When rights compete, the individual's seem to trump others

Limited power: The freedom of religion does not mean being able to impose religious beliefs on others. (Hector Retamal/AFP)

Limited power: The freedom of religion does not mean being able to impose religious beliefs on others. (Hector Retamal/AFP)

What weight does the law give to freedom of religion, particularly when this right clashes with other rights guaranteed in the Constitution? In posing this question, this column is not seeking to address the arguments raised by certain religious groups against the legal recognition of same-sex marriages.

As Justice Anthony Kennedy of the United States Supreme Court wrote in a recent judgment upholding the legality of same-sex marriages, those whose religious beliefs are contrary to the recognition of same-sex marriages are entitled to voice their opinions, and if they are religious officials they can refuse to participate in these marriages, but they are not entitled to impose their belief system on others, whose autonomy is equally guaranteed by the Constitution.

The more difficult issue raised by the question posed above concerns the kind of dispute that was recently decided by the Namibian Supreme Court. A woman who is a Jehovah’s Witness underwent emergency surgery after difficulties in giving birth to her third child. She had written a note in which she stated that, on account of her belief system, she was not to be given a blood transfusion. Her brother, fearing that without a transfusion she would die, approached the court for an order appointing him as curator, essentially on the grounds that his sister was the mother of three small children whose interests needed protection and were constitutionally safeguarded.

  The order was granted ex parte, meaning that neither the patient nor her husband was heard by the court – a central argument raised by the applicant was that the patient was not compos mentis at this time.

Despite the court order, the transfusion was not given. Happily the patient recovered. She then appealed the order in the same court.

A few weeks ago, the court came down with its decision, which turned out to be split. Chief Justice Peter Shivute and Justice Kate O’Regan, the distinguished retired justice of South Africa’s Constitutional Court, upheld the appeal. Justice Sylvester Mainga dissented.

The majority judgment found that the right to bodily autonomy and freedom of religion demanded vindication in this case. In particular, the majority held that the right to bodily autonomy, being a subset of the right of an individual to choose, is an inalienable right. In this case, notwithstanding the claims of competing rights, this inalienable right was a trump.

Not so, said the minority. The right of three children to have a parent and hence a family life was so important that their rights had to be given greater weight than the mother’s right to choose not to be given a blood transfusion. Whereas the majority held that the doctrine of informed consent meant that a patient’s judgment of his or her own interests is the most important, the minority held that the informed consent doctrine might have to give way to other rights, such as, in this case, the rights of her children.

It may be that those who uphold religious rights above others will welcome the majority outcome, whereas others will consider that the court gave too much leverage to religious belief. Both sides may wish to pause.

The law that emerges from this case could provide support for equally controversial issues, but instead it could rule in favour of those who believe religion should play no role in the development of our constitutional jurisprudence.

Take the case of assisted suicide recently decided by the high court in Gauteng. If the autonomy of the patient is key, as held by the majority in this case, then that judgment must be correct. The right to choose to die should trump religious beliefs, including those of doctors who proclaim that palliative care is what must be given, no matter the wish of the patient.

The protection of choice that flows from the freedom of the individual supports those who argue that a mother should be entitled to an abortion and that her decision trumps all other claims. The approach adopted by Namibia’s chief justice is clearly consistent with the pro-choice decisions taken by a number of constitutional courts around the world.

The majority of the Namibian court’s approach is a fine lesson in being careful when faced with the difficult facts that can make bad law.

Though many may prefer the outcome reached by the minority judgment, on the principle of which right is afforded the greatest weight, the jurisprudence that would flow therefrom may well cause serious problems for those who believe our law must protect the right of a woman to choose and of a patient to decide to die with dignity.

Serjeant at the Bar


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