No matter how you look at it politically, there’s more than a little irony in growing demands for the year-old Dutch burka ban to be rescinded because Covid-19 regulations now make face coverings not alone socially advisable – but in some circumstances legally obligatory.
In countries with large Muslim communities the ban is inevitably divisive. In the Netherlands, with a population of 17 million of whom only around 400 women at a maximum wear face coverings, it's always been regarded by its critics as using a sledgehammer to crack a nut.
That view was lent credibility by the fact that the legislation was the price extracted in 2010 by far-right leader Geert Wilders for supporting prime minister Mark Rutte's minority Liberal-Christian Democrat coalition government from the opposition benches.
That deal went south even faster than expected: the government collapsed in May 2012 when Wilders refused to support a €15 billion austerity programme aimed at meeting the EU’s deficit target.
Even so, a controversial social change had already been set in unstoppable motion in the name of political expediency.
Although this is all quite recent history, what’s often conveniently forgotten too is that Dutch Muslims were not alone in making the case that the ban was both unnecessary – on the basis that there was no actual problem to solve – and potentially socially polarising.
They had unlikely allies in the country’s august Council of State, founded in 1531 to advise governments on the wisdom of their legislation and to ensure that their policies were broadly in line with the common good.
In fact, the council was scathing, saying the burka legislation implied a political urgency that did not actually exist, and risked “infringing the constitutional right to freedom of religion”.
But nobody was listening. The legislation went ahead and came into effect on August 1st last year.
By then at the head of his third consecutive coalition, and with Wilders consigned to the role of carping onlooker, Rutte repeatedly insisted the ban did not have any religious motivation. It was purely for reasons of security where it was essential that everyone’s face be identifiable.
The Dutch rules, he pointed out, were a partial rather than an absolute ban, not as restrictive as in France, Belgium or Denmark, and applied only in public places such as schools, hospitals, government offices, and on public transport, though not, crucially, in the street.
That, however, was emphatically not the view of UN Special Rapporteur on Racism and University of California law professor, Tendayi Achiume.
She warned the government in no uncertain terms last October that the ban discriminated against Muslim women and had “no place in a society that claims to promote equality between the sexes” – a stinging criticism for the Dutch.
Prof Achiume said the “highly polarised” political debate surrounding the ban made plain its “intended targeting of Muslim women”, adding: “Even if such targeting was not its intent, it has certainly been its effect.”
In recent days, a survey by the Report Islamophobia foundation hammered home that same point, claiming the ban had been “gesture politics” and had led to “a wave of abuse” targeting Muslim women over the past 12 months.
“When that happens, the police aren’t always properly informed about the law, and, as a result, Muslim women have lost faith in them.”
Social media campaigns urging members of the public to make “citizens’ arrests” have driven up the temperature.
The government has said it will review the burka ban in 2022, but there’s a growing campaign by groups such as Report Islamophobia and Don’t Touch My Niqab to have parliament act more quickly – especially with a general election scheduled for the Spring.
Apart from the socially-divisive nature of the ban, one of the weak points those groups are focusing on now is what appears to be the patent irrationality of the situation as it applies to public transport, for instance.
Like everyone else, Muslim women are being told it’s obligatory to wear anti-Covid-19 face masks on buses and trains or risk a substantial fine – while it’s forbidden to wear a niqab, which also leaves the eyes uncovered, at the risk of an equally substantial fine.
“This is bad and divisive law for many different reasons”, says one campaigner who claims the Covid-19 regulations may mean the legal arguments supporting the burka ban are effectively void.
“According to our advice, the most compelling argument may turn out to be the coronavirus argument we never expected to make.”