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Defending the niqab ban by Salim Mansur, National Post

Updated: Jan 18, 2022

February 20, 2015

Defending the niqab ban

By Salim Mansur, National Post

Canadian courts would be well advised to make a distinction between religious beliefs and customary practices

The requirement of Citizenship and Immigration Canada (CIC) to remove full face coverings during citizenship ceremonies is not onerous and is consistent with the customs and conventions of an open liberal democratic society such as ours. But the Federal Court, in a judgment delivered by Justice Keith M. Boswell, has now deemed this requirement unlawful.

The ruling was made in a case filed by Zunera Ishaq, a Pakistani national and a permanent resident in Canada since October 2008. Ms. Ishaq argued that removing her niqab (a full face covering worn by some Muslim women), as required by the CIC regulation, would be an infringement on her religious beliefs, which are protected by the Canadian Charter of Rights and Freedoms. She claimed that as a devout Sunni Muslim who voluntarily follows the Hanafi school of fiqh, or jurisprudence, in Islam, her wearing of the niqab is a religious obligation and that its removal would infringe her religious freedom.

Ms. Ishaq asked the court to declare the CIC policy as inconsistent with the governing legislation under paragraph 2(a) and section 15(1) of the Charter. The relevant sections of the Charter refer to "freedom of conscience and religion" and equality rights.

But Ms. Ishaq's claim that she is required as a matter of religious belief to wear the niqab is untrue. Neither Islam, nor Hanafi rites or jurisprudence as part of Islamic belief, make such a requirement obligatory for Muslim women. The wearing of the niqab by a small percentage of Muslim women is a modern custom turned into religious mandate and enforced by coercion in public by Muslim extremists in Pakistan and some other Muslim majority countries.

For the court to agree with Ms. Ishaq that her rights as a Muslim woman need constitutional protection, ironically gives credence to the claims of extremist Muslims of certain political persuasion that believers in Islam are under duress in Canada, which is untrue. This decision, however, sets a precedent for the argument that any imported custom that runs counter to Canadian values - bigamy, polygamy, female genital mutilation, child marriage, etc. - if shown to be religiously mandated should be protected under paragraph 2(a) and section 15(1) of the Charter, irrespective of how contrary or outrageous such custom might be in respect to traditions of most Canadians.

The same week the Federal Court ruled the niqab ban unlawful, India's Supreme Court ruled that bigamy and polygamy is not protected under Article 25 of the Indian Constitution, which refers to freedom of conscience and religion. The justices of the Indian Supreme Court upheld a lower court ruling that the appellant, Khursheed Ahmad Khan, in taking a second wife while remaining married to his first wife, violated the civil service regulations that do not permit bigamy and polygamy as part of religious belief. The justices agreed a "bigamous marriage amongst Muslims is neither a religious practice nor a religious belief and certainly not a religious injunction or mandate."

The relevant point here is that certain practices - such as bigamy or child marriage, concubinage, female genital mutilation, etc. - even when permitted by a religion, need to be distinguished from religious belief as customary practices. In making this appropriate distinction, the Indian courts have ruled, with the Supreme Court in agreement, that what is protected under Article 25 is religious belief, not practices that may run counter to public order, health or morality.

This ruling of the Indian Supreme Court is instructive. India shares with Canada the system of government and democratic traditions handed down from Britain. India is also the world's third-largest Muslim country after Indonesia and Pakistan. In ruling that bigamy and polygamy are in violation of India's laws, the courts have defended the rights of women, especially Muslim women, in terms of equality rights, and against Muslim Shariah-based laws that discriminate against them in favour of men.

Canadian courts would be well advised to make a similar and appropriate distinction between religious beliefs and customary practices, and whether any or all customs should be protected under the Charter provision of religious freedom.

Salim Mansur teaches political science at Western University in London, Ont.

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