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
22 September 2009

Do we have freedom of concience and religion at public schools?

Discussing freedom of religion and conscience protected by section 15 of the Constitution a few years ago, a Muslim student told me her Grade 1 daughter was forced to learn the song: “Fishing for Jesus.” When she complained about this to the teacher, the enterprising teacher made a plan. A few days later her daughter came home singing the same song, but with a second verse added: “Fishing for Allah!”

This story came back to me when I read in the Afrikaans media that Prof George Claassen of Stellenbosch University has launched a campaign to try and prevent public schools from using teaching time to conduct religious instruction at schools. Claassen is also upset that some schools describe themselves as having a “Christian character” and as institutions where “Christian values” (whatever that may mean) are taught. He is also upset that some schools organise something called a “Jesus week” during which children are encouraged to pin yellow ribbons to their uniforms to show that they are Christians.

Some constitutional law experts quoted in the article rubbished Claassen’s campaign, stating – correctly – that religious ovservance at public schools are not prohibited by our Constitution. But this is a grey area and it is far from clear where exactly our Constitution draws the line.

Many moons ago when I was still at school, our education was avowedly “Christian Nationalist” in character. This meant we were taught that Jesus loves apartheid, the National Party, and “our” boys on the border, that He had died for our sins on the cross so that we could live happily ever after in white South Africa and beat the technical school at rugby, and that evil philanthropists like Lord Phillip who believed black and white were equal in the eyes of the Lord would burn in hell for their sins.

My take of freedom of religion and conscience might therefore be slightly jaundiced.

The starting point must, of course, be section 15(2) of the Constitution which states that “religious observances may be conducted at state or state-aided institutions, provided that those observances follow rules made by the appropriate public authorities; they are conducted on an equitable basis; and attendance at them is free and voluntary”. This must be read with section 7 of the South African Schools Act which states that:

Subject to the Constitution and any applicable provincial law, religious observances may be conducted at a public school under rules issued by the governing body if such observances are conducted on an equitable basis and attendance at them by learners and members of staff is free and voluntary.

But what does this actually mean? Our Constitutional Court’s jurisprudence on freedom of religion and conscience has been far from satisfactory, so the answer to this question is not as clear as it could have been.

The Court seems to have some difficulty with the interpretation and application of section 15 and then often reverts to the limitation clause to “solve” the problem. In one case – Christian Education – Justice Sachs even declined to make a finding on whether the ban on corporal punishment at Christian schools infringed the right to freedom of religion (spare the rod and spoil the child, and all that). He merely assumed that it did infringe on the right before deciding that even if it did, the ban would still be justifiable in terms of the limitation clause.

In the Lawrence case, Justice Chaskalson – in what was effectively a minority judgment – emphasised that the right to freedom of religion meant that school prayers had to be carried out on an equitable basis and had to be voluntary and then continued:

I doubt whether this means that a school must make provision for prayers for as many denominations as there may be within the pupil body; rather it seems to me to require education authorities to allow schools to offer the prayers that may be most appropriate for a particular school, to have that decision taken in an equitable manner applicable to all schools, and to oblige them to do so in a way which does not give rise to indirect coercion of the non-believers.

The big problem is, of course, what would constitute coercion. It is clear that coercion can be both direct and indirect in nature. Direct coercion would occur where a pupil is forced to take part in religious activities or instruction, forced to sing “Fishing for Jesus”, or forced to wear a yellow ribbbon for Jesus. 

Indirect coercion is more subtle. The examples used by Prof Claassen might amount to such indirect coercion. Justice O’Reagan pointed out in the same Lawrence case (in a majority judgment), that where an institution endorses one religion over another or religion over non-religion, the effect would be coercive in nature.

Where the institution places its prestige and authority behind one religion or behind religion in general, it will send a signal that individuals who do not adhere to that religion or are not religious at all are somehow less worthy of respect and dignity. It will then place pressure on such individuals to conform and not to opt out of religious observance or instructions for fear of being ostracised or vilified. Religious observance will then become voluntary in name only.

In such circumstances it will be difficult for individuals – especially school pupils who experience peer pressure acutely – to distance themselves from the widely endorsed religious practices of a school and they will indirectly be coerced into taking part in religious activities with which they do not agree. While the religious views of the majority of pupils could be taken into account by a school’s governing body when formulating a policy on religious observance for its school, and while a school could therefore facilitate voluntary prayers associated with that majority religion, any policy will have to be formulated in a way that would prevent indirect coercion.

A policy that explicitly endorsed one religion over another or religion over non-religion will – in my opinion – not be in accordance with the Constitution because it would signal that those with different beliefs are not “normal” or are considered to have a lesser status or dignity by the powers that be.

I would say a school breaches the provisions of section 15 if it states that it has a “Christian character” and teaches “Christian values” or where it endorses a “Jesus week” but fails to endorse other religious activities of minority religious groups or non-believers. Such actions would make it very difficult for non-believers or believers of non-majority faiths from opting out of the religious activities at schools and the non-believers or believers of other faiths will be indirectly coerced into a specific Christian religious observance – something prohibited by the Constitution.

One way to get around this would be for a school to encourage and facilitate respect for religious differences by refusing to endorse one particular religious view and by encouraging pupils to express their beliefs openly – no matter what they may be. Such a school would then be allowed to have a “religious week”, say, where pupils could wear yellow ribbons if they were Christians, orange ribbons if they were Muslim and purple ribons if they were athiests.

A school could also invite different speakers who would then inform all pupils about various religions and athiesm to send the signal that while the majority of pupils in a school adhere to Christianity, say, other religions and athiesm are just as valid and pupils who adhere to other beliefs are just as valued and respected as those who believe in fishing for Jesus.

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