Friday, October 27, 2006

My Adventures in the Law - Episode III (or is it IV?)

More legal anachronisms? We're a conservative industry. Change is slow.

Cee says:

"When I began studying law, I never expected to find myself trotting off down
the street clutching a Bible in one hand and an affidavit in the other as part
of my job.

There are two options when one wants to swear an
affidavit, or give evidence in court - one is to swear to tell the truth while
holding a Bible, and the other is to affirm that you will tell the truth

First, let me point out, as Cee does, the ubiquity with which people swear oaths. When I was working at the courts, I was honestly surprised by the number of people who swore on a Bible. Roughly 95% of the population. Part of the reason why people do this, I think, is that they are not offered a choice. They do not *know* that there is an option to do something else.

There are a number of factors that affect their ignorance.

One of the main ones is the law's historical reliance on the swearing of an oath. In eons past, the only thing you could do, if you were giving evidence in a court of law (insert ominous music), was to swear an oath. If you did not believe in the Christian god, you were considered incompetent and unable to provide evidence. A modified version of this is actually STILL the case in common law: if you believe in a god and swear an oath to tell the truth that is binding on your conscience than you can give evidence; otherwise, you are incompetent. (Common law is law made by cases coming before judges, rather than parliament and legislation). Legislation changed that position such that you could give an oath that was binding on your conscience or if you did not believe in a god, to affirm your evidence. The legislation is actually structured that if a person objects to being sworn, than it is lawful for that person to make an affirmation.

I have known a judge to badger a witness about what s/he believes in. If you profess belief in a god or have a religion (eg. Buddhism, which sort of has no deity technically kind of; or Hinduism which has a delightful panoply of them), then the judge will insist that you swear an oath belonging to that religion. I disagree with this behaviour. Part of my reasoning is that a person may not wish to bring their religion into the court process. I think it is perfectly acceptable to say: My religious beliefs are so and so, but this is a secular process and if I fail to tell the truth, it is the secular system that will punish me. My religion will judge me in other ways.

Another reason is that the whole system is alien to most people. They are uncomfortable with it, and it is their lawyer (if they have the financial wherewithal to obtain one) who will assist them to navigate the system. This discomfort is magnified if they are from a different culture to the white, Anglo-Saxon, Judeo-Christian mainstream.

And, as much as we forget it sometimes, lawyers are everyday people too with their assumptions, weaknesses and flaws. Lawyers (as indicated in Cee's post, and supported by my own experience) are often completely oblivious to differences, assuming that everyone is the same and we all spring from the same belief in a god. Or they are lazy (in thinking and action). The way the law is structured is that you have to object. A person unfamiliar with the system, unknowing of their rights and, in the courtroom context, probably uncomfortable, is not going to speak up and say: oh, well, nominally I might be Christian but I don't really believe in God. Is there anything I can do instead? It is up to the lawyer - the supposed expert - to assist their client.

It's a two step process. Step one: I always ask my witnesses: Will you affirm your affidavit / evidence, or will you swear an oath? If they look at me blankly, I will take the time to explain what I mean. Step two: If they tell me that they will swear, I ask them what religion and what holy text they require. And I stamp my feet if our library does not contain that holy text. Because it should. We have not yet had the problem of not having the appropriate text, but I am prepared to make a fuss if the occasion ever arises. And I believe every equality interested lawyer should be prepared to do the same.

Personally, I think an affirmation is preferable, for everyone, because one can take it, have one's conscience bound and be bound by the legal system, and not have one's religion brought into the matter. But that is not how the law is structured. I modify it in my practice.

The first time I had to sign an affidavit for work, the person who drafted my affidavit did so with a swearing clause. I went through the document and calmly and neatly hand-wrote over the clause wherever it appeared (usually thrice: the beginning, the end and before any attachments). After I signed it, the senior lawyer who asked me to do the affidavit thought the crossing out and hand-writing looked unprofessional, so she asked the secretary to amend the affidavit and me to re-sign it. Now it's known throughout the office that I affirm rather than swear. It is as if I am a trouble-maker and must be treated more carefully because of it. I take this in my stride and pretend that it is normal. I try not to notice the eye-rolling that goes on.

Second, as pointed out in my "two step" guide to taking witness evidence, there are MORE than two options. Enshrined in legislation (and this will interest you, Cee, if you were not already aware of it - Oaths Act 1867), is that Quakers, Moravians and Separatists, even though they believe in the Christian god, are permitted, by law, to affirm. Isn't that generous of the law?

But the whole point of this exercise is to tell you a little something about those Other oaths that hover around the courts.

If you're Muslim, you can have a Koran (and it will be wrapped in cloth); if you're Jewish, you can have the Torah. I had to laugh at the Buddhist oath: first, it was based on Mahayana Buddhism which, though it may have the more populous believers, was nevertheless not universal. It went something along the lines of "I swear to tell the whole truth and if I do not may my eternal soul be damned throughout all my incarnations" etc. It was appalling.

But the one that really got my goat? The Chinese Oath. It involved repeating a litany of "I will tell the truth" etc, breaking a saucer, standing up then sitting down, and then snuffing out a candle, or five. What? Apparently these bizarre rituals arose from imperial practises in the Chinese court, which got adapted into her (or his at that point in time) majesty's courts of justice. So, it was always going to become very quickly obsolete (if it ever existed at all). Second: Chinese. What is "Chinese"? The most populous nation in the world, with a large diaspora, and there is something known as the Chinese Oath? Ridiculous. What if you are Christian and Chinese? Do you have to do this little oath dance instead of swearing on the Bible? (Insert Muslim / replace Bible with Koran // you get me drift).

If I were confronted with this, with my knowledge of the law, assertiveness and comfort in a courtroom, I could resist it, point out the error, ask for my right to affirm. But if you do not know, if it is all alien, if you have no comprehension of the system and are afraid or unnerved, you may just think this is what is expected of everyone. And then, you will perpetuate the system's belief that it is doing the right thing. The only way this will change is if lawyers educate themselves and intervene on behalf of their clients.

But you know what I find most disconcerting? – and this goes to the separation of state & religion, as well as to the reminder that we are, anachronistically and unexpectedly, still a constitutional monarchy – that in some courts the bailiff still says: “God Save the Queen” before the judge sits down.

It's an uphill battle, that's for sure.


honglien123 said...

Those are interesting oaths indeed. Unfortunately, in the US, while we can affirm testimony, whether or not you may swear and oath on anything but a bible is up to state law and so it is different depending on where you are. Although, I have to say the Buddhist oath made me laugh out loud. Maybe whenever I have some karmic bad luck I can blame it a past life where I might have broken this oath.

OTT said...

Hong Lien,

Yes the Buddhist Oath is laughable, isn't it? I am not damning any of my incarnations throughout eternity. It's not fair. What if I was a perjurer in a past life and that is why I have been punished with becoming a lawyer?

And actually, I am referring only to Qld law. Australia is, like the US, a federation and so each of the 6 states and 2 territories (don't anyone mention Jervis Bay) can have their own laws. I suspect that the other states are similar to Qld, however, as we tend to be the slow state.

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