Matters of a free conscience are not compellable by positive law.Religion becomes a source of regulation of conduct. Human laws do not grant a court power to judge the efficacy of religious doctrine. It is not for a court of law to decide whether the matters which constitute the content ...
Matters of a free conscience are not compellable by positive law.
Religion becomes a source of regulation of conduct.
Human laws do not grant a court power to judge the efficacy of religious doctrine. It is not for a court of law to decide whether the matters which constitute the content of the individual's belief are, as a matter of fact, commanded by the fundamental doctrines or tenets of his or her faith. It is not for a court of law to ascertain the correctness or otherwise of the belief held by the person by measuring it against its understanding of the fundamental doctrines concerned. Every member of a church or religious faith must, as a believer, concern himself or herself with the fundamental doctrines or tenets of the faith. A court of law must defer to him or her in regard to the understanding of the fundamental doctrines or tenets by which his or her faith is governed.
Religion is, after all, a matter of self-definition. It is the self-definition of the believer that the court of law must rely upon, as there would be no positive law setting out an objective standard by which it can measure the conformity of the conduct of a believer on matters of religion.
The test to be applied is whether the individual genuinely, or, conscientiously, believes that the matters he or she believes in are in accordance with the fundamental doctrines or tenets of his or her faith. Where the issue is the objection by an individual to performance of acts required by governmental action, the test to be applied, consistent with the constitutional protection of the right to freedom of religion, is one that asks whether the claimant genuinely or sincerely believes that what he or she is being compelled to do is contrary to the fundamental doctrines or tenets of his or her faith as he or she understands them.
Freedom of religion, guaranteed under section 60(1) of the Constitution, includes the right to freely elect not to do any act that is prohibited by or is contrary to one's religion or religious belief.
As long as a court of law finds, as a matter of fact, that the person claiming constitutional protection genuinely holds the belief that the matters to which his or her belief relates are commanded by the fundamental doctrines, tenets or rules of his or her faith, the belief would fall within the ambit of section 60(1) of the Constitution as a religious belief.
It is not for a court of law to second-guess the believer by deciding the question whether he or she has correctly interpreted and understood the fundamental doctrine or tenet or rule of his or her faith. To do so would be to seek to provide an authoritative interpretation of the fundamental doctrines or tenets of a religion and to apply it to the belief held by the individual. That would be tantamount to the substitution of the court's conscience for that of the individual.
A belief is internal to an individual, being a product of the dictates of his or her free conscience.
Pure matters of faith, such as religious belief, give effect to moral values. A court of law should resist the temptation to impose a secular objective perspective on the matter.
The purpose of assessing the genuineness of a religious belief held by an individual is to prevent mis-use of freedom of religion.
In Bijoe Emmanuel and Ors v State of Kerala and Ors 1986 SCR (3) 518 the Supreme Court of India…, said:
“In Ratilal's case (Ratilal Panachand Gandhi v The State of Bombay & Ors 1954 SCR 1035) we also notice that MUKHERJEA J quoted as appropriate DAVAR J's following observations in Jarnshedji v Soonabai 23 Bombay ILR 122:
'If this is the belief of the community, and it is proved undoubtedly to be the belief of the Zoroastrian community, a secular Judge is bound to accept that belief; it is not for him to sit in judgement on that belief, he has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of his religion and the welfare of his community or mankind.'
We do endorse the view suggested by DAVAR J's observation that the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion.
Our personal views and reactions are irrelevant.”…,.
In, The Church of the Province of Central Africa v The Diocesan Trustees for the Diocese of Harare 2012 (2) ZLR 392 (S), the Court held as follows…,:
“The Court does not discuss the truth or reasonableness of any of the doctrines of the religious group. It does not decide whether any of the doctrines are or are not based on a just interpretation of the language of the Holy Scriptures.
Whilst the Court does not take notice of religious opinions with the view to deciding whether they are right or wrong, it might notice them as facts pointing to whether a person has withdrawn his or her membership from the Church and who should possess and control Church property.”…,.
In United States v Ballard 322 US 78 (1944), the United States Supreme Court held in this regard…,:
“The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree.
They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man's relation to his God was made no concern of the State. He was granted the right to worship as he pleased, and to answer to no man for the verity of his religious views.
The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect.
