Some ‘rights’ have limitations in a democratic society
Thursday 29 March 2012 by Sophie Khan
The right to follow one’s religious beliefs has been recognised in this country for centuries – and following the enactment of the Human Rights Act 1998 those rights are now protected by law.
Article 9(1) of the European Convention on Human Rights 1950 enshrines that ‘everyone has the right to freedom of thought, conscience and religion’, which includes the right to ‘manifest his religion or belief, in worship, teaching, practice and observance’.
Some Muslim women have chosen to manifest their religion by wearing the hijab and, more recently, the niqab, a garment that covers the whole face, apart from a narrow slit through which the eyes can be seen.
In a recent ruling, which is reported to be the first of its kind, a Muslim woman was asked to stand down from serving as a juror. The woman, who was otherwise wearing a tight grey jacket, had veiled her face. Judge Aiden Marron QC, sitting at Blackfriars Crown Court on an attempted murder trial, felt that in that particular case it would be ‘preferable’ for her to remove her veil so that her face was exposed during the trial.
The veiled woman refused and another member of the jury pool was then sworn in in her place. There was criticism of the judge’s decision by some Islamic organisations, which did not understand the reasoning behind his ruling. His ruling was based on the judicial guidance on the wearing of veils in court issued by the Equal Treatment Advisory Committee in 2007. In those guidelines it states: ‘Each situation should be considered individually in order to find the best solution in each case. We respect the right for Muslim women to choose to wear the niqab as part of their religious beliefs, although the interests of justice remain paramount.’
It was in the interest of justice that the judge asked the veiled woman to stand down. The advocates may have been hindered in putting their case to her due to the barrier the veil creates and made it hard for the veiled juror to participate in the trial. As justice must be seen and done it would be difficult for the judge to justify the swearing-in of a veiled juror when her presence could be detrimental to the performance of the advocates – and ultimately raise questions as to whether a fair hearing has been held.
Excluded or barred
It is possible that the veiled woman will be able to sit as a juror on another trial, as there is no indication that she has been excluded or barred from jury service due to her veil. Her right to wear the veil has been respected by the judge and the correct exemption has been applied in her case. It should be recognised by the judge’s critics that some ‘rights’ have limitations which are necessary in a democratic society. For that reason, not all acts of exclusion should be classed as discrimination.
Regardless of that, many will see this ruling as part of a growing intolerance towards religious rights in favour of ‘miltant secularism’ and compare this incident with the experiences of Christian believers who have been excluded from their places of work. Their cases are to be heard in Strasbourg, hopefully this year, and will test the strength of article 9 in application to Christianity.
They argue that they have been denied the right to manifest their religious belief by not being allowed to wear a cross at work and have faced religious discrimination as a consequence. The government is challenging their claims, insisting that the wearing of a visible cross is not a generally recognised form of practising the Christian faith.
But a similar argument could be made against the wearing of the niqab, which is not a ‘requirement’ of core Islamic observance.
It seems to me that if an exemption can be made for a veiled woman to be excused from her civic duty then surely similar provisions can be made to accommodate those who wish to wear a cross.
Sophie Khan is a solicitor-advocate at GT Stewart, London
http://www.lawgazette.co.uk/opinion/comment/some-rights-have-limitations-democratic-society
The right to follow one’s religious beliefs has been recognised in this country for centuries – and following the enactment of the Human Rights Act 1998 those rights are now protected by law.
Article 9(1) of the European Convention on Human Rights 1950 enshrines that ‘everyone has the right to freedom of thought, conscience and religion’, which includes the right to ‘manifest his religion or belief, in worship, teaching, practice and observance’.
Some Muslim women have chosen to manifest their religion by wearing the hijab and, more recently, the niqab, a garment that covers the whole face, apart from a narrow slit through which the eyes can be seen.
In a recent ruling, which is reported to be the first of its kind, a Muslim woman was asked to stand down from serving as a juror. The woman, who was otherwise wearing a tight grey jacket, had veiled her face. Judge Aiden Marron QC, sitting at Blackfriars Crown Court on an attempted murder trial, felt that in that particular case it would be ‘preferable’ for her to remove her veil so that her face was exposed during the trial.
The veiled woman refused and another member of the jury pool was then sworn in in her place. There was criticism of the judge’s decision by some Islamic organisations, which did not understand the reasoning behind his ruling. His ruling was based on the judicial guidance on the wearing of veils in court issued by the Equal Treatment Advisory Committee in 2007. In those guidelines it states: ‘Each situation should be considered individually in order to find the best solution in each case. We respect the right for Muslim women to choose to wear the niqab as part of their religious beliefs, although the interests of justice remain paramount.’
It was in the interest of justice that the judge asked the veiled woman to stand down. The advocates may have been hindered in putting their case to her due to the barrier the veil creates and made it hard for the veiled juror to participate in the trial. As justice must be seen and done it would be difficult for the judge to justify the swearing-in of a veiled juror when her presence could be detrimental to the performance of the advocates – and ultimately raise questions as to whether a fair hearing has been held.
Excluded or barred
It is possible that the veiled woman will be able to sit as a juror on another trial, as there is no indication that she has been excluded or barred from jury service due to her veil. Her right to wear the veil has been respected by the judge and the correct exemption has been applied in her case. It should be recognised by the judge’s critics that some ‘rights’ have limitations which are necessary in a democratic society. For that reason, not all acts of exclusion should be classed as discrimination.
Regardless of that, many will see this ruling as part of a growing intolerance towards religious rights in favour of ‘miltant secularism’ and compare this incident with the experiences of Christian believers who have been excluded from their places of work. Their cases are to be heard in Strasbourg, hopefully this year, and will test the strength of article 9 in application to Christianity.
They argue that they have been denied the right to manifest their religious belief by not being allowed to wear a cross at work and have faced religious discrimination as a consequence. The government is challenging their claims, insisting that the wearing of a visible cross is not a generally recognised form of practising the Christian faith.
But a similar argument could be made against the wearing of the niqab, which is not a ‘requirement’ of core Islamic observance.
It seems to me that if an exemption can be made for a veiled woman to be excused from her civic duty then surely similar provisions can be made to accommodate those who wish to wear a cross.
Sophie Khan is a solicitor-advocate at GT Stewart, London
http://www.lawgazette.co.uk/opinion/comment/some-rights-have-limitations-democratic-society
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