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
25 May 2010

Zapiro, freedom of speech and the Burka

It is rather ironic that Zapiro is in hot water for drawing a cartoon bemoaning the fact that some followers of the Prophet Muhammad have no sense of humour. It would be like me being assaulted by ANC Youth League members for saying they are politically intolerant. The vehement response from Zapiro’s critics sort of proves his point.

But irony aside, what would the correct constitutional position be in a case like this where the freedom of expression of the majority clashes with the religious beliefs of the few? I am not talking about one’s personal views and whether, as a matter of respect, one would choose to express or not to express certain views about another person’s religious or other beliefs. Does Zapiro have the right to draw a cartoon of Muhammad or do those followers of the Prophet have the right to demand that Zapiro refrains from drawing such cartoons.

Regular readers of this Blog might have noticed that I am rather libertarian as far as freedom of expression is concerned. Whether it is Julius Malema singing “Kill the Boer” or some fanatical Priest or Imam spewing forth homophobic vitriol, I maintain that more often than not it is better to allow the expression than to ban it. Tyranny thrives in ignorance and silence. If the Pope wants to brand me a pervert who will burn in hell, let him. I don’t believe in hell in any case, so I will just laugh at the Pope and dismiss him as a primitive and superstitious man in a funny dress.

(Of course, one has wondered whether the Pope is making such a fuss about homosexuality because he himself prances around every day in a dress, bedecked in jewels and wearing rather “gay” red Prada shoes, and might be worried that people would think he watches old Liberace videos in his spare time – but let us not go there.)

The Constitutional Court has spoken of the need for our laws reasonably to accommodate the religious and other differences between us. Although the reasonable accommodation of different religious beliefs (and non-beliefs) is not always easy, our Constitution requires all of us to respect the rights of others to hold their own views and to express those views – as long as it does not fundamentally limit our ability to live our lives as we see fit. An atheist is entitled to say that God is dead, just as a reborn Christian is allowed to say that an atheist will burn in hell.

For example, although some people believe that God hates men who love men or women who love women, the state cannot prohibit same-sex couples from getting married because that would infringe on the rights of people based on their sexual orientation. At the same time the state cannot force the religious groups to change their beliefs or to marry same-sex couples in contraventions of their religious beliefs.

Thus the views of religious groups are reasonably accommodated – as they can continue believing in homophobia and can continue practicing it within their Church, Mosque or Synagogue – while the rights of gay men and lesbians are also protected in that the religious beliefs of some are not enforced by the state on all of us to prevent them from living lives of dignity.

In the case of cartoons like the one drawn by Zapiro, one would imagine that the religious beliefs of some could not be used to trump the freedom rights of others and that Zapiro cannot be prohibited from drawing a cartoon that offends some people. To allow that would be to allow the religious views of some to dictate to others what they can and cannot do and say, thus endorsing those religious views and choosing those views above the views and beliefs of others. That would fundamentally infringe not only on the freedom of expression of Zapiro and others but also on their freedom of religion and conscience.

Some atheists, say, may feel deeply offended when they see a woman dressed in a Burka or when they are woken up on a Sunday morning by the church bells, but a law that bans the Burka or bans a church from ringing its bells  would not be reasonably accommodating the views of all religious groups. Similarly, just because some people are offended by depictions of their Prophet does not mean the law can ban others from drawing depictions of the Prophet.

The need to accommodate (without prescribing to others what they can and cannot believe, think or do) becomes obvious when one realises that there are many different religious and other beliefs jostling for space in our democracy and that the state should try not to choose which views and beliefs are true or right – as this would infringe on the religious and other freedoms of others. If the state endorsed the views of one group over another it may lead to tyranny. If the state enforces only the views of some because they claim to be more offended than the rest of us, it would mean that the state has chosen sides in religious disputes – something it should not do.

In any event, as Wikipedia reports, there is no unanimity, even amongst Muslims – about depicting the Prophet:

The Qur’an does not explicitly forbid images of Muhammad, but there are a few hadith (supplemental traditions) which have explicitly prohibited Muslims from creating the visual depictions of figures under any circumstances. Most contemporary Sunni Muslims believe that visual depictions of the prophets generally should be prohibited, and they are particularly averse to visual representations of Muhammad. The key concern is that the use of images can encourage idolatry, where the image becomes more important than what it represents. In Islamic art, some visual depictions only show Muhammad with his face veiled, or symbolically represent him as a flame; other images, notably from Persia of the Ilkhanate, and those made under the Ottomans, show him fully. Other Muslims have taken a more relaxed view. Most Shi’a scholars accept respectful depictions and use illustrations of Muhammad in books and architectural decoration, as have Sunnis at various points in the past.

Just as Christians do not all agree that homosexuality is a sin, Muslims do not all agree that depictions of the Prophet is wrong. This is exactly why the state and our courts should try not to choose sides in these disputes and should leave open a space in which reasonable people could express their views on such matters. Sometimes this is very difficult, of course. Some religious practices or beliefs may be so shocking to the majority or may be viewed as so harmful to some that the state would be justified to intervene.

For arguments sake, if a religious sect believes that child incest is demanded by the teachings of their God, the law may well justifiably limit the rights of that religious sect by enforcing the ban on child incest. This is also why the Constitutional Court endorsed the ban on the possession and use of cannabis – despite the fact that Rastafarians believe the smoking of the Holy Weed will bring them closer to God.

Sometimes – as in the latter example – it will not be easy to draw the line, but personally I would choose more freedom for more people by prohibiting only the absolute minimum number of religious practices while also allowing the widest possible scope for religious contestation trough freedom of expression. Let both the Burka and depictions of Muhammed thrive!

This does not mean, of course, that as South Africans living in a diverse society we should not try to be sensitive about the beliefs of others (whether it is the belief in a God or the belief in no God at all) and should not try to accommodate the practices associated with those beliefs. Although I am not a great fan of the Catholic Church (what with its homophobia and its murderous policy of discouraging its members from wearing condoms in a time of AIDS), I nevertheless keep a respectful silence when I enter a Catholic Church.

And when I speak to a Muslim friend, I will try not to mention my love of bacon and red wine and will, perhaps, politely refrain from bringing up the persecution of gay men and lesbians in many countries where Islam dominates. This I do gladly, not because my friend has a right to demand this of me, but because I think in a diverse society we must try and get along and must respect each other on a personal level.

All I ask is for the same respect to be shown to me and to my own views on religion. Let us all live together without wanting to oppress each other, I say. Maybe in the long run we might all even learn to cultivate a sense of humour.

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