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Mogoeng ‘failed to maintain impartiality, independence’

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iol news pic Mogoeng on religion and law

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Chief Justice Mogoeng Mogoeng. Photo: Werner Beukes

The views of Chief Justice Mogoeng Mogoeng, although well intended, are disingenuous and unwise, writes George Devenish

 

Chief Justice Mogoeng Mogoeng has precipitated an interesting but controversial discussion concerning the role of religion in law, in an address delivered at the second Annual African Law and Religion conference at the University of Stellenbosch.

In his address, Mogoeng decried the levels of maladministration and corruption.

These “would be effectively turned around significantly if religion were to be factored into the law-making process”.

The views of the chief justice, although well intended, are disingenuous and unwise. South Africa has a secular constitution with a Bill of Rights that in section 15 guarantees freedom of religion.

Freedom of religion involves not only the right to choose a religion, but also the right to be areligious, such as agnostic or atheist.

This also flows from the equality clause, which requires that believers and non-believers be treated equally.

The constitution does not create a state that is hostile to religion and, therefore, permits religious observances at state and state-aided institutions that are conducted equitably provided attendance is free and voluntary.

Therefore, the state and the government must always remain neutral in relation to religion and neither favour any specific religion, nor favour believers over non-believers.

This does not preclude the state and the government from co-operating with religious and faith organisations, in many ways, provided it is done on the basis of equality and neutrality.

The law-making process is part of the government, which must be conducted in accordance with the constitution, which as explained above, requires an attitude of neutrality in relation to religion.

If religion were “to be factored into the law-making process”, this would be in conflict with the letter and spirit of the constitution and section 15, in particular, which guarantees freedom of religion belief and opinion.

Furthermore, the form that any such factoring of religion into the law-making process would be challenged in court as unconstitutional, being in conflict with section 15.

Although the chief justice is correct in bewailing the lack of morality and integrity in administration and the government, such a state of affairs cannot be remedied by a simplistic notion of factoring religion into the law-making process, whatever this may mean exactly.

In this regard, the government, civil society and all religious faiths and organisations have a fundamental contribution to make by example and precept.

Such a contribution should be based on the universal values of, for example, human dignity, equality and freedom as set out in, inter alia, section 1 of the constitution, that are religiously neutral values.

Furthermore, all the great religions and philosophies of the world have a common moral core. It is these secular moral values that need to be promoted, and not religious dogma.

The chief justice and all other judges should, in public pronouncements and addresses, adopt a completely neutral role in relation to religion as required by the constitution and the indepen- dence of the judiciary, which is a cardinal tenet of a constitutional democracy.

It is, therefore, unfortunate that this is not being done by the chief justice.

For instance, in an opinion piece by Mogoeng entitled “Upholding Christ and the Constitution” (Mail & Guardian, April 17-24, 2014).

As it stands, I agree that “a perception that judges who are devout Christians have the inherent propensity to do injustice to people who are not Christian or who dislike Christianity is seriously flawed”.

A publicly declared expression of a religious opinion, however sincere, can create “a reasonable apprehension of bias”, which is the criterion used in our law to determine bias or impartiality by a court of law.

This standard or criterion of “reasonable apprehension of bias” means that actual bias is not required, but that nothing should be done that could create a reasonable impression of bias.

Unfortunately, this is exactly what Mogoeng has done in his piece in the M&G, and he has thereby created in the minds of the public “a reasonable apprehension of bias”, without actual bias, by publicising his views.

Although a mere private religious opinion or perception can do no harm, once the perception flows from statements disseminated in the media, a serious problem arises.

Judges, like all other persons, are entitled to religious and political views, but these should remain essentially private.

When persons assume the high office on the bench, they are required to make certain sacrifices in relation to their freedom of expression.

In no way may they compromise the functional and personal requirements of the independence and impartiality of the judiciary of which they are a part, by publicly declaring religious views or the desirability of factoring religion into the law-making process.

An erstwhile Canadian Chief Justice, Judge Brian Dickson, explained that the independence of the judiciary means the “complete liberty of individual judges to hear and determine cases before them independent of, and free from external influences or influence of the government, pressure groups, individuals or even judges”.

From the above, Mogoeng has not only failed by the views he expressed in his piece to maintain impartiality, using the standard of “reasonable apprehension”, but has also compromised the independence of the judiciary of which he, as chief justice, should be its most cogent exponent.

This is most unfortunate for South Africa and the administration of justice in this country.

There is no reason to doubt the complete sincerity and integrity of the chief justice in relation to the religious views expressed in public, but there exist certain principled and profound objections in relation to the jurisprudential wisdom of publicly airing these views relating to religion.

 

*Devenish is professor emeritus at UKZN and helped draft the interim constitution in 1993.

** The views expressed here are not necessarily those of Independent Newspapers.

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