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Griffiths, David --- "Pluralism and the Law: New Zealand Accommodates the Burqa" [2006] OtaLawRw 8; (2006) 11 Otago Law Review 281

281

Pluralism and the Law: New Zealand Accommodates the Burqa

David Griffiths*

1. Introduction

The New Zealand Immigration Service website contains the following panegyric to New Zealand society:1

It is a concept that New Zealanders find difficult to comprehend but political freedom, ethnic assimilation and religious tolerance are not automatic rights necessarily enjoyed by many people around the world...

The principles of freedom of expression, speech, religion & politics and equality of the sexes are fervently embraced in New Zealand.

Taking a closer look at this statement, however, a discerning would-be immigrant from a nation with a different religious heritage to New Zealand might detect a disturbing ambiguity in the sentiment that the NZIS is trying to convey. On the one hand there are the expressions "ethnic assimilation" and "religious tolerance". The former is a collocation that is commonly associated, for example, with the oppressive policies of the military regime in Myanmar, a country that is consciously trying to wipe out pockets of ethnicity within its borders.2 The latter is also problematic, as it implies not really an embrace of difference, but more a temporary grudging restraint (which might be withdrawn at any time) from imposing majority views on minority religions.3 Contrasted with these unhappy expressions is the espousal of New Zealand's enthusiasm for the principle of religious freedom, which is meant perhaps as a reference to protections contained in the New Zealand Bill of Rights Act 1990 ("BORA") for religious minorities. What would our fictional immigrant make of all this? She might well conclude the overall thrust of the statement is that assimilation is official government policy and that she would be able to practice her beliefs only in private.

PhD Candidate, Faculty of Law, University of Auckland. My thanks to Paul Rishworth for comments on an earlier draft. This article is a longer and updated version of a piece that appeared in the New Zealand Postgraduate Law eJournal; see David Griffiths "'There's no art to find the mind's construction in the face': some thoughts on the burqa case in New Zealand" (2005/1) NZPGLeJ <http:// nzpostgraduatelawejournal.auckland.ac.nz/Update2.htm> (at 7September 2005).

  1. New Zealand Immigration Service Helping Hand NZIS website <http://
    www.immigration.govt.nz/Community/General/AboutNZIS/HelpingHand.
    htm#top> (at 7 September 2005).
  2. For a summary of the Myanmar government's suppression of non-Buddhist
    religious groups, and the policy of forced conversion to Buddhism, see US
    Department of State International Religious Freedom Report 2004: Burma <http://
    www.state.gov/g/drl/rls/irf/2004/35393.htm> (at 7 September 2005).
  3. The objection to "tolerance" is nicely put in a recent letter to the Weekend Herald:
    "Perhaps we need to examine the word 'tolerant'. It denotes enduring something
    we do not like"; "Tolerant Society?" (letter by Amritha Sobrun-Maharaj) Weekend
    Herald (12 February 2005) A22.

282 Otago Law Review (2006) Vol 11 No 2

The philosopher John Gray casts some light on the contradiction at the heart of the NZIS statement in his book Two Faces of Liberalism.4 Gray depicts two conflicting strands of liberalism in the Western tradition regarding acceptance of minority cultures existing within a given society.5 First there is the view that there is an ascertainable best way of life that should be the endpoint in the liberal project. Until it is universally accepted, it is expedient for the time being to tolerate (some) other versions of the best way of life, because ultimately they will be "brought round" to see this truth.6 The second strand, which rejects the notion that an ideal life can be the monopoly of one mode of thought (whether it be religious, humanistic, or whatever) believes that human beings can "flourish in many ways of life"7 and therefore that the liberal project is properly a search for peaceful coexistence, or modus vivendi, among different ways of life. In the former strand, diversity is a mid-point, with a monoculture being the goal; in the latter, diversity itself is the end-point.

Which strand does New Zealand follow? In the past, New Zealand society and government aspired to the first strand. Non-Western immigrant groups, which in any case were small in size, were expected to assimilate into the local way of life, or at the very least be "invisible".8 Members of the Anglo-Christian culture dominated a Parliament that enjoyed the power to make any laws, producing a de facto establishment of Christianity in the public life and laws of the country.9 The relative lack of diversity in religious life in the nation meant that there was little in the way of religious strife,10 except for squabbles between Christian denominations and occasional suppression of non-mainstream Christian religions and of the indigenous religion.11 These factors coalesced to give the impression (at least in the minds of the majority) of a country at peace with itself. This was a society that believed in the virtues of "ethnic assimilation" referred to in the NZIS statement at the start of this article. The result was a large degree of civil peace, though a cynic might say it was the peace of the grave.

4 John Gray Two Faces of Liberalism (The New Press, New York, 2000).
5 Ibid 1-6.

  1. Gray cites John Locke's radical (for the seventeenth century) support for toleration
    of minority religions as a paradigm for this approach; ibid 2. Locke did not however
    consider Catholics or atheists to be deserving of this largess. Rather it was extended
    only to the other Protestant faiths; John Locke A Letter On Toleration (R Kiblansky
    & J Gough eds, Clarendon Press, Oxford, 1968) 121-135. In modern New Zealand,
    we might substitute the current liberal democratic values of the liberal state for
    the dominant Protestant worldview of Locke's time.

7 Ibid 1.

Michael Fletcher (Report Commissioned by the NZIS) Migrant Settlement: A Review of the Literature and its relevance to New Zealand (September 1999) 17 ("Migrant Settlement").

  1. Rex Ahdar Worlds Colliding: Conservative Christians and the Law (Ashgate, England,
    2001) 13.
  2. Paul Rishworth "Coming Conflicts over Freedom of Religion" in G Huscroft and
    P Rishworth (eds) Rights and Freedoms: the New Zealand Bill of Rights Act 1990 and
    the Human Rights Act 1993 (Brooker 's, Wellington, 1995) 225 ("Coming Conflicts").
  3. Ibid 225-227, and see Worlds Colliding, above n 9, 14. The decision to establish
    secular education in the Education Act 1877 is often characterized as an attempt
    to defuse Catholic-Protestant tensions over state education; see in this regard Ian
    Breward Godless Schools? A study of Protestant Reactions to Secular Education in New

Pluralism and the Law: New Zealand Accommodates the Burqa 283

An example of fairly recent government policy that reflects this self-satisfaction and exhorts newcomers to society to share in it can be found in the 1986 Review of Immigration Policy, where the author endorsed the view of an earlier report from 1974, which had stated:12

'It can be expected that, both individually and through their different ethnic groups, new settlers will in the future, as in the past, make varied, and in some cases distinctive economic and cultural contributions to the development of New Zealand.... On the other hand those coming to live here must take the country as they find it and accept the rules applying to its citizens and other residents.'

However, as immigration from non-Western nations increased markedly from the late 1980s, it became clear that we are an ethnically diverse country and that this condition is permanent. This has been accompanied by great improvements in communications technology and ease of movement of people both within and outside the country,13 which has meant that newcomers are not, as once was the case, isolated to the extent that they have no choice but to assimilate into the majority culture. Moreover, the new brand of immigrant is not necessarily permanently resident in New Zealand.14 These minority groups have also attained demographic heft,15 built places of worship16 and have begun to organise

Zealand (Presbyterian Bookroom, Christchurch, 1967) 18; cited in Worlds Colliding, above n 9, 15. Concerning Mäori religious practices, the Tohunga Suppression Act 1907, which outlawed Mäori tohunga or priests, is an infamous example of state oppression, described by Geoffrey Palmer as clearly being "contrary to the freedom of religion provisions of a Bill of Rights"; Geoffrey Palmer New Zealand's Constitution in Crisis: reforming our political system (McIndoe, Dunedin, 1992) 67. An instance of state oppression of non-mainstream Christian religions was the declaring of the Jehovah's Witness religion to be a subversive organisation during World War II; see Nan Taylor "Human Rights in World War II in New Zealand" (1989) 23:2 NZJH 109,115.

Review of Immigration Policy [1975] AJHR G 34, 17; cited in Review of Immigration Policy August 1986 [1986] AJHR G 42, 16 (emphasis added). The author of the 1986 report (Minister of Immigration, Kerry Burke MP) said that the 1974 report continued to "hold true". To be fair, Burke went on to state that the "old notion of assimilation is no longer seen as the desirable outcome of immigration to New Zealand. Our society clearly now sees a positive value in diversity and the retention by ethnic minorities of their cultural heritage"; ibid 48. Fletcher Migrant Settlement, above n 8, 25. Ibid 23.

