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Law and Religion Freedom of Religion 1 Learning Outcomes • To analyze the nature of the Freedom of Religion • To identify different aspects of Freedom of Religion • To recommend the proper balance between the Freedom of Expression and other legitimate aims • To compare and review how people of different religious beliefs and people with no religious beliefs see the Freedom of Religion 2 Overview • Human Rights Instruments on Freedom of Religion • Nature of the Freedom of Religion • Thought, Conscience, Religion and Beliefs • Freedom to have or to adopt a religion or belief of one’s choice • Freedom from Coercion to act contrary to one’s religion and beliefs • Religious Feelings be respected? • Freedom of Religion and Blasphemy • Defamation of Religion • Freedom to manifest one’s Religion: General • Freedom to manifest one’s Religion: Headscarf • Limitations on the Freedom to manifest one’s Religion • Parental Rights over children’s religious education • Freedom of Religion and Other Rights: Hate Speech • Freedom of Religion and Other Rights: Non-discrimination • Conclusion 3 Art. 18, International Covenant on Civil and Political Rights “1. 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. 4 Art. 18, International Covenant on Civil and Political Rights 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 5 Art. 18, International Covenant on Civil and Political Rights 3. 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. 6 Art. 18, International Covenant on Civil and Political Rights 4. 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.” 7 Other Human Rights Instruments on Freedom of Religion European Convention on Human Rights, Article 9 and Article 2, First Protocol Human Rights Committee, General Comment 22 (1993) Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981) 8 Nature of Freedom of Religion Religious faith – beliefs of absolute and ultimate truth 9 Nature of Freedom of Religion Internal & external -(internal dimension is protected unconditionally, but is it separable from the external dimension?) Private & public Passive & active Individual & communal 10 Thought, Conscience, Religion and Beliefs Freedom of Thought and Conscience -develop autonomous thoughts and a conscience free from impermissible external influence -foundation of freedom of Religion and Beliefs 11 Thought, Conscience, Religion and Beliefs Religion - no definition -include mainstream religions, sects within a mainstream religion and non-mainstream religions 12 Thought, Conscience, Religion and Beliefs Beliefs -non-religious convictions like pacifism, atheism -require a certain level of cogency, seriousness, cohesion and importance 13 Pretty v. UK Pretty was a 43-year-old woman and suffers a disease and was then paralyzed. Her life expectancy was very poor. However, her intellect and capacity to make decisions was unimpaired. Pretty very strongly wished to be able to control how and when she died and thereby be spared that suffering and indignity. She wrote to the Director of Public Prosecutions (DPP) asking him to give an undertaking not to prosecute her husband should he assist her to commit suicide in accordance with her wishes. The DPP refused. Such claim was not recognized as a belief. 14 M. A. B., W. A. T. and J.-A. Y. T. v. Canada Three Canadian citizens were members of an organization named "Assembly of the Church of the Universe", based in Ontario, Canada. The Church held beliefs and practices that involved the care, cultivation, possession, distribution, maintenance, integrity and worship of the "Sacrament" of the Church. This was also referred as "God's tree of life" and is generally known as marijuana. They were arrested and prosecuted for breaching offences under the Canadian Narcotic Control Act. That was not recognized as a belief. 15 Freedom to have or to adopt a religion or belief of his choice 1.Include the right to change religion 16 Freedom to have or to adopt a religion or belief of his choice 2. Freedom from coercion -Any coercion upon an individual compelling her/him to join or to maintain a religion or belief or preventing him/her from leaving a religion or belief contravenes the individual’s freedom of religion. -cannot be restricted -no definition of coercion 17 Freedom to have or to adopt a religion or belief of his choice Coercion: apostasy indoctrination by the state Administrative arrangements for one to change religion (e.g. requirement to disclose one’s religion) moral pressure from private source? missionary works associated with social actions like material assistance? proselytism? -only improper means? 18 -what is improper? Kokkinakis v. Greece Section 4 of Law no. 1363/1938, Greece provided that: "1. Anyone engaging in proselytism shall be liable to imprisonment and a fine… 2. By 'proselytism' is meant, in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion, with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naïvety.” 