Freedom of Thought, Conscience and Religion

Transcription

1 Freedom of Thought, Conscience and Religion

2 In Article 18 of the Universal Declaration on Human Rights of 1948 provides that Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

3 Additional Freedoms: Article 19 = freedom of speech and opinion Article 20 = freedom of peaceful assembly and association

4 Discussion: Secularism Article Claim: Freedom of religion is adequately replaceable by other rights Claim: The historical status and protection afforded to freedom of religion is no longer justified in an age where there are increasing numbers who express no religious affiliation

5 Worldwide, more than eight in ten people identify with a religious group. A comprehensive demographic study of more than 230 countries and territories conducted by the Pew Research Center s Forum on Religion & Public Life estimates that there are 5.8 billion religiously affiliated adults and children around the globe, representing 84% of the 2010 world population of 6.9 billion At the same time, Pew also notes that: roughly one in six people around the globe (1.1 billion, or 16%) have no religious affiliation. This makes the unaffiliated the third largest religious group worldwide, behind Christians and Muslims, and about equal in size to the world s Catholic population.

6 In the Case of Eweida and Others v The United Kingdom before the ECHR which concerned the wearing of religious symbols or dress by employees and the capacity for such dress legitimately to be restricted by employers, the ECtHR considered the nature or role of freedom of religion. (at para 79): The Court recalls that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention. In its religious dimension it is one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it (see Kokkinakis v. Greece, 25 May 1993, 31, Series A no. 260 A).

7 Article 18 ICCPR Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

8 Such guarantees are found in other instruments at a regional level. For example, Article 12 of the American Convention on Human Rights provides that freedom of conscience and religion includes the freedom to maintain or to change one s religion or beliefs, and freedom to profess or disseminate one s religion or beliefs, either individually or together with others, in public or in private, Article 8 of the African Charter on Human and Peoples Rights specifies that freedom of conscience, the profession and free practice of religion shall be guaranteed and further that no one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.

9 ECHR: Art 9. Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

10 Non Discrimination The right to be free from discrimination is a fundamental human right recognised in all the major international treaties on human rights. The UDHR starts, in Article 1, with: All human beings are born free and equal in dignity and rights. Article 2 entitles everyone to enjoy the rights and freedoms in the Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 7 declares that: All are equal before the law and are entitled without any discrimination to equal protection of the law.... Other UN instruments also contain equality or non discrimination clauses; for example, Article 2 ICCPR and Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

11 Defining thought, conscience and religion Saba Mahmood:... in order to judge whether a certain belief is worthy of protection the state must inevitably involve itself an investigation of the sincerity of belief; this in turn embroils the secular state further into the domain of privacy, which is supposed to be a space of autonomy and freedom Use of the terms thought, conscience and religion suggests a potentially wide scope

12 The meaning of thought, conscience and religion ' Permits a variety of interpretations. Article 18 never addresses the difficult questions of how the relation between states and religious institutions should be regulated; it leaves terms like teaching, practice, worship, and observance undefined; and it never clarifies under which circumstances religious liberty can and cannot be curtailed All traditional religions and beliefs are covered Also: Pacifism, Veganism, Atheism, the Church of Scientology, Druidism, Divine Light Zentrum and Krishna Consciousness. No clear definition in Article 9: European Court of Human Rights (ECtHR) needs to be given wide interpretation But, the ECHR Court has held that the religion must have a clear structure and belief

13 The meaning of thought, conscience and religion ' Beliefs in assisted suicide or language preferences or disposal of human remains after death do not involve beliefs within the meaning of the provision. On the other hand, pacifism, atheism and veganism are value systems clearly encompassed by Article 9 as is a political ideology such as communism, Non belief as well as non religious belief are also protected ECtHR: religious or philosophical conviction or belief must: attain a certain level of cogency, seriousness, cohesion and importance be worthy of respect in a democratic society not be incompatible with human dignity relate to a weighty and substantial aspect of human life and behaviour

14 Scope of the right The right recognised in Article 18 is simultaneously an individual right, and a collective right. It has both an internal dimension (the freedom to adopt or hold a belief), and an external dimension (the freedom to manifest that belief in worship, observance, practice or teaching). While the internal dimension is absolute, the external dimension can be subject to certain limitations (on the strictly restricted grounds specified in Article 18(3)).