Those nominating Islam as their religion in censuses increased by 74% from 1996 to 2001; see Statistics New Zealand Census Snapshot: Cultural Diversity (March 2002) <http://www.stats.govt.nz/products-and-services/Articles/census-snpsht-cult-diversity-Mar02.htm.> (at 7 September 2005). The Muslim population of New Zealand has been estimated at around 40,000; J Middleton "Muslim Sisterhood eclipses feminism, says Brit convert" The New Zealand Herald (28 July 2005) A6. The first Mosque was built in 1979 in Ponsonby, Auckland. For an interview with the founders at the time of construction, see P Trickett "Minarets in Ponsonby" New Zealand Listener (21 April 1979) 18.

The Federation of Islamic Associations of New Zealand (FIANZ) was founded in 1979, bringing together several regional organizations under one loose umbrella;

284 Otago Law Review (2006) Vol 11 No 2

politically.17 Add to this a burgeoning rights culture in the population generally, and the legislating of internationally-derived human rights law in the form of BORA and the Human Rights Act 1993, then one would expect attitudes to have changed since the 1970s.18 The result of these factors has indeed been a shift in government policy from one of "take it or leave it" to one of "social cohesion," in which not only those immigrating but also the host community are expected to make adjustments. In 2000, a Ministry of Justice report phrased it thus:19

If taken into account early in the policy making process, human rights tend to generate policies that ensure reasonable social objectives are realised by fair means. They contribute to social cohesion and, as the Treasury's Briefing to the Incoming Government (1999) observes: 'Achieving and maintaining a sense of social cohesion and inclusion is an important aspect of welfare in the broadest sense ... Fairness to all parties involved extends both to the processes by which things are done and to the outcomes themselves. Social cohesion is low when individuals or groups feel marginalised.'

It would seem therefore that the NZIS endorsement of assimilation is more the product of careless drafting than an accurate reflection of current government policy and that New Zealand is, at least nominally, now leaning towards the second strand in Gray's analysis. The social cohesion theory goes, then, that adjustments by the host society, if they are to be meaningful, must also occur in the laws of the society if social cohesion is to be maintained.20 Minority groups will feel less marginalised where they can see the laws of the host society making genuine adjustments to their presence. Practice in concrete cases however will demonstrate whether this movement to Gray's second strand is a real inclination and not just an abstract ideal.

A recent impasse in a criminal trial at the District Court in Auckland was perhaps such a concrete case. Two women wished to wear a burqa (a veil which covers the whole body and face, save for a slit for the eyes) while giving evidence for the prosecution. In an interlocutory decision after a special hearing in October 2004, Judge Moore determined that they would be required to remove the garment, but would be screened from the public and the defendant.21 The judge and counsel (as well as female court staff) would be able to observe the witnesses' faces. The defence had argued that if the women remained veiled, it would breach

William Shepard "Muslims in New Zealand" in Y Haddad and J Smith (eds) Muslim Minorities in the West: Visible and Invisible (Altamira Press, Walnut Creek CA, 2002) 233,241.

  1. The Mäori renaissance, which is generally agreed to have commenced in the mid-
    1970s, also played a part in the dropping of the policy of assimilation of minority
    groups, whether they be indigenous or immigrant in origin.
  2. Ministry of Justice Re-evaluation of the Human Rights Protections in New Zealand
    (October 2000) [206] < http://www.justice.govt.nz/pubs/reports/2000/
    hr_reevaluation/part_6.html> (at 7 September 2005).
  3. The British multicultural theorist, Bikkhu Parekh, makes a case for this need, stating
    that "acceptance of differences calls for changes in the legal arrangements of society";
    Bikkhu Parekh Rethinking Multiculturalism (Macmillan, Basingstoke, 2001) 2.
  4. Police v Razamjoo [2005] DCR 408 ("Razamjoo"). The women were also permitted
    to wear a scarf covering their hair, but not dark glasses.

Pluralism and the Law: New Zealand Accommodates the Burqa 285

the defendant's fair trial rights under s 25 BORA. In particular, it was contended that to allow them to remain veiled would prevent the defence (and the trier of fact) from assessing facial demeanour during cross-examination.22 And in any case, the argument went, it could not be said that Islam actually requires women to wear a veil and therefore the two women should not be able to avail themselves of human rights protections for religious belief. The two witnesses, for their part, had relied on those BORA protections: s 13, the right to freedom of thought, conscience and belief; ss 15 and 20, the right to manifest their religion in practice and in public; and s 19, the right to freedom from discrimination on the grounds of their belief.

The apparent conflict of these rights threw up a panoply of issues. Is New Zealand a secular society with a correspondingly religion-free court system? Does Islam truly require women to wear veils? Is it possible to preserve the right of a defendant to a fair trial while also giving effect to the right of others to practise their religion? In order to "examine" a witness is it necessary to see the whole face of a witness? Media and political reactions were of a consonant view that the defendant's rights should prevail over Mrs Salim's and Ms Razamjoo's request to wear the burqa.23 Evidently, popular opinion was still of the "take it or leave it" variety; indeed, many suggested that if the two women did not like New Zealand's laws regarding testimony in court, they should leave the country. The question for the judge to decide was what precisely these laws now are. The answer to this question in the post-BORA era may well be different to what would have prevailed in the 1970s.

This article shall consider how these issues were decided and offer comment on the analysis adopted by the judge. Not all the matters canvassed above were resolved in the decision, but the result does indicate that Gray's more favoured

Section 25(f) BORA provides that those charged with an offence have the right to "examine the witnesses for the prosecution and to obtain the attendance and examination of the witnesses for the defence under the same conditions as the prosecution". No attempt was made per se by the defence to assert a right of "confrontation" between the accused and his accusers. The New Zealand Law Commission has argued that no such right exists in New Zealand: "It seems that prior to the New Zealand Bill of Rights Act 1990, no common law right to face-to-face confrontation existed in New Zealand"; New Zealand Law Commission The evidence of children and other vulnerable witnesses: a discussion paper (NZLC PP26, 1996) [196].

See, eg, Brian Rudman "A cover-up the courts should ban" The New Zealand Herald (Auckland, 29 October 2004) A2. Winston Peters MP has said: "If you do not like our laws, there are thousands of Kiwis who will willingly take you to the airport, pay your departure tax, and fly you to the Islamic paradise of your choice"; R Berry "Buy back the silver and live better, says Peters" The New Zealand Herald (1 November 2004). A parallel example of local resistance to New Zealand adapting its practices to Islam is to be found in the reaction to recent tightening up of halal slaughter procedures in order to satisfy Malaysian requirements for New Zealand meat exports: "It is an outrage that our whole meat industry has to 'surrender' to the dictates of a superstition of a foreign religion"; "Hygienic killing beats Islam's meat rules" (letter by Dick Hemmings) Sunday Star Times (7 August 2005) C8. The author notes that when accommodating foreign religious practices coincides with national commercial interests, these protests are often short-lived.

286 Otago Law Review (2006) Vol 11 No 2

second strand, in which diversity is recognized as a virtue in itself, is an attainable goal within the New Zealand justice system.

2. Consideration of Police v Razamjoo
2.1 Preliminary points
(a) No section 4 BORA component

There have been a number of cases in which the assertion of religious freedom rights under BORA has failed because of the operation of s 4 BORA, the provision maintaining parliamentary supremacy.24 For example, in R v Lee25 the defendant was convicted of manslaughter under the Crimes Act 1961. Lee had attempted to claim that the religious exorcism that he had performed (and which resulted in accidental death) was a protected religious practice under s 15 BORA. This claim was not successful, because s 4 gave primacy over the religious claim to the unambiguous provision relating to manslaughter in the Crimes Act.

In the present case there was no law of similar specificity to the Crimes Act prohibition of manslaughter that required the women to remove their veils. The nearest thing to such a law is to be found in the District Court Rules, which provide that:26

Except where otherwise directed by the Court or required or authorised by these rules or by any Act, disputed questions of fact arising at the trial of any proceeding shall be determined on evidence given by means of witnesses examined orally in open Court.

The presumption contained in r 495 that evidence should be given in "open Court" is an enunciation of the common law convention that the normal manner in which testimony is given requires that "judge, jury, witnesses, and accused are all present in the sight of one another" in the courtroom.27 This presumption clearly operates against the two women who wished to wear the burqa, as facial coverings are not, at first glance, consistent with the classical understanding of

  1. Section 4 BORA provides: "No court shall, in relation to any enactment (whether
    passed or made before or after the commencement of this Bill of Rights), -
(b) Decline to apply any provision of the enactment -

by reason only that the provision is inconsistent with any provision of this Bill of Rights."
25 [3 December 2001] HC, Auckland, T 10974.