19 Kokkinakis v. Greece Mr. Kokkinakis was a Jehovah's Witness. He and his wife called at the home of Mrs. Kyriakaki and engaged in a discussion with her. They told her that they brought good news to her by insisting in a pressing manner; reading from a book on the Scriptures which they provided interpretations; and encouraging her by means of their explanations to change her Orthodox Christian beliefs.They were convicted for committing the above offence and were sentenced to four months’ imprisonment. 20 Kokkinakis v. Greece Decision of the European Court of Human Rights (Majority): True evangelism Improper proselytism: offering material or social advantages with a view to gaining new members for a Church or exerting improper pressure on people in distress or in need; it may even entail the use of violence or brainwashing No evidence of improper proselytism. Contravention was found. 21 Kokkinakis v. Greece Decision of the European Court of Human Rights (Another view): -absolute freedom to change religion -conflict between two subjects -state should not interfere -difficult to determine what is improper -cannot have a law to limit proselytism The law contravened freedom of religion 22 Freedom to have or to adopt a religion or belief of his choice Measures that will impair a person’s choice to leave a religion should constitute coercion but appeals to conscience, preaching and seeking to influence a person to maintain or to change his religion will not be regarded as coercive. 23 Freedom from coercion to act contrary to one’s religion If the law requires all people to act in a particular way and if that will cause a person to act contrary to his/her religion, it will infringe the internal dimension of his/her freedom of religion. -requiring a person to swear a religious oath against his/her religious faith -conscientious objection to military service 24 Boodoo v. Trinidad and Tobago A Muslim prisoner was forced to have his beard shaved off, despite his protest that his Muslim faith forbids him to do so. Contravened the freedom of religion. 25 Buscarnin and Others v. San Marino Buscarini was elected to the General Grand Council (the parliament of the Republic of San Marino). The wording of the oath referred to the Holy Gospels..” Buscarini swore the oath without reference to the Gospels. The General Grand Council adopted a resolution ordering Buscarini to retake the oath, this time on the Gospels, on pain of forfeiting his parliamentary seats. Contravened the freedom of religion as the order constituted a limitation. 26 Stedman v. UK Stedman was an assistant manager in a branch of a travel agency. She was required to work on Sundays. She refused to work on Sundays and was dismissed. She alleged that her dismissal for refusal to work on Sundays constituted a violation of her freedom to manifest her religion in worship, practice and observance. As she was freed to resign, there is no contravention against her freedom of religion. 27 Religious Feeling be respected? Can a right to protection of religious feeling be derived from the right to freedom of religion? 28 Otto-Preminger-Institute v. Austria Section 188 of the Penal Code, Austria, provides that: "Whoever, in circumstances where his behaviour is likely to arouse justified indignation, disparages or insults a person who, or an object which, is an object of veneration of a church or religious community established within the country, or a dogma, a lawful custom or a lawful institution of such a church or religious community, shall be liable to a prison sentence of up to six months or a fine of up to 360 daily rates." 29 Otto-Preminger-Institute v. Austria Otto-Preminger-Institut arranged the public showing of a film. The film portrays the God of the Jewish religion, the Christian religion and the Islamic religion as an apparently senile old man prostrating himself before the Devil with whom he exchanges a deep kiss and calling the Devil his friend. He is also portrayed as swearing by the Devil. Other scenes show the Virgin Mary permitting an obscene story to be read to her and the manifestation of a degree of erotic tension between the Virgin Mary and the Devil. The adult Jesus Christ is portrayed as a low grade mental defective and in one scene is shown lasciviously attempting to fondle and kiss his mother's breasts, which she is shown as permitting. God, the Virgin Mary and Christ are shown in the film applauding the Devil. 30 Otto-Preminger-Institute v. Austria Decision of he ECHR: -must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. -in extreme cases the effect of particular methods of opposing or denying religious beliefs can be such as to inhibit those who hold such beliefs from exercising their freedom to hold and express them. 31 Otto-Preminger-Institute v. Austria Decision of he ECHR: -The respect for the religious feelings of believers as guaranteed in the freedom of religion can legitimately be thought to have been violated by provocative portrayals of objects of religious veneration; and such portrayals can be regarded as malicious violation of the spirit of tolerance, which must also be a feature of democratic society. -Freedom to express can therefore be legitimated restricted. 