Beyond the Veil: The Illegitimacy of the Niqab Ban

zunera ishaq niqab

Zunera Ishaq came to Canada from Pakistan in 2008. She was granted permanent residency on October 25, 2008 and her application for citizenship was approved by a judge on December 30, 2013. In spite of this, up until the Federal Court of Appeal’s decision on September 15th of this year, she would never be granted citizenship.

Why?

Zunera wears a niqab, a veil that covers most of her face, leaving only her eyes exposed. Zunera is a voluntary member of the Hanafi sect of Islam that requires that she keep her face covered and unveil herself to a stranger only if absolutely necessary for identity or security reasons, and only then privately before other women.

The rule blocking her way to becoming a Canadian citizen is Citizenship and Immigration Canada’s (CIC) CP 15: Guide to Citizenship and Ceremonies. The manual was modified in December 2011 to contain the following section:

13.2. Full or partial face coverings

Candidates for citizenship wearing a full or partial face covering must be identified. When dealing with these female candidates it is the responsibility of a citizenship official to confirm the candidate’s identity. This should be done in private, by a female citizenship official. The candidate must be asked to reveal her face to allow the CIC official to confirm the identity against the documents on file.

The candidates must be advised at this time that, they will need to remove their face covering during the taking of the oath. Failure to do so will result in the candidates not receiving their Canadian citizenship on that day.

The final stage of becoming a Canadian Citizen requires the taking of the citizenship oath. Failure to do so means an applicant will not get their citizenship.

Zunera has no issue with the content of the oath, which requires her to swear that she will be loyal to the Queen and successors and will faithfully observe the laws of Canada and fulfill the obligations required of a Canadian citizen. She has no problem revealing herself before a female official in order to confirm her identity.

The issue arises regarding the manner in which she is expected to take the oath. Canadian citizenship oaths are generally taken before a judge at a public ceremony consisting of a mixed group of male and female applicants. According to CP 15’s December 2011 modification (“The Rule”), female applicants wearing the niqab or other face coverings must unveil themselves for the ceremony.

The Rule affects about 100 women per year and is absurd when considering that the identities of the women affected are privately confirmed by a female official prior to taking the citizenship test. The accommodation Citizenship and Immigration Canada (CIC) offered Zunera was nothing short of insensitive, suggesting that they seat her in the front or back row of the ceremony with a woman beside her so that people present would really have work to see her unveiled face.

Court Challenge and Response

Concerned that she would be forced to choose between her faith or her dream of becoming a Canadian citizen, Zunera took the matter to Federal Court.

The Minister of Citizenship and Immigration Canada’s response was a cavalier take-it-or-leave-it attitude. In Federal Court in February 2015, The Minister claimed that wearing the niqab was a personal choice not a religious obligation, and that women in her situation should just accept the consequences of that choice and not be a Canadian citizen.

Citizenship and Immigration Minister Chris Alexander (photo by Alex Guibord via Flickr Creative Commons)
Citizenship and Immigration Minister Chris Alexander (photo by Alex Guibord via Flickr Creative Commons)

The Minister went on to claim that citizenship is a privilege, not a right, and that applicants who refuse to unveil themselves would still have some rights as Permanent Residents of Canada. Though The Minister admitted that The Rule affects mostly Muslim women, he attempted to justify The Rule by the concern that not all citizenship candidates were actually reciting the oath.

From a purely common sense perspective, The Minister’s assertion is ridiculous. The identity of niqab wearing citizenship candidates is already confirmed prior to the ceremony, and the oath, which takes less than a minute to recite, is clearly more of a symbolic act.

Zunera’s application for citizenship had already been granted. She just needed her papers, but she could only get them after the oath-taking ceremony.

Not Actually a Law

What many people don’t know is that the niqab ban is not technically a law. The Rule was introduced as a “Policy” which The Minister has the right to introduce without consent from Canada’s legislature. That means that The Rule was never subjected to debate and approval by our Parliament, nor subjected to public scrutiny.

In Federal Court, The Minister used this in an attempt to argue that The Rule was just a guideline and that immigration judges retained discretion on the matter of oaths and face coverings. This defense bombed when the Court pointed out that there is nothing in the language of The Rule to suggest that it’s optional, and alternative accommodations suggested by a Toronto-area citizenship judge in an interview with CBC Radio in December 2011 were dubbed “problematic” in email correspondence between CIC officials.

Regardless of whether or not you agree with Zunera Ishaq’s sect of Islam or whether her adherence to it is actually voluntary, the fact is that the rule barring her from Canadian citizenship was never legitimately enacted by Parliament, nor subject to public scrutiny. The Rule was slipped in to existing legislation using The Minister of Citizenship and Immigration’s prerogative and now the Harper Administration is trying to enforce it as actual law.

This is perhaps because the Harper Government knows that a good old-fashioned Parliamentary debate would have resulted in more balanced legal legislation, or better yet, the striking down of such an obviously prejudicial rule.

* Feature image CBC/YouTube

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