Wednesday, 14 December 2011

Jason Kenney, Canada's Immigration Minister has stepped on the Niqab landmine. Let the discussion begin.

Examples of niqab fashion in all its intriguing diversity.

Face veils and full body robes may provide modesty and privacy for the person wearing them but more likely in a Western context they draw negative attention to the wearer.

by Tom Thorne
Who is beneath a niqab or face veil? Only the eyes can be seen and the rest of the person under the robes and veil is a mystery. Muslim scholars assure us that oppression comes when the woman has no choice but to wear the veil. They also remind us that there is no Islamic religious reason to support these veils and that traditions like this are simply cultural manifestations some of which predate Islam.
Despite the arguments that veils are strictly cultural and they do not oppress women, there are lots of problems for woman in the Arab and Muslim world who don't wear them or at least follow very conservative dress codes when they are in public. In the Arab world a woman not modestly dressed is a reason for insensitive jibes and comment from men.
The cultural argument is one that is often mistakenly enforced by religious police especially in conservative Muslim states like Saudi Arabia so there seems to be some misunderstanding about what the Quran actually says on this matter and there is a conflict between Muslim religious scholarship and daily practice of the Muslim faithful of a conservative bent.
The argument for modesty and privacy is often used to support niqab use but unfortunately in the West identifying yourself adequately is a tradition that trumps these ideas imported from the Arab and Muslim world to support veiling here. In some jurisdictions Niqab wearers are now in conflict with courts and other legal traditions of the West. It has been banned in Belgium and France for these reasons.
When in Rome?
So what do we do about this issue? One argument says when in Rome do as the Romans do. If you come to the West you are expected  to adapt to a lifestyle of the West. If you want to bring these traditions with you as a immigrant then you may wish to reconsider how a niqab looks on the streets of Toronto. This is not an issue of multiculturalism as much as it is a problem about how to identify who is under the niqab. 
Frankly niqab in a Western context draws attention to the woman. It doesn't provide her with modesty or privacy. In fact it turns her into a billboard for Muslim militancy whether that is the intention or not. 
Omar Kadar's media relations opportunities were lost.
I remember the mother and sister of Canadian born Omar Kadar talking to the media about his imprisonment by the US in Guantanamo Bay for alleged terror offenses. They wore a niqab for a TV interview and frankly their covered faces did little to help Omar Kadar's cause. They looked sinister no matter how reasonable their arguments may have been.
And that I am sure is not the intention of the women who wear niqab. Many of them when interviewed seem to be reasonable, often well spoken articulate and educated woman of substance, so it is strange to Western sensibilities that they feel a need to live under cloaks and veiled faces now that they are living in the West. What is even stranger is the numbers of Western born women who wear these clothes. 
I have heard several interviews with young Muslim women recently on CBC radio who have adopted the niqab. I have not yet heard a convincing argument why they feel it is needed in their lives here in Canada but perhaps I missed something cogent in their arguments.
Western sensibilities are challenged by the niqab.
For me the niqab is a statement about who you are and what you aspire to be and how you want to be perceived. It is also a conscious projection of yourself onto Western sensibilities and traditions. 
Yes, sociologically it is a statement of intent that is in many ways like a protest even if it is intended to be a positive protest. It draws attention to the wearer and says that you and all the wonderful things you are cannot be seen in public. It begs the question why?
Does its use in the West mean that the Muslim fact, however ill defined, is being projected? Does it represent the tensions we now see in the Arab and Muslim world with the West ? Does it represent an in your face statement about the plight of Palestinians? Is it a way of bringing forth the tensions between Iraq situation, or Iran or what is happening as Syria slips into chaos? Does it have political intentions?  Is it simply stating that Western society is the Great Satan?
Who really knows what it represents even in Middle East. It is at best a visit to the past when men were men and women were women and everyone knew their place. However, when this tradition is interfaced with Western experiences it takes on a new meaning. It has an iconographic meaning and it is psychologically potent as an image especially when it is out of its normal context.
Let's look at where it takes us in our Western contexts. First it creates conflict to not see a face on someone when they are in public. It goes against our Common Law traditions of identifying without doubt who you are dealing with.
Our legal traditions call for identification of oath takers and witnesses.
In our law courts it is essential to be identified without doubt. That tradition is probably older than wearing the niqab is in the Muslim world. When you are voting your face must match your driver's license so we know who you are. And now Jason Kenny our Minister of Immigration wants new Canadians to take off their niqad to swear an oath of allegiance in public to Canada and Her Majesty the Queen during Citizenship ceremonies.
This act is seen as an attack on multiculturalism. Actually it is simply following principles of British and Canadian Common Law practices that predate Magna Carta. It would be interesting to see how Sharia courts in the Muslim world swear witnesses. Maybe your husband or father identifies you for the court so you are saved from the immodesty of showing your face.
When you practice multiculturalism  there is a tendency to try too hard to accommodate everyone and that usually leads to silly notions of political correctness where no one is satisfied but everyone feels good and cozy that they tried hard to make it all work. That is the core of this issue that Jason Kenny has brought up with his rule for Citizenship ceremonies.
He is going back to first principles which is your identity swearing oaths in public must be public so that all the citizens know who you are are what you have sworn to uphold. In our law and traditions that requires those taking the oath to be clearly identified and wearing a niqab while making an oath of any kind doesn't satisfy the traditions of British-Canadian law.
A Charter of Rights and Freedoms challenge is not justified.
If there is a Charter of Rights and Freedoms challenge to Jason Kenney's announcement I believe that Common Law principles to identify yourself publicly will stand. The idea that a niqab wearer should be taken into a private room to reveal her face to an official or judge as a way to identify her defeats the idea of solemn oaths being taken in public or in court. 
In a legal defense the defendants cannot gauge reactions of a witness if the face is covered. It is the right of a defendant and the lawyer's defending them to see a face in cross examination. It could be argued that the niqab is an unreasonable barrier for a defendant to mount an adequate defense against accusations or assertions of a niqab clad plaintiff. That may raise the issue of whose rights under the Charter have really been truncated.
© Copyright 2011, Tom Thorne, All Rights Reserved

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