32 Religious Feeling be respected? It is not clear how the effect of some extreme methods of opposing or denying religious beliefs could inhibit those who hold such beliefs from exercising their freedom to hold and express them. 33 Religious Feeling be respected? “If these claims are good ones, the people will get what they want with no need to put themselves in the humiliating situation of whining about their distress. If the claims are not convincing, then most probably the whining will not make up for them and will fall short of establishing a demand to restrict liberty.” Statman, Daniel 34 Freedom of Religion and Blasphemy 1. Blasphemous offences may be justified on protecting religious feeling 2. But blasphemy law in most countries only protect the preferred religion but not applicable to all religions 3. Unclear whether there is any duty on states to enact blasphemy law applicable to all religions 4. There is concern that whether blasphemous offences may be used by religious extremists 35 to censure debates on religions Defamation of Religion Combating Defamation of Religion Resolution: - negative stereotyping of religions - defamation of religions causes social disharmony and leads to violations of human rights - in the aftermath of the September 11 attacks on the United States, Islam has been frequently and wrongly associated with terrorism, and the ethnic and religious profiling of Muslim minorities is becoming more and more acceptable - deplores the use of print and electronic media to incite xenophobia against Islam or any 36 other religion Defamation of Religion Combating Defamation of Religion Resolution: - condemns physical attacks on places of worship and religious symbols - urges states to prevent political institutions and organizations from fomenting discrimination, hostility, and violence against religious groups - urges states to complement their legal systems with intellectual and moral strategies to combat religious hatred and intolerance - calls upon the international community to initiate a global dialogue between civilizations to promote a culture of tolerance and an awareness 37 of religious diversity. Defamation of Religion Special Rapporteur on freedom of religion or belief, Asma Jahangir: “Defamation of religions may offend people and hurt their religious feelings but it does not necessarily or at least directly result in a violation of their rights, including their right to freedom of religion. Freedom of religion primarily confers a right to act in accordance with one’s religion but does not bestow a right for believers to have their religion itself protected from all adverse comment. 38 Defamation of Religion Special Rapporteur on freedom of religion or belief, Asma Jahangir: “While the exercise of freedom of expression could in concrete cases potentially affect the right to freedom of religion of certain identified individuals, it is conceptually inaccurate to present this phenomenon in abstracto as a conflict between the right to freedom of religion or belief and the right to freedom of opinion or expression. 39 Defamation of Religion Special Rapporteur on freedom of religion or belief, Asma Jahangir: “Therefore, the question as to whether criticism, derogatory statements, insults or ridicule of one religion may actually negatively affect an individual’s right to freedom of religion or belief can only be determined objectively and, in particular, by examining whether the different aspects of the manifestation of one’s right to freedom of religion are accordingly negatively affected.” 40 Defamation of Religion Special Rapporteur on freedom of religion or belief, Asma Jahangir: “ [One] should avoid stubbornly clinging to free speech in defiance of the sensitivities in a society with absolute disregard for religious feelings, not suffocating criticism of a religion buy making it punishable by law. Rather, one should focus on creating a tolerant and inclusive environment in which all religions and beliefs may be exercised free of discrimination or stigmatization, within reasonable limits. The situation will not be remedied by preventing ideas about religions from being expressed.” 41 Freedom to Manifest one’s Religion: General -manifest religion or belief but not thought and conscience -not every act motivated or influenced by a religion or belief may be a manifestation 42 Arrowsmith v. UK Arrowsmith distributed leaflets to troops stationed at an army camp urging them to desert or to refuse to obey orders if they were posted to Northern Ireland on the basis of her pacifist beliefs. She was convicted under the Incitement to Disaffection Act, 1934. 