‘The chief justice’s comments on Israel: Why we should all be worried about the current attack on him’

By Freedom of Religion South Africa (FOR SA)

Pressure is mounting against South Africa’s Chief Justice Mogoeng Mogoeng (“the CJ”), an outspoken Christian, following his “pro-Israel” comments made during a recent webinar.

According to media reports, the ANC National Executive Committee (NEC) has charged President Cyril Ramaphosa to meet with the CJ, while the EFF has called on the CJ to “repent” and “retract” his position. Various groups have called for the CJ to step down from his position if he stands by his statements, and another group (Africa4Palestine) has now lodged a complaint with the Judicial Service Commission (JSC) for alleged breach of the Code of Judicial Conduct. (In this regard, it is interesting to note the South African Council of Churches’ (SACC’s) support to Africa4Palestine, as evidenced by a large billboard with the words “Churches Against Israeli Annexation of Palestinian Land” displayed on one of our national roads).

In the meanwhile, the CJ remains resolute in his position. During a virtual prayer meeting on Friday 3^rd July, the CJ stated that “even if 50 million people can march every day for the next 10 years, for me to retract and apologise for what I said – I will not do it”.

As a precursor, it goes without saying that the Israeli-Palestinian conflict is highly controversial and complex, with both sides feeling equally strong about their viewpoints. The purpose of this article is not to choose sides in any way, and in particular does not seek to defend – from a spiritual or political point of view – what the CJ said. Instead, this article is confined to a legal perspective on whether the CJ was within his legal rights to make the statements that he did – as contested, or even offensive, as they may be to some.

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What did the CJ actually say?
The furore around the CJ follows a virtual meeting hosted by The Jerusalem Post, and also featuring South Africa’s Chief Rabbi Warren Goldstein. While the focus of the meeting was about racism and “confronting apartheid of the heart”, drawing lessons specifically from South Africa’s own history, the conversation drifted to the topic of Israel. (The full video of the meeting can be viewed here).

It was in this context that the CJ made certain comments regarding Israel, sharing his own views on the Israeli-Palestinian situation. He prefaced his comments by stating that:

“… the policy direction taken by my country, South Africa, is binding upon me. It is as binding upon me as any other law would bind on me. So, whatever I have to say, should not be misunderstood as an attempt to say the policy direction taken by my country in terms of their constitutional responsibilities, is not binding on me. But, just as a citizen – any citizen is entitled to criticise the Constitution of South Africa, the laws and policies of South Africa, or even suggest that changes are necessary – and that’s where I come from.”

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The CJ then continued by saying:

“The first verse I give is in Psalms 122 verse 6 which says: ‘Pray for the peace of Jerusalem, they shall prosper that love thee.’ Also, Genesis 12 verses 1 to 3 says to me as a Christian, if I curse Abraham and Israel, the Almighty God will curse me too. So, I am under an obligation as a Christian to love Israel, to pray for the peace of Jerusalem, which actually means the peace of Israel. I cannot, as a Christian, do anything other than love and pray for Israel because I know hatred for Israel by me and my nation can only attract unprecedented curses upon our nation.

So, what do I think should happen? I think as a citizen of this great country, we are denying ourselves a wonderful opportunity of being game-changers in the Israeli–Palestinian situation. We know what it means to be at loggerheads, to be a nation at war with itself. And therefore the forgiveness that was demonstrated, the understanding, the big heart that was displayed by President Nelson Mandela, and we the people of South Africa following his …[inaudible]…, is an aspect that we must use around the world to bring about peace where there is no peace, to mediate effectively based on our own experience.”

The constitutional right to freedom of religion, and speech
The starting point is, of course, the Bill of Rights contained in the South African Constitution, which guarantees certain fundamental human rights to human beings simply because they are human beings, and irrespective of their occupation or position in society.

In this regard and in particular, section 15(1) of the Constitution says that “everyone has the right to freedom of conscience, religion, thought, belief and opinion”. This right to religious freedom includes, as our Constitutional Court has on various occasions stated already, the right not only to believe in one’s heart whatever one chooses to believe (or not to believe), but the right also to say what one believes and to live out one’s beliefs – freely, and without fear of persecution or punishment.

Because the right to religious freedom belongs to “everyone”, it also belongs to Chief Justice Mogoeng Mogoeng. The mere fact that he is the CJ does not mean that he no longer has a legal right to freely express his religious or political beliefs, thoughts and opinions.

