A visibly Buddhist lawyer heads the Brussels Bar: The ban on religious symbols must go
Since last September, Marie Dupont has made history by becoming the first woman to hold the position of head of the French-speaking Brussels Bar (batonniere).
The 46-year-old Belgian lawyer was elected by her peers to lead the professional body and represent all its registered 3,600 members.
Most notably, Marie Dupont visibly wears a symbol of Buddhism. This is how she appeared during interviews with various national media outlets.
This is particularly striking given that the French Brussels Bar is known for its prohibitionist stance on the wearing of visible religious or philosophical symbols by lawyers, based on a concept of neutrality that is intended to be reflected even in their appearance.
For example, in 2009, the Bar rejected the request of a young lawyer who wanted to be sworn in and be allowed to plead before the courts wearing her headscarf.
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In Belgium, the lawyer's attire is determined by Article 441 of the Judicial Code and by a Royal Decree of 30 September 1968.
The former stipulates that “lawyers shall wear the garment prescribed by the King in the performance of their duties”, while the latter specifies that they shall wear a toga.
The legislation contains no prohibition on the wearing of religious or philosophical symbols by lawyers, which is treated identically in Belgian law and European law. It limits itself to requiring them to wear a toga.
As a consequence, a basic rule in terms of fundamental rights must be applied: everything that is not expressly prohibited is permitted.
However, article 1.4 of the Lawyers’ Code of Ethics of the French Brussels Bar provides for a ban: “Before the courts, a lawyer shall refrain from wearing a distinctive religious, philosophical or political sign.”
It is striking that a code of ethics restricts a fundamental freedom, in this case religious freedom, which is enshrined in both the Belgian constitution and the European Convention on Human Rights.
Moreover, the Lawyers’ Code of Ethics of the Dutch-speaking Brussels Bar, which brings together nearly 4,000 attorneys, contains no prohibition, and the freedom to wear a religious or philosophical symbol is au contraire reiterated in its opinion no. 619.
Lawyers and public service's neutrality
First of all, neutrality (or its synonymous, secularism or laicite) is a principle that applies to the state and therefore to public services. In practical terms, this means that public service providers must treat all citizens without bias or preferential treatment, in compliance with the principles of equality and non-discrimination.
The requirement of neutrality while carrying out public duties is therefore fundamental. A priori, we all want to deal with public service providers who are neutral in performing their duties, and who do not favour some over others, particularly based on their religious or philosophical beliefs.
A truly neutral appearance, free from cultural affiliation or any other form of affiliation (religious, philosophical, etc) does not exist
The crux of the debate is whether public service providers should be neutral (also) in their appearance.
The answer is no. First, a truly neutral appearance, free from cultural affiliation or any other form of affiliation (religious, philosophical, fashion-based, etc) does not exist.
What we have are only appearances subjectively presented as neutral against other appearances equally subjectively presented as neutral.
Perhaps the only exception is the nudity in which every individual was born, possessing no other identity attribute than that of belonging to the human species. However, using nudity as a criterion for neutral appearance leads to a dead end.
That is why we need to return to the only reasonable criterion (because it is controllable, verifiable and measurable): the service provided, and therefore the actions undertaken.
Public service providers who fail in their duty of neutrality may also be subject to disciplinary sanctions, the severity of which depends on the seriousness of the offence.
Besides, regardless of the conception of public service neutrality that one defends (acceptance of religious or philosophical symbols or their prohibition), a lawyer is not a civil servant but an adviser who defends the interests of a party to a dispute.
By definition, therefore, lawyers are not concerned by the debate on the neutrality of the public service and can therefore, in principle, wear the religious or philosophical symbols of their choice, including in the courthouse.
Those in favour of banning lawyers from wearing a religious or philosophical symbol also invoke as a justification that lawyers are subject to the principles of equality and independence and that they must avoid conflicts of interests.
However, these justifications are not relevant. Firstly, equality lies in the fact that every lawyer must wear a toga, which does not prevent them from also wearing a religious or philosophical symbol, provided that it does not cover the toga.
Secondly, independence means that lawyers are free to choose whom they represent and that they cannot be subjected to any pressure on the pretext that they represent a specific party. It is up to the lawyers themselves to decide whether they could face a conflict of interests when choosing to accept a case or not, particularly one with a religious or philosophical connotation.
A hoped-for change
Marie Dupont wears a philosophical symbol in public while carrying out her duties as president of the Bar. Some might argue that she does not wear it - at least not visibly - in the courtroom when she pleads.
That may be true. However, the key point is that she does not limit her choice to an intimate setting, out of sight. She wears it openly when representing all the French-speaking lawyers in Brussels.
By visibly wearing her Buddhist symbol, the new batonniere may be sending the message: 'Every lawyer is free, just as I am, to wear the religious or philosophical symbol of their choice at the Brussels Bar'
And even if she does wear it while pleading, this choice does not conflict with any of the principles a lawyer must uphold.
Given that the French Brussels Bar prohibits Muslim women lawyers from wearing headscarves, the appearance of the new batonniere raises the question of whether principles like neutrality and equality are being applied with a double standard, or if this represents a shift in its position.
By visibly wearing her Buddhist symbol, the new batonniere may be sending the following message: "Every lawyer is free, just as I am, to wear the religious or philosophical symbol of their choice at the Brussels Bar."
If this is indeed the case, Article 1.4 of its Code of Ethics for Lawyers should be amended without further delay. This change would be welcomed by upholders of a model of society founded on the broadest possible scale of freedoms.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.
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