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[1995] ZAConAsmRes 1542
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Constitution and Religions [1995] ZAConAsmRes 1542 (30 May 1995)
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DUTCH REFORMED CHURCH The NG Church holds that there are good Biblical principles in favour of fundamental rights. The Church has already decided as follows about fundamental rights: Even though the concept of "human rights" does not occur in the Bible, the case which it concerns is fully acknowledged in the Bible. It is true that only before God can the person have privileges, e.g. so that he can live, eat work, or marry. These privileges should be protected, and human rights is the way that these loaned privileges can be protected through God in a sinful world. Thus it places the intriguing question before the Church, namely, which are those issues which are close to the person, that is to say which are set by God as unquestionable conditions for the realisation of the destiny of the person. Firstly, relevant for the believer are the emphasised general Biblical demands of love, righteousness, law, mercifulness and truth which find their acknowledgement throughout the Holy Word, for example in the Ten Commandments, the prophetic preaching, the ethic of the Kingdom of Jesus, and the Apostles. Secondly, it is extremely important that the correct understanding of human rights is accountable to the Bible, because the prophecy of mankind is made in the image of God. It is God's will that the person, as His image, with his predetermined responsibilities, possibilities, tasks, callings and relationships, must be allowed the full realisation of his humanity and destiny. These possibilities and necessities for real humanness and destiny can be described as "human rights", with the understanding that it is not the person per se, outside of God, who has the right to anything. The rights of people are only rights because only God, even after the sin, can give and protect rights. The Bible does not provide a model for human rights. Yet, we can discern from the various relationships wherein people engage and the orders and callings received from God, the single necessary rights which hold together predetermined duties. It must be understood clearly that each human right exits by the will of God. As regards the person as a creation, he has the right to * a full human existence: of life, food, clothes and protection. As regards the practice of religion, he has the right to * freedom of religion, belief and prayer. As regards fellow human relationships, it involves among others the right * to end a marriage, * to a family and children, * to education and training, * to social and group identity, * to political inclusion, participation and business, * to free access to rights, to a just trial and human treatment in the legal process, * to the freedom of movement and speech. As regards culture and work activity, he has the right to * free association and participation in cultural and trade groupings, * the fruit of his labour, especially in the form of a decent repayment, * a viable socio-economic system. In this memorandum, attention is given to certain aspects of the articles in Chapter 3 which could be problematic for the Church. The Church supports the idea that the Constitutional Court must enforce these rights and where applicable the Supreme Court of South Africa. The NG Church is actually concerned that some of the fundamental rights which
are guaranteed in chapter 3, will be so broadly worded
that the Constitutional
Court will have too broad a discretion, to make its own interpretation. It is
naturally understandable that
where article 33(1) of the Constitution makes use
of terminology such as reasonable and justifiable, that the Constitutional Court
will still have to make decisions based on what they believe to be the legal
conviction of the community. The Church is also aware
of the fact that it can
make proposals regarding the competency which article 794)(b) gives to
interested parties. The NG Church supports the principle that every person has the right to equality before the law and has the right to equal protection through the law. That goes together with, according to article 8(2), the guarantee that no discrimination will be practised against persons on the grounds of certain issues, including religion, conscience and belief. Even though the Church also supports this principle, it cannot but, as in the past, disapprove of the idea of a totally secular state. The Church is called upon to inform legislators that they must acknowledge the fact that the vast majority of South Africans are Christians. Therefore, the Constitution has to acknowledge the Trinity. The NG Church
thus pleads the cognisance of the omnipotence and leadership
of the Almighty,
Triune-God without Whom no state can govern and no nation can
exist. Once again the NG Church supports the principles which are explained here. The fact that there is acknowledgement of religious practice in state supported institutions is also supported and the Church also expects that this principle will be supported in the new Constitution. The European Court for Human Rights, in 1994, in Otto-Priminger Institute v
Austria, ruled that religious groups definitely have the
right to be supported
against publications and films which go against the grain of the religious
believes or feelings of a portion
of the population. Even though the Church is
of the opinion that it is entitled to protection of its opinions and feelings,
there
is concern that the Constitutional Court will give no protection to its
religious believes or feelings if that difference of opinion
occurs in a book or
film. There is very little doubt, in the Church, that if there should be any
action against religious practice,
that there will be effective legislation to
counteract it. The concern is rather that there will be no recognition outside
of such
acknowledgement. The NG Church has taken cognisance of the Film and
Publications Committee's viewpoint that the furtherance of religious
practice
has to form a forum and the Church supports this idea. The question is whether
a broader protection for religious believes
or feelings should not be included
in article 14, itself. The NG Church supports the right to freedom of speech and expression, but is
worried that in article 15 there is no comprehensive
protection for a healthy
moral life. Protection for children, in this instance, is specially urgent for
the future. The Church
has taken cognisance of article 30 of the Constitution
which stipulates that every child has the right to security, basic food, health
and municipal services and also not to be exposed to neglect or abuse. The
Church is of the opinion that article 30 should be expanded
to include the
provision that no destructive material via films or publications will be exposed
to children. Even if there is a
system of age restrictions, the State has to
enforce such rules positively. Hereby, the Church does not deny its own duty in
this
regard, but is asking for a greater supportive role of the State in this
matter. The NG Church supports in principle the right of everyone to life. The Church is of the opinion that the word "person" must include the unborn child and that the Constitution must make this explicit. If such a proposal is accepted, according to the Church it will not be necessary to rewrite article 13's right to privacy. The Church is aware that the American law which refers to the right of the choice of abortion, is based on the right to privacy. If article 9 is expanded to include the unborn person, there will at last be, according to the Church, a broader protection. The Church wants to refer the constitutional assembly to the fact that the Dutch Constitutional Court, in 1993, ruled that freedom to choose abortion is illegal (even though, according to the court, it is not punishable). The Church strongly disapproves of the freedom to choose abortion and sees it as the duty of the Constitutional Court to include such protection in article 9.
