Upon re-reading my post I’m going to mention first that the “State Council” and the “Constitutional Council” are two different bodies, in order not to confuse readers.
It’s a bit complicated. French courts have consistently refused to check the constitutionnality of laws voted by the parliament (even though they aren’t in theory barred from doing so, they don’t. They could change their mind, as they did with checking the conformity of laws with international treaties a couple dozen years ago, but I don’t see this happening).
To give a related example, French courts (and more specifically the “State Council”, the highest court for cases involving public authorities and their decisions) had consistently voided the attempts of individual schools to ban the muslim veil within their premises on the basis that such bans weren’t constitutionnal…until it was passed as a law by the parliament.
Now, there’s a constitutional court, but right now, it doesn’t receive any appeals, and can only be seized by the executive or a given number of MPs, right after the law is voted. To take again the example of the veil in schools, since all the political parties represented in the parliament were in favour of the ban, the Constitutionnal Council was never involved. So, no recourse for individual citizens.
Back to the burka. The proposed law about the ban of the burka was presented to the “State Council” (who acts both as a court and as an advisory body for the government regarding legal issues) by the government, and in its advice, it stated that such a general ban as proposed wouldn’t be constitutional (it probably would be been deemed constitutionnal if it had banned the burka in specific places for specified purposes or something similar). However, there’s no obligation for anybody to follow this advice, and the executive didn’t seem to care about this opinion.
Now, it happens that a constitutionial amendment has been voted allowing parties in a case to request the review of the constitutionnality of a law by the Constitutionnal Council, and this change will soon come into force. And if the ban is voted, I’m pretty sure that it will be challenged as soon as it will be possible to do so. Especially since the decision to accept or not a request for a review by the Constitutional Council will be up to the highest “regular” court, in this case the State Council, who, as I said before, doesn’t seem to like much the concept of general bans of veils and/or burkas.
However, I’m not sure how it will be handled for two reasons :
-The constitutional council reviewing the constitutionnality of laws in specific cases will be a complete novelty, so I’m not sure how it will handle that exactly.
-It is my opinion that the Constitutional Council is becoming more and more “politized”, in particular by appointing there retired politicians or similar people instead of highly experienced judges (as it seems to be the case in most other countries). Also, according to the constitution, former French presidents are de jure members of the Constitutional Council. Until recently, none of them actually sat in this court. But some years ago, two of them (previous president Chirac and Giscard d’ Estaing, president during the 70’s) changed the “custom” and became actual members of the Council (the Council normally has 9 members, and as a result now 11, so it’s significant), thus in my opinion compounding the problem. I’m not at all convinced that a former president (or more generally a former politician) will perceive the constitutional review of a law in the same way an experienced judge would.
By the way, two other comments :
The ban is highly popular, including amongst the french muslim population, even amongst recent immigrants, since most of the muslim immigrants in France came from countries were the burka has never been traditionnally worn, not many of them are very religious anyway (only 12% of the muslims regularly go to the mosque in France, for instance), and finally muslim religious authorities in France have a strong tendancy to distance themselves from the supporters of the strictest interpretations of the Koran/Hadiths.
Women wearing burkas are vanishingly rare in France (I live in Paris, and I think I see a burka in the street maybe twice a year or so), for the reason mentioned above (immigrants coming from countries where the burka isn’t worn). A significant part of women actually wearing it, as a result, are women (especially young women) who for some reason switched to very strict religious views and decided freely to wear it (not to say that there aren’t any woman who wear it under pressure from their husband. These exist too). I read recently an estimate of the number of women wearing a burka here, and though I can’t manage to remember the figure exactly, it’s in the 10 000 range (might be 5 000 or 20 000). So, aside from principles, I’m quite irritated by all the fuss going on here about a mostly marginal issue.
Anecdotically, during these debates, many people mentionned that individuals involved in criminal activities, like for instance bank robbers, could use burkas as a camouflage. This gave ideas to some, since for the first time, a hold-up by people posing as burka-wearing women took place in a post office some weeks ago.