Canada’s Supreme Court rejects niqab ban

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by Khadija Ali

 

Much to the chagrin of the Islamophobes and their fellow travellers from among the lunatic fringe of Muslims, the Supreme Court of Canada rejected the call to ban the niqab in courts when Muslim women testify. The majority opinion written by the honourable Chief Justice, Beverley McLaghlin laid out a four-step approach for judges to consider about the niqab use in courts.

In a landmark decision on December 20, the Supreme Court of Canada ruled that a woman cannot be denied the right to wear the niqab (face covering veil) in a courtroom trial, barring some exceptions. In a 4-2-1 ruling that was written by Chief Justice Beverley McLachlin, the majority of justices said that there could be no outright ban on niqab in courts when a witness testifies, but its use will have to be determined on a case-by-case basis.

Two justices dissented from this view while one called for unfettered use of the niqab. Justice Louis LeBel and Justice Marshall Rothstein said it should be banned outright because it went against “the tradition that justice is public and open to all…” The dissenting judges also argued that a ban on niqab in the courtroom would convey “openness of the trial process.” This left the question unanswered as to how justice would be open to all if a niqab-clad woman were deterred from coming forward. The justices that ruled in favor of allowing the niqab raised precisely this point: banning hijab would prevent some women from coming forward, especially in sexual assault cases, from testifying in court, thereby denying them justice.

The case came before the Supreme Court because a lower court had ruled that a Muslim woman, identified only as NS, must remove her niqab while testifying in court in a trial in which she accused her uncle and cousin of sexually molesting her when she was a child. Lawyers for the defence argued that she must be forced to remove the niqab in order to determine her facial expressions while testifying. Norris Weisman, the presiding judge at the preliminary hearing in the case in 2008 insisted she must remove the niqab. He argued, based on the fact that the woman had removed her niqab to get a driver’s license as well as at airport security check, that her “religious belief is not that strong.” This decision was appealed to two higher courts before ending in the Supreme Court of Canada.

The 74-year-old Weisman has been involved in other controversial decisions as well since his appointment to the bench in 1975. One of his earliest decisions led to the death of a one-month-old child, Vicky Star Ellis. The child was sent home to her mother, upon the advice of a social worker. Three weeks later the child was dead. It aroused so much concern and created such controversy that the provincial government was forced to order a coroner’s inquest in 1977 into the infant’s death.

Weisman’s controversial niqab ruling led the Supreme Court justices to address the issues of religious freedom versus other values in society and how to strike a balance between them. In writing for the majority, Chief Justice Beverley McLachlin acknowledged that there are conflicting interests. The “Canadian approach”, she wrote, has been to “respect the individual’s religious belief and accommodate it if at all possible.” For instance, the Sikhs are allowed to wear the turban as well as carry the kirpan (dagger) when appearing in court although traditionally, weapons of any kind by civilians are prohibited inside a courtroom. Respect for individual’s religious belief is entrenched in Canadian laws.

One of the more contentious issues before the justices was that of a witness’ demeanor while testifying. Would a woman’s niqab create serious risk to a fair trial, a fundamental pillar of the justice system? Facial expression during cross-examination is considered important in assessing the credibility of a witness. This was one of the arguments used by Justice LeBel and Justice Rothstein in rejecting the niqab. While they admitted that the appeal “illustrates the tension and changes caused by the rapid evolution of contemporary society and by the growing presence in Canada of new cultures, religions, traditions and social practices,” their approach is to firmly refuse any accommodation with such changes. They insist that a veiled accuser does not square with the “constitutional values of openness and religious neutrality in contemporary democratic, but diverse, Canada.”

Justice Rosalie Abella, however, took issue with this argument. In many instances, demeanor may be difficult to assess, she argued. Impediments include the use of an interpreter, speech impairment, or partial facial paralysis due to stroke. Accordingly, Justice Abella said, “witnesses who wear niqabs should not be treated any differently.” Banning niqab would discourage women from coming forward to press charges especially in sexual assault cases and that would be a denial of justice to these women.

Chief Justice McLachlin agreed with this argument but approached it from a different perspective saying a total ban on the niqab is an intrusion by the state that is not consistent with the Canadian Charter of Rights. The honorable Chief Justice said the onus was on the state to show that such an intrusion was in the public good.

