The Niqab

An earlier version of this section of this series was published separately. It has now been rewritten in some parts.

  1. A Case Study of the Niqab

The jihab and the niqab become symbols as metaphors in our own self-transformation and definition.  The niqab is the veil worn by a small minority of Muslim women in this country. The following picture shows Zunera Ishaq with her niqab where the slit is very wide and the forehead and upper cheekbones can be seen. Many of us have seen Saudi women at airports where the slit is extremely narrow and some where even the eyes are covered by a netting as in wearing a burka.

The political issue arose over whether, when a person applies to become a Canadian citizen, they will be permitted to wear the veil in the public part of the ceremony. Of course, this is not how the issue was raised as part of electoral politics. The situation is made out as if it was about women being “forced” to hide their faces when they wish to become Canadian citizens. Or, at least, this is how our Prime Minister, Stephen Harper, and his partners in the Conservative Party in Canada, framed the issue.

The following are the “facts”:

  1. Two women in Canada since 2011 have refused to take off their niqabs in the public ceremony, not in private, as a condition of becoming citizens.
  2. There is no law requiring them to take off their niqabs in such ceremonies.
  3. The government of Canada issued regulations banning the wearing of face veils when taking the oath of citizenship in the public ceremony.
  4. Zunera Ishaq, clearly no wilting rose, took the Government of Canada to court over the issue.
  5. She won her court case and, just recently, in the Federal Court of Appeal, won again.
  6. The courts have ruled that the Canada Charter of Rights and Freedoms protects Zunera Ishaq from being forced to remove her veil during the public part of the ceremony and that she should be given the right to wear and veil in the public ceremony, become a citizen and be allowed to vote in the forthcoming election on 19 October.
  7. The latest ruling by the Federal Court of Appeal was on 18 September.
  8. The Government of Canada even lost the subsequent court case asking for a stay in allowing Zunera Ishaq her rights.
  9. This is but one of a long series of cases where the current Government of Canada has sought through regulations to get around the Charter of Rights and Freedoms; the government has been thwarted at every turn by the Canadian courts.
  10. Note that, before participating in the public ceremony where the oath is taken, any applicant for citizenship must go through a number of steps to prove the applicant’s identity.
  11. Those steps include, in the name of the principle of political accommodation, that Zunera Ishaq remove her veil in private before a female official to establish her identity.
  12. The public ceremony is the formal part of the occasion, one that, if you ever attend, is very moving for almost all participants.
  13.  The Conservatives, as part of the election campaign, promised to “rectify” the matter by introducing legislation within 100 days of taking office that will require those applying for citizenship to take off face coverings during the formal ceremony confirming citizenship.
  14. They promised to do this without first hearing from the Supreme Court of Canada whether such legislation would be legal under the Canadian Constitution.
  15. The Conservative Party also signalled that it even plans to introduce legislation banning any federal employee from wearing a niqab when serving the public.
  16. Further, Catherine Loubier, a spokeswoman for the Conservative Party, stated that the niqab issue was part of the Conservative “agenda” as a well-established principle of the party, and that the party has simply benefited from a “coincidence.”
  17. The real issue is that Stephen Harper is the one really wearing a metaphorical niqab behind which he has been hiding to distract Canadians from really examining closely his mismanagement of the economy, his destruction of the “civil” dimension of the Canadian civil service and the myriad of other issues on which he has a deplorable record.
  18. The previous Quebec government tried to pass a Charter on Quebec values, in the tradition of France and in the name of religious secularism – in France, girls at school are banned from wearing a hijab, that is a headscarf. The previous provincial government introduced laws banning the wearing of any ostentatious religious symbols by Quebec officials and others in particular situations.
  19. The opposition parties came out strongly against the Government position based, not on whether they liked or disliked women wearing the niqab, but on the basis of human rights and upholding Canadian law and the constitution.
  20. One result, as established by polls, is that support for the New Democratic Party in Quebec, from which the party had most of their members of parliament and the vast majority of Quebec seats, fell precipitously at a cost of most of their seats, though there were other factors at work in that decline.

One cannot but admire how Tom Mulcair as leader of the New Democratic Party has handled the issue as a matter of principle in spite of the political backlash against his and his party’s views. However, while praising his principles, one can also be disappointed in the way he handled the spin. He based his objections on two issues – first on the rights of these Muslim women and the rule of law in Canada. Second, he attacked Harper for using such a politically miniscule issue to arouse ethnic and religious fears in Canada and a degree of hostility to Muslims in Canada that is beneath the surface. His principles may be admired and his diagnosis correct, but his ability at political counter-attack may not be.

Naheed Nenshi, the Muslim mayor of Calgary, and perhaps the most popular politician in Canada, offered a very spirited attack on the Conservative position. He did so, not because he is a member of any other political party to the best of my knowledge. He was just absolutely appalled by the position of Stephen Harper and Jason Kenney, Harper’s leading cabinet minister. Nenshi made the following points;

  1. He personally does not like the niqab and wishes people would not wear it.
  2. The wearing of the niqab may not be, for the women who wear it, a symbol of oppression and of masculine misogyny.
  3. The government’s position was contradictory for, in the name of supposedly protecting women against the oppression of their husbands, their families and their tradition, the government adopted the position of oppression to tell women what they can wear in certain circumstances even when they knew that Zunera Ishaq had not been pressured by her family to wear the niqab, but, to the contrary, had discouraged her from adopting the practice.
  4. The government has far more important issues to debate at an election that what two women in the last four years have chosen to wear at a public ceremony in which the oath of citizenship is sworn together with a larger group of applicants.
  5. Those issues include the disappearance of large numbers of aboriginal women; the Harper Government of Canada refused to set up a Commission of Inquiry.

