01 Jun Something rotten in the state of Denmark or much ado about nothing?

Why all the fuss about a Christian Chief Justice – something rotten in the state of Denmark or much ado about nothing?

In the build up to the interview of Justice Moegeng Moegeng by the JSC, the vitriolic attacks on him within certain portions of the legal profession and much of the media sounded alarm bells within me. It was difficult to find anyone in the circles in which I moved in Cape Town who had not been caught up in what can only be described as a feeding frenzy of venom against Justice Moegeng Moegeng.

As has been the case for many years when confronted with such a situation, I found myself reminded of the following words penned in 1925 and recorded in the autobiography of ZK Matthews, Freedom For My People(Adams College Head) (p83) – (Alexander Kerr’s advice – his son, Professor Kerr, for many years lectured at the Rhodes law department)

“You may be tempted into facile views of the difficulties around you … You may be tempted to cut yourself off from the rest of your people, or on the other hand to an unthinking advocacy of what the mob clamours for (my emphasis).

But I am sure you will examine all things with clarity of intellectual vision, free from passions unless it be a moral passion for the good, and when you have thought things through to present your views with temperate courage.”

Was this feeding frenzy once again a case of an unthinking advocacy of what the mob clamours for, albeit in this instance a very educated and erudite mob?

After some research and reflection I made the following submission to the JSC, some 5 or so days before the interview. I only will read germane portions of my submissions.

I quote:

“It is with a measure of disquiet that I have read some of the submissions concerning the suitability of Justice Mogoeng as the future Chief Justice.

Firstly, if the submissions were to be accepted one needs to ask the question how it is that he was appointed a Judge in the first place. And yet Justice Mogoeng has gone through the rigorous process following on from an application for appointment as a Judge when he was appointed as a High Court judge, a Judge of the Labour Appeal Court and most recently his appointment as a Justice of the Constitutional Court.

However my main concern relates to the criticism aimed at Justice Mogoeng as a result of his personal faith as a Christ follower.

In this regard my first problem is that much of this criticism presupposes an objective interpretation of the Bill of Rights devoid of subjective influence. This is unattainable.

It would be disingenuous to submit that there is even one Judge in the land whose personal faith position, be that Atheist, Secular Humanist, Christian, Jew or Muslim does not in some way impinge on their judgments. Furthermore it would be naïve to believe that no part of any

such faith position is in conflict with the present understanding or application of the bill of rights. That must be a constant tightrope walking act by all Justices and Judges when faced with such a conflict – options open to them would include recusing themselves, resigning or declaring what the law is, even if they find it distasteful.”

I pause here.

One of the lies being spread far and wide in our country is that the secular humanist or atheist position, is not a faith position with a specific worldview with practical consequences when it comes to giving content to constitutional concepts such as dignity, freedom and equality. This is simply false. I will develop on this at a later stage in my talk.

I return to my submissions to the JSC:

“Which brings me to my second problem. What has struck me is that one of the recurring themes in the criticism aimed at Justice Mogoeng is that his particular chosen faith position, that of being a Christ follower, in some way makes him unsuitable for the post. In one of the submissions the church he belongs to, relying on the hearsay of a member of the particular bar, is described as “a conservative church”. The word conservative clearly is used in a negative sense, without unpacking what is meant by “conservative” other than references to homosexuality and abortion.

Not only is this criticism ill informed, it is also deeply offensive to the overwhelming majority of people in South Africa who call themselves Christians, Jews and Muslims. Common to all these faiths is the Torah and the Prophets. At the heart of these Scriptures are the so-called “conservative” views about for example the final authority of God in all things, the dignity and worth of all people, marriage and the moral imperative to protect the weak and  helpless, be they inside or outside the womb.

In this regard it is illogical, and offensive to the people of the said Scriptures, to argue that if one supports the traditional view of marriage one is homophobic and does not support the constitutional rights of gay and lesbian people. Or that if one seeks to defend the unborn child one is against caring for the pregnant woman in need, which care in any event might require an abortion.

If a nominee was open about their faith as an Atheist, would this have been seen as a disqualification by those making these arguments in the media and the legal profession? (And here it needs to be remembered that often very divergent views on topical moral issues are held by Atheists.) Quite correctly, I think not. In similar vein for example, if a person in theirpersonallife openly advocates a view of family or sexuality different to the “traditional/
conservative” one, quite correctly, constitutionally speaking, it should not be seen as a negative for appointment.”

At this point let us again pause and reflect on the response, or lack of response, of those portions of the legal profession and the media which were so vitriolic in their attack on Justice Mogoeng for his faith position, to an applicant for the Concourt who on fundamental issues openly advocated a worldview very different to the Christian/Jewish/Muslim one.

Justice Edwin Cameron, when he was still a judge in the SCA in his book “Witness to Aids” wrote:

“And even if heterosexual Africans did behave differently in their frequency of sexual intercourse and their number of partners, why should that earn condemnation? The supposition is that frequency of sexual intercourse or variety of partners is in itself demeaning, revealing, shaming, degrading. Is it? We are back to self-stigma – internalized stigma – and its destructive, self-damaging effects.”

