The Take: On niqab and the law

Like the  hijab , its more liberal cousin, the  niqab  arouses controversy at every turn in modern democratic states – especially when it jars cherished institutions such as Parliament, the courts, or schools. 

In Toronto, in a case currently before the courts, a judge has ordered a woman testifying in a sexual assault case to do so without her niqab.

She protested, saying it was an issue of modesty and comfort – of Islam.

But Ontario Court Justice Norris Weisman ruled that it was more an issue of comfort than religious freedom, and that she must show her face.

THE REALIST

Saira Zuberi

Toronto-based minority rights activist

“This is one of those contentious things, because most people don’t actually believe it’s a requirement and there are those who actually believe that they have to do it.

“It’s like the case in the election (with voters having to unveil).

“It really ends up being a little bit of a tempest in a teacup. You’ve got this tiny percentage of people that it applies to; it’s minuscule. You’re talking about Muslim women voters who happen to also wear niqab who would actually refuse to identify themselves. This tiny percentage.

“And they’re not actually contravening the law, because there are thousands of people who vote by mail, who are not required to show ID.

“It just ends up being a lightning rod for those people who get angry because, `Oh, we’re making too many concessions for all these people …’ You know?

“I don’t think it’s a huge number of people who are asking for this.”

THE PRAGMATIST

Shahina Siddiqui

President of the Islamic Social Services Association

“There’s a law of necessity in Islam, where you can relax what your understanding of the requirements are.” If there are reasons of security or law, exceptions can be made, “and that’s why they (unveil) for driver’s licence, for passports and for crossing borders.”

“I’ve travelled with women who wear niqab and at airports they do remove it. And some will say, `Oh, can I do it in front of a woman attendant?’ And some don’t bother with that either … It can be done, even in Muslim countries. When they’re required to, they do it.”

Since the case on trial was a sexual assault, “For her, it’s her security blanket … I would say the judge should take that into account. And I don’t know if she’s an immigrant or a new refugee … As a social worker I always try to look at all the variables.

“I mean, it is a religious obligation, but in this case it’s also an added question of how secure she feels. But generally speaking, exceptions can be made. The issue is, is this that case?”

THE ETHICIST

Alia Hogben

Executive director of the Canadian Council of Muslim Women”It is not a religious requirement to cover your face. That’s put very simply. Some women do this because they think it’s more modest.

“It’s about modesty for both women and men – don’t flaunt yourself, dress modestly, etc.

“But the emphasis seems to have shifted, to focus on women rather than men. And a lot of women are interpreting it, or are having it interpreted for them, that modesty means covering yourself. That’s a personal choice a Muslim woman makes. It is not a religious directive.

“The judge sounds like he carefully considered it all and felt that it was important that her face be seen in court.

“When there’s been some sensitivity … they have done (testimony) in other rooms, particularly for children, instead of having to face the whole court….

“If this woman is frightened … then that’s another question … And that should be addressed, absolutely. But covering her face in an open court is not necessary.”

OTHER CASES

In the U.K., one magistrate stormed out of a Manchester court when faced with a veiled defendant and another judge adjourned because he said he could not hear a veiled Muslim lawyer’s muffled voice.

Soon after, in 2007, a judges’ advisory panel said judges should use discretion, and could choose other options – such as a live link or clearing the public gallery – instead of forcing a woman to unveil.

In Canada, without any veiled Muslim woman contesting election regulations, the niqab became an issue in 2007 among politicians, election officials and the media.

It surfaced again briefly in the election of 2008, when Canada’s chief electoral officer said a veiled voter would have to swear a special oath if she didn’t remove her veil.

Order to take off niqab pits law against religion

take off niqab 

A judge has ordered a Toronto woman to testify without her niqab at a sexual assault trial – raising the thorny issue of whether Muslim women should be allowed to appear as witnesses wearing a veil that covers everything but the eyes.

The issue is a collision of two rights, pitting religious freedom against the right of a defendant to face an accuser in open court.

The case could be precedent setting because it doesn’t appear there is any Canadian case law addressing the question of Muslim women in the courtroom. In Canada, home to about 580,000 Muslims, the case will be closely watched, amid fears about Muslim women coming forward in criminal cases.

In October, Ontario Court Justice Norris Weisman reached his “admittedly difficult decision” to force the complainant to testify with her face bared after finding her “religious belief is not that strong … and that it is, as she says, a matter of comfort,” he wrote in his ruling.

Lawyer David Butt is representing the woman and next month in Superior Court will argue that the Oct. 16 ruling should be overturned.