15 Scope of the right Freedom of religion does not prevent there being a state church, but no one can be forced to join a church, be involved in its activities or pay taxes to a church. The role of the State is to encourage tolerance and all religions or nonreligions, if regulated, must be regulated with complete neutrality. The right to exercise, or manifest, one s religion or belief will not generally be considered to be interfered with if a person is left with a choice as to whether or not to comply with his or her religious obligations. However, there will be interference if restrictions make it practically difficult or almost impossible to exercise the religion or belief.

16 Internal Dimension Protection of personal thought, conscience and belief obviously begins with the rights to hold and to change these beliefs It must be possible for an individual to leave a religious faith or community. seeks to prevent state indoctrination of individuals and to permit the development, refinement and substitution of personal thought, conscience and religion. The clear implication from the text is thus that freedom of thought, conscience and religion not involving a manifestation of belief cannot be subject to state interference,

17 Internal Dimension Forcing an individual to disclose his beliefs arguably could under mine this aspect of the guarantee, at least where the State cannot advance any compelling justification for this. Such a justification may arise where an individual is seeking himself to take advantage of a special privilege made available in domestic law on the grounds of belief, for example, in respect of conscientious objection. In ECHR case Kosteski v. the former Yugoslav Republic of Macedonia, the applicant had been penalised for failing to attend his place of work on the day of a religious holiday.

18 Freedom from Coercion "No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. Human Rights Committee general comment 22 Para. 5: "Article 18.2 bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert. Policies or practices having the same intention or effect, such as, for example, those restricting access to education, medical care, employment or the rights guaranteed by article 25 and other provisions of the Covenant, are similarly inconsistent with article The same protection is enjoyed by holders of all beliefs of a non religious nature."

19 Internal Dimension Issues may also arise in situations in which individuals are required to act against their conscience or beliefs. In Buscarini and others v. San Marino, for example, two individuals who had been elected to parliament had been required to take a religious oath on the Bible as a condition of their appointment to office. The respondent government sought to argue that the form of words used ( I, swear on the Holy Gospels ever to be faithful to and obey the Constitution of the Republic... ) was essentially of historical and social rather than religious significance. In agreeing with the Commission that it would be contradictory to make the exercise of a mandate intended to represent different views of society within Parliament subject to a prior declaration of commitment to a particular set of beliefs, the Strasbourg Court determined that the imposition of the requirement could not be deemed to be necessary in a democratic society.

20 Manifestations of religion or belief A manifestation implies a perception on the part of adherents that a course of activity is in some manner prescribed or required. Arrowsmith v. the United Kingdom, the term does not cover each act which is motivated or influenced by a religion or a belief The case law makes clear that such matters as proselytism, general participation in the life of a religious community, and the slaughtering of animals in accordance with religious prescriptions are readily covered by the term. However, a distinction must be drawn between an activity central to the expression of a religion or belief, and one which is merely inspired or even encouraged by it.

21 Manifestations of religion or belief Human Rights Committee general comment 22 Para. 4:The freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae, and objects, the display of symbols, and the observance of holidays and days of rest. The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or head coverings, participation in rituals associated with certain stages of life, and the use of a particular language, customarily spoken by a group. In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications."