In spite of Nenshi’s intervention, and that of many others, including very articulate Muslim women who would never wear a niqab, polls initially indicated that a majority of Canadians, not just in Quebec, supported the Conservative Party position. Léger Marketing found 82 per cent were in support of the policy nationally, and 93 per cent in favour in Quebec.

I am not a political spin doctor. But I would have advised a slightly different approach than that of either Tom Mulcair or even Naheed Neshi or Justin Trudeau for that matter. First, as Nenshi did, I would have indicated that I do not particularly like women wearing a niqab – but because I enjoy seeing the beauty in a woman’s face. Secondly, even though tattooing has grown in popularity, I have a very much stronger distaste for people who adorn themselves with tattoos and have been an oppressive father who banned my children, while supported by me, from ever getting a tattoo. Nevertheless, I would never think of passing a law or regulation banning this form of ostentatious personal identification by a civil servant, a student or an individual seeking to become a citizen.

But a tattoo does not hide a person’s identity. In fact, it establishes it more clearly – ask the number of criminals who have been caught because they were identified by the specific tattoo they wore. True enough, but the criterion espoused by Harper was his personal distaste for the behaviour of women wearing a niqab, since objective evidence and fact establish unequivocally that it is not an identity issue. I once had a woman who wore a niqab to my class and never had any difficulty whatsoever in identifying her, in fact even less difficulty than identifying most of my students – I was very bad at that very important skill.

The basic point is that my personal distaste, whatever it is and however much anyone agrees or disagrees with it, should not be the basis for making Canadian law or regulations. Further, it is not only I who say so. The Courts of Canada have ruled on this issue over and over again. My position on tattoos may be very appealing, especially to a number of older people who are appalled at the increasing propensity of young people to wear tattoos. But when it comes to public space and civil discourse, it is none of my business.

Mulcair and Nenshi attacked Stephen Harper for introducing such a trivial issue in an election because it was being used as a wedge issue for those who feared the influx of Muslims into Canada. That may be the case, but a vast majority of Canadians support Harper’s position. I do not believe they are anti-Muslim. They are against the practice of women wearing niqabs. The political issue, as opposed to constitutional one, is to focus the debate, not on the personal taste of the proponents of a ban, but on principles, the laws of Canada and the rights of women. But one can best, I believe, shift the focus of debate only once establishing an identity with those Canadians who are opposed to women wearing a niqab period.

The courts can decide what is lawful and not lawful with respect to dictates of the government re requirements of dress or tattoos. My personal distaste is irrelevant. Rights are. Respect is critical. Next to these principles, your or my distaste is irrelevant. What is most relevant is Stephen Harper and the Conservative Party’s effort on tramping on what I believe are prime Canadian values – tolerance, respect – not just acceptance – of others, and recognition that I should never make my personal tastes, whether for vanilla ice cream, diet colas or niqabs, a basis for making public policy.

I am clearly a partialist who belongs to the secular religion of human rights while, at the same time, I deny that this secular religion has any transcendental base or role. I also belong to the secular religion of humanitarianism, or what I have called the HRH secular religion, again without any claim that such a foundation has a universal transcendent status. On this, credit must be given where credit is due, The MRM religious secularists do not claim a transcendent status for their religious convictions. In interviews with them, I found them to be immune to falsification even when presented with contradictory evidence, immune to considerations of contradictions in their position, and stubbornly intent on repeating over and over again the party line. But they were quite proud to insist it was their party line and made no claims to the universal status of their position. In contrast, members of the HRH secular religion were much more open to falsification, much more willing to critique and examine their claims, much more protean in the defence of their positions, but stubbornly insistent that the foundations of their belief were unassailable and universal.

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The Niqab and the Canadian Election

The Niqab and the Canadian Election

by

Howard Adelman

Forgive me for jumping out of my series on the Iran nuclear issue. But the issue of the niqab on which the results of the Canadian election may turn, is too important, precisely because it is so unimportant. For non-Canadian readers let me provide the context.

The niqab is the veil worn by a very small minority of Muslim women in Canada. Zunera Ishaq became the unsought for central player when Stephen Harper refused to admit her into Canadian citizenship unless she removed her veil or niqab in the public ceremonial swearing of allegiance. Zunera’s niqab has a very wide slit; the forehead and upper cheekbones can be seen. Many of us have seen Saudi women at airports where the slit is extremely narrow and some where even the eyes are covered by a netting as in wearing a burka.

The political issue arose over whether, when a person applies to become a Canadian citizen, they will be permitted to wear the veil in the public part of the ceremony. Of course, this is not how the issue was raised as part of electoral politics. The situation was made out as if it is about women being “forced” to hide their faces when they wish to become Canadian citizens and whether a person who hid her identity in public could swear an oath of allegiance. Or, at least, this is how our Prime Minister, Stephen Harper, and his partners in the Conservative Party in Canada framed the issue.