  1. District Courts Act 1947, r 495. See also the identical rules for the High Court;
    Judicature Act 1908 Sch II, Pt 5, r 496.
  2. Rv Accused (T4/88) [1988] NZCA 250; [1989] 1 NZLR 660, 664 (per Cooke P); see also p 670 (per
    McMullin J) (CA). Also, see Scott v Scott [1913] UKHL 2; [1913] AC 417, 432-439, where Viscount
    Haldane LC states: "[T]he administration of justice must so far as the trial of the
    case is concerned, with certainly narrowly defined exceptions.. be conducted in
    open Court". See discussion in P Rishworth et al The New Zealand Bill of Rights
    (Oxford University Press, Auckland, 2003) 695 ("Rishworth et al"), where Optican
    notes: "The common law has generally accepted the notion that it is always more
    difficult to lie to someone's face".

Pluralism and the Law: New Zealand Accommodates the Burqa 287

what constitutes an open court. However, r 495 equally clearly contemplates a discretion for the judge to order different courtroom arrangements. This happened, for example, in Aeromotive Limited v Page28 where, in a civil case, the judge invoked a judicial discretion to allow video testimony from overseas. Harrison J stated that r 496 of the High Court rules (the equivalent to the District Court rule) "vests the court with jurisdiction" to diverge from the basic presumption of physical presence at common law and in r 496. The judge made this ruling despite his observation that "physical presence is a significant factor in the adversarial process. For a witness under pressure, a metre or two from an exponent of the art of penetrative cross-examination, there is no safe haven. The immediacy of the courtroom creates its own dynamic."29

The absence of an actual legislative direction that Mrs Salim30 had to unveil appeared therefore to create an opportunity, at least, for the judge to order an arrangement that accommodated her religious beliefs. In a sense, the court would be operating in lieu of the legislature, and would, presumably, scrutinize its actions in a way that is similar to the Attorney-General's duty to "vet" all bills for consistency with the Bill of Rights.31 Unlike cases where judges are scrutinizing legislation, this case was of a type where the usual deference to the legislature's choices was absent and therefore the judge had more freedom to consider whether it was necessary for the women to unveil.32

This is reinforced by the fact that s 3 BORA provides that BORA applies to "acts done" by the judicial branches,33 which suggests that all orders34 made in court should be crafted so that they are consistent with BORA. This is not to say of course that Mrs Salim's religious right had to prevail, as s 5 BORA provides that the rights contained in BORA can be subject to reasonable limits. The order

(2002) 16 PRNZ 329.

Ibid [15].

For the sake of brevity, we shall refer to the two prosecution witnesses (both

immigrants from Afghanistan) collectively as "Mrs Salim".

BORA s 7. The need to vet prospective legislation is a necessary consequence of

the Attorney-General's duty to report on inconsistency to Parliament. This task is

undertaken by Ministry of Justice or Crown Law officials.

See Paul Rishworth "Human Rights" [2005] NZ L Rev 87, 103. There Rishworth

notes Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, the first case relying on s 5 in a dispute

over the content of the common law. The absence of legislative direction in the

case meant that Keith J had to conduct a thorough discussion of whether there

was a compelling need for growth in the relevant area of common law. Where

legislation is involved such an enquiry into the need for the legislation is cursory,

given the traditional deference to legislative choices.

According to Rishworth, s 3 BORA's reference to the "judicial branches of the

government of New Zealand" includes judges of the Court of Appeal, the High

Court and the District Court (and, presumably, of the Supreme Court); Rishworth

et al, above n 27, 98.

Rishworth distinguishes decisions in cases from acts "perpetrated" by judges during

proceedings, such as, in the present case, the act of a judge in pronouncing whether

or not a witness can give veiled testimony. In the latter type of judicial acts, actions

for breach of BORA provisions can be made in appeals, as occurred in Upton v

Green (no 2) (1996) 3 HRNZ 179 and Brown v Attorney-General [2003] 3 NZLR 335;

ibid 102.

288 Otago Law Review (2006) Vol 11 No 2

by Judge Moore therefore had to be consistent with s 15, but also was potentially moderated by s 5 (and the fair trial right in s 25).

(b) No religious "establishment" issue

There was a public perception surrounding the hearing that, as New Zealand is a secular state, there ought not to be any concessions made to religious belief in the inherently rational endeavour of the ascertainment of facts in a criminal trial.35 In similar vein, the defence argued that to allow veiled testimony would be to "create a separate justice system for Muslims in what is essentially a secular society".36

There is some precedent where courts have prevented religious practices in the courtroom, but these instances may be distinguished from the present case in that they involve incidents where there is an element of the court taking part in the religious rite. For example, in Mair v Wanganui District Court37 the High Court upheld a conviction for contempt of court where the appellant had, against the express order of the judge in the lower court, attempted to say a Mäori prayer, or karakia.38 Heron J noted that courts are secular institutions and that "involving any person in a karakia against their personal wishes is insensitive and unacceptable".39 The judge appeared particularly concerned that the institution of the courts might be considered to have joined in the religious ceremony, amounting to an endorsement by the state of the religion in question. Such an endorsement (or establishment) of Mäori spiritual beliefs would infringe on the rights of others who did not share the religious belief that was being invoked. This type of violation of private religious belief is arguably prohibited by s 13 BORA,40 which protects individuals from interference in the holding of their

For example, one newspaper article characterised the women's request as being tantamount to insisting that "secular New Zealand adapt to their sacred madness"; M Laws "Row over burqa reveals more than was intended" Sunday Star Times (1 November 2004) C12. Razamjoo, above n 21, [54]. [1996] 1 NZLR 556 ("Mair").

A karakia consists of "pleas, prayers, and incantations addressed to the gods who reside in the spirit world"; Cleve Barlow Tikanga whakaaro : key concepts in Mäori culture (Oxford University Press, Auckland, 1991) 37; cited in ibid 557. According to Barlow, modern day karakia "follow a Christian format and are offered to the Christian god"; ibid 557. Ibid 564.

Section 13 BORA reads: "Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and hold opinions without interference." Note that Heron J did not explicitly cite s 13; indeed, he seemed more concerned about promoting the impartiality of the Court to the parties to the proceedings. Thus, he considered that in cases where Mäori interests were at stake (such as in Court of Appeal cases involving the Treaty of Waitangi, where karakia have been allowed) it might be acceptable to commence proceedings with a karakia; ibid 564. The fact that a karakia can plausibly be regarded as impartial in Treaty cases, does not however address the s 13 issue of whether members of the public (who do not ascribe to the religious practice) witnessing such proceedings would feel excluded by a religious practice that is being endorsed by

Pluralism and the Law: New Zealand Accommodates the Burqa 289

internal beliefs.41

The present case is somewhat different to the situation in Mair. The pattern of the vast American jurisprudence on church and state issues suggests that where a government actor (eg, a court) merely removes a burden on religious exercise, it is more likely to be regarded as a permissible "accommodation of the exercise of religion rather than as a Government endorsement of religion".42 An accommodation would be allowed to stand as long as the government had not "advanced religion through its own activities and influence".43 In the present case, therefore, it seems plain that the court cannot realistically be regarded as taking part in or facilitating Mrs Salim's religious activity.44 In other words, the court's acquiescence in the wearing of the burqa should be regarded as an acceptable accommodation of her religion for the purposes of s 13.45 This concession to religious belief contrasts with the ceremonial nature of oral religious incantations in cases such as Mair, where it is considerably more difficult for judges to distance themselves from the religious practice.46

Judge Moore did not however directly canvass this issue in his decision, though I would suggest that the distinction made above between Mair and the present case is the correct approach in this type of enquiry. The resolution of the issue of religion in the public domain in New Zealand, therefore, is still waiting for the right case to come before the courts.

the Court (and by extension the state). For discussion of the issue of "establishment" of Mäori religion in the public sphere, see Eric Kolig "Coming through the Backdoor? Secularisation in New Zealand and Mäori Religiosity" in J Stenhouse and B Knowles (eds) The Future of Christianity (ATF Press, Adelaide, 2004) 183.

  1. For discussion of how s 13 BORA might be construed as protecting individuals
    from state coercion in matters of private belief, see Rishworth "Coming Conflicts",
    above n 10,237.
  2. Corporation of Presiding Bishop v Amos [1987] USSC 140; (1987) 483 US 327, 349 (per O'Connor J);
    affirmed in Cutter v Wilkinson [2005] USSC 4137; (2005) 125 SCt 2113,2121. In Amos, an exemption in
    anti-discrimination legislation permitting religious organizations to only hire staff
    belonging to that religious organisation was not regarded as an impermissible
    establishment of religion under the First Amendment.

