The decree “anti-Burkini” has “brought a serious and manifestly illegal infringement of fundamental freedoms”. This was considered the State Council in its Order of August 26, which suspends the order of Villeneuve-Loubet (Alpes-Maritimes) against the beachwear that violate “good morals and the principle of secularism “.
Several personalities of the right and extreme right opposed to this decision already calling for a law to ban the holding of swimming. One idea that could face several obstacles.
A law “copy and paste” of the order of Villeneuve-Loubet?
WHY IS LEGALLY FRAGILE
The order of Villeneuve-Loubet, thought to fight against the “burkini” was actually much broader. It prohibited the beach access to “any person that does not have a dress, respectful of morality and the principle of secularism, and respect the rules of hygiene and safety adapted swimming maritime public domain”.
The State Council said in his judgment that the text was a violation “serious and manifestly illegal” three fundamental freedoms: the freedom to come and go, freedom of conscience and personal freedom. In the absence of proven risks to public order or bathing security issues, hygiene or even decency, the judges ruled that there were insufficient grounds to justify the prohibition. Not even the “context” post-bombings.
But these arguments are constitutional, “They would therefore apply also to a law,” Jean-Philippe slice Derosier, constitutional lawyer and professor of law at the University of Lille. There is every chance that the Constitutional Council opposes legislation that would be based on the same foundations as the order of Villeneuve-Loubet, except to amend the Constitution.
A law solely the burkini?
WHY IS LEGALLY FRAGILE
Therefore, one could imagine only target the burkini. But this solution would probably be legally vulnerable. In 2010, when the government was thinking of ways to ban the wearing of the full veil, the State Council had presented a study on the legal possibilities of such a measure. He then ruled out the idea of banning the full veil alone.
The argument of secularism was “resolutely” rejected. Secularism applies “primarily” in the relationship between public authorities and religions, fell within that court. This justifies, for example, the duty of neutrality for public services workers. The State Council judged however that secularism “can not be imposed directly to the company or individuals that due to specific requirements of some public services.” The 2004 law on the wearing of religious symbols or clothing in schools between in this context, but not a ban on the full veil.
The State Council had also rejected the principles of dignity and equality between men and women as justification for the prohibition. Result: the government had followed the recommendation of the Constitutional Court, namely the aim of “concealment of the face in the public space” and not religious symbols.
Following this reasoning, a law that would target the Burkini would likely be rejected by the Constitutional Council, said Jean-Philippe Derosier.
Find a different formulation to avoid censorship?
WHY IT’S COMPLICATED
Nothing prevents however to reflect on another legal solution to work around these problems, as was the case with the 2010 law remains to be seen which one. For the professor of public law, the analogy is less obvious than the concealment of the face: “It would be ridiculous example by prohibiting bathing dressed, he says. This poses a problem for those who do it to protect from the sun, to hide scars, etc. ”
It will of course wait for detailed proposals, as the bill heralded the deputies Republicans Larrivé Guillaume and Eric Ciotti, to assess their feasibility. The idea of an “anti-Burkini” appears nevertheless to have all the legal puzzle.
Courtesy Le Monde