Netherlands: Burqa Ban Enters into Force
(Aug. 27, 2019) On August 1, 2019, the “Act Partially Prohibiting Face-Covering Clothing,”also known as the “Burqa Ban,” entered into force in the Netherlands. The Act prohibits the wearing of clothing that completely or partially conceals the face in spaces where people are expected to communicate with each other. Thus, face-covering clothing is banned on public transportation and in educational, governmental, and nursing care institutions, but is still allowed in such public spaces as on train platforms. The ban applies to burqas, niqabs, full-face helmets, balaclavas, and masks, but not to headscarves. Article 1 of the Act provides that individuals who violate the face-covering regulations are to be made aware of the law and given the opportunity to remove the piece of clothing or leave the premises. If the individual refuses, the police can issue a fine of €150–€410 (about US$167–$459). There are no official numbers on how many women in the Netherlands wear a burqa or a niqab, with estimates varying between 200 and 400. By banning face-covering clothing, the Dutch are following the lead of several European countries, such as France, Belgium, Austria, and Denmark, which have introduced similar laws since 2010.
Background
In 2005, a motion by parliamentarian Geert Wilders asking the government to establish a complete prohibition of face veils in public passed the lower house (Tweede Kamer) of the Dutch parliament. Pressured by Wilders’ Party for Freedom, Prime Minister Mark Rutte’s People’s Party for Freedom and Democracy and the Christian Democratic Appeal agreed in their coalition negotiations in 2010 to support a burqa ban in all public places. However, because such a law violates article 6 of the Dutch Constitution, which establishes the right to freedom of religion, the Rutte government proposed in 2012 a ban on not only face veils but all “face-covering” clothing in public places. With the end of the coalition, the proposal was dropped in the same year. Rutte’s second cabinet found that there was insufficient grounds for a general ban that would apply in all public places. Therefore, the bill submitted by the cabinet in 2015 was more limited in the scope of its applicability. The partial ban passed the lower house in 2016 and the upper house (Eerste Kamer) on June 26, 2018. The bill’s entering into force was delayed to give affected organizations time to draw up rules for enforcing the ban themselves and announce them well in advance.
Enforcement
Verification of compliance with the Act Partially Prohibiting Face-Covering Clothing lies primarily with the personnel of the institutions or public transport companies where the prohibition applies. They are expected to address offenders, point out the existence of the prohibition, and request them to remove the face covering or leave the premises. The police can be called if the individual refuses to follow the instructions. The police are also to warn the person concerned to remove the face covering or leave the location. If the individual continues to refuse, the police can issue a fine.
As Dutch media have reported, enforcement of the law will be difficult, as there is “much discontent and a lack of clarity” among organizations that are affected by the law regarding its implementation. Hospital associations, public transport companies, and the mayors of three of the biggest Dutch cities (Amsterdam, Rotterdam, and Utrecht) have stated that enforcement of the law is not a priority for them. The Dutch Association of Hospitals stated that it is up to the individual hospitals to decide whether they will deny care to burqa and niqab wearers. A Dutch newspaper reported that several hospitals have announced that everyone will be helped regardless of the clothing they are wearing because the duty to provide care is the main concern for health care providers. A spokesperson for the Dutch Federation of University Medical Centers states that health care providers fear that people will avoid seeking care if they are not allowed to wear a burqa or niqab in a hospital.
Public transportation employees have received instructions that they are not allowed to refuse Muslim women with a burqa when they enter a bus or tram and employees should determine themselves whether they want to address someone to point out the new law. However, for the transport carriers, the most important aspect is the unimpeded operation of trains, buses, trams, and subways. The transport carriers cannot delay the vehicles to wait for the police. Therefore, the transport companies will initially limit themselves to registering the number of violations of the burqa ban.
The police also stated that the enforcement of the ban will not be a priority. Further, the police and the Ministry of the Interior have disagreed over the interpretation of the law. The Dutch police first announced that it would continue to offer women who refuse to take off the face cover for religious reasons to be directed to a separate room where they can take off their veil in the presence of a, preferably, female agent. However, the Ministry of the Interior disagreed with the police’s assessment that this practice would still be possible under the new law because it is not permitted to enter a police station with face-covering clothing. The internal instructions of the police have since been adjusted so that the Dutch police can assist burqa wearers outside the police station with reporting crimes or other matters, for example by telephone or digitally. If any kind of statement has to be made, it can be recorded at the burqa wearer’s home.
A Dutch media outlet has reported that article 53 of the Code of Criminal Procedure authorizes every citizen to arrest a suspect when they discover a criminal offense has been committed. However, the Public Prosecutor’s office has warned that citizens can make such arrests only when someone is caught red-handed and immediately handed over to the police. Media reports on the issue have created fear among burqa and niqab wearers that the public will become violent.
Perhaps because the Dutch government was aware that the burqa law would be difficult to enforce, it is slated to be evaluated in three years instead of the standard five years.
Prepared by Anne-Cathérine Stolz, Law Library intern, under the supervision of Jenny Gesley, Foreign Law Specialist.
Author: Jenny Gesley
Topic: Attire, Freedom of religion, Human rights and civil liberties, Religious minorities
Jurisdiction: Netherlands
Date: August 27, 2019