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On 19 March 2013, the French Court of Cassation (Cour de Cassation) found that the dismissal of an employee of a private child-care facility in Chanteloup-Les-Vignes (Parisian region) motivated by the fact that she was wearing a headscarf in the workplace was discriminatory.
The Court found that the internal regulation of the facility, establishing a general prohibition to wear religious symbols for employees, was at odds with French Labour Code, according to which restrictions on the human rights of the employees, including their rights to freedom of expression and to freedom of religion or belief, can be justified only in relation to a specific occupational requirement and insofar as they are proportionate to the aim sought.
Amnesty International maintains that the rights to freedom of expression and to freedom of religion or belief can be restricted in some instances including in the workplace. However, such restrictions are permissible under international and European human rights law only under specific conditions. In particular, an employer can for example lawfully restrict these rights on the basis of a legitimate aim including the protection of public safety, order, health, morals or the rights and freedoms of others. Any restrictions should also be proportionate and necessary to the aim sought.
However, the restriction imposed by the child care facility on its employers could not be seen, as acknowledged by the Court, as stemming from a specific occupational requirement taking into account the tasks assigned to the employee and the working environment in which she operated.
Amnesty International is concerned about the recent declarations of the French President François Hollande, who argued in a TV interview on 28 March 2013, that new legislation was necessary to enforce the respect of “secularism” for employees in private child care facilities receiving public funds.
Amnesty International calls on French authorities to avoid the introduction of a general prohibition on religious and cultural symbols and dress in private child care facilities and to ensure that any restriction stems from a genuine and determining occupational requirement, in line with the interpretation of such notion given by the Court of Justice of the European Union. Amnesty International calls on the newly established observatory on secularism (observatoire de la laïcité) to fully take these principles into account when discussing the potential introduction of new legislation prohibiting the wearing of religious and cultural symbols and dress.
A bill aimed at imposing the respect of neutrality in private-child care facilities, structures hosting minors put under state protection and child-minders was adopted by the French Senate on 17 January 2012. The bill is currently pending before the National Assembly.
Article 1321-3 of the French Labour Code states that “internal regulations cannot restrict individual and collective rights and freedoms unless these restrictions are justified by a professional requirement and are proportionate to the objective sought”.
With respect to permissible restrictions to the rights to freedom of expression and to freedom of religion or belief, the Human Rights Committee, the body tasked to monitor the International Covenant on Civil and Political Rights (ICCPR) found that the request from an employer to wear a helmet did not discriminate against a Sikh mason who wanted to wear a turban in the workplace because the restriction to his right to freedom of religion was based on a legitimate aim, namely safety (Karnel Singh Bhinder v. Canada, no. 208/1986).
Restrictions on the rights to freedom of expression and to freedom of religion or belief can also be justified on the workplace if they stem from a genuine and determining occupational requirement, as established by the EU Framework Employment Directive (2000/78/EC of 27 November 2000) that France has transposed into its domestic legislation.
Amnesty International argues that a prohibition on wearing religious or cultural symbols and dress may for example be justified with regard to state officials such as law enforcement agents, public prosecutors and judges exercising potentially coercive powers of the state
The Court of Justice of the European Union pointed out in the case Wolf v. Stadt Frankfurt am Main (C-229/08) that a difference of treatment on a prohibited ground, age in that case, does not amount to discrimination only if stemming from a requirement for the specific occupational activities in question or for carrying them out.
The observatory on secularism has been established by the President François Hollande on 8 April 2012.
Last week marked the launch of Free Arabs, a new journalistic venture which aims to provide “democracy, secularism & fun” while “advocat[ing] secularism as what it is: institutionalized freedom of choice.”
“Millions of Arabs have internalized the notion that secularism is tantamount to faithlessness, and is all about demonizing Islam and promoting a dissolute way of life,” the editorial guidelines read. “This is certainly not the working definition for Free Arabs.”
While I have a few issues with that particular definition of secularism, as it locates secularism within a statist perspective, while ignoring both the historical contexts in which secularism as a concept was born and the rich history of Arab secularisms, I was intrigued. A space for secular Arabs to gather and provide analysis, satire, and commentary on Arab issues from a secular progressive perspective sounded promising.
However, within hours of the site’s launch, most of the responses I read on Twitter were scathing and seemed to pre-judge what on the surface looked like a welcome endeavor.
My first reaction was a mixture of hope and apprehension. While some of the listed contributors have a history of incisive, nuanced, and intelligent commentary, others associated with it do not. The title of the website bothered me as well: it seemed to imply that only secular Arabs were free.
Unfortunately, as I explored the website more thoroughly, my apprehensions solidified.
The website does not live up to its promise. In fact, I find much of its content damaging.
Indeed, within hours of the site’s launch, listed contributors like Mona Kareem (who blogs here at Al-Akhbar) had withdrawn. Other contributors, while critical of the content, defended their choice to participate.
The first issue I have is with the choice to publish most of the material in English – without any translation into Arabic. If the website is attempting to reach Arabs in the Arab world then it would be rational to expect that content be presented in the language of the target audience.
By choosing not to publish in Arabic, the website appears more interested in reaching a western or westernized audience, thus alienating the majority of people who it ostensibly ought to reach.
While the editors promise a future Arabic version of the website, the point remains that choosing to publish in English first, rather than launch both at the same time, is troublesome.
