Doing Minority Justice Through Procedural Fairness: Face Veil Bans in Europe

Abstract

The French and Belgian bans on face veils in public places have been subjected to strong substantive human rights critiques. This article takes a complementary approach, examining the bans from the perspective of procedural fairness. Indeed, the French and Belgian bans are extreme examples of legislative processes taking place above the heads of the people concerned, neglecting the ban's possible human rights impact. After exploring what the social psychology notion of procedural fairness entails for the judiciary and the legislator, especially in a multicultural context, this article details procedural fairness shortcomings with respect to the face veil ban in France and Belgium. Subsequently, the article sets out how the European Court of Human Rights might compensate for these shortcomings.Key words: Face veil bans, Human Rights, Procedural Justice, Freedom of religion, European Court of Human Rights.In the name of women's rights, public security and social cohesion, two European countries, France and Belgium, have enacted laws prohibiting face covering in the public space, generally known as 'burqa bans'. 2 These bans have been strongly criticized as violations of religious freedom and Published in Journal of Muslims in Europe 2 (2013) 1-262 discriminations on grounds of religion and sex. 3 Complementing such substantive human rights critiques, this paper takes a different approach, examining the bans from the perspective of procedural fairness. Indeed, the French and Belgian bans are extreme examples of legislative processes taking place above the heads of the people concerned. Not only was the voice of the women concerned missing in the debates, even more striking was the fact that a discussion of the ban's human rights impact was nearly non-existent.In a first section, we will refer to social psychology research to explain what procedural fairness encompasses and what it entails for both the judiciary and the legislator, particularly in a multicultural context. Next, we will demonstrate how the French and Belgian authorities have neglected procedural fairness at the domestic level. In the third section, we will argue how the European Court of Human Rights, if confronted with the subject matter, might restore procedural fairness. Procedural Fairness and Minority JusticeProcedural fairness or procedural justice refers to the fairness of the procedures by which a decision is taken or by which an outcome is arrived at in a case. Social psychology research has shown that in their fairness assessment of authorities and the law, people tend to accord more importance to procedural fairness than to distributive justice. 4 In other words, the way people are treated by judges and authorities is more relevant to them than the particular outcome in their case or the policy Published in Journal of Muslims in Europe 2 (2013) 1-264 Although it follows from Tyler's research that procedural fairness is equally important to majority populations as to minorities 13, there are several reasons to believe that procedural f...

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