the garment a breach of France’ secularism, a threat to public order to citing ostensible hygiene issues.

More than six mayors of French resort towns have banned the swimsuit. Under the decrees that run until Aug. 31, ‘violators’ will have to pay fines of 38 euros ($43).

A court in Nice has upheld the local municipality’s decision first taken by Cannes’ mayor. However, the final word rests with the French Council of State – the country’s highest court – which is expected to rule on Thursday.

Amid the strong condemnation by Muslims and rights groups which consider the bans a violation of personal liberties and a threat to social cohesion, ‘Burkini-gate’ is grabbing more headlines.

Elected officials have weighed into the matter, turning it into a political debate as a presidential election looms early next year.

This raises the question on how legal is the banning of the burkini? Does the full-body bathing suit really represent a threat to the public? And, most importantly, how valid is the argument that the garment is "not compatible with the values of France and the Republic" as Prime Minister Manual Valls claims?

Anadolu Agency spoke to Patrice Rolland, a professor of public law lecturing at the University of Paris-Est Creteil.

Rolland said some of the reasons invoked by the mayors are legally valid yet unrealistic and others are totally wrong.

- Secularism ‘an invalid argument’

The law professor said the secularism argument was invalid because the concept means “the French Republic is secular, the state” not individual French people.

“So this obligation and calls for ‘neutrality’ – which is the hallmark of the state – is only imposed on public services, services provided by the state and public officers,” he said.

“A private person who’s bathing or who’s simply walking on the streets is not subject to the principle of neutrality or secularity.

“We cannot require someone to respect secularism in a public place. So this argument cannot be validated by the judge,” Rolland added.

The law professor went on to explain how a Nice judge upheld the local mayor’s decision which referred to a risk of public disorder.

Cannes’ mayor had pointed to the recent Nice terror attack on July 14 in which 85 persons were killed.

“In this case I personally think the argument is not valid and the danger does not exist. I think that the State Council will not necessarily validate this ruling,” he said, adding:

“I personally think that the argument saying a woman wearing a burkini and bathing on the beach could cause trouble to public order is excessive.

“Women who wear burkinis are not necessarily terrorists or extremists. Their decision to wear it should be respected.”

The law professor said the ban was “started by a right-wing mayor and mayors of the right tend to use secularism relentlessly … an argument for everything which hides under it – a bit of xenophobia, fear and discrimination”.

- ‘Discriminatory’ ban

Feiza Ben Mohamed, secretary general of the Federation of Muslims of the South, shared the professor’s opinion, saying the ban was “illegal, unconstitutional and discriminatory”.

“It shows once again that the Muslim community and women in particular are targeted.”

She warned the ban “divides the country by excluding and targeting an entire community”.

"The mayor talks about protecting public order, which means he thinks the presence of a Muslim woman on a beach will cause trouble. He also invokes the fight against terrorism, so he is basically saying a Muslim woman who wears a burkini is a terrorist," Ben Mohamed said.

She also criticized recent comments made by the French premier: “I think he [Manual Valls] better think about the camp he wants to line up with.

“His role as a prime minister is to call for calm, respect for the law and the ending of controversy. But no, we see him take a stand against Muslim women who want to wear the burkini or headscarf.”

“It is scandalous. Is it compatible with the values of France and the Republic to lock up women at home and prevent them from going to the beach?

“Is it compatible to prevent women because of their religion to go the beach to entertain themselves with their families and have picnics? Well that’s what he’s doing and supporting.”

The activist also dismissed claims that wearing a burkini is a provocative act.

“There is no Muslim woman who thinks of Manuel Valls or the mayor of Cannes when they go to the beaches. They don’t think about provoking any one … they just want to go to monitor their children, entertain themselves like all the French citizens,” Ben Mohamed concluded.