Later he concludes: “AIDS is above all a remediable adversity. Our living and our life forces are stronger, our capacity for wholeness as humans is larger, than the individual effects of the virus. Africa seeks healing. That healing lies within the power of our own actions. In inviting us to deal with the losses it has already inflicted, and, more importantly, in enjoining us to avoid future losses that our own capacity to action make unnecessary, AIDS beckons us to the fullness and power of our own humanity. It is not an invitation that we should avoid or refuse.”

In stark contrast to the underlying points of departure of Justice Cameron’s worldview revealed in these extracts, for example in Jeremiah 31 vss 33 – 34, sacred to Christians, Jews and Muslims, we read:

“But this is the covenant that I will make …, declares the Lord. I will put my law within them, and I will write it on their hearts. And I will be their God, and they shall be my people. And no longer shall each one teach his neighbour and each his brother, saying, “Know the Lord”, for they shall all know me, from the least of them to the greatest, declares the Lord. For I will forgive their iniquity, and I will remember their sin no more.”

And in Romans 7 vss 21 – 25, St Paul wrote:

“For I do not understand my own actions. For I do not do what I want, but I do the very thing I hate. …So I find it to be a law that when I want to do right, evil lies close at hand. For I delight in the law of God, in my inner being, but I see in my members another law waging
war against the law of my mind and making me captive to the law of sin that dwells in my members. Wretched man that I am! Who will deliver me from this body of death? Thanks be
to God through Jesus Christ our Lord! So then, I myself serve the law of God with my mind, but with my flesh I serve the law of sin.”

In the Scriptures quoted, God and God’s righteousness and grace are the points of departure for all conduct of men and women. Unlike in Justice Cameron’s worldview, men and women are not merely slaves of self and social stigma when they feel guilt about falling short of a
standard of conduct. Christians, Jews and Muslims believe the Lord has written His law on their hearts, and hence the guilt and struggle so graphically described by Paul when they fall short of that standard. As the late Martin Luther King put it: “But the exalted Renaissance optimism, while attempting to free the mind of man, forgot about mans capacity to sin.”

Furthermore, unlike in Justice Cameron’s worldview where the answer to the problem seems to lie alone with our actions, Christians, Jews and Muslims also believe that by His mercy God does forgive their iniquity, and will remember their sin no more. Christians also believe

that by grace they can be set free from all forms of enslavement and that the Holy Spirit helps us to be partners of God in achieving His mission of proclaiming Good News to the poor, liberty to the captives and recovering of sight to the blind, setting at liberty those who are oppressed, and proclaiming the year of the Lord’s favour. In other words the Christian, Jewish and Muslim worldview is that without God there is no way out of the problems which face us. Thus a worldview which envisages a partnership with God as opposed to merely relying on ourselves and our programmes to rid the world of evil and suffering.

At its simplest, the one worldview is God – centred, the other human – centred.

The question for the purposes of my talk is not which is the better worldview, but why the vitriolic response to the God – centred worldview by those portions of the legal profession and the media which were so vitriolic in their attack on Justice Mogoeng, but not a whisper to the human – centred worldview of Justice Cameron when he applied for a seat on the Concourt?

At this stage another example from a different forum might be of use to illustrate the inconsistency.

Prof Badatat his inaugural address as vice chancellor of Rhodes University stated:

“Our Constitution is the fundamental bedrock that informs my responsibilities, guides my conduct and animates my social relationships and existence.”

In stark contrast in Psalm 1 we read:

“Blessed is the man…who delights in the Law of the Lord, who meditates on God’s law day and night.

And in Matthew 7 vss 24 – 27 we read:

“Everyone then who hears these words of mine and does them will be like a wise man who built his house on the rock. And the rain fell, and the floods came, and the winds blew and beat on that house, but it did not fall, because it had been founded on the rock. And everyone who hears these words of mine and does not do them will be like a foolish man who built his house on the sand. And the rain fell, and the floods came, and the winds blew and beat against that house, and it fell, and great was the fall of it.”

Once again, two very different worldviews – the one looks primarily to a political document written by people for inspiration and guidance – the other looks primarily to Scripture for inspiration and guidance.

A few years back my wife applied for a post at a SA university. At one stage in the interview she told the members that she was a Christ follower and that this obviously had practical consequences. She immediately sensed a chill in the air. She was not appointed.

I suspect there was no chill in the air when Prof Badat implicitly or explicitly shared his worldview with his interviewing committee.

The question is, why this inconsistency?

Perhaps it is partially because of the failure to see the secular worldview for what it is – also a faith position, just like the Christian/Jewish/Muslim worldviews are faith positions. Perhaps there is an educated elite of secular humanists who have a disproportionate influence to their numbers when it comes to the media and parts of the legal fraternity.

Perhaps nothing has changed since St Paul in effect wrote that the cross will always be offensive to those who have a human – centred worldview or whose ego, power or privilege are threatened by the implications of the cross. So much so that usually bitter enemies such as the Pharisees, Sadducees, Zealots, Herodians and Romans conspired to kill Jesus and thereafter His followers.

