Behind the burqa

By CHRIS BARTON

Esther Ducai wants to clarify something. "We do not condone women covering themselves. In fact, our literacy programme is to support women in Afghanistan to be set free."

The covering she is referring to goes by a variety of names - burqa, niqab, purdah - veiling the faces of Muslim women who wear it. Ducai, a Tear Fund programmes manager, who wore a burqa for protection when she was in Afghanistan, can sympathise with the women there who continue wearing it.

"For the women to feel safe enough to not cover up, the environment must be safe. Do not forget what these women have gone through. Two years ago women were publicly beaten if they accidentally showed their ankle.

"Every woman I have talked to has a lifetime story of grief and sadness, anger and fear. They have been locked away, denied access to freedom, education, work and basic human rights. If some of them do not feel safe yet, I do not blame them."

Who can? But the wearing of the niqab, or face veil, in an Auckland District Court - whether for cultural or religious reasons - has brought the issue to our backyard and become a complicated game of hide and seek in the case of Abdul Razamajoo, charged with receiving an insurance payment on a car by false pretences.

Two women, who came to New Zealand as refugees from Afghanistan, want to hide their faces when giving evidence for the police. But defence lawyer Colin Amery is vigorously seeking - in the interests of a fair trial - to see more than just the women's eyes.

The dilemma caused Judge Russell Callander to adjourn the case for three months. He will be weighing up which is the more important of two fundamental rights contained in New Zealand's Bill of Rights - the right of the accused to a fair trial or the right to freedom of religion.

But should he instruct Faraiba Razamajoo and Fouzya Salim to remove their veils in his court, he may find himself in the midst of a political incident.

If the two Muslim women refuse an order to unveil, they will be in contempt of court and subject to court sanction - such as imprisonment or fines - until they comply. That outcome may provide the opportunity for them to publicly profess their faith and piety, as martyrs prepared to be imprisoned for Islam - a cause celebre for religious and cultural freedom.

So far the women have refused to remove their veils, even when the police suggested closing the court to the public. One of the women told a Sunday newspaper she hoped the case would go to the High Court "because I want to help other Muslim women in this situation as well".

Malaysian lawyer and Islamic law expert Kamar Ainiah Kamaruzaman recognises the concern.

"There are extreme members of the Muslim community who would love to use this as an excuse to protest that Muslims are being discriminated against."

But she is also adamant that "in Islam it is not obligatory to veil your face in public" and says the few Muslim women who do veil their faces do so for cultural or historical reasons.

Nafreen Hannif, a national representative for the Islamic Women's Council, agrees.

"Covering of the face is not actually compulsory in Islam. One school of thought is that you do cover, but there are exceptions for business transactions and giving evidence in court so that people you are dealing with know who you are."


University of Auckland law professor Paul Rishworth believes it's better for the court to avoid the religious debate altogether and simply accept any claim that removing the veil violates religious precepts.

"It would be wrong for a court to rule on whether Islam truly requires veils."

Rishworth says the case hinges on the significance of the women's evidence and finding an acceptable way to get that.

He sees wearing a veil as broadly equivalent to testifying behind a screen - noting there are exceptions to face-to-face confrontation between witness and accused in our courts.

But if the women did testify with faces covered and the accused was convicted, an appeal would be highly likely on the grounds that he did not receive a fair trial.

By not seeing the women's faces, the defence would argue it was unable to assess the facial expressions, demeanour, body language and other cues essential to determining the credibility of the witnesses.

Kamar Ainiah says the wearing of veils has never arisen in Malaysian courts and seeing the women's faces is essential - "you want to know who is saying what". But compromises could be possible - primarily by removing men from the process.

"If they [the women] are so adamant and you don't want a head-on collision with the women and some extreme people in the Muslim community, perhaps you can arrange women police prosecutors and women defence lawyers to get that evidence in camera, if worst comes to worst and they can't be persuaded."

Judge Callander will also be looking at overseas case law, including that of Sultaana Freeman, who argued in a Florida court last year for the right to remain veiled for her driver's licence photo.

The court found "the requirement that all potential drivers have their driver's licence photos taken unveiled, uncloaked, and unmasked does not unconstitutionally burden the free exercise of religion" and dismissed her claim.

Other cases don't involve veils, but do concern the right of women to wear Islamic headscarves - the hijab or tudung - and other garments that cover the head, such as the chador and abaya.

Germany's constitutional court last year quashed an earlier lower court verdict banning a Muslim teacher from wearing her hijab in school, but at the same time authorised individual states to pass new laws to outlaw headscarves.

Hijabs are also banned from educational institutions in Turkey and Singapore.

France has gone for broke with its "secularity law", scheduled to come into force next month, which bans conspicuous religious insignia, including hijabs, Jewish yarmulkes, turbans and large Christian crosses from the classroom. That was in response to an official report that warned against the breakdown of society into racial and faith-based groups.

Europe's Court of Human Rights has sided with governments that want to ban the hijab in schools.

In the case of Leyla Sahin - denied access to an examination and enrolment on a course at the University of Istanbul for wearing a headscarf - the court held there was no violation of human rights covering the freedom of thought, conscience and religion.

It said restrictions could be placed on freedom to manifest one's religion in order to defend secular values and principles of equality.

That's in direct contrast to Britain and New Zealand where many schools allow students to wear headscarves, skull caps and other expressions of their faith.

Here, debate has also strayed into the cultural arena, including the right to wear Maori bone or pounamu carvings at school.

New Zealand is clearly not the fanatically secular society some would like to see.

But a case like this - and no doubt more to come - will test the boundaries of where such cultural and religious beliefs should begin and end.