The following are the facts:

  1. Two women in Canada since 2011 have refused to take off their niqabs in the public ceremony, not in private, as a condition of becoming citizens.
  2. There is no law in Canada prohibiting the wearing of a niqab at the public ceremony where the citizenship oath is taken.
  3. The government of Canada issued regulations banning the wearing of face veils when taking the oath of citizenship in the public ceremony.
  4. Zunera Ishaq, clearly no wilting rose, took the Government of Canada to court over the issue.
  5. She won her court case and, just recently, in the Federal Court of Appeal, won again.
  6. The courts have ruled that the Canada Charter of Rights and Freedoms protects Zunera Ishaq from being forced to remove her veil during the public part of the ceremony and that she should be given the right to wear the veil in the public ceremony, become a citizen and be allowed to vote in the forthcoming election on 19 October.
  7. The latest ruling by the Federal Court of Appeal was on 18 September.
  8. The Government of Canada even lost the subsequent court case asking for a stay in allowing Zunera Ishaq her rights.
  9. Last Friday she exercised her rights, became a citizen and can vote in the elections on 19 October or in the advance poll.
  10. This is but one of a long series of cases where the current Government of Canada has sought through regulations to get around the Charter of Rights and Freedoms; the government has been thwarted at every turn by the Canadian courts.
  11. Note that, before participating in the public ceremony where the oath is taken, any applicant for citizenship must go through a number of steps to prove the applicant’s identity.
  12. Those steps include, in the name of the principle of political accommodation, that Zunera Ishaq remove her veil in private before a female official to establish her identity.
  13. The public ceremony is part of the ceremonial part of the occasion, one that if you ever attend is very moving for almost all participants.
  14.  The Conservatives, as part of the election campaign, promised to “rectify” the matter by introducing legislation within 100 days of taking office that will require those applying for citizenship to take off face coverings during the formal ceremony confirming citizenship.
  15. They promise to do this without first hearing from the Supreme Court of Canada whether such legislation would be legal under the Canadian Constitution and even though the party, if it wins the largest plurality of seats, will only be a minority government.
  16. The Conservative Party has also signalled that it even plans to introduce legislation banning any federal employee from wearing a niqab when serving the public.
  17. Further, Catherine Loubier, a spokeswoman for the Conservative Party, stated that the niqab issue was part of the Conservative “agenda” as a well-established principle of the party, and that the party has simply benefited from a “coincidence.”
  18. It appears that this may even be part of a future plan to allow a Conservative minority government to be defeated on such an issue and call an election to get a majority vote for the Conservative Party.
  19. The real issue is that Stephen Harper is the one really wearing a metaphorical niqab behind which he has been hiding to distract Canadians from really examining closely his mismanagement of the economy, his destruction of the “civil” dimension of the Canadian civil service and the myriad of other issues on which he has a deplorable record.
  20. In Canada, and in Quebec particular, the issue of wearing religiously identifying garments, particularly by civil servants serving the public, has become a contentious issue.
  21. In France, girls at school are banned from wearing a hijab, that is a headscarf, let alone a niqab. The Quebec Marois government which introduced the Charter on Quebec values and laws against the wearing of “ostentatious” religious symbols or garments was bent on banning the wearing of any ostentatious religious symbols by Quebec officials and others in particular situations; this was in the French tradition of religious secularism, laicité.
  22. The main opposition parties came out strongly against the Government position based, not on whether they liked or disliked women wearing the niqab, but on the basis of human rights and upholding Canadian law and the constitution.
  23. One possible result, as established by polls, is that support for the New Democratic Party in Quebec, where the party has most of their members of parliament and the vast majority of Quebec seats, has fallen precipitously; polls initially indicated that much of that shift favoured the Conservatives given the politics of fear and blanketing the airwaves with pictures of ominous happenings as a woman dawns a veil. More recent polls suggest a more significant shift to the Liberals. Since Justin Trudeau holds the same position on the niqab issue – namely that it is being used as a distraction and wearing it anywhere is a human right as interpreted by Canadian courts,
  24. The biggest irony of all is that a very feisty Zunera Ishaq donned the veil, not in the name of tradition, but in the name of her rights as a private person, in the name of the secular religion of Canada and against the advice and even pleas of family members.

One cannot but admire how Tom Mulcair as leader of the New Democratic Party has handled the issue as a matter of principle in spite of the political backlash against his and his party’s views. However, while praising his principles, one can also be disappointed in the way he handled the spin on the issue. He based his objections on two foundations – first on the rights of these Muslim women and the rule of law in Canada. Second, he attacked Harper for using such a politically miniscule issue to arouse ethnic and religious fears in Canada and a degree of hostility to Muslims that is beneath the surface. His principles may be admired, but his ability at political counter-attack, at counter-spin, may not be. In any case, he may have lost support in Quebec for a myriad of other reasons.

