Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
7 June 2007

But maybe hitting a child is like smoking dagga…

An alert reader points out that the new legislation prohibiting corporal punishment of children by their parents in their own home, is bound to be challenged in the Constitutional Court on religious grounds. Commenting on my Blog posts here an here, the reader has an excellent point because such a challenge would not at all be far-fetched.

At the very least, the Court would look long and hard at the fact that the new legislation fails to make an exception for Christian parents who believe that God requires them to hit their children. After all such parents will be able to point to Bible verses like the following:

Proverbs 22:15 – Foolishness is bound in the heart of a child, but the rod of correction shall drive it far from him.

Proverbs 19:18 – Chasten thy son while there is hope and let not thy soul spare for his crying.

Proverbs 23:13 and 14 – Do not withhold discipline from a child, if you punish with a rod he will not die. Punish him with a rod and save his soul from death.”

This argument was already considered by the Constitutional Court in 2000 in the case of Christian Education South Africa v Minister of Education, when a society of Christian schools challenged the sections of the South African Schools Act which prohibit corporal punishment at schools.

Justice Sachs confirmed in that case that the Court would only question claims that a particular practice is based on religion in the most extreme cases. He therefore assumed that corporal punishment was part of the religious beliefs of the parents who sent their children to the religious schools.

Relevant for this case is that Sachs drew a sharp distinction between prohibiting corporal punishment only at schools on the one hand and placing an absolute ban on corporal punishment on the other hand.

[C]orporal punishment administered by a teacher in the institutional environment of a school is quite different from corporal punishment in the home environment. . . . Such conduct happens not in the intimate and spontaneous atmosphere of the home, but in the detached and institutional environment of the school.

The Court was careful to indicate that it was not deciding the issue of whether a complete ban on corporal punishment of children by their parents would be unconstitutional. However, when deciding whether the restriction on the right to freedom of expression was justified in terms of the limitation clause, Sachs looked at the extent to which the religious rights of the parents had been infringed and observed:

The parents are not being obliged to make an absolute and strenuous choice between obeying a law of the land or following their conscience. They can do both simultaneously. What they are prevented from doing is to authorise teachers, acting in their name and on school premises, to fulfill what they regard as their conscientious and biblically-ordained responsibilities for the guidance of their children.

Of course, if the new Bill is passed, parents who believe that God had instructed them to hit their children will have to make a “strenuous choice” between obeying the law or obeying their God. Christian parents will be able to make a strong case that such an absolute restriction on one of their religious practices cannot be justified in an open and democratic society.

On the other hand (how us lawyers like that phrase!) it is possible that the Constitutional Court will point out that we live in a brutal and violent society in which children suffer incomprehensible harm and will argue that the state’s obligation to protect children should override the right of parents to religious freedom.

If the Court chooses the latter route, Christian parents will suddenly find themselves in much the same invidious position as Rastafarians, who – after a ruling by the Court – must choose between smoking the holy weed or obeying the law.

2015 Constitutionally Speaking | website created by Idea in a Forest