43 Arrowsmith v. UK Decision of he Commission of Human Rights: -actions of individuals do not actually express the belief concerned they cannot be considered to be as such protected by the freedom of religion No contravention was found. 44 Freedom to Manifest one’s Religion: General -The right to manifest one’s religion is to be exercised individually or in community with others. To choose individual manifestation and manifestation in community is totally the individual’s choice. – Allowing manifestation of one form cannot be a substitute for the other.45 Metropolitan Church of Bessarabia and Others v. Moldova The Metropolitan Church of Bessarabia and twelve Moldovan nationals challenged the Moldovan authorities’ refusal to recognize the Metropolitan Church of Bessarabia as required under the Religious Denominations Act. The Metropolitan Church of Bessarabia was separated from the Metropolitan Church of Moldova. According to the Religious Denominations Act, only religions recognized by government decision may be practised 46 Metropolitan Church of Bessarabia and Others v. Moldova Decision of he ECHR: -manifest one’s religion in community with others, encompasses the expectation that believers will be allowed to associate freely, without arbitrary State intervention. Freedom to religion contravened 47 Freedom to Manifest one’s Religion: General Forms of manifestation: 1. worship: 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. 48 Freedom to Manifest one’s Religion: General Forms of manifestation: 2. observance and practice of religion or belief : ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or headcoverings, participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group. 49 Freedom to Manifest one’s Religion: General Forms of manifestation: 3. practice and teaching of religion or belief : acts integral to the conduct by religious groups of their basic affairs, such as the 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. 50 4. Proselytism Freedom to Manifest one’s Religion: headscarf In the tradition of Islam, veiling is an instrument of morality that illustrates a desire to hide femininity and to conceal the female body form the view of males. Veiling also demands modesty of behaviours through the behavioural control that the woman must exercise to limit her appeal in public. 51 Dahlab v. Sweden Dahlab, a Swiss national born, was a primary school teacher in Geneva. She abandoned the Catholic faith and converted to Islam and began wearing an Islamic headscarf in class. Her intention was to observe a precept laid down in the Koran whereby women were enjoined to draw their veils over themselves in the presence of men and male adolescents. 52 Dahlab v. Sweden Dahlab was prohibited from wearing a headscarf in the performance of her professional duties on the grounds that such a practice contravened section 6 of the Public Education Act and constituted “an obvious means of identification imposed by a teacher on her pupils, especially in a public, secular education system.” 53 Dahlab v. Sweden Decision of the ECHR: -weighing the right of a teacher to manifest her religion against the need to protect pupils by preserving religious harmony No contravention was found. 54 Leyla Sahin v. Turkey A university student in Turkey challenging the disciplinary ruling against her for wearing headscarf in breach of the university regulations 55 Leyla Sahin v. Turkey Decision of the ECHR: - 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 was considered No contravention was found. 56 Aktas v. France (application no. 43563/08) Aktas who is a Muslim on the first day of school arrived wearing a headscarf or kerchief. The Head Master of the school considered that the headwear in question infringed the legislation prohibiting the wearing of dress or other symbols that manifested religious affiliation, and not only during physical education classes but in all classes, in accordance with a French law of 2004. When the pupil refused to remove the offending headwear the Head Masters denied them access to the classroom. Aktas subsequently decided to wear a hat instead of her headscarf. After a period of dialogue with the families, the school’s disciplinary board took the decision to expel the pupil for failure to comply with the provisions of Article L. 141-5-1 of the Education Code. 57 Aktas v. France (application no. 43563/08) Article L. 141-5-1 of the Education Code: “In primary and secondary public schools, wearing symbols and articles of clothing by which the students ostensibly manifest a religious affiliation is prohibited. The rules and regulations recall that the implementation of a disciplinary procedure is preceded by a dialogue with the student.” 