Understanding the ‘prohibition to wear any garment concealing the full face’

Monday, 6 May 2019 00:00 -     - {{hitsCtrl.values.hits}}

It is critical that law enforcement authorities have a clear understanding on what is banned and what is not. The general public must be made aware of the actual scope of ER32A. In the absence of such clarity, Sri Lankan Muslim women who choose to manifest their religious belief in their clothing may be subjected to unlawful restrictions of their freedom – Pic by Shehan Gunasekara

The Sri Lankan Government brought into effect a ban on full face coverings by an Emergency Regulation on 29 April. Difficult and serious questions have arisen on the scope of this ban as well as its impact. In this short piece I offer four arguments to be considered in understanding this development. 

Firstly, I take the view that the Government is acting reasonably in seeking to ensure that any person’s face is identifiable during this time of emergency. However, the actual regulation itself will require specific interpretive guidance if this purpose is to be achieved. Secondly, unless this Emergency Regulation is enforced in a clear and consistent manner it can be misused to ban other forms of religious symbolism, particularly among Muslim women. 

Thirdly, this Emergency Regulation and the support it has received from some of the leaders of the Muslim community is a sharp contrast to the previous position taken in relation to the law and Sri Lankan Muslim women. The long-standing call for reform of Muslim law has been side lined by successive governments and by leaders of the community. 

Fourthly and finally even if this ER achieves its short term objectives it can nevertheless have negative long-term consequences for inter and intra community relationships. During this time of fear, suspicion, anger and trauma, it is not easy to find effective ways of addressing these long-term concerns. Open and honest conversations, exchange of ideas in our homes, places of learning and work assume great significance at this time. 


Emergency Regulation 32A

On 29 April the President gazetted another Emergency Regulation (ER) – Regulation 32A. This ER declares as follows:

‘No person shall wear in any public place any garment, clothing or such other material concealing the full face which will in any manner cause any hindrance to the identification of a person.’ 32A(1)(a) 

This is followed by 32 (1)(b) which explains the meaning to be given to the terms used in ER 32A(1)(a). The interpretive clauses are as follows:

“public place” includes any public road, any building, any enclosed or open area, any vehicle or any other mode of transportation;

“full face” means the whole face of a person including the ears;

“public road” includes any roadway over a public bridge, any pavement, drain, embankment or ditch belonging or appertaining to a public road.

Under section 5 of the Public Security Ordinance, the President has the power to make emergency regulations which in his/her opinion ‘appear to be necessary or expedient in the interests of public security and the preservation of public order and the suppression of mutiny, riot or civil commotion, or for the maintenance of supplies and services essential to the life of the community.’ 

The President’s Media Division stated in a press release on 28 April that an ER will be issued to ban face coverings. It further stated that this ban would be introduced because facial recognition is necessary for the purpose of identification. The press release also stated that the President arrived at this decision in the interest of national security and to ensure a society that is peaceful and co-existent. ER 32A was issued the following day. 

ER 32A(1)(a) uses neutral language. There is no reference to women or to Islam. However, given the context in which this ER has been issued, there is common understanding that this ER has been issued to prohibit the practice of full face covering by some women who practice Islam. In other words, this ER has the effect of indirectly targeting (and banning) a specific religious practice. 


Relevant Fundamental Rights under the Sri Lankan Constitution

The Sri Lankan Constitution guarantees to ‘every person’ the ‘freedom of thought, conscience and religion’ (Art 10). This freedom, along with the right to be free from torture (Art 11) are ‘absolute’ rights in the Constitution. That is to say that the exercise of those rights cannot be subjected to any restriction. The Constitution further provides that ‘all persons are equal before the law and are entitled to the equal protection of the law’ (Art 12(1)). The right to equality is followed by a prohibition of discrimination on several grounds including ‘religion’ and ‘sex’. (Art 12(2)). 

