Belgium Bans the Burka

[Big RR]

Can ANYONE walk into a bank/underground tube station/government office with full face concealment of any kind? No.

I don't know that for certain, do you? Clearly if the are legitimate security reasons to say one must uncover one's face in these places, it should apply across the board to everyone. For example, I've seen people in banks and on the subway wearing surgical masks covering their noses and mouths leaving the eyes uncovered, presumably for allergy or other immunological concerns, but they are permitted. I've also seen people wearing ski masks in public places (although most take them off because they are uncomfortable). If there are legitimate security concerns, they would apply to these people as well, correct?

[Gob]

Can ANYONE walk into a bank/underground tube station/government office with full face concealment of any kind? No.

I don't know that for certain, do you? Clearly if the are legitimate security reasons to say one must uncover one's face in these places, it should apply across the board to everyone.

Banks, government offices, petrol stations and other places in the UK and Aus request you to remove any face concealing item before entering. Security staff atb the London tube, will ask you to remove any face concealing items before traveling. But not the burka.

If there are legitimate security concerns, they would apply to these people as well, correct?

Apparently not.

[Big RR]

Banks, government offices, petrol stations and other places in the UK and Aus request you to remove any face concealing item before entering. Security staff atb the London tube, will ask you to remove any face concealing items before traveling. But not the burka.

Any face covering? Even surgical masks worn for an immunological reason? If so, then you definitely have a point.

[Gob]

I have no experience or information on surgical masks, so cannot comment.

[Scooter]

Banks, government offices, petrol stations and other places in the UK and Aus request you to remove any face concealing item before entering. Security staff atb the London tube, will ask you to remove any face concealing items before traveling. But not the burka.

Please quote a policy document or person in authority for each of those institutions stating that this is universal policy. Can't come up with any? Perhaps because this is a completely post hoc rationalization invented to justify bans that go FAR beyond anything necessary for security or to establish identity.

I have MANY times said that I would be completely supportive of any ban on face covering that was narrowly tailored to address the alleged concerns of banks, gov't offices, etc. to maintain security and/or establish identity. But NONE of the bans in question is tailored thusly; they are blanket bans applying to all public places in all circumstances. That not a concern for security, that's bigotry.

[Gob]

Are you saying that I am lying? Are you saying that you can walk into a bank wearing a crash helmet?

[Scooter]

I'm saying I have seen nothing to suggest the need to remove face coverings in the locations you have listed is as universal as you have stated it.

I'm saying I have seen nothing to suggest that Muslim woman with a face covering, when asked to remove it in a situation that would warrant it (for identity or security purposes), routinely refuse to do so.

I'm saying that Western countries have seen Muslim women wearing face coverings in public for decades now, and that I find the sudden urgency of this need to ban certain items of their clothing suspect.

I'm saying that, even if I were completely wrong on all of the above points, the blanket bans on face coverings in public places being proposed or having already been enacted, go far beyond anything that can justifiably be claimed to be necessitated by security or to establish identity.

[Gob]

Women have been asked, and refused to remove the Burka, a court here in Aus had to order one to do so recently.

Funny isn't it, is that extremists using terrorist tactics, which they justify by their religion, are causing problesm for those women who are forced/choose to wear this medieval garb, (even though there is nothing in the Koran which says they have to.)

[Scooter]

If a court already had the power to order her, then a blanket ban on face coverings in public places wasn't necessary to compel her, was it?

And yes, it is unfortunate that the activities of extremists are being used as an excuse to enact racist and bigoted blanket bans on the use of face coverings in public places.

[Andrew D]

BigRR has it exactly right. The labels matter, not because of a need to be pedantic, but because those using them are doing so in order to inflame passions. And "burqa" or "burka" or "burq'a" or whatever other variants conjure up a particular image of extreme, separatist, woman-oppressing Islam that suits the purpose of those writing for rags like the Daily Mail, in a way that more correct terminology would not.

Huh?