58 Aktas v. France (application no. 43563/08) Whether Article 9 was contravened? Decision of the European Court of Human Rights: -the ban on the wearing by pupils of religious symbols constituted a restriction of their freedom to manifest their religion -the expulsion measure could be explained by the requirements of protecting the rights and freedoms of others and public order rather than by any objections to the pupils’ religious beliefs -the importance of the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs. -a spirit of compromise on the part of individuals was necessary in order to maintain the values of a democratic society -the ban on all conspicuous religious symbols in all classes of state schools was based on the constitutional principle of secularism, which was consistent with the values protected by the Convention and the Court’s case-law. 59 Aktas v. France (application no. 43563/08) Whether Article 9 was contravened? Decision of the European Court of Human Rights: - the permanent wearing of substitute headwear also constituted a manifestation of religious affiliation. It pointed out that the 2004 law had to apply to the appearance of new religious symbols and also to potential attempts to circumvent the law. - The expulsion was not disproportionate as the pupils still had the possibility of continuing their schooling by correspondence courses. - the interference by the authorities with the pupils’ freedom to manifest their religion was therefore justified and proportionate to the aim pursued. Consequently, their complaints under Article 9 had to be rejected as manifestly ill-founded. 60 Freedom to Manifest one’s Religion: headscarf The headscarf controversy involves the choice between two responses to ethnic diversity and minority cultures. -assimilation -cultural pluralism 61 Freedom to Manifest one’s Religion: headscarf Reasons to justify the ban of wearing headscarf in public schools in different countries: (1)an act of pressure, provocation, proselytism or propaganda (2)students and parents be free from improper influences from school. (3)Veiling is a politicized symbol of systemic rejection 62 Freedom to Manifest one’s Religion: headscarf Whether genuine pluralism exists in a country where teachers whether in the classroom or outside are not tolerated for disclosing their religious beliefs in simple forms of dress? If teachers, particularly of minority religions, are prohibited from wearing religious dress, the message is likely to be a powerful one of intolerance towards the religion concerned. 63 Freedom to Manifest one’s Religion: headscarf The Parliament of Yellow passed the Religious Symbols Law: “The wearing of symbols or articles of clothing by which students ostensibly display religious affiliations is forbidden in public schools and universities unless prior approval is given by the Director of Religious Harmony.” Yeldred was a university student at University of Yellow. She is a believer of Firism. She was discontinued from study on the ground that she had persistently dressed herself wholly in red without getting the approval from the Director of Religious Harmony as required by law. Red is generally accepted by believers of Firism as the symbolic colour of Firism and it is a custom of female believers of Firism to dress in red. 64 Freedom to Manifest one’s Religion: headscarf 5% of Yellow’s population are believers of Firism. In the last 30 years, believers of Firism were involved in at least 3 rebellions in Yellow. The neighboring state, Fire has a population with believers of Firism as the majority. State Yellow and State Fire often have territorial conflicts. Yeldred initiates a court proceeding to challenge the legality of her discontinuation by the University of Yellow and the constitutionality of the Religious Symbols Law. 65 Limitations on the Freedom to manifest one’s Religion -An interference: there is a sufficient detriment to the person 66 Ivanova v. Bulgaris V was a member of a religious group called the “Word of Life.” The group applied for registration as required for any non-profit organizations which had religious or related activities under the Bulgarian law. The application refused. Meetings of the organization were periodically thwarted by the police followed by media propaganda against the organization and its members. V was as a mechanical engineer and had a second university degree in pedagogical sciences. She worked as the swimming pool manager in a local school. The school changed the requirement of such a post that the holder of the post must have a higher- education quantification. V was dismissed on the ground of not meeting the education and professional qualification. 67 Ivanova v. Bulgaris Decision of the ECHR: -the termination of V’s employment was not simply the result of a justified amendment of the requirements for her post, but in fact took place on account of her religious beliefs and affiliation with the Word of Life, -constituted an interference with her right to freedom of religion Contravention was found. 