Thumbs up for niqab ruling
Dr Farzana Hasan, The Toronto Sun

The niqab is in the news yet again.

In a split decision, the Supreme Court of Canada has, in effect, ruled against the wearing of the niqab when testifying in most cases, citing the rights of the accused to receive as fair a trial as possible.

The court affirmed the religious rights of individuals, but asserted they will often have to defer to the more compelling right of the accused to a fair trial.

I had hoped for a unanimous ruling, with all judges declaring plainly that the niqab should not be permitted anywhere in Canadian courts of law.

However, it is still encouraging that the Supreme Court has favoured the integrity of the judicial process over so-called religious freedom.

That pious mantra of protecting religious freedom is disingenuous when used to support the niqab, and its proponents know this!

They are aware that no religious right is an absolute in a pluralistic society, where everyone’s rights must count and where rights can conflict with each other.

In this case, the Supreme Court was acutely aware that the integrity of our judicial process must trump religious rights.

One group that has welcomed the Supreme Court’s decision is the progressive Muslim Canadian Congress.

The MCC issued a statement Thursday lauding the Supreme Court’s report, noting that “two justices in their concurring decision said there was no place for the niqab in Canadian criminal courts under any circumstances.”

The MCC also applauded the four justices who ruled that: “Where the liberty of the accused is at stake, the witness’s evidence is central to the case and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance, favouring removal of the niqab.” The case that prompted this decision has now been returned to the trial judge for consideration, but of course it has much wider applications right across Canada.

It’s also relevant to the ongoing debate over the acceptability of the niqab in general.

Contrary to the claims of fundamentalist Muslims, the niqab not only impedes ordinary human interaction, but also marginalizes the wearer, obstructing her ability to perform daily tasks.

It also allows women to conceal their emotions. Behind the veil, it is impossible to tell whether someone is acting out of sincerity or spite.

In that context, sexual assault is a serious charge, but it can be hard to prove. It can result in wrongful incarceration, if testimony is untruthful, or tainted.

It would be a travesty for our justice system to be compromised in the slightest, for the sake of such an anti-social practice as wearing the niqab.

Thankfully our judges ruled to protect our justice system.

As Supreme Court Judge Marshall Rothstein wrote: “Wearing a niqab is not compatible with the principle of openness in Canadian courts and does not facilitate communication and interaction with all parties.” He also addressed the argument of multiculturalism, noting that, “While multiculturalism is an important part of Canadian society, its place is rooted in the political and legal traditions of the constitution and our democratic society.” Let’s hope his wise comments will pre-empt any major criticism of the court’s decision from the medievalists, who will no doubt oppose it.
Reader’s comments »

4 replies

  1. Over here in this ruling, only good thing is freedom of conscience and liberty and others should not dictate one about his/her rights. Judges must not take this right from one as it is the one country dignity and Canadians must preserve it because we are known for it in all over the World. Canadian Government should beware of it and such judges should be conditioned by conservatives and we should stand for it tall.

  2. The author seemed to have written this simply out of her bias against the niqaab, as she herself states:

    “…the niqab not only impedes ordinary human interaction, but also marginalizes the wearer, obstructing her ability to perform daily tasks.”

    Coming from a religious sect where it is very common to wear the niqaab, I can assure the author that the niqaab functions more as an empowering tool for women who wear it out of conviction, than anything else.

    In societies where women’s faces and bodies are mercilessly gawked at, a gown and niqaab are sheer blessing. And quite contrary to what the author wrote, this dress code facilitates daily interactions for the women who can walk around with more freedom; it only impedes unwanted gazes of men.

    Even in western countries, one only needs to pick up a magazine or watch TV to realize where a woman’s value has been placed. It’s her body and her face plastered all over.

    So it’s one thing to think it fine for ourselves but quite another to assume that women who choose to cover more than we are used to are being marginalized. Some of the most assertive and outspoken women I know are hijab wearers and niqaab wearers.

  3. Now for the author’s other point that the niqaab “…also allows women to conceal their emotions. Behind the veil, it is impossible to tell whether someone is acting out of sincerity or spite.”

    I am shocked at the astounding naivety of this suggestion. In a world where it is so easy to cheat and deceive, to make false accusations using fake emotions, to think that a woman with a veiled face would have a better chance of falsely accusing someone, than if she did not have her face covered is ludicrous to say the least. And that on top of the prevalent prejudice against the niqaab in this society!

    There is something wrong with a system that convicts a person on rape charges (or other crimes) based just on the testimony of the accuser. The more heinous the crime, the less heinous would be the act to falsely convict someone of it. This means one only needs to be a good actor to ruin another person’s life. Perhaps the author should try to fix this law, if this is the case.

    And in fact, to level the playing field perhaps everyone should wear a niqaab and speak through a voice synthesizer, since there is much more chance of a biased decision based on a person’s physical features, dress, race, religion, and acting skills etc., than there is if these elements did not interfere.

    This reminds me of the movie “A Time to Kill,” where the lawyer asks the all-white jury of the racist southern town to close their eyes to listen to his concluding statement, and after describing the series of atrocities, including rape, leading to the gruesome death of a young black girl, says something to the effect that, “Now, imagine that girl was white.”

    And after all, should justice not be blind?

    • Well said, especially the part about the prejudicial nature of our existing judicial system in regards to appearance, religion, gender and sexual orientation

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