43 Ibid 337 (per White J).

  1. Indeed, the women are asking the court not to act at all, illustrating the fact that
    religious freedom is properly considered a negative right (ie, to be free from
    government interference). In Mendelssohn v Attorney-General [1999] NZCA 67; [1999] 2 NZLR 268
    (CA), a case where a religious claimant asked the government to act positively to
    promote his religion, the Court of Appeal said government was under no duty to
    act, but merely had a power to do so; ibid [20].
  2. In Mair the District Court judge had given permission for the karakia to be
    performed before he entered the court. The fact that the appellant insisted on making
    the incantation while the judge was present was unacceptable, as it would have
    effectively made the judge a party to the religious practice.
  3. Moreover, it resembles the accommodation of Catholic doctrine in the Evidence
    Act 1908, whereby clerics (in what is a predominantly Catholic custom) are not
    permitted to divulge on the witness stand information given to them under
    confession, unless they have the consent of the penitent (with the proviso that
    communications made for the purpose of committing a crime are not exempt);
    Evidence Amendment Act (No 2) 1980, s 31.

290 Otago Law Review (2006) Vol 11 No 2

2.2 The decision

(a) Sincerity of belief. Is wearing the burqa a religious practice?

The first issue for Judge Moore to determine was whether the desire to wear the veil was in fact a religious practice that triggered the protection in s 15 BORA.47 If it was not, then Mrs Salim could not avail herself of the BORA protections. To this end Mrs Salim testified that if she were to remove the burqa in court she would be "in trouble" with God on the Day of Judgment.48 She was particularly concerned about unveiling in front of the accused, who was a friend of her family but not within the category (typically close relatives) who were permitted to see her face.49

The defence countered by saying that there were many conflicting views among Muslim authorities as to the need for women to be veiled, none of which could be "conclusive".50 Also it was argued that under the Qur'an it was not compulsory for women to wear the veil or be kept apart from men.51 The corollary of this point was that wearing the burqa was merely a cultural choice that was not required by Islam and therefore not a religious practice for the purposes of BORA. Interestingly, comments in the media by Muslim leaders supported the defence argument, one cleric saying that it was not a religious issue and that the burqa should "definitely" be removed in court.52

Judge Moore dealt with these submissions by referring to the American case ofMcMillan v State of Maryland,53 which advised against courts getting involved in deciding between different doctrinal views on religious practices and that to do so would be to enter a "'theological thicket,'" a task that secular courts are unequipped to perform. The only proper course, according to this American precedent, was to enquire into whether the religious claimant's belief was sincere and bona fide.54 Judge Moore accordingly did not closely inspect the doctrinal

  1. Section 15 BORA reads: "Every person has the right to manifest that person's
    religion or belief in worship, observance, practice, or teaching, either individually
    or in community with others, and either in public or in private".
  2. Author's notes from hearing in Police v Razamjoo (26 October 2004, Auckland
    District Court); on file with author.
  3. Another prosecution witness, Professor Paul Morris, a religious studies professor
    from Victoria University, provided the principal scriptural basis for this right in
    the Qur'an: "O prophet, tell your wives, your daughters, and the wives of the
    believers that they shall lengthen their garments. Thus, they will be recognized
    (as righteous women) and avoid being insulted. God is Forgiver, Most Merciful";
    The Qur'an Sura 33:59; cited in Razamjoo, above n 21, [16]. According to Professor
    Morris, this passage is interpreted in Afghanistan (the birthplace of Mrs Salim) as
    requiring women to wear the burqa.

50 Razamjoo, above n 21, [54].
51 Ibid [57].

  1. This is the opinion of Dr Zuhair Araji, a Shiite minister at the Imam Ali Institute in
    Epsom; M Devereux "Experts: wearing veil a personal choice" The New Zealand
    Herald (30 October 2004) A3. Malaysian lawyer Kamar Ainiah Kamaruzaman
    claimed that "in Islam it is not compulsory to veil your face in public" and that the
    reasons for doing so are historical or cultural; C Barton "Behind the Burqa" Weekend
    Herald (7 August 2004) B6.

53 (1970) 258 Md 147.
54 Razamjoo, above n 21, [66].

Pluralism and the Law: New Zealand Accommodates the Burqa 291

underpinnings of Mrs Salim's belief and decided that her testimony was sincere, thus triggering the religious protections contained in s 15 BORA.55 If the defence had produced a Muslim religious figure to testify that the wearing of the burqa was not a religious practice, or that Islam did not compel the wearing of veils, it apparently would have been deemed irrelevant.

This stage of the enquiry could conceivably have taken a different route. International jurisprudence falls into two schools regarding the question of whether a religious practice warrants protection. The European Court of Human Rights in Arrowsmith takes the view that the European Convention on Human Rights' protection of manifestation of religious belief56 covers only those practices that have a very direct link to the religion in question and not those that are merely "motivated or influenced by a religion or a belief".57 In practice, this has meant that it has been necessary for the Court to detect a degree of compulsion in the religious activity. For example, in Khan v UK,58 a Muslim man, who had been arrested for abduction when he married a 14 and a half-year-old girl in an Islamic ceremony, had failed in his claim that the marriage was a Muslim practice for the purposes of the Convention. Apparently, Islamic law permitted the marriage of girls at 12 (under British law, 18 was the lower age limit for marriage without parental consent), but the European Commission on Human Rights held that, because Islam did not require marriage at this age, the applicant could not assert that his marriage was a "practice" of his religion for the purposes of the Convention.59 The individual's sincere belief that his religion permitted such a marriage was inadequate to satisfy the requirements of the Convention.

This "necessity" test has been utilised in numerous decisions of the European judicial organs, though, as Carolyn Evans points out in her major work on religious freedom under the Convention,60 its application has been somewhat haphazard. Sometimes the Court considers expert testimony in order to determine if a practice is "necessary",61 while in others it appears to employ its own subjective views as to what is a necessary "practice".62 It is apparent that

55 Ibid [67].

  1. Article 9(1) reads: "Everyone has the right to freedom of thought, conscience and
    religion; this right includes freedom to change his religion or belief, and freedom,
    either alone or in community with others and in public or private, to manifest his
    religion or belief, in worship, teaching, practice and observance".
  2. Arrowsmith v the United Kingdom (1978) 19 E Comm HR 7050/75 19. This was in
    fact a decision of the European Commission on Human Rights, which was
    subsequently applied by the Court.

58 (1986) 48 E Comm HR 11579/85 253.
59 Ibid 255.

  1. Carolyn Evans Freedom of Religion under the European Convention on Human Rights
    (Oxford University Press, Oxford, 2001) 115-123.
  2. In D v France (1983) 35 E Comm HR 199 10180/82 the Commission accepted expert
    evidence from Jewish religious leaders saying that the applicant's refusal to hand
    a repudiation letter (or "guett") to his ex-wife, as was the custom under Jewish
    law in order to allow her to re-marry, was not in fact required by Jewish law.
  3. In Valsamis v Greece (1996) 2 ECHR 2312 the Court, having received no expert
    testimony, rejected the claims of Jehovah's Witness parents that participation by
    their children in a parade on Greek National day (which fell on the same day as
    the outbreak of fighting between Greece and Italy in World War II) offended the

292 Otago Law Review (2006) Vol 11 No 2

in the case of Mrs Salim, a European approach to determining whether her belief was a "practice" under s 15 could have placed her wish to wear the veil outside the scope of BORA. Chief among Evans' arguments against the European method, and relevant to Mrs Salim's case, is the complaint that dissenting members of a faith could have their sincerely held religious practices called into doubt if a court decided to give weight to the testimony of orthodox members of the hierarchy of the same religion.63 Thus, a religious authority from a country where the burqa is not worn could, under the European approach, testify that Islam does not require the burqa and so disentitle Mrs Salim from protection under s 15.

To favour one side in a doctrinal debate, it is suggested, would not be a wise position for a New Zealand court to take, as it would inevitably draw the courts into the role of choosing between different scriptural interpretations of Islamic religious texts. This would effectively involve the courts in heresy trials, a pursuit that would impermissibly entangle the courts in religious matters. Apart from this problem in principle, the practical question of deciding which religious expert was authoritative in weighing theological debates within a religion is reason enough to deter the New Zealand courts from adopting such a course. This point is especially resonant with respect to Islam, a religion that has no supranational structure and no readily ascertainable spokespeople who can legitimately speak for all adherents.

