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Posts Tagged ‘Niqab’

The Canadian government has (finally) decided to lay to rest its plans to introduce legislation that would force women who wear niqab (fabric that covers their faces) to show their faces when voting.

This comes as a relief, not so much because of the actual legislation, but because of the amazing amount of misinformation that has surrounded the discussions – both in the media and in political spheres – about this issue for the past couple years.  Chris Selley’s recent National Post blog article about this topic does a good job of exploring some of the misconceptions that arose in these discussions.

Proposing two main reasons for why the legislation was dropped, Selley first emphasises that “there is very little of a problem here to solve,” and tells us that  “According to Elections Canada, not a single elector attempted to vote with her face covered in the last federal election.”  Although, of course, the potential for someone to attempt to vote with their face covered in the future still exists on a hypothetical level, I think this point, as well as the fact that only a very tiny proportion of Canada’s population wears niqab, makes it pretty clear how much the panic around this issue has been totally blown out of proportion.

Selley’s second point is that:

either our government never had any intention of actually banning veiled voting, or it is so spectacularly inept that it couldn’t figure out how to do it. Indeed, it is very important to realize that at no point in this saga has legislation ever been proposed or enacted that would, in fact, force every voter’s unveiled face to be matched with a piece of photo identification.

Although the current legislation regarding voter identification was apparently supposed to make the requirements more stringent, one thing that it did not do was to require photo identification.  Voters must present either one piece of photo identification with their home address, or two pieces of identification that list the voter’s name, including one that also includes the voting address, or the voter can have another registered voter from the same riding vouch for them.  Note that only the first option necessitates a visual identification.  Moreover, thousands of voters vote by mail every election; none of them are asked for any photographic verification of their identity.  If Canada’s politicians are truly concerned about voter fraud (which is usually the main stated reason for wanting voters to show their faces), surely there are more effective ways to address this issue than to go after voters whose faces are covered.

Chief Electoral Officer Marc Mayrand said publicly in 2007 that, according to existing legislation, there would be no point in forcing voters to show their faces, since visual identification was not a requirement; however, as Selley points out, the lack of photo requirement seemed to go right over the heads of some of Canada’s politicians:

“We just adopted this spring… a law designed to have the visual identification of voters,” Prime Minister Stephen Harper fumed. “That’s the purpose of the law,” he added, astonishingly.

Not satisfied with his boss’s gaffe, Tory MP Joe Preston—a real live member of the committee that OKed the legislation, apparently without having read it—then upped the ante. “I’d love for [Mayrand] to come here and try to explain to us what he doesn’t understand,” he said, causing numerous heads to explode in the few Canadian newsrooms that actually noticed what was going on.

(Having felt like my own head was going to explode at a few points while researching this issue for both blogging and academic purposes, part of me feels a little bit gratified that at least I’m not alone.)

Selley writes that even the proposed new legislation would not have actually changed the documentation required to prove a voter’s identity:

It would simply have required that voters show their faces whilst presenting the ID, photo or otherwise.

As I said at the time, the concern was that a veiled woman could provide photo ID but not have to show her face, rendering the photo ID pointless. And the proposed remedy was to allow a veiled woman to provide non-photo ID but force her to show her face, rendering the unveiling pointless. Pointless, that is, if the goal was actually to ensure Canadians’ unveiled faces are matched with photo ID before they vote. Unfortunately for all of us, the goal was nothing more than to capitalize on a hot-button issue.

The last sentence of this quote – that the panic around this topic was less about actual worries about voter fraud than it was about “capitaliz[ing] on a hot-button issue” – highlights, for me, the most disturbing part of this whole thing.  I followed a lot of the media hype around it in the fall, and much of it seemed to be from people worried that Muslims were taking over Canada’s political systems and forcing Elections Canada to allow them to vote with faces covered, despite a total lack of evidence that any of this was coming from Muslims, as well as the fact that the absence of a requirement of photo identification was part of the existing laws and not some concession being made to Muslim communities (who, again, had not even asked for any such concession.)  The comments on some of the news articles were even worse; women in niqab were portrayed as dangerous and untrustworthy, and as a foreign threat, despite the fact that, as voters, the women in question are necessarily Canadian citizens.