A leading Muslim lawyer, Faisal Bhabha who works for the Canadian Council on American-Islamic Relations (CAIR-CAN), interpreted the ruling as a strong endorsement that a veiled Muslim woman has “a presumptive right to maintain her religious practice.” He said the decision means “that the justice system has a duty to accommodate and that the onus will be on the other party to show that there is a ‘serious’ risk to trial fairness.” Addressing the “sincerity of belief” test, Bhabha said, “All that is required to invoke her Charter rights is a sincere belief that it is a religious duty.” Chief Justice McLaghlin agreed with this interpretation saying it does not matter if the person’s understanding of religious practice is an opinion held by a minority in the particular faith community.

This is a reference to the fact that not all Muslims agree on whether the niqab is mandatory for a woman. This was also the argument invoked by a tiny group of secular Muslims who lobbied against allowing the woman to wear the niqab. This group is opposed to Islam per se; they openly flout Islamic injunctions and mock Islamic practices but are given publicity in the Islamophobic media because it is fashionable to denigrate Islam and Muslims. This tiny but noisy minority of Muslims wants a total ban on niqab anywhere in Canada. While claiming to uphold democratic principles, their behavior and values betray the very basis of such rights that are guaranteed in the Charter of Rights.

David Butt, the lawyer representing the niqabi woman, said his client is ecstatic with the decision. He called her a “legal pioneer” and said she was “confident” she now had a better chance to remain veiled while testifying in court. “What she wants is somebody who is prepared to even-handedly balance the competing positions and that’s what she’s got today.”

The Supreme Court presented a “helpful and straightforward four-part test” that will help her and other victims to come forward, Butt said. In her majority opinion, Justice McLaghlin outlined four points that judges must follow in evaluating a witness’ right to wear the niqab.

The first is her “level of sincerity.” This is entirely dependent on the witness’ belief that she is required to wear the veil. This is independent of whether a majority or minority in her faith community holds such a view. Previous case law allows this. Nor is her sincerity undermined if she removes her niqab for obtaining a driver’s license or for identification purposes at airport security or border crossings in and out of Canada.

The second test is whether allowing the witness to wear the niqab while testifying would create a serious risk to fair trial? Issues such as the importance of observing the demeanor of the witness, including facial expression, came up for intense discussion.

Taking the first two points into account where if both are answered in the affirmative, it would create a conflict situation, the justices directed that the presiding judge must consider if there is a way to reasonably accommodate both rights. This is naturally a tricky situation. Thus, the justices laid down a fourth test. If no accommodation is possible, then the judge must weigh the “harms” and “benefits” of requiring the witness to remove her niqab.

The harm or negative consequence of asking the witness to remove the niqab would be “discouraging niqab-wearing women from reporting offences and participating in the justice system.” The other side of this equation is “preventing harm to the fair trial interest of the accused and safeguarding the repute of the administration of justice.”

It is not unknown in Canadian courts to “accommodate” the beliefs of people by using “reasonably available alternative measures” or for other reasons such as the safety and security of a witness. There have been instances in which witnesses in some cases have been shielded by allowing evidence to be given behind a screen or via closed-circuit video. These have often been associated with drug-related cases or other serious criminal offences such as witnesses testifying in terrorism-related cases where the cover of an informant may be blown while he/she is still involved in “monitoring” a suspect. The niqab case has assumed special significance because there is widespread Islamophobia in society that is not only promoted by some segments of the media but also by some political parties including the ruling conservatives.

This is also evident from the fact that the overwhelming interpretation of the Supreme Court ruling has been dubbed as “deeply split” or “controversial” even in the mainstream media. How can it be called “deeply split” when only two of the seven judges ruled against it; one was solidly supportive of allowing the niqab and four justices allowed it with certain tests to be administered to ensure a fair trial. The majority, however, stressed that there can be no outright ban on niqab in courts; this is a slap on the face of the Islamophobes. The highest court in Canada has sent a powerful message that it is not going to follow the agenda of racists and bigots, something regrettably courts in the US have succumbed to.

Obama’s policy of killing innocents with drones

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by Tahir Mustafa

 

In choosing the lesser of the two evils by opting for Obama, Muslims forget that he has escalated the drone warfare to new height killing innocent Muslim women and children.