Furthermore, the Constitution provides that ‘no person’ shall be subjected to any ‘disability, liability, restriction or condition’ on the basis of, among other things, their religion, in accessing ‘shops, public restaurants, hotels, places of public entertainment and places of public worship of his own religion.’ (Art 12(3)). According to the Constitution every citizen has the ‘freedom to…manifest his religion or belief in worship, observance, practice and teaching, by himself or in association with others (Art 14(1)(e)). Unlike Art 10 which is about the freedom of thought, conscience and religion, the actual practice of religion (Art 14(1)(e)) can be restricted. A religious belief cannot be restricted but its practice may be (Art 15(7)).

The freedoms guaranteed under Art 12 and Art 14 can be restricted on the ground of ‘national security, public order…or for the purpose of securing due recognition and respect for the rights and freedoms of others…’ (Art 15(7)). Therefore, concerns about national security/public order can justify the restriction of the right to equality, the right to be free from discrimination and the freedom to practice one’s religion. However, to what extent such restrictions can be imposed has been a matter of intense debate and contest in constitutional democracies. 


Emergency Regulations and Fundamental Rights

Any proposed law, regulation or policy that is adopted in Sri Lanka must respect the fundamental rights guaranteed under the Constitution. As early as 1987, in the context of the second JVP insurrection, in the case of Joseph Perera v the Attorney General [1992] 1 Sri LR 199, the Sri Lankan Supreme Court determined that an ER issued by the President can be subjected to review by the Court. The Court held that it can engage in such review if the ER is challenged on the basis that it violates fundamental rights guaranteed under the Constitution. In this judgement the Court explained the scope of its judicial review of an ER. Court observed that while the President has the power to issue ERs in the interest of national security and public order that the Court may review the constitutionality of such an ER. 

The Court explained that there must be ‘a proximate and reasonable nexus’ between the restriction imposed and the objective that is sought to be achieved by such restriction. The Court observed that a ‘remote and indirect’ connection between the restriction and national security/public order cannot be justified. In the words of the Court ‘A restriction can be said to be in the interests of security or public order only if the connection between the restriction and the security or public order is proximate and direct.

Indirect or far-fetched or unreal connection….would not fall within the purview of the expression in the interests of security/public order.’ Court went on to note that ‘precision of the regulation must be the touchstone in an area so closely touching a most precious freedom. Such a regulation must be strictly construed and greater the restriction, the greater the need for strict scrutiny by the court.’ (p 215 of the judgement). The Court, in this case, was referring to the freedom of expression. 

However, the Court’s observations are equally valid for the right to be free from discrimination and the freedom of religion. Moreover, religious symbolism, including forms of dress, would arguably be a part of a person’s freedom of expression. 

It is clear then that an ER can be subjected to review by Sri Lanka’s Supreme Court. It is also clear that for an ER to pass the test of constitutional validity, it must bear a proximate and reasonable nexus to the objective that is sought to be achieved through the restriction imposed on a fundamental right. In the case of Abeysekera v Rubasinghe [2001] 1 Sri LR 354, the Supreme Court has explained this review process by using the ‘proportionality test.’ A restriction on a fundamental right would be valid if the restriction is for a ‘legitimate aim’ and is ‘necessary in a democratic state’. 

The Court further noted that ‘if there are various options to achieve this objective, that which least restricts the right protected must be selected’ (375-376). Therefore, according to the Supreme Court of Sri Lanka an ER must be specific, have an aim that is accepted as legitimate in a democratic society and must restrict fundamental rights in the least restrictive manner. The question then is whether ER 32A would pass this threshold of constitutionality. 


What would ER 32A cover?

ER 32A(1) (a) and (b) can be evaluated against these standards developed by the Sri Lankan Supreme Court. The aim of this ER has been stated as the protection of ‘national security’ by ensuring that facial recognition is possible. In the aftermath of the unprecedented death and destruction caused by the Easter Sunday attacks and the subsequent related developments it is clear that Sri Lanka’s national security is under serious threat. Ensuring that any person’s face is exposed to the public, in this context, is reasonable. It would ensure that any person in a public place could be readily identifiable. 

