Symposium 2013: Second Plenary Session: “Judicial Perspectives on Religion and Human Rights”

Jordan Pendergrass and Joseph Hepworth reporting

The Symposium’s second plenary session, entitled “Judicial Perspectives on Religion and Human Rights,” was a lighting round of questions and answers. The session was moderated by J. Clifford Wallace, Chief Judge Emeritus, United States Court of Appeals for the Ninth Circuit.

Judge Wallace introduced the session as a conversation between judges and explained that he had not given his colleagues advance notice of what he might ask them. The panelists were all esteemed judges from Africa: Samuel Kofi Date-Bah, Justice, Supreme Court of Ghana; Annel Musenga Silungwe, Honorable Chief Justice (Rtd.), Technical Committee on Drafting the Zambian Constitution; and Eberhard Bertelsmann, Judge, North Gauteng High Court, Pretoria, South Africa.  

The audience, which provided the majority of the questions for the session, included law and religion experts from across the world. In the context of his own country, each judge provided a response to the following issues: How is religious freedom positioned in the hierarchy of rights?  Is religious freedom a reality?  How does a judge’s background, religious or otherwise, influence the way he or she approaches a judicial task?  How should a judge respond to a moral issue for which he or she may have a personal opinion, including a religious opinion?  How should a judge handle a case in which his or her personal conscience requires a specific judgment?  How must religious freedom be balanced against another human right if they appear to be in conflict with each other?  What is the role of witchcraft, and the social persecution of the same, in a modern civil system?  How and when should the courts resolve the internal disputes of a religious organization?  How should questions of contract labor religious disputes be handled?  How is corruption an obstacle to the realization of human rights protection?   Is the independence of the judiciary a reality, and are powers between governmental branches truly separate?  What is the role of constitutional supremacy in deciding questions of religious freedom?

Throughout the session the judges were able to highlight the universal elements of the judicial perspective, but they also were able to provide insight into the specifics of the judicial processes of Zambia, Ghana, and South Africa. 

Eberhard Bertelsmann, Judge, North Gauteng High Court, Pretoria, South Africa

Freedom of religion and belief is enshrined in the Constitution of South Africa, as part of the Bill of Rights.  When there is a Constitutional debate in the courts, freedom of religion is regarded as a fundamental right.  As an example, the freedom to express faith by wearing a nose ring overrode the school’s right to dictate a dress code.  The fundamental right to freedom of religion enjoys the same status as other human rights and cannot be derogated.  Although there is no hierarchy of fundamental rights, the right to dignity is the most essential of all of the human rights.  

Every judge must think very hard about whether he can do the job if he is honest about his faith and if his faith is important to him.  A judge must know that he has to deal with a question in accordance with the law, regardless of personal beliefs.  We all have a life of experience.  Some of our biases have become unconscious.  Judges must be very aware of their biases and deal with their own emotional and subconscious reactions, occasionally going against their beliefs.

The Bill of Rights decrees that the life of a minor child takes precedence over the religious rights of a parent.  Thus, a minor will receive a blood transfusion over the religious objection of the parent.  Children’s rights take precedence over other fundamental rights.  When fundamental rights clash, the court must balance them.  The rights of the church yield to the principle of equality.  Thus, a church cannot terminate an organist for being in an active gay relationship.  The case would have been different if the contract had required adherence to religious tenents.

In South Africa, accusing someone of witchcraft is a criminal offense.  When a mishap befalls a community, the community may blame a “witch,” and put the witch to death.  That has now been prohibited.

Samuel Kofi Date-Bah, Justice, Supreme Court of Ghana, retired

In Ghana, freedom of religion is included in the bill of Rights.  Ghana treats freedom of religion as a human right.  There are two categories of human rights in Ghana.  Religious freedom is in the first category.  A judge takes an oath of office that requires the judge to apply the law without regard to religious beliefs.  He must divorce the application of law from his religious beliefs.  Sometimes a judge has to search deeply.  A judge has a duty to recuse himself or herself if he or she is unable to set aside personal beliefs.  Fundamental rights have to be balanced against the rights of others and the public interest.  The courts apply the criminal law despite a historical belief system.

Annel Musenga Silungwe, Chief Justice (Rtd.), Technical Committee on Drafting the Zambian Constitution

Zambia is not different at all.  All fundamental human rights are treated the same.  There is no hierarchy among the rights.  The law takes precedence over personal religious beliefs.  A judge can recuse himself or herself but he or she can also resign.  A judge has a duty to fairly administer the laws in accordance with the law.  When a judge is on the bench, the judge is dealing with the interpretation of the law.  The judge applies the law as it stands.  It is not permissible for a judge to bring his or her moral standing over issues.  One has to exercise a degree of objectivity. When fundamental rights conflict, the court balances the rights.  If a tribal custom is repugnant, it will be struck down.  In Zambia, identifying someone as a witch or sorcerer is a criminal offense.