The other issues relate to the content. The website promises to open up new spaces for discussing secularism in the Arab world without demonizing Islam and Muslims. Instead, the content on launch was almost exclusively devoted to Muslim bashing and rife with contempt for religious Arabs, mocking them in crude and unimaginative terms that rely on tired orientalist fantasies, as well as flagrant misogyny and body-shaming. The overriding tropes about Muslims and Arabs signal that, unless one is a free Arab (that rare breed of enlightened westernized Arab), one is part of a culture that is inherently impervious to modernity.
The space that the website occupies is not a new space. Arabs are homogenized, their experiences and histories collapsed within a commonly heard orientalist perspective. Thus, we have “The Homosexual” (one of the website’s four contributors dubbed “Satan’s personal envoys to the Ummah”) arguing that the experience of homosexual men is uniform within the Arab world.
There is no depth or nuance to his “argument.” It reproduces the imagery of Arabs as inherently homophobic and does not take into account the important work of LGBTQ rights activists throughout the Arab world.
Another of “Satan’s personal envoys to the Ummah” is “The Jew,” who is an Israeli of Arab Jewish descent. He argues in his first piece that Arab Jews are the freest Arabs because he can write expletives directed at Israeli leaders. Ironically, that piece was published the same week Israel introduced segregated bus lines in the West Bank.
Maybe Arab Jews are the freest in that they are free of sitting on the same buses as Palestinians.
It is also interesting to note that the first piece that Free Arabs published touching on Palestine is from an Israeli perspective and that it reinforces notions of Israel as “the only democracy in the Middle East,” ignoring the oppressions of Palestinians, African immigrants, and Ethiopian Jews, to name a few. Palestine is arguably the most politicizing issue in the Arab world, and Arab secularism has a rich and continuing history within Palestinian resistance to Zionist settler colonialism.
However, that is completely ignored and instead Israel is represented as an island of tolerance and freedom within a sea of ignorance and bondage.
What Free Arabs promises to do and what it ends up doing are two very different things.
I attribute its failure to provide an intelligent and original perspective on secularism to the website’s editorial line, which is rooted within the ideology of liberalism rather than a progressive secular perspective. It is an ahistorical perspective that ignores the intersections of oppressions and problems faced by Arabs within the different contexts of their lives. It relies on taking the binary of religious/secular as pure and uncomplicated, and it sees this binary to be the central problem within the Arab world today.
An intelligent discussion of secularism in the Arab world that avoids orientalist tropes must begin by a thorough deconstruction of the concept of secularism in order to free it from its Eurocentric history.
Secularism as a concept was born within a particular set of European historical contexts. Arab secularism also has a long and complex history, which has not always been a positive one. Most Arab anti-colonial movements were secular. Islam and Christianity often informed that secularism, and those seculars saw no problem complicating the binary of religious/secular. The work of deconstructing and decolonizing the concept of secularism cannot be ignored.
Unless these serious issues, as well as many more that cannot be explored fully in this article, are addressed and rectified by the editors of Free Arabs, I cannot imagine this website providing anything positive.
The fact that most of the substantive criticism of the website comes from Arab seculars should tell the editors something about their failure to open a space where we feel comfortable residing.
Ali Hocine Dimerdji is an Algerian-Lebanese MA in Philosophy. He is interested in questions of secularism, feminism, and liberation politics, particularly in the Palestinian context.
The controversy surrounding the Islamic headscarf in France is making headlines again as the French National Assembly studies a draft law that will ban religious symbols in all facilities catering for children, including nannies and childcare assistants looking after children at home.
The draft law was approved by the French Senate with a large majority on Jan. 17 and it was sent to the National Assembly to be ratified before being signed it into law by the president.
“Unless otherwise specified in a contract with the individual employer, a childcare assistant is subject to an obligation of neutrality in religious matters in the course of childcare activity,” reads the text of the draft law introduced by Françoise Laborde, a senator from the Radical Party of the Left.
“Parents have the right to want a nanny who is neutral from a religious perspective,” the left-wing senator was quoted as saying by ANSAmed news agency.
Critics of the draft law say Laborde is targeting Muslim nannies and childcare assistants.
The senator said that she was “encouraged to act” after a private nursery, Baby Loup, fired an employee who refused to remove her Islamic headscarf.
In Oct. 27, 2011, the appeals court in Versailles upheld the decision to expel the employee as lawful.
“The recent ruling of the Court of Appeal of Versailles in favor of Baby Loup is in the right direction, and I hope that this case is translated into law,” Laborde said in December 2011.
Djamila, a childcare assistant, told Rue89 French website it is “absolutely not her role” to speak of religion with kids.
“We look after children of younger three years. Can you you tell me what can they understand at that age?”
An analyst in secularism, Jean Baubérot, wrote in a blog posted on the website Mediapart, that he was outraged by the brandishing of secularism in what he described was a law discriminatory against Muslims.
He accused the ruling Union for Popular Movement and the interior minister Claude Guéant of having torn secularism’s principle of “religious freedom” by reviving links between religion and the state while at same time cracking down on individuals’ links with religion.
Last week, Guéant, who is a member of President Nicolas Sarkozy’s Union for a Popular Movement, stirred controversy when he told a symposium organized by a right-leaning student group at the National Assembly that “contrary to what the left’s relativist ideology says, for us, all civilizations are not of equal value.”
He criticized the French Socialist Party for not having voted for a legislation that banned the Muslim face veil.
In March 2004, former French president Jacques Chirac signed into law the controversial bill on secularity and religious symbols in schools. The law banned wearing conspicuous religious symbols in French public, primary and secondary schools.
Although the law did not mention any particular religious symbol by name, it was widely believed to target the Muslim headscarf. It raised protests across many Muslim countries and prompted Islamist militants to threaten attacks against France.