To be honest, if photo ID was required for all voters, I probably would not have a problem with everyone being required to actually show their faces in order to confirm their identities (although I would hope that this would be done in conditions that everyone would be comfortable with.)  However, considering that this is not the case, and that the hype around this issue has only served to paint Muslim Canadians as threatening and as non-Canadians, I am, like Chris Selley, “thrilled to see this ugly chapter in Canadian politics closed.”

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I wrote a little while ago about the media coverage of the Toronto sexual assault case in which the female complainant was ordered by the presiding judge, Justice Norris Weisman, to remove her niqab while testifying.  At the time that I posted my earlier article, hearings were underway in Ontario’s Superior Court to appeal the judge’s decision requiring her to testify with her face visible.

Last week, the decision of this latest hearing was released, and made its way through Canadian media.

The ruling is far from clear-cut, and will likely result in even more hearings.  In short, as I understand it, the Superior Court Justice, Frank Marrocco, ruled that it is indeed within Weisman’s jurisdiction to ask the complainant to remove her niqab.  However, he also dismissed Weisman’s original decision, ruling that it was made without sufficient consideration of the issues involved, regarding both the complainant’s religious beliefs and the implications of her face covering for the court case.  In other words, although he does have the hypothetical authority to force her to remove her face covering, if need be, the decision that the removal of the niqab in this case was necessary may not have been the right one, and needs to be re-examined.

From my not-a-legal-scholar perspective, this decision seems to make sense.  It allows for the trial judge to step in if they truly feel that justice will be obstructed, but also emphasises the rigourous scrutiny that needs to be exercised in order to make that call.  It will be interesting to see what kinds of precedents this might set, and whether appropriate attention is actually given in practice to religious and cultural concerns, but the decision seems to respond (at least in theory) to some of the issues raised by both sides, in terms of religious freedoms as well as due process.

Not surprisingly, the articles reflect a range of perspectives.  The National Post, which has been the most anti-niqab throughout this whole story, uses the headline “Wearing veil on stand not a right: ruling,” emphasising that certain forms of religious expression through clothing do not have to be respected in all circumstances.  Others are more sympathetic towards the complainant, such as a CTV piece whose headline refers to the “Partial court victory for Muslim woman over niqab.”

The article that most disturbed me was the one published in the Globe and Mail, which starts off with:

Should a devout Muslim be allowed to testify in a Canadian criminal trial with her face concealed?

Perhaps, a court ruling has suggested.

But much hinges on how devout she really is.

It would be easy to take from this article that devoutness can be measured by someone’s commitment to covering their faces, which is somewhat off-putting for the majority of devout Muslim women, who do not niqab.  Moreover, the idea of measuring a person’s religious devotion at all is rather alarming.  Later in the article, we are told that

the judge ordered that the preliminary inquiry – on hold since the issue surfaced – convene two hearings to determine whether the woman’s beliefs are sincere, and if they are, whether testimony from a veiled witness would be admissible as evidence.

Again, allowing a court to decide the sincerity of a person’s religious beliefs – particularly, although not only, in a case where those conducting the hearings likely do not share this person’s beliefs – is hugely problematic.  Moreover, it is not simply the depth of her devotion that should be considered, but also the reason for that belief and the potential impact of forcing her to remove the niqab, among other things.  It is difficult to tell whether the language around judging the complainant’s beliefs came from the verdict itself or whether it was the journalist’s interpretation of the judgement, but the idea is disturbing either way.

