By LSS member Sadikur Rahman *
It’s been a thoroughly busy few weeks for secularists and for the public airing of grand debates about the place of religion, specifically the niqab in British society and more particularly in the courts. So this blog’s a long one.
It’s well worth a read. In arriving at his decision he provides a very useful summary of the relevant case law on issues surrounding religious clothing and items, and the freedom or lack of to manifest one’s religion by wearing those clothing and items in schools, the workplace and public institutions.
Secularists will find things to cheer as most of the judgements whether domestic or European were found in favour of the rights of organisations and state institutions to restrict religious clothing so long as it is proportionate and necessary in a democratic society (see paragraphs 43-44 of the judgement).
It is also worth noting the Turkish cases in which bans on niqabs were challenged under the European Convention of Human Rights (ECHR), but were ultimately unsuccessful because the court recognised the state’s right to simply protect the ‘secular principle’.
A further interesting part of the judgement are the quotations from Islamic sources, which suggests that even in Islamic courts, when giving evidence, women must uncover their faces to the judge and other witnesses (see paragraph 22), precisely for the same sorts of reasons that the judge in this case gives. But this is nothing more than interesting background: quotations from Islamic sources or Islamic courts should carry no legal weight in a secular legal setting.
Some have argued that the judgement balances the qualified right to manifest one’s religion under Article 9A of the ECHR against the competing interests of justice in a criminal trial. The judge found that wearing the niqab (the defendant, not him!) whilst giving evidence would be unacceptable on the grounds that the judge and jury would need to ‘see’ the witness and her facial expressions to assess credibility, although he nevertheless then goes on to provide ways in which she can continue to wear the niqab perhaps in an attempt to show that the restriction is being used in a proportionate manner. The judge allows the defendant to wear the niqab during the trial, but restricts that right when she is giving evidence, and confirming her identity (though an accommodation was made so she could confirm her identity to a female police officer). When giving evidence she would have to show her face to the judge, jury and counsel. The judge goes further and states she can give evidence from behind a screen or via video link. She is allowed to keep her face covered whilst others are giving evidence, which is particularly worrying given how important it is to the jury to see the reaction of the defendant when others are giving evidence.
The decision is disappointing in that it seems to “bend over backwards” to accommodate a religious right. It is hard to see a judge giving a piece of clothing so much attention and thought if the claims of religion were not raised. However, given the possible current ambiguity in the law, the judgement may unfortunately reflect the current law and European rulings which do seem to emphasise that there can be lawful interference in the right to manifest one’s religion so long as the interference is proportionate i.e. only in limited situations and only then in a way which causes the least amount of interference. The question ultimately is: should the veil really be “accommodated” in a criminal trial? Or are there some circumstances where the veil simply is not appropriate or desirable?
The veil debate
The debate quickly left the confines of the courtroom and morphed into a debate about a ban on the niqab in public places. My view as stated in the previous post is that a public ban would be an unnecessary interference with the right to manifest one’s religion. However, this is something on which views differ amongst secularists. Most secularists I know do not like the veil and what it represents, and how it hinders communication and integration, but they differ on their views regarding what should be done, and what role if any the state should play.
Some claimed that the veil should be banned to protect vulnerable, weak, oppressed women. It is undeniable that many women are forced to wear the niqab. But most of us would accept that some women choose to veil. The question there is to what extent even free choices of individuals should be permitted. Many freedoms have limits: free speech, free association, even freedom itself (we can be imprisoned for breaking the law). Although freedom of belief is absolute, freedom to manifest belief is not.
Some tried to argue that under no circumstances at all should someone be expected to remove a piece of religious clothing, and also tried to see the debate as “racist” or “Islamophobic” and thought we had better things to worry about.
Some commentators, as usual, instead of debating the merits or otherwise of the niqab got worried about the reaction to the stories. Some carried out an exercise in torturous verbal gymnastics because although instinctively they must have thought the niqab is anti-women and discriminatory in itself, they didn’t want to say so for fear of offending Islam. See here.
Some thought that it mattered that many Muslims and Islamic scholars don’t view the niqab as a requirement for Islamic dress. I think this misses the whole point and is irrelevant to the debate, because ultimately the (free-choosing) niqab wearer does believe it is a religious requirement and it is her rights we are considering. And do we really expect all Muslims, or all members of other religions, to agree on everything? Who is the “authentic voice”? The loudest?
I feel the niqab has to be seen as something that goes beyond the ordinary type of religious clothing. it is not a head covering like a turban or hijab, or a piece of jewellery like a cross, but something that covers the face: the most fundamental tool we humans use for communicating. It is an item of clothing that so objectifies women solely as sexual objects that any employer, college or public institution seeking to ban it would probably be in the right – as some hospitals are now doing and should be supported in doing. See here.
It has also emerged this week that two schools in London have a uniform policy which means their pupils have to wear the full burqa, headscarfs and niqab.
This does raise some fundamental questions. Should the school be allowed to set its own uniform policy, as many think the Birmingham college ought to be allowed to do? Or should there be a campaign to stop these schools from forcing young girls to wear such clothing? In one instance we might be supporting the right of a college to set its own dress code and in the other case not. There is a contradiction there for us, but one which can be overcome by arguing for the secular principle to become paramount in educational institutions. To me it is abhorrent that young girls/women are being brought up believing that such clothing is required of them to protect their modesty in a public institution such as a school purely on the basis of religion. A secular country should protect young children from such extreme religious ideologies and it should have no place in schools.
In other news
There was another interesting news story about an outcry after it was discovered that a flu vaccine had pork gelatine in it.
This again raises interesting legal issues, both from a medical perspective and public policy. Maybe such a vaccine would be unacceptable to some conservative Jews and Muslims? Apparently there is no good substitute for the pork gelatine. Does this mean that this vaccine cannot be used in certain schools, and what does this mean for the protection of the children concerned?
Should we ask the scholars?
* Sadikur Rahman was an LSS member from May 2013 to Jul 2015
Views expressed are not necessarily those of the LSS.
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