By Sina Fischer
On October 12, 2022, the Swiss Federal Council adopted a dispatch on the Prohibition of Face Veiling (BVVG) to implement the ban into federal law. Under the proposed new law anyone who covers their face in publicly accessible places could be punished with a fine of up to CHF 1,000. The bill, now going to the parliament, will define the future relationship between Switzerland and its Muslim citizens.
The proposed law is written based on the ‘Ja zum Verhüllungsverbot’, Yes to the Veiling ban, peoples initiative adopted through a public referendum by the Swiss government in March 2021. The referendum, which came ten years after a national referendum that banned the building of minarets, divided the Swiss public, and only passed with a majority of 51.2%.
After consultations, the Swiss cabinet progressed with the bill with two major changes. The proposed law now includes a significantly lowered maximum fine of CHF 1,000 after criticism of the initially proposed CHF 10,000. As well as implementing the result of the initiative in federal law as opposed to the criminal penal code as had originally been called for. Additionally, the Federal Council will offer the following exceptions to the law; A veiling remains permitted for reasons of health, safety, climatic conditions, and local customs (e.g., carnival), when it is necessary for the exercise of freedom of expression and assembly in public spaces, and artistic performances and appearances for advertising purposes. This begs the question, if there are so many exceptions, what is this new law truly a ban on if not the right to wear a face covering such as a burqa or a niqab if they so choose?
A discourse analysis made by fög analysis on the initiative and media contributions shows that the discussion about the face-covering ban focused almost exclusively on religious veiling in the form of the burqa and niqab. Other forms of veiling, such as masking during demonstrations or fan riots, which are also affected by the initiative, played practically no role in the public debate on the initiative. In a surprise to many, the ban was not just framed as a security concern but also as a feminist issue through the peddling of various paternalistic tropes such as all women being forced to veil their faces. This is despite various studies and research showing in other European countries, the majority of niqab wearers are socialized in the West, have an average to very good education and wear the niqab out of their conviction. Many voters in the initial referendum, especially the initiative committee, were primarily concerned with the religious face veil as a danger to women and Swiss values.
A face veiling ban will be neither unique nor legally controversial in Europe. France, Belgium, Austria, and Denmark have similar regulations. In 2015 a case from France came before the European Court of Human Rights, where a French woman claimed that the punishment she received for wearing a veil was discrimination based on gender, religion and ethnic origin. They argued that the ban only punished a specific group of women. However, the court decided that the ban was proportionate given France‘s goal to maintain “social coexistence”. One of the main arguments used in the court, which was later appropriated by the Swiss initiative committee, was the alleged necessity of having an uncovered face for social interactions as an indispensable element of life in a society in Europe: “a veil concealing the face was perceived by [France] as breaching the right of others to live in a space of socialisation which made living together easier”.
It is important to note that the European Court of Human Rights could still come to a different outcome in a case coming from Switzerland. The proposed fine of 1000 Swiss francs is much higher than the 150 Euros fined in France. Additionally, the demography in Switzerland is different from the one in France and it would be difficult to argue that a ban is necessary to maintain “social cohesion”. This is also reflected in the fines that have so far been distributed in the two Swiss cantons that already implemented a face veiling ban. Ticino voted on a corresponding bill in 2013 and approved it; St. Gallen voted in favour of the bill in 2018. While Ticino distributed 6 fines per year, St. Gallen had zero fines. A survey made in 2020 by the Center for Religious Research at the University of Basel showed that only about twenty to thirty women regularly wear a niqab. The burqa, a full-body veil with a recessed viewing window, was not encountered in Switzerland.
Nonetheless, the people’s initiative was launched by the Egerkinger committee. The right-wing committee proclaims to “Stop the Islamization of Switzerland” and had already succeeded in 2009 with another people’s initiative to ban the construction of minarets. In the 130-year history of the people’s initiative in Switzerland, only 23 have been accepted, and two of them have now been described as a restriction of the fundamental rights of Swiss Muslims by the UN. The committee and its followers consider Islam to be something outside of Switzerland. They argue that the ban is necessary to stop extremism and protect “core Swiss values” such as freedom and equality.
Although most Swiss parties, the Federal Council and the Parliament recommended a rejection of the initiative and most of the Swiss media reported negatively on it, the initiative was nevertheless adopted. How could this happen? A survey made among voters looking at the most important reasons for a yes or a no shows that the yes motives were divided into three sub-categories (the respondents could name more than one reason): 46% voted yes due protection of Swiss values and culture, 41% due to women’s rights, and 35% due to security aspects and terrorism. Interestingly, while most people voted according to their political orientation, voters who most sympathised with centre parties voted in favour of the initiative. Even though both FDP and Die Mitte also recommended a rejection of the initiative.
The proposed bill of the Federal Council still leaves many questions unanswered. If there are enough exemptions to wear face coverings, couldn’t any person use a medical face mask to cover their faces instead of fabric? And what happens to the Swiss constitutionally guaranteed fundamental rights of expression, religion, and personal freedom if they are so easily circumvented in the name of protecting other Swiss values? The bill and the discourse around it show that it is about much more than whether the thirty women who wear face coverings in Switzerland can do so freely. It is about social belonging, about the meaning of equality and not at least about the self-image of Switzerland as a state protecting or endangering its citizens. The parliament, while considering the proposed bill, should keep the ECHR statement made on the case in France in mind:
“It nevertheless emphasised that a State which entered into a legislative process of this kind took the risk of contributing to the consolidation of the stereotypes which affected certain categories of the population and of encouraging the expression of intolerance, when it had a duty, on the contrary, to promote tolerance.” Research showed in the past that niqab wearers in Europe regularly experience verbal and sometimes physical attacks in public, and they will predictively continue to do so under this law.