68 Church of Scientology Moscow v. Russia The Church of Scientology Moscow (CSM) was officially registered as a religious association having legal status under Russian laws since 1994. In 1997, a new law was made requiring all religious associations that had previously been granted legal-entity status to bring their articles of associations into conformity with the new law and obtain re-registration from the authorities. CSM applied for re-registration but was refused. 69 Church of Scientology Moscow v. Russia Decision of the ECHR: -a refusal to recognise it also constitutes interference with CSM’s right to freedom of religion -believers' right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary state intervention -the reasons invoked by the authorities to deny re- registration of CSM had no legal basis, it can be inferred that, in denying registration to CSM the authorities did not act in good faith and neglected their duty of neutrality and impartiality Contravention was found. 70 97 Members of the Gldani Congregation of Jehovah's Witnesses & 4 Others v. Georgia G and others are members of a congregation of Jehovah’s Witnesses in Georgia. They were attacked, humiliated and severely beaten during their religious meeting by a group of Orthodox believes led by F. Several individuals who had succeeded in escaping the attack attempted to alert the police. The police officers registered one persons’ statement but decided not to intervene. On the day following the attack, they lodged a complaint. Criminal proceedings were opened, but the proceedings were suspended on several occasions, on the ground that it was impossible to identify the perpetrators of the attack though the attackers were clearly identifiable from the recordings of the television channels. 71 97 Members of the Gldani Congregation of Jehovah's Witnesses & 4 Others v. Georgia Decision of the ECHR: Inactivity of the relevant activities showed that the authorities failed in their duty to take the necessary measures to ensure that the group of Orthodox extremists leb by F tolerated the existence of G’ religious community and enable them to exercise freely their rights to freedom of religion. Contravention was found 72 Limitations on the Freedom to manifest one’s Religion -The state must provide legitimate justification -prescribed by law -specific grounds of restriction -necessary in a democratic society: directly related and proportionate 73 Limitations on the Freedom to manifest one’s Religion prescribed by law -accessible -sufficient precision, reasonable foreseeable -against arbitrary discretion powers 74 Hasan and Chaush v. Bulgaria Hasan was the Chief Mufti of the Bulgarian Muslims elected by the Muslim community. His leadership was removed by the State on the basis of the Religious Denominations Act and an executive order. 75 Hasan and Chaush v. Bulgaria Decision of the ECHR: - the relevant law does not provide for any substantive criteria -no procedural safeguards Contravention was found. 76 Limitations on the Freedom to manifest one’s Religion specific grounds of restriction: (1) public safety (2) public order (3) public health (4) public morals (5) the fundamental rights and freedoms of others 77 K. Singh Bhinder v. Canada Bhinder is a Sikh by religion. He was employed by the Canadian National Railway Company as a maintenance electrician. He wears a turban in his daily life and refused to wear safety headgear during his work. This resulted in the termination of his labour contract. No contravention as the limitation was justified on the ground of public safety. 78 Manoussakis v. Greece A group of Jehovah Witnesses in Greece was prosecuted for established and operated a place of worship for religious meetings and ceremonies of followers of another denomination without authorisation from the recognised ecclesiastical authorities and the Minister of Education and Religious Affairs. 79 Manoussakis v. Greece Decision of the ECHR: -the authorization can be based on the ground of protection of public order -but the state used the regulation to impose rigid, or prohibitive conditions on practice of religious beliefs by certain non-Orthodox movements, in particular Jehovah Witnesses -not proportionate -Contravention was found 80 Kokkinakis v. Greece Decision of the European Court of Human Rights (Majority): -law prohibiting Improper proselytism -can be justified on the ground of protection of the rights and freedoms of others -but no evidence of improper proselytism -No contravention was found 81 Parental Rights over children’s religious education -no justification is permitted to justify any failure to respect parental wishes -threshold that may constitute infringement is rather high -best interest of the child should be the guiding principle -parents may form private schools to provide the religious and moral education that they want their children to receive but the state has no duty to subsidize such private schools 82 Kjeldsen, Busk Madsen and Pederson v. Denmark Some Christian parents in Denmark objected to the compulsory sex education curriculum in state schools. Schools are required to provide sex education to include instruction on the anatomy of the reproductive organs, conception and contraception and venereal diseases to such extent that the pupils will not later in life land themselves or others in difficulties solely on account of lack of knowledge. Parents are allowed to apply for exemption by applying to the principal of the school. 