Veiled Sentiments: Does The Burka Stand Up In Court?

The burka debate landed in Vienna’s provincial court this month when Austria tried its first case of homegrown terrorism. Mohamed, 22, and his wife, 21, Mona M, were arrested last September and charged with membership of a terrorist organisation and producing a video calling for attacks in Austria and Germany. Targets included international institutions in Vienna (OPEC and the UN) and venues staging matches for football’s European Championships next June.

Courtroom drama

The couple denied all the charges, but ahead of the trial the attention was on whether Mona, who wears a niqab (which covers her face in black cloth) should be allowed to wear it on the stand. Some argued that the law demanded at least part of a person’s face to be visible, and others that her face covering could be interpreted as an exercise of her right to remain silent. In the absence of a legal precedent, the decision was up to the case judge.

On the first day of the trial, judge Norbert Gerstberger said, referring to the fully-covered Mona, “May I ask the court wardens who the hidden person next to them is? Is it the accused?” When she replied that she can’t reveal her face for “Islamic reasons” and that she was entitled to religious freedom in Austria, Gerstberger told her that seeing a defendant’s face was central to the jurors’ task and that religious protections did not apply because her choice of dress constituted an “individual interpretation” of her religion. He excluded her from court under paragraph 234 of Austria’s penal code, arguing that unsuitable clothing constitutes ‘unreasonable conduct of a defendant’. He invited her to return any time should she decide to reveal her face.

The couple’s defence lawyer, Lennart Binder, pounced on this development to bolster his central argument that the prosecution was an “Islamophic affair,” adding that making her reveal her face violated her human rights. The argument is commonly evoked for this type of cultural stalemate – and is how Shabina Begum won the right to wear a niqab to school in the UK. Of course, whatever the origins of wearing a burka, jilbab, niqab or abayah, people should indeed be allowed to wear them in public as they wish, which they can in Austria. But it was not the wearing of a niqab itself that was ruled unreasonable conduct, but her refusal to reveal part of her face when asked to by the court.

“I gave it a lot of thought,” said Gerstberger after that first day of the trial. “It is unthinkable that in any court in the EU, someone could appear with their whole face covered.” The law makes exceptions in the case of highly contagious diseases like TB, and witnesses in mafia cases who are in danger of retribution from the organisations.

Beyond religion

This trial is unusual because the judge alludes to the fact that it is cultural interpretation, rather than scripture, that sanctions this type of dress. The Koran calls for modest dress for both sexes but does not explicitly demand face covering. In other words, the judge questioned the religious underpinnings of the niqab, something that is not often dealt with in the Europe-wide debates about whether it should be worn in public or in classrooms.

Of course one could argue this is beside the point, that human rights law is supposed to make provisions that people can wear what they like, whether that is a niqab or nothing at all, for cultural, religious or frivolous reasons. This is a valid point, but it was Mona herself who invoked the argument of religious freedom. Judge Gerstberger even made the point that this dress convention was not one of the five pillars of Islam. Anas Shakfeh, the president of an Austrian Muslim organization, says face covering is not an Islamic duty and that only a small proportion of Muslims globally take this step. Speaking to the Austrian paper, the Standard, he said he “knew of no precedent” to the case in Europe.

Whose culture?

While the name burka has become a catch-all phrase to describe female Islamic dress of any kind, it is worth noting that the burka is regionally tied to Afghanistan, and includes mesh covering the face. Mona’s black niqab has a small slit for the eyes, and is more common in Saudi Arabia. Mona is an Austrian citizen, the offspring of a Viennese convert mother and an Egyptian man who used to work at the Qatari embassy. The mother wears a veil, but does not cover her face, and says that Mona only started wearing the niqab three years ago. Therefore her dress is neither a religious or a culturally dictated practice, and the judge’s argument that it is her individual interpretation holds water. The niqab is not traditionally aligned to Egypt, although it is increasingly common on the streets of Cairo.

Sadly, the cultural origins of this modest dress are again beside the point. The court is not unfairly attacking Mona’s right to wear a niqab, as the defence lawyer argues. It would be naïve to think that rulings of this kind exist in a cultural vacuum, but a person would have received the same treatment if they had been wearing a mask, or appeared in court naked. (Imagine the human rights group for that one). It is the practical matter of identifying a defendant and evaluating their testimony that underpins the law that a person’s face should be at least partially visible. It is not that she is wearing a niqab – for which she has no real religious prescription – but how it interferes with the administration of justice which is problematic for the court, and for this reason her actions were ruled unreasonable. There is also the practical matter of identification: In Italy a wife faced court herself when she attended her husband’s trial in a burka. She was tried under a 1975 public order statute barring people from wearing clothes that conceal their identity from security personnel “without a valid reason.”

Burka case law

Articles 9 and 10 of the European Convention on Human Rights, below, refer to religion and freedom of expression:

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The limitations to religious expression are those “prescribed by law”. Austrian human rights lawyer and state attorney Bernd-Christian Funk told the Standard: “This ruling is not only valid, but necessary. There is no violation of human rights, as limits to religious freedom begin where they obstruct order and safety – such as criminal proceedings.”

The Law Society of England and Wales, which represents 100,000 solicitors, said that wearing of full-face veils dids not breach any professional conduct rules. Judges can ask for a veil not to be worn if there is a reasonable objection, such as a witness or defendant not being able to hear properly.

In Florida in 2006, a court held that it was proper to require a driving license applicant to be photographed without a veil. Expert evidence at the trial showed that there are exceptions to being veiled in Islamic practice, usually for identification.

In Maryland, a Muslim athlete who wore a blue and orange unitard under her uniform to a high school athletics tournament was not allowed to compete because officials ruled the unitard, which she assured them was “non performance-enhancing”, contravened regulations on multi-coloured clothing. This may seem rather less reasonable than asking someone to show their face in court- after all there are special uniforms for Muslim Olympic athletes. One also has to wonder if a multi-coloured unitard-clad person leaping over hurdles wouldn’t attract more attention than other athletes in plain old shorts and t-shirts, and therefore defeat its stated purpose of preserving the girl’s modesty.

Public spaces

A fortnight ago in Vienna, the matter came to an uneasy compromise when Mona submitted a written statement explaining her views, which was then read out by the judge in court. A written statement may be better than none at all, but this probably did prejudice her case as it could have made her less trustworthy in the eyes of the jury. Mona M and her husband were found guilty – he got four years, she got 22 months.

Playing the human rights card will only attract the kind of debate that could lead to calls for a public burka ban, as a response to a perceived outright refusal to make concessions to the country’s secular practices. Mona chose to wear a niqab, but there are some women who have no choice. Dressing (sorry) the ruling up as Islamophobic will draw the kind of attention to the case that will be detrimental, in the long run, for Muslims who can and do exercise the freedom to wear burkas or niqabs in public spaces, a freedom they might be losing in other parts of Europe.

The campaign for a public burka ban, which has had the most momentum in Belgium and the Netherlands, is championed by politicians who want to promote integration. This is ambitious, but near-sighted and counterproductive. By failing to address the strength of the cultural impetus behind this kind of covering, public burka bans will stop these women from going out at all, preventing them from working and studying.

This Viennese case is a precedent of sorts. With any luck, the judge’s ruling on Mona’s conduct will not be hijacked by people who will use it as evidence of Islamophobia. Mona received the ruling she did because her refusal to reveal her face contravened court practice and is not anchored in any religious demand. Hopefully the case will serve as an example that there are practical rules enshrined in law that are not hostile to the culture of the burka, but are simply concerned with the administration of justice.

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This post was written by Alexa Van Sickle