22 Manifestations of religion or belief Freedom of Worship: "To worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes;". Places of Worship: Urges states to protect these sites Observance of holidays and days of rest Teaching and disseminating materials (including missionary activity) Appointing clergy The right of parents to ensure the religious and moral education of their children Establish and maintain charitable and humanitarian institutions/solicit and receive funding

23 Limitations Does not generally include, for example, matters such as the nonavailability of divorce, the distribution of information persuading women not to undergo abortions, nor does belief in assisted suicide qualify as a religious or philosophical belief, as the ECHR made clear in Pretty v. the United Kingdom. Under Article 18 right may be limited on the grounds of public safety, order, health or morals or the fundamental rights and freedoms of others Must be prescribed by law and necessary in a democratic society Proportionate

24 Children s education and parents religious convictions Osmanoǧlu and Kocabas v. Switzerland 10 January 2017 This case concerned the refusal of Muslim parents to send their daughters, who had not reached the age of puberty, to compulsory mixed swimming lessons as part of their schooling and the authorities refusal to grant them an exemption. The applicants alleged that the requirement to send their daughters to mixed swimming lessons was contrary to their religious convictions.

25 The Court held that there had been no violation of Article 9 of the Convention, finding that by giving precedence to the children s obligation to follow the full school curriculum and their successful integration over the applicants private interest in obtaining an exemption from mixed swimming lessons for their daughters on religious grounds, the Swiss authorities had not exceeded the considerable margin of appreciation afforded to them in the present case, which concerned compulsory education. Court found the restriction pursued a legitimate aim (protection of foreign pupils from any form of social exclusion). The Court emphasised, however, that school played a special role in the process of social integration, particularly where children of foreign origin were concerned.

26 It observed that the children s interest in a full education, facilitating their successful social integration according to local customs and mores, took precedence over the parents wish to have their daughters exempted from mixed swimming lessons and that the children s interest in attending swimming lessons was not just to learn to swim, but above all to take part in that activity with all the other pupils, with no exception on account of the children s origin or their parents religious or philosophical convictions. The Court also noted that the authorities had offered the applicants very flexible arrangements to reduce the impact of the children s attendance at mixed swimming classes on their parents religious convictions, such as allowing their daughters to wear a burkini.

27 Religious Symbols: To make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief; Human Rights Committee general comment 22 Para. 4: "The concept of worship extends to [...] the display of symbols". Para. 4: "The observance and practice of religion or belief may include not only ceremonial acts but also such customs as [...] the wearing of distinctive clothing or head coverings [...]."

28 Reasonable Accomodation The Council of Europe s Commissioner for Human Rights, Thomas Hammarberg, has recommended that the equality laws in the Council s Member States should require that all organisations make reasonable accommodation for the practical implications of diversity across all grounds covered by the legislation unless this causes a disproportionate burden on them The Special Rapporteur on Freedom of Religion or Belief has also suggested that the provision of reasonable accommodation as it is laid down in Article 5 of the Convention on the Rights of People with Disabilities should be understood as part of the legal responsibility of States, including as regards the guarantee of freedom of religion or belief. But he has also stated that: [A]gainst a widespread misunderstanding, the purpose of reasonable accommodation is not to privilege religious or belief related minorities, at the expense of the principle of equality. One should bear in mind that in the context of human rights, equality must always be conceived of as a diversity friendly equality, which is the opposite of sameness or uniformity. From the perspective of a diversity friendly, complex and substantive equality, measures of reasonable accommodation should be appreciated as instruments of translating the principle of equality into different social contexts

29 UN vs ECHR: Same issue, manifestly different jurisprudence Hudoybeganova v Uzbekistan CCPR 2004 HRC found a violation of Art 18 over a students ban from attending university wearing her headscarf. Also interfered with her right to freedom from coercion on religious matters under 18(2) Leyla Sahin vs. Turkey 2004 ECHR Prohibition against the wearing of religious clothing in public universities in Turkey resulted in Leyla Sahin (a fifth year Medicine student) being denied access to the university. Could not finish her studies at Istanbul University.