You distinguished one headdress, identified in what I presume is Arabic, from another headdress, also identified in what I presume is Arabic:

There is a difference between a niqab and a burka. One leaves the eyes uncovered. The other does not.

Are you saying that calling a particular headdress by its correct name -- for example, a hijab (niqab, etc.) rather than a burqa (burka, etc.) -- would have some significant effect on the "conjur[ing] up [of] a particular image of extreme, separatist, woman-oppressing Islam"? Some significant effect on the "inflam[ing of] passions"?

I think not. I think that to those inclined to view all Muslims as America-hating, Christianity-hating jihadists, the difference(s) (both in name and in fact) between a burqa and a hijab is/are of exactly zero importance.

Adverting to the supposed security justification for banning face-concealing headdresses (whether they leave the eyes exposed or not), I mostly agree with this:

I have MANY times said that I would be completely supportive of any ban on face covering that was narrowly tailored to address the alleged concerns of banks, gov't offices, etc. to maintain security and/or establish identity. But NONE of the bans in question is tailored thusly; they are blanket bans applying to all public places in all circumstances. That not a concern for security, that's bigotry.

The bans in question appear to me to be far broader than a security rationale could justify. But even so, if they are evenhandedly overbroad -- if they ban surgical masks, ski masks, etc. -- are they bigotry? On one hand, one could argue that they are aimed at Muslim headwear, and their incidental application to certain non-Muslim headwear is merely pretextual -- a facade of neutrality draped over an underlying bigotry. On the other hand, one could argue that the mere fact that a facially neutral policy has a greater impact one on group than on another does not mean that the policy is the result of bigotry, just as the fact that a prison's ban on facial hair affects Hasidic Jews more than other groups does not mean that the ban is the result of prejudice against Hasidic Jews.

[Scooter]

Are you saying that calling a particular headdress by its correct name -- for example, a hijab (niqab, etc.) rather than a burqa (burka, etc.) -- would have some significant effect on the "conjur[ing] up [of] a particular image of extreme, separatist, woman-oppressing Islam"? Some significant effect on the "inflam[ing of] passions"?

Yes, that is precisely what I am saying. The term "burqa (burka, etc.)" has become part of the common parlance in a way that niqab, for example, has not (even though its common use as a garment in Western countries stretches back much further), and as a consequence the term itself conjures up an image of repressive, extremist Islam in a way that "niqab" does not.

I think that to those inclined to view all Muslims as America-hating, Christianity-hating jihadists, the difference(s) (both in name and in fact) between a burqa and a hijab is/are of exactly zero importance.

I don't think the battleground that we need to be concerned with are those who view all Muslims as America-hating, Christianity-hating jihadists; they are beyond any hope of change. I am more concerned with those who might be well meaning but might be manipulated into xenophobic and/or racist knee jerk reactions by constantly being bombarded with claims about women in "burqas (burkas, etc.)" which, until it began to be used so loosely, was associated only with the most of extreme of extreme forms of Islam, e.g. as enforced by the Taliban where they have or have had the ability to do so.

The bans in question appear to me to be far broader than a security rationale could justify. But even so, if they are evenhandedly overbroad -- if they ban surgical masks, ski masks, etc. -- are they bigotry? On one hand, one could argue that they are aimed at Muslim headwear, and their incidental application to certain non-Muslim headwear is merely pretextual -- a facade of neutrality draped over an underlying bigotry. On the other hand, one could argue that the mere fact that a facially neutral policy has a greater impact one on group than on another does not mean that the policy is the result of bigotry,...

The timing, the headlines, etc. all point to the bolded portion of your statement as being the most likely alternative. I've yet to see a single one of these bans described in the popular press as "a ban on all face-concealing headwear", have you? No, it's always "a ban on burqas" or something of the sort.

Heck, despite repeated lob balls being thrown their way, there are some in this thread who cannot seem to bring themselves to acknowledge that the bans heretofor proposed and/or passed go far beyond anything justifiable by the security concerns they trot out ad nauseam as the purported rationale for these bans. Their silence on that pont speaks volumes about the true reason for enacting these bans.

