In a number of recent cases across common-law jurisdictions, female
Muslim witnesses have been denied their right to wear the niqab while
testifying in court. Ultimately, in each of these cases, the right to a fair
trial—and the perceived threat to that right—overrode the witness’s
express desire to veil. However, a fundamental fact not recognised in
any of these judgments is that a Muslim woman’s refusal to remove her
veil has drastic implications for her access to courts in both the criminal
and civil contexts, thereby implicating her ability to participate as
a citizen. It raises the critical question whether such a state of affairs
should be tolerated in a pluralistic society. This contribution investigates
this question by analysing the right to confrontation from historical,
epistemological and comparative perspectives, including its limitations.
It then evaluates the rationales that the courts have advanced for holding
that the veiled Muslim witness violates the accused’s right to a fair trial, namely it deprives the court of the ability to observe the witness’s
demeanour, it infringes on the right to cross-examine the witness, and it
defies the ‘symbolic’ value of confrontation.