Wednesday, March 27, 2013

The Ban That Shouldn't Be?: Sa Pobla and the burka

Sa Pobla town hall announced a week or so ago that it had no intention of revoking its by-law that prohibits the wearing of the burka in public areas. Mayor Biel Serra said that the ban would remain in place unless there was a legal decision taken as the consequence of a "denuncia" that would force it to revoke the ban. There has been no denuncia. Indeed, there has been very little fall-out as a result of the ban. No one has been fined for wearing a burka unlawfully, which may because there were, or so it was said at the time when the ban was introduced in late summer 2011, hardly any women who wore it anyway.

That was one side of the story. The other was that Sa Pobla was chock-full of Muslims from Saudi Arabia, Afghanistan and wherever and that the wearing of the burka and niqab was widespread. As ever, one could take which side of the story one liked, depending on one's point of view, even if neither was actually true. Personally, and prior to the ban, I had never seen a burka in Sa Pobla, but then maybe I was not moving in the right public-area circles.

The town hall was moved to state that the ban would remain in force because of a decision by the Spanish Supreme Court which instructed the town hall in the Catalonian town of Lleida to lift its ban. Sa Pobla, the only town in Mallorca with a ban, had taken Lleida's lead; the terms of its ban are more or less identical to those that Lleida had laid down.

Mayor Serra insists that the ban is all about guaranteeing the public's safety and security and has nothing to do with limiting religious freedoms. It is these freedoms, and the possible contravention of them, that may yet find Sa Pobla hauled up in front of m' learned friends; the Supreme Court ruled against Lleida's ban on just these grounds and on the basis that an individual municipality did not have the authority to impose a by-law that did interfere with religious freedoms.

When Sa Pobla introduced its ban, I wrote an article in which I questioned the ban's legality. I did so on the basis of my understanding of the Spanish Constitution. The Supreme Court, in making its decision regarding the Lleida ban, has made clear that it is not answering the question as to whether the Constitution would permit or not permit the wearing of the burka, but the fact that the Court has addressed the constitutional issue makes me feel somewhat vindicated for having raised the issue. Before and after I had written the article, I came across no other reference to the constitutional aspect. There may well have been, but it surprised me to find that a fundamental right enshrined in the constitution, one that Sa Pobla and Lleida may have been going against, was apparently given such scant attention.

The Supreme Court has opened the way for national government to legislate if it so chooses. The fact that the Court has been equivocal where the Constitution is concerned may actually make it more difficult for the government to legislate or to bring about a law that isn't then subject to challenge. One can see the whole matter dragging on for years, always assuming the government were to legislate. Would it be minded to, now that the general hullabaloo about the wearing of the burka that was around a couple of years ago has seemingly died down?

A consequence of the Lleida decision does raise the potential for this hullabaloo to break out once more, and probably unnecessarily. In Sa Pobla, a town with a large Muslim population, the ban has raised very little by way of tensions; those that there have been have come about for other reasons. It could be argued that the ban has been effective, as demonstrated by no fines having been issued. It could also be - and in the handful of towns across Spain where there are similar bans, there have been no fines either - that the ban was a sledgehammer to crack a nut. Or an act of political expedience that no other town hall in Mallorca has deemed worthy of following.

As I said in my previous article, I am not in favour of the burka. I consider it an absurdity. But nor am I in favour of towns making up their own rules on matters of fundamental rights. It's up to the government. Either there is a ban - a national one - or there isn't.

Any comments to please.

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