It is reflective of the sad state of Muslim understanding of global realities that many genuinely believe Barack Obama is better than his Republican rival Mitt Romney. The American commentator Stephen Lendman accurately captured this dilemma when he wrote the choice between Obama and Romney is like choosing between death by hanging and death by firing squad.

Since Obama’s re-election on November 6, acres of newspaper columns and endless hours of television air time have been devoted to why the Republicans lost, or how Obama’s “superior” organizational team secured victory, and now that he is re-elected, how he will deal with the fiscal cliff before the January 1, 2013 deadline. These may be tantalizing issues for Americans but for Muslims Obama’s significance lies in how he deals with the Muslim world. It is also quite revealing how the vast majority of Muslims in other parts of the world were also rooting for Obama.

In terms of America’s internal political landscape, little has changed. The November 6 elections have restored the status quo. Obama will stay in the White House for four more years even if some Americans are absolutely furious at the thought. The Senate is still controlled by the Democrats with a few extra seats added to their total while the Republicans keep control of the House with a reduced majority. The political gridlock will continue after the most bitter and nasty of election campaigns in recent US history.

This election has also resurrected the deep racism that afflicts American society. In 2008, 48% of whites openly expressed anti-Black feelings; this figure has now risen to 51%. Anti-Hispanic feeling is even higher at 52%. Given the fact that America is becoming a more diverse society — one estimate says that by 2048, non-whites (African-Americans, Hispanics, Asians, etc.) will outnumber whites — this does not bode well for the future. Despite this, racism is a major factor in American politics and life. Obama’s election to the White House did not lessen such hatred; it merely added to it.

An interesting and revealing development as a consequence of Obama’s re-election is that more than 225,000 Americans have petitioned the White House calling for their state’s secession from the US. These petitions expose the deep political fissures in American society; most of the 30 states calling for secession voted for Romney. The appeals were filed on the White House website, We the People. Of these, Texas has exceeded 100,000 signatures (the number at which the White House says it would respond is 25,000). In the past, Texas state governor Rick Perry had hinted he was in favour of secession but later he retracted, feeling that the move is illegal and could jeopardise his prospects for future political office, such as a second run at seeking the presidency on the Republican party ticket. Other states petitioning for secession include West Virginia, South Dakota, Nebraska, Pennsylvania, Louisiana, Alaska, California, and New York.

While the instrument that Texas signed in 1845 to become part of the union does not allow secession, it is important to keep in mind that between 1845 and 1936, Texas was an independent state. The petitioners are using this as the basis for their demand for secession now. The most oft-cited complaint was “blatant abuse” of people’s civil rights, especially the intrusive searches that are carried out at US airports. Such searches have scandalized the American people.

While Muslims in the US are the principal victims of such searches — Muslim women in hijab and Middle Eastern looking men, especially with beards — it is US “benevolence” at the international level delivered through Hellfire missiles fired from drones or cruise missiles that most affect Muslims worldwide. What Muslims ask is whether Obama-2 would be any different from Obama-1? Even before the election campaign got into full swing, Obama had promised to withdraw US troops from Afghanistan by the end of 2014. It is highly unlikely that he would bring this date forward despite the US military suffering a crushing defeat. Instead, it has now emerged that while during the day American generals and commanders are busy issuing orders to kill Afghan women and children, at night they are busy philandering. This should not surprise anyone; after all, immorality is ingrained in the social fabric of society. Recent revelations about retired General David Petraeus (who was serving as head of the CIA) and General John Allen have led to much speculation. How much more is going on is anyone’s guess.

And little can be expected from Obama or any other US president to do anything bordering on fairness or justice for the Palestinian people. The Zionist onslaught on Gaza from November 14 to 21 (in fact it was launched much earlier) was supported by the US with the nonsensical assertion that Israel has the right to defend itself. This line was parroted by Obama, Secretary of State Hillary Clinton and a long line of White House and State Department officials. There was not even a hint that the Palestinians may also have the right to defend themselves from the Zionists’ murderous attacks with weapons supplied by the US.

During the election campaign there were hints that if elected, Obama might adopt a more balanced approach toward negotiations with Islamic Iran. Prior to elections, there was speculation that the US and Iran had been involved in back channel discussions (the two do not have diplomatic relations). What was speculated was that there may be a grand bargain on the table. Instead, what Obama, and the US Congress have done is to tighten the illegal sanctions against Iran. Such sanctions amount to a declaration of war.

