by Ed Morgan

This article was published in the Fall/Winter 2003 issue of Nexus

Prof. Ed MorganThe combined efforts of the Test Case Program for constitutional litigation and the International Human Rights Clinic have produced a series of cases over the past several years in which faculty and students have had the opportunity to remove their strictly academic thinking caps and put on their litigation hats. It has been, one might say, a nearly religious experience - or, at least, a highly educational one.

One recent initiative has the Faculty of Law forming part of a legal team advocating the right of Muslim schoolgirls in Singapore to wear religiously mandated headscarves in public schools. The controversy over wearing the tudung, as it is called in the Malay language spoken by most Singapore Muslims, or the hejab, as it is referred to in the Arabic language and in much of the Islamic world, has surfaced in numerous jurisdictions around the globe. The Quebec Human Rights Commission has confronted the issue, as have the constitutional courts of France, Germany, and  Turkey, not to mention the European Court of Human Rights. For its part, the Supreme Court of Canada has dealt with the related issue of Sikh turbans in the R.C.M.P., and the U.S. Supreme Court has addressed the issue in terms of an Orthodox Jewish soldier wearing a kippah in the armed forces. Following the assortment of results is enough to make an international lawyer's hair stand on end.

In Singapore, the tudung question is closely related to the status and rights of the Malay minority in that country. While the Malays, as an indigenous people now numbering roughly 15% of the population, enjoy constitutionally entrenched protection for their mostly Islamic cultural and religious practices, these measures have not been applied in the context of Singapore's national schools. Rather, the schools operate on a strictly integrationist policy, requiring school uniforms from which no deviation is tolerated. The central government itself has weighed into the fray, declaring that education is crucial not only to national unity but to economic survival. The government's view is that the Singapore national school system is at the vanguard of the country's continued success as one of Asia's economic 'tigers' and, indeed, its survival as a multi-ethnic polity. All of which has left Malay schoolgirls with bare heads and out in the normative cold.

Around the world, it is fair to say that the religious headgear issue has been addressed in much the same way as the Singapore debate has been framed: the societal or contextual need for uniformity versus the individual or community need for tolerance and diversity. It is a socio-religious version of an issue with which all law students are familiar. Do we force aggrieved minority groups and individuals to tough it out with their heads uncovered like the majority population, or do we allow for religious differences and require society to take its people as it finds them - a society-wide thin skullcap rule?

If one surveys the terrain one finds that Quebec has been more tolerant than France, and that Germany's constitutional court has sided in a definitive way with a Muslim schoolteacher who had been told to remove her hejab while at work. Meanwhile, the European Court of Human Rights refused to take the Turkish government to task for compelling students and even female members of Parliament to remove their headgear. Perhaps the most interesting pair of cases has been the U.S. and Canadian rulings over the issue of non-regulation headwear in uniformed police and armed services. The court in the United States has said that the military prizes discipline, and with it uniformity, above all other values, and is therefore justified in removing religious headcoverings from under the helmets of any of its Orthodox soldiers. The Supreme Court of Canada, on the other hand, has said that the Mounties must always get their man no matter what ethnicity or religion he may be, and has ruled that the turban may be worn in conjunction with the red tunic.

The entrance of the International Human Rights Clinic into the fray in Singapore harks back to one of the first cases engaged in by the Faculty of Law's Test Case Litigation program several years ago. In Taylor v. Canadian Human Rights Commission, the Federal Court addressed the question of whether a judge presiding over a trial can insist that audience members remove their hats as a sign of decorum and respect. Michael Taylor, an Imam by training, had refused to remove his kufi, a headcovering commonly worn by devout Muslim men, and filed a human rights complaint upon being ordered to leave the courtroom. The Commission dismissed his complaint on the grounds of judicial immunity, and Taylor sought review in the Federal Court of Canada. The Test Case Litigation program intervened as counsel to Canadian Jewish Congress in support of Taylor's claim, allowing Muslims and Jews - two peoples of the hat - to come together in a show of legal solidarity.

As it turned out, the Court was less generous with religious rights in the courtroom than has been the case with the classroom. The U.S. courts, in remarkably similar litigation by a Muslim challenger supported by the American Jewish Congress, have ruled that a person has a First Amendment defense to a charge of contempt of court where he or she is charged upon refusal to remove religious headwear in court. In Canada, however, the Federal Court of Appeal opined that just as a sitting judge is immune from the threat of civil action, he or she must also be free from a human rights commission's investigation of judicial conduct. Needless to say, one takes one's hat off to those U.S. appellate judges who have seen past their protective instincts toward fellow judges.

Having learned that the judicial process is often an unpredictable one, the International Human Rights Clinic has nevertheless gone into its recent project with a full head of steam. According to local counsel with whom the University of Toronto program is working, Singaporeans are scratching their heads wondering how their government will react to what is for that country an unusually activist use of the courts; however, the Canadian faculty and students working on the case have taken their heads out of the academic clouds and are optimistic about an ultimately successful result. Having done the comparative law research necessary for the case, it has become evident to us that in many jurisdictions the headscarf question is a thinly veiled excuse for government sanctioned prejudice.

Headcoverings, of course, are not the end of the road for religious rights, but rather are just the beginning. Indeed, the next possibility for an interfaith coalition spearheaded by the U of T Faculty of Law human rights advocacy programs may lie just ahead. In recent months we have received a heads-up that a group of concerned doctors has applied for Charter challenges funding seeking the abolition of all non-medically indicated male circumcision, which may include ritual circumcision as practiced by Muslims and Jews. Once again, a coalition may be forming along a familiar, if inverse theme. But perhaps, before making any further headway, I should stop there.