Female lawyers say burqa law is unconstitutional

The Portuguese Association of Women Lawyers (APMJ) considers the bill banning burqas in public spaces unconstitutional, in an opinion submitted to Parliament along the same lines as those already submitted by the Superior Council of the Public Prosecutor's Office and the Portuguese Bar Association (OA). In itsopinion on Bill No. 47/XVI/1a, drafted by Chega, which was approved in general terms and moved to discussion in the specifics , the Association expresses its "repudiation" of the bill "because, under the guise of defending the secularism of the State and protecting the individual right to liberty and security, it seeks to impose restrictions on the exercise of fundamental rights." Three articles of the Portuguese Constitution are violated, the APMJ notes.

The document “fully” endorses the opinions of the CSMP and the OA: “That draft legislation blatantly and notoriously calls into question the right to personal identity and non-discrimination, provided for in article 26 of the Constitution of the Republic, and directly and clearly conflicts with the principle of religious freedom, provided for in article 41 of the Basic Law and in Law no. 16/2011, of June 22 – Law on Religious Freedom.”

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Citing the CSMP's opinion, the APMJ considers that "the way citizens present themselves in public spaces is part of their personal identity, constituting an expression of their individual autonomy and their right to the free development of their personality," and that "religious freedom is a right, liberty, and guarantee of a nature analogous to classical fundamental rights, enjoying, by its essential nature, increased safeguards." Therefore, these freedoms should only be limited "in cases expressly provided for in the Constitution, and restrictions must be limited to what is necessary to safeguard other constitutionally protected rights or interests.”

The ASMJ strongly criticizes the bill's Explanatory Memorandum, in which Chega representatives point out that "several European countries have adopted a ban, partial or otherwise, on obstructing identification through the use of burqas, niqabs, other Islamic religious attire, and other clothing that impedes such display." "The grounds invoked in the Explanatory Memorandum for the bill in question are dictated by a persecutory, security-oriented intent that offends individual freedom. Taken together, they exemplify hate speech, which is xenophobic and detrimental to the dignity of its target audience, and will only generate more violence not only against women but also against girls," emphasize the Mulheres Juristas.

In this way, the project “is contrary to the fundamental principle on which the Portuguese Republic is based, enshrined in Article 1 of the Constitution”: “Portugal is a sovereign Republic, based on the dignity of the human person and the will of the people and committed to building a free, fair and supportive society.”

"The Portuguese Association of Women Lawyers also fully endorses the technical-legal conclusions on the article under review, which, from this perspective as well, appears to be devoid of any merit. In conclusion, the Portuguese Association of Women Lawyers considers that the Bill under consideration is vitiated by substantive unconstitutionality, violating the provisions of Articles 1, 26, and 41 of the Constitution of the Republic," concludes the opinion sent to the Committee on Constitutional Affairs, Rights, Freedoms, and Guarantees of the Assembly of the Republic.