‘Conscience rights under attack as parliamentary legal advisers mislead MPs again’

By Cause For Justice

Parliament is considering a legislative proposal that has major implications for human rights in general and in particular, the rights to equality, human dignity and freedom of conscience, religion and belief.[i] The Civil Union Amendment Bill (the Bill)[ii] proposes the removal of civil marriage officers’ right to conscientious objection[iii] – a right which protects marriage officers employed by the state from being forced to preside over marriage unions if it would violate their conscience or sincerely held beliefs.[iv]

It must be emphasised that the purpose of the conscientious objection clause is to protect the fundamental rights of civil marriage officers – and not to discriminate against same sex couples. While the Constitution prohibits unfair discrimination, it also recognises the principle of reasonable accommodation, whereby tolerance is allowed for people’s sincerely held beliefs.[v]

Brief background to the Civil Union Amendment Bill

The Bill was introduced in Parliament by (now ex-) member of parliament, Deidre Carter, in May 2018. It is currently before the Select Committee on Security and Justice (the select committee).[vi] The select committee most recently met on June 4 2020 to consider the Bill.

Lack of public access to select committee meeting as constitutional irregularities mount

All meetings of Parliament must be public, or accessible by the public (bar a few exceptions, irrelevant for present purposes). Yesterday’s meeting accordingly had to be made available to the public, e.g. by live streaming via Parliament’s YouTube Channel. However, allegedly due to technical difficulties, the meeting was not live-streamed. It is also unclear whether the meeting was recorded. Given the significance of the impact of the Bill on fundamental rights, the lack of public access to the meeting – the public being unable to know what was discussed and decided about a legislative proposal that has drastic implications for human rights – is very concerning.

Rather than discontinuing the meeting upon realising the public was being excluded from the work of Parliament, in a climate of already waning confidence in public representatives, public accountability was sadly sacrificed to forge ahead with legislation that does not even have the backing of government.[vii]

The constitutional position: Minister of Home Affairs v Fourie

In the matter of Minister of Home Affairs v Fourie,[viii] the Constitutional Court addressed the important issue of the recognition and accommodation of difference of intensely-held world views and lifestyles in the public square. The Court held that:

[t]he hallmark of an open and democratic society is its capacity to accommodate and manage difference of intensely-held world views and lifestyles in a reasonable and fair manner. The objective of the Constitution is to allow different concepts about the nature of human existence to inhabit the same public realm, and to do so in a manner that is not mutually destructive and that at the same time enables government to function in a way that shows equal concern and respect for all.”;[ix] and

…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.”[x]

Misleading position presented by parliamentary legal advisers

Members of parliament, such as the members of the select committee, rely on the parliamentary legal advisers to brief them correctly and thoroughly on the legal – including Constitutional – aspects of any legislation before them. The contents of the briefing presentation prepared by the parliamentary legal advisers to brief MPs on the select committee in respect of the Bill, is grossly misleading to the point of being a misrepresentation of South African constitutional law.

While the briefing presentation is correct in some aspects, in other critical respects its contents are erroneous and reflect prejudicial and biased interpretations and applications of the Bill of Rights and relevant jurisprudence such as the Fourie-judgment.

Most disturbingly, it seems that the legal advisors only selected certain parts of the Fourie-judgment for purposes of briefing the MP’s. Notably, the above-quoted passages from the judgment were omitted. The effect is that section 6 of the Civil Unions Act[xi] is being falsely portrayed to parliamentarians as a measure to unfairly discriminate against people based on their sexual orientation, which it is not. The Fourie-judgment’s emphasis on the principle of reasonable accommodation of a diversity of world views and lifestyles [xii] and the Constitution’s democratic equal concern and respect for all South Africans[xiii] – is sorely and strangely missing.[xiv]

Grave consequences of presenting a misleading position to MPs

The ramifications of the parliamentary legal Advisors’ misrepresentation of the law – including the Fourie-judgment – are grave. The Select Committee is faced with a complex application of the Bill of Rights[xv] and the balancing of equally valid and important constitutional rights, values and interests.[xvi] If the Committee suffers from an error or misdirection of law, its members will not be able to apply their minds to the true issues before them at all and their decisions accordingly will be arbitrary and legally invalid.

Parliament has a responsibility to ensure that any law it passes complies with the Constitution – both procedurally and with the Bill of Rights. If the select committee takes a decision based on an erroneous understanding of the law and relevant jurisprudence, it will result in its decisions being legally invalid and unconstitutional.[xvii]

Inadequate public participation

Despite receiving numerous requests, both the Portfolio Committee on Home Affairs (the portfolio committee)[xviii] and the select committee have not allowed a single public hearing on the Bill.

Public hearings would have provided the public with a crucial opportunity to address Parliament directly and properly ventilate important constitutional aspects and fundamental rights issues. Its denial raises serious questions about the adequacy and constitutionality of the public participation process in respect of the Bill.

Conclusion

Should Parliament ignore the Constitutional Court’s statement in the Fourie-judgment – that “[t]he hallmark of an open and democratic society is its capacity to accommodate and manage difference of intensely-held world views and lifestyles in a reasonable and fair manner.”[xix] – it will do so at the expense of South Africa’s constitutional democracy and its vision of a human rights society based on human dignity, equality and freedom.