83 Kjeldsen, Busk Madsen and Pederson v. Denmark Decision of the ECHR: The public authorities wish to warn students against phenomena it views as disturbing, for example, the excessive frequency of births out of wedlock, induced abortions and venereal diseases. These considerations are indeed of a moral order, but they are very general in character and do not entail overstepping the bounds of what a democratic State may regard as the public interest. No contravention was found 84 Valsamis v. Greece A student studying at a state secondary school refused to take part in the celebration of the National Day which was commemorated with school and military parades. Her ground of refusal was that she was a Jehovah's Witnesses. She claimed that pacifism is a fundamental tenet of her religion and forbids any conduct or practice associated with war or violence, even indirectly. The headmaster of the school punished her for her failure to attend with one day's suspension from school. Her parents made the complaint on the basis of their parental rights. 85 Valsamis v. Greece Decision of the ECHR: -commemorations of national events serve, in their way, both pacifist objectives and the public interest. The presence of military representatives at some of the parades which take place in Greece on the day in question does not in itself alter the nature of the parades. No contravention was found 86 Freedom of Religion and Hate Speech Article 20, International Covenant on Civil and Political Rights: “2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” 87 Freedom of Religion and Hate Speech Racial and Religious Tolerance Act 2001, State of Victoria, Australia: “8. (1) A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.” 88 Freedom of Religion and Hate Speech -A hate speech offence required under Article 20, ICCPR aims at prohibiting act or speech that might incite discrimination, hostility or violence on ground of religious hatred. 89 Freedom of Religion and Hate Speech -If A is the inciter, B is the one being incited and C is the one being incited against. Such law regulates act or speech as between A and B on whether A’s incitement will create certain effect in B. Whether C’s religious feeling will be hurt by such act or speech is not relevant. It is different from blasphemous offences. If A make a speech or commit an act to B or to C, blasphemy law will look at the effect upon C on whether his/her religious feeling will be hurt and the impact on B is not relevant. 90 Freedom of Religion and Hate Speech -There is concern whether such hate speech offence will interfere with one’s freedom of religion to teach or convey the tenets of any religion or belief where to do so may offend the beliefs of others. -Would this kind of offence has the effect of encouraging intolerance rather than tolerance if religious groups (especially the more extreme groups) use the law to invoke criminal machinery against each other’s religion, tenets or practices by alleging the other has incited hatred on the basis of their religion? 91 Freedom of Religion and Hate Speech -The threshold of the acts that are referred to in Article 20 should be relatively high. Expressions should only be prohibited under Article 20 if they constitute incitement to imminent acts of violence or discrimination against a specific individual or group. -This should also be distinguished from defamation of religion. 92 Freedom of Religion and Freedom of Expression contextualized approach examines: “the value of that speech in that society, assessing the harm to the individuals or community in light of that individual or community’s standing in the greater society.” (Kapai, Puja, and Cheung, Anne S Y, “Hanging in a Balance: Freedom of Expression and Religion,” (2009) 15 Buffalo Human Rights Law Review 41 at p. 77.) 93 Freedom of Religion and Freedom of Expression contextualized approach: “…freedom of expression should yield to freedom of religion if: (1) there is an intention t incite hatred and/or violence against an individual or a particular group by reason of their affiliation with or membership of the religious group, idea or practice which is the subject of the offender’s remarks or conduct; and it is likely that violence will indeed occur; or the effect of the means or manner employed to oppose or deny certain religious beliefs or practices are such as to inhibit those who hold such beliefs or are somehow affiliated with the religion these beliefs or practices form a part of, from exercising their freedom to hold, express and practice such beliefs.” (Kapai, Puja, and Cheung, Anne S Y, “Hanging in a Balance: Freedom of Expression and Religion,” (2009) 15 Buffalo Human Rights Law Review 41 at p. 77.) 