When the triers of fact undertake that task, they enter a forbidden domain.”…,.
In Re G (Education: Religious Upbringing) [2013] 1 FLR…, SIR JAMES MUNBY said:
“It is not for a judge to weigh one religion against another. The court recognises no religious distinctions, and, generally speaking, passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect, so long as they are 'legally and socially acceptable' and not 'immoral or socially obnoxious' or 'pernicious'.”...,.
This is an application made in terms of section 85(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act, 2013 (“the Constitution”) for appropriate relief based on a freedom of religion claim.
The application raises questions of the constitutionality of the policy and the actions of the education authorities of compelling school children to salute the national flag and to say the words “Almighty God, in whose hands our future lies” in the process of reciting a pledge of allegiance to the country....,.
The objection by the applicant, to his children being forced to salute the national flag as being contrary to their religious belief, is based on a literal interpretation of the “Holy Scriptures”, particularly the book of Exodus. Chapter 20 verses 3-5 of the Book of Exodus is in these words:
“3. You shall have no other gods before me.
4. You shall not make for yourself a graven image or any likeness of anything that is in heaven above, or that is in the earth beneath or that is in the water under the earth….,.
5. You shall not bow down to them or serve them, for I the LORD Your God am a jealous God…,.”
Based on the literal interpretation of the above excerpt from the Bible, the applicant and his children hold the belief that worship must be reserved for God only. They believe that the national flag, as a secular object or symbol, is a graven image and that to salute it is to worship the flag....,.
That recitation of the pledge is made compulsory in schools has not been disputed by the respondents. The applicant, in his founding affidavit, made a positive allegation to the effect that he had been informed that his children were required to memorise and recite the pledge at the beginning of the next school term on 3 May 2016.
The respondents did not deny the allegation in their opposing affidavit.
The applicant and his children hold the belief that saluting a flag is an act of worshipping a secular object prohibited by what the applicant considers, on the literal interpretation of the Bible, in Exodus 20:3-5, to be a fundamental doctrine of his faith. He does not object to the use of the national flag in the pledge and its symbolism. He accepts and respects the national flag and what it symbolises as a secular object. What the applicant objects to, on religious grounds, is the Governmental action of compelling his children to perform the act of saluting the flag as part of the recitation of the pledge.
The Court does not have to involve itself with the question whether the compulsory recitation of the pledge, in the current form, amounts to worshipping the national flag as alleged by the applicant. The question is whether the applicant sincerely believes that the recitation of the pledge, in the current form, including in particular the reference to the act of saluting the national flag, is worshipping a secular object which offends against his and his children's deeply held religious belief that worship is reserved only for God.
The applicant genuinely believes that saluting a flag is prohibited by the relevant Scripture, which declares that worship must be solely reserved for God. The matters of worship, and who should be worshipped, are matters of religious conscience. They are matters covered by the relevant rules of the applicant's faith. The matter of saluting a national flag, being believed to be an act of worshipping a secular object and therefore forbidden by the fundamental doctrine of the applicant's religion, is a matter of belief internal to the applicant.
Whether the applicant has correctly interpreted the fundamental doctrine or tenet of his faith is not for the Court to decide. The Court only has to decide whether the applicant genuinely holds the belief, on the literal interpretation of Exodus 20:3-5, that saluting a flag is an act of worship forbidden by the rule of his faith to the effect that worship should be solely reserved for God.
The fact that the belief held by the applicant has a basis in the literal interpretation of the wording of the Scripture is evidence in itself of the genuineness of the belief held by the applicant.
The State may not evaluate its citizens' religious convictions or characterize their religious beliefs as right or wrong. The applicant and his children have a right to act according to his understanding of his faith. He and his children have a right not to be forced to commit an act contrary to this understanding.
The respondents did not proffer evidence to contradict the fact that the applicant truly and conscientiously believes what he says.
He does not hold his belief idly and his conduct is not the outcome of any perversity.
The claim by the applicant is not qualified by the fact that he accepts that he belongs to the Christian faith, which is a monotheistic religion. The applicant's claim for religious freedom is based on a practice deeply rooted in the religious belief shared by members of his church. In other words, the religious objection to his children being compelled, by the State, to recite the pledge with the pronouncement of the act of saluting the national flag would have been raised even if the words “Almighty God, in whose hands our future lies” had not formed part of the wording of the pledge.