Millions of ordinary Iranians, among them many children, have been affected by sanctions because Iran cannot import medicines for their treatment. Even the UN has been moved to say US actions are affecting innocent people. Will Obama do the right thing and lift these sanctions? Given the hostility of the US establishment to Iran, this is highly unlikely, now or even in the near future.

Iran’s leaders have said they would consider bilateral talks with the US only if it would show honesty in its dealings. They point to the US speaking from both sides of its mouth: claiming to be willing to talk with Iran but tightening the sanctions regime at the same time that Iran considers to be hostile acts.

Another area of US policy is the ongoing drone attacks. Will Obama limit drone attacks in Pakistan, Yemen and Somalia? On the available evidence, he would not. This is what has led to such rapid rise in anti-American feelings. There were a total of 46 drone strikes in the four-year period of the George W. Bush presidency when these attacks were first authorized in June 2004. In the four years since Obama became president, more than 300 such strikes were launched. The resulting murder rate of innocents has been phenomenal.

The Bureau of Investigative Journalism has tabulated 2,985 to 4,533 deaths between June 2004 and September 2012. More than 98% of all deaths have been civilians. Even the 2% militants that have allegedly been killed were low-level foot soldiers with little or no significance. Given these horrendous figures, why does the US persist with such a policy of aggression against other countries, a policy that is clearly against international law?

The simple answer is that the US, and indeed Obama, feels it has the power to do what it likes; it does not care for international law or the lives of other people.

Obama betrays liberal promise

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by Zainab Cheema

 

Barack Obama is not the answer to the liberals’ democrat dream but a butler of the neo-liberal establishment, notwithstanding his soaring rhetoric about democracy, hope and change.

The re-election of President Barack Obama has been heralded as the ultimate triumph of the Democratic Party over the nefarious Republicans. CNN has voted him “the most intriguing person” of 2012, as Time magazine anointed him “Person of the Year.” Glossy pictures of the smiling Obama splash webpages and magazines, replacing the grim, sullen man who anxiously watched robo-Romney close the margin to a mere five-point lead in the final leg of the electoral race. As Democrats speculate about anointing Hillary Clinton to be the DNC candidate for the 2016 Presidential election, celebrations continue about the sidelining of the Republicans into a never-ending triumph of sunlit liberal hegemony.

The figures for the election turnout reveal the role played by minorities and women in pushing the tarnished president to the finish line — spurred by disgust as Republican politicians spewed racial vitriol at Hispanics and Arabs, and openly speculated about enrolling the state to police women’s reproductive organs. In short, Romney was done-in by the votes of single women, Latinos, and other minorities. The fascist regressiveness of some members of the Republican Party even made Republican insiders sick to the gills. “If another Republican man says anything about rape other than it is a horrific, violent crime, I want to personally cut out his tongue,” declared Karen Hughes, George W. Bush’s top political aide, in a Politico column. As Maureen Dowd of the New York Times noted, “If 2008 was about exalting the One, 2012 was about the disenchanted Democratic base deciding: ‘We are the Ones we’ve been waiting for.’”

And yet, newly rescued by his disenchanted base, President Obama once more proves that he is not so much the answer to the liberal American Dream, as promoted in his books The Audacity of Hope and Dreams from My Father, but rather the butler of the neoliberal establishment. In the month since winning the election, Obama is enacting legislation near and dear to the Republican Party, swinging the ax over social welfare provisions enshrined in the Constitution since the 1930s. The honeymoon has given way to the “new and improved Obama” — the liberal knight who now proves himself ever more devoted to the financial establishment that greased his electoral machine.

As Obama confronts the task of negotiating with Congress on the precarious US fiscal situation, his solutions strike joy in the heart of the most purist fiscal right-winger — taking Social Security off life-support, and letting the oldest and sickest US citizens to fend for themselves. Rather than imposing higher income taxes on US citizens who earn $250,000 and above, as Obama initially promised, Republicans insist that only citizens earning $1 million per annum and upwards are taxable. Obama’s solution to coax the Republicans is to accept some form of higher taxation while reducing social welfare. “There is only one person who can rescue the Republican Party now — Barack Obama,” notes Cenk Uygur of the Common Dreams media site, “And he will.”

