The legal limits to prohibit the burqa

The debate on the use of the burqa and niqab in public spaces has re-emerged on the Spanish political scene. There are various proposals on the table and it seems that, this time, there is a political interest in regulating it. For the moment, Congress has rejected Vox's proposal, but the far-right's insistence on this issue has been decisive in prompting the rest of the parliamentary spectrum to start taking positions. In this regard, Junts has put forward an alternative proposal focused on people's security and identification – rather than on religious freedom –a path that the PSOE has shown itself open to studying. PP and ERC have also had their say, proposing a ban that would not entail fines for women, but rather participation in social activities. However, the possible constitutionality of a law of this nature in Spain raises profound legal questions that oblige us to look towards Strasbourg and analyze the limits of our own fundamental rights system.A void of precedents: the weight of organic law

Currently, the Constitutional Court (TC) does not have clear jurisprudence or precedents that would allow us to accurately predict its verdict on a general ban. "The Spanish legal framework is in a situation of uncertainty. We are in a territory of fictional constitutionalism," points out María Itziar Gómez Fernández, former TC lawyer and professor of constitutional law at the Carlos III University of Madrid, in conversation with ARA.Until now, the only relevant pronouncement in Spain came from the Supreme Court (TS) following municipal ordinances that prohibited the full veil in spaces like those in Lleida. Joan Lluís Pérez Francesch, professor of constitutional law at the Autonomous University of Barcelona, explains to ARA that "the TS made it clear that any limitation of a fundamental right such as religious freedom should be done through an organic law that regulated the limitations related to religious freedom".The mirror of the ECHR

Given the lack of internal doctrine, the gaze is inevitably drawn to the European Court of Human Rights (ECtHR), which has already ruled on measures adopted in France and Belgium. However, a fundamental difference in context should be highlighted. "In France and Belgium, the principle of secularism is very clearly contained in their constitutional texts," explains Gómez. In contrast, "in Spain, we have a system of respect for religious freedom that is constitutionally enshrined," which could oblige the Constitutional Court to look at the issue with different eyes.One of the key points of Strasbourg's jurisprudence has been the strategy of moving away from the strictly religious sphere to save the constitutionality of the ban. Pérez Francesch points out that "if it is linked to religious freedom, religious freedom always wins, as any limitation of it is very difficult to justify." "These countries used concepts such as public safety and, above all, the principle of 'democratic coexistence,'" he highlights.Red lines: against general bans

Despite the ECtHR's endorsement of certain bans, there are red lines that the Spanish Constitutional Court would have to scrupulously respect to adapt to the Council of Europe system. The main premise is that "general bans are not useful, they are not valid. A universal prohibitory measure cannot be applied based solely on abstract concepts such as security or gender dignity," highlights Gómez."The TC could not analyze a ban in block, but would have to focus on specific measures. It is not the same to restrict the use of the burqa in an administrative office for identification reasons as to do so on the street or in a university," indicates the former lawyer. "These specific issues are what would allow for a specific proportionality judgment."The proportionality test and the search for real purpose

To determine the constitutionality of a possible law, the TC will have to apply a three-step proportionality test: analyze whether the purpose of the ban is suitable, necessary, and proportional. For suitability, the key is the purpose. "The legislator would have to openly declare what it intends: is it a real security problem or is it a paternalistic view?" highlights Gómez Fernández. "In what way do we consider that prohibiting a piece of clothing worn only by women protects their dignity?" It would also be necessary to assess whether the measure is proportional or if "flies are being killed with cannons," he explains. "If the limitation affects an infinitesimal percentage of the population and generates a persecution effect towards a certain religion, it is very likely that the measure will be considered disproportionate depending on the circumstances of the specific case."The snag of control

The arrival of the norm at the TC would also not be exempt from uncertainty. Parliamentary arithmetic would complicate an unconstitutionality appeal if the major parties agreed on the law. Without the minimum of 50 deputies or senators needed to challenge it directly, abstract control could be initially blocked. However, the path would not be closed: any affected woman could go to the Constitutional Court via an appeal for protection. As happened in France and Belgium, the review of the norm would come from the bottom up, through the protection of individual rights and specific litigation.