Balancing rights and freedoms: Where to draw the line

Wednesday, January 24, 2018

Image result for lady justice 

I love Trevor Noah.

I absolutely love the way he picks up raging boiling global and national issues, and helps diffuse existing tension with humour.

Like “Shithole”.

His sarcastic expression of the typical African’s reaction to the ‘clarification’ that the United States President had referred to Africa as a “Shithouse”, and not a “Shithole” threw me under the bed.

I held my sides, from the pain of excessive laughter.

Trevor achieves in living motion, what I try to do with the bulk of my written pieces: tackle the serious issues, through the lens of humour.

Because we cannot coman and go and kill ourselves, and die under the weight of the seriousness of this life. 😨

But there was this one time I watched him struggle to make light of a highly sensitive issue, even as he tried to stay objective and not pick a side. It was the United States Supreme Court case of the gay couple, whom a baker refused to make their wedding cake, due to his personal religious beliefs.

On one hand was the couple, who simply wanted a cake to commemorate their important day, and sought to exercise their freedom from discrimination and rights to equal treatment.

On the other one hand was the baker, who offered to bake them any other kind of cake, but declined baking a cake for the celebration of the gay wedding. His argument was that making the cake would entail the expression of his artistic qualities, and he sought to exercise his freedom of religion and his right to expression, in not being forced to make a cake for a ceremony which goes against his personal faith.   

One could easily argue for any side.

I mean, for those of us who are Gnostic, one understands that there are certain things which could be refrained from, based on personal religious beliefs, and the interpretation of the teachings of one’s faith.

Thinking along these lines, it is easy to conclude “Leave the man alone! They could get cakes from anywhere else. Let him practice his faith in peeeeeaaaaace!!”


What if the actors were slightly modified? What if it was a heterosexual black couple, or even, a single Caucasian female who requested the service? What if the service provider politely declined, based on (his understanding of) the teachings of his faith, to the effect that he could not ‘express his art’ to serve a coloured couple, or a woman?

Outrageous, ehhn?

 Let me push it a little further:

What if the couple consisted of gentle, peaceful, heterosexual members of the community, who so just happen to also be acknowledged members of the KKK, and would have their wedding presided by the Grand-Master (or whatever it is they call their leaders) of the KKK?

Should their right to equal treatment trump the provider’s right to expression, in refusing to partake in what he views as the activities of a murderous cult?

What if the couple was Jew, and the baker Palestinian?

Aha! You see, it’s not so black and white after all.

I could go on, and on, and on with the counter-scenarios.

Which all point to the fact that expression of freedoms is a phenomenon which will continue to require a balancing act. For every freedom to be enjoyed by a person or a group of persons, there is likely to be required the shifting of ground on the rights of another competing person or group of persons.

It is therefore not possible to very provide a “blanket solution” to a clash of freedoms, without weighing the particular circumstances of each case.

This is  (somewhat) the position adopted by Canada’s Supreme Court in R. V. N(S). In this case, a woman sought to testify with her niqab (a head covering, which also covers the face), and the accused person requested an order of the Court that she should remove her niqab for examination.

The competing rights here?

Her right to religion under Section 2 of the Canadian Charter, and the accused’s right to full answer and disclosure under Sections 7 & 11 of the Charter.

The Canadian Supreme Court prescribed a formula for Canada, such that where there are competing rights, the Court would weigh the positive (salutary) and negative (deleterious) effects of affirming each right in that circumstance. The right with more positives in that particular situation would be accorded precedence.

(Have I lost you in all of the legal lingo? Ok... come back)

In some instances, the problem may not particularly be a case of competing rights. Rather, the difficulty may lie in the ethnic, religious, economic, and other factors of the society in which particular rights are sought to be enforced.

This is mirrored in the very recent case of the Nigerian law graduate, Firdaus, who was refused being admitted to the Bar by the Nigerian Council of Legal Education, for refusing to abide by its regulations in taking off her head-gear for the ceremony. Even though Firdaus had insisted that her headgear – or hijab – was necessitated by her personal religious faith.

When considered in isolation, Firdaus’ right to practice her personal religious beliefs should take pre-eminence over the Council’s status as an independent, self-regulatory body, in that her right to wear a hijab should be held over and before the Council’s regulations against head-gears, other than the Court wig.  

But then, one must contextualise, and consider that Nigeria is a melting pot of religious beliefs and numerous cultures, so that it would not be that simple to just draw a line, and insist that personal religious beliefs should trump secular laws.

In this case, approving the concession for personal religious beliefs would (perhaps) usher in the possibility that Catholics would demand that their Reverend Sisters be allowed to wear their headscarves, and traditional worshippers demand to attend their call to bar ceremony in their own traditional attire. 

A futuristic traditional worshipper’s dressing for their call to the Nigerian Bar would thus look something akin to this:

Image result for new nigerian masquerade

Or even... THIS!:

Well... they have their wigs on. Can't fault them.
(Omg! I would have nightmares for days, witnessing THAT get called to bar)

Bottom-line: I don’t have the answers. We don’t have it all figured out.

The one thing I am certain of is that even as the human society continues to evolve, there would always be the need for the balancing act in order to draw the line required to determine whether or not particular rights are to be exercised.

Thankfully, we have those intelligent people who sit at the bench of the courts, to crack their heads on this... while we munch our fish-biscuits. 😊



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  2. You write really well Meg. I’d be interested in reading your take on this article: