An abridged version of this piece was published today in the Toronto Star.  Reproduced here for interest with permission of the author, all rights reserved.

Veils and justice

February 04, 2009
Faisal Kutty

Here they go again. Muslims just don’t give up trying to change our values and roll back hard fought rights of equality and justice. Though this time, we may have nipped it in the bud early – but should we?

Ontario Court Justice Norris Weisman‘s “admittedly difficult decision” to force a complainant to testify without her niqab, or face covering, in a sexual assault case has unleashed a torrent of discussion and debate. Again, the usual suspects with too little knowledge, appreciation or understanding of the complexities of the issue have jumped into the fray.

The ruling once again brings to the fore questions surrounding the limits of accommodation in a liberal multicultural society. But this time, in a novel twist, the clash pits a person’s religious right with the right of a defendant in a criminal trial to due process and procedural fairness; namely that of being able to face his or her accuser in open court. Obviously, both are important rights in a liberal democracy.

The niqab – which a small fraction of orthodox Muslim women use to cover their faces, and not to be confused with the hijab or head covering – is attacked by some as a symbol of oppression. By others as a badge of political Islam. By others as a public-relations nightmare for their “moderate” or more palatable versions of Islam. By others as something that should be compromised in the two-way dance of accommodation. And still by others as not compulsory or even totally unnecessary from a strict Islamic legal point of view.

True, the vast majority of Islamic scholars do not believe it is fard, or compulsory. A few acknowledge that it is recommended. And a very small fringe believe it is compulsory. But even these jurists will defer to Islamic rules of necessity (darura) and public interest (maslaha) to sanction its removal in certain official and medical contexts; ranging from identification to security needs.

It is also interesting to note that scholars are unanimous in holding that the face must be uncovered during circumambulation of the Kaaba in Mecca, during what is arguably considered a peak moment of Islamic spirituality.

Many non-Muslims are quick to oppose this practice, to borrow the idea and phrase coined by Professor Sherene Razack, “to rescue the imperiled Muslim woman.” Sadly, many Muslims are also quick to speak out against this woman’s right to practise her religion as she believes it should be. Understandably, they are worried about the potential backlash from mainstream society.

All of these people miss the point though, and there is a need to think through the issue in a more holistic manner. The question of the niqab in court must be tackled without resorting to fear and reductionism.

First, from the religious rights perspective, the law is clear and logically consistent with the core values of liberal democracy. In Syndicat Northcrest v. Amselem, a case that tackled the definition of freedom of religion under the Quebec Charter of Human Rights and Freedoms and Section 2 of the Canadian Charter of Rights and Freedoms, the majority accepted a definition that included any practice the individual sincerely feels is connected to religion, regardless of whether the practice is required, sanctioned or mandated by a religious authority. In other words, a person who claims rights to freedom of religion does not need to demonstrate that they were denied rights to worship in accordance with the manner required by a religious authority. Building on prior case law, the Court held that it was enough to demonstrate an individual’s religious belief and that the practice was connected to this belief – though practices sanctioned or required by religious authorities are also protected.

The reasoning was consistent with the desire to ensure that secular governments and courts should not be placed in the position to determine which religious practices are authentic or not.

To determine whether an individual belief is sincere, the Court followed the American lead in advocating for a minimally intrusive evaluation of an individual’s beliefs. Courts must only determine that religious claims are made in good faith and not feigned. The majority also held that courts should tolerate changes in beliefs; the individual’s beliefs held in the past or from time to time are not relevant to those claimed in the present.

From a religious rights perspective, the woman has a clear right to testify with her niqab. The judge seems to have discounted the significance of her belief because she was not unequivocal in stating how much she believed in it. Surely she cannot be expected to communicate the technical legal standard she needs to meet, particularly given that English may not be her mother tongue. Clearly, as the record and context show, she had a genuine belief in it even though she may not have used accurate language to convey her conviction.

Contrary to what some have argued, exposing her face for her driver’s licence photograph in the past does not void her right to insist on it in the present, as the Supreme Court clearly articulated. Moreover, this cannot be equated to open and public testimony in the presence of numerous men and the added stress of courtroom formality.

Muslim groups and individuals – well-intentioned but misguided and trying to champion a better public relations image for Islam and Muslims – clamouring to distance themselves from the issue must understand that religion is something personal. In line with the Supreme Court decision, it must be defended on a personal level. They must ask whether they really want to start allowing external forces and/or even others from within to dictate what of one’s religion is mandatory and what is not.

