Legal Village

Drawing a veil over common law tradition

Posted 13/06/2007 by Barbara Hewson

On 24 April the Judicial Studies Board (JSB) issued draft guidance on the wearing of veils in court. It is remarkably one-sided, displaying little sympathy with the common law tradition of orality. It spills much ink arguing that full-face veils (niqabs and burqas) should be treated as normative, whether worn by judges, witnesses or advocates in court.

Why special treatment should be permitted is not fully explained, beyond the mantra "there is room for diversity" and the argument that justice must be "representative of the whole community".

Diversity and representativeness are not the same, however. Diversity means advancing sectoral interests; being representative means rising above difference.

It’s striking that in Pakistan, a senior judge banned the wearing of full-face veils recently. The Pakistan Daily Times on 4 November, 2006, reported Chief Justice Tariq Pervaiz Khan of the Peshawar High Court telling a veiled advocate: "You are professionals and should be dressed as required of lawyers.”

He went on: "We [the judges] cannot identify veiled woman lawyers and suspect that veiled lawyers appear to seek adjournment of proceedings in other lawyers' cases.” He also complained that he could barely hear the hapless advocate.

So what, exactly, is the problem with full-face veils in court? The answer is simple. When presenting cases orally, we expect to see the faces of other participants: judge, client, opponent, opponent’s client, witnesses. Headscarves and other forms of head covering such as the Sikh turban do not present any problem because they do not conceal the face.

Facial expression is an important part of non-verbal communication, which plays a substantial part in human interactions generally and particularly in court. So whenever oral evidence or submissions are involved, face-covering by an advocate or witness is deeply problematic, as that party is differently situated, vis-à-vis everyone else.

Is this fair to everyone else?

In a system that depends on the testing and evaluation of oral argument and evidence in open court, I do not believe that it is. There has been a shrill reaction by some to an article I wrote on this theme for Counsel magazine (June 2007), suggesting that I am racist, Islamophobic and so on. This is nonsense, but it’s interesting that when this serious subject is discussed in a serious way, a response is ad hominem attacks.

In human rights terms, assuming that the very personal choice to cover one’s face engages Article 9 of the Convention, that Article is qualified by the need to protect the rights and freedoms of others. The JSB barely acknowledges the rights and expectations of other parties to litigation.

Some of the JSB’s arguments are extraordinary. It suggests that fully-veiled witnesses should not pose a problem, because judges take evidence on the ’phone and so are used to not seeing witnesses’ faces. But when do judges take evidence by telephone?

Then it addresses the issue of whether judges could be veiled by asking: “Is the constituency which is served by the courts entitled to see the person who is dispensing justice?” 

Leaving aside the obvious point that judges here are not elected and do not have a 'constituency', this implies an official impatience with the whole notion of open justice - possibly on the grounds that it costs too much?

When official guidance is so dismissive of the common law tradition, one has to question its helpfulness.