OP-ED: Self-regulation is not one thing
Self-regulation is not one thing
Everyone says they support self-regulation for the church. The problem is that this word is being used to describe several very different arrangements, and the difference between them is exactly what the debate over the CRL's Section 22 process turns on.
By Liesl Pretorius, Head of Legal, Freedom of Religion South Africa (FOR SA)
President Ramaphosa's recent remarks in support of self-regulation for the church restated a principle FOR SA has consistently argued for: Churches, not the State, should hold themselves and one another accountable. On that principle, there is little disagreement. The CRL Rights Commission says it supports self-regulation. Its Section 22 Committee says the same. So, for that matter, do FOR SA and the Christian sector. The difficulty is that one word is being used to describe several different institutional arrangements, and that confusion lies at the heart of what is actually in dispute.
Self-regulation is not a slogan. It describes an institutional design, and any given arrangement can be tested against a short set of questions. Who initiated the process, and who controls its content? Can a church, denomination or leader decline to participate, or to comply with what emerges, without legal or official disadvantage? Who holds the power to impose a sanction, such as removal from a register, withdrawal of a “seal of good standing” or deregistration, and does that power ultimately derive from a statute? Where the answers point to State-created machinery, the arrangement is no longer self-regulation, regardless of its label or even if it is administered by sector representatives.
On the public record, the CRL’s generous use of the term “self-regulation” seems to cover anything short of the State directly appointing regulators and drafting the rules itself. Professor Christof Sauer's comparative work on the regulation of religious associations sets out a useful spectrum, running from voluntary self-regulation at one end to direct State regulation at the other, with several models in between. The model the CRL favours might be called “State-mandated regulation” administered by sector representatives. This is an arrangement in which legislation creates a council, a public register or a sanctions regime, but staffs the mechanism with pastors, bishops or denominational leaders rather than civil servants. However, placing religious people on the council does not change the source of its authority. If a statute creates the body, gives it a public register, and empowers it to grant, withhold or revoke a licence to operate, that is State regulation. The only difference is that it is delivered through the hands of the Christian sector rather than directly by the State.
In a speech this week, President Cyril Ramaphosa seemed to suggest that self-regulation of the church should resemble the regulation of doctors, lawyers or accountants: a governing council, a code of conduct or ethics, a power to discipline members. With respect, that comparison simply does not hold. Professional regulation works because a secular, technical body of knowledge provides an objective standard against which conduct can be measured. A misdiagnosis, a misstatement of the law or a misstated account can each be shown to be wrong by reference to an agreed external standard, and the practitioner can fairly be struck off for falling short of it. No comparable neutral standard exists, or can constitutionally exist, for religious belief. Sections 15 and 31 of the Constitution protect religion precisely because it cannot be measured that way.
The Constitutional Court held in Prince v President of the Law Society of the Cape of Good Hope that a sincerely held belief remains protected even where others regard it as bizarre, illogical or incapable of scientific proof. The Court confirmed the same point in MEC for Education: KwaZulu-Natal v Pillay, holding that a tribunal asks only whether a claimant professes a sincere belief, not whether the belief or practice is theologically correct, or objectively central to the faith. A profession can be licensed because there is a right answer against which candidates can be tested. However, faith cannot be licensed on the same basis, because the Constitution deliberately withholds from the State (and from any “body” deriving its authority from the State), the power to decide which beliefs are correct or valid.
The difficulty is not only conceptual. It is practical. Much of what any accountability framework would need to police under the heading of “ethics” is inseparable from doctrine. A person's eligibility to serve as a pastor or an elder is (in most denominations) a doctrinal question tied to that tradition's understanding of calling and ordination. Whether, and whom, a minister may marry turns on that denomination's theology of marriage. Whether a member should be placed under church discipline (or, in some traditions, even excommunicated) for an extra-marital relationship or adultery is a judgment about sin and repentance internal to that community's confession of faith. It is not a breach of some free-standing ethical code, and it is obviously not a standard applied equally to all.
It is therefore difficult to see how a statutory council, however composed, could adjudicate complaints and disputes in any of these areas while clearly distinguishing ethics from doctrine. In practice, no such line exists. This is close to the difficulty the Constitutional Court recognised in De Lange v Presiding Bishop of the Methodist Church of Southern Africa, where it declined to rule on the church's doctrine of marriage, holding that the matter lay too close to the church's own doctrines and values for the Court to enter.
There is a further, simpler test any proposed framework should meet. Where conduct already amounts to a crime, such as assault, fraud, sexual abuse or the endangerment of a child, the ordinary law of the land already applies, regardless of who commits it or where. A new religion-specific council or statute adds no protection the law does not already provide; it duplicates existing criminal and civil remedies while adding a further – and unnecessary – layer of registration, certification and process. Where conduct is not unlawful but is instead a matter of moral, ethical or doctrinal disagreement, the harder question must be confronted honestly: whose ethics or morality is correct, and by what authority does a State-created body get to decide that a particular religious conviction should attract legal consequences, whether civil or criminal? That is not a question of process or drafting. It is the very question the Constitution answers by keeping the State, and bodies deriving their authority from the State, out of the business of adjudicating belief.
FOR SA supports genuine self-regulation. Voluntary codes, freely adopted without legal or official disadvantage for non-participation, are precisely the kind of accountability the sector should continue to build. Much of it already exists. What cannot be supported is a process that borrows the language of self-regulation to describe a statutory council empowered to register, certify and deregister. The label its proponents choose is irrelevant. The Constitution asks what a body actually is and does, not what it is called. And the CRL’s interpretation clearly fails that critical test.