The North American courts are aware of this difficulty and have consistently declined to delve into doctrinal disputes within religions. For example, in Thomas64 a factory worker who was a Jehovah's Witness, resigned from his job when he was transferred to a part of the factory that was involved in armament manufacture. He declared that his religion forbade employment in weapons production. The Indiana Supreme Court decided that his belief was not a religious one, partly on the basis of the testimony of a co-worker, (also a Jehovah's Witness) who did not believe their religion required such conduct.65 This led the court to decide that the man resigned because of a philosophical scruple and not a religious one, and that, because mere philosophical beliefs did not fall within the scope of the free exercise clause of the US Constitution, his claim failed. The US Supreme Court rejected this approach, stating that "intrafaith differences" of this kind were "not uncommon among followers of a particular creed", and that courts were "ill equipped to resolve such differences".66 The

pacifist tenets of their religion. Evans compares this case with West Virginia State Board of Education v Barnette [1943] USSC 130; 319 US 624 (1943), in which the US Supreme Court allowed an exemption for Jehovah's Witness children from saluting the flag, noting that "[N]o official...can prescribe what shall be orthodox in...religion"; Evans, above n 60,120. In a recent case, the Court "assumed" for the purpose of argument that the wearing of a veil by a university student in Turkey was a "practice", but went on to dismiss the application by recourse to the limitations contained in art 9(2); Leyla Sahin v Turkey (2004) ECHR44774/98 [71] ("Sahin"); available at: <http:/ /www.echr.coe.int/Eng/Judgments.htm>.
63 Evans, above n 60,123.
64 Thomas v Review Board of the Indiana Employment Security Division [1981] USSC 66; 450 US 707 (1981).
65 Ibid 715.

  1. Idem. The Court went on to say that: "Courts are not arbiters of scriptural
    interpretation"; ibid 716.

Pluralism and the Law: New Zealand Accommodates the Burqa 293

only proper function of the courts in the initial enquiry into a religious claim was to determine that the claimant had resigned because of an "honest conviction"67 that his religion forbade such work.

The experience in Canada mirrors that of the US. In Syndicat Northcrest v Amselem68 the Canadian Supreme Court rejected the lower courts' reliance on testimony by a Jewish rabbi who declared that the religious practice in dispute in the case was not required by the Jewish faith. The lower courts had used this evidence to find that the practice was not a religious one for the purposes of the Canadian Charter.69 The Canadian Supreme Court, relying in part on Thomas,70 held this methodology to be defective, finding that the fact that the religious conduct was merely motivated by the claimant's religion and was sincerely held was enough to trigger the religious protections in the Charter. Moreover, the Court held that a religious claim which is based on a perception that the practice is merely a voluntary aspect of a claimant's religion would also come under the protection of the Charter.71 The religious claimant went on to win the case when the Court decided that the interference with his right was a non-trivial one and was not justified under the limitations test in the Charter.72

Judge Moore clearly favoured the approach in North America, as indicated by his reliance on US authority. Indeed this would appear to be backed by New Zealand precedent. In Feau v Department of Social Welfare, Elias J in the High Court held that the appellant's sincere belief that his religion forbade him from attending periodic detention training on a Saturday (which was his Sabbath) was determinant in the initial stage of a s 15 BORA claim.73 There was no evidence of an enquiry in Feau as to whether his wish not to attend the training was required by his faith, as perhaps he would have had to do in Europe74 (or in

67 Idem.
68 [2004] SCC 47 ("Amselem").

  1. Ibid [65]. Two rabbis had given conflicting testimony on this point and the trial
    judge had favoured one of them.

70 Ibid [45].

  1. Reproduced in full, the Amselem test provides: "[A]t the first stage of a religious
    freedom analysis, an individual advancing an issue premised upon a freedom of
    religion claim must show the court that (1) he or she has a practice or belief, having
    a nexus with religion, which calls for a particular line of conduct, either by being
    objectively or subjectively obligatory or customary, or by, in general, subjectively
    engendering a personal connection with the divine or with the subject or object of
    an individual's spiritual faith, irrespective of whether a particular practice or belief
    is required by official religious dogma or is in conformity with the position of
    religious officials; and (2) he or she is sincere in his or her belief. Only then will
    freedom of religion be triggered"; ibid [56].
  2. The only limitation on this sincerity test was a caution that courts should be satisfied
    that claims are "neither fictitious nor capricious, and that it is not an artifice"; ibid
    [52]. The US Supreme Court offers a similar warning to discount claims that are
    "so bizarre, so clearly non-religious in motivation, as not to be entitled to
    protection"; Thomas, above n 64, 715.

73 (1995) 2 HRNZ 528 (HC) ("Feau").

  1. It is worth noting that the European Court has recently resiled slightly from the
    necessity test. In Sahin, the Court assumed that the wearing of the veil by a religious
    claimant was a practice for the purpose of Article 9; see n 62 above.

294 Otago Law Review (2006) Vol 11 No 2

front of the erroneous trial judge in Amselem).75

The main lesson to be learned from the discussion by Judge Moore at this initial stage in a s 15 case is that law practitioners arguing that a practice is not a religious one cannot rely on testimony from religious authorities that contradicts a claimant's belief that her faith requires certain behaviour. All that practitioners can do is cross-examine the claimant as to the sincerity of their subjectively held belief.76 For this reason, this initial "filter" on religious claims might be regarded as a very modest one, capable of accommodating not only practices that are uncontroversially central to a religion, but also (to repeat the language of the House of Lords in a recent case that dealt with manifestation of belief under the European Convention) those that are "relatively peripheral matters observed by only the most devout".77 Moreover, the fact that, under an Amselem-type enquiry, the claimant need not even view his religious beliefs as being compelled by his religion makes the task of practitioners who seek to defeat a religious claim even more difficult.78

The defence in the present case did in fact attempt to undermine Mrs Salim's

  1. Similarly, in a Human Rights Commission mediation in New Zealand, evidence
    that not all Muslims "conformed to the practice of boys wearing long trousers"
    was not relevant to a complaint made by a Muslim against school uniform policy
    under the Human Rights Act 1993; C149/94 Human Rights Commission (1994).
    For other New Zealand use of the sincerity requirement, see Friends and Community
    ofNgawhaIncv Minister of Corrections [2002] NZRMA401 [42]-[43] (HC).
  2. One could perhaps imagine a situation where a religious authority's testimony
    regarding religious texts might be relevant; say, where someone claimed that Islam
    required her to eat ice cream on the witness stand. However, such testimony
    would not be part of a doctrinal enquiry into the tenets of the religion, but rather
    one factor in determining sincerity; see R v Secretary of State for Education and
    Employment ex parte Williamson and Others [2005] UKHL 15, [22] (“Williamson")
    where Lord Nicholls states: "The relevance of objective factors such as source
    material is, at most, that they may throw light on whether the professed belief is
    genuinely held."

Ibid [62]. The UK House of Lords acknowledged the Arrowsmith dictum that not all religious practices amount to a manifestation of religion for the purposes of the European Convention, with Lord Nicholls affirming Arrowsmith: "Clearly this is right"; ibid [31]. However, the actual determination by their Lordships of whether the relevant practice (in this case certain parents claimed that they manifested their beliefs on corporal punishment when they placed their children in schools where that type of punishment is administered) was within the scope of the Convention was not a particularly rigorous one. Moreover, Lord Nicholls accepted that a "perceived obligation" on the part of the claimants was sufficient on its own, without expert testimony; ibid [32]. Also, Lord Walker gives "the appellants the benefit of the doubt" in overcoming this initial hurdle; ibid [69]. If however, the practice merely "scrapes over" this initial enquiry, this might have a bearing on the proportionality debate when considering justified limitations on the right in the second stage of the enquiry; ibid [66].
78 Note that Judge Moore relied exclusively on US precedent and did not in fact cite

Amselem, leaving the issue of whether subjective, voluntary religious practices are sufficient in a s 15 BORA enquiry for another case. See also Williamson, where Lord Nicholls comments in obiter dicta that "perceived obligation" is not a prerequisite to this enquiry and acknowledges the liberal attitude taken by the Canadian Supreme Court in Amselem; Williamson, above n 76, [33].

Pluralism and the Law: New Zealand Accommodates the Burqa 295

claim as to her sincerity of belief by evincing an admission that her driver's licence contained an unveiled photograph, which contradicted her declaration that she never removed the veil in public. However, as would be expected under the American approach (at Supreme Court level in both the US and Canada) to determining sincerity, this was not regarded as a relevant point by Judge Moore at this initial stage of the enquiry.

Having determined that Mrs Salim was sincere, Judge Moore, however, was still in a position to declare that an order to remove the veil was a trivial interference with this right.79 We shall return to this point later.

We shall now proceed to the next stage of the enquiry, which was the conduct of s 5 analysis under BORA.

(b) The fair trial right. A reasonable limit?