Naheed Nenshi, the Muslim mayor of Calgary and perhaps the most popular politician in Canada, offered a very spirited attack on the Conservative position. He did so, not because he is a member of any other political party to the best of my knowledge. He was just absolutely appalled by the position of Stephen Harper and Jason Kenney, Harper’s leading cabinet minister. Nenshi made the following points;

  1. He personally does not like the niqab and wishes people would not wear it.
  2. The wearing of the niqab may not be, for the women who wear it, a symbol of oppression and of masculine misogyny.
  3. The government’s position is contradictory, for in the name of supposedly protecting women against the oppression of their husbands, their families and their tradition, the government would adopt the position of oppression to tell women what they can wear in certain circumstances.
  4. The government has far more important issues to debate in an election than what two women in the last four years have chosen to wear at a public ceremony in which the oath of citizenship is sworn together with a larger group of applicants.
  5. Those issues include the disappearance of large numbers of aboriginal women, an issue on which the Government of Canada refuses to set up a Commission of Inquiry.

In spite of Nenshi’s intervention, and that of many others, including very articulate Muslim women who would never wear a niqab, polls initially indicated that a majority of Canadians, not just in Quebec, supported the Conservative Party position. Léger Marketing found 82 per cent were in support of the policy nationally, and 93 per cent in favour in Quebec.

I am not a political spin doctor. But I would have advised a slightly different approach than that of either Tom Mulcair or Naheed Neshi or Justin Trudeau for that matter. First, as Nenshi did, I would have indicated that I do not particularly like women wearing a niqab  – but because I enjoy seeing the beauty in a woman’s face. Secondly, even though tattooing has grown in popularity, I have a very much stronger distaste for people who adorn themselves with tattoos and have been an oppressive father who banned my children, while supported by me, from ever getting a tattoo. Nevertheless, I would never think of passing a law or regulation banning this form of ostentatious personal identification by a civil servant, a student or an individual seeking to become a citizen.

But a tattoo does not hide a person’s identity. In fact, it establishes it more clearly – ask the number of criminals who have been caught because they were identified by the specific tattoo they wore. True enough, but the criterion espoused by Harper was his personal distaste for the behaviour of women wearing a niqab, since objective evidence and fact establish unequivocally that it is not an identity issue. I once had a woman who wore a niqab to my class and never had any difficulty whatsoever in identifying her, in fact even less difficulty than identifying most of my students – I was very bad at that very important skill.

The basic point is that my personal distaste, whatever it is and however much anyone agrees or disagrees with it, should not be the basis for making Canadian law or regulations. Further, it is not only I who say so. The Courts of Canada have ruled on this issue over and over again. My position on tattoos may be very appealing, especially to a number of older people who are appalled at the increasing propensity of young people to wear tattoos. But when it comes to public space and civil discourse, it is none of my business.

Mulcair and Nenshi attacked Stephen Harper for introducing such a trivial issue in an election because it was being used as a wedge issue for those who feared the influx of Muslims into Canada. That may be the case, but a vast majority of Canadians support Harper’s position and I do not believe they are anti-Muslim. They are against the practice of women wearing niqabs. The political issue, as opposed to constitutional one, is to focus the debate, not on their personal taste, but on principles, the laws of Canada and the rights of women. But one can best, I believe, shift the focus of debate only once establishing an identity with those Canadians who are opposed to women wearing a niqab.

The courts can decide what is lawful and not lawful with respect to dictates of the government re requirements of dress or tattoos. My personal distaste is irrelevant. Rights are. Respect for differences is critical. What is most relevant is Stephen Harper’s and the Conservative Party’s effort on tramping on what I believe are prime Canadian values – tolerance, respect, not just acceptance, of others – and recognition that I should never make my personal tastes, whether for vanilla ice cream, diet colas or niqabs, a basis for making public policy.

Why did Harper adopt this position? He certainly used it to sew fear and division, but the incident really fell into his lap. It had long been Conservative public policy. Therefore, it is doubtful whether the debate over the wearing of niqabs at public rituals when swearing an Oath to the Queen was intended as a wedge issue, though it was certainly played up for that use.

The explanation however lies deeper. Stephen Harper is a classical small “l” liberal when it comes to the separation of religion from the public political sphere and from civil society. His prime enemy is not socialism or the nanny state, though these are lined up for extinction. His main enemy is the secular liberal religion of human rights. He is a traditional Conservative or classical liberal who believe that religious affiliation, beliefs and commitments belong to the private sphere. Harper is not a member of the secular religion of rights or humanitarianism. He deeply and sincerely believes in Machiavellianism as the guide to practice in the public sphere. Faith is a private matter. The public believes, especially Quebecers, that religion must be excluded from public life. Harper adds to that belief a conviction that the public realm is the sphere governed by power, not by faith, by manipulation rather than tolerance, reasonable accommodation and inclusion. Harper practices the politics of exclusion and works hard to divide the public polity to gain enough support, even if it is minority support, to defeat those who have faith in the liberal secular religion of rights.

he public sphere and especially political elections offer the arena where these secular religious wars are fought. Hopefully, Harper will lose this battle.

 

The Niqab and the Canadian Election

The Niqab and the Canadian Election

by

Howard Adelman

Forgive me for jumping out of my series on the Iran nuclear issue. But the issue of the niqab on which the results of the Canadian election may turn, is too important, precisely because it is so unimportant. For non-Canadian readers let me provide the context.

The niqab is the veil worn by a very small minority of Muslim women in Canada. Zunera Ishaq became the unsought for central player when the Stephen Harper refused to admit her into Canadian citizenship unless she removed her veil or niqab in the public ceremonial swearing of allegiance. Zunera’s niqab has a very wide slit; the forehead and upper cheekbones can be seen. Many of us have seen Saudi women at airports where the slit is extremely narrow and some where even the eyes are covered by a netting as in wearing a burka.