A legislative framework that protects and promotes the rights of both same-sex couples and civil marriage officers who are conscientious objectors – which is exactly what the current law does (in the form of section 6 of the Civil Unions Act) – is to be preferred above any legal regime where either group’s rights are denied at the expense of others’ rights.

As a human rights organisation, Cause for Justice[xx] supports laws that promote and protect the rights and freedoms of all South Africans and celebrate the rich diversity of her people.

[i] Section 15 of the Constitution of the Republic of South Africa, 1996.

[ii] The Civil Union Amendment Bill [B11B-2018].

[iii] Section 6 of the Civil Union Act, 17 of 2006 reads:

Marriage officer not compelled to solemnise civil union

A marriage officer, other than a marriage officer referred to in section 5, may in writing inform the Minister that he or she objects on the ground of conscience, religion and belief to solemnising a civil union between persons of the same sex, whereupon that marriage officer shall not be compelled to solemnise such civil union.

 

Note: A marriage officer referred to in section 5, is are designated ministers of religion and other persons attached to religious denominations or organisations as marriage officers.

[iv] Or alternatively, being forced to resign from their posts to avoid being forced to violate their conscience.

[v] According to the Constitution, certain limitations of rights are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The Constitution requires that constitutional rights are balanced in manner that is fair and maximises the enjoyment of the rights of all persons. In this instance, the fundamental rights to equality and human dignity of same sex couples have to be balanced/harmonised with the equally fundamental rights to equality, human dignity and freedom of religion, opinion and belief of civil marriage officers.

[vi] The Select Committee on Security and Justice is a committee of the National Council of Provinces, the second House of Parliament.

[vii] It is noteworthy that the Civil Union Amendment Bill is a Private Member’s Bill. It is not a Cabinet Bill; i.e. not a Bill of the executive branch of government (that in this instance would have been initiated by the Department of Home Affairs (DHA) had it been a Cabinet Bill).

It is further noteworthy that there currently are no less than three significant marriage law and policy review processes being conducted simultaneously in South Africa: (1) The Ministerial Dialogue on the Development of the Marriage Policy (conducted by the Minister of Home Affairs and the DHA); (2) the Civil Union Amendment Bill [B11B-2018] (conducted by Parliament); and (3) the South African Law Reform Commission (SALRC) Project 144: Single Marriage Act (conducted by the SALRC).

On 3 June 2020 Cause for Justice (CFJ) wrote to the Minister of Home Affairs, requesting the Minister to request Parliament not to proceed with the Bill given the two other extensive marriage law and policy review process that are currently underway. Once the DHA has determined its mandate (which it will only be able to do after completion of its review process), it could possibly propose legislative reforms which render obsolete all the work Parliament has done and is now doing in respect of the Civil Union Amendment Bill. This would be an unfortunate waste of fiscal resources.

For more about CFJ see endnote xxiii below.

[viii] Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005).

[ix] Minister of Home Affairs v Fourie at paragraph [95].

[x] Minister of Home Affairs v Fourie at paragraph [159].

[xi] Civil Union Act 17 of 2006.

[xii] Minister of Home Affairs v Fourie at paragraph [159].

[xiii] Minister of Home Affairs v Fourie at paragraph [95].

[xiv] From a perusal and comparison of the Briefing Presentations prepared by the Parliamentary Legal Advisors for the Portfolio Committee on Home Affairs and the Select Committee on Security and Justice respectively, it is clear that the Parliamentary Legal Advisors have been misinterpreting and misapplying the relevant jurisprudence / constitutional issues since the Bill was before the National Assembly.

[xv] Chapter 2 of the Constitution.

[xvi] Section 6 of the Civil Union Act 17 of 2006 was the outcome of a complex and thorough weighing exercise during 2006, on the back of the Fourie-judgment.

[xvii] This is the second time we have had to point out misdirection in Briefing Presentations to Parliamentary Committees. Previously, Parliamentary Legal Services had to acknowledge their misdirection during the Select Committee process dealing with the Films and Publications Amendment Bill (FPAB) at the end of 2018. As a result of being made aware of the misdirection, the Select Committee on Communications and Public Enterprises acted to remedy the situation by applying their minds to the true issues before it and rejecting the relevant legislative proposals in the FPAB.

[xviii] The Portfolio Committee on Home Affairs is a committee of the National Assembly, the first House of Parliament.

[xix] Minister of Home Affairs v Fourie at paragraph [95].

[xx] Cause for Justice (CFJ) is a non-profit human rights and public interest organisation founded to advance constitutional justice in South Africa. All five of CFJ’s core values give it a particular interest in the Civil Union Amendment Bill and the protection and promotion of religious freedom in South Africa.

CFJ has been participating in the legislative process in respect of the Bill – both in the National Assembly (through written submissions to the Portfolio Committee on Home Affairs) and the NCOP (through written submissions to the Select Committee on Security and Justice) to advocate that this law, which infringes constitutional rights in an unreasonable and unjustifiable manner, should not be passed by Parliament.

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