Cutting down the social welfare net for US citizens is not an unpleasant necessity that Obama arrived at, in grappling with the House Republicans. As in 2008, he holds all the cards, legitimacy and social prestige res-tored by an electoral win. While Obama has been compared to JFK, it seems that the president uppermost in his mind has always been Ronald Reagan, the political architect of US corporatization, privatization, and de-regulation.

In his book Audacity of Hope, he imagines the kind of negotiations that a leader would have to undertake with respect to the United States’ economic health. “The problems with the Social Security trust fund are real but manageable,” Obama wrote, “In 1983, when facing a similar problem, Ronald Reagan and House Speaker Tip O’Neill got together and shaped a bipartisan plan that stabilized the system for the next sixty years. There’s no reason we can’t do the same today.” Nor was this Obama’s only Reagan reference — during the 2008 election campaign, he frequently referred to the Reagan era with admiration, angering the liberals who believed (dubiously) he should talk up the Clinton years.

The “fiscal cliff” being discussed in Washington, DC’s halls is the inability of the federal government to balance its budget — its metastatic spending simply is out of pace with its revenue. Obama’s willingness to dismantle Social Security — with its meager payments for illness, food stamps, and other crumbs doled out to a disenfranchised population — highlights an unspoken conviction. That is, the dismantling of the New Deal, a job begun by Ronald Reagan, is permissible, but not the unchecked spending of the military industrial complex in its wars against half a dozen Muslim countries. Even as 60% of US citizens oppose the Afghan War, Obama described the Afghan War as “fundamental.” Despite the apocryphal date of 2014 when the US is scheduled to complete its troop withdrawal from Afghanistan, the Pentagon’s top brass is eagerly touting their “astounding progress” against the Taliban ahead of their plans to press for extended military presence, which Obama is expected to cheerfully rubberstamp.

It is also harder to imagine a Republican president who can improve upon Obama’s track record in domestic militarism. Even as Obama wiped away tears for the children killed in Sandy Hook Elementary, Obama’s administration is responsible for the expansion of domestic drones used for surveillance of US civilians, as well as for the greatest number of deportations of illegal immigrants. According to newly released US government statistics, the Obama administration deported a record 1.5 million illegal immigrants in his first term. If Obama marketed himself as restoring the broken American dream — and the public’s tarnished hopes — in the 2012 elections, he apparently sees no irony in being the country’s first African American president presiding over the large-scale booting of Hispanic immigrants fleeing back-breaking poverty, dispossession and violence in Latin America.

Obama’s obsession with “conceding” to the Republicans, even when there is no obvious political pressure to do so, is not an example of his diplomatic finesse — it points to deep-seated insecurities, and a drive to align himself with the neoliberal power culture shaped by US corporations and military contactors. In a recent psychological study of Obama, Obama on the Couch, Justin Frank “describes a childhood deficient in stable attachments and consistent guidance: an absentee Kenyan father who abandoned him, an Indonesian stepfather (temporary), and a Kansas-born mother who often parked him with his grandparents while she pursued anthropological fieldwork and employment elsewhere.” Frank notes that this rootlessness built a deep-seated drive to conform to the power culture and attain status associated with the highest office in the land. In short, Obama’s lack of vision and leadership is not an outcome of unfulfilled potential, but the result of his drive to affiliate himself with the power culture and its objectives.

Liberalism, the political philosophy where governance is based on the informed consent of the public, where the government is held responsible for alleviating the social ills of the people, is now simply a front. The relief and triumph of Obama’s re-election now gives way to the grind of business as usual, as the United States’ first African American president pledges allegiance to neoliberalism — the philosophy of corporate oligarchy over a population disenfranchised by privatization, deregulation, and unaccountable politicians. If liberals expect Obama to be chastened by the victory they sweated for and handed to him on a silver plate, they will be mistaken — Obama will continue to serve the corporate and military oligarchs that swelled the super-PACs of Romney, Gingrich et al. All in all, Obama’s minstrelsy depicts the political showdown of the US elections in its essence: a laborious, billion-dollar process of deciding between Tweedle-dum and Tweedle-dee.