“For complainants in sexual assault cases, courtroom testimony is extremely difficult and often traumatic,” he said last week. “During such times of great anxiety the courts should respect religious rights and practices that bring comfort and sustenance, particularly when they do not undermine the fairness of the proceedings.”

When the complainant indicated last fall she wanted to wear her veil while testifying at the preliminary hearing, defence counsel told the judge that assessing her demeanour was of “critical importance” when tailoring questioning.

Weisman asked the woman to explain her objections.

“It’s a respect issue, one of modesty and one of … in Islam, we call honour,” she replied. “It’s also about the religious reason is to not show your face to men that you are able to marry. … I would feel a lot more comfortable if I didn’t have to, you know, reveal my face.”

The woman also said only her family sees her without the veil.

Butt, who was granted standing at the hearing last fall, argued the judge must consider the Charter which protects religious freedom when making his decision. Butt argued the accused can hear her voice and inflection, see the expression in her eyes and body language.

In his judgment, Weisman wrote “at the 11th hour we learned … she has a driver’s licence with her unveiled facial impression upon it.” She told court she took comfort the picture was taken by a female and there was a screen between her and potential male onlookers.But Weisman wrote the “driver’s licence can be required to be produced by all sorts of males,” such as police officers and border guards.

“In investigating just how important a belief this was, it came down to her candid admissions that it was a matter of her being `more comfortable’ and to me that really is not strong enough to fetter the accused’s rights to make full answer and defence,” the judge added.

Thanks to a publication ban and the nature of the charges, the names of the complainant and the two accused cannot be published.

Debate about Muslim women and head coverings has surfaced in recent years over girls wearing the hijab to play sports and whether voters must show their faces.

While Justice Weisman was asked to rule at the outset of the preliminary hearing, which is now on hold, the matter was put over and arguments in Superior Court are now scheduled for March 2. Defence lawyer Hilary Dudding will appear on behalf of one of the accused men. She declined to comment.

A relative of the woman said it’s distressing the judge has exceeded his “jurisdiction and ventured into the interpretation of religious laws concerning the veil, not to mention the fact that … (she) has observed the veil for many years in accordance with her” beliefs.

 

“This is primarily an issue of protection the court offers to victims of sexual assault – especially those from minority communities, who experience the added stigma of bringing these deeply personal issues into open court.

Alia Hogben, executive director of the Canadian Council of Muslim Women, said, in court “the laws of the country should be acceptable,” and although it is important that “sensitivity be shown … showing the face is acceptable.”

In the United Kingdom, a panel of judges drafted guidelines in 2007 that said Muslim women should be permitted to wear the niqab, as long as it does not interfere with the administration of justice, according to the Equal Treatment Advisory Committee of Britain’s Judicial Studies Board. “Such decisions, however, should be made on a case-by-case basis,” the committee said.

Forcing a woman to choose between taking part in a court case or removing her veil could affect her sense of dignity, exclude and marginalize her, the guidelines said.

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Calif. Muslim Denied Service at Bank over Hijab

 Muslim Denied Service at Bank over Hijab

 (WASHINGTON, D.C., 2/2/2009) – A prominent national Islamic civil rights and advocacy group today called on the U.S. Department of Justice to determine whether a California bank violated a Muslim woman’s civil rights when it denied her service because she was wearing a religiously-mandated head scarf, or hijab.

According to the woman, she was denied service Saturday at a Navy Federal Credit Union in San Diego, Calif., despite telling bank officials that she wears her head scarf for religious reasons.

In a statement, the bank said:

    “’In the interest of Security and Safety for our members and employees – hats, hoods and sunglasses must be removed when entering the branch office.’ Special consideration for cultural and religious garments is under the discretion of the branch management. Navy Federal is making inquiries into the recent incident.”

“Under this bizarre and discriminatory policy, no Muslim woman wearing a head scarf, no Sikh man wearing a turban, no Jewish man wearing a yarmulke, no Catholic nun wearing a habit, no cancer survivor wearing a scarf, no Amish woman wearing a bonnet, and no blind person wearing sunglasses may enter a Navy Federal Credit Union branch nationwide,” said CAIR-San Diego Public Relations Director Edgar Hopida. “We call on the U.S. Department of Justice to investigate this disturbing case and Navy Federal’s apparently unconstitutional policy and to ensure that the religious rights of all customers are maintained.”

Hopida said CAIR offers a booklet called “An Employer’s Guide to Islamic Religious Practices” to help corporate managers gain a better understanding of Islam and Muslims.

CAIR, America’s largest Islamic civil liberties and advocacy group has 35 offices and chapters nationwide and in Canada. Its mission is to enhance the understanding of Islam, encourage dialogue, protect civil liberties, empower American Muslims, and build coalitions that promote justice and mutual understanding.

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