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
24 November 2021

By becoming a “pastor-politician”, Mogoeng cannot escape scrutiny in the name of freedom of religion

Retired Chief Justice Mogoeng Mogoeng has faced a barrage of criticism in recent weeks for making false claims about Covid-19, for launching a blistering attack on fellow judges, and for making many other claimswithout providing any evidence to back these up. These comments were seemingly all informed by Mogoeng’s Pentecostal faith, which led to complaints that those who criticised or “mocked” Mogoeng’s more eccentric views were guilty of religiously intolerance. Do they have a point, or are they wrongly invoking religious tolerance to shield the former Chief Justice from scrutiny?

When I first watched the video of End Times preacher Sharon Gilbert (see below), I was greatly amused. In the video Mrs Gilbert claims that an alien imitated her husband, and then tried to have sex with her. The alien then claimed to be Xerxes, and then Jesus got involved, and then the alien turned out to be a reptile with a posse of gargoyles. While Ms Gilbert tells her story, the ticker at the bottom of the screen advertises The Great Delusion Friends and Family DVD Bundle for sale – for a mere $65.

I was amused because I find Sharon Gilbert’s story beyond ridiculous, and the likelihood that some people might believe it, entirely depressing. By stating this here, I am not infringing on anyone’s right to freedom of religion, nor am I being intolerant of the religious rights of others who might believe Mrs Gilbert’s story. This is because the right does not shield believers from criticism of their beliefs, nor does it shield them from having their beliefs challenged or contradicted. My right to be an atheist (also protected by section 15(1)) similarly does not shield me from the criticism of believers, including criticism of this column. (All I can hope for – probably in vain – is that such criticism will be reasoned and will engage with the substance of my arguments.)

It is true that section 15(1) of the South African Constitution states that “[e]veryone has the right to freedom of conscience, religion, thought, belief and opinion”, and that the Constitutional Court held in Prince v President of the Law Society of the Cape of Good Hope that such beliefs are protected if it is sincerely held, even when the beliefs are “bizarre, illogical or irrational to others or are incapable of scientific proof”.

But this merely means that we cannot normally be forced to renounce our religious or other beliefs, be prohibited from stating them publicly, and be prohibited from living our lives in accordance with our religious or other views. I say “normally”, as the right can be limited in terms of the limitation clause, which is why religious or other beliefs or practices that harm others can be justifiably curtailed. Religious beliefs and practices do not enjoy “special” protection in a democracy, not least because it does not require such special protection to flourish. Unless, of course, one believes that religious faith is inherently fragile, and that religion would wither away if it did not enjoy special protection from criticism and scrutiny.

This is the easy part. Things get more complicated once we accept that there is no special right for believers to be shielded from criticism, but also accept that there is sometimes a difference between having a right to do something and doing the right thing. In another kind of column, I might have explored this question further. But in this column, I focus more narrowly on the very unique position of former Chief Justice Mogoeng to show why it is misguided to claim that his utterances enjoy special protection from criticism because they may be deeply influenced by his religious beliefs and because he normally delivers them in the form of a religious sermon.

Mogoeng’s position is different from the position of any ordinary citizen who proselytise about their religious beliefs, and even from those who happen to express religiously inspired views on politically charged issues. This is both because of Mogoeng’s status as a retired judge, and because of the political influence he wields as a result of his high public profile. Moreover, the fact that he has chosen to comment on politically charged matters (even though these comments are dressed in a religious garb), also distinguishes Mogoeng from other lay preachers or ordinary citizens.

Here it is important to note that despite his retirement, Mogoeng remains bound by some provisions of the Judicial Code of Conduct including article 17(3) of that Code which states that “all activities of a judge no longer on active service must be compatible with his or her status as a retired judge”. This provision recognises that the actions of retired judges could reflect negatively on their own integrity and hence also on the integrity and the legitimacy of the judiciary as a whole, and thus requires retired judges to remain circumspect in the manner in which they behave in public.

While retired judges enjoy some leeway and can speak more freely than judges in active service, a retired judge is expected not to do anything that would bring the judiciary into disrepute. Article 17(4) expands on this duty by stating that a judge discharged from active service must not “be involved in any undertaking, business, fundraising, or other activity that is incompatible with the status of a judge”. Note 17(vi) further states that a “retired judge must not enter party politics”. (This means that Mogoeng will be in breach of the Code if he decides to enter party politics, as some has suggested he would.)

While retired judges have much more leeway to speak their minds, it would not generally be desirable for a retired judge, when commenting on politically charged issues, to make obviously false claims (as many of his Covid-19 claims have shown to be) or to level vague accusations not backed up by any evidence (as he has done when levelling accusations against unnamed enemies who had allegedly plotted his downfall). This is because judges are normally expected to engage with controversial issues in a reasoned and fact-based manner and it is at best unclear whether a failure to do so (even in the name of religion) would be compatible with the status of a retired judge. The situation might be different if the utterances of the retired judge were not politically charged.

Whether you agree with me on this point or not, at the very least such utterances raise serious questions of public concern about Mogoeng’s relationship with facts and his tendency to see plots and enemies where others merely see reasoned criticism, and hence about the legitimacy of the judiciary. It would be absurd to claim that citizens are doing something wrong when they question the wisdom of the former Chief Justice abandoning both facts and reason, and when they criticise him for the manner in which he engages with such issues.

Moreover, Mogoeng himself raised the possibility of going into active politics by stating that if God wanted him to lead the country, he would make himself available, a statement that inevitably drew him further into the political realm. Along with many other politically charged statements (some preceding his retirement) Mogoeng has become both a politically influential person and a person perceived as engaged in politics. Whether he likes it or not, many of his religiously inspired statements are read as political statements, with many supporters interpreting these statements as critical of President Cyril Ramaphosa.

It is of course ridiculous to pretend that religion is always a-political or that individuals who make utterances about politically charged matters but couch these utterances in religious language do not engage in politics and are not perceived by others to do so. Unfortunately Mogoeng has become (and is perceived to have become) a kind of religious-political figure and as such his utterances (whether informed by his religious beliefs or not) should be subject to the same level of scrutiny than those of any other political figure.

It would of course have been different if Mogoeng had more or less stuck to giving sermons about matters that did not touch directly on highly contentious political issues, or if he had engaged with these issues purely from a legal and constitutional perspective. If he had made that choice, only his congregants would have heard his sermons, and the rest of us would have been well advised to let him be. But as he has chosen the path of political controversy, he is not going to be able to escape the consequences of that decision.

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