The political issue arose over whether, when a person applies to become a Canadian citizen, they will be permitted to wear the veil in the public part of the ceremony. Of course, this is not how the issue was raised as part of electoral politics. The situation was made out as if it is about women being “forced” to hide their faces when they wish to become Canadian citizens and whether a person who hid her identity in public could swear an oath of allegiance. Or, at least, this is how our Prime Minister, Stephen Harper, and his partners in the Conservative Party in Canada framed the issue.

The following are the facts:

  1. Two women in Canada since 2011 have refused to take off their niqabs in the public ceremony, not in private, as a condition of becoming citizens.
  2. There is no law in Canada prohibiting the wearing of a niqab at the public ceremony where the citizenship oath is taken.
  3. The government of Canada issued regulations banning the wearing of face veils when taking the oath of citizenship in the public ceremony.
  4. Zunera Ishaq, clearly no wilting rose, took the Government of Canada to court over the issue.
  5. She won her court case and, just recently, in the Federal Court of Appeal, won again.
  6. The courts have ruled that the Canada Charter of Rights and Freedoms protects Zunera Ishaq from being forced to remove her veil during the public part of the ceremony and that she should be given the right to wear the veil in the public ceremony, become a citizen and be allowed to vote in the forthcoming election on 19 October.
  7. The latest ruling by the Federal Court of Appeal was on 18 September.
  8. The Government of Canada even lost the subsequent court case asking for a stay in allowing Zunera Ishaq her rights.
  9. Last Friday she exercised her rights, became a citizen and can vote in the elections on 19 October or in the advance poll.
  10. This is but one of a long series of cases where the current Government of Canada has sought through regulations to get around the Charter of Rights and Freedoms; the government has been thwarted at every turn by the Canadian courts.
  11. Note that, before participating in the public ceremony where the oath is taken, any applicant for citizenship must go through a number of steps to prove the applicant’s identity.
  12. Those steps include, in the name of the principle of political accommodation, that Zunera Ishaq remove her veil in private before a female official to establish her identity.
  13. The public ceremony is part of the ceremonial part of the occasion, one that if you ever attend is very moving for almost all participants.
  14.  The Conservatives, as part of the election campaign, promised to “rectify” the matter by introducing legislation within 100 days of taking office that will require those applying for citizenship to take off face coverings during the formal ceremony confirming citizenship.
  15. They promise to do this without first hearing from the Supreme Court of Canada whether such legislation would be legal under the Canadian Constitution and even though the party, if it wins the largest plurality of seats, will only be a minority government.
  16. The Conservative Party has also signalled that it even plans to introduce legislation banning any federal employee from wearing a niqab when serving the public.
  17. Further, Catherine Loubier, a spokeswoman for the Conservative Party, stated that the niqab issue was part of the Conservative “agenda” as a well-established principle of the party, and that the party has simply benefited from a “coincidence.”
  18. It appears that this may even be part of a future plan to allow a Conservative minority government to be defeated on such an issue and call an election to get a majority vote for the Conservative Party.
  19. The real issue is that Stephen Harper is the one really wearing a metaphorical niqab behind which he has been hiding to distract Canadians from really examining closely his mismanagement of the economy, his destruction of the “civil” dimension of the Canadian civil service and the myriad of other issues on which he has a deplorable record.
  20. In Canada, and in Quebec particularly the issue of wearing religiously identifying garments, particularly by civil servants serving the public, has become a contentious issue.
  21. In France, girls at school are banned from wearing a hijab, that is a headscarf, let alone a niqab. The Quebec Marois government which introduced the Charter on Quebec values and laws against the wearing of “ostentatious” religious symbols or garments introduced laws banning the wearing of any ostentatious religious symbols by Quebec officials and others in particular situations; this was in the French tradition of religious secularism, laicité.
  22. The opposition parties came out strongly against the Government position based, not on whether they liked or disliked women wearing the niqab, but on the basis of human rights and upholding Canadian law and the constitution.
  23. One possible result, as established by polls, is that support for the New Democratic Party in Quebec, where the party has most of their members of parliament and the vast majority of Quebec seats, has fallen precipitously; polls initially indicated that much of that shift favoured the Conservatives given the politics of fear and blanketing the airwaves with pictures of ominous happenings as a woman dawns a veil. More recent polls suggest a more significant shift to the Liberals. Since Justin Trudeau holds the same position on the niqab issue – namely that it is being used as a distraction and wearing it anywhere is a human right as interpreted by Canadian courts,
  24. The biggest irony of all is that a very feisty Zunera Ishaq donned the veil, not in the name of tradition, but in the name of her rights as a private person, in the name of the secular religion of Canada and against the advice and even pleas of family members.

One cannot but admire how Tom Mulcair as leader of the New Democratic Party has handled the issue as a matter of principle in spite of the political backlash against his and his party’s views. However, while praising his principles, one can also be disappointed in the way he handled the spin on the issue. He based his objections on two foundations – first on the rights of these Muslim women and the rule of law in Canada. Second, he attacked Harper for using such a politically miniscule issue to arouse ethnic and religious fears in Canada and a degree of hostility to Muslims that is beneath the surface. His principles may be admired, but his ability at political counter-attack, at counter-spin, may not be. In any case, he may have lost support in Quebec for a myriad of other reasons.