Interestingly, the Globe article identified the woman as “a Canadian-born mother in her early 30s,” which is more biographical detail than has been provided up to this point.  The phrase “Canadian-born” (rather than simply “Canadian”) is fairly often used to indicate a perception that someone is not a “real” Canadian; whether or not the journalist used it intentionally in this case, there is definitely a difference between the phrase that was used and “a Canadian mother in her early 30s.”  At the same time, the idea that she is Canadian may come as a surprise to those who, upon reading of this case, have repeatedly expressed fears that Muslims (whom they assume to be immigrants) are coming here for the purposes of challenging Canada’s laws and political systems and should all be sent home.  The people reacting in those ways almost certainly do not consider that “home” could be Canada itself, as appears to be the situation for the complainant here.

It seems this case will continue to develop, and will continue to make the news as further decisions are made.  We’ll keep you posted, inshallah.

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This post was originally published on Muslimah Media Watch in early February.  I’m cross-posting it here because it was in the news again last week (see the bottom of the post for an update.)

A Toronto judge has recently ruled that a complainant in a sexual assault trial – who happens to wear the niqab, a face-covering worn by a small percentage of Muslim women – will have to uncover her face in order to testify.  According to this article,

The judge, Ontario Court Justice Norris Weisman, determined he had the jurisdictional authority to make that ruling under the Canada Evidence Act, because it involves the manner in which the woman is to give testimony, the fundamental right of a defendant to make “full answer and defence” and the “traditional right” of an accused to face the accuser.

The decision will be challenged at the Superior Court of Ontario next month.  There is a publication ban on details from the case, including the names of those involved, so most of the discussion happening about this is taking place without a whole lot of information.  (Interestingly, one journalist has suggested that some of the information that she is not allowed to publish has made her think differently about the judge’s decision.)

The story hit the news this week, and not surprisingly, it didn’t take long to turn into an issue of “law against religion,” a “collision of two rights,” where Muslim women are painted as not quite compatible with Canadian society and legal systems.

Where to start?  Well, first, it’s worth looking at the judge’s rationale for his decision.  This article tells us that:

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.

This decision was, apparently, based on the complainant’s statement that “It’s a respect issue, one of modesty and one of … in Islam, we call honor […] I would feel a lot more comfortable if I didn’t have to, you know, reveal my face.”  The judge also talked about learning “at the 11th hour” that the woman had “a driver’s license with her unveiled facial impression upon it.”

Although I don’t personally share the complainant’s opinions on niqab, I’m disturbed by the judge’s presumption that he had the authority to draw conclusions on her religiosity and on the religious and personal importance of the niqab to her.  Moreover, the idea of religious “comfort” – whether or not niqab is seen as a religious obligation – should not be brushed aside, especially in a case dealing with sexual assault.  I’m also concerned that the language around the “11th hour” revelation makes it sound as if the woman was being purposely deceitful and attempting to manipulate the court into allowing her to testify with her face covered.  There might have been decent reasons for forcing the complainant to show her face (although I would likely still disagree), but making a decision based on judgments about her religious commitment seems really inappropriate.

While the niqab side of the equation has, of course, received a lot of scrutiny, news stories have reported comparatively little analysis from the trial about the other side of the issue, that is, the right of the accused to “face” their accuser.  I’m no legal scholar (and if any of you are, please jump in here!), but I have to wonder to what degree this provision was ever meant to refer to a literal “face,” and whether it has more to do with being able to confront one’s accuser in person (regardless of how much of that accuser’s skin is visible.)  According to one journalist, “There is no absolute right, in Canadian law, for a defendant and a witness to look upon one another during trial or even a preliminary hearing.”  Claims made by the defense lawyers have pointed to the importance of judging the witness’s demeanor by her facial expressions; however, it is hard to argue that seeing the face of the witness will make or break their credibility.  In fact, as law professor Faisal Kutty argues, the reliability of evidence based on demeanor is not only inherently questionable, but may be even more suspect if there are cultural or linguistic differences that come into play.  (Note that we don’t know the cultural or ethnic background of the complainant, so it isn’t clear whether this is actually an issue here.)  To the extent that demeanor is relevant, the defense’s insinuation that a face covering will erase all possible cues about its wearer’s emotions and intentions is somewhat perplexing, considering the amount of information that can still be gained through tone of voice and body language.  Although facial expressions certainly do convey a lot of information, I also wonder how much of the hype around needing to see a person’s face to judge their credibility comes out of assumptions that women in niqab are all so oppressed by their clothing that they lose all individuality and ability to express themselves.