[Gob]

. I've yet to see a single one of these bans described in the popular press as "a ban on all face-concealing headwear", have you? No, it's always "a ban on burqas" or something of the sort.

.

That's probably due to them being the focus of these legislation, which is occurring in an increasing number of countries.

It also happened when Sikhs tried to get exemptions from wearing crash helmets due to their turbans. Funnily enough, the headlines then were about "turbans" and "Sikhs", not about people wanting to not have to wear crash helmets, due to them having to wear baseball caps for religious reasons.

Of course that must be due to racism.

[Scooter]

I'm saying I have seen nothing to suggest the need to remove face coverings in the locations you have listed is as universal as you have stated it.

I'm saying I have seen nothing to suggest that Muslim woman with a face covering, when asked to remove it in a situation that would warrant it (for identity or security purposes), routinely refuse to do so.

I'm saying that Western countries have seen Muslim women wearing face coverings in public for decades now, and that I find the sudden urgency of this need to ban certain items of their clothing suspect.

I'm saying that, even if I were completely wrong on all of the above points, the blanket bans on face coverings in public places being proposed or having already been enacted, go far beyond anything that can justifiably be claimed to be necessitated by security or to establish identity.

[Scooter]

Just because I know it will drive some people around the bend:

TORONTO - In a widely anticipated ruling, the Ontario Court of Appeal has refused to make a blanket decision as to whether sexual assault complainants should be allowed to wear their veils in a witness box.

In a decision released Wednesday morning, the three-judge panel ruled that it needs to be a "case by case assessment" and in this instance, N.S., a 32-year-old Muslim woman accusing her uncle and cousin of past sexual assaults should be given the chance to testify before a preliminary inquiry as to why her religious beliefs necessitate her wearing the niqab .

The defence must also be given the opportunity to call evidence on the issue, the court said.

If a judge determines that wearing the veil prevents an accused from getting a fair trial, the witness must remove her niqab.

"It is, however, undeniable that the criminal justice system as it presently operates, and as it has operated for centuries, places considerable value on the ability of lawyers and the trier of fact to see the full face of the witness as the witness testifies," wrote Justice David Doherty on behalf of the panel.

But the court ruled that each case must be determined on its own.

[Andrew D]

Who bears the burden of proof? And what is the standard of proof?

[Scooter]

Text of the decision is here.

[Andrew D]

Thanks, Scooter.

I am not impressed by the opinion. In its zeal to emphasize the fact-specific nature of the necessary inquiry -- a point with which, in the abstract, I have no quarrel -- it fails to do one of the most important things that appellate courts do (or, at least, should do): articulate standards which the trial court should apply in conducting that inquiry. Observing that the trial judge "will have a difficult decision to make" sheds no light on how the trial judge ought to go about making that difficult decision.

Yes, the opinion does lay out (in rather admirable detail, even if it misses a few things along the way) the factors which the trial judge should consider. But it says precious little about the weight which the trial judge should accord those factors.

The opinion says: "Assuming the appropriate inquiry has been made, the proper constitutional principles applied, and the relevant factors properly considered, this court [i.e., the appellate court] should show deference to the trial judge's decision." Okay, the appellate opinion directs the trial judge as to what the inquiry is, what the constitutional principles involved are, and even what (many, if perhaps not all) the relevant factors are.

But what does "properly" considered mean? If the trial judge considers all of "the relevant factors," by what standard is anyone to determine whether the trial judge considered those factors "properly"? When an appellate court instructs a trial court not merely to consider various factors but to consider them "properly," it ought to offer some guidance for distinguishing proper from improper consideration of those factors.

And I disagree with this: "If a witness establishes that wearing her niqab is a legitimate exercise of her religious freedoms, then the onus moves to the accused to show why the exercise of this constitutionally protected right would compromise his constitutionally protected right to make full answer and defence."