The next question is whether ER 32A has ‘a proximate and reasonable nexus’ to improving national security. A related question is whether full face coverings have been used to undermine Sri Lanka’s national security. Finding answers to these questions is more difficult. From the information available in the public domain it seems that none of the suicide bombers had covered their faces. 

Moreover, in Sri Lanka’s past, suicide bombings have been carried out without face coverings. It seems that persons who carry out gruesome attacks of this nature have no hesitation in having their identity known. 

As the Court stated in the Joseph Perera case when an ER restricts a fundamental right a ‘remote and indirect’ connection between the aim and the restriction is not good enough. The ER cannot be broad or vague. It could be argued that ER 32A falls short of both tests. It bans only ‘full face coverings’ which are clarified to mean anything that covers the ‘whole face’ including ‘the ears’. The hijab which is worn by Muslim women cannot be banned under this ER as the hijab clearly does not cover the ‘whole face’. It only covers the head and the ears. ER 32A could be relied upon to ban the burqa and the niqab. Arguably, even the niqab would not qualify if the eyes of the wearer are exposed. 


Previous rulings on religious symbolism of Muslim women and girls

It is helpful at this point to note that religious symbolism in the form of clothing of Muslim women has already been the subject matter of litigation before the Supreme Court. As recently as February this year, the Human Rights Commission issued a recommendation in response to Complaint No. HRC/TCO/27/18 received by the Commission. 

Four teachers attached to a school in Trincomalee complained that they had been prohibited from wearing the abaya to school by the school authorities. The school claimed, among other things, that the saree was the ‘unwritten dress code’ for women teachers. The Commission cited Art 12(2), Art 10 and Art 14(1)(e) of the Constitution in deciding that ‘there is no stipulated dress code for teachers’ and that the complainants could not be ‘compelled to wear or prevented from wearing a certain type of dress’ (p 8). 

The recommendation of the HRC cited two cases previously decided by the Sri Lankan Supreme Court in which the Court recognised the right of Muslim girls and women to wear the ‘Muslim traditional dress’ (FR 688/12 and FR 97/14). The HRC noted that in these cases the Court ‘found that traditional Muslim attire is well within the identity of Sri Lankan culture and that Muslim women have a right to wear such attire, as long as the identity of the person can be ascertained and it causes harm to none’ (p 6). The decision of the Supreme Court in FR 97/14 was in the context of granting leave to proceed. The determination on the merits of the case is pending.

The HRC recommendation and the two cases referred to in the recommendation do not offer any specific guidance on whether the practice of wearing a niqab or the burqa is protected under the Sri Lankan Constitution. In 2017 the Supreme Court had an opportunity to rule on this specific issue in FR application 424 and 427 both of 2013. Two female university students claimed that their university had prevented them from entering the university premises wearing the niqab. The Court determined that their applications were out of time. 

In Sri Lanka a fundamental rights petition must be filed within a month of an alleged violation or an alleged imminent violation of a fundamental right (Art 126). Consequently, the Court did not go into the actual allegation made by the petitioners. 

These rulings reveal that Sri Lanka’s Supreme Court and the Human Rights Commission has viewed religious symbolism by way of dress among Muslim women as part of their religious freedom. The question that has arisen since 29 April of this week is whether this freedom extends to the full face covering by some Muslim women, during a time of emergency. 

Before considering that question, the context within which this question arises must be clarified. 


Muslim women and the law in Sri Lanka

The Sri Lankan legal system does not guarantee the right to equality to Muslim women. The Muslim Marriage and Divorce Act (MMDA) of 1951 does not stipulate a minimum age of marriage for women or men. It allows the law of each Muslim sect to govern marriage and divorce among Muslims. In practice this has meant, for instance, that most Muslim women cannot sign the marriage register when they get married. Disputes regarding marriage or divorce are determined at first stage by Qazis. According to the MMDA only male Muslims of good character can be appointed as a Qazi (s 12). Legal representation is prohibited before Qazis (s 74). 

Laws such as the MMDA are expressly protected by the Sri Lankan Constitution. The Constitution provides that laws pre-existing the Constitution, that is laws in force before its adoption, will be valid, even if they violate the fundamental rights guaranteed by the Constitution. 


