Upholding Christ and the Constitution

By Mogoeng Mogoeng, Chief Justice of South Africa — Originally published in Mail & Guardian

Freedom of religion and belief is a constitutional right to be enjoyed by all who live in South Africa, including Christians. However, concerns were raised about my suitability for judicial office after I had openly declared an unwavering commitment to Christianity.

A judge’s lukewarmness or discreetness about his or her religion or beliefs does not necessarily boost confidence in the judiciary. Similarly, openness about one’s commitment to the faith adhered to poses no risk to public and international confidence in the judiciary.

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Remember, transparency and openness are the foundational values of our constitutional democracy. Leaders should thus be encouraged to be open rather than coy about what matters most to them.

So is there a possibility of abuse of office in order to advance the Christian faith at the expense of other religions and the enjoyment of constitutional rights that are in conflict with biblical principles?

South Africans need to be assured that the public profession and full enjoyment of freedom of religion, including Christianity, does not militate against a judge’s capacity to do justice to all.

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Christian principles
It is fitting as we celebrate the death and resurrection of Jesus Christ that we also examine the perception that a judge who loves Christ dearly is very likely to slavishly apply Christian principles in disregard for the Constitution in the event of conflict. Is this a true reflection of what Christ and his true followers stand for or a misconception?

To begin with, our Constitution requires that an oath of office or solemn affirmation be taken by a judge or magistrate prior to the assumption of office.

It is an undertaking to “uphold and protect the Constitution and the human rights entrenched in it and … administer justice to all persons alike without fear, favour or prejudice in accordance with the Constitution and the law”.

For a Christian, the oath is an irrevocable vow to the nation and to Christ to administer justice to all without favour or prejudice. Justice is to be carried out, not in accordance with the Bible, but in accordance with the Constitution and the law. It is not merely a matter of going through the motions or performing an inconsequential ritual. It is a covenant that has serious and unpleasant consequences for a devout Christian judge when breached.

Unadulterated Christianity rejects the manipulation and perversion of justice for any reason whatsoever. The Holy Bible instructs Christians to do righteousness in judgment. Oppression of the poor and strangers to the Christian faith as well as the perversion of judgment and justice are forbidden. Judges are commanded to pursue the truth, to operate in the fear of the Lord, to be impartial and not to take bribes.

Unrestrained love
Jesus fed, ministered healing to and died for all because he loved all people. And this is what he expects of true Christians irrespective of their vocation. Unrestrained love for all, including one’s enemies, is the all-encompassing commandment that Jesus Christ gave to his followers.

I obviously cannot love you and corrupt justice so as to deny you your rights just because they do not accord with Christian principles. That to me is a sign of hatred and belies the oath that was taken in the name of God.

Christianity properly practised can never be the reason for corrupting justice. It can only ensure that unadulterated justice based on the truth, the laws of the land and the Bill of Rights is dispensed to the parties in any given case.

The Bible enjoins Christians to obey the laws of the land and that includes Christian judges. The following cases make the point.

It runs against the very grain of Christianity to have children engage in cuddling, kissing and sexual intercourse. It thus came as no surprise when a body representing different religious groups essentially opposed attempts to decriminalise sexual activities between very young children in the Teddy Bear case (2013).

Bound by oath
But a proper reading of the Constitution and the law led to a conclusion that some of the sections that criminalise this unscriptural conduct be set aside. This decriminalised certain sexual activity among children and even suggested how it could be properly managed.

I aligned myself with this unbiblical conclusion and observation, not because I have since become a lukewarm Christian but because I am bound by the oath to administer justice according to the Constitution and the law.

Sex before marriage is a sin. A slavish adherence to biblical principles would, in the Welkom High School case (2013), have led me to the conclusion that there was nothing wrong with a policy in terms of which pregnant pupils, who are not married, ought to be suspended from school until they have delivered. But I aligned myself with the minority judgment that rejected such a pregnancy policy and upheld the pupils’ constitutional right to education.

In the Tsebe case (2012), a foreign national who had allegedly brutally murdered a woman had immigrated to South Africa illegally because he was at risk of being visited with the death penalty in the event of conviction in Botswana. I supported the judgment that protected his right to life, notwithstanding what he had allegedly done.

If undue weight was given to biblical principles at the expense of the Constitution, the Extradition Act and the relevant Southern African Development Community protocols then I would have disagreed with that decision for it in effect absolved the suspect from prosecution and punishment. The illegality of his entry into this country and the biblical requirement that he suffers the consequences of his alleged wrongdoing, if convicted, would have been the reason for the disagreement.

The duty of a Christian is to refrain from active involvement in any conduct that violates biblical principles. When the Constitution and the laws provide for rights that do not accord with the Bible, a Christian judge is duty-bound to uphold those rights and ensure that they are freely exercised.

Ultimate judge
The only judge qualified to pronounce an effective judgment on any unbiblical conduct is Jesus Christ.

A perception that judges who are devout Christians have the inherent propensity to do injustice to people who are not Christians or who dislike Christianity is seriously flawed.

Otherwise, by parity of reasoning, Christians, who constitute about 80% of our population, should be worried that judges whose religion or beliefs conflict with Christianity will necessarily be inclined to find against them in the furtherance of their own religions or philosophies. We would do well to jettison this notion.

My total submission to Jesus Christ is not the antithesis of blind justice. Christianity is about love, impartiality, justice and distaste for corruption.

It displeases God when any judge distorts the law in order to secure an unjust outcome against anyone. It is worse when the injustice is perpetrated in his name.