Naheed Nenshi, the Muslim mayor of Calgary and perhaps the most popular politician in Canada, offered a very spirited attack on the Conservative position. He did so, not because he is a member of any other political party to the best of my knowledge. He was just absolutely appalled by the position of Stephen Harper and Jason Kenney, Harper’s leading cabinet minister. Nenshi made the following points;

  1. He personally does not like the niqab and wishes people would not wear it.
  2. The wearing of the niqab may not be, for the women who wear it, a symbol of oppression and of masculine misogyny.
  3. The government’s position is contradictory for, in the name of supposedly protecting women against the oppression of their husbands, their families and their tradition, the government would adopt the position of oppression to tell women what they can wear in certain circumstances.
  4. The government has far more important issues to debate in an election than what two women in the last four years have chosen to wear at a public ceremony in which the oath of citizenship is sworn together with a larger group of applicants.
  5. Those issues include the disappearance of large numbers of aboriginal women, an issue on which the Government of Canada refuses to set up a Commission of Inquiry.

In spite of Nenshi’s intervention, and that of many others, including very articulate Muslim women who would never wear a niqab, polls initially indicated that a majority of Canadians, not just in Quebec, supported the Conservative Party position. Léger Marketing found 82 per cent were in support of the policy nationally, and 93 per cent in favour in Quebec.

I am not a political spin doctor. But I would have advised a slightly different approach than that of either Tom Mulcair or Naheed Neshi or Justin Trudeau for that matter. First, as Nenshi did, I would have indicated that I do not particularly like women wearing a niqab  – but because I enjoy seeing the beauty in a woman’s face. Secondly, even though tattooing has grown in popularity, I have a very much stronger distaste for people who adorn themselves with tattoos and have been an oppressive father who banned my children, while supported by me, from ever getting a tattoo. Nevertheless, I would never think of passing a law or regulation banning this form of ostentatious personal identification by a civil servant, a student or an individual seeking to become a citizen.

But a tattoo does not hide a person’s identity. In fact, it establishes it more clearly – ask the number of criminals who have been caught because they were identified by the specific tattoo they wore. True enough, but the criterion espoused by Harper was his personal distaste for the behaviour of women wearing a niqab, since objective evidence and fact establish unequivocally that it is not an identity issue. I once had a woman who wore a niqab to my class and never had any difficulty whatsoever in identifying her, in fact even less difficulty than identifying most of my students – I was very bad at that very important skill.

The basic point is that my personal distaste, whatever it is and however much anyone agrees or disagrees with it, should not be the basis for making Canadian law or regulations. Further, it is not only I who say so. The Courts of Canada have ruled on this issue over and over again. My position on tattoos may be very appealing, especially to a number of older people who are appalled at the increasing propensity of young people to wear tattoos. But when it comes to public space and civil discourse, it is none of my business.

Mulcair and Nenshi attacked Stephen Harper for introducing such a trivial issue in an election because it was being used as a wedge issue for those who feared the influx of Muslims into Canada. That may be the case, but a vast majority of Canadians support Harper’s position and I do not believe they are anti-Muslim. They are against the practice of women wearing niqabs. The political issue, as opposed to constitutional one, is to focus the debate, not on their personal taste, but on principles, the laws of Canada and the rights of women. But one can best, I believe, shift the focus of debate only once establishing an identity with those Canadians who are opposed to women wearing a niqab.

The courts can decide what is lawful and not lawful with respect to dictates of the government re requirements of dress or tattoos. My personal distaste is irrelevant. Rights are. Respect for differences is critical. What is most relevant is Stephen Harper and the Conservative Party’s effort on tramping on what I believe are prime Canadian values – tolerance, respect, not just acceptance, of others – and recognition that I should never make my personal tastes, whether for vanilla ice cream, diet colas or niqabs, a basis for making public policy.

Why did Harper adopt this position? He certainly used it to sew fear and division, but the incident really fell into his lap. It had long been Conservative public policy. Therefore, it is doubtful whether the debate over the wearing of niqabs at public rituals when swearing an Oath to the Queen was intended as a wedge issue, though it was certainly played up for that use.

The explanation however lies deeper. Stephen Harper is a classical small “l” liberal when it comes to the separation of religion from the public political sphere and from civil society. His prime enemy is not socialism or the nanny state, though these are lined up for extinction. His main enemy is the secular liberal religion of human rights. He is a traditional Conservative or classical liberal who believe that religious affiliation, beliefs and commitments belong to the private sphere. Harper is not a member of the secular religion of rights or humanitarianism. He deeply and sincerely believes in Machiavellianism as the guide to practice in the public sphere. Faith is a private matter. The public believes, especially Quebecers, that religion must be excluded from public life. Harper adds to that belief a conviction that the public realm is the sphere governed by power, not by faith, by manipulation rather than tolerance and inclusion. Harper practices the politics of exclusion and works hard to divide the public polity to gain enough support, even if it is minority support, to defeat those who have faith in the liberal secular religion of rights.

The public sphere and especially political elections offer the arena where these secular religious wars are fought. Hopefully, Harper will lose this battle.

