Gary Judd KC: It never rains, but it pours

Two days ago, lawyers in the North were sent details of a proposal to commence and end each court sitting day with a karakia. They have been asked for comments. One of the readers of my piece explaining why freedom of thought, conscience, religion and belief is so important in the email, from the courts administration, to me, together with the comments he had sent. I decided I should enter the fray and sent this email.

I endorse [my reader's] response to your request for comments, “New Zealand is a secular country and as such there is no place for a Karakia, or any other sort of prayer, in any State activity.”

Even more importantly, because the participants in the Court’s business of the day have no option but to be present during the karakia, this proposal represents an infringement of the right to freedom of thought, conscience, religion, and belief, including the right to adopt and hold opinions without interference, in contravention of s 13 of the New Zealand Bill of Rights Act 1990. The NZBORA applies to the legislative, executive, or judicial branches of the government of New Zealand (s 3(a)). As it applies to the judicial branch, and there is interference with the right to adopt and hold opinions without interference, the proposal infringes the judicial branch's obligations under s 13.

By way of illustration of the application of the principle, I refer to the Privy Council's decision in Commodore of Royal Bahamas Defence Force and others v Laramore [2017] 3 LRC 645, [2017] UKPC 13.

The Bahamas Constitution provided:

22. (1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this Article the said freedom includes freedom of thought and of religion, freedom to change his religion or belief and freedom, either alone or in community with others, and both in public and in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.

It is therefore very similar to s 13 of the NZBORA. In particular the requirement that "no person shall be hindered" correlates with "the right to adopt and to hold opinions without interference," because interfere means to interpose in a way that hinders or impedes.

The facts were summarised.

Colours parades had been a tradition in the Royal Bahamian Defence Force since its creation. From 1993 to 2006, members of religious beliefs other than Christianity were given the opportunity to excuse themselves by falling out during the prayers and falling back in immediately thereafter.

On 9 November 2006, [these arrangements were changed and new arrangements] stated that, effective immediately, all personnel were to remain present for the conduct of prayers (which were always Christian in form) during ceremonial parades and morning and evening colours parades, that parade commanders and duty officers were to give orders for 'Parade off Caps' and 'Parade on Caps' before and after prayers during parades, and that members of the Defence Force who were not Christian would no longer be permitted to fall out during the prayers and fall back in when they had been said.

In 2007, the plaintiff [Mr Laramore], a petty officer in the Force who was a Muslim, requested to be exempted from all Christian activity in the Force and some days later he left a parade during colours ceremonies when prayers were about to take place. He was charged with disobedience, but before the resulting disciplinary proceedings were concluded, he brought proceedings in the Bahamas Supreme Court challenging the constitutionality of the 2006 Memorandum and claiming damages. …

The plaintiff contended that he was 'hindered in the enjoyment of his freedom of conscience' under art 22(1) of the Constitution of The Bahamas, ('the Constitution') which included his 'freedom … of religion' and freedom 'to manifest … his religion' in public and in private, by having to stand on parade during Christian prayers when in his view doing so breached his religious faith.

The Chief Justice upheld the plaintiff's claim on the ground that the 2006 Memorandum violated the plaintiff's freedom of religion, contrary to art 22 of the Constitution, and made the declaration sought. The Chief Justice also awarded the plaintiff $B10,000 damages for the breach of his constitutional rights. The defendants' appeal to the Bahamas Court of Appeal was dismissed. They appealed to the Privy Council, contending that art 22 protected freedom of conscience only in a limited manner, that there was nothing in the arrangements for Christian prayers during colours parades that impinged on or affected the plaintiff's personal inner freedoms, that judged objectively there had been no hindrance 'in the enjoyment of his freedom of conscience', and any hindrance of the plaintiff's freedom of conscience was 'reasonably justifiable in a democratic society' under art 22(5) of the Constitution because it was in the interests of maintaining good order and discipline in the Defence Force that there was uniformity of behaviour.

The Defence Force's appeal to the Privy Council was dismissed. It was held:

Freedom of conscience was in its essence a personal matter and whether there had been a hindrance of a person's enjoyment of freedom of conscience was to be judged by reference to his particular subjective beliefs rather than by what a particular religion prescribed.

A requirement to take part in an activity could be incompatible with a particular person's conscience, however much his internal beliefs were otherwise unaffected and unchallenged. It was not what the Islamic religion said that mattered; what mattered was the person's religiously-based beliefs and conscience and whether they were hindered by a restriction on his freedom of religion.

'Hindrance' was not the same as being prevented or forbidden because of a religious belief from taking part in a certain activity. The 'caps off' order could not be understood as a mere gesture of respect towards Christians, for whom it would have a deeper significance.

Having actively to participate in a Christian ceremony, in a way to which he in conscience objected, hindered the plaintiff in the enjoyment of his freedom of conscience, for the purposes of art 22 of the Constitution, because it was against his conscience to take part in the prayers which were part of regular colours parades and it hindered his enjoyment of his freedom to live, by his words and conduct, in a way which was compatible with his Muslim conscience ….

An example of the New Zealand's judicial system's respect for the importance of a person's enjoyment of freedom of conscience is the ability of a witness to confirm that the witness will tell the truth by either oath or affirmation (s 77 of the Evidence Act 2006).

This karakia proposal is therefore entirely inappropriate and in conflict with the judicial branch's duty to uphold the rights and freedoms contained in the NZBORA.

I do not imagine it is your decision to modify the courts' procedure in this way. Would you please pass this email on to whoever is responsible.

I received a prompt acknowledgement thanking me and saying that my email would be passed on.

Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack where this article was sourced.