There has been, for some time, a debate in South Africa regarding the regulation of religious practitioners. The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities recommended to parliament that regulation be put in place. Parliament has, largely, ignored the Commission. The Commission has now approached the Constitutional Court seeking clarity on its powers. Grant Tungay looks at the issue. He argues that the Commission is failing to recognise the fundamental link between religious belief and practice.
Recently, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities has made headlines regarding its proposal to regulate religious practitioners. This is not a new proposal, as they issued a report to parliament in July last year in response to certain faith practices which resulted in harm to others. The Commission recommended that religious practitioners be registered under umbrella organisations that would be responsible for regulating these practitioners and presumably the faith practices in their communities. However, parliament seems to have ignored their recommendations, doubting the constitutionality of such measures. So, the Commission is approaching the Constitutional Court for a declaratory order that will bring clarity on the powers the Commission has to fulfil what it sees as its constitutional obligations.
First of all, in debating the regulation of religious ministers and faith practices in a constitutional democracy, it is necessary to be clear about one thing. Faith practices that result in the harm of individuals should not form part of any faith community. Furthermore, religious ministers that encourage or promote such practices should face criminal sanction. It is, of course, against the law for any person to intentionally or out of neglect cause injury to others and religious ministers should be no exception. It is therefore understandable that the Commission should want to prevent harm that can result from bad faith practices. That said, the regulation of religious ministers and religious practices by the government or a government-sanctioned body potentially violates the constitutional right of persons and communities to practice and express their faith freely in South Africa. Moreover, it fundamentally misunderstands the nature of religious belief and practice.
To illustrate how this can be true, we need to consider the intimate relation between religious belief and practice. They are two sides of the same coin. A person holding a religious belief rarely does this alone or in a vacuum. He or she will be a part of a faith community which will have a common set of beliefs. Moreover, this community will have a common set of faith practices to express these beliefs. This makes sense from the perspective that religious belief is not just about believing in the existence of the Divine, which belief can be held privately in one’s home. Religious belief stands out from other types of belief because of its innate social aspect. Most religious belief systems have a moral code to live by, and this moral code will be lived out not in isolation, but with others in community. Moreover, the faith practices adopted by religious communities allow such communities to give expression to a deeply held common identity. Therefore, one cannot artificially sever the link between religious belief and practice.
The Constitution gives protection to both religious belief and religious practice. Section 15 of the Constitution guarantees the freedom of a person to hold religious beliefs, along with the freedom of conscience, thought, belief and opinion. But to recognise the communal aspect of religious belief, the Constitution also protects the rights of religious, cultural and linguistic communities to practice religion, enjoy a common culture and to use a language. This respects the fact that religious belief, in its communal aspect, profoundly impacts our social identities and influences how we live our lives with others. It is true that this right to practice religious belief, housed in section 31, is not an absolute right but must be exercised by respecting all other rights in the Bill of Rights. This includes the right to physical integrity and dignity of persons. Therefore, bad religious practices cannot find a place in a constitutional democracy.
However, that doesn’t mean that the government or bodies extraneous to faith communities should have carte blanche to dictate how religious communities express their beliefs. It is fundamental the religious communities be allowed to express their communal identity without being told what that identity should look like. By seeking to regulate faith practices, the Commission is failing to recognise the fundamental link between religious belief and practice. We can never subscribe to the attitude that a person can be free to hold religious belief privately in their own home, but religious practice can be altered or regulated by government or by a person or persons who are not part of that religious community. This attitude does not respect the social or communal aspect of religious belief and potentially violates the right of a religious community to express a deeply held identity – an identity that cannot be lived in isolation or expressed privately. In addressing the problem of bad religious practices, we have to safeguard this vital link between religious belief and practice. Criminal sanction already prohibits injury to others, by intent or neglect, whereas regulation of religious practice strikes at the heart of what it means to hold religious beliefs and to have a communal religious identity.
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