Rights and religion; bias and beliefs: can a judge speak God?

Abstract

The Constitution of the Republic of South Africa, 1996 guarantees everyone the right to freedom of expression and religion. The Constitution also places the power to resolve disputes impartially in the judiciary. The requirement that judges be impartial may, in some circumstances, mean that a judge’s beliefs or convictions may appear to be in conflict with one or more constitutional principles. This article analyses the relationship and apparent tension between a judge’s duty to apply the law in a fair and impartial manner and his/her own personal right to freedom of religion. More specifically, it examines the extent to which a judge may allow his/her religious beliefs to influence his judgment. It argues that judges, like all other citizens, do not surrender their rights to freedom of expression and religion when they are appointed to the bench, and that a judge who publicly expresses his religious beliefs should not be, ipso facto, without more ado, criticised for it.