What's in a Face? Demeanour Evidence and Niqab-Wearing Women in Courtrooms
| Author | Natasha Bakht |
| Pages | 65-89 |
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chapter three
WHAT’S IN A FACE? DEMEANOUR
EVIDENCE AND NIQAB‑WEARING
WOMEN IN COURTROOMS
, named Shabnam Mughal represented a client at
the Asylum and Immigration Tribunal (AIT) in England. Ms Mughal
is a Muslim who wore a full-face veil in public places. During her sub-
missions, she was told by Glossop J to remove her niqab because he
could not hear her. Perhaps a more appropriate response to the legitimate
concern of not being able to hear an advocate as she made submissions
would have been, “please speak up.” However, because such a request was
not made, and because the lawyer refused to remove her face veil, the
case was adjourned, and Mughal was replaced by a male lawyer from
her firm.
is chapter analyzes opposition to the niqab in courtroom settings.
It is argued that permitting women to wear the niqab in courtrooms
does not impede justice. Opposition to the niqab is usually a knee-jerk
response to dierence that is typically not grounded in any rational
understanding of the actual circumstances at issue. e question that
surfaces when such unfounded and unexamined objections to the niqab
are raised is whether the restriction on attire is actually a subterfuge for
discrimination. Part I of this chapter scrutinizes judicial assessment of
credibility base d on demeanour evidence, suggesting that demeanour is
an inherently unreliable tool by which to assess truthfulness. Based on
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In Your Face
this scrutiny, I suggest that the niqab is not an insurmountable barrier
to the workings of justice in a courtroom. Part II examines the multiple
roles that niqab-wearing women can and do hold in courtrooms and
proposes accommodation measures for the few instances in which see-
ing their faces is necessary for the judicial task at hand. e illustrations
in this chapter are drawn primarily from jurisprudence in Canada, with
some examples from Britain, the United States, Sweden, Denmark, New
Zealand, Australia, and Pakistan.
PART I: OPPOSITION TO THE NIQAB IN THE COURTROOM
argued that justifications for particular
dress codes in courtrooms ordinarily include the need for the judge to
maintain dignity, decorum, and order, and ensuring the proper admin-
istration of justice, including avoiding jury bias and prejudice in order
to guarantee a fair trial. One might ask what these broad unspecific
terms — such as decorum, order, and the proper administration of jus-
tice — means in this context. Not surprisingly, the dress of individuals
from minority communities or those who stray from the dominant
socio-cultural paradigm is often portrayed as disrespectful, disorderly,
or undignified. ese racist and sexist ideas have made courtrooms
unwelcome places for many people. While arguments against women
who wear the full-face veil in courtrooms are sometimes articulated with
more sophistication than opposition to the niqab heard more generally,
many of the justifications are equally indefensible.
Immediately following the Shabnam Mughal incident, the president of
the Asylum and Immigration Tribunal (AIT) in England, Hodge J, pro-
vided sound interim advice for judges in his jurisdiction on the wearing
of niqabs by representatives of parties in cases before the AIT. He stated:
Immigration judges must exercise discretion on a case-by-case basis
where a representative wishes to wear a veil. The representative in
the recent case has appeared veiled previously at the AIT hearings
without diculties. It is important to be sensitive in such cases. The
presumption is that if a representative before an AIT tribunal wishes
to wear a veil, has the agreement of his or her client and can be heard
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