Salus populi suprema lex: Freedom of religion in times of crisis

Abstract

The role of the state in the religious life of citizens has been a constant issue since the emergence of the modern state. This is inevitable because, in the hands of the state, the law may be an instrument to limit religious freedom, causing believers to be confronted with the choice of either acting lawfully or obeying their conscience. No fundamental right is absolute, but at issue is whether state authorities should, when faced with a crisis, utilise their power to impose more restrictions than would normally be the case on citizens' religious rights. In this regard, the South African government's apparent disregard for citizens' rights during the pandemic crisis of 2020, caused widespread concern. Exactly what "religious freedom" entails, is not evident. Section 15(1) of the Constitution provides a particularly dense, and therefore complex, characterisation: "Everyone has the right to freedom of conscience, religion, thought, belief and opinion." "Religion" may, on the one hand, be understood in a broad sense (including mysticism and mental phenomena such as some forms of Confucianism, Taoism and Buddhism, and non-devotional ontological views such as atheism and agnosticism); and, on the other, be regarded more narrowly, indicating attitudes or systems devoted to a single or multiple deities. Furthermore, "belief" may signify more than merely a view or attitude, but also refer to religious conviction. Religious freedom may be perceived as the first human right that received legal recognition as a fundamental right, historically dating back at least to the time of the Peace Treaty of Westphalia of 1648. The notions of a "state of emergency" and the related instrument of "martial law" have deep and controversial roots in South African history. This explains the safeguards built into section 37 of the Constitution, which requires parliamentary oversight by the executive of the declaration and conduct of a state of emergency. Theoretically, the phrase salus reipublicae/populi suprema lex has been associated with circumstances purportedly providing justification for the state to act in self-defence in times of war and civil unrest. However, during the pandemic crisis of 2020, the government elected not to declare a state of emergency, as was the case in many other countries, but instead to muster extraordinary emergency powers based on an ordinary parliamentary statute, the Disaster Management Act 57 of 2002. However, the structures provided for in this Act were selectively used, and decision making was entrusted to a nebulous body with a rather revolutionary title, namely the "National Coronavirus Command Council", established without a clear legal framework. This body largely overlapped in structure and function with the cabinet and functioned in secrecy. Ominously, the president publicly associated the measures taken to deal with the pandemic and its economic consequences with "war". The manner in which religious freedom may be limited constitutionally determines the assessment of the lawfulness of the effects of the disaster management arrangements on religious rights. Section 15(2) of the Constitution, which deals with the conditions pertaining to religious observances in state and state-aided institutions could not be realised, because the "lockdown" regulations prohibited religious gatherings in "recognized places of worship" such as churches, synagogues, mosques and temples. These regulations and the concomitant actions were, in various respects, extraordinary and the lawfulness thereof, or of some aspects thereof, were consequently challenged from different perspectives, with interesting implications. In this regard, especially the "limitations clause" (section 36 of the Constitution) has to be noted. In addition, the dictum of the Constitutional Court in 2000 in the Christian Education case became particularly apposite: "Though there might be special problems attendant on undertaking the limitations analysis in respect of religious practices, the standard to be applied is the nuanced and contextual one required by s 36 and not the rigid one of strict scrutiny." The "interpretation clause" of the Constitution (section 39), which requires the promotion of the values that underlie an open and democratic society based on human dignity, equality and freedom, might also have come into play, but its vagueness has thus far prevented the courts to provide much guidance for the application of this provision. When the prohibition of religious gatherings was challenged before the Gauteng High Court (the Mohamed case), it was found to have been done lawfully in the name of the greater good, and that "[e]very citizen of this country needs to play his/her part in stemming the tide of what can only be regarded as an insidious and relentless pandemic". Seen against the background of the inherent incompatibility of insistence on the primacy of the law with regard to prioritising religious convictions, especially given the religious plurality prevalent in South African society, it is submitted that some general principles apply.