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Submission to the Constitutional Court
Unfair
discrimination against non-theists in the Preamble and the Oaths of
office
Submission
It is hereby submitted that the second and third Constitutional
Principles forbid discrimination on grounds of belief, including the
belief that
there is no God; that there are no valid grounds for holding that discrimination
against non-theists is a form of "fair"
discrimination; that the words "May God
protect our people" (etc.) in the Preamble and the exclusively theistic wording
of the Oaths
of Office in Schedule 2 involve discrimination against
non‑theistic South Africans; that these theistic expressions are therefore
in conflict with the relevant Constitutional Principles; and that they cannot be
certified as acceptable by the Constitutional Court
unless they are suitably
augmented by words which express the same sentiments in a non-theistic way, for
example, "May our country
be safe from harm", or are removed. The addition of a
similar set of words after the opening words of the National Anthem in various
languages would have the same effect there, and similarly will. the Oaths of
Office.
Supportive argument
1. The third Constitutional Principle states that "The
Constitution shall prohibit racial, gender and all other forms of
discrimination.... (Emphasis added.) The most reasonable interpretation of
these words is that discrimination on grounds of belief, including non-theistic
belief, is prohibited.
2. Reasons:
2.1 The first three
Constitutional Principles convey a basic in‑tention to respect human
dignity. This entails recognition
of belief because belief is an inherent part
of being human.
2.2 In a plural culture like ours, some people believe in
a Deity others do not. There being no agreed, objective way of adjudication
these differences, all must be free to believe as they choose. Therefore,
prohibiting discrimination on grounds of belief cannot
apply only to believers
in a Deity.
2.3 Confirmation of this contention comes from the second
Con‑stitutional Principle, stating that "Everyone shall enjoy all
universally accepted fundamental rights, freedoms and civil liberties." No
civilised country excludes non-theists from recognition
and
equality.
2.4 In addition, the Bill of Rights, based on these
Constitutional Principles, specifies in Articles 9 and IS that equality and
free‑dom
shall include not just religion but also belief. What is the
point of including both these words if not to convey that nonreligious
people,
and hence secular non-theists, must also be protected from
discrimination?
2.5 The remaining Constitutional Principles contain no
provision about belief which override the meaning of the ones just
considered.
3. I therefore respectfully submit that the Constitutional
Principles in question, especially the third, require a Constitution which
prohibits discrimination against believers of all kinds, theists and non-theists
alike.
4. The question now is whether the Preamble involves
discrimination) in connection with the words "May God protect our people" (etc.)
. '. submit that it does indeed discriminate unfairly against non‑theistic
South Africans in this respect, for the following
reason;
4. 1 The words
"May God protect our people" are an expression of theistic belief. Non-theists
hold that there is no such being.
Therefore, the theistic expressions in the
Preamble give our theists recognition which is not given to our non-theists.
That discrimination.
4.2 It might be argued that the above-mentioned
words do not really involve discrimination, because everybody allegedly has a
God,
namely whatever they regard as the ultimate reality, including the material
universe. If this view is upheld, then my submission
would be that those words
in fact discriminate against our theist!; by voiding their central symbol of
significant content. I myself
emphatically reject the suggestion that the word
"God" can mean any object of belief, so that a materialist atheist is also
really
a theist.
4.3 Nor is it valid to say that those theistic
expressions are not unfairly discriminatory. There are situations where
the idea of "fair" discrimination applies, for instance to minors in matters
calling
for experience and maturity; to harm-doers and to dis‑seminating
demonstrable and injurious falsehoods, for example libel.
But can non-theists
be deemed by any objective, fair and conclusive criteria to be like minors,
harm-doers or propagators of demonstrable
falsehoods? I submit on the basis of
long, personal acquaintance with non-theists both religious and secular, that it
is unfair
in the extreme to hold that they can.
4.4 Just as ethically
untenable, if one believes in equality and justice for all, is the view
that discrimination against our nontheists is acceptable because there are so
few of them. Lest there be any doubts
about the fallacy of this notion, the
case of Nazi Germany, where the Jewish people were also a small minority, will
surely end them.
4.5 It might be replied that the Preamble does not count
for much. I however regard it as a highly significant expression of the
basic
aspirations and values of the new South Africa. Therefore, even the inadvertent
creation of a new kind of second-class South
African in our Preamble is a
serious and tragic injustice.
5. The same arguments apply to the oaths of
Office. A non-theist could in future hold high office in South Africa. It is
unfair
in the extreme to force such a person to utter a belief he or she doe not
hold in the taking of a solemn oath.
6. If the augmented wordings I
proposed above are for technical reasons impossible, then it would still be
better for the theistic
expressions to be removed than for them to be retained
if the Con‑stitution is to comply with the prohibition against
discrimination
in the relevant Constitutional Principles.
Submitted
in his personal capacity by:
M.H. Prozesky
Professor of
Religious Studies
Private Bag X01
Scottsville 3209
22 May
1996.
(Approximately 950 words of text)
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
DEFENCE OF THE
CERTIFICATION OF THE NEW CONSTITUTION
- This
is a request for leave to defend the certification of the new Constitution by
the Constitutional Court in matters relating to
reproductive
rights.
- The
request is from the Reproductive Rights Alliance, an
alliance of 20 non-governmental organisations, including the
Planned Parenthood Association, National Progressive Health Care Network,
Women's Health Project, Centre
for Applied Legal Studies Gender Project, Lawyers
for Human Rights, Reproductive Health Research Unit and many other
organisations.
- The
Alliance is committed to creating. and promoting a liberalised, safe and legal
framework for reproductive health and well-being.
- The
Alliance is a broadly representative body, and as such has a
legitimate interest in defending, the Constitutional provisions relating to
reproductive rights and health.
- The
Alliance is aware that the reproductive rights contained in the new
Constitution will be challenged by various religious and other groupings, who
will request non-certification
on this basis. We do not know the extent of the
arguments, as we have not had access to these submissions.
- We
request leave to reply comprehensively to the arguments raised in other
submissions, and to this end request an extension until 10 June 1996
to reply.
M O'Sulfivan
838-4289
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