Today it is her niqab, tomorrow it will be her hijab, next it will be his beard and eventually it will be your right to educate your children in religious schools, which are teaching “hate” and “un-Canadian” values if you believe some of the anti-Muslim and anti-religion rhetoric that passes for debate and informed comment on Muslims and Islam.

The latter is not as far-fetched as some may think, if you recall some of the rhetoric and hysteria during the Ontario provincial election when the Conservatives were effectively defeated over the private school funding idea, partly because of the spectre of Islamic schools receiving tax dollars.

To the obvious glee of some, Many Muslims have been rightfully and vociferously representing that they are taught to respect and obey the laws of the land. But it is disingenuous to then not extend the benefits of the law when it is uncomfortable; does not accord with the exact image of Islam and Muslims one wants conveyed in public; or is not consistent with a paternalistic imposition on Islam and Muslims. Indeed, many Muslims have not forgotten the “banning” of faith-based arbitration by the McGuinty government when a small group of Muslims publicly tried to use the Arbitration Act or even the review of section 13 of the Canadian Human Rights Act when four Muslim law students filed complaints against Maclean’s for communicating hate.

The defence lawyer in the case in which the woman is a witness has argued that allowing the woman to testify with the niqab will prejudice the ability to assess her credibility. He argued that it was of “critical importance” to be able to see her face. The lawyer is obviously doing his job, but society and the justice system needs to look deeper, beyond legal strategy.

First, assessing credibility through demeanour evidence is not something solely assessed from someone’s face. Those present in court will still hear her voice (including the inflections, tone, pauses, etc.); the content of her testimony (conviction, nuances, consistency, hesitations, etc.); and see her eyes and body language. Moreover, the judge can question her and the defence also has the right to cross-examine her, with the latter being the most effective and reliable tool to assess credibility.

Second, contrary to conventional wisdom, scholarly and judicial decisions have also questioned the efficacy of assessing credibility using demeanour evidence. There are numerous studies and reports challenging the reliability of demeanour evidence in assessing credibility, particularly when it comes to cultural, linguistic, racial and religious minorities.

In a widely cited piece on demeanour published in the Cornell Law Review, Professor Olin Guy Wellborn III writes:

On the contrary, there is some evidence that the observation of demeanor diminishes rather than enhances the accuracy of credibility judgments.

He also argues that the ability to accurately detect lying diminishes with observation of the face.

Professor Jeremy Blumenthal in another legal journal article on demeanour concludes that,

…it is unforgivable that the legal system deliberately ignores demonstrated, relevant findings about demeanor evidence and willfully adheres to an ineffectual traditional approach.

Of course, it is imperative for the judicial system to explore ways in which the procedural fairness of the accused can be respected while respecting religious rights and striving to remove cultural/religious barriers to access to justice. When such issues are merely brought up as technical legal arguments without substantiation, the system must not uncritically accept them, particularly when they clash with complex and conflicting rights and public policy imperatives.

Indeed, this case raises serious public policy concerns beyond those already touched upon. Even if technical Islamic and legal rules can be used to deny her the right to testify with her face covered, the decision sets a dangerous precedent in terms of access to justice and possibly discouraging women in such situations from coming forward. As ably argued by the woman’s lawyer, courtroom testimony is extremely difficult and often traumatic for the average person. Now throw in the compounded hardships for sexual assault victims and the additional cultural and religious hurdles and many women may not come forward to report such assaults.

As a relative of the woman told the press: “This is primarily an issue of protection the court offers to victims of sexual assault, especially those from minority communities, who experience the added stigma of bringing these deeply personal issues into open court.”

As the Law Reform Commission of New Zealand concluded in its 1997 report titled Evidence Law: Character and Credibility:

To misinterpret the demeanour of a witness is always a danger, but it is a particular danger when the fact-finder is confronted with a witness belonging to a different culture …

Maybe this time the niqab will be a catalyst to start to question the reliability of using demeanour to assess credibility in a multicultural context. Let’s not nip it in the bud, but rather step back and analyze these issues without resort to reductionism.

Faisal Kutty is general counsel for the Canadian Muslim Civil Liberties Association and an adjunct professor at Osgoode Hall Law School of York University.