Friday 25 September 2015

The Niqab Questions

First Question: What is a niqab?  It is a cloth that covers the hair and face (except the eyes) as a part of sartorial hijab. It is worn by some Muslim women in public areas and in front of non-mahram adult males, especially by Sunni Muslims in the Hanbali Muslim faith tradition. The niqab is worn in the Arab countries of the Arabian Peninsula such as Saudi Arabia, Yemen, Oman, and the United Arab Emirates.. The niqab is also worn in countries such as Somalia, Syria, Afghanistan, Pakistan, India, Bangladesh  as well as some parts of Palestinian-ruled territories, southern provinces of Iran. And of course, it is worn by Muslim women in other countries including Europe, the United States and Canada.                         

Second Question: Is it an Islamic religious requirement for women of the Sunni faith of Islam to wear the niqab? 

No. It is not. It is the custom of a great many Sunni Muslims that the women in their families must cover their faces and hair with the exception of their eyes when they are in public.

Third question:  Why must these women wear a niqab and a hijab, (a form of shroud) lower their gaze and be modest, and display of their adornment only that which is apparent, and to draw their veils over their bosoms, and not to reveal their adornment except to their own husbands or fathers or husbands' fathers, or their sons or their husbands' sons, or their brothers or their brothers' sons or sisters' sons? 

The main reason is that the husbands and other male members of their families don’t want other men to look upon their women in a licentious manner. The stipulations of the hijab were originally meant only for Muhammad's wives, as they were intended to maintain their inviolability. The Qur’an didn’t say that the stipulation applied to other women.

The only advantage these women have in covering their faces when they are outside is that the sun will never reach their faces and thusly, they will have less wrinkles on their faces as they age. The disadvantages are far greater. First, they will not get the Vitamin D that the sun provides and second, their faces and scalps will sweat profusely covered up like that, especially when they live in areas of the world where the sun is very hot.

Fourth question: Should there be a ban on women wearing the niqab and hijab when they are in the public in westernized countries?

No. They have a right to wear the niqab and hijab if that is their desire and is also their custom.

Fifth question: Should they be permitted to wear the niqab when driving a car?

No. they should not. Doing so would restrict their views of what is going on around them and also restrict the sounds they should hear such as horns of other cars etc.

Sixth question: Should they be permitted to go into a bank with their faces covered?

Yes. It has been only on rare occasions that a bank robber would rob a bank wearing both the niqab and the hijab as it would restrict their abilities to run away.

Seventh question: Should they uncover their faces when photos are being taken for driver’s licences, health cards and passports?

Absolutely! To suggest that they should be able to have their faces covered when being photographed for those above mentioned items is ludicrous.  

Eighth question: Is there a danger that a terrorist will disguising himself or herself by wearing a niqab and a hijab?

Of course there is but suicide bombers can easily disguise the fact that they are carrying a bomb with them without wearing a niqab or hijab as a disguise. Further, it is academic if anyone recognizes them after their suicide bombs go off.

And now I am going to give you two really difficult questions to consider.

Ninth question: Should a Muslim woman testifying in court be permitted to wear a niqab when giving her evidence?  How should the state respond to a witness who’s sincerely held religious belief requires her to wear a niqab that covers her face, except for her eyes, while testifying in a criminal proceeding?  Keep in mind that wearing a niqab in public is not a command found in the Qur’an but is only a custom of Sunni Muslims.

Some will say that the justice system should respect the witness’s freedom of her religious belief (even if it is only a custom) and always permit her to testify with the niqab on.  In my view, both of these extremes must be rejected in favour of a third option: allowing the witness to testify with her face covered unless this unjustifiably impinges on the rights of the accused’s to a fair trial. For example, an independent witness may wish to testify that the woman wasn’t in a certain house when she was raped but he can’t identify the witness on the stand if she is veiled.

Further, an accused can demonstrate that the witness’ face is directly relevant to the case, such as where the witness’ identity is in issue.  In such cases, seeing the witness’ face is central to the issues at trial, rather than merely being a part of the assessment of demeanour.

However, in my opinion, a jury should be able to see the woman’s face when she testifies since facial expressions on one’s face may give the jurors some idea as to how the witness reacts to certain questions. However, although the ability to assess a witness’ demeanour is an important component of trial fairness, many courts have noted its limitations for drawing accurate inferences about credibility. Now if a Muslim woman is a professional testifying as an expert witness, it isn’t necessary that the jurors see her face.

If a witness at a criminal trial can testify with her face covered, it may render a trial unfair and lead to wrongful conviction.  The protection of the rights of the accused takes precedence over a Muslim woman’s religious belief that she can keep her face veiled when testifying against the accused.

