We’re finally up against it now, aren’t we? After years of dancing round the issue, the law is finally called upon to make a specific ruling on the wearing of the niqab. See the Guardian for a brief summary. So let’s make sure we know what we are talking about, because without a doubt there will be proponents and opponents alike who seek to interpret the decision (whatever it may be) to suit their cause.
To start with: it is indeed a narrow point. The question is whether a woman standing trial is to be permitted to wear the veil in the dock. It is not about the wearing of the veil in everyday life, out in the street, at a place of work, or anywhere else. In one sense it is more important, because court is a place unlike any of those – it is supposedly where only the highest standards of justice and fairness can apply.
We don’t have much law to go on, except that there is no active prohibition on the wearing of the veil when giving evidence. However, there is an interesting case from Australia, occurring three years ago. For the full details see this article from The Australian. But, in brief, a young woman was ordered to remove the veil to give evidence, and all males except court officials, lawyers, jurors and the defendant were removed from the court. It worked at the time, to a degree, but is neither satisfactory nor helpful, as it was a decision born of compromise and not of principle.
It is difficult to resist two points, however. First, that the manner of giving evidence is an important aspect of testimony given on oath. It is asserted that a jury can make equal and sufficient inferences from the body language and tone of voice of a witness (or defendant), without regarding facial expression, but I am afraid that is not a very convincing argument.
Secondly, that if the identity of the defendant is in issue there must be no danger of uncertainty. In matters of procedure, as in the present case, ensuring that the person in the dock is the person supposed to be there can be managed without the risk that a man may see her face; in this instance a female police officer made the identification in private and swore it on oath. But that was possible because the same officer had been present when the defendant was photographed after arrest.
But if the evidence against the defendant were to rest on identification, what then? Surely, there can be no principle that would prevent such identification being made, even if it were by a male witness?
And yet I am not wholly comfortable with the conclusion towards which these thoughts tend. Absolute and clear rulings are always desirable; and a clear ruling that the veil must be removed to give evidence would, I think, serve the interests of justice in all but one important respect – namely that a person – be she witness or defendant – might thereby be deprived of something critical to her ability to function comfortably in society. To someone accustomed to wearing the veil, removing it could instantly cause distress, and that in turn would put her at a real disadvantage.
And there is something bigger in play, too: the tension between freedom of religion and any other form of human and social right. There seems to be a measure of assumption that if religious freedom comes up against secular justice, the latter must prevail. Is that always just? And another concern follows from that: that the ruling given in this, as I said, narrow question – especially if it is to order the removal of the veil – will have an impact far beyond the courtroom.