Niqabs and the Canadian Citizenship Oath

Niqabs and the Canadian Citizenship Oath

by

Howard Adelman

Preamble

I am en route back to Canada so a requirement of Canadian citizenship for new Canadians, namely the oath of allegiance, is an appropriate topic raised in Michiel’s email to me yesterday which I first read last evening. Further since this issue is primarily a thought exercise requiring only reading the documents referred to as well as the federal court ruling, and does not require extensive research, it is a great way to fill my early morning hours.

Michiel Horn sent me Cliff Orwin’s discussion of Harper’s opposition to wearing the niqab when an immigrant takes a citizenship oath to become a Canadian citizen. A niqab, a veil that covers all but the eyes of the face of a Muslim woman, is required by some ultra-orthodox Muslims to be worn when in public in the presence of a non-mahram male, that is, a mature male past puberty who is not a relative of the immediate extended familys. Thus, fathers, grandfathers, great-grandfathers, siblings, children, grandchildren, uncles, cousins, nephews, father-in-law, son-in-law, and further refinements are mahraim. Essentially, if a Muslim married a mahram, this would constitute incest.

I have forwarded Michiel Horn’s e-mail separately since I was not able to technically include it within this blog. The references were to the following:

http://www.theglobeandmail.com/globe-debate/stephen-harpers-veiled-attack-on-religious-freedom/article23044095/

http://tvo.org/video/211154/clifford-orwin-niqab-or-no-niqab

http://www.theglobeandmail.com/globe-debate/no-room-at-the-inn-for-veiled-women-get-real-canada/article1214841/

My response has little to do with Harper’s political motives – which are often questionable. It has more to do with Cliff’s critique that is correct as far as it goes. However, the critique, on the one hand, went too far since the court found in favour of Zunera Ishaq, not on the basis of the constitutional challenge and the respect for religion and requirement of tolerance, but on errors in administrative law in a government making something mandatory and incumbent on judges to implement when the applicable legislation permitted no such action. More importantly for the point I want to make, Cliff’s argument does not go nearly far enough to unpack the underlying issue. Once unpacked, a whole different dimension of the issue emerges. But first let me briefly recapitulate first Harper’s position, Cliff’s response and that of the Federal Court that found in favour of Zunera Ishaq.  

Minister Stephen Harper’s Position

Harper stated in parliament, and did so most vociferously, that it is “offensive” for a new applicant for Canadian citizenship to wear a face covering niqab when taking an oath to become a Canadian citizen. Actually, he said it was offensive because at the time of the oath the individual was “joining the Canadian family” not becoming a Canadian citizen. The two are not the same as Cliff noted. This policy was introduced by Jason Kenney as Minister of Immigration and Citizenship on 11 December 2011. Kenney argued that 80% of Canadians oppose wearing a niqab when taking an oath of citizenship. Harper vowed to appeal the Federal Court decision. (More tomorrow on that vow.)

Clifford Orwin’s Views

Cliff Orwin argued that Harper’s position is totally wrong and made Jason Kenney’s tending to religious suppression even more heinous. It is not an issue of numbers. Cliff does not care that the ruling only applies to one hundred women in Canada – actually, it applies to one hundred women per year, but this is a technicality since the point is the rule affects relatively few of the quarter million individuals who become citizens each year. Nor does it matter that 80% of Canadians follow Harper’s lead and abhor that a religious Muslim woman be allowed to wear a niqab at a public ceremony where the oath of allegiance to Canada is sworn. Nor does Cliff think that Harper’s appeal to transparency and openness is at all relevant. “Liberal democracy isn’t about compulsory baring of ourselves (or our faces) to others.” Nor is calling the Canadian society a “family” relevant, for in taking the oath of citizenship, one is not joining one big family, but simply acquiring membership in a state. For Cliff, it is about the fundamental small “l” liberal belief in “the right of each of us to lead a life of our own, in religious matters as elsewhere,” as long as in doing so we do not harm another. Offending someone is not prohibited by the Charter of Rights and Freedoms.

Freedom of worship is a Canadian value. The Canadian Charter of Rights requires respect for religious freedom. Transparency and openness are appreciated by Canadians, but unburdening ourselves, as one might do in a family, is neither protected nor expected by the Charter. Nor is the issue one of respecting local customs – “when in Rome” – for wearing a niqab is a religious practice, not an expression of local custom. So custom is not the issue. The right to wear the niqab as a form of religious expression is. When Paikin asked Cliff whether it was alright for an immigrant to wear a Nazi storm trooper uniform when taking an oath of citizenship, Cliff insisted the issue was not the same. Wearing a Nazi storm trooper uniform is not ok because it is not a religious expression, but an expression of intolerance. Therefore, it is not a parallel circumstance.

To repeat, the issue for Cliff was not whether the vast majority of Canadians abhorred the practice of women who believe it is appropriate to wear a niqab, particularly at a Canadian citizenship ceremony when taking an oath of citizenship. What the vast majority of Canadians abhor about a piece of apparel when that apparel is worn for religious reasons is of no consequence. There are indeed legitimate reasons why wearing a niqab rubs people the wrong way. A man wearing shorts and sandals leading a woman in a burka in a doctor’s office may be repugnant to someone also sitting in that office, but the woman wearing the burka has as much right to wear the burka as the other woman in the office has the right to be repulsed by the practice. Again, the reaction to wearing a niqab is irrelevant to the right of the woman to wear the niqab, including when taking an oath of citizenship. A niqab-wearing Muslim woman may not be Harper’s type of Canadian, but hopefully all Canadians do not and will not conform to what Harper thinks is a right kind of Canadian but, rather, what the law determines.

