Removing the Veil During Court Proceedings

by Ruxana Nasser

In light of the recent news reports about the ruling by His Honour Judge Murphy on the defendant insisting on wearing a face veil during the course of the criminal trial, I feel compelled to write a few words.

As a Muslim women working as a Criminal Barrister in the Crown Courts in London, I have knowledge and experience of the necessity that the defendants show their face in the dock and in the witness box.

The Judge has a valid point. For your information and in my support of the judge the Islamic injunctions in the Holy Koran about the Niqab (head covering with full face cover) and hijab (another word for head covering but without the face covering) and jilbab (outer body covering of the body with loose clothes) can be found in two different chapters of the Holy Koran in chapter 24 (called Al-Nur) verse 32 and again at chapter 33 (called Al Ahzab) verse 60.

All too often the Islamic injunctions are used by some politicians to stamp out covering all together or they are used by Muslims to stamp out any reasonable and sensible interpretation. The interpretations regarding these verses vary depending on the understanding of Arabic language of the interpreter and quite frankly on his or her spiritual understanding of the verses. In particular, it appears that very few Muslim women in my opinion seem to understand the fact that the purpose of the requirement of such covering is to prevent sexual abuse, sexual exploitation and sexual fervour in society.

This purpose is stated in the verses themselves. So the purpose is not open to debate or interpretation. Undoubtedly the purpose stated in the Holy Koran for the niqab, hijab and jilbab is to prevent mischief. Thus the principle of the mischief rule is inherent.Niqab Court

There then remains an examination of the purpose of this defendant insisting on remaining veiled in the witness box or the dock. She certainly cannot insist that her removing the face covering alone will create the mischief envisaged in those verses. The purpose of the face covering or the niqab is not breached by a judge asking her to remove her face covering for identification purposes and or when giving evidence in the witness box. As the purpose is not to uncover her for sexual assault, exploitation or arouse sexual fervour in court. A court room is not a normal situation or a normal circumstance. Removal of the veil for identification purposes is not uncommon in Muslim countries. In particular, it is even recorded that the Prophet Muhammad (peace and blessings of God be upon him) himself when walking with his wife Safiyyah removed her face veil in order to clarify her identity to a passer-by as the said situation warranted that her identity should be made clear. If the prophet himself can remove the niqab to identify his wife in order to prevent any mischief against her, then the precedent for removing the veil in some circumstances is laid. The whole purpose of these injunctions is to prevent mischief, and conversely if keeping the veil on causes or has the potential of causing a mischief (as it will if she is allowed to keep her face covered thereby preventing a true assessment of her testimony) then the veil or the niqab should be removed.

Therefore this defendant’s insistence on wearing a veil during court proceedings is outside the pale of Islam all together. She should in fact be required to remove her face covering throughout the court proceedings as there is an overriding purpose to seeing her face which is permissible by Islam in such circumstances as outlined above. On a wider principle, the administration of justice in a reasonable and fair society is of paramount consideration rather than the individuals rights which in this case are not infringed. She has not been asked to bare all, just remove her face covering which is reasonable request given the nature of the proceedings which are that she had been accused of witness intimidation. Any answers she provides accompany her facial expressions and body language. A juror makes an assessment of the truth of anyone providing testimony in court by listening to the answer, observing their face and their body language.

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7 thoughts on “Removing the Veil During Court Proceedings

  1. I think that there is a clear difference. A patient is voluntarily making the choice to seek medical treatment. They do have the choice to leave the treatment room if they feel their conviction overrides their need to wear the veil. In the court setting, however, the lady is obliged to attend court and give evidence, perhaps is even held in custody. Furthermore, a lady in a hospital causes direct harm to herself only if she refuses treatment. In the courtroom there is a perceived harm caused to the opposing side as her facial expressions would be hidden whereas other witnesses, particularly prosecution witnesses, would not be veiled. It could also be argued that their is a perceived harm caused to the process of justice. I am not sure how much I would agree with the latter as I am personally uncomfortable with a person’s facial expressions playing any part – no matter how small – in determining innocence or guilt.

    Another difference, I believe, is that the two refer to differing obligations. If a lady wears a scarf or face veil and freely intends to remain within the confines of Islamic law then she can remove either items when their is a necessity to do so. To receive medical treatment would amount to necessity. Wearing the veil in a courtroom, it could be argued, relates to public interest and it may not be in the public interest to leave such a decision open to one’s personal choice.

    Given that it appears to be a public interest issue, it would seem appropriate that a body of representative legal minds should be formed by the Government to look at the complexities of the issues involved and present their findings to the Government for a final determination on the issue. This is perhaps what the Judge was seeking when he made reference to the Government in the case.