What does "establishes" mean? Must the accuser "establish" that fact merely by a preponderance of the evidence? By proof beyond a reasonable doubt? By a standard somewhere in between?

Even setting that aside, if, once the witness has established "that wearing her niqab is a legitimate exercise of her religious freedoms," the onus were placed on the accused to articulate some plausible reason why the witness's wearing her niqab might compromise what in the US is known as the accused's right "to be confronted with the witnesses against him" (U.S. Const., Amdt. VI), I could be okay with that: If the accused (that is, the accused's lawyer) cannot come up with any plausible reason to require the witness to remove her niqab, then she should not have to. In that case, the claim that she should have to remove her niqab would be utterly frivolous.

But the opinion does not require the accused merely to articulate in some plausible (which necessarily entails a degree of specificity) reason why allowing the witness to testify with her face almost totally concealed might violate the accused's right of confrontation. It requires the accused to prove that allowing the witness to testify with her face almost totally concealed actually would violate the accused's right of confrontation.

How is the accused supposed to do that? The principal reason for requiring the witness to testify with her face fully exposed is to enable the trier of fact to assess her credibility based on her demeanor. How is the accused supposed to prove what the witness's demeanor would be like if she were not almost totally concealing her face?

More broadly, the accused's right of confrontation should at least presumptively trump the witness's right to exercise her religious freedom by almost totally concealing her face when testifying. The accused has far more at stake than does the witness: It is not the witness who might spend many years in prison and, in this case, be branded a child molester.

And the witness has a choice, whereas the accused does not. The witness can decline to testify, thereby (at least in this case) bringing the proceedings to a halt. I do not take lightly putting the witness to what must be a horribly hard choice. But the accused has no choice at all. As between someone who has only a choice between two undesirable outcomes and someone who has no choice whatsoever, I come down on the side of placing the onus of choosing on the person who has a choice, even when that choice is between two things that both suck.

At bottom, I have precious little sympathy for people who want to conceal themselves (whether by headdress or anonymity or whatever) when asserting criminal charges. If you are going to make public charges against someone in a public forum, you need to face (ha ha) the publicity that naturally attaches to public charges in a public forum. (I congratulate the Canadian legal system for concealing the name of the accused as well as the name of the alleged victim. I think it outrageous that in the US, the accuser can be known simply as "N.M." (or whatever) while the name and face of the presumptively innocent accused are splashed all over the national media.)

If you can't take the publicity, then go home. After all, it is the accuser, not the accused, who has chosen to bring public charges in a public forum. If you are going to bring public charges against someone in a public forum, you need face the public before whom and whose forum you are bringing the charges -- the very public which you are asking to do justice on your behalf.

I think that the burden should not shift from the witness to the accused (except to the extent that the accused should have at least something rational to say) just because the witness has proved that almost totally concealing her face is "a legitimate exercise of her religious freedoms". Unless she can show some extraordinary reason why she should be allowed to testify with her face almost totally concealed -- and "it's part of my religion" doesn't cut it -- the accused's right of confrontation should trump her "right" to refuse make herself public when bringing public charges in a public forum.

(It seems to me that if the person asserting a right to conceal her or his face almost completely were not the complaining witness -- the accuser -- a different result should obtain. A material witness might well not want to testify at all; he or she might be compelled to appear and testify against her or his will. In that case, the witness might well have no more (or not much more) choice than the accused. The burden of making a choice should then be placed on the government -- the entity that placed the witness in that predicament in the first place: Either the witness reveals her or his face or the government loses that witness.)

The same goes for men, by the way. As far as I know, no sect of Islam requires men to conceal their faces even partially -- a circumstance which I had no part in bringing about. But a male accuser should have no more right to conceal (to whatever degree) his face in public proceedings than should a female accuser.

And in that connection, I have to wonder: What if the shoe were on the other foot? Suppose that a man accused of a crime demanded to conceal most of his face like this during the proceedings against him. How likely is it that an appellate court would show as much solicitude for "the sincerity of [his] beliefs" as the appellate court showed for the accuser's religious beliefs in this case?