This issue finally ended up in the Supreme Court of Canada in December 2012. The majority of the court agreed with Chief Justice McLachlin when  he wrote in his decision;

A clear rule that niqabs may not be worn would be consistent with the principle of openness of the trial process and would safeguard the integrity of that process as one of communication. It would also be consistent with the tradition that justice is public and open to all in our democratic society. This rule should apply at all stages of the criminal trial, at the preliminary inquiry as well as at the trial itself. Indeed, evidentiary issues arise and evolve at the different stages of the criminal process, and they affect the conduct of the communication process taking place during the trial.” unquote 

The Supreme Court remitted the matter to the judge presiding at the preliminary inquiry, the stage at which this particular case had remained bogged down for years as a result of the incidents that the Supreme Court was trying to resolve. I don’t know what happened in that lower court but if the lady refused to remove her veil when testifying, the case against her attackers would be dis missed.

Tenth question: Should a Muslim woman wearing her niqab participate in her citizenship swearing ceremony?  

The Muslim woman I am writing about Ms.  Ishaq, is a permanent resident in Canada who is eligible to become a Canadian citizen. However, she (like everyone who applies for citizenship in Canada) cannot be considered to be a citizen until she takes the oath of citizenship. Let me tell you that procedure by describing it by telling you about what my Japanese-born wife went through the procedure 37 years ago. It is a two-step procedure. The first step is a meeting with a citizenship judge.

My wife was called into the judge’s chambers and seconds after she entered, the judge’s secretary came out and said to me, “Mister Batchelor. His Honour has asked me to invite you into his chambers to sit beside your wife.” I previously asked his secretary if I could and she said that I couldn’t. When I got inside, the judge said, “I am pleased that you wish to sit next to your wife, Mister Batchelor.” I thanked him.

Every applicant is asked by the judge ten questions relating to Canada. My wife did her homework and speaks and reads English with no difficult so she had no trouble answering the first nine questions. When it came to the tenth question, she couldn’t answer it. The judge could see that she was in distress so he smiled at her and said softly, “Don’t worry my dear. I once had a problem with that question also.” He then congratulated my wife for passing the test.

About a week later, she attended the citizenship ceremony. I sat with the other family members attending the ceremony and saw my wife and approximately fifteen other applicants sitting on chairs to our right facing the judge’s bench. Then the judge came in followed by his secretary and a member of the RCMP officer wearing his official uniform with the red tunic.

The judge gave a speech about Canada and congratulated the applicants for choosing to become Canadian citizens. He then asked the applicants to raise their right hands, which they did. He then read the oath line by line, pausing between each line so that the applicants could recited the lines after he did.  The oath is as follows;

“I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.”

When the oath was repeated by the applicants, the judge then said, “I congratulate all of you as you are now Canadian citizens.” Then each applicant’s name was called out and they approached the judge who was standing in front of the applicants. He congratulated them personally and handed them their citizenship papers. None of the applicants wore a niqab covering their faces, however that was 37 years ago. Later they all received their citizenship ID cards sent to them by registered mail.

While applying for citizenship in 2013, Ms. Ishaq had agreed to unveil herself to an official before taking the citizenship test. But she refused to removing her niqab at the public swearing-in ceremony. She said that she will unveil herself to a stranger only if it is absolutely necessary to prove her identity or for purposes of security, and even then only privately in front of other women.

In the Federal Court, Ms. Ishaq challenged the government’s policy on a number of grounds, including freedom of religion and equality rights under the Charter. She also said that government policy requiring her to remove her niqab while giving the oath of citizenship; is against her religious beliefs that obligates her to wear a niqab. 

There is a difference between one’s religious beliefs and religion itself. For example, if a person believes that the tree in his back yard is his god, then that is his religious belief. It doesn’t mean that his belief is part of a religion. Ms. Ishaq believes that the Sunni Muslim requirement to wear her niqab when she is outside her home in public is her religious belief. It doesn’t mean that her religious belief with respect to wearing the niqab in public is part of the Islamic religion since there is nothing in the Qur’an stating that it is a requirement.

The judge in the federal court finally said in his decision; “The respondent’s (Ms. Ishaq) equality rights claim is based on two enumerated grounds under section 15 of the Charter, religion and gender. One intervener suggests that this Court ought to tweak the test for an infringement of freedom of religion by giving greater emphasis to the subjective belief of the Charter claimant. That avenue is not open to us.  

The judge said that she had the right to wear her niqab while attending the citizenship ceremony as the ban to do so was unlawful. The government appealed to the Federal Court of Appeal.  That court refused to hear the matter.  Denis Lebel, Stephen Harper's lieutenant in Quebec, said during a morning news conference in Trois-Rivières, Quebec, that a re-elected Conservative government would reintroduce legislation within the first 100 days to ban the niqab during citizenship ceremonies.

My own views on this matter:  In my respectful position, I believe that both courts are wrong in their decisions. My reasons are as follows;

Consider this: If a monk who had taken a vow of silence, would a judge be affording the monk his Charter Rights and Freedoms by forcing the monk to betray his vow? And what if a person is physically incapable of saying the oath and cannot be heard taking it? Would he be denied citizenship because he can’t speak?  The answer to these two questions is no. The judge can ask them to mouth the words. Obviously, judges have discretion to find ways to assist persons who are unable to speak.

