First National Judicial Roundtable On ‘The Intersection Between Law And Religion’

• Share:

KEYNOTE ADDRESS OF THE VICE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA, PROFESSOR YEMI OSINBAJO, SAN, AT THE FIRST NATIONAL JUDICIAL ROUNDTABLE ON THE INTERSECTION BETWEEN LAW AND RELIGION: WORLD PERSPECTIVES, NATIONAL JUDICIAL INSTITUTE, ON JUNE 20, 2016.

Protocols

I am greatly honoured by this invitation to participate in this very important and timely discourse on Law and Religion.  I suspect that a possible reason for this invitation is that my friends in my first constituency, which is academia, would like to put me on the spot, as I am both a Professor of law and a Pastor. However, let me say quickly that I have no profound views on this all important subject, and I would also look forward to benefitting from the scholarship and unique insights that have been assembled to do so.

Nonetheless, let me at least add to the already copious list of important questions that this distinguished gathering may consider.  But before I do so, perhaps, I should mention how important this judicial roundtable is.

And I add my voice to warmly welcoming their lordships and thanking them for agreeing with us by their attendance, that the subject is one of great importance. It is an opportunity for their lordships to appreciate and contribute to some of the current issues and ideas on a subject, that promises to affect the future of peace, law and order in our society and the world at large.

How your lordships resolve some of the contentious issues, which will come before you, perhaps more frequently in the coming years, may mean the difference between peace and conflict.

There is no question at all, that there are important intersections between law as an instrument of social control, and religion especially in so far as it tends to define moral parameters and borders.

Religion itself, in its classic meaning, is not just a belief system, but also usually incorporates a set of rules and regulations, which may well qualify as a legal system no matter how rudimentary. Indeed, most legal systems draw substance, form and procedure from formal religious systems.

But despite these obvious intersections between law and religion, both systems have their own sources and structures of normality and authority (John Witte); their own methods and measures of enforcement and amendment. Indeed, differing religions of course introduce their own variations and nuances.

This is why the issues around the relationship between law and religion, tend to be somewhat emotive and fraught with tensions. In any event, once a controversy is cast as a duel between the divine and the secular, even in religiously homogenous societies, an amicable resolution is less likely.

Perhaps, the more attainable objective is to seek the complementarities between the systems, while understanding why separation is practical and sensible. But permit me to raise some practical issues which confront us especially in governance.

Freedom of Worship, what are its contours, are there limits?

To what extent can and should law regulate religious practices? Is secularism right in passionately religious societies? What can law and/ or religion do in the war against violent extremism? My contributions to the debate emanate from three personal beliefs.

First, that multi-religious, multi-ethnic societies must accept the arbitration of law and its religiously neutral institutions for the maintenance of peaceful co-existence.

Second, that a secular state where freedom of religion is allowed and rigorously protected, is fundamental to an orderly society.

And third, that the law and religion must protect the fundamental and inalienable right of every person to life in all its social and political implications.

To take the first issue, the protection of Freedom of Worship and the practice of one’s beliefs is crucial. The essence of the human being, in any event, has at its core, the subscription to a higher essence, even if that essence is a denial of the existence of God.  It is irrelevant whether you agree or do not, with what that essence is, for the fact that it is a fundament of the well-being of the adherent, it is deserving of the full protection of the law, subject to the sole exception that it must be practiced within the strictures of existing laws.

Those laws according to the Nigerian Constitution, where they restrict freedom of worship, must be reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom or other persons.

It is this test that restrictive laws should satisfy –  i.e., is this legislation reasonably justifiable in a democratic society, for the protection of one of the listed public goods?

The crucial question with respect to such laws is whether they should be allowed to exercise prior-restraint?  For example, should there be licensing of places of worship, or the dissemination of religious information? Or should the laws punish offending conduct when it occurs, such as the dissemination of hate speech? Is it reasonably justifiable in a democratic society, to make laws that restrict freedom of speech by the fact that it says you must seek permission before you make certain types of public utterances?

I am of the view that prior-restraint is open to abuse, will unduly restrict freedom of worship as is probably unconstitutional. Freedom of speech is not only a fundamental right (in its own right), but it is also the vehicle for the realization of other rights.

The laws must however be enforced to punish offensive conduct, such as the dissemination of hate speech, or the perpetration of unlawful acts under the guise of religious beliefs. However, it must be emphasized that courts must more carefully, maintain their neutrality in the trial of such matters. Difficult as this may seem, since we all have our beliefs, the awesome responsibility of adjudication calls for utmost integrity in ensuring that the subjective views of the judiciary are not substituted for the law.

How do we deal with violent extremism emanating from religion?

At a purely conceptual level, certain basic notions must be made clear. The first is that the ideology of violent extremism such as that perpetrated by Boko Haram or ISIL, rejects the common basis for human interaction under both the domestic laws of most societies and international law. The extremists reject the inalienable freedoms and rights of others, they reject the known universal mechanisms for negotiation, compromise, and resolution of differences. They seek to impose their world-view by force of terror on others.

Consequently, there is no reasoning with these groups. The rest of society who reject this bloodthirsty approach to spreading a set of beliefs, must be prepared to sustain a war against extremism, which must lead to the military defeat of its forces, but more importantly victory in the ideological battle.

The battle against the ideologies and beliefs that undergird violent extremism, is an existential one for our age and time. Indeed, a coalition of Christians, Muslims and other faiths, who believe in the sanctity of human life and the right of men and women to choose their beliefs within the confines of the law, must join together in the battle for the minds of adherents and potential converts of violent extremism.

In the judicial space therefore, it is usually the case that persons charged with terrorism tend to reject even the authority of the courts before which they are brought for trial. The alleged killer of Ms. Jo Cox, the British MP killed last week, when arraigned over the weekend was asked his name and said, he is “death to traitors and freedom for Britain”.

It is important, that these types of theatrics are not allowed to distract the court or engage public attention. Most procedural systems provide adequate rules for controlling disruptive behaviour of parties in court, and such should in the case of such persons be swiftly and firmly applied.

My lords, ladies and gentlemen, I think it might be impolite for the keynote speaker to get too deeply involved in the contentious issues to which your attention will be directed.

So permit me to again thank the National Judicial Institute for the kind invitation to give the keynote speech, and to wish you very useful deliberations today.