Parliament generally approved a bill that aims to prohibit the hiding of faces in public spaces. However, right in the explanatory memorandum of the project, the debate turned (in my opinion, intentionally) into a media-related religious and cultural issue, focusing only on the use of burqas or similar, which was also seen in the parliamentary debate and in the media.
In the explanatory memorandum of the project, the need for personal identification in public space is invoked, first and foremost to guarantee security, as well as the self-determination of Muslim women. Regarding this last point, it is argued that the use of a burqa or similar represents a form of oppression. This reading, which I do not dispute, cannot, however, ignore situations in which face covering results from personal conviction, even if motivated by the sociocultural context.
In these cases, the option to wear clothing that covers the face will be protected by several constitutional rights: personal identity and free development of personality (art. 26, no. 1), religious freedom (art. 41) and non-discrimination based on religious conviction (arts. 13, no. 2, and 41, no. 2). In fact, prohibiting a woman from wearing a costume “to free her” can, paradoxically, deny her the exercise of those rights, which raises questions of constitutionality. Furthermore, the project provides for the imposition of fines of between two hundred and four thousand euros on anyone who fails to comply with the prohibition on hiding their face. Applied to women who wear a burqa or similar, this will be contradictory, as it represents a new oppression of those who claim to want to protect.
It should also be added that, by choice or external pressure, the proposed ban could discourage the presence in public spaces of women who wear burqas or similar, which would discriminate against them, instead of “liberating” them. These consequences have already been identified in countries that have adopted similar measures, and should therefore be considered.
Regarding the need to identify people in public spaces and guarantee public security, despite there being no known episodes that generate social alarm, it is indisputable that constitutionally protected interests are at stake and that the concern to ensure them is legitimate. In any case, as the prohibition of concealing one’s face implies the restriction of constitutional rights and freedoms, its admissibility will depend on respect for the criteria of proportionality (adequacy, necessity and prohibition of excess – cf. art. 18, no. 2 of the CRP), in the harmonization between conflicting rights and interests.
Therefore, even if the prohibition is capable of achieving those ends, the legitimacy of this measure will depend on the non-existence of less restrictive and equally effective alternatives. Likewise, the losses associated with the extension of new prohibitions cannot exceed the benefits obtained from them, under penalty of excess and, consequently, unconstitutionality.
For all these reasons, and given the various points identified, the phase of the specialty that now begins must be based on informed reflection free from prejudice. That it is not discriminatory or stigmatizing, especially for those it intends to protect, and that it is capable of harmonizing the legitimate interests in question.
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