Religion and women in Sri Lanka

Sri Lankan society is often described as multi-religious. Several of the religious institutions in Sri Lanka are led by men. Most religious institutions either exclude women or designate women to a lower status. In relation to Islam and the MMDA, there have been several attempts to propose progressive reforms and thereby to minimise the discrimination experienced by Sri Lankan Muslim women. In the last few years Muslim women have been advocating for these reforms consistently. However, neither the Government nor the different leaders within the religious institutional architecture have supported this call for reform. 

In this context, it is interesting to note that on 25 April, the All Ceylon Jamayathul Ulama (ACJU) issued a notice which advised that ‘in the prevailing situation our sisters should not hinder the security forces in their efforts to maintain national security by wearing the face cover (niqab)’. To what extent are women and women’s perspectives taken into account in any of these decisions and/or practices? On the one hand, a religious community, largely led by men, include among their practices, religious forms of clothing for women that include head and/or full-face coverings. On the other hand, at a time of emergency leaders of the same community call upon Muslim women to refrain from wearing the niqab. A woman who has arguably never exposed her face in public is now being told by leaders in her community and ordered by law to do the exact opposite. 

This drastic change is being introduced at a time when the Sri Lankan Muslim community is going through critical reflection, shock, fear and insecurity in the aftermath of the Easter Sunday attacks. 


Face veil bans in other countries

In the last decade several countries across the world have banned face covering veils. The French ban of the face veil in public places was declared to be a violation of Muslim women’s religious freedom by the UN Human Rights Committee in October 2018. In Algeria the full-face veil is banned in places of work. Netherlands, Denmark, Germany, Austria, Switzerland, Chad, Republic of Congo are examples of other countries which have regulated or banned the wearing of a face veil. Sri Lanka has now joined this list of states. 

These examples point to an emerging pattern in the responses of Governments to what is perceived as the rise of extremism and the use of extreme form of violence by groups claiming to act on the basis of religious belief. The full-face veil has been a common target across different regions. These bans have been by way of law while in Sri Lanka it is only by way of an emergency regulation. Therefore, when the state of emergency lapses, ER 32A would cease to have any legal effect. 


Implementation of ER 32A

It is within this context that ER 32A prohibits full face coverings and thereby indirectly bans the burqa and the niqab. Some Sri Lankans on social media have noted that ER 32A is being relied upon to prevent Muslim women from wearing the hijab. A simple reading of ER 32A suggests that the hijab cannot be banned. Attempts to ban the hijab could be a violation of the fundamental rights to equality, freedom of religion and the freedom of expression that are guaranteed under the Sri Lankan Constitution.

It is critical that law enforcement authorities have a clear understanding on what is banned and what is not. The general public must be made aware of the actual scope of ER32A. In the absence of such clarity, Sri Lankan Muslim women who choose to manifest their religious belief in their clothing may be subjected to unlawful restrictions of their freedom. Much depends on the day-to-day enforcement of ER 32A. The hijab or abaya, which are the more common form of covering cannot be banned according to a plain reading of ER32A. 

ER 32A is not only a question about what kind of face covering is being banned during emergency. Any form of law has a normative impact. The normative impact of ER 32A is on religious freedoms of minorities in Sri Lanka, on women’s right to be free from discrimination and their freedom of expression. The impact of ER 32A is not only immediate but also long term. The dangers to our collective existence lie particularly in that long-term impact. 

If ER 32A is not given a narrow and consistent interpretation but is rather used to arbitrarily police the religious symbolism of Sri Lankan Muslim women, it will add to the existing social tensions in the country. ER 32A addresses a security concern but in doing that it is indirectly (some would argue directly) gives rise to certain perceptions of Islam, its practices and particularly about Sri Lankan Muslim women. 

For the extremely diverse Sri Lankan Muslim community this is a challenging time. These realities need to be addressed openly, honestly and with respect. National security includes both the immediate and the long-term security of our society. Finding the best way forward at a time like this is difficult. 

The writer can be reached via email at [email protected]

Recent columns