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2019-04-21
South Africa
The Death of Freedom of Conscience
The Civil Union Amendment Bill, which is anticipated to be signed into law soon, highlights a serious erosion of the right to conscientious objection. This right can be defined as the refusal to perform a legal role or responsibility because of personal beliefs, whether they are derived from religious or moral conviction. Among other things, this right is derived from the Universal Declaration of Human Rights (UDHR), which protects the rights to conscience, thought, religion and reason because they are all paramount to human freedom. These rights are further recognised in section 15(1) of the South African Constitution which states that “Everyone has the right to freedom of conscience, religion, thought, belief and opinion.”

The right to conscientious objection was initially recognised in the context of the armed services, where some of those conscripted refused to carry arms because their conscience and belief prevented them from taking the life of another human being. In health care, conscientious objection involves practitioners refusing to provide certain treatments or procedures (e.g. abortions, or euthanasia / assisted suicide) to their patients, based on reasons of morality or “conscience.” The right to conscientiously object has been generally accepted as self-evident, because conscience lies at the heart of the dignity and humanity of every individual.

The problem comes when an individual, who may be able to tolerate the existing norms in a society even though they conflict with his/her deeply held conflicting personal convictions, is forced to participate in something they cannot support – or face legal sanctions. To give an extreme example, it may be possible for an individual to tolerate (or even respect) another person’s right to end their own life through euthanasia, but it is completely different to be forced to practise euthanasia oneself. While it may be possible to make two moralities co-exist within a society, it is not possible within a single person.

The right to conscientious objection is therefore particularly important in a liberal society. While it may be fair to offer individuals the right to access practices or services which may be morally debatable, this only remains fair if it guarantees that those who disapprove of same are not forced to take part in them. It is particularly unjust to ask a person, in the name of tolerance, to agree to the legalisation of a practice, then to be intolerant towards that person, once the practice is legalised, by forcing them to participate in it.

It should be said however, that no right is absolute. As a result, it often falls to the courts to balance competing rights with the purpose of ensuring that the resulting outcome allows, as far as possible, for both rights to continue to be enjoyed and respected. The Constitutional Court recognized and reinforced this important principle in the important case of Minister of Home Affairs v Fourie (2005), which legalised same-sex marriage in South Africa. In this case, the Court recognised the equality right, granted by section 9 of the Constitution, including that no one should be unfairly discriminated against on the grounds of their sexual orientation. As such, it ruled that Parliament should pass legislation to ensure that unions between same-sex couples had equal legal status to those between heterosexual couples. However, in its judgment, the Court was careful to also respect and protect the constitutional right to freedom of conscience, religion and belief when it specifically stated that “the principle of reasonable accommodation could be applied by the State to ensure that civil marriage officers who had sincere religious objections to officiating at same sex marriages would not themselves be obliged to do so if this resulted in a violation of their conscience”.

Today – in South Africa and in many other nations – this balance is being increasingly eroded, marginalised or even eliminated. While secularism boasts tolerance as one of its highest values, in practice the prevailing ideology has little or no tolerance for any other viewpoint than its own, with religious convictions in particular being increasingly viewed as irrelevant or deliberately obstructive to the new societal norms. The principle of reasonable accommodation is giving way to a “winner takes all” approach, with freedom of religion, conscience and belief simply being thrown under the proverbial bus.

The Civil Union Amendment Bill is a classic example of this trend. Although it is true that those who objected to presiding over same-sex unions on the basis of conscience had made it difficult (if not impossible) for such couples to exercise their rights, solving this problem certainly did not require the removal of the “conscientious objection” clause from the Civil Union Act, 2006. There were practical alternative solutions available, such as the preferred hiring of persons who do not have such conscientious objections or even the provision of “roving marriage officers” who would have been available to officiate same-sex ceremonies where no local State marriage officer was available. However, neither common sense, nor respect for the Constitutional Court’s judgment in the Fourie case, prevailed.

The approach of “Well, if you have an objection, find another job!”, fails to take into account the constitutional rights to freedom of religion, conscience and belief which attach to the individual, regardless of whether they work for the State or in the private sector. This removal of conscientious objection also gives little or no consideration of the societal consequences that will inevitably result. For example, every magistrate is a de facto marriage officer, so all magistrates will henceforth be forced by law to officiate same-sex marriages. This will clearly be a deterrent to those whose conscience and/or religious belief would prohibit them from doing so, with the result that they are effectively barred from this career. Given that becoming a magistrate is often an entry point to a career in the judiciary, with the potential career path towards becoming a judge in the different levels of the court structures, over the next 10 – 20 years this “amendment” will skew the value systems of South African judges against those of conservative religious convictions.

To take things to their logical conclusion, since the option of a conscientious objection has been removed from magistrates, what is to prevent it from being removed from health practitioners? Surely respecting the current right of doctors and nurses to say “No” to abortions means that patients are suffering from the lack of pregnancy termination services to which they are entitled? This is precisely the same argument that was used to remove the conscientious objection clause in the Civil Union Act. Are we really saying that it be a pre-requisite that if you wish to practice as a doctor in South Africa, you must accept that you can be forced to perform a procedure which many people with religious convictions and beliefs see as the murder of a human being? The logical, though chilling, response would be “Yes!” – and with it dies the rights of conscientious objection.

About the author:
Michael was raised in England, graduating from the University of Bristol with an honours degree in Law before immigrating to South Africa in 1983. He has been a successful businessman as well as having spent over 25 years in ministry in South Africa, Europe and the USA. He serves as the Executive Director of Freedom of Religion South Africa (FOR SA).
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