Having determined that the right asserted was a religious practice for the purposes of s 15, the enquiry moved on to consider whether the right could be subject to reasonable limits under s 5 BORA.80 The dispute centred on the free trial rights contained in s 25 BORA, which could be counted among the "fundamental rights and freedoms of others" that are regarded by the International Covenant on Civil and Political Rights as acceptable grounds for limiting a right.81

The Crown had made multiple references to judgments that indicated that a fair trial was not necessarily a perfect one from the point of view of the accused.82 This "imperfection" was necessitated by the need to ensure fairness to other people who had been drawn into the criminal process, which, in this case, meant the witnesses themselves. Also the right of the broader community to see offenders efficiently brought to justice was invoked. 83 The prosecution did however concede that there must be some aspects of trial procedure that were

In Feau, Elias J considered that attendance at periodic detention training on one Saturday was a "relatively modest encroachment on his right to religious observance". This led her to conclude that the interference was trivial and therefore was not a meaningful infringement of Mr Feau's right under s 15; Feau, above n 73,530. Elias J's approach was to place the triviality enquiry within the s 5 analysis, as appears to have been the case in Razamjoo.

  1. Section 5 BORAreads: "Subject to Section4 of this Bill of Rights, the rights and freedoms
    contained in this Bill of Rights may be subject only to such reasonable limits prescribed
    by law as can be reasonably justified in a free and democratic society".
  2. Article 18(3) of the ICCPR provides: "Freedom to manifest one's religion or beliefs
    may be subject only to such limitations as are prescribed by law and are necessary
    to protect public safety, order, health, or morals or the fundamental rights and
    freedoms of others". Note that the limitations clause in Article 18(3) has been
    cited in New Zealand case law; see Re J (An infant): B and B v Director-General of
    Social Welfare[1996] 2 NZLR 134,145 (CA).
  3. For example, the Crown cited R v Lyons [1987] INSC 47; [1987] 2 SCR 309, 362 as authority for its
    position that "a fair trial does not of itself entitle an accused to the most favourable

|T' '..cJlin:'-". /•.'.■■■..■■.');;. •.'. ,ll> 'if II 21 . |4' I

  1. For example, regarding the right of the public, seeRvL [1994] 2 NZLR 54 (CA),
    60, where Richardson J says that a fair trial is secured by striking a "balance between
    the interests of all the parties involved including the interests of the general public,

296 Otago Law Review (2006) Vol 11 No 2

so fundamental to a fair trial that they could not be abandoned without destroying the fairness of proceedings. Clearly the defence considered the ability to assess facial demeanour was one of these aspects. The Crown did not, and backed this up by reliance on social science research from the US that had consistently shown that human beings are poor judges of the veracity of others when that determination is made from observing facial demeanour alone.84 At any rate, the Crown's argument continued, most of the other aspects of testimony would remain accessible, such as verbal demeanour, and the actual content of what the women would say.85 The numerous other exceptions to open court testimony (such as in sexual abuse cases and gang violence trials) were also cited to indicate that, as there were many other instances of witnesses testifying in alternative modes, it could not be argued that there was a compelling need to require the witnesses to unveil.86 One particularly striking precedent was that of R v Atkins,87 a Court of Appeal case in which witnesses to a gang-related killing testified from a remote location by closed circuit television. The accused and defence counsel were unable to assess visual or verbal demeanour, as the faces and voices of the witnesses were distorted.88 In response to protest from the defence, the Court of Appeal had stated: "We doubt there is much weight in this complaint, and in the circumstances consider any disadvantage must be comparatively slight."89 In Atkins the Crown had not used the social science data in written submissions, but the clear inference was that the Court of Appeal was satisfied that a fair trial was possible, even though counsel would not have the benefit of observing facial (or verbal) demeanour. The Court was apparently content with the Crown's assertion that "what the witness says" could still be scrutinised and "matched against other testimony".90 This seemed to be an adequate arrangement to the Court, who were rather phlegmatic regarding the "chipping away" at open court testimony that had gone on in the past:91

the hidden parties to the proceedings." Concerning the interest of the public in

the effective prosecution of criminal charges, see R v Hines [1997] NZCA 123; [1997] 3 NZLR 529,

549. Judge Moore summarises these submissions in Razamjoo, above n 21, [43].

Ibid [76]. Judge Moore acknowledged (among others) the following "Learned

articles" submitted by the Crown on the social science research: O Wellborn

"Demeanor" (1991) 76 Cornell L Rev 1075; M Stone "Instant Lie detection?

Demeanour and Credibility in Criminal Trials" Crim L R 821; J Blumenthal "A

Wipe of the Hands, A Lick of the Lips: The Validity of Demeanor Evidence in

Assessing Witness Credibility" (1993) 72 Neb L Rev 1157.

Crown submissions inRv Razamjoo, above n 21, [35].

The Crown also noted that the legislature has itself indicated that facial demeanour

is not essential for a fair trial, as blind people are now eligible to serve on juries;

Juries Act 1981, s 16AA; ibid [46].

[2000] NZCA 9; [2000] 2 NZLR 46 (CA) ("Atkins"); cited in ibid [21].

Though the judge and jury would be able to view the faces undistorted. For a

critique of Atkins, see Rishworth et al, above n 27, 703-704.

Atkins, above n 87, [27].

Crown submissions in R v Atkins CA 521/99 [62]. In fact, this assertion was made

regarding the Crown's (disallowed) wish that the jury too should be unable to

view the faces of witnesses.

Atkins, above n 87, [21].

Pluralism and the Law: New Zealand Accommodates the Burqa 297

What is at issue in this respect is an inroad into generally accepted trial processes, something which has occurred from time to time over the years but without infringing the basic concept of a fair trial.

The defence in the present case made no rebuttal to the social science claim. Its most significant submission on the point of demeanour evidence was that of the right of the community for justice to be seen to be done.92 One element of this was evidently the community's perception that open justice required faces to be visible for all in court.

In summary, the Crown was asking the judge to refrain from infringing the witnesses' religious freedom protection for two reasons. First, that there could be no important objective achieved by an order to unveil, as the numerous exceptions in other types of trials indicated that this was not essential for creating a fair trial. And second, that, as shown by the scientific research, an order for the two women to unveil and so render their facial demeanour accessible to cross-examination, had no rational connection to the right of the accused under s 25(f) to "examine" the witnesses against him. These two points, based on the proportionality test propounded by the Supreme Court of Canada in R v Oakes93 (and subsequently endorsed by the Court of Appeal in Moonen v Film and Literature Board of Review94) came together to render any order to unveil an unreasonable interference with the religious right.

Judge Moore appeared to accept the Crown argument based on the research data, though it was clear that he was uneasy with the inference from it that the Crown sought. In support of the Crown submission, the judge remarked that, in particular, conclusions from facial demeanour of witnesses from different cultures needed to be carefully drawn, because of different reactions across cultures to cross-examination.95 Yet the judge still considered facial demeanour useful in many situations that were not contemplated by the research data (which had not been compiled from real trials but from artificial laboratory experiments). For example, he noted the circumstances during real trial cross-examinations when witnesses abruptly change their facial expression when subjected to a surprising line of questioning, a phenomenon that the research did not contemplate.96 Regarding the actual testimony at the hearing as to sincerity of belief from Mrs Salim while wearing the burqa, the judge commented that there had been a "strong sense of disembodiment", which he compared to the difficulty in gaining a sense of character from a phone call from a stranger, or, more colourfully, the "voice of the rogue computer in '2001 A Space Odyssey'".97 Because of this, it took more time to get a sense of a witness's character, though tellingly the judge did not go so far as to say that it was impossible to gain this "sense". Despite these reservations, however, the judge was "reluctantly forced

  1. The defence cited R v Sussex Justices exp McCarthy [1924] 2 All ER 635; Razamjoo,
    above n21, [60].

93 [1986] 1 SCR 183.

  1. [1999] NZCA 329; [2000] 2 NZLR 9 (CA). The Oakes test had first been considered in Ministry of
    Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260 (CA).