Perhaps much of the educated elite simply is too proud and self sufficient to accept the words of the Psalmist that a fear of the Lord is the beginning of knowledge, that they need help in dealing with the effects of their own sin.

But even if they do not accept this God – centred worldview, what is perplexing is the intolerant and vicious response to someone who is open about his God-centred worldview – and here it must be remembered that much of the venom originated from institutions which like to be seen as champions inter aliaof tolerance and freedom of conscience.

I ended my submission to the JSC as follows:

“However, in terms of some of the submissions concerning Justice Mogoeng, if in ones personal lifeone advocates the “traditional/conservative” view for example about marriage and sexuality, which it would seem is the case with Justice Mogoeng, then in effect according to some of the submissions it becomes a cause for disqualification! Such a position lacks consistency and is in breach inter aliaof Justice Mogoeng’s rights in terms of sections 9(1), 10 and 15(1) of the Bill Of Rights.

Furthermore the suggestion that Justice Mogoeng must be interrogated about what his church believes has an Orwellian ring about it. To take such a step would be to cross the church state divide and would smack of an inquisition. And to be consistent it also would open the floodgates to future questioning of candidates for appointment on the details of their faith, whether Atheist, Christian, Jew or Muslim. (His open membership
of a Christian church simply cannot be compared to a person’s secret membership of a secret political society.)

Christians and orthodox Jews and Muslims subscribe to Scriptures which are thousands of years old and which from the first chapter through to the end deal with issues inter aliaof dignity, equality, freedom, discrimination, and economic, environmental and social justice. As Justices of the Constitutional Court seek to give content to the words dignity, equality and freedom it would be simple foolishness, and arrogance, to require such Justices who seek to

follow these Scriptures to cast aside the wisdom and insight of thousands of years. Likewise Justices who subscribe to the faith of Atheism, Secular Humanism or Materialism, no doubt will not cast aside the insights of their spiritual fathers and mothers.

Obviously at the end of the day Justices must as Justices apply the law of the land, which is the Constitution. But, as already stated, it would be disingenuous to argue that a person’s “story” will not have some impact on their interpretation of the Constitution, no matter how hard they try and remain detached, independent and objective.

Given the enormous importance of the Constitutional Court in influencing the moral future of South African society, it would be a sad day if the JSC only appointed likeminded justices when it comes to the more contentious moral issues of the day. That bench, like the rest of the judiciary, needs to reflect the moral and religious demographics of South Africa. (And here it must be remembered that in the most recent census in excess of 75% of our people described themselves as Christian, Jewish or Muslim.)

Accordingly, to the extent that some have argued that Justice Mogoeng’s personal faith position as a Christ follower should count against him, I submit such submissions are at the end of the day not only unsustainable and unconstitutional, but also dangerous.”

Let us sum up so far:

A purely objective interpretation of the constitution is not possible. The personal stories of judges, be they atheist, secular humanist, Christian, Jew, Muslim or whatever, will play a role in their giving content to words such as dignity, freedom and equality.

Let us be alert to inconsistency, to discriminating against Christians, and indeed orthodox Jews and Muslims, whilst not applying the same approach to other faith positions such as atheism, secular humanism and scientific materialism.

I conclude with four caveats/qualifications:

As I was told by my supervisor when I did my BD thesis, declare your bias upfront. In this regard it is good that the CJ has been open about his faith position. Not only does this allow litigants to consider their position when they appear before him, it also will
serve as a reminder to the CJ that at all times he must be aware of his faith position lest he unwittingly allow it to intrude upon his task of applying the law of the land without fear or favour (illustrate by briefly discussing the abortion case where our judge declared his bias and Cameron JA writing the judgment in the marriage act case).

If at any stage a judge is confronted with a situation where he needs to choose between her conscience and applying the law of the land, she must be allowed the freedom to recuse herself. I do not believe this will be a negative act – on the contrary

I believe allowing even a chief justice this freedom of conscience will affirm the type  of society the preamble of the constitution aspires to. In practice I do not believe such a situation would easily arise, especially as all the major faith positions, including secular humanism, for example strive for a society which affirms the dignity of all her people.

The CJ, or indeed any judge, must never use the tangible and intangible resources of their position to promote their faith position. Similarly for example a vice chancellor of a university also must not use her position to promote the faith of secular humanism or whatever. As far as the Christian faith is concerned, in addition to pride and the oppression of the poor, from Genesis to Revelation few things anger God more than the abuse of power. To use the resources which come with the position of CJ for purposes beyond those prescribed by the constitution, would be an abuse of power.

D. The final caveat is the following words of Kentridge AJ from one of the earliest constitutional court decisions, and I end with these words:

“I am well aware of the fallacy of supposing that general language must have a single ‘objective’ meaning. Nor is it easy to avoid the influence of one’s personal intellectual and moral preconceptions. But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean. We must heed Lord Wilberforce’s reminder that even a constitution is a legal instrument, the language of which is to be respected. If the language used by the lawgiver is ignored in favor of a general resort to ‘values’ the result is not interpretation but divination.”

Thank you, Mr. Chairman
June 2012 – Grahamstown Festival (The Cathedral)