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Switzerland: Upper House of Parliament Rejects Burqa and Niqab Ban

(Mar. 15, 2017) On March 9, 2017, the Swiss Council of States (upper house of Parliament) rejected by a vote of 26 to 9, with 4 abstentions, a parliamentary initiative to ban the full body and face veil (burqa) and the face veil (niqab) and amend the Swiss Constitution accordingly.  The Council of States is composed of 46 representatives from the Swiss cantons.  The Swiss National Council, the lower house of Parliament, had narrowly approved the ban in the fall of 2016, by 88 to 87 votes, with 10 abstentions.  The rejection of the parliamentary initiative in the Council of States ends the initiative.  (Press Release, Ständerat will Burkas nicht verbieten [Council of States Will Not Ban Burqas] (Mar. 9, 2017), Swiss Parliament website.)

However, the burqa ban will most likely be the subject of a future referendum. The “Egerkinger Committee,” set up by National Council Member Walter Wobmann to gather signatures, has launched a popular initiative calling for a referendum on a veil ban (“Yes to a Veil Ban”).  The Committee has until September 15, 2017, to collect the 100,000 valid signatures that are required for a referendum.  According to some of the speakers in the debate in the Council of States, 70,000 signatures have already been gathered.  (Id.; Federal Constitution of the Swiss Confederation (Apr. 18, 1999, status as of Jan. 1, 2016), SYSTEMATISCHE RECHTSSAMMLUNG [SR] [SYSTEMATIC COLLECTION OF LAWS] 101, art. 138, Swiss government website.)

Reactions to the Proposed Ban

Opponents of the proposed ban pointed out that very few people in Switzerland actually wear a burqa or a niqab. They added that in their view, the competence to enact clothing regulations lies with the individual cantons.  According to Andrea Caroni, a member of the Free Democratic Party, the canton Appenzell had more people hiking naked than people wearing a burqa, but that did not encourage the Swiss Parliament to enact a national ban on nudity.  Instead, Appenzell enacted a cantonal rule.  (Ständerat will Burkas nicht verbieten, supra.)

MP Thomas Minder (no party affiliation), a proponent of the ban, stated that burqa bans had been passed in 15 other countries, because “people feel uncomfortable when a person wears a veil.”  In his view, the Swiss people would be strongly in favor of a ban.  (Id.)

Cantonal Bans

On July 1, 2016, a burqa ban entered into force in the Swiss canton Ticino. Ticino is an Italian-speaking canton located in the southern part of Switzerland.  The ban had been approved in a cantonal referendum on September 22, 2013.  The referendum added article 9a to the Cantonal Constitution of Ticino.  Article 9a provides that no one is allowed to wear a veil when serving the public or in public places or places that are open to the public, with the exception of places used for religious worship.  In addition, the norm prohibits forcing a person to wear a veil over the face because of her gender.  (Costituzione della Repubblica e Cantone Ticino del 14 dicembre 1997; modifica [Constitution of the Republic and Canton of Tessin of Dec. 14, 1997; amendment], BOLLETTINO UFFICIALE DELLE LEGGI [BU] [OFFICIAL LAW BULLETIN] 2016, 193, Repubblica e Cantone Ticino website.)

Sanctions and exceptions in Ticino are regulated in the implementing Public Order Act, the Act on the Concealment of the Face in Public Spaces, and a regulation implementing the two acts. An intentional violation of the ban is punishable with a fine ranging from CHF100 to CHF10,000 (about US$99 to US$9,887).  (Legge sull’ordine pubblico [Public Order Act], Nov. 23, 2015, BU 2016, 194, § 5, Repubblica e Cantone Ticino website; Legge sulla dissimulazione del volto negli spazi pubblici [Act on the Concealment of the Face in Public Spaces], Nov. 23, 2015, BU 2016, 196, § 5, Repubblica e Cantone Ticino website; Regolamento sull’ordine pubblico e sulla dissimulazione del volto negli spazi pubblici [Regulation on the Public Order Act and the Act on the Concealment of the Face in Public Spaces], Apr. 6, 2016, BU 2016, 197, § 2, Repubblica e Cantone Ticino website.)  In the first six months since the ban has entered into force, proceedings have been brought against six women.  (Ständerat will Burkas nicht verbieten, supra.)