The devout Muslim woman at the center of the controversy about the wearing, or not, of the face-covering niqab during public, Canadian citizenship oath-taking ceremonies said it best:
“I can’t even make sense of the statement, what the lawyer said about it, that it’s not mandatory,” a somewhat astonished – and for a few moments, speechless – Zunera Ishaq said earlier this week after a Federal Court of Appeal panel of three judges ruled against the Harper government’s ban on the wearing of the niqab.
If it’s not mandatory, Ishaq wondered, what’s “all this fuss” about?
The three Justices were also left scratching their heads, after a Canadian government lawyer finally revealed, on the record, in a court of law, that the Harper government hasn’t had a legal leg to stand on since former Immigration minister Jason Kenney came up with the face-covering ban idea in 2011 and issued a “directive.”
It was never meant to be mandatory, Justice Department lawyer Peter Southey told the appeal court justices, even though he also argued unsuccessfully that the Federal Court judge who ruled the ban was unlawful earlier this year made errors of judgment.
The directive was discretionary, depending on whether or not the person taking the oath wants to remove the niqab or not. In fact citizenship judges presiding over the ceremony are supposed to give people the most leeway possible to express their personal freedom as they take the oath.
Yet, Harper government spokesmen, from the Prime Minister on down, have long talked and behaved as if the niqab ban was anything but discretionary, that it was indeed mandatory. And they still do.
For example Tory MP Costas Menegakis, parliamentary secretary to the minister of citizenship and immigration, has said, “I think for the citizenship ceremony, someone needs to identify themselves. We need to know who they are.”
But we now know just before taking the public oath new Canadians undergo a thorough, private interview that requires them to show documentation proving their identity, and remove any face-covering. Ishaq would have removed her niqab during that interview. But she declined to remove it to take the oath, believing that was her right.
She has continued to stand up for her freedom of choice in this matter. And now that the Harper government has vowed to take her to the Supreme Court, she will no doubt continue to do that.
Stephen Harper has called it “offensive” that anyone should decline to uncover their face to take the oath of citizenship.
I find it offensive that in the absence of any law supporting a niqab ban Harper would say such a thing.
Former Immigration minister Kenney, now seeking re-election as a Conservative candidate in Calgary, may be right that the “vast majority” of Canadians, even Muslim Canadians, support the niqab ban.
So what? He should know if it has no basis in law, that’s all that matters. Canada is not a dictatorship, not even an elected one. The federal appeal court had no basis to make any other decision, and that was clear enough within a few hours, clear enough for the justices to make a relatively rare ruling that same day.
The Harper Conservatives already knew the niqab ban had no basis in law. It introduced legislation, the Oath of Citizenship Act, just before the election was called. It died on the order paper along with a number of other bills. But they have vowed to reintroduce it within 100 days if re-elected.
So, in that case, why, after this week’s court ruling, have they also vowed to appeal that decision to the Supreme Court?
It makes no sense.
So why? What is all “the fuss” about at this stage, as Zunera Ishaq wondered.
It’s about the fact we’re in the midst of a federal election campaign and the Harper Conservative re-election campaign has decided the thing that’s going to snatch victory from the jaws of defeat is to keep playing the anti-Islamic vote.
For the same reason thousands of Syrian and other migrant-refugees, most of whom are Muslims, will continue to face too many bureaucratic obstacles getting into Canada, a country that once welcomed poor and oppressed immigrants and refugees.
It’s a cynical political game the Conservatives are playing, based on a low opinion of the intelligence of Canadians. I hope we prove them wrong on Oct. 19.
Originally published in The Sun Times in September, 2015.