Judge rules in favour of fully clad
Muslim witness -“free exercise of
religion” is guaranteed under our
Fundamental Rights
Chief Justice (Ag) Ian Chang has ruled that Islamic witness Khairoon Ali has the constitutional right to wear her hijab and burqa (veil), while giving evidence in the Magistrates’ Court.
Ali was scheduled to testify in a Magistrates’ Court matter pertaining to her husband, Mobarak Ali, being attacked and ferociously bitten by two vicious pit bulls, owned by Kitty businessman, Alexie Prashad. The incident occurred sometime in February of 2012.
According to the history of the case Ali, 64, of 46 Austin Street, Kitty, was brutally mauled by the pit bulls in Kitty. As a result of the attack, Ali suffered substantive injuries to his left arm.
Ali had reportedly left his home at 5:15 am to visit the Kitty Masjid when he was attacked by the ferocious pit bull dogs. As a result of his cries for help, a neighbour, Aretha Scott, stood on her fence and threw buckets of water on the dogs in efforts to free the man.
Whilst other neighbours assisted, the police were summoned and Prashad 37 of 49 Austin Street, Kitty, was charged for “knowingly suffering the animals to be at large in a rabid state.”
However, Prashad’s lawyer Huckumchand Parag said that he could not cross examine Mrs Ali, when she was called to the stand because her (veil) prevented him from knowing for certain whom he is questioning.
The lawyer argued that it is important for the court to see the expressions of the woman as well as her demeanor in full. He accused the witness of “throwing her religion in the face of the court.”
Mrs. Ali contended that only the males in her immediate family are allowed to see her face. “The Hijab is a means of protection and a sign of modesty and my decision is an act of obedience to Allah.”
Advice was subsequently given by the Director of Public Prosecutions (DPP who had indicated that the woman should submit her testimony in her garment because she is protected by the constitution which allows her to observe such religious practices.
Based on advice by the DPP, the Magistrate had taken Mrs. Ali into her chambers in the company of a female officer who verified that it was her via her passport and identification card.
However Parag remained firm in his position and requested that the matter be referred to the Chief Justice for advice.
Given the sensitive nature of the case, a motion was filed by Magistrate Geeta Chandan-Edmonds on August 9, 2013,
The motion was to determine whether a witness practicing her religious beliefs by wearing a burqa/hijab in the witness box in a court of law in Guyana is a fundamental right protected by article 145 (1) of the constitution. Justice Chang listened to legal arguments from both sides and subsequently ruled in favour of Ali.
However according to the Constitution the “free exercise of religion” is guaranteed under our Fundamental Rights – specifically Article 145, “Protection of Freedom of Conscience…”
But despite the ruling by the Chief Justice, the lawyer has maintained his position; he will not cross examine a witness, whose identity is concealed by a veil.
Meanwhile to prevent a further delay in the matter, other witnesses will be called when it continues on February 3, 2014.