94 Religion and Non-discrimination -People should not receive different treatment on the basis of his/her religion. -There may be discrimination if there is a differential treatment as well as a failure to differentiate appropriately. -To be a legitimate differentiation, any such differentiation must be based on reasonable and objective criteria. 95 Thlimmenos v. Greece A Jehovah's Witness was convicted for having refused to wear the military uniform at a time of general mobilization in Greece. Later, he sat a public examination for the appointment of chartered accountants. He came second among sixty candidates. However, the Executive Board of the Greek Institute of Chartered Accountants refused to appoint him on the ground that he had been convicted of a serious crime. 96 Thlimmenos v. Greece Decision of the ECHR: The right not to be discriminated against in the enjoyment of the rights is violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different. Unlike other convictions for serious criminal offences, a conviction for refusing on religious or philosophical grounds to wear the military uniform cannot imply any dishonesty or moral turpitude likely to undermine the offender's ability to exercise this profession. Contravention was found 97 Frederic Foin v. France A Frenchmen, who was a recognized conscientious objector to military service, was assigned to civilian service duty in the national nature reserve. He invoked the allegedly discriminatory character of the National Service Code of France, pursuant to which recognized conscientious objectors were required to perform civilian national service duties for a period of two years, whereas military service did not exceed one year. 98 Frederic Foin v. France Decision of the Human Rights Committee: -the reasons forwarded by the State party was based on the argument that doubling the length of service was the only way to test the sincerity of an individual's convictions. -such argument does not satisfy the requirement that the difference in treatment involved in the present case was based on reasonable and objective criteria -Contavention was found 99 Religion and Non-discrimination Discrimination against religious bodies -can be found in registration requirements imposed on religious bodies. -The registration process often places excessive discretion in the hands of the States in granting approvals to meetings, evangelism, charitable work, religious seminars, printing of religious materials, build or use of places of worships. 100 Religion and Non-discrimination Discrimination against religious bodies -Reasons for discrimination in registration include: -protection for mainstream religions, -to maintain religious harmony, -to avoid disturbance, -to prevent non-nationals from preaching, -to prevent some religions from being practiced and to prevent proselytism. 101 Religion and Non-discrimination There may be a duty on states to outlaw private discrimination . 102 Conclusion 1. The modern understanding of freedom of religion tends to see religion as a private affair of individual. On the condition an individual keeps one’s religion to this private sphere, one will be protected from intervention and control of others. There is an assumption that the internal and external dimensions are separable. 103 Conclusion 2. However, to many religious people, religion is not just something limited to their heart and mind. Religion is a way of life and a sense of identity. However, their freedom of religion in the more manifested forms does not enjoy similar level of recognition. 104 Conclusion 3. Even though in principle one’s enjoyment of freedom of religion should not be judged by the content of one’s religious beliefs, the reality is that the development of the freedom of religion does see religions differently (less favourable to Islam, minority religions and new religions). 105 Conclusion 4. The issue in freedom of religion is (1) an under-emphasis of the importance of the religious faith to religious believers by human rights laws; and (2) the over-emphasis of the religious faith by religious believers as to believers of the same religious faith but belonging to other schools; to other religious faiths and to the non-religious. 106 Conclusion 5. In considering the proper scope of the freedom of religion, the major issue is how far one could truly accept pluralism and toleration together with one’s belief in the existence of certain absolute truth. 107