95 Razamjoo, above n 21, [77].
96 Ibid [78].
97 Ibid [69].

298 Otago Law Review (2006) Vol 11 No 2

to conclude that there could be a fair trial even if Mrs Salim and other witnesses of like belief gave evidence wearing their burqas".98

And that may have been the end of the matter, had it not been for one extra factor that the Crown had not considered in its submission. This was the right of the community literally to see justice being done, which had been mentioned in the defence submission.99 Thus, a criminal trial was seen as a "public event" in which the public were entitled to see and hear the proceedings.100 Any departure from normal courtroom procedures could see the courts lose the confidence of the public and bring them into "disrepute".101 Evidently the judge considered public expectations of what a trial entails to be a decisive consideration, and the ability of counsel and trier of fact to be able to assess facial demeanour was one aspect of a trial that the public expected to see observed in practice. The judge then noted that the right to freedom of religion was not an absolute one,102 and that it could be limited by public expectations as to trial processes. Finally, remarking on a concession by Mrs Salim in her testimony that she was prepared to alter some of her customary practices in order to adjust to life in a new society, the judge held that she would have to remove her burqa while testifying in the substantive part of the trial, though she would be protected by a screen from the gaze of the defendant and of the general public. This minimum curtailment of the religious right fits in with the Oakes test requirement that the right should be impaired no more than is necessary to secure the objective sought by the limitation.103

There was no discussion in the decision regarding the quality of the research data, nor whether it was appropriate to use it in this country. One example of where social science has been invoked in New Zealand was in Gisborne Herald v Solicitor-General,104 a case in which research had been employed in an attempt to show that pre-trial media disclosure of information likely to prejudice a jury had no such effect. In that case, Richardson J noted that assertions in Canada and the US in both empirical research and case law had been inconclusive on this issue, and that in any case it possibly did not apply to New Zealand society.105 There was apparently no empirical data that supported the public policy assumption that juries could be contaminated by media reporting of a crime pre-trial, but this was not enough to dislodge the preference in New Zealand to

Ibid [106].

See text accompanying n 92.

Razamjoo, above n 21, [93].

Ibid [109].

Ibid [97]. The judge cited RvB [1995] 2 NZLR 172,182, where Richardson J states:

"...there are limits on the absoluteness of the rights in the Bill of Rights. They

reflect the fundamental consideration that individual freedoms are necessarily

limited by membership of society and by the rights of others in the interests of the

community".

Or, considered in another way, the infringement of the right could be regarded as

a trivial one, thus obviating the need for an enquiry under s 5 BORA.

[1995] 3 NZLR 563 (CA).

Ibid 575.

Pluralism and the Law: New Zealand Accommodates the Burqa 299

curtail freedom of media expression in order to secure a fair trial.106 This longstanding rule therefore has similarity with the rule of facial demeanour that was asserted in the present case. That is, that an absence of social science data that supports a long-standing rule is not sufficient to abandon the rule. These rules, it appears, have a resilience107 that is not easily broken down by scientific data that is used in tandem with the Oakes requirement that limitations on rights must be rational.

The quality of the research data was not evaluated by Judge Moore, save where he mentioned that it did not include any actual research done on real juries. However, the conclusions reached by numerous experts conducting experiments assessing the ability of people to gauge veracity from facial demeanour alone stated universally that it was unreliable, leading one commentator to conclude:108

Taken as a whole, the experimental evidence indicates that ordinary observers do not benefit from the opportunity to observe non-verbal behaviour in judging whether someone is lying. There is no evidence that facial behavior is of any benefit; some evidence suggests that observation of facial behavior diminishes the accuracy of lie detection.

To take one experiment that was evaluated by the Wellborn paper, it appeared that laboratory subjects, when asked to assess the veracity of a series of videotaped interviews,109 had a success rate of .467 where only facial demeanour was available (ie, no audio or transcript). When subjects based their judgments on transcripts alone this improved to .625. However, it is interesting to note that when all evidence (including facial, audio and transcript) was available in this experiment the success rate rose to .637, which was the highest score in all the tests.110 Wellborn brushed this last result aside, saying it was "not significantly higher"111 than the transcript-only result, but I would suggest that in the context of criminal trials, where the consequences of conviction for defendants are very serious, it is significant. Taking this last result into account, Judge Moore's decision to order the unveiling now appears more rational than the research (as it was presented by the Crown) suggests.

The Crown cited some overseas cases where the Wellborn data had been discussed. Kirby J in the High Court of Australia (in the context of appellate review of trial court evaluation of demeanour evidence) considered the social

Idem.

For discussion of this "resilience", see Rishworth "Human Rights", above n 32,

107.

Wellborn "Demeanor", above n 84,1088.

Wellborn describes the conditions of the experiment (reported in J Hocking et al

"Detecting Deceptive Communication from Verbal, Visual, and Paralinguistic

Clues" (1979) 6 Hum Comm Res 33) thus: "Respondents were senior criminal

justice students who were told that ability to lie successfully is important in police

work, that the experiment would measure their aptitude in this regard, and that

the results would be reported to their school and might affect such things as letters

of recommendation"; ibid 1084.

Ibid 1085.

Idem.

300 Otago Law Review (2006) Vol 11 No 2

research very persuasive.112 On the other hand, American precedent is less convincing, and unfortunately was not cited by either the Crown or the defence. In Morales v Artuz,113 a witness in a criminal case wished to wear dark glasses (out of fear of the accused) and the court allowed his request, relying in part on Wellborn's findings, and doing so despite the Sixth Amendment's affirmation of the right of an accused to confront the witnesses against him. This decision however was sharply criticised (and not followed) by a later case,114 which considered that the social science data regarding demeanour was unlikely to be accepted by the US Supreme Court, should it ever have to decide on the matter.115

Clearly therefore the social science data could have benefited from closer scrutiny by the judge in this case. This lack however can largely be explained by the fact that the judge chose to decide the issue on the grounds of what the judge considered the community thinks a criminal trial should involve, and not per se on the grounds of the scientific utility of demeanour evidence. The resilience of this expectation, as already discussed, is not evidently susceptible to arguments based on currently available social science data.

2.3 A test for religious freedom cases?

The judge's decision to expand the common law presumption of open court testimony can be fitted into a general formulation for cases of this type. The following is a breakdown of the approach:

(i) Is the activity (wearing the burqa) being encroached upon by state action (order to remove the burqa in court) a religious practice (Amselem and Thomas), and is the person complaining of the encroachment sincere in his or her belief (Amselem, Thomas and Feau)?

(ii) Is there a prima facie non-trivial breach of the right (Amselem)?

(iii) Is the impugned state action a reasonable limit on the right under s 5 BORA (Feau) (this may involve a proportionality test under Oakes)?

If the answer to (iii) is "yes", then the impugned action (an order to unveil) should stand. If the answer is "no", then, absent statutory direction to the contrary

  1. State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Ha)
    (1999) 160ALR588, [68]-[94]. KirbyJ has, however, been somewhat of a lone voice,
    and one academic commentator has suggested that the jury is still out on the
    implications of this social science data; see H Luntz "Editorial Comment: Round
    up of cases in the High Court of Australia in 2003" (2004) TLJ LEXIS 1,19.

113 [2002] USCA2 43; (2001) 281 F 3d 55. The case cites the Wellborn and Blumenthal papers in fn 3.

  1. Romero v Texas (2004) 136 SW 3d 680. In Edmunds v Deppisch [2002] USCA7 592; (2002) 313 F 3d 997,
    1000, Posner J described the lack of judicial authority based on the Wellborn data
    as being a result of the research being "too outré to have been litigated" in the
    context of excluding a witness's recollection of demeanour.
  2. Ibid, 688. In this case the witness appeared at a criminal trial wearing dark glasses,
    a baseball cap and a jacket with an upturned collar. Indeed, US Supreme Court
    precedent suggests that the Wellborn data might not perform well in the Court.
    In Coy v Iowa Justice Scalia noted that the constitutional guarantee of a face-to-
    face encounter between an accused and his accuser "serves ends related to both
    appearances and reality"; Coy v Iowa [1988] USSC 154; (1988) 487 US 1012,1017.

Pluralism and the Law: New Zealand Accommodates the Burqa 301

(as required by s 4 BORA), the impugned action should not stand.

This formula can be applied to the two courses of action that Judge Moore contemplated taking: first, an order to unveil for the whole court; and second, an order to unveil only for counsel and trier of fact.

Regarding the first possible order, we get the following result:

(i) Yes, the practice of wearing the veil is a religious right. Mrs Salim is sincere

in her belief, which is based on her subjective understanding of the

Qur'an.

(ii) Yes, a putative order to unveil in front of the whole court is a non-trivial interference. Mrs Salim's testimony indicated acceptance of the need to adjust her behaviour to New Zealand society (viz, her unveiled driver's licence photograph), but unveiling to the whole court and in front of the defendant was a substantial burden on her beliefs.

(iii) An order to unveil for the whole court cannot be justified under s 5, as social science research shows that such evidence is unreliable and therefore is not rationally connected to the objective of the order to unveil. Moreover, the fact that there have been so many orders made over the years to the rule on open testimony means the order is not necessary.

The answer to (iii) is "no". Therefore the order would be an unreasonable interference with the right and should not be made.

The second order yields the following analysis:

(i) Yes, the practice of wearing the veil is a religious right. Mrs Salim is sincere in her belief, which is based on her subjective understanding of the Qur'an.