But does a judge have the discretion to permit a Muslim woman to cover her face with a niqab when she is giving the oath simply because she thinks that her religious belief is a religious right when in fact, her religious belief is not a religious right?  It is an old custom that goes back centuries and is enforced by male Muslims so that their women won’t be gazed upon by other males that are not part of their families.  

Quite frankly, I personally think that custom is long outdated and is a form of abuse thrust on these unfortunate women who are forced to wear the niqab when they leave the confines of their homes. I think it's entirely reasonable to ask, for those 30 seconds, that people proudly demonstrate their loyalty to Canada without a niqab covering their faces during that 30-second moment in the ceremony.

The prime minister of Canada has spent $250,000 preventing law-abiding immigrant (Ms. Ishaq) from becoming a Canadian citizen. Is it a waste of money? I don’t think so.

When immigrants come to our country to live, it is with the understanding on their part that they will abide by our laws. Isn’t it a bit hypocritical to refuse to obey our law pertaining to the citizenship ceremony when they intend to swear an oath that they will obey the laws of Canada? The citizenship ceremony is a public declaration that immigrants are joining the Canadian family and it must be taken freely and openly.

Admittedly, in an open and democratic society like Canada, individuals are free to make their own decisions regarding their personal apparel and to adhere to their own customs or traditions of their faith or beliefs.

But there are limits. For example, no-one could wear a sweatshirt with the words, MUSLIMS. GO HOME. That is because it is racist. To wear such a sweatshirt in public would invite a disturbance on the street which in itself is a crime. No-one can expect to get a job as a bank teller wearing a niqab since banks want their tellers to show happy faces to their customers. No-one is expected to get a passport with their faces covered in a niqab. 

I think the vast majority of Muslim Canadians do not believe that the public declaration of their loyalty to their fellow citizens should be obscured or hidden.

While the niqab ban was popular in some parts of Quebec, both the federal New Democrats and Liberals have come out against it and with the Conservatives having introduced it in the first place, it is a given that whoever wins the October election will bring in legislation banning of the niqab being worn in citizenship ceremonies.

Ms. Ishaq has stated that she will show her face to citizenship officials ahead of the ceremony. She would have to do that so that the officials can compare her face with her passport she used to come to Canada. But if she is willing to do that, why can’t she uncover her face for 30 seconds it takes to take the oath?

Some people including Muslims have said that Ms. Ishaq should show her face because public opinion demands it. What if the public favoured anti-Semitism or racism? Should she also agree to that also?

The ban on the niqab was imposed in 2011 by Jason Kenney, then minister of citizenship, despite confidential warnings from his department that it won’t stand in court. Two courts did say that the ban is unlawful. That doesn’t necessarily mean it is unlawful. The Supreme Court may say it is lawful. If they say it is unlawful because it wasn’t a law passed by Parliament, then the government can put it to Parliament and if it is passed by Parliament it will then be lawful.

Ms. Ishaq could then appeal to the courts again but if the courts recognize that her wearing the niqab is a custom and not a religion, then she has two choices left to her—remove her niqab when reciting the oath of citizenship or remain a non-citizen of Canada for the rest of her life. As a resident of Canada only, she will not be given a Canadian passport. That means that she won’t be able to travel outside of Canada unless she applies for a passport from the country of her birth which obviously wasn’t Canada.

The real concern I have is that if the Supreme Court finally states that Muslim women wearing a niqab during the swearing of an oath in a citizenship hearing is permitted, then what is next? It is conceivable that other laws will be whittled down until all that is left is meaningless slivers of wood.

When Parliament passes a law, the courts can only declare it unlawful if it conflicts with the rights and freedoms guaranteed to everyone in Canada as set down by the Charter.  If wearing a niqab during the swearing of an oath at a citizenship ceremony was a religious requirement, then this lady would have the right to wear it when she takes the oath but since it is a custom, then that is something else. However, I am not going to second guess the decision of the Supreme Court of Canada.
In closing, I want to ad the following comment;

When anyone from another country chooses to join the people of Canada as citizens, we expect them to adhere to some degree to our customs. There are times in our open, tolerant, pluralistic society when we must accept the fact that we have to obey our laws even if we don’t like them.

Canada firmly defends the rights of everyone in our country but this doesn’t mean that everyone’s customs can conflict with the laws of Canada and the good of our nation. Immigrants entering our country for the purpose of making it their permanent home have to accept this fact—especially if they wish to become a Canadian citizen. 

UPDATE: November 17, 2015.  The new government of Canada has decided not to appeal the decision of the Federal Court of Appeal so Muslim women can cover their faces during the citizenship ceremony. 

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