Why we have the Right to Freedom of Thought, Conscience, Religion, and Belief

The Law Association of New Zealand’s LawNews today published my Why we have the right to freedom of expression and belief. This post is an edited version.

Freedom of thought is foundational

Section 13 of the New Zealand Bill of Rights Act 1990 recognises the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference. By the Act’s long title and s2 the right is affirmed, protected and promoted as a human right and fundamental freedom.

Freedom of speech or free speech, affirmed by s 14’s protection of freedom of expression, tends to gain the publicity. The Free Speech Union in NZ, and many others around the world perform invaluable work in advancing the cause of speech freedom so essential to a functioning democracy.

There are copious writings on free speech, but much less on the right to freedom of thought, conscience, religion, and belief. This is surprising because the right to freedom of thought, conscience, religion and belief is foundational. Thought, conscience, religion and belief, and the opinions we hold as a result, are what we may wish to express in exercise of our right to freedom of expression. Our right to freedom of expression is worthless if we do not also enjoy freedom of thought, conscience, religion and belief.

Interference with freedom of belief

In Real estate agent loses legal challenge to mandatory treaty course, Anna Longdill, in a LawNews case note reviewing a recent a recent High Court decision, recorded:

Janet Dickson, an experienced real estate agent, chose not to complete Te Kākano as a matter of principle, as she considered that it would not add any value to the performance of her real estate agency work. She [said the] course conflicted with her personal beliefs (in particular, references to Māori gods sitting uncomfortably with her own monotheistic Christian beliefs).

Dickson’s right to work in her chosen industry has been protected for the meantime by interim orders but unless her appeal to the Court of Appeal succeeds or legislation intervenes, she is prevented from working in her chosen field, in which she has been involved for decades, because she refuses to be educated about someone else’s culture and religion.

Dickson’s reasons for not taking the course show that s 13 of the NZBORA is potentially engaged. It will be for the Court of Appeal to decide whether in the circumstances of her case, Dickson’s s 13 and any other relevant rights and freedoms were infringed by compelling her to take the course.

As I have now been instructed to act for Janet Dickson on her appeal, I will not say anything more about her case. It falls to be considered by reference to its own circumstances. What I want to focus on is why every New Zealander has the right to freedom of thought, conscience, religion, and belief including the right to adopt and to hold opinions without interference.

Dickson’s case is by no means the only example of bodies with regulatory powers forcing people to engage with cultural norms which may place the compelled person in a position of conflict with their thoughts, conscience, religion or belief. The New Zealand Council of Legal Education’s mandating of tikanga for new lawyers is another. My complaint to the Regulation Review Committee of Parliament concerning the Tikanga Regulations, relying in part on s 13, remains unresolved despite being lodged almost a year ago.

Morally reprehensible interference with personal identity and autonomy

I doubt whether the people exercising power to compel others in matters impinging on freedom of thought, conscience, religion, and belief, have ever considered why this is a fundamental human right. If they did so, they might realise how morally reprehensible their conduct is.

A person’s thoughts, conscience (what one considers to be correct, right or morally good), religion (which includes not believing any) and beliefs are the very essence of a person’s individuality and identity as a person.

Consider, if you will, the process of growing up. As children, we are subjected to the opinions and beliefs of our parents, teachers, perhaps church leaders, and others. We are immersed in a sea of ideas, often conflicting, as well as social and peer pressure to conform. It can be a confusing time. I often think of this quatrain, from the Rubaiyat of Omar Khayam (Edward Fitzgerald’s 19^th century translation of the 12^th century Persian’s writings):

Myself when young did eagerly frequent

Doctor and Saint, and heard great argument

About it and about: but evermore

Came out by the same door as in I went.

As children, we do not have the knowledge to be able to evaluate; our views are plastic, malleable; only slowly and incrementally do we gain the ability to determine the significance or worth of ideas and to reach conclusions.

By the time we reach adulthood we have formed views about the world around us, made value-judgements, experienced emotions, accepted or rejected the opinions and views of others and, most importantly, formed some sort of view of ourselves: what or who we are, what we want to do, what we want to be, what is important to us and what is not. We are likely to have formed views about the nature of human existence.

