Mirko Bagaric: Choice of dress serves freedom better than burqa ban

Australia has become embroiled in the debate about banning the burqa following a request by a female Muslim witness in a fraud case to wear the burqa while giving evidence. A Perth District Court judge will hand down a decision shortly.

From the wider perspective, the answer is clear. Burqas should be banned only if the women who wear them do so out of a sense of compulsion.

The stock-in-trade reasons that are given for banning the burqa are demonstrably flawed and are often no more than thinly veiled anti-Muslim rants.

There are no proven cases in Australia (or New Zealand) of criminals using burqas as disguises. Hence it is nonsense to challenge burqas on security grounds.

Facial expressions are important but not essential for meaningful communication. Books, the rise of talk-back radio and email conclusively demonstrate that you don't need to be staring at someone to understand them.

This equally applies to judging a person's credibility, even in court room situations.

Empirical studies repeatedly show that body language and facial expressions are poor indicators of veracity - normally they just evince stress.

The fact that some people find the burqa jarring or confronting is not in doubt. But what is beyond doubt is that personal liberty and the right to engage in self-regarding conduct trumps the overly sensitive dispositions of individuals who disagree with the fashion choices of others.

Still, we might be better off banning the burqa. Not because it is necessary for the community. Rather, the women inside them might need our liberation.

Paternalism is ugly, but uglier still is oppression - under any guise, whether it is religion or culture. Indeed, many Muslim women might say that it is their choice to wear the burqa but this is only the start of the inquiry.

As the Australian High Court noted in the recent decision of The Queen v Tang (the "slavery case") consent can be consistent, even with slavery. People sometimes choose to sell themselves into slavery but that doesn't mean that as a community we should tolerate the practice.

To get to the bottom of the burqa debate we need to understand what is driving the choices of the women under the burqa. If their choice turns out to be fully free and informed, society has no basis for imposing its whims on their dress code.

The circumstantial evidence, however, points to oppression as being at least one factor that influences women to wear a burqa.

Any extreme form of human conduct needs to be analysed closely. It is counter-intuitive to think that any free person would chose to erect a physical screen between themselves and the outside world.

The nature of the human condition is to pursue and engage in social contact and intercourse. It enriches life and recent studies show that it is even conducive to longevity.

Secondly, it is telling that 100 per cent of the people wearing burqas are women and that these women all come from a culture that has been shown to represses women.

None of these circumstances are of course decisive. The women under the burqa may be able to project rational reasons why they freely prefer the burqa to showing their face.

In conjunction with a study focusing on the influences on women wearing burqas, empirical data also needs be obtained to see if the lifestyle predicament of women wearing burqas is indicative of oppression.

Are a disproportionate number of women who wear burqas married - and hence have a potentially oppressive influence in their lives?

Do women who wear burqas have lower levels of educational and career attainments than other similarly placed women?

It is only once we find the answers to such issues that we can make a sensible and informed judgment about whether we should ban or restrict the burqa, as has been done in France, Turkey and Denmark.

Until then the debate will continue to consist of the emoting of the equally flawed politically correct and anti-Muslim lobbies. And during this debate, the default position is that the burqa stays.

The proper bounds of liberty were identified about 150 years ago by British philosopher John Stuart Mill.

He said: "The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant."

Ostensibly, Muslim women choose to wear the burqa. Unless empirically founded evidence is obtained to show that this choice is less then fully free, we need to respect their decisions.

At this stage, the bigger threat to our social cohesion is not the burqa but the calls to ditch it. Once the overblown sensitivities of others start constituting a basis for curtailing our freedoms, liberty in many forms will be lost.

* Professor Mirko Bagaric, of Deakin University, is author of Australian Human Rights Law.