In similar vein, section 16(1) of the Constitution says that “everyone has the right to freedom of expression”. In terms of section 16(2) however, this right does not extend to “propaganda for war”, “incitement to imminent violence”, or “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes an incitement to cause harm” (i.e. hate speech). In this regard, it is important to point out that our law does not punish speech merely because someone does not like it, disagrees with it, or even finds it deeply offensive.

In the current instance, it is clear that the CJ’s statements – again, as contested or offensive as they may be to some – did not amount to any of the legal prohibitions specifically contained in section 16(2).  Therefore, at least at first sight, his statements should be regarded as legally permitted, or free speech.

It is true however that no fundamental right is absolute, and can be limited by a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account the factors mentioned in s 36 of the Constitution (“the limitation clause”).

In this instance, there is no law of general application that could be said to limit the CJ’s rights to freedom of religion, and/or speech. He was therefore fully within his constitutional rights to make the statements that he did.

The Code of Judicial Conduct
While the CJ – as a human being – has fundamental rights, the CJ – in his position as CJ – also has certain responsibilities, including how he should ethically and professionally conduct himself as a judge. These responsibilities or expectations are set out in the Code of Judicial Conduct, which itself is subject to the Constitution and has to be interpreted consistently with the Constitution (including the Bill of Rights).

The Code of Judicial Conduct includes matters such as:

• Article 4: Judicial independence, including that judges must uphold the independence and integrity of the judiciary and the authority of the courts.

• Article 5: To act honourably, including that judges must in their professional and private life act in a manner that enhances public trust in, or respect for, the judiciary and the judicial system.

• Article 7: Equality, including that judges must personally avoid manifest discrimination.

• Article 11: Restraint, which essentially bars judges from publicly commenting on cases that are before them. Article 11(2) specifically states that “a judge may participate in a public debate on matters pertaining to legal subjects, the judiciary, or the administration of justice, but does not express views in a manner in which may undermine the standing and integrity of the judiciary”.

• Article 12: Association, including that judges must not become involved in political controversy unless it is necessary for the discharge of judicial office.

• Article 13: Recusal, including that a judge must recuse him-/herself from a case if there is a real or reasonably perceived conflict of interest, or reasonable suspicion of bias based upon objective facts.

As already mentioned above, the Judicial Services Commission (JSC) has now received a complaint against the CJ for alleged breach of various provisions of the Code. According to media reports, the complaint will now be referred to the acting chairperson of the Judicial Conduct Committee, Justice Zondo, for consideration.

Some thoughts and perspectives
Having read numerous articles on the issue – from both sides – and having set out what I have above, the question of the appropriateness or otherwise of the CJ’s statements, is clearly not as straightforward as many would want to make it out. While the CJ may have acted within his constitutional rights as a human being and citizen of this country in saying what he did; whether it was appropriate and/or wise for someone in his position to have made those comments, is a different question. In this regard, a few thoughts:

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• While the CJ specifically pointed out during the interview that he was speaking as a “citizen” (which he is fully entitled to do), the question begs whether one can really – in his circumstances – separate his official capacity from his personal capacity. It would be akin to President Ramaphosa, or President Trump saying that their comments should only be taken in their personal capacity – not as presidents of the countries they lead. The fact remains that the CJ was invited onto the interview, not because he is an ordinary “citizen”, but because he is the CJ.

• That said, when regard is had to what the CJ actually said, perhaps it is a case of some groups “hearing what they want to hear”. The CJ made it clear, even though he does not necessarily agree with Government’s policy, that he considers himself bound by it. However, on the Israeli-Palestinian conflict specifically, the CJ said that he prays for “peace in Israel” – what is really so offensive about that? Is peace in their country not what parties on either side of the conflict should want? Finally, on a plain reading of the CJ’s comments, it is clear that – contrary to what is being led on – he did not actually pick sides. Quite the contrary, his plea was for the South African government to (also) not pick sides, but rather – based on our own painful lessons learnt – to get involved as a mediator with a view to bringing about peace in the situation.

• From this viewpoint, the CJ did not stray outside his professional and ethical obligations in terms of the Code of Judicial Conduct. Instead of picking sides in a politically controversial issue (which evidently he did not do), he expressed a view on how the matter – from a legal point of view – should be approached i.e. with an open mind, hearing the other side, and with a view to resolving matters amicably. From this viewpoint, the CJ’s conduct arguably falls within any “restraint” incorporated in the Code and, although potentially contentious, was not improper.