On that note, it probably goes without saying that much of the discussion in this case has painted the niqab as inherently indicative of oppression and patriarchal control over women’s lives.  Quoting Sherene Razack, Kutty states that much of the talk that takes a hard line against niqab is symptomatic of a desire “to rescue the imperiled Muslim woman.”  Illustrating that desire are some of the comments on the blog of journalist Antonia Zerbisias,* who describes the situation by saying that “not only is this religious fundamentalism at its most extreme, it’s patriarchy at its worst.”  Although, to her credit, Zerbisias continuously claims to be “grappling” with how to understand the story, she later talks about Muslim girls who “grow up and disappear into the long blackness,” perpetuating the image of the shrouded woman whose personality has been erased.  In yet another post, arguing for the need to treat all victims and witnesses equally, she asks:

Does this [forcing a woman to show her face] doubly victimize –maybe even triply –some women? Yes. But that’s the price we pay for not being confined to the kitchen and nursery.

What bothers me here is her assumption that all women (”we”) experience oppression in the same way, and that patriarchal oppression is necessarily worse than oppression stemming from Islamophobia or racism.  Might there be some women who might, in fact, prefer to remain in the kitchen and nursery, because they feel that this “price” is too high to pay?  Yeah, it would be great if we could get rid of sexism and Islamophobia and racism and classism and all other forms of oppression that are affecting all of us, but if we’re talking about making trade-offs – accepting some forms of oppression in order to escape from others – then it’s probably best not to make assumptions about which trade-offs are best for which people.

A lot of the articles on this topic include the predictable photos of women in niqab, as passive figures that aren’t necessarily doing anything other than looking at the camera (see here and here for examples, and nope, I’m not going to play into the exoticised-niqabi-woman trap by posting one here.)  What did impress me was this article, which actually had pictures of, get this, women in niqab doing stuff!  One was testifying in court (apparently, it can be done), one was working as a pharmacist, and one was graduating from university.  Definitely a welcome challenge to some of the other images out there.

The last issue that I wanted to raise is the way that a lot of the discussion on this topic links this specific situation with Canadian Muslims as a group.  This article tells us that “In Canada, home to about 580,000 Muslims, the case will be closely watched, amid fears about Muslim women coming forward in criminal cases,” suggesting that the conflicts that have arisen in this case will be widespread through the Muslim community.  Without wanting to belittle the importance of this particular case, I do worry that it is getting blown a little out of proportion, with readers starting to worry that all 580,000 of us are going to start coming into conflict with Canadian courts.  Niqab also gets equated with particular levels of religiosity, rather than with particular religious interpretations; we are told that “Niqabs are traditional Muslim veils that cover everything but the eyes” and that “many pious females” wear it.  Given the hype about this case representing a fundamental conflict between religious and legal rights in Canada, the implication is that all “traditional” and “pious” Muslims are potential threats to Canadian legal traditions, and may again make the mountain that’s resulted from this case’s molehill seem even bigger.  (It’s also, of course, annoying that those of us who don’t choose to cover our faces may end up being assumed to be less religious.)

* See the comments section in the original MMW post for some links to subsequent blog posts where Ms. Zerbisias continues to reflect on the issue.

Since the post was first written, the Ontario Human Rights Commission has intervened on behalf of the complainant, and the question of whether she can testify while hearing the niqab is currently before the Ontario Superior Court.  The Superior Court hearing began on March 27 and is set to resume tomorrow (April 3.)

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