Two Rights can make a Wrong: Judges’ Rights to Freedom of Expression and Religion

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The South African Constitutional Court has recognised the right to freedom of religion as “probably one of the most important of all human rights”. Yet, this right imperils judges who are especially overt in publicly exercising it.

Former Chief Justice Mogoeng faced backlash for participating in a webinar where he expressed his religious beliefs within the context of the Israeli-Palestinian conflict. This was neither the first nor the last occasion on which the former Chief Justice publicly expressed his Christian views on topical issues. However, this particular incident culminated in the Judicial Conduct Committee (JCC) finding that he had breached certain provisions of the Judicial Code of Conduct (the Code).

More recently, in an interview for the position of Judge President of the KwaZulu-Natal High Court, Judge Madondo was criticised by the Judicial Service Commission (JSC) for a chapter in his book, Revelation of God’s Truth and Plan, wherein he proffered interpretations of the Bible which the JSC deemed “homophobic”. Needless to say, he was not recommended for the appointment.

Judges, like all South Africans, have the right to freedom of conscience, religion, thought, belief and opinion, enshrined in section 15 of the Constitution. Interpreting this right in Prince v President of the Law Society of the Cape of Good Hope, the Constitutional Court observed that “[r]eligious issues are matters of the heart and faith” and “[r]eligious practices are therefore held sacred”. Thus, it is not altogether surprising that these two judges struggled to toe the line and found themselves in predicaments where their religious beliefs led to their judicial propriety being questioned.

Unlike other South Africans, judges are bound by the Code which prescribes standards of behaviour befitting of judges, and proscribes activities that could impede the administration of justice.  Article 14 recognises that judges are permitted to become involved in extra-judicial activities. However, it emphasises that judicial duties must come first, and that permissible extra-judicial activities exclude anything that is “incompatible with the confidence in, or the impartiality or the independence of the judge”.

Complaints may be referred to the JCC in terms of section 14 of the Judicial Service Commission Act on the basis that a judge is alleged to have breached the Code. That is precisely what happened in the case of the former Chief Justice.

The right to freedom of religion is often exercised in conjunction with other constitutional rights, such as the right to freedom of expression. These rights are indispensable to the realisation of our constitutional aspirations. Yet, there are no doubt instances where they can erode other constitutional rights.

“It would be naïve to assume that judges who do not make their religious affiliations known do not have any religious, or even very strong religious beliefs. Judges are, after all, human beings. ”

Judge Madondo’s book, wherein he refers to scripture and discusses the Biblical belief that homosexuality is a sin, demonstrates this tension between rights. On the one hand, the judge was exercising important constitutional liberties: his freedom of religion and expression. On the other, the publication of disparaging and derogatory views towards homosexuality undermines the constitutional rights of LGBTQ people.

Under fire for these comments during his interview, the judge earnestly explained that he was dealing with religious questions, and that he personally harboured no ill will towards LGBTQ people. Despite his assurance that his religion does not affect his ability to adjudicate impartially, the JSC was unpersuaded.

Perhaps they were right. The Code exists for very important reasons, and when judges disseminate views that are discriminatory and harmful towards vulnerable members of society, one begins to wonder whether the judge is fit to uphold their judicial duties, and whether they are complying with article 14 of the Code. There is no reason why this would not be the case simply because the views are disseminated for religious purposes.

It would be naïve to assume that judges who do not make their religious affiliations known do not have any religious, or even very strong religious beliefs. Judges are, after all, human beings. That is why “ there is an assumption that Judges are individuals of careful conscience and intellectual discipline, capable of applying their minds . . . without importing their own views or attempting to achieve ends justified in feebleness by their own personal opinions.”

However, when judges vociferously express these beliefs, especially if they are beliefs that may be disagreeable and even harmful to certain members of society, they test and strain this assumption. To be fair to Judge Madondo, the JSC did not point to any of his jurisprudence that affirmed their accusations.

Nevertheless, it would be understandable if litigants pursuing LGBTQ rights in his court were to feel distressed by the contents of his book. After all, given the choice between appearing before a judge who has openly expressed unfavourable beliefs towards an issue relevant to the matter, and a judge whose views are unknown, no rational person would opt for the former.

So where does this leave judges who wish to exercise their constitutional right to hold and express religious beliefs? Article 14(1) of the Code is clear: “[a] judge’s judicial duties take precedence over all other duties and activities”. Thus, while a judge is constitutionally entitled to their beliefs, if the publication of these beliefs is likely to cast doubt on their ability to perform their judicial duties, then the Code surely enjoins them to keep these beliefs private.

An important nuance to note is that there is a difference between a judge who demonstrably fails to decide matters impartially, and situations where judges have made it known that they hold beliefs which are offensive to certain members of society. This article deals strictly with the latter, because there is no question that all judges are constitutionally bound to decide matters impartially and without bias, regardless of their personal beliefs.

What has not yet been tested is whether it can be successfully argued that the Code reasonably and justifiably limits judges’ rights to freedom of religion and expression in order to safeguard their capacity to fulfil their constitutionally-mandated judicial duties. Answering that question would require a careful and contextualised exercise in balancing the conflicting rights.

Although that enquiry is for another time and place, the experiences of former Chief Justice Mogoeng and Judge Madondo are a cautionary tale. They reveal that judges are likely to suffer career-limiting consequences if their public image is associated with religious beliefs that undermine the constitutional rights of others.

Thus, judges cannot be told what they ought to believe, but the sensible thing for them to do is to exercise a degree of discretion when it comes to publicising their religious beliefs. After all, in the words of Professor Pierre de Vos, “there is sometimes a difference between having a right to do something and doing the right thing”.