30 Para. 115: «In addition, like the Constitutional Court..., the Court considers that, when examining the question of the Islamic headscarf in the Turkish context, it must be borne in mind the impact which wearing such a symbol, which is presented or perceived as a compulsory religious duty, may have on those who choose not to wear it. As has already been noted, the issues at stake include the protection of the rights and freedoms of others and the maintenance of public order in a country in which the majority of the population, while professing a strong attachment to the rights of women and a secular way of life, adhere to the Islamic faith. Imposing limitations on freedom in this sphere may, therefore, be regarded as meeting a pressing social need by seeking to achieve those two legitimate aims, especially since, as the Turkish courts stated..., this religious symbol has taken on political significance in Turkey in recent years.... The Court does not lose sight of the fact that there are extremist political movements in Turkey which seek to impose on society as a whole their religious symbols and conception of a society founded on religious precepts

31 Para. 116: «Having regard to the above background, it is the principle of secularism, as elucidated by the Constitutional Court (see paragraph 39 above), which is the paramount consideration underlying the ban on the wearing of religious symbols in universities. In such a context, where the values of pluralism, respect for the rights of others and, in particular, equality before the law of men and women are being taught and applied in practice, it is understandable that the relevant authorities should wish to preserve the secular nature of the institution concerned and so consider it contrary to such values to allow religious attire, including, as in the present case, the Islamic headscarf, to be worn. Ban considered necessary in a democratic society. Conclusion: No violation of Article 9 (16 1 judges)

32 Bikramjit Singh v. France HRC 2014 Based on the 2004 French legislation, Bikramjit Singh, a young Sikh aged 18, was denied access to his classes because of the wearing of a keski ( a small light piece of material of a dark colour, often used as mini turban ). Instead he had to sit in the school s canteen to study on his own. After a short period of dialogue between the school authorities and the family Singh, the school decided to definitively expel Bikramjit from school since he refused to comply with the school s demand to remove his keski in the school premises.

33 The Committee recognizes in this case that France s aim was to protect the freedoms of others, public order and safety and acknowledges the importance of secularism as a means to protect the rights of others. Yet, secularism is clearly not considered as a carte blanche to limit the rights of individuals. The Committee notes in particular that France does not furnish compelling evidence that by wearing his keski the author would have posed a threat to the rights and freedoms of other pupils or to order at school. Additionally, the Committee is not convinced that the dialogue between the school authorities and the author truly took into consideration his particular interests and circumstances. (par. 8.7)

34 The Committee also observes that the harmful sanction of expulsion was not imposed because of a particular conduct or risk, but solely because of [Singh s] inclusion in a broad category of persons defined by their religious conduct. In conclusion the Committee finds the expulsion of the pupil because of his wearing of a religious garment disproportionate and unnecessary and therefore finds a violation of the freedom of religion.

35 The ECHR was confronted with the same issue in several cases. Ranjit Singh v. France and Jasvir Singh v. France concerned pupils wearing a keski (substituting a turban) and the case of Aktas v. France, Bayrak v. France, Gamaleddyn v. France and Ghazal v. France concerned Muslim pupils wearing a bonnet (substituting a headscarf). The ECHR declared the claims of all these applicants manifestly ill founded in similar inadmissibility decisions. The Court based these six decisions on the reasoning used in the earlier judgments of Dogru v. France and Kervanci v. France concerning pupils who were prohibited to wear a headscarf during sport education classes.

36 In the latter cases, the Court strongly relied on the margin of appreciation and observes that it is to the national authorities to take great care to ensure that, in keeping with the principle of respect for pluralism and the freedom of others, the manifestation by pupils of their religious beliefs on school premises did not take on the nature of an ostentatious act that would constitute a source of pressure and exclusion. (Dogru par.71) The Court also referred to the role of the principle of secularism which it interprets to be a constitutional principle, and a founding principle of the Republic, to which the entire population adheres and the protection of which appears to be of prime importance, in particular in schools. (Dogru par. 72)

37 CEDAW Art 5. States Parties shall take all appropriate measures: a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; Art 2. States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women, to this end, undertake: f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

38 CEDAW concluding observations Turkey 2010: 16. The Committee reiterates its concern about the absence of information and statistical data on the impact of the ban on the use of headscarves in the areas of education, employment, health and political and public life, such as the number of women excluded from schools and universities. 17. The Committee reiterates its previous concluding observations of 2005 and requests the State party to undertake studies to evaluate the impact of the ban on wearing headscarves in the fields of education, employment, health and political and public life, and to include detailed information regarding the result of the study and measures taken to eliminate any discriminatory consequences of the ban in its next periodic report.