The NG Church has decided as follows about the death sentence: 6.1 6.1 On Christian ethical grounds, the right of an authority to institute the death sentence in certain instances cannot be denied. In the light of the value of a person and his life before God, it can only be ruled in extreme cases. 6.2 The decision about the passing of a death sentence and the decision about
the nature of the crime whereby the death sentence may
be passed, is the task of
the government. The death sentence lies in the granting of and is a specific
form of the sovereign powers
given to the state. It is thus the task of the
state to decide for itself a plausible form of punishment, in the running of its
duties. Since the government does operate in a cultural vacuum, the
meaningfulness of various forms of punishment at a certain time
and place must
be weighed against each other. 6.3 With the stipulation of a fitting punishment, Christian witness with regard to the value of life must be taken into account. 6.4 The above means concretely that the death sentence must never be compulsory, but must be one of the punishment possibilities when guilt of misdemeanour is confirmed. The NG Church is of the opinion that the power of decision with regards to the death sentence should not be left in the hands of the Constitutional Court only. The Parliament may not defer its responsibility, in this regard, to the Constitutional Court. The parliament represents the nation and therefore, the fundamental rights should be constituted in such a manner that if the Constitutional Court finds that the death sentence goes against the Constitution, the Parliament, when circumstances are justified, must have the power to reinstate the death sentence. The Church is aware of article 34 which gives certain competencies to the State in matters of urgency and certain rights which may be over-ruled, but also takes cognisance of the fact that article 9 which guarantees the right to life, may not be over-ruled. If the Constitutional Court considers whether the death sentence is moral or
not or justifiable in an open democratic society or that
it argues unreasonably
against the right to life, the Court will be going too far, according to the
Church. The Court must, according
to the Church, only concern itself with the
viability of existing legislation. The Court is not qualified to express itself
more
broadly in this instance. That is why the Church wishes that the
Constitutional Assembly, in rewriting the Constitution, must ensure
that
Parliament, under the circumstances, must have such authority. The Parliament
cannot distance itself from its voters through
a Constitutional Assembly which
freely decided what is reasonable or not. The NG Church is of the opinion that the integrity of the body as valuable
must be a fundamental right. People should be protected
against physical
assault. The NG Church has noted, with support, article 32 of the Transitional Constitution which stipulates that every person has the right, where possible, to teaching facilities based on culture, language or religion, with the understanding that there will be no discrimination based on race. The Church strongly urges that this proposal must be included in the new Constitution. The Church, however, is concerned about the clause "where possible" and proposes that the fundamental right must be constituted without this clause. Article 33, in any case, points out restrictions to this fundamental and it is not necessary to add the word "where possible".
Concerning criminal law, the Church supports the broad principles expressed
in article 25 of the constitution. The Church, however,
proposes that illegally
obtained evidence must definitely not be allowed in any court
case. The NG Church has decided as follows about euthanasia: 10.1 The Synod decided that the so-called mercy death (euthanasia), that is to say the predetermined ending of a life which is no longer considered meaningful or valuable, in the light of Christian ethical principles and norms of the Bible, must be prohibited. 10.2 The Synod judges that when a final and irreversible death process
clearly and without doubt sets in, without the aid of medical
help (the active
mercy killing) and cannot be prevented with human or surgical means, the
believer may withdraw from senseless specialised
procedures and may allow the
death process to take route, while, in each case, loving nursing and care is
maintained to the end.
In these cases, it involves the last phase of illness
where medical advice is valuable. 10.3 The Synod also refers to the case where a person in a certain stage of life can decide whether life is worthless and thus has the power to end it or have it ended, or refuses medical assistance and as such decides to end life. 10.4 The Synod expresses its disapproval against individuals who, from time
to time, speak in favour of euthanasia. In such a way,
the word of the Bible
which values life highly, is seriously undermined. The Church has spoken against any form of euthanasia. The Church calls upon
the Constitutional Court to make a clear proposal, in
the fundamental rights
section of the new constitution, that active euthanasia is illegal. The "right
to life" which article 9 guarantees,
must not include the right to decide on
active euthanasia. The NG Church supports the principle that the fundamental freedom proposals, similar to that of 33(1) of the present Constitution, must be stipulated. |