DON’T try quoting the Bible’s most virulent anti-homosexual fulminations in Canada to justify an anti-gay attack. The highest court in that country has recently upheld a human rights commission decision declaring such rants amount to hate speech.
The man responsible for publishing the flyers, with their unbridled biblical condemnation of homosexuality, commented after judgment was delivered that his right to freedom of religion had been infringed. He also claimed he’d lost the right to ‘tell the truth’.
In the view of the supreme court, however, if you allow hate speech on the grounds that it is a ‘sincerely held belief’ this would ‘gut’ the effectiveness of the hate speech prohibition. And vulnerable groups targeted by doctrinaire religious fundamentalists would say the court has upheld their right to dignity, to mention only one.
It’s a tough call for courts. But the determination of judges to ensure that even religious tracts, organisations and individuals respect human rights is not foreign to our own region.
Lesotho’s highest court for example, has just handed down an intriguing decision in the case of Rev Father Joseph Sephamola and others against Brother Methodius Ponya.
Last December Ponya finished his sixth year studying for the Roman Catholic priesthood as a member of the Oblates of Mary Immaculate. In January he was due to renew his annual vows and then go on to his final year of religious study. But when he applied to take his vows Sephamola, his superior, told him his request had been turned down.
When Ponya went to see Sephamola he discovered a written report had been compiled by his religious superiors relating to various allegations of misconduct. On the basis of the report’s recommendations Sephamola had decided not to re-admit him.
Ponya didn’t know about the report or its recommendations before this discussion and he asked the high court to intervene, saying that the decision was irregular because he had not been given an opportunity to be heard. The court agreed to set aside Sephamola’s decision, and Ponya’s religious superiors then appealed.
Sephamola and his colleagues said that when various allegations of misconduct arose against Ponya he was questioned about them by members of the Oblates. But apart from that, there was no provision of canon law, as incorporated into the rules of the Oblates, entitling Ponya to be heard before the report was compiled and before the decision was taken to exclude him from further vows.
In short, said the three judges, the argument of Sephamola and his colleagues was that Ponya’s ‘continuing membership of the Oblates was governed by contractual principles which made no provision for what natural justice might require.’
But the judges said they were bound by a different school of thought. They referred to a previous court decision holding that when parties to an agreement created a domestic tribunal for a voluntary association they might, under some conditions, exclude the courts’ jurisdiction. But they could not do so in all circumstances. In particular, they couldn’t prevent the courts from getting involved when the disputed act was ‘against the principles of natural justice’.
Analysing the impact of the decision on Ponya they said he had completed six years of training and had just one more year to go. If he were to be excluded from his chosen profession at this point it would mean he had wasted all the previous years of training. In addition the allegations against him were serious and related to claims of ‘dishonesty and moral represensibility’. Given the grave consequences for Ponya of a decision to exclude him, said the judges, natural justice required that he be given a hearing before the accusations were accepted and before any action was taken on the basis of the report.
The Oblate authorities, who had asked for costs against Ponya, were ordered to pay the costs of the appeal.
There’s a weird irony in the situation: the secular courts teaching the religious authorities how to implement ‘natural justice’. You can’t help thinking about how you would like to be treated by the ‘ultimate judge’ – if such a divine judge indeed exists. Surely there’d be a decent hearing when you reach the pearly gates, one in which you have a chance to reflect on and explain your actions, even if you were thereafter consigned to the everlasting bonfire?
The church often criticises the secular authorities for ignoring human rights obligations; sobering to see religious leaders reminded of the same obligations. And reassuring to see the judges of a secular court up to the task.