39 CEDAW concluding observations France 2008: 20. While noting the evaluation by the State party of the implementation of the Act of 15 March 2004 banning the wearing of signs or dress through which pupils ostensibly indicate which religion they profess in public primary, middle and secondary schools, the Committee nevertheless remains concerned that the ban should not lead to a denial of the right to education of any girl and their inclusion into all facets of French society. 21. The Committee recommends that the State party continue to monitor closely the implementation of the Act so that there is no negative impact on the education of girls and their inclusion into all facets of French society. The Committee further recommends that the State party provide data in its next report on the educational achievements of migrant and immigrant girls at all levels.

40 CRC concluding comments France The Committee is also concerned that the new legislation (Law No of 15 March 2004) on wearing religious symbols and clothing in public schools may be counterproductive, by neglecting the principle of the best interests of the child and the right of the child to access to education, and not achieve the expected results. The Committee welcomes that the provisions of the legislation will be subject to an evaluation one year after its entry into force. 26. The Committee recommends that the State party, when evaluating the effects of the legislation, use the enjoyment of children s rights, as enshrined in the Convention, as a crucial criteria in the evaluation process and also consider alternative means, including mediation, of ensuring secular character of public schools, while guaranteeing that individual rights are not infringed upon and that children are not excluded or marginalized from the school system and other settings as a result of such legislation.

41 The number of jobs in the French public service is around 5.6 million while the number of people in France who have a job is around 26 million. Hence the French exclude Muslim women who wear a headscarf (as well as Sikh men who wear a turban and Jewish men who wear a kippah) from more than 21% of all potential jobs that they might aspire to in France. It seems that the Court might usefully have taken aboard this factor in its proportionality analysis. The broad interpretation by the French courts of a general neutrality principle in the applicant s case, affected not only the renewal of her contract with that specific hospital, but her chances of employment in the entire public sector Eva Brems, Ebrahimian v France: Headscarf Ban Upheld for Entire Public Sector Strasbourg Observers, 27 November 2015

42 Intersection of Rights areas of controversy Freedom from discrimination on grounds of religion or belief and other characteristics In Eweida and Others v UK, a clash between, on the one hand, freedom of religion or belief and the right to be free from discrimination on grounds of religion or belief and, on the other hand, the right to be free from discrimination on grounds of sexual orientation was at issue. Two of the applicants, a registrar of birth, deaths and marriages (Ladele) and a relationship counsellor (McFarlane), refused to perform those parts of their duties which involved providing a service to same sex couples, due to their Christian belief that homosexuality is against God s law

43 In 2008, the Special Rapporteur on Freedom of Religion or Belief, who is appointed by the HRC, commented that, in relation to the UK, some recent statutory equality provisions are reported to lead to a clash of religious convictions with other strands, for example sexual orientation. She continued that, on the one hand, some Christian people felt discriminated against by sexual orientation regulations but, on the other hand, members of the LGBT community argued that the existing statutory exemptions already favour religion. The Special Rapporteur concluded that, when it comes to balancing rights, there exists no hierarchy of discrimination grounds and that, ultimately, balancing different competing rights can only be decided on a caseby case basis taking into account the particular circumstances and implications of the case

44 Freedom of expression Freedom of expression is, like freedom to manifest one s religion or belief, not an absolute right. Restrictions on hate speech are a permissible limitation of the right to freedom of expression. There is no uniform definition of hate speech in either international or domestic law. The term is commonly used to refer to expression that is abusive, insulting, intimidating or harassing and/or which incites to violence, hatred or discrimination against groups identified by a specific set of characteristics, for example, race, religion, disability, sexual orientation or gender identity.