[Gob]

Our local Govt gets in on the act.

ACT Assembly passes laws to force removal of burqas
Lisa Cox
March 21, 2012

New laws that will allow police to force the removal of burqas, helmets, hats and other clothing concealing a person's identity have been passed by the ACT Legislative Assembly.

The road transport legislation, approved yesterday, will give ACT authorities greater power to order the removal of head coverings in circumstances including random roadside drug tests, traffic offences, and applications for a driver's licence. But women who wear a head covering, such as a burqa, for religious or cultural reasons will be allowed to request that it only be removed in the presence of a female police officer or in a private place in accordance with their beliefs.

Attorney-General Simon Corbell said yesterday the laws were not meant to target certain cultural or religious groups in the ACT and had been developed in response to incidents where motorists had refused to remove items of clothing such as motorcycle helmets, balaclavas, large sunglasses and hoodies when police were trying to establish their identity.

''Where drivers or riders continue to refuse to remove the item, sometimes it has been necessary to resort to the arrest power and take the person into custody to establish his or her identity,'' Mr Corbell told the Assembly.

''A new direction to remove the obscuring item is a more efficient and less heavy handed solution.''

People wearing facial coverings as part of medical treatment will not be required to remove them under the legislation.

The Canberra Liberals and the ACT Greens voted in favour of the laws, with both parties saying the legislation was sensitive to drivers who concealed their faces for cultural, religious or medical reasons.

Read more: http://www.canberratimes.com.au/act-new ... z1pgukfrSV

[Scooter]

Now there is an example of legislation that is narrowly tailored to achieve a specific, justifiable purpose - to enable authorities to ascertain identity in situations where it is necessary.

Would that all of the legislative efforts around this were similarly circumscribed.

[Gob]

A judge told a Muslim woman she must remove her burkha in court before she can enter a plea after she refused to reveal her face.

Judge Peter Murphy said the principle of open justice overrode the 21-year-old woman's religious beliefs, and warned there was a risk a different person could go into the dock pretending to be her. The woman, from Hackney, east London, who cannot be identified for legal reasons, appeared before Blackfriars Crown Court today charged with intimidating a witness. She said she cannot remove the veil in front of men because of her religious beliefs.

Judge Murphy told her: ‘It is necessary for this court to be satisfied that they can recognise the defendant. ‘While I obviously respect the right to dress in any way she wishes, certainly while outside the court, the interests of justice are paramount. ‘I can’t, as a circuit judge, accept a plea from a person whose identity I am unable to ascertain.’ He added: ‘It would be easy for someone on a later occasion to appear and claim to be the defendant. ‘The court would have no way to check on that.’

Her barrister, Claire Burtwistle, told the court the woman was not prepared to lower her veil at all while men were in the room. ‘In front of women, it is not an issue’, she said. ‘It is simply men that she will not allow to see her face. Ms Burtwistle suggested herself, a female police officer or a female prison guard could identify the defendant and confirm to the court that it is the same person as in the police arrest photos.


Prosecutor Sarah Counsell added that the police officer in charge of the case was content that he recognised the defendant while she was in the burkha. But Judge Murphy rejected the suggestions, saying: ‘It seems to me to be quite fundamental that the court is sure who it is the court is dealing with. ‘Furthermore, this court, as long as I am sitting, has the highest respect for any religious tradition a person has.
‘In my courtroom also, this sometimes conflicts with the interests of a paramount need for the administration of justice. In my courtroom, that’s going to come first.’ The judge added: ‘There is the principle of open justice and it can’t be subject to the religion of the defendant whether the principle is observed or not.

‘I am not saying this because of the particular form of dress by this defendant, I apply that to any form of dress that had the same issues.’ Judge Murphy adjourned the case for legal argument over whether the defendant should have to remove her veil. It will be heard again on September 12, when the defendant is expected to enter a not guilty plea and go to trial.