  2. I think that being a doctor, this should be even more clear for you. I my am a medical student and I would like to propose a situation which is analogous to the situation discusses above the in the article.

    Imagine a patient coming in with a cranial nerve defect, let’s say Bell’s palsy. Do you not need the patient to take off their niqab if they are covering the defect or do you say just stay objective and diagnose the patient based clearly on the history. Altneratively, let’s say the patient had a cranial nerve 11 defect. How are you going to assess asymmetry in the muscles without taking off the hijab.

    Similarly, when you are in court proceedings, the face is very much part of the evidence. What if Someone is laughing underneath the niqab it even crying. The emotions carried with the words form the complete picture.

    If you ask the patient to take off their niqab/hijab, are you not implying that you don’t trust what they are saying. It’s fairly easily to diagnose Bell’s palsy based on history, at least in my opinion.

    I apologise in advance if my words are carrying a disrespectful tone. I promise I don’t mean that. I just wanted to challenge you on your opinion.

  3. I agree with the majority here. That under the current administration of court proceedings that exist there would be a clear imbalance if one party to a trial was in full view of the jury and the other was not. This is even more the case when witness intimidation is involved.

    Forgive me for veering off the specific subject, but the comments of Verity and Umar reminded me of something I was discussing only a day or so ago. Simply speaking, the goal of the judicial system – here in a criminal sense – is to arrive at a just ruling once someone has been charged and taken to court on the reasonable suspicion he/she committed a crime. As the Judge in this case stated, echoed in the above article and subsequent comments, facial expressions play a role in the opinions drawn about the defendant (or witnesses) by the jury. In a purely anecdotal sense, each of us will have encountered someone who, under pressure and duress, reacts quite nervously and even comes across as though he/she appears guilty about something. We perhaps even have friends who suffer from high blood pressure, perspire very easily, or find it difficult to speak coherently when tense, etc.

    While it might seem reasonable that a seasoned lawyer and judge could distinguish between a facial expression which reflects nerves and one which is far more sinister, I find myself questioning how reliable a juror, who will likely only serve in that position once in her/his life, is in differentiating between the two. These comments are tempered by the admission that there are far more weighty considerations for a juror than a facial expression. Nevertheless, I am undecided as to how fair it would be for a facial expression to hold any weight at all.

  4. In criminal cases the rules of evidence prevent prejudicial information from being presented otherwise the jury is meant to judge on a subjective basis and they convict when they feel that the prosecution has established its case beyond reasonable doubt. The demeanor and reactions of the witnesses to questions is an essential part of evaluating the credibility of their testimony – so as to come to a sound judgment – otherwise all evidence could be given by written affidavit. Moreover, if she is permitted to keep her face covering should male murderers and robbers also be permitted to wear hoodys (balaclava) whilst giving evidence?

    Islam recognizes that legitimate rights of society must take precedence over personal rights except only if they prevent performance of the basic tenets of Islam, Kalima Shahada (the declaration of faith), Prayer, Fasting, Zakat, etc,. Thus for example, though free speech is upheld in Islam, it says that where such speech is liable to be inflammatory and calculated to disturb the peace of society, it can and should be curbed.

    In short, equality before the Law and the administration of Justice are essential part of any civilized society and are in the public interest, and override any personal considerations of the woman.

  5. With respect, following that principle should we not just get rid of defendants explaining their position in front of the jury altogether, and simply have written statements?

    In principle, a defendant who has pleaded not guilty will be saying that their version of events is different to the prosecution’s, in one way or the other. Thus the defendant will be lying, or telling the truth- and there are a hundred and one ‘tells’ that the jury can subconsciously pick up on if they are lying. Thus when trying to deduce who is truthful and who is not, we need all the info we can get to have the best chance of coming to a just decision. Of course, a convincing guilty suspect can still fool the jury- but it’s much easier to fool someone in written statements than when being examined by the prosecution, whilst being scrutinised by a panel. We will never have a perfect justice system, but this does seem to be the best we can do, and should not be undermined unless absolutely necessary.

  6. I beg to differ, Honestly when jurors are sworn in they are told to judge the evidence based on the facts presented and to view everything objectively. Saying that a juror needs to see a witness’ face as to whether they are telling the truth surely increases subjectivity? In fact her covering her face may make them make a more rational decision.

    Niqab is part of who she is, no more than a person should be asked to dye their hair if it was an unusual colour, should she be asked to change. Intepretation of those verses is a very personal thing and I honestly don’t think it’s mine or your place to decide. I wear hijab and i’m a professional young doctor and I personally don’t believe I should wear a niqab but if someone feels it’s necessary then so be it, i will not judge them nor should they judge me for showing my face.

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