(ii) The order to unveil behind a screen was arguably a trivial interference with the right. Mrs Salim said she was prepared to make some adjustments to her life in New Zealand (as evidenced by her "unveiled" driver's licence photo).116

(iii) Even if it wasn't a non-trivial interference, then the order could be justified under s 5 because of the community interest in seeing normal trial procedures followed (ie, trier of fact and counsel being able to observe facial demeanour). Social science data is not relevant to determining whether such long-standing trial procedures are rational. Moreover, the order to unveil behind a screen, with permission to wear a scarf covering the hair, was a minimal interference with the right.

The answer to (iii) is "yes". Therefore the order to unveil behind a screen should be made, as indeed it was by Judge Moore.

Arguably, the enquiry could have ended here. A finding that the interference on the right was trivial could have meant that there was no need to conduct a s 5 BORA enquiry. Judge Moore did not however take this route and preferred to attach Mrs Salim's preparedness to adapt her lifestyle to New Zealand laws to the minimal interference aspect of the Oakes test.

302 Otago Law Review (2006) Vol 11 No 2

3. Conclusion

The reasoning of the decision contained two ironies. First, it was interesting that, while many of the claims in the media against accommodating the burqa were to the effect that a secular country should not accommodate "irrational" religious practices, the decision itself was founded primarily on an almost religious, not to say atavistic, adherence to a courtroom procedure that appears to exist in a zone that is above scrutiny by the law. Also, it is ironic that the judge, who had described the defence submissions as containing "numerous appeals to ignorance and prejudice" and "dross",117 nevertheless chose to apply the essence of the defence arguments: namely, the open justice submission, and the argument that no expert testimony could clarify whether the burqa was required by Islam.118

Neither party, however, has appealed the decision. This is testament perhaps to the fact that each could claim a partial success in the end result, and to the even-handedness of the finding,119 which drew a muted response from a public that had expressed strong views when the issue first came to national attention. It is suggested that Razamjoo is therefore a clear example of the integration (or social cohesion) model put forward in the introduction to this article, whereby adjustments by the host society to its laws alongside a preparedness on the part of immigrant cultures to modify their cultural or religious practices can reach a result that is satisfactory to all concerned.

There has been a direct legislative sequel to the decision in the form of the Evidence Bill 2005, which provides in clause 99 that a judge may direct that a witness give evidence in an alternative way on the grounds of the "linguistic or cultural background or religious beliefs of the witness".120 In the accompanying report on BORA consistency, the Ministry of Justice explicitly noted Razamjoo and declared that the Bill was consistent with BORA,121 indicating that the decision is in line with recent government policy promoting social cohesion and accommodation of minority religious interests.

Razamjoo, above n 21, [73]. Defence counsel had asserted that Muslim women

were forced by men to wear the veil and that terrorists could use the garment as a

cloak for violence. Moreover, much of the defence evidence was discounted because

it did not meet evidentiary standards.

See text accompanying n 50 and n 92. Though, of course, the judge drew a different

conclusion from the defence regarding the lack of authority on the question of

whether Mrs Salim was compelled to wear the burqa.

Rishworth describes the decision as "Solomonic"; Rishworth "Human Rights",

above n 32,107.

There is no compulsion for courts to make these orders and under the Bill judges

are required to have regard to numerous factors, such as the need to ensure the

"fairness of the proceeding"; Evidence Bill 2005 Cl 99(4). In fact, accommodation

for cultural minorities was mooted by the Law Commission as far back as 1996;

see New Zealand Law Commission The evidence of children and other vulnerable

witnesses: a discussion paper (NZLC PP26,1996) 76.

Ministry of Justice Legal Advice: Consistency with the New Zealand Bill of Rights Act

1990: Evidence Bill (5 April 2005)<http://www.justice.govt.nz/bill-of-rights/bill-

list-2005/e-bill/evidence-bill.html> (at 7 September 2005).

Pluralism and the Law: New Zealand Accommodates the Burqa 303

There were some negative comments in the wake of the decision. The Maxim Institute issued the following remark, which harks back to the abandoned assimilation policies of last century:122

Assimilation seems to have become a dirty word these days. We are now expected to not only tolerate all incoming cultures, but to even bend our laws to accommodate them (as witnessed in the recent burqa court case).

It is suggested that this is an overly alarmist view of the decision in Razamjoo. To say that using BORA to adapt the common law amounts to an ill-advised bending of "our laws" neglects the undoubtedly legitimate interpretative function of BORA in determining where the common law should lead the courts in the modern pluralist society that New Zealand has become. In any case, the courts and the legislative process will not always accommodate the religious or cultural practices of immigrant communities, as was seen in the legislation banning female circumcision in 1995.123 Moreover, the Ministry of Justice guidelines on BORA compliance make it clear that religious practices will not always trump legitimate state interests: "The courts overseas have created a distinction between acts required in order to express one's religion or belief and acts merely motivated or influenced by that belief. The former will be protected under the right to freedom of religion, whereas the latter may not."124 This considered approach would indicate that New Zealand's laws will not always "bend" to accommodate religious practices, particularly where they are judged harmful to society.

Whilst the author disagrees with the Maxim Institute's assessment of this particular case, there is however a potential for the integration model to be abused if it is employed in a way that promotes a "ghettoisation" of minority cultures. Inter-racial strife in certain cities of the United Kingdom has been attributed in part to previous excessive accommodation of immigrant cultures.125 This, the

  1. Maxim Institute, John McNeil A national languages policy: non, nyet & nein!
    <http://www.maxim.org.nz/main_pages/news_page/M050407.php> (at 7
    September 2005).

123 Crimes Act 1961, ss 204A & 204B.

  1. Ministry of Justice Guidelines on the New Zealand Bill of Rights Act 1990 <http://
    www.justice.govt.nz/pubs/reports/2004/bill-of-rights-guidelines/section12-
    15.html#267> (emphasis added) (at 7 September 2005). And, of course, even
    practices that are central to a religion may, where they come up against an important
    competing interest, be limited by recourse to s 5 BORA.
  2. One British commentator attributes riots between Asian and white youths in northern
    British cities in 2001 to the sealing off of cultures from each other by multiculturalist
    policies, such as faith schools and funding of community centres along ethnic lines;
    Johann Hari "Best intentions widen the cultural divide" The New Zealand Herald (8
    August 2005). In reaching his conclusions, Hari cites a UK Home Office report into
    the riots, which described the consequences of these policies thus: "There is little
    wonder that the ignorance about each others' communities can easily grow into
    fear; especially where this is exploited by extremist groups determined to undermine
    community harmony and foster divisions"; UK Home Office Community Cohesion: a
    Report of the Independent Review Team (January 2003) para 2.3. The report is available
    at: <http://www.homeoffice.gov.uk/docs2/comm_cohesion2.html#top> (at 7
    September 2005).

304 Otago Law Review (2006) Vol 11 No 2

argument goes, has resulted in different groups within communities leading parallel existences in which they have little contact with one another. If the interests of these different groups then conflict, it can lead to distrust and violence, as they have little common ground on which they can resolve issues peacefully. If and when this state of affairs occurs in New Zealand, opinions like those of the Maxim Institute will begin to have more relevance.

Government policy in New Zealand towards s 15 BORA will continue to be driven by the democratic process, and changes in government may see changes in emphasis as to its interpretation.126 Moreover, the multiculturalist project in New Zealand is, as elsewhere, susceptible to extreme events that could force a review of the liberal approach to religious difference as exemplified in Razamjoo.127

For the time being, however, the second strand in Gray's description of the modern liberal democratic state, with its goal of promoting diversity as an end-point in society, appears to hold the upper hand.

The opposition National party Associate Spokesman for Constitutional and Treaty Issues, Dr Wayne Mapp MP, said during the first reading of the Evidence Bill that: "I personally think that the witness should not have beenbehind a screen"; NZPD (10 May 2005) 20425. ACT party Justice spokesman, Stephen Franks MP, has said that the decision offends the legal principle that every accused has the right to "face their accuser" and that, if the matter is not appealed, the government "should change the law"; S Franks "Burqa decision good as far as it goes" (18 January 2005) New Zealand ACT party <http://act.org.nz/item.jsp?id=26516> (at 7 September 2005).

The bombings on the London underground in July 2005 have prompted the British Prime Minister to announce that the "rules of the game have changed" and to establish a commission to examine the future of multiculturalism in the UK. Other measures, including fast-tracking deportation proceedings against Muslim extremists, may even require amendment to the Human Rights Act 1998 (UK); "Blair gets tough on preachers of hate" Sunday Star Times (7 August 2005) A16.



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