‘Complex and sensitive matter’
MINISTER of Justice and Constitutional Development Tshhililo Michael Masutha, pictured, said in court papers that the relief sought by the trust to recognise Muslim marriages and divorces was a complex and sensitive matter.
“It is apparent from the opposition by Islamic theologians and stakeholders that the proposed legislation will infringe upon their rights. The applicant (the trust) persists in this application for the process of public debate, government intervention and legislative enactment by Parliament and the executive to occur forthwith without the respect for the principal of separation of powers,” he said.
“I submit that President Zuma has not failed to fulfil his obligations in terms of section 7 (2) of the Constitution. Section 7 (2) of the Constitution provides that the State must respect, promote and fulfil the rights in the Bill of Rights.”
Masutha said freedom of religion was guaranteed in section 15 (1) of the constitution.
“It provides that the State subject to the constitution does not prevent legislation from recognising systems of personal law and family law under any particular religion. The relief sought by the trust will have a far-reaching impact. Section 15 (3) (a) does not impose any obligation on the State to prepare, initiate and enact legislation for and in respect of any particular religious group. The provisions are not couched in peremptory or compulsory terms.”
Masutha said it was not the constitutional duty and purpose of the State to interpret or implement religious texts.
“This is not permissible under our Constitution. Retired Constitutional Court Judge Albie Sachs, in the case Minister of Home Affairs v Fourie, said it is one thing for the court to acknowledge the important role that religions plays in public life but it is quite another thing to use religious doctrine as a source of interpreting the constitution. According to Judge Sachs, judges would be placed in an intolerable situation if they were called upon to construe religious texts and take sides on issues which have caused deep schisms with religious bodies.”