Att bära eller inte bära slöja, en fri- och rättighet? - En undersökning av slöjförbudet och konstruktionen av den muslimska kvinnan

Sammanfattning: This essay is inspired by the debate in Sweden today, about whether a ban on veiling should be introduced in the Swedish preschools and elementary schools. With a criminal-law perspective, this essay examines motions filed by political advocates for a ban and evaluates the compatibility of their arguments to Nils Jareborg's and Claes Lernestedt's criminalization principles. Simultaneously, the essay investigates whether a ban on the veil, based on these arguments, is consistent with the freedoms and rights that are found in both regeringsformen (RF) and the European Convention on Human Rights (ECHR). The arguments which are being examined can be found in motions provided by political advocates within the political parties the Swedish Democrats and the Moderate Party. The leading arguments in these motions are that the veil is an instrument used to oppress women in order to sustain the family honor and that it sexualizes women and girls at an early age. The freedoms and rights that are being investigated are the prohibition of discrimination and freedom of speech and religion. In addition, the essay examines how the Muslim woman is constructed in the discourses regarding the veil in the motions from the political advocates of a ban and the European Court of Human Rights (ECtHR) case law. These discourses are then analyzed from a postcolonial feminist perspective. The conclusion is that an adoption of a ban on the veil, based on the arguments stated in the motions, seems to be incompatible with the criminalization principles. A ban on veiling is most likely incompatible with the guiding principle of ultimate ratio and the requirements for a clearly motivated interest and efficiency. Furthermore, the study finds that a ban on veiling is incompatible with the concerned freedoms and rights. In spite of this, the ECtHR has accepted the adoption of a ban on veiling in schools situated in countries such as Turkey and France. However, a ban in Sweden would not be compatible with the rights in ECHR, because the reasons invoked by the political advocates have not been that the Swedish society rests on secularism. Nor has it been argued that the ban is intended to protect the rights and freedoms of others. These are however the arguments that Turkey and France have invoked when their ban have been approved by the ECtHR. Moreover, a ban on the veil is not compatible with the rights in the second chapter of RF because the rights in RF are more extensive than in ECHR. For example, the right to manifest one’s religion is an absolute right in RF, which it is not in ECHR. Regarding the discourses that take place in the motions and the ECtHR’s case law, it can be distinguished that the Muslim woman is constructed to be, inter alia, a non-autonomous and oppressed individual who needs to be saved. The discourses, analyzed from a postcolonial feminist perspective, portrays the woman, among other things, as uneducated, religious and underdeveloped, while at the same time being subordinate to the man. The veil is also presented as a threat to Swedish values and western society.