CASE
NOTE
LOBO
v.
LIMANILOVE[1]
A
Harmonious
Decision
Debra
Mackenzie
INTRODUCTION
This
case from the High Court of Solomon Islands demonstrates a fine balancing act
between
Sefo
v.
Attorney-General[2]
and
Teonea
v.Kaupulev[3].
In both of these cases the issue was the legality of the act of a traditional
authority to ban a new church in the community. Although the Constitutional
provisions as to the rights and freedoms were similar in these two cases, the
Courts came to different conclusions. These cases will not be discussed here,
except to observe that the tone of the judicial process was decidedly
adversarial, and the end result was the emergence of a clear winner and
loser.
Conversely,
in
Lobo,
the Court went to great lengths to honor the position of both parties. In the
result, there was a successful party of course, but the decision was couched in
terms that preserved the integrity and power of the unsuccessful party. In this
case, the local church council tried to ban a new church. The Court reached the
same conclusion in law as in
Sefo,
and it is probably the correct one; i.e. upholding the supremacy of the
Constitution. However, the Court managed to balance the constitutional
requirements with the local realities in its written reasons, and thus
manifested a somewhat harmonious rather than adversarial process in its decision
making.
THE
FACTS
The
Tangarare Catholic Parish Council is divided into steering committees that look
after the affairs of a zone. It is the policy of the Council that any religious
group or denomination that intends to do or undertake any activity within its
jurisdiction must first seek the permission of the Council. The Council
considered whether or not the activity or undertaking would cause ill feeling
and division within the community, or breach of custom and acceptable standard
of good behavior or bad effect on the community, and whether the religious group
or denomination would co-operate with the leaders of the community into which
such religious group or denomination would wish to
come.
The
Applicant, the Christian Outreach Centre (COC), was a non-Catholic Christian
group that had been introduced into the area in 1994. The presence and the
religious activities of the Pastors of the COC were perceived by the Catholic
Community as being anti-Catholic. The Council wanted the members of the COC to
relocate so as not to continue to disturb them and their belief in the Catholic
faith.
There
were allegations that the COC went beyond the normal preaching of the Gospel by
speaking out against the practices of the Catholic Church, and of custom.
Further, the COC had come into the community without the requisite permission
from the Parish
Council.
RELEVANT
CONSTITUTIONAL PROVISIONS
Chapter
2 of the
Constitution
of Solomon
Islands[4]
sets out provisions to protect the rights and freedoms of its citizens.
Section 11 provides for the protection of freedom of conscience including at
11(1), “freedom of 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.”
Section
3 of the Constitution prescribes the fundamental rights and freedoms of every
person in Solomon Islands irrespective of his or her race, place of origin,
political opinions, color, creed, or
sex.
Section
11(6) (a) and (b) sets out the exceptional circumstances where the rights and
freedoms of religion can be curtailed by the State; those being “(a) in
the interest of defence, public safety, public order, public morality or public
health; or (b) for the purpose of protecting the rights and freedoms of other
persons, including the right to practice and observe any religion without the
unsolicited intervention of members of any other religion.”
THE
APPLICATION
Two
of the declarations sought by the Applicant are relevant to this discussion. The
COC, as the Applicants, sought a declaration that the Parish Council contravened
Section 11(1) of the Constitution in purporting to stop any other religious
group or denomination, and in particular the COC Church, from carrying out any
of its religious activities within the Parish without its approval. Also sought
was a declaration that each member of the COC who was also a member of a
landholding tribe within the Parish had the right to enjoy his/her
constitutional right pursuant to Section 11(1) of the Constitution together with
other COC members either in their, or in Public Places within the Parish. The
Applicants also sought an order that the Respondents be restrained from
interfering, attacking or disturbing any activities of the COC.
THE
ISSUES
1.
The first issue is whether the Council’s stand that any religious group or
denomination wishing to enter and worship within its area of jurisdiction should
first of all obtain permission from the Council is inconsistent with section
11(1) of the
Constitution.
2.
The second issue is really a sub-issue of the first, and is whether each member
of the COC who is also a member of a landholding tribe within the Parish has the
right to enjoy his or her constitutional right pursuant to section 11(1)in land
within the
Parish.
REASONS
FOR
JUDGEMENT
I
will set out the reasoning of the Court as it is illustrative of the balancing
stance which the Court chose to take in this
case.
The
Court begins with a discourse on the importance of religion in Solomon Islands.
It includes a discussion of the history of churches in the area, with the Court
noting that there is a modern trend for new religious movements to erode or chip
off the established religions. The Court concludes that: “Differences in
the manner of worship and tenets may arise from time to time but understanding
and tolerance have always been the champions of harmony and acceptance within
the communities in Solomon
Islands.”
The
discussion moves to a consideration of Sections 3 and 11(6)(a) and (b) of the
Constitution. The relevance of Section 3 is that it lays down the fundamental
rights and freedoms of every person, but also provides that these rights and
freedoms of the individual are subject to the rights and freedoms of others and
in the public interest. Section 11(6)(a) and (b) sets out exceptional
circumstances where the rights and freedoms of religion can be curtailed by the
State. The Court concludes on the basis of these enactments, that
“[t]hese rights and freedoms are not absolute in themselves”, and
“[A]pplied to this case, it means that the rights and freedoms of the
Catholic Community in the Tangarare Parish must also be respected by the members
of the COC and vice
versa.”
