Religion, Culture and other Disabilities
The recent case of the Muslim woman who is unwilling to give testimony with her face uncovered presents a complex series of issues which will test the wisdom of the Judge burdened with deciding how to handle the matter. Unfortunately much of the commentary surrounding this case has been distressingly simplistic, insensitive and xenophobic.
It is, of course, a central plank of our justice system that the parties may confront and cross-examine the witnesses who testfy against them. Ideally this should happen in open court, the witness should be fully visible to all parties so that their demeanour and body language may be assessed, and all questions and answers should be subject to the rules of evidence. But there are circumstances where this ideal cannot be attained or can only be attained at an unreasonable cost to the witness.
A quadriplegic patient may exhibit very little "body language" no matter how much of their face and body is visible. In some neuromuscular disorders the patient may have no control of all or most body movements or facial muscles and may be unable to speak normally. Such a patient has no body language and no way of indicating demeanour other than by the content of their answers which may be given via (eg) a blow-tube activated computer screen. In an extreme case a patient may be able to communicate only by a single muscle (eg twitch the left eyelid) and may be able to answer only Yes (one twitch) or No (two twitches). Such a witness would be able to respond only to leading questions whether on direct or cross examination.
All of the above examples provide unavoidable difficulties far more serious than those resulting from a female witness wearing a burqah and yet they would normally be considered competent witnesses. Their testimony would be disallowed only where their mental competence, ability to hear and understand the questions or exercise full conscious control of their "answers" (particularly for the Yes/No example)were in question. The exceptions would require the judge to determine that it was unsafe to allow their testimony under the circumstances - it would not be enough merely to show that the circumstances tilted the playing field for "the games lawyers play".
There are other situations where the difficulies could be resolved but only at a clearly unacceptable cost to the witness. A burn or severe trauma patient with a fully bandaged face or full bodycast would, as a witness, present at least comparable problems to a burqah. The witness could be forced to have the bandage/cast removed while testifying but this would compromise the witness's treatment and such compulsion would be obviously unacceptable. Similarly a severely immune-compromised patient could not be safely forced to appear in open court and would presumably be allowed to testify by video link.
And then there are the vexed circumstances where the damage done to the witness is psychological and is the consequence of religious, cultural, political or idiopathic (nothing to do with savant:)) conviction or psychological condition (eg Acute Anxiety Disorder). In these cases the judge must determine
1) the sincerity of the proclaimed belief / condition
The judge must be satisfied that the condition or belief is genuine. There is no way that either side should be able to use the veil as a tactic to hide a witness that comes across badly.
2) the extent of the damage that will be done to the witness if forced to testify normally
3) the extent to which the pursuit of justice or the position of either side will be damaged if the witness testifies under special conditions (eg veiled)
Note that justice and the interests of either side are not the same thing. Just consider the legal maxim "never ask a question if you don't know the answer". The judge may well wish to give more weight to something that effects the jury's ability to assess the truth than to something that merely complicates he legal tactics of defence or prosecution. But they both matter.
4) the extent to which the pursuit of justice or the position of either side will be damaged if the witnes does not testify at all
5) any means by and the extent to which the damage in (2)-(4) may be mitigated.
The judge will (rightly) pay no attention to -
1) Whether the witness's belief is rational
2) Whether the view is religious, political, cultural or idiopathic
3) Whether a religious view conforms to canon
Theologians may debate how many angels may hide behind a burqah but the law (in the words of Porcius Festus) "will be no judge of such matters"
4) What the Q'ran or any other authority says
Even if you take Q'ran as an inviolable authority you still have to decide what "modestly dressed" means. Ashraf Choudhary, most modern Islamic scholars, Jacques Chirac, this writer and no doubt, dear reader, yourself believe that it does not imply a full burqah but the only relevant belief is that of the woman herself.
5) Whether the witness's beliefs are indigenous, majority, minority or unique
need you ask why?
6) What consideration Afghanistan, Iran, Turkey, Malaysia, Saudi Arabia or any other islamic country would extend to the cultural sensibilities of Kiwis
Our concern is for New Zealand values
I am confident the judge will use his best efforts to balance his duties to protect the welfare of the witness, the pursuit of justice and the right of the accused to a fair trial. In doing so he may (presumably) consult both counsel for an agreed solution (eg witness testifies unveiled on video link and is cross-examined by a female lawyer. Her face is pixilated out on the view shown to everyone else.) None of these principles are, however, absolutes and a blind adherence to standard procedure is not necessary. Witnesses do suffer discomfort - the judge can only ensure that the level of discomfort is not unacceptable or more than necessary. The defendant's right to a fair trial is fundamental and anything that makes it harder for defence counsel to assess the witness's demeanour and body language (including the fact that the witness is from a foreign culture) does some damage to that right. There is, however, a certain threshold quantum of such damage which must be inflicted before the trial can be considered unfair or the verdict unsafe. If it were not so rape victims and children would not be allowed to testify behind screens or by video link and the likes of Stephen Hawking or the late Christopher Reeve could never be considered competent witnesses in a criminal trial.
The extent to which a witness for the prosecution appearing in a burqah, behind a screen or on a video link depends on the specific circumstances of the case and there is no automatic assumption that a burqah would preclude a fair trial. If (as it seems) uch a decision would break new ground in New Zealand law then I would certainly not be surprised to see it decided in a higher court if a consensus decision is not reached.