Recent reports say that an American Muslim woman, Ginnah Muhammad, has issued a lawsuit against a Michigan judge who required her to remove the niqab in court. The niqab is a full veil revealing only the eyes. The judge said that he had to see Ms Muhammad’s face to judge the veracity of her evidence, and if she did not remove her veil, he would throw out her case. Ms Muhammad alleges that Judge Paruk’s ruling was against her First Amendment rights to practice her religion and also against the US Civil Rights Act of 1964.
I’ve posted on the subject of niqabs and burqas before. And, although the judge was limiting Ms Muhammad’s right to practice her religion, I think that limitation was reasonable in the circumstances. Why? I think it is essential to have a view of someone’s face when they give evidence in order to make a judgment about whether they are truthful or not. Judging the truth of what someone is saying involves picking up small body language signs, looking at the tone of voice in combination with expression, seeing someone’s eyes clearly and other subtle signs one might not even be aware of on a superficial level. It is essentially an instinctive judgment, and people who have done it for many years have a very good sense of whether witnesses are telling the truth or not. After I had practiced as a lawyer for some years and watched many, many trials, I know I got a lot better at it.
A few years back, I was having a conversation with a woman in a niqab, and I found her responses literally impossible to read. It was surprisingly discomforting. As I have said in a previous post, if by covering one’s face, you are limiting the extent to which you can communicate and to which others can comfortably communicate with you. Facial expression is so important to the way in which humans communicate, and research has shown that expressions have broadly similar meaning across different cultures (although eye contact can mean different things in different societies). At least half of our communication is not in words, but in body language and facial expression.
I saw a program on the television where people were producing “fake” and “real” smiles. It was easy to tell which smile was which. There is actually a Facial Coding System, which can read expression. That fake smile is called insincere and voluntary Pan American smile. It makes me think of a shop assistant saying “Have-a-nice-day” and smiling in that fake way. I hate it when people do that – I’d rather they not greet me at all. In my research for this post, I have found this awesome site which isolates different muscles in the face and shows the expressions they make.
I know that my one year old child already has an understanding of expression. Yesterday she was trying to pull apart a folder of documents. I looked at her, frowned and lowered my eyebrows, shaking my head. She then pretended that she had not been interested in the documents at all, and closed the folder. No words were necessary. She has a beautifully expressive face – you can tell when she’s about to do something naughty or cheeky, as it’s painted across her face. She’s just like me. I could never lie at all – even if I tried, my body language was so transparent that Mum always guessed the truth. I do hope that she doesn’t blush like I do, but her skin is so pale that I think it’s inevitable.
If I had been the judge, I would have said to Ms Muhammad that she was welcome to exercise her right to wear a niqab in the witness box, but as a consequence, her evidence would be of almost no value, because I would be unable to judge the truth or otherwise of her statement. I would also point out that a witness could use the niqab as a way to avoid telling the truth. The whole point of sitting someone in the witness box is to put them on display for judges and barristers to read, as well as to impress them with the seriousness of the evidence they give. Otherwise we could have trials where people just tape recorded statements and sent them in to the judge! Therefore, perhaps the answer is to say that Ms Muhammad does have a right to wear a niqab in the witness box, but the corollary of that is that her evidence will be of no value because of the way in which our justice system works.