Home Opinions The court should be secular — heads shouldn’t

The court should be secular — heads shouldn’t

by Matthew Civico March 10, 2015
The court should be secular — heads shouldn’t

A little bit of wisdom goes a long way when interpreting the law—uh, regulations

Graphic by Marie-Pier LaRose.

When Rania El-Alloul walked into Montreal’s imposing Palais de Justice she was probably expecting what most Canadians expect from their government: a headache and a long wait.

I don’t know how long El-Alloul waited to see Judge Eliana Marengo but, according to CBC, she “was in court to apply to get her car back after it was seized by (the) automobile insurance board,” so we can safely assume the headache.

What makes my head hurt is how El-Alloul, a separated mother of three, left the courthouse. She left without her impounded car and with instructions to return with a lawyer—all because she was wearing a hijab.

For the uninitiated, a hijab is a common feature of religious dress for Muslim women. This is not a niqab or burqa we’re talking about, so her face was not covered. It’s a headscarf, that covers the hair, and it’s not exactly off-putting.

For this reason, it’s hard to imagine why the court proceedings turned out the way they did.

When El-Alloul finally stood before the judge she wasn’t asked about her case or told how to go about retrieving her car. Judge Marengo asked why she had a scarf on her head.

Now, I haven’t completed law school or worked for years as a lawyer (as judges do before being approved to apply our laws) but I know exactly why Rania El-Alloul was wearing a scarf on her head. Even if Judge Marengo was ignorant of this particular form of religious dress—which is nigh near impossible given recent legal hoopla surrounding veils and the like—she was quickly enlightened.

Spoiler alert: it’s because El-Alloul is a Muslim, and she told the judge as much, expecting to move on to the more relevant and pressing matter of her impounded car. With no explanation, Judge Marengo then called a half-hour recess, presumably, to deliberate on this startling scarf development. The CBC report goes on to provide a recording of what followed.

“…you stated that you’re wearing a scarf as a religious symbol.”

“Yes.”

“In my opinion the courtroom is a secular place and a secular space; there are no religious symbols in this room, not on the walls and not on the persons. Article 13 of the regulations of the court of Quebec states: any person appearing before the court must be suitably dressed. In my opinion you are not suitably dressed.”

Judge Marengo goes on to compare El-Alloul’s headscarf to a hat or sunglasses, all of which, according to the judge, would violate proper decorum.

I went ahead and dug through the regulations of the Court of Québec, Division II (Order, Dress Code, and Decorum), and found that most articles referenced the proper attire of judges and attorneys, all agents of the state.

Article 13 is sandwiched between regulations on maintaining good order by not reading newspapers or taking unauthorized court selfies, and a clear-cut rule about not speaking unless spoken to.

I’m going to go ahead and call Judge Marengo’s interpretation of that regulation (Div. II, Article 13) loose. I believe she mistakenly conflated the necessary secularism of the court with petitioners’ freedom within proper decorum.

I imagine that someone appearing in court with one shoe, a Concordia Stingers toque, and ‘McGill sucks’ painted on their uncovered chest might be fairly branded as “unsuitably dressed.” Go ahead and throw that guy out, he’s being disrespectful and might be intoxicated.

El-Alloul, on the other hand, enters the court as a petitioner expecting the apparatus of the state to fulfill its function. She expected to plead her case and be served justice, which likely would have included first paying a fine and then retrieving her car. That being the just fulfilment of the appropriate law.

Québec is a pluralist society. It would be downright silly to ask someone to dress up in the Canadiens’ tricolour before appearing before a judge, unless of course the official state religion was Gohabsianism, in which case I wouldn’t expect a fair hearing for any practising Bruiners or Leafites. But that wouldn’t be pluralism, right?

I’m not sure if Rania El-Alloul thinks in hockey allusions, but according to reports she did the right thing. When she was given an ultimatum to remove her scarf and commence with the proceedings, or to leave and return with a lawyer, presumably after the judge had recessed for 30 minutes to reflect, El-Alloul left the court. She explained the nature of her headscarf, which did not infringe upon the good order of the courtroom, and she calmly received a scolding.

Montreal has rioted for less, in case anyone needs reminding.

Protests may not be necessary though, since the court may yet resolve, what I consider a blatant error, all by itself. According to another CBC report, an official complaint has been lodged and the province’s judicial council, the Conseil de la Magistrature, is looking into the matter.

It was also reported that a spokesman for Prime Minister Stephen Harper weighed in on the matter, stating that, “if someone is not covering their face, we believe they should be allowed to testify.”

“I’m not making harm for anyone with my hijab,” El-Alloul told CBC Radio’s As It Happens after the incident. She went on to say that the complaint she is making is not just for herself but for all people and religions, “for Sikh people, for the Jewish men who are wearing the kippah, it is a freedom.”

It’s that freedom that brings people to our shores; the freedom that settles desperate refugees and hopeful immigrants alike. I don’t know what circumstances brought Rania El-Alloul to Montreal, but like many before and after her, she was likely expecting Canadian freedom. The freedom Canada offers includes the right to appear before a secular court without compromising one’s religious conscience, doubly so when there’s no impediment to the good order of the proceedings.

It would seem that Rania El-Alloul is fighting for a freedom I thought I already had, but if Judge Marengo’s reactionary attitude is not just an anomaly, those of us who enjoy a secular state without practicing secularism have reason to support El-Alloul’s complaint.

Though El-Alloul said in her radio interview that she didn’t know what has prompted recent criticism of overt religious symbols, I believe it stands to reason that the current coverage of the international problem with ISIS has played a role, although the debate in Québec has been simmering much longer.

I cannot speak for Judge Marengo, and wouldn’t presume to, but I invite her to clarify or defend her ruling, because as it stands her ruling could be seen as an alarming threat to pluralism.

The state should not and must not wield secularism in the same manner as the failed theocracies of old wielded religion. If it does, the secular state becomes the very problem it sought to fix. An independent and intelligent judiciary is key to preventing this.

For the letter of the law kills, but the spirit of the law (that is, its reasonable application) gives life—that’s why we have judges—but now I’m paraphrasing my own holy scriptures, and apparently there is no place in a public space for that nonsense.

We can only hope that, at the very least, common sense will be allowed to appear in court.

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