Burka Banned in Portugal

Mohammad Alkhateeb

In The News

Never has a piece of clothing formed such a long-standing, contentious topic in law and policy. On 9 July 2026, Portugal has moved to ban the Burka[1] and Niqab[2]. The garment is associated with a highly restrictive interpretation of the Islamic faith, worn by a small minority of Muslim women around the globe.

There are political and theological debates regarding this issue, from debates in the realm of immigration, regarding integration and respect for the host country’s customs and values, to debates in Muslim communities and Muslim-majority countries. There, the Burka remains a contentious topic, as it is not a mainstream practice in Islam.

The recently passed law in Portugal ‘prohibits the concealment of the face in public spaces for reasons of security and public order’. As a matter of legislation, the Burka is a topic that balances competing, legitimate viewpoints surrounding morality, social values, but equally legal interpretation.

Constitutional Rights and the European Convention on Human Rights

The Portuguese Constitution[3] guarantees freedom of expression including ‘the right to freely express and publicise his (the citizen’s) thoughts in words, images or by any other means’ and the freedom of conscience, religion and worship. The European Convention on Human Rights (ECHR), which equally binds Portugal, offers protections of a wide array of rights, extending to the freedom of thought, conscience and religion. On first view, it would seem that banning the Burka is a violation of the freedom of thought, conscience and religion, because it represents a prohibition on an act rooted in one’s personal faith, albeit an extreme interpretation of the faith.

However, when such constitutional rights and freedoms guaranteed by the ECHR come into conflict with national policy objectives, the courts and other organs of the state are tasked with undertaking a balancing exercise: What is the harm exacted on the public by the wearing of the Burka in the public sphere, and on the other hand, what is the harm likely to be suffered by persons affected by the law, where their perceived rights and guarantees are removed by a newly passed law? This process leads to a possible declaration of incompatibility. A finding of incompatibility means that a given law or regulation does not comply with the rights accorded by the ECHR,[4] which may be a possibility with the new law in Portugal. This process unfolds in domestic courts in the first instance, but can then take place before the European Court of Human Rights.

Beyond the first impression when reading the legal development, the ECHR itself provides a framework for exceptions where a state, on the grounds of public policy, can limit some rights guaranteed by the Convention and enact laws or regulations which would ordinarily be seen as incompatible with the ECHR and the rights it provides.

Such deviations from the Convention, in the context of freedom of thought, conscience and religion, may be justified on the grounds of public safety, health or morals or the protection of the freedom and rights of others. This means that some limits can be placed on freedom of religion in order to protect public safety, health or morals or the protection of the freedom and rights of others.

Most individual and collective rights provided in the text of the ECHR, are accompanied by possible grounds for limiting such rights, with the exception of the prohibition of torture, slavery and arbitrary criminal punishment (punishment without law), which are absolute, unqualified rights.

A Violation of Human Rights?

Reasons often expressed in support of a ban, in debates surrounding the Burka and Niqab, go beyond the question of national security. In reality, there is little to no statistical evidence for the commonly expressed concern that the face covering presents a security threat. To adhere to the requirements of the ECHR, the security risks cannot be relied on to justify a burka ban, as the risk has not been demonstrated, meaning that the minimal, potentially non-existent risk of harm to public safety and security does not justify the limitation on religious freedom.

The most credible justification for the ban is the need for policy to protect the rights of others, and public morals, albeit a controversial, subjective and narrow interpretation of the latter. The garment conceals the wearer in her entirety, striking a common discomfort and a sense of peculiarity to the unaccustomed eye. It has been deemed as anti-social, archaic and a hallmark of religious fanaticism, incompatible with societies in which the ban is contemplated. This is particularly notable Portugal, where the Burka is a rare sight and largely distant from Portuguese social values and norms.

It would appear that the wearing of the burka is a visible exclusion of oneself from society, representing an oppressive theological approach to womanhood, and a reinforcement of visible inequality between men and women. With such a stark contrast between the person and the society they inhabit, as governed by said laws, a limitation on religious freedoms, particularly a narrow and extreme interpretation of the Islamic faith, becomes a legally sound measure which adheres to the social norms and values of the overarching society. Indeed, law must strive to remain in touch with society, and its norms and values, if it is to be respected and adhered to.

The opposing perspective, expressed vehemently in a publication by Amnesty International, argues that the concept of dictating to a woman what she is entitled to wear is a threat to freedom of expression and freedom of religion. This argument does indeed carry moral weight, but from a legal perspective, the purpose behind the new law has little to do with the imposition of clothing standards for women. Instead, it is a statement about subjective public morals and the freedom of others to uphold and protect the nature of their society, of which the wearing of the Burka, and its perception as archaic, oppressive to women, exclusionary and a symbol of religious fanaticism, becomes a severe transgression.

Final Thoughts

Ultimately, the debate surrounding the burka ban must be settled in every country based on its own interpretation of which aspect constitutes a priority in public morals and the rights of others: an enforced equality among all people and a rejection of the Burka and what it is deemed to represent, or a woman’s ultimate right to choose what she wears.

It is a near impossible debate to settle on the social and moral level, let alone for the purposes of law and policy-making. Regardless, a departure from a strict interpretation of freedom of religion will be justified, and it cannot be said that banning the Burka is, in any sense, a violation of the ECHR or of human rights law.

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[1]  The Burka is the full-face covering.

[2] The Niqab is a full covering where a woman reveals only her eyes.

[3] A Constitution is a legal text drafted as the foundational basis for all laws that govern the country. It governs the relationship between the state and the individual. It is usually a single document which outlines all the fundamental laws of the land, but in some cases, such as in the UK, the constitution is uncodified and therefore merely an amalgam of conventions, principles, and laws laid out in various statute.

[4] Right to life, right to a fair trial, prohibition of torture, freedom of expression…