At
this point, the Court remarked that there is a balancing exercise here, and it
calls for “great restraint, maturity, understanding, and sensitivity on
the part of the COC in its methods of worship lest those methods hurt the
feeling of others of the Catholic faith and thereby antagonize them. In
practice, it means abstaining from criticizing the Catholic faith in all its
tenets and worship practice in all its forms.”
The
Court cited an Indian
case[5]
where the use of loudspeakers by a church was disallowed on the grounds that the
right to practice religion was not absolute and did not permit the forcing of
any citizen to hear anything against his or her will. The Indian court
concluded that in a civilized society religious activities disturbing the peace
of others could not be justified.
The
Solomon Islands Court then continued on with its discussion of balance by citing
the sections of the Solomon Island
Penal
Code Act
(Cap. 26) that specifically deal with offences related to religious practices.
Defiling a place of worship with the intention of insulting the religion (s.
131), and deliberately insulting religious feelings (s. 135) can draw terms of
imprisonment as well as fines. The Court concluded from this that “there
is therefore a balance in the eyes of the law to be maintained in society in the
exercise of one’s freedom of
religion”.
The
Court reviewed the evidence of the defendant which suggested that the presence
of the COC was causing divisions within their community, and then proceeded to
take judicial notice of the fact that freedom of religion under the Constitution
“when exercised by individuals has the tendency of creating division
between families and close relatives”. A discussion by the Court of the
Melanesian concept of family, and its importance in terms of “togetherness
in doing things and meeting custom obligations” followed.
The
Court recognized that an individual may change his or her religion or faith, but
does so for personal reasons, and not for the benefit of his or her community.
However, the only restriction that may be made is that the spread of religion
must have regard to the rights and freedoms of others. Therefore, the Court
decided that the Council’s conduct was unconstitutional, and granted the
first declaration sought by the Applicant.
However,
the Court granted the first declaration sought only in so far as it affected the
COC, not as, in the words of the Court, “a blanket declaration so as to
open the flood-gates to any other religious group or denomination waiting on the
edge to devour the Catholic congregation”. The second declaration was also
granted.
The
Court did not grant the order sought to restrain the Respondents from
interfering with, attacking or disturbing any of the activities of the COC. The
Court had insufficient evidence of particular incidents, but also commented:
“The granting of such injunction would tend to suggest that the members of
the Catholic Community at Tangarare should not do anything further to exercise
their constitutional rights and freedoms in the Catholic Faith. To do so by the
granting of an injunction per se would send a wrong signal in that the Catholic
Community at Tangarare should no longer be complaining about the work of the COC
because the High Court has ruled in their
favor.”
The
Court concluded the reasons with the following: “The constitutional right
and freedom to worship freely under the Constitution is not a sword but a right
and freedom co-exist[sic] with others in the exercise of one’s freedom to
worship in one’s religion. The granting of the declarations in this case
does not mean that the members of the COC can override the rights and freedoms
of the members of the Catholic Church at Tangarare Parish to practice their
faith... As I have said, it is a matter of keeping the proper balance between
different denominations in the communities in Solomon Islands.”
DISCUSSION
The
lengthy summary of the Reasons is set out above to illustrate how the Court in
this case balanced the interests of the parties. In the result, the
declarations were granted, but really, the Court appeared to be taking the
parties back to the beginning, to work out their differences so that the COC
would succeed or fail, but it would be on the same terms as the other offshoot
religious groups that had come to Solomon Islands in recent history.
There
is no overwhelming winner or loser here. The Applicants were granted their
declarations, and were allowed to stay and practice their religion, but the
Court was very careful not to grant them anything that might be perceived as any
new power in the community. The Council had to allow the new religion, but the
Court indicated that their position remained strong vis a vis other newcomers,
and also stressed that the right of the COC to remain and practice their new
religion was dependent on the COC not infringing upon the constitutional rights
of the Catholic Church.
This
was no standard common law decision. The starting point was the
limits
of the constitutional rights, rather than the right which was the subject of the
declaration sought. The Court spoke of Melanesian values, and took judicial
notice of the fact that freedom of religion has a tendency to cause division in
families. This statement does not reflect impassive legality. The Court
endeavored to find a balance, or a place of agreement for the parties so that
they could peaceably coexist, which is an unlikely goal in the supposedly
adversarial setting of the High Court.
I
like this decision. It is reflective of the social relations in a relatively
small community where family and kinship relationships are still
important.[6]
In a sense it sends the parties back to their communities to work out their
differences over time without impeding one another. The court is clear that the
constitutional right was not acquired by one party in Court, but already existed
for both parties. And, in a final bow to parity, the Court ordered each party
to pay its own costs.
[1]
[2002] SBHC 110
http://www.paclii.org/sb/cases/SBHC/2002/110.htm
accessed 05/10/2006
[2]
[2000] WSSC 18
http://www.paclii.org/ws/cases/WSSC/2000/18.html
accessed 04/10/2006
[3]
[2005] TVHC 2
http://www.paclii.org/tv/cases/TVHC/2005/2.html
accessed
04/10/2006
[4]
schedule to Solomon Islands Independence
Order 1978
[5]
see Church of God (Full Gospel) in
India v. K.K.R. Majestic Colony
Welfare Association in (2002) 2
Commonwealth Human Rights Law Digest
237-238.
[6] For a discussion in this area of anthropology see Nader, L. and Todd, Harry, eds., The Disputing Process-Law in Ten Societies (New York, 1978).