In other words, we will have a sense of self, of personal identity, of integrated human personality. We will have our own view of the world, and we may have formed definite beliefs concerning the nature of existence and our place within it.

Enslaving the soul itself

These aspects of our own identity and personality or personhood are what is protected by the right to freedom of thought, conscience, religion, beliefs and opinions, including the right to adopt and to hold opinions without interference.

Our beliefs and opinions may change. This may be a deliberate decision after persuasive argument, or we may have a gradual evolution towards something new or different.

But it is we who are doing it. Unless, that is, people who think they know better decide to force their views upon us.

As John Stuart Mill pointed out,

Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own.

Mill, John Stuart. On Liberty (p. 12). Kindle Edition.

Penetrating deeply into the details of life, enslaving the soul itself, preventing the formation of any individuality not in harmony with its ways. That is what those who would force their views on others are doing.

We have the right to freedom of thought, conscience and religion codified by s 13 of the NZBORA, to protect us from the predations of people who enjoy positions of power granted to them by the government who would use those positions and that power to violate the sovereignty of the individual by seeking to impose their own opinions and convictions on their victims.

Māori view of the world neither to be forbidden nor compelled

In today’s New Zealand, this proclivity is found most frequently in those trying to force the population to conform to a Māori view of the world by compelling sectors of the population to be educated so that they might embrace a culture which is not theirs.

As I have made clear in other writings, the evil resides in the compulsion. The right to freedom of thought, conscience and religion protects the right of those who believe in the Māori view of the world to hold those views; to adopt and hold those opinions without interference. Ironically, the nature of tikanga underscores why the right to hold the Māori view of the world should not be interfered with and at the same time demonstrates why it should not be imposed on others.

We are told in the Statement of Tikanga appended to the Supreme Court’s Ellis appeal continuance judgment that tikanga at its heart is a form of collective conscience.

25. The term ‘tika’ means ‘to be right’. Tikanga Māori therefore means the

right Māori way of doing things. It is what Māori consider is just and

correct.

26. Tikanga Māori includes all of the values, standards, principles or norms

that the Māori community subscribe to, to determine the appropriate

conduct.

Each individual Māori, and anyone else who so desires, is protected in the right to accept and adhere to such values, standards, principles or norms. By the same token, any individual Māori, and anyone else who does not so desire, is equally protected in the right not to accept and adhere to such values, standards, principles or norms. All are entitled to adopt and hold their opinion, whether one way or the other, without interference.

It is concerning that those seeking to explain and advance tikanga presume to speak for all Māori; they presume that there is a collective conscience for all Māori; they presume that whoever occupies the pulpit may prescribe what is correct, right or morally good for a whole race.

This is an example of Mills’ “tyranny of the prevailing opinion and feeling; [of] the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them.”

Wicked misuse of state power

It must be remembered that the NZBOR does not go so far as to proscribe societal tyranny. It applies only to acts done by the government and by persons or bodies performing public functions, powers, or duties conferred or imposed by or pursuant to law (s 3). This is fitting for only the government and organs of government have the power legally to use force to compel people to act against their will. Thus, the Real Estate Authority has the power to prevent a person working as a Real Estate Agent because legislation gives it that power. For the same reason, the New Zealand Council of Legal Education can use its power to make regulations compelling people wanting to be lawyers to learn about tikanga.

In any other situation the right to impose one’s will upon another can be conferred only by agreement. Unless you are bound by agreement, you can say No, even though societal pressure may make it difficult.

In view of the central role of the government, it is apt to note the following passage from Andrew Butler and Petra Butler’s 2005 commentary on the NZBORA, 14.5.5, p 403.

The acknowledgement of an individual’s freedom of religion and belief and the consequential pluralism of beliefs, thought, and religion demands neutrality from the state and tolerance from its citizens. State neutrality means that it renounces any claim to knowing the truth and is impartial in relation to all religions or beliefs.

Neutrality is demanded not just because the NZBORA requires it, but because state intrusion into the sphere of individual autonomy and self-identity is a wicked misuse of state power.