Not entirely omniscient
19 April 2014 06:44 (South Africa)
Opinionista Jacques Rousseau

Staring into the abyss of ‘special privileges’

  • Jacques Rousseau
Take a vast chasm, a tightrope, pea-soup mists and swirling, vicious gusts of wind – then a person steps onto that rope, destination unseen. Such are the ingredients for the kind of 'recipe for disaster' if a country embarks on creating charter upon charter of special privileges for one or more interest groups – no matter how profound the interest.

While lacking the high-profile support and marketing opportunities Primedia and others lent to the Bill of Responsibilities, there’s another document doing the rounds that is even more wrong-headed – if such a thing is at all possible. It’s called the South African Charter of Religious Rights and Freedoms, and, according to one of its drafters, Rassie Malherbe, is intended to “flesh out the right to freedom of religion in the Constitution”.

This fleshing-out is apparently required due to the fact that “constitutional rights are described in cryptic, vague and general terms”. Sections 9, 15, 31, 185 and 186 seem fairly clear to me, and when read in conjunction with sections 10 and 12 of the Promotion of Equality and Prevention of Unfair Discrimination Act, it’s quite difficult to understand how religious belief could better be protected.

Of course, I’m assuming that religious beliefs should be treated as merely one form of belief competing with others on the ostensibly level playing-field provided by an impartial state. As matters stand, I’m already a candidate for appearing before the Equality Court for communicating words “that could reasonably be construed to demonstrate a clear intention to be hurtful” when speaking of religion.

Churches already enjoy preferential treatment from the taxman, while non-theistic organisations do not. The religious voice carries a disproportionate weight in debates around whether TopTV can screen pornography. On a more trivial note, for those who suffer from unpredictable thirsts for alcohol or who struggle to plan ahead, moral standards set by religion dictate the terms of liquor licences. One could go on, but the upshot of these facts is that many claims for religion requiring more protection are tenuous at best.

More worryingly, these sorts of charters have a history of allowing for discrimination against the non-religious, rather than simply proving equal protection for all. The UN resolutions on Combating Defamation of Religions that have made regular (and sometimes successful) appearances before various UN commissions and councils bear notable similarity to blasphemy laws such as those enforced in Ireland.

Under such laws it’s not only the case that you can (somehow) defame an idea or ideology rather than a person, but you can also go to jail for doing so. Presumably, the South African charter would hope for such a future also. One of its clauses (6.4) states: “Every person has the right to religious dignity, which includes not to be victimised, ridiculed or slandered on the ground of their faith, religion, convictions or religious activities. No person may advocate hatred that is based on religion, and that constitutes incitement to violence or to cause physical harm.”

While the second sentence of the clause quoted above might be controversial for some,  it’s nevertheless already entrenched in the Bill of Rights and Equality Act. So the charter adds no protection by repeating it, assuming the charter becomes law as intended by its drafters. But to demand protection from victimisation or ridicule is surely a step too far, especially when read in conjunction with something like 2.2: “Every person has the right to have their convictions reasonably accommodated.”

If reasonable accommodation comes to mean immunity from criticism – which it certainly could, with a broad notion like 'victimisation' being very much an eye-of-the-beholder sort of thing – it would only be the religious that truly enjoy the rights to freedom of thought and expression afforded to us in the Bill of Rights. Those who want to express negative sentiment with regard to religion (and other categories like culture, also included) are not victimised as a result of having these protections withheld.

It goes further, as these things often tend to do. On the grounds of religious belief, you can refuse to deliver “certain services, including medical or related (including pharmaceutical) services or procedures” (2.3b). And “no person may be subjected to any form of force or indoctrination that may destroy, change or compromise their religion, beliefs or worldview” (2.5) – but the same would not apply to that kid in the classroom who has doubts that women were magically brought into existence from the rib of a man.

Furthermore, the state, including the judiciary, must “respect the authority of every religious institution over its own affairs” (9.3), and parents “may withdraw their children from school activities or programs(sic) inconsistent with their religious or philosophical convictions” (7.1). For a document that’s drafted partly in response to constitutional rights that are allegedly “cryptic, vague and general”, you’d hope for some more specificity in this charter. There is little to none of that, and I’ve only highlighted six of the 13 clauses that are obviously problematic.

At the launch of this charter in October 2010, Deputy Chief Justice Dikgang Moseneke stopped short of endorsing it, saying it might one day be a matter before the Constitutional Court. He nevertheless welcomed the initiative, and it seems likely that our new Chief Justice would be similarly inclined. As yet, though, there’s been little progress, and the charter has yet to be presented to a parliamentary committee. But there are signs of life – a January article in Beeld spoke of it in positive terms, and callers to Radio Sonder Grense later that month seemed particularly enthusiastic.

Perhaps most troubling last week the Commonwealth advisory bureau issued an invitation for applications to write a paper on the right to religious freedom and belief in Commonwealth countries, to inform the proposed Commonwealth Charter. In this invitation, the South African Charter is highlighted as an example of best practice. So, even if it never reaches our parliament, there’s a chance other parts of the world will have the sensibilities of Malherbe and others imposed on them.

There’s no question that we need to tolerate diverse and dissenting views, and I’m sympathetic to the reality of many religious people feeling persecuted or victimised for their beliefs. Some instances of such victimisation are clearly unjust and immoral, but they are also usually already illegal and not meriting further legislation. This is part of the point of a broadly secular set of laws: that once we start creating special protections for one interest group, we have no principle by which to refuse doing so for all others.

Instead, ideas compete on their merits within a framework that attempts to give everyone an equal chance to air their views. Charters like this hark back to a world in which a default privilege was afforded to the dominant view, and where that dominant view was a religious one. While that view is still dominant in this country as in many others, that dominance results at least in part from people’s choices and their freedom to make those choices. Let’s not entertain the nonsense that this freedom is threatened to such an extent that it can or needs to be protected through granting one view the sorts of protections all others lack. DM


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  • Jacques Rousseau
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Rousseau is a voluntary exile from professional philosophy, where having to talk metaphysics eventually became unbearably irritating. He now spends his time trying to arrest the rapid decline in common sense exhibited by his species, both through teaching critical thinking and business ethics at the University of Cape Town, and through activities aimed at eliminating the influence of religious ideology in public policy.

When not being absurdly serious, he’s one of those left-wing sorts who enjoys red wine, and he is alleged to be able to cook a mean Bistecca Fiorentine.

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