After school, sports, beaches and swimming pools, political Islam has found its next playground: the courts. In recent months, some bars in France have had to decide on the question of the wearing of the veil by female lawyers. Latest: Cherbourg, as reported by our colleagues from Figaro. Solicited by the National Conference of Presidents, the members of the Council of the Order of Cherbourg met behind closed doors to discuss the question of authorizing or not the possibility of wearing the Islamic veil with a lawyer’s robe, during hearings and their pleadings. The result of the vote, which is not yet known, was “ very tight “, also reports Le Figaro.
But this is not the first time, nor the first rung where the question arose. During the delivery of the “little oath”, which is done upon entering the school of lawyers, in Paris in January 2022, a young veiled student was asked to remove her veil. An instruction criticized by the person concerned, who had estimated on social networks to have experienced a ” nightmare ” and an ” humiliation “. In Lille, in June 2019, the members of the Council of the Order ruled for the prohibition of the wearing of religious symbols with the lawyer’s robe. According to them, “ the lawyer may not wear with the robe any decoration or sign ostensibly manifesting a religious, philosophical, community or political affiliation or opinion “.
An attack on religious freedom?
A decision against which a Lille lawyer, Sarah A., filed an appeal. The young woman indeed insists on being able to plead veiled, estimating with the Bondy Blog, that “ to say that we can part with everything that is personal to us is dangerous. There are plenty of things that are personal to us and that we cannot depart from: an accent, a level of language, a political or trade union commitment… “. Because if the subject is complex, it is because it questions the place and the nature of the profession of lawyer: auxiliaries of justice, who are not public officials strictly speaking (which would subject them to the law of 1905 and would decide the question) since they remain independent of the judicial authority.
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This appeal will have given the Court of Cassation the opportunity to rule on these cases, without making a decision in place of the various bars but by answering two questions: Is the council of a bar association competent to prohibit, in its rules of procedure, the wearing of any sign manifesting a religious, philosophical, community or political affiliation or opinion, with a lawyer’s robe? » and the deliberation of the Council of the Lille Bar Association « does it constitute an attack on freedom of religion and freedom of expression? »
The National Council called upon to decide
To these two questions, the Court of Cassation provided clear answers. Firstly, the Council of the Bar Association is competent in this matter, in the absence of specific legislative provisions, because it falls within the remit of ” regulate the wearing and use of the costume of his profession “. The councils of the Bar Association therefore have the “ power to modify its rules of procedure in order to prohibit the wearing of any distinctive sign with the lawyer’s robe “. As for the attack on the freedom of religion and expression, the highest civil court decides without ambiguity: by imposing the wearing of the dress, “ the Bar Council contributes to ensuring equality between lawyers and, through this, equality between litigants”a principle of equality which guarantees the right to a fair trial. This prohibition does not constitute discrimination “, declares the Court.
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It remains to be seen who must decide: each bar on its jurisdiction, at the risk of creating unequal situations between territories, or the National Council of Bars, the central body regulating the legal profession. “ We could have left it to the bars of France to decide each for themselves, but that would have been to ignore our raison d’être or, worse, to risk having to resolve the question under the pressure of a real case. declares a member of the National Bar Council to Figaro. Because, until now, the question has never arisen. The institution has therefore been working, discreetly and without haste, on the question since last June. Its decision should be made before the end of 2023.