Paikin offered another example posed by a commentator to Cliff’s Globe and Mail op-ed. She said that, at a citizenship oath ceremony, she had observed a man taking the oath of citizenship, shaking the judge’s hand and receiving a certificate but when his wife took the oath, he insisted that she could not shake the judge’s hand and the husband took the certificate on her behalf. Cliff insisted this was not ok. The reason was because, in this case, the man was interfering with the wife’s freedoms. Presumably, if she declined to shake hands with the judge and personally requested that her husband receive the certificate on her behalf, that would be ok. It is the interference with the right of the individual to make her own religious beliefs known that was evidently the problem.

Paikin asked whether some aspects of the Muslim religion were essentially intolerant, especially of other religious beliefs. Whether or not that was the case, Cliff replied, was not relevant since the person taking the oath vowed to subscribe to the laws of Canada that dictated respect for the religious beliefs of others. It was presumed that just as her avowal of her religious beliefs was sincere, so it must be presumed that her oath of Canadian citizenship must be presumed to be sincere. I will return to this issue, but as a segue into the next section it has to be noted that while Cliff defended the right of the woman to wear the niqab on charter grounds, these were not the grounds the federal court struck down the 11 December 2011 policy banning women from wearing a niqab at a citizenship oath ceremony.

The Legal Case

The case arose when Ms. Zunera Ishaq, a Pakistani Muslim immigrant, following Hanafi beliefs that require devout Muslim women to wear a niqab in public, applied to have her citizenship ratified by taking an oath of allegiance to Canada. A permanent resident of Canada as of 25 October 2008, her citizenship was approved by a citizenship judge on 30 December 2013 after proper identification was made on 22 November 2013 (at which time she removed her niqab in front of a female immigration officer). Zunera Ishaq was granted citizenship on 2 January 2014. The citizenship ceremony to consummate the awarding of that citizenship was scheduled for 14 January 2014. However, for the citizenship to be consummated, she had to take an oath of allegiance to Canada before a citizenship judge. The citizenship oath that she was still required to take reads as follows:

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.

At the time she removed her veil for identity purposes, she was also advised that when taking the citizenship oath, she would also be required to remove her veil. She presumed that this also could take place in private in front of a female citizenship judge. However, she learned that Operational Bulletin 359 introduced by CIC on 12 December 2011 required removal of any face covering for the oath taking part of the citizenship public ceremony. As the CIC officials testified in court, prior to 12 December 2011 the judge only needed to be satisfied that people had taken the oath; after 12 December, the judge was required to witness the person taking the oath and not simply hear the oath, meaning that neither monks sworn to silence nor mutes could take the oath. More specifically,

[C]andidates wearing face coverings are required to remove their face coverings for the oath-taking portion of the ceremony.

However, the regulation went on:

“If they do not [take off the face covering], they will not receive their citizenship certificates and will have to attend a different ceremony. If they again do not comply, then their application for citizenship will be ended.”

The presumption was that this alternative ceremony would allow her to take off her niqab in private before a female citizenship judge. However, she was warned that this would not be the case. Further, all compromises proposed meant that she would be required to remove her veil before unrelated adult males. Both the initial and the alternative ceremonies were public. So Zunera Ishaq appealed to the Federal Appeal Court in accordance with the provisions of the Immigration Act. She did not wait to be ordered to remove her face covering but appealed the regulation in anticipation of this outcome.

The government would claim in court that this made the whole appeal moot since no action had been taken that either did or did not abuse her rights. I would argue it was a silly argument – since the issue is that you are affected by a regulation, and not whether you are affected in a very specific way. The government further claimed that the citizenship judge, as an independent official, might have disregarded the policy, but section 1 of the manual specifically says the regulations bind the judges. Both of these government responses to Zunera Ishaq’s claims were rightly ruled as invalid.

The issues were as follows:

  1. a declaration that the Policy infringes paragraph 2(a) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] [regarding respect for religious beliefs];
  2. a declaration that the Policy infringes section 15(1) of the Charter [prohibits discrimination on the grounds of religion and sex];
  3. a declaration that the Policy is inconsistent with the governing legislation and is therefore beyond the powers of the Respondent [what constitutes proof that she took the oath];
  4. a declaration that the Policy unduly fetters the discretion of citizenship judges [a contention under administrative law];
  5. an order enjoining the Respondent and any officials of the Respondent from refusing citizenship to the Applicant on the basis of the Bulletin; and
  6. her costs.

In this case, there were technical issues as well as constitutional ones at stake concerning dates of notice and to whom notice was to be given, but we can ignore these for they had no effect on the substantive case and were ruled as inapplicable. Further, the above-mentioned CIC regulation was not

promulgated under sections 27(g) and 27(h) of the Act, which permit the Governor in Council to make regulations “(g) prescribing the ceremonial procedures to be followed by citizenship judges” and “(h) respecting the taking of the oath of citizenship.”

The intention of the policy was that it be mandatory. On that ground, and on that ground alone, the court found the position of the government to be inconsistent with the legislation and invalid.

Tomorrow: The Deeper Issue – Potentially Conflicting Oaths