Should a witness at trial be veiled if she wishes to be veiled?

Another controversy has erupted over the question of when Muslim women should be required to unveil themselves for public purposes — and once again we see the painful, inexorable problems that this retrograde social convention presents in a civilization where these women are expected to live a formally independent existence.

There is presently a criminal court case being heard in Toronto that has been put on hold until the court rules whether or not a Muslim woman witness can wears a niqab while testifying. A niqab covers a Muslim’s entire body except her eyes.

In most countries, an accused person is entitled to face his or her accuser when the accuser is testifying in court. By exercising that right, the accused can be sure that the person making the accusation is the one whom the accused allegedly victimized. Further, it gives a trial judge and a jury (if one is used) to assess the demeanor of the witness while giving testimony in court.

Two men accused of sexually assaulting the woman had their trials begin in June 2007. That being as it is, their lawyers are asking that the proceedings be stayed on the grounds that to proceed any further, would in fact be denying the men a speedy trial, that which is guaranteed under Canada’s Constitution.

The issue has landed in the lap of Ontario Superior Court Justice Frank Marrocco, who on March 2nd 2009 decided he will deal with the potentially precedent-setting matter on March 13th.

Last September, during a preliminary hearing in the Ontario Court of Justice, the woman told Justice Norris Weisman she did not want to remove her niqab when testifying. Defence lawyers for the accused men objected, saying they would be unable to assess "her demeanor."

After hearing her explanation, Weisman ruled he did not find her "religious belief ... that strong" and ordered her to remove the veil when she's in the witness box.

Various prominent Canadian Muslim women have recognized this practice by Muslim women, which is why they backed Ontario Justice Norris Weisman’s recent decision to require the key witness in a Toronto sexual-assault case to testify while she was uncovered.

The woman retained a lawyer who filed an application seeking to overturn Weisman's decision. Before March 2nd arguments, the Ontario Human Rights Commission took the rare step of trying to intervene in a criminal proceeding, arguing the lower court ruling was "inconsistent" with the law with respect to accommodating religious beliefs.

Hanging over the preliminary hearing, set to resume, is the spectre of the charges being dismissed if a judge decides there was unreasonable delay.

Morocco will hear arguments on March 13 on three points: whether an Ontario Court justice has the jurisdiction to consider such an issue; whether to grant the Ontario Human Rights Commission standing in the matter; the issue of whether the woman can wear her niqab.

It is not my purpose in this piece to deal with the issue of unreasonable delay but rather go directly into the issue of whether or not a Muslim witness should be permitted to wear a naqib while testifying in court.

The plain fact is that burqas and niqabs can only be considered normal in places such as Saudi Arabia, where women are subservient to men. They feel that there is never any need for females to exercise an independent human identity.

Unfortunately, multicultural societies — such as Canada proudly professes itself to be — must have tolerance for some social conventions that most of us deem offensive. Should this category include the veil? That depends how the veil is categorized.

If the veil is merely an accoutrement of certain cultures, non-Muslims have every right to expect our authorities to declare that we are not one of those cultures, and we can oblige its removal at certain times — at an electoral poll, in a driver’s-licence photo, in a courtroom and in other contexts where the wearing of a mask would be regarded as unacceptable.

The Muslim witness is defending her right of a Muslim woman to live as Muslims within her culture, and, by extension, her right to wear the veil except in certain fleeting instances such as seeing a dentist etc.

Many argue that the hijab is used as an instrument to control women's sexuality. There exist extremely negative attitudes, for example, which consider women who do not cover their hair as somehow "unchaste".

The hijab is forced on women in many countries under the influence of Islam, either legally or under cultural and social pressure. In States where women have no civil rights whatsoever and are treated as subhuman, forcing women to wear the hijab or a much more extreme dress code is clearly used to subjugate and humiliate woman.

The women of RAWA (Revolutionary Association of the Women of Afghanistan) stated:

"We will never allow the fundamentalists to define and decree what women should or should not wear. They have no right to impose the veil upon us. As far as we are concerned, we will NOT wear the veil as far as security and social discretion allow us, for we regard rejection of the veil as a symbolic form of resistance and defiance of the fundamentalists. To wear, or not to wear, the Islamic veil is a completely personal issue and no one has the right to interfere with this decision or impose the veil upon us".

Many Muslim women certainly wear the hijab out of their own free will and often resent being seen by western culture as oppressed victims. Some Muslim women in Western society say that for them wearing the hijab is an act of defiance in a world increasingly hostile towards and intolerant of Muslim people ---- that they wear the hijab as part of their Muslim identity despite the racist abuse they often get for wearing it.

Other Muslim women say that they wear the hijab for cultural and religious reasons and that the idea of modesty behind the head-scarf is not necessarily sexist; that they want judgment of their physical person to play no role whatsoever in social interaction.

The woman in the foresaid trial is maintaining that if she is forced to show her face at the trial, it will be in contradiction of her religious beliefs.

This is a very common misconception, as Quran (Koran) does not command wearing the veil (Hijab). Wearing the veil is a tradition and is only supported by the man-made books of Hadiths and Sunna. These books do not represent the words of God in the Quran and on many occasions contradict them.

The advice in the Quran that women should dress modestly is generally interpreted to-day as meaning that Muslim women should cover their head. Within the Muslim community, women are often judged on what they wear and the hijab is viewed as the measure of a woman's piety. Women are also advised to wear the hijab for their own protection against sexual harassment.

Since the Quran merely offers advice to women with respect to them wearing a haqib (veil), it cannot be used as justification for refusing to remove it during a trial as a witness because of one’s religion. All this posturing by Muslim women in Canada crumbles to dust in the face of this simple fact.

That being as it is, the witness in the pending trial should not be permitted to cover her face while giving testimony in court.

Our Constitution guarantees everyone religious freedom but even then, there is a limit. For example, a Muslim couldn’t force his way into a Christian church to preach Islamic teachings.

Muslim women in Canada and other Westernized countries have to accept the fact that when they come to our countries to live, they have to abide by our laws. They don’t have to accept all of our customs any more than any other person has too but there are some customs in our countries which cannot be abrogated and one of them is the right to face one’s accuser in court. That means; Muslim women should lift the veil when giving testimony as a witness.

UPDATE The Supreme Court of Canada decided in July 2009, that Huttites in Canada (and anyone else) cannot refuse to have the photos of their faces printed on driver's licences.