Right to wear niqab? Clash between attire and law

  • Farrukh Dhondy
  • Updated: Jan 05, 2015 17:21 IST

The lyrics of the song by Mukesh from the 1945 film Pehli Nazar said:

Tu parda nasheen ka ashiq hein
Yoon naam-e-wafaa barbaad na kar...

Now Baroness Hale, deputy president of the UK Supreme Court, has ruled that a woman wearing a veil cannot give evidence in a British court. Lady Hale didn't sing her judgment but if she had I imagine her modifying a word of the lyrics to:

Yoon naam-e-insaaf barbaad na kar...

She contended that the face of a witness or a defendant in a UK court had to be seen by a judge and jury. Seeing their facial expressions as they tell the truth or lie their way through the process of giving evidence is essential to British justice.

After decades of dealing with matlabi individuals, bosses, chamchas, with officials hinting at but not asking for a bribe, with Bollywood producers, racists, revolutionaries and lovers, one must take the nuances of expression as the holy book of body language. We all think, mistakenly perhaps but insistently, that we can read expressions and most people will agree with Lady Hale that a person giving evidence in a court of law ought to allow their face to be read so that judge or jury can decide when they tell the truth and when they prevaricate or lie!

Conversation, especially when it takes an interrogative form, is dramatic and an audience follows its narrative. Of course the reading of facial expressions or body language is no form of science. It's an art that we cultivate from birth and it forms part of our instinct of interactive survival.

While agreeing with Baroness Hale, I would like to ask her if the corollary to her argument is that blind people should never be on a jury and can't be barristers or judges. She may, in answering the question, take into account the rights of access of disabled people to this necessary duty in a democracy.

Rebekah Dawson, a Muslim convert, famously refused to remove her veil when she was arraigned in court earlier this year. Her lawyers argued that it would violate her religious rights to be forced to remove her veil in a courtroom where males were present. Dawson, born a Christian into a Jamaican-British family, was accused of intimidating a witness. The charge arose from an incident at the Finsbury Park Mosque in North London.

It turns out that the regulars at the mosque were divided into two factions, the liberals and hardliners. A liberal volunteer was acting as the caretaker of the mosque and he showed a group of Portuguese tourist around. The hardliners, among them Dawson's husband Royal Barnes, challenged the liberal caretaker for being lax and allowing non-Muslims with their heads uncovered into the mosque. Barnes assaulted the caretaker, who complained to the police.

Rebekah Dawson and her brother then approached the caretaker and threatened him with consequences if he gave evidence against her husband. The judge in Dawson's case ruled that she could keep her face hidden within her niqab if she wasn't giving evidence. She decided to plead guilty and was given a light sentence.

That was the least of Dawson's crimes. She and her husband were subsequently held on charges related to terror because he circulated videos of the murder and attempted beheading of the soldier Fusilier Lee Rigby by two fanatics on the streets of London. One of the murderers was an associate of Barnes who had links to the banned terror organisation Al Mahajiroun.

At her second trial the question of her veiled face did not arise as she and her husband pleaded guilty to disseminating terrorist material and, therefore, weren't questioned.

The full niqab is not banned in liberal Britain. In most cities with a Muslim presence schools have modified their uniform requirements to allow hijabs or head scarves though they don't allow teachers or pupils to cover their faces in class. Whereas France has passed a law banning the wearing of niqab in all public places, Britain will incorporate Baroness Hale's ruling into law which will only apply to giving evidence in court. Even so, the courts may make provision for screens to be provided to protect the modesty of women who claim this face cover as a religious right.

In Britain, the first conflict between sartorial traditions attributed to religious belief and the law occurred when Sikhs refused to wear motorcycle helmets. In support of their defiance they quoted the fact that turbanned Sikhs had been permitted to fight without regulation helmets and risk their lives for Britain in both World Wars. Obviously helmetless Sikh motorcyclists were only putting themselves at risk and the requirement to wear a crash-helmet was withdrawn by an Act of Parliament in 1976.

Commentators on the two cases in which Rebekah Dawson was the accused have drawn the conclusion, perhaps totally mistakenly, that her adamant refusal to remove her veil led the police to delve further into her life and associates in search of a network of radicalisation. The second case against her and her husband indicates that they found it.

(Farrukh Dhondy is an author, screenplay writer and columnist based in London. The views expressed by the author are personal)

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