The argument, by the first respondent, that the applicant believes in the “Almighty God” referred to in the pledge and that no other God is referred to misses the point.
The respondents did not put in issue the allegation by the applicant that his religious belief is that worship, as an act of expressing religion, must be reserved only for God. The first respondent's contention was that the recitation of the pledge is not worship in the religious sense of the word. Whether the ceremony for the compulsory recitation of the pledge is a form of worship is not for the Court to decide. There is no doubt that the recitation of the pledge, in the current form, has a religious character. If this were not the case, there would be no need to include, in the language of the pledge, the words “Almighty God, in whose hands our future lies.”
The belief was held, by the applicant and his children, before the pledge was imposed. It was not raised in an attempt to avoid participating in the recitation of the pledge.
There are decided cases, from other jurisdictions, involving members of the Jehovah's Witnesses sect objecting to taking part in the compulsory salutation of national flags on the ground that saluting the flag is against their religious belief that worship must be reserved only for God: see West Virginia State Board of Education v Barnette 319 US 624; Donald v The Board of Education for the City of Hamilton 1945 Ontario Reports 518.
The approach adopted by those courts has not been to impose, on the claimant, an objective definition of religion for the purposes of constitutional protection of the right to freedom of religion. The approach has been to decide whether the claim by the applicant was based on a sincerely held religious belief. Once the court decided that the belief was religious and that the applicant genuinely believed the ideas espoused, a finding that his or her right to freedom of religion has been infringed followed.
An approach to the concept of religion must therefore adequately dovetail with an appropriate test of sincerity.
It is rarely necessary to determine the religiousness of beliefs, since the State may not compel persons to believe anything. A belief is what an individual believes, not what the State compels him or her to believe as it cannot do that under the Constitution. Whether a belief is religious would depend on whether the individual genuinely believes it is religious. In other words, whether what is believed relates to religion is assessed in the light of the nature of the belief and its sincerity.
The sincerity of the applicant's religious belief is beyond question.
There is a shared interest in regarding the conscience as sacred and inviolable and as the core governing unit of society located within the individual. In a state of freedom of conscience, the individual is expected to act in accordance with the dictates of his or her conscience. There is no positive law governing conduct in respect of the matters relating to religion. The Constitution requires that the manner in which the individual handles matters relating to religion be left to the dictates of his or her conscience, the freedom of which it guarantees under section 60(1).
The presumption is that what a free conscience dictates is good for the individual and the community at large.
Whether an individual is able to exercise the freedom to act in accordance with the manner dictated by his or her conscience will depend on the circumstances in which he or she finds himself or herself at the time he or she is confronted with the matter relating to religion. If, for example, he or she is exposed to a matter relating to religion at a time when he or she is under subordination of authority or he or she is at a place where his or her presence is required by law he or she would have his or her freedom to act according to his or her conscience compromised.
A school child, whose conscience dictates that he or she should not salute the national flag during the recitation of the pledge because doing so is contrary to his or her religious belief, would find it difficult to act in accordance with the dictates of his or her conscience because of the position of subordination to authority in which he or she is placed. He or she would also find it difficult to act in accordance with the dictates of his or her conscience because of the compulsion imposed on him or her by the policy and the Governmental action to recite the pledge and to salute the flag. The school child is then forced to act contrary to his or her conscience.
No constraint of conscience can be appropriate.
Any dominance of a faith would be unjust, for faith ought to be free of all subjection to humans. Faith knows subjection only to its own rules or fundamental doctrines.
In MEC for Education, Kwazulu-Natal v Pillay 2008 (1) SA 474, the Constitutional Court of South Africa emphasized the fact that entitlement to respect for one's voluntary religious practices is a necessary element of freedom and inherent dignity of any individual. The court said:
“A necessary element of freedom and of dignity of any individual is an entitlement to respect for the unique set of ends that the individual pursues. One of those ends is the voluntary religious…, practices in which we participate. That we choose, voluntarily rather than through a feeling of obligation, only enhances the significance of a practice to our autonomy, our identity, and dignity…,.”
The compulsion imposed on the applicant's children, by the education authorities, to salute the national flag during the recitation of the pledge infringed the children's right to freedom of religion protected and guaranteed by section 60(1) of the Constitution.
