Should judges lose their religion when they are on the bench?

Judges are people of flesh and blood who breathe, have opinions, have worldviews, and beliefs. Citizens of the country, like you and me. And when a judge puts on her gown, she brings her history with her. But these are rarely the foundations for an agenda.

When Chief Justice Mogoeng made certain remarks in a Jerusalem Post webinar at the end of June 2020, it caused a great stir. He appeared to be criticising the government’s policy toward Israel, mentioning that he was obligated to love Israel and pray for Israel as a Christian.

Judge Mogoeng has been criticised many times over his statements about faith. He is also an ordained minister who serves in various church structures. Every now and then, the question is asked – to what extent is and should the church and the judiciary be separated? Are there hazard lights flashing?

The recent statements about Israel are a messy example to form an opinion around. There is a difference between biblical Israel and Israel as a political state. When it comes to taking a stand on, for example, the occupation of Palestinian territories, it is a political stand. And policy is the place of the executive.

There are also issues of human rights abuses and international law and an intertwined swamp of political conflict where dividing lines are not clear. It quickly raises the question of whether comments about Israel do not infringe on the separation of powers. Does public love mean recognition for Israel in the context of religion as a choice against Palestine in terms of politics?

I do not want to go into the merits of what the Chief Justice said. I also have no desire to comment on the Chief Justice as a human being. My interest lies in the larger question here – what principles guides or should guide a judge when he or she makes remarks in public, as far as religion is concerned. May a judge be so openly religious?

That judges as citizens may participate in the public discourse is generally accepted. Judges may make public remarks. Their role in democracy is not limited to the judiciary. But, and there is always a but, unlike ordinary citizens, they are bound by the judicial office and code of conduct, limiting them in what they may say.

Section 11 (2) of the Judicial Code of Conduct provides that a judge may participate in public debates on issues relating to legal subjects, the judiciary, the administration of justice. These views must be taken in a way that does not undermine the status and integrity of the judiciary.

Thus, judges may speak in public, limited to that which relates to legal subjects, the judiciary and the administration of justice. Article 12 of the Code of Conduct prohibits judges from belonging to a political party and participate in activities that constitute discrimination in terms of the Constitution.

Opinions, yes. Opinions on political matters extremely cautious. Opinions that support some political views, no.

It remains a difficult principle, and the lines between the three areas are not always so clear. In a webinar presented by the University of Johannesburg last year, Judge Cameron was asked about this. He spoke of his outspokenness at the time against the government’s policy on antiretroviral drugs for HIV-positive people. He says he could not keep quiet about it – the epidemic of silence – and felt precisely because he had a voice that he would use it to promote people’s human rights. The question, therefore, seems to be: is it necessary to speak out? And when you speak out, do you promote human rights?

The line is fine one because human rights issues are often political issues.

Of course, the problem also comes when a judge takes strong positions, for example, on faith, or the judge can still be impartial about cases that are decided in court. There is currently a case before the Constitutional Court that deals with whether certain statements made against Jews amount to hate speech. The Jewish Board of Deputies is a party to the case. Therefore, the question will be whether statements declaring love for Israel creates the impression that he cannot be impartial in the matter?

The law, of course, has ways to ensure that where it is suspected that a presiding officer is not impartial, the officer must withdraw from the case. There are also legal principles that cannot be deviated from as well as facts before the court that limit the judges.

And if a judge deviates from the code, as mentioned earlier, it can lead to the removal of the judge from the court. But the code says nothing about faith.

This in no way means that a judge may not live out his or her faith. As a private matter, it is not about whether the judge is a believer or not, but rather about whether the judge, when he or she hears a case, can put up personal beliefs aside and give expression to the principles and values of the Constitution and the laws of the land. We are a secular society, and judges take an oath to hold an office that requires ethical leadership based on the principles of human rights, human dignity and respect for the institutions on which the Constitution is founded.

The fact that the Bible may not trump the Constitution in the specific case does not mean that a judge cannot take a conservative stand within the bounds of legal principles. It simply means that the judge cannot put his or her interpretation of the Bible above the Constitution.

Last year, a court case in the German constitutional court had to decide on a law in Hesse and Bavaria that banned the wearing any “symbols of faith” by lawyers working for the state in court. The case was taken to court by a Muslim woman who argued that the fact that she was not allowed to wear a headscarf infringed on her right to freedom of religion. The court found that it is within the legislature’s powers to regulate these cases. The requirement of judicial impartiality justifies the restriction on freedom of religion. In carrying out their duties as officials, they are bound by the values laid down in the Constitution.

The case was controversial, and it reminds one of the role that faith (and values of a particular religion) plays in all the arms of the state – including the judiciary. And what kind of mechanisms there should be to ensure that religious doctrine is not used as a source of interpreting the Constitution (and laws in general).