There should be no covering-up in court

A barrister argues that allowing Muslim women to wear the veil in courtrooms is an affront to open justice.

Barbara Hewson

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Last November, an advocate in a full-face veil (niqab) was asked to stand down at an immigration tribunal hearing in Staffordshire, England. The judge said that he could not hear what she was saying. This precipitated a worried discussion amongst senior judges. Earlier this month, it was reported that veils would not be banned in court: individual judges would decide on a case-by-case basis whether to allow them. The guidance, which has not yet been published, is described as ‘sensitive’ (1).

It is ironic that, in Pakistan, veils were banned in court last November. ‘You are professionals and should be dressed as required of lawyers’, Chief Justice Tariq Pervaiz Khan of the Peshawar High Court told veiled lawyer Raees Anjum. ‘We [the judges] cannot identify veiled woman lawyers and suspect that veiled lawyers appear to seek adjournment of proceedings in other lawyers’ cases’, said the chief justice, who added that he could barely hear the pleas by lawyer Anjum made from behind her veil (2).

The English judiciary’s proposed solution to the issue of veils in this country sounds a bit limp by comparison. We have a system of open justice in this country, under which justice must be seen to be done. Why are judges apparently reluctant to defend this principle more robustly?

By a coincidence, recent English court rulings have upheld bans on radical Islamic dress in state schools. The House of Lords upheld a ban on the jilbab in 2006. This month, the High Court also upheld a ban on the niqab (3). It’s odd that senior judges feel able to tell schoolgirls to unveil, but not witnesses or advocates.

It is possible to derive some clear messages from the schools cases, however. These suggest that a ban on veils in court ought to be workable. First, there is no human rights argument that favours a religious right to wear veils or other forms of dress over a state ban. Article 9 of the European Convention on Human Rights protects a right to manifest one’s religious beliefs. But the state can interfere with this right provided such interference is (a) prescribed by law and (b) necessary in a democratic society.

The European Court of Human Rights has ruled that radical Islamic dress codes are not entitled to special protection. So women cannot even wear headscarves in Turkish educational institutions, let alone veils (4).

As for the workplace, the European Court’s view is that if you seek employment in a role whose demands conflict with your religious beliefs, you must choose between your religion and your job (5).

The courts here have accepted various practical arguments for allowing schools to ban veils. These were schools in multi-racial communities, where the heads had already conscientiously considered and consulted before devising a uniform dress code, which respected Muslim beliefs (for example, trousers and tunics were allowed), but in a non-threatening and inclusive way. There is concern that once one girl wears radical Islamic dress, it will expose other Muslim girls to pressure from their families, or communities, to follow suit.

In the latest case, the head explained that, in an emergency such as a fire, staff need to know about girls’ whereabouts. Yet if a girl were veiled, she could object to removing her veil before a male teacher. And ‘it would not be beyond the realms of possibility for an unwelcome person wishing to move around incognito to wear a niqab’.

The head in that case also said that effective teaching depends on students being able to interact with their teacher and other students. A facial cover would inhibit facial communication as part of teaching and learning.

So let’s consider veils in court. Since the Middle Ages, the United Kingdom’s justice system has been based on orality: litigants and their representatives and witnesses must turn up for public hearings, where they interact with the judge and (in criminal cases) juries. Issues turn on the credibility of witnesses’ evidence, and the efficacy of legal submissions. If one of the participants wears a face covering, their ability to interact with everyone else involved in the process is inevitably reduced. Does this give them an unfair advantage? I think it does. Courts must offer a level playing field to participants, and veils are a problem precisely because they undermine that principle.

Facial expression is an important part of non-verbal communication, which plays a substantial part in human interaction. So the prospect of veils in court raises some basic questions about how this might affect or distort the oral process. How can a judge ‘read’ an advocate making submissions if her face is hidden? Why should veiled advocates interrogate witnesses, which they might find intimidating? How can a fact-finder assess the credibility of a veiled witness? Why should a veiled juror try a defendant? And if veiled advocates were permitted, this will lead to an inevitable demand for veiled judges, once they sought judicial office.

A critic of multiculturalism in the UK, Elie Barnavi, argues in the recent best-selling essay Les Religions Meurtrieres (Murderous Religions) that Europe needs to recall its own bitter experiences of religious extremism and religious wars in the sixteenth and seventeenth centuries, in order to counter Islamic fundamentalism effectively today. Europe’s current separation of state and church reflects the triumph of Enlightenment values over religious rule, but it needs to defend those values against political religion vigorously, and not lapse into post-colonial guilt (6). This is important, if democracies are not to morph back into theocracies again.

The English judiciary’s present approach to the veils issue suggests that it feels uncomfortable defending a fully open system of justice. The new approach will put the burden of challenging veils on to individual lawyers, their clients and witnesses. It will be a brave advocate who objects to his judge, opponents or witnesses being veiled, not least because it draws on them the risk of being accused of intolerance. Altogether, this new initiative appears to be a classic example of what Barnavi criticises – namely, a critical loss of self-confidence.

Barbara Hewson is an Irish barrister practising from Hardwicke Building.

(1) The Times (London), February 6, 2007; Daily Telegraph, February 7, 2007

(2) Pakistan Daily Times, 4 November 2006

(3) Begum v Denbigh High School, [2006] UKHL 16, R (ex parte X) v Y School 21 February 2007, Silber J

(4) Ahmad v United Kingdom (1981) 4 EHRR 126; Konttinen v Finland (1996) 87-A DR 68; Dahlab v Switzerland, App No 42393/98, Decision of 15 February 2001, ECHR 2001-V; Leyla Sahin v Turkey, App No 44774/98, Judgment of 10 November 2005

(5) Stedman v UK (1997) 23 EHRR CD 168; Pichon v France, App. 49854/99, Decision of 2 October 2001

(6) John Thornhill, Europe’s holiday from its own history, Financial Times, 19 February 2007; Tidhar Wald, The West’s guilt syndrome Haaretz, 15 February 2007

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