• Against this background, one cannot help but wonder what really lies at the bottom of all this? Is it because of what the CJ actually said, or is it because the CJ is an outspoken Christian – and therefore, presumably (and to put it in the simplest of terms), for Israel and against Palestine? Put differently, if another person in the CJ’s position had made statements that appeared to be “pro-Palestine”, would the same objectors be as quick to point out that the CJ is “biased”, has acted “improperly”, should not be getting involved in political controversies and apply “restraint”?

• In this regard, there appears to be a double standard at play. As other articles have pointed out, this is not the first time the CJ has made controversial statements off the bench. The difference is that, in those instances, the CJ’s statements favoured the ANC’s position on those particular points. As such, no one objected or accused the CJ of straying outside his lane. What is more, Justice Mogoeng is also not the first judge to comment on matters of public policy. As pointed out in another article, “one example is a fellow Constitutional Court judge, Edwin Cameron, who has attacked Israel on multiple occasions on numerous public platforms. He even joined a very public visit to Israel alongside a group of anti-Israel activists with the clear purpose of vilifying Israel, meeting exclusively with Palestinian and anti-Israel activists without any interest in hearing the other side.”

• That said, what does complicate things, is the fact that judgment is currently pending before the Constitutional Court (in the case of SAHRC on behalf of the SA Jewish Board of Deputies v Bongani Masuku), on the question of whether or not certain antisemitic statements made by a leader of Cosatu amounted to hate speech? The difficulty is that, in our law, if there is any reasonable suspicion that a judge may be biased in a matter and may therefore not approach the matter with an open and objective mind, an application for his/her recusal from the matter can be brought. All that is required, is a reasonable suspicion based on the objective facts – rather than actual proof of bias. As a result, judges have to be very careful, and wise in making statements (in the media or public domain) on controversial political or religious matters that may well come before them – lest they are in the position where they may have to recuse themselves for already having expressed a view on the matter, or an application for refusal is brought against them.

• On the other hand, it needs to be said that believing that judges are completely free from any political, religious or ideological bias, and that they do not bring any of their personal views into a matter, is akin to believing in the tooth fairy. Judges are human beings and, like the rest of us, they have certain lenses through which they view the world. They have views – often, very strong views – on what the world is like, what a better world should be like, and what should be done about it. Some (typically, more liberal) judges have no problem bringing their personal ideological and moral convictions to the table and allowing those views to influence and shape their (often, liberally progressive) judgments. Unfortunately, quite the opposite seems to apply in the case of other (typically, more conservative) judges. Experience has shown that all too often, and for fear of being seen as “biased”, judges who are outspoken believers over-compensate for this perceived bias in matters of a religious nature that come before them. This either takes the form of taking a complete back seat in the matter being argued before them, or even worse, in the name of “constitutionalism” making a judgment that is irreconcilable with the judge’s own faith and which puts his/her fellow believers in the impossible position of choosing to obey either God, or the law. As such, we should pray that our judges will be as bold and courageous for their faith on the bench, as they are off the bench.

• The reality is (as FOR SA has argued in cases before the Constitutional Court) that the very same Constitution which is “the supreme law of the land” and which our judges have sworn to uphold, entrenches the right to freedom of religion, belief and opinion as a fundamental human right. This right belongs to the CJ and allows him to – as an expression of his religious convictions and beliefs – give the President a Bible during the Presidential inauguration and also to share his personal religious beliefs and convictions regarding Israel on a webinar. This right belongs equally to each and every other believer, and should allow them to share and live out their religious beliefs and convictions freely and without fear of persecution or punishment by the State – even if others (including the judges themselves) do not agree with, do not like, or find those beliefs offensive. This is what it means to live in a country “united in its diversity” (as the Preamble of the Constitution states).

Conclusion
In conclusion, whether or not we agree with the CJ’s personal beliefs or statements made during the recent webinar, we should all be worried about the current attack on him. It is clear, from a political point of view, that the issue is not so much whether or not the CJ acted improperly by commenting on a political controversial issue, as it is a blatant attempt to (at the highest level) silence speech which is perceived to be “politically incorrect”. And if the “thought police” will not hesitate to go after the CJ, they will certainly not hesitate to go after “ordinary citizens” like you and me.

The fundamental rights to freedom of religion, belief and opinion (section 15), and also to freely give expression thereto (section 16), are vital to any constitutional democracy. When these are eroded or taken away, democracy is no longer worth the name. For this reason, it is puzzling that organisations such as the Council for the Advancement of the SA Constitution (CASAC), who according to their founding statement “seeks to advance the SA Constitution as the platform for democratic politics and the transformation of society” and “embraces the contestation of ideas”, has sided with the CJ’s critics on this issue. It seems that, in South Africa, some ideas are more equal than others after all.