The Supreme Court of Canada did not Violate the Complainant’s Constitutional Right of Freedom of Religion: The Hijab and the Niqab are not Religiously Mandated

By June 20, 2018 No Comments

Recently, the author of the article, Unveiling the Truth: The Importance of Psychological Literature in Informing the Canadian Legal System, which was published in Canada’s premier psychology magazine, Psynopsis, 2018, Vol. 40, No.1, discussed the Supreme Court of Canada (SCC) ruling re R. vs. N.S. by a majority ruling N.S. was required to remove her niqab. The SCC further ruled that the niqab should be removed when evidence is likely to be contested and cross-examination is likely to occur.

Citing a number of empirical studies concerning the questionable ability of individuals to discriminate between truth-tellers and liars, the author argued that “the vast majority of cues that could potentially be garnered from the removal of the niqab had negligible impact on differentiating truth-tellers from liars.” She concluded that, “without the scientific findings to consider, the SCC based their decision on what they had available to them – layperson beliefs and customs regarding demeanor. However, by doing so, layperson beliefs were used to override the complainant’s constitutional right to freedom of religion”.[1]

I submit that the author made the same mistake that she accuses the honourable Supreme Court Judges of making. She relied on the laypersons’ beliefs that wearing a niqab is related to freedom of religion without considering the opinions of scholars in Islamic law who have addressed the issue of Muslim women covering their heads.

The head covering most commonly used by women in modern Islamic countries such as Egypt, is the hijab. The hijab does not cover the face but covers the hair and in most cases the neck. Women in Saudi Arabia, and other more conservative gulf state countries, resort as well to the niqab that covers the whole face except for the eyes.

A great number of scholars of Islamic Law provided evidence to demonstrate that the hijab and the niqab are not religiously mandated (i.e., not religious duty). The following are examples of the plethora of opinions rendered on this topic. In 1994 Justice Al-Ashmawi (who was an expert in comparative and Islamic law at Cairo University, an Egyptian Supreme Court justice and former head of the Court of State Security) wrote his first of several articles to demonstrate that the hijab is not an Islamic obligation nor is it religiously mandated.[2]Later, Al-Ashmawi published a book which included his articles on this topic, whose title is loosely translated to, The Fact of the Hijab and Authentic Talk.

More recently, in 2012, Sheik Rashid received his doctorate degree in Law and Sharia from Al-Azhar University (the oldest and highest most authoritative Islamic educational institute in the world) by demonstrating that the hijab is not mandated by Islam.[3]

In 2006, Dr. Ali Gomaa the Grand Mufti of Egypt declared that the niqab is not religiously mandated. The Grand Mufti is the top theological authority of Al-Azhar University, the highest seat of Sunni Muslim learning in the world. Part of his job is to issue legal opinions and edicts, fatwas, and interpretations of Islamic jurisprudence. A few years later, in 2009, the Grand Sheik of Al-Azhar, stated that the niqab has nothing to do with Islam and is a sign of radicalism.[4]

In 2006, Iqbal Barak, the editor of the Egyptian magazine Hawa, asserted that both the hijab and niqab are not religiously mandated.[5]Additionally, a famous Egyptian newspaper columnist, Mr. Salama Ahmad Salama, stated that, “wearing the niqab is as outrageous as wearing a bathing suit or pajamas to the office.”[6] It was also reported that the head of the Islamic Department of the women’s college at Al-Azhar University said she was “disgusted by women in niqab.”  Armed with the “experts’” knowledge that the niqab is not religiously mandated, in 2009 the president of the Egyptian Helwan University banned women who wear niqab from living in its hostel[7]and in 2015, a decision was made to exclude women wearing the niqab from teaching at Cairo University.[8]More recently, in 2018 Denmark joined other European countries (Austria, France and Belgium) in banning garments that cover the face, including veils such as the niqab or burqa.[9]

After reading the above noted scholarly evidence, it seems unreasonable to conclude that that the Supreme Court of Canada violated the “complainant’s” constitutional right to freedom of religion. The evidence demonstrates that removal of the niqab during testimony is not a restriction of a Muslim woman’s religious freedom by exact religious standards

Several reasons have been advanced to explain the emergence of the hijab and the much less frequently used niqab, which were not commonly seen before the 1960s in most of the modern Arab countries, such as Egypt. These reasons include: Islamic extremists who promoted the Islamized dress code including use of the hijab or niqab for political reasons. They wanted to unite in a fashion that would underscore their distinctiveness from their surrounding societies; Economic reasons to save the cost and time of women of caring for their hair; A means for men to control their women; A way of making young men believe that girls wearing the hijab or niqab are more religious and would therefore would make better wives.

Many thanks to Ms. J. O’Callaghan and Dr. D. Nussbaum for reviewing this article and their helpful comments.