Secularism 2019: Dr Ahmed Shaheed, Introduction to religious freedom

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Good morning to you all. I am delighted
to be here amongst such a big gathering of fellow human rights defenders, and
thank you very much for inviting me to speak at this important conference. I’ve
been asked to give an introduction, an overview, of the right to freedom of
religion or belief or religious freedom as, I said. But before I do that, let me
just take a moment to tell you about the work I do as the UN Rapporteur. As a UN
Rapporteur my task is to monitor the implementation by states of what is
called the 1981 UN declaration on the elimination of all forms of intolerance
and of discrimination based on religion or belief. And this declaration is the
most detailed account internationally, in the UN system, of what is and what isn’t
entailed by the right to freedom of the general belief in terms of what rights
States ought to respect, protect, and promote. And the way I do my monitoring
is to produce two thematic studies a year, looking at different aspects of
this right, to undertake two country missions of a fortnight duration each, to
two countries who would let me in each year, to write as many advocacy letters
as I have time to do so, on behalf of victims who have their rights
violated, or are about to have their rights violated, and to engage in as many
activities, as this one, where my time will allow me to do so, to promote
understanding about the right and to network people working in this area.
So that is what I do as UN Rapporteur. Now, having said that, let me start my
remarks today by talking a little bit about the international legal base for
this right, I call it the right to thought, to make my life easier, freedom of the
general belief, because I do not think the term ‘religious freedom’ adequately
conveys the meaning of the right of freedom of thought, conscience, religion
or belief, and also and also of course there are groups, I think especially in
the U.S, across the pond, who use the term ‘religious
freedom’ to be synonymous with claims to religious privilege, to play an exceptions
from laws protecting against discrimination. So I just want to insist
that I use this phrase and that people be mindful that we talk about a very
broad right. It’s also important because if you look at the way
the right is enshrined in international law, the Universal Declaration Of Human Rights
Article 18, and the Article 18 of the International Covenant on Civil and
Political Rights, the failure to include the terms ‘thought’ and ‘belief’ has
important implications for those who want to have the right protected, and
also for those who claim the right to be synonymous with religious freedom,
claiming that this right protects, primarily, religious people, rather than
all human beings. So I think it’s extremely important, both in its
descriptive and prescriptive capacity, to use the wider term ‘freedom of religion or
belief’, also, the belief aspect of this right is extremely important for those who
don’t profess a religion, for humanists, free thinkers, rationalists, atheists or
agnostics. But I’ll get to this broader element in a moment. So the legal
framework, and to quote Ambassador Charles Malik of Lebanon, who was one of
the pen holders of the Universal Declaration, “the human person’s
most sacred and inviolable possessions are his mind and his conscience,
enabling him to perceive the truth, to choose freely and to exist”.
According to ambassador Charles Malik if the protection of human dignity was not
to remain a dead letter, that this was one of the core principles that had to
lead the work of the committee, entrusted to draft the Declaration.
What Malik was referring to is today known as the forum internum
of freedom of religion and belief, who’s inviolibility is well
established in international law, and represents the absolute component of the
right to religion and belief, as in Article 18 of the Covenant. In other words, there can be no interference, under
any circumstance, by the state, or anybody else, in our forum internum, in what we
hold in our minds to be our ultimate beliefs and thoughts. The right, therefore,
includes the right to have or adopt a religion or belief of one’s choice, as
observed by the UN Human Rights Committee in general comment 22. This
entails both the freedom to choose any religion or belief as the one to replace
one’s current convictions. Just as freedom of thought, conscience, and
religion or belief, protects the right of the individual to follow a religion, it
also protects the right to reject a religion of belief, to identify as
humanist or non-religious, and to manifest non-religious convictions
through expression, teaching and practice. Whilst this fundamental right includes
the right not to reveal your beliefs,or this identification, and right not to
take part in any ceremonies it also includes the freedom to argue for those
beliefs in public, and to seek, persuade, others to the merits of a beliefs, or
the flaws of theirs through debate, discussion and criticism. Interestingly
the freedom to convert revealed to be the most controversial aspect of the
right, there are negotiations of the Covenant, and some states still today
have in place apostasy laws and criminalized conversion from the
country’s official religion to any other belief system. Apostasy laws, therefore,
constitute a clear violation of the forum internum, which enjoys unqualified
protection even in times of public emergency. Freedom from coerced
conversion is an element of the protection entitled the freedom
of holding a belief freely chosen. For acts of the state under this
provision include penal sanctions, threats of physical force, policies that
aim at compelling or facilitating an individual to adhere to a specific
system of belief or recant their own. States also bear the responsibility to protect individuals under the jurisdiction from similar
interference by third parties, be they family members or members of society.
Let me now turn a bit about limitations of this right and the accommodation that
may be called for in regard to this right. Whereas the freedom to hold a belief of one’s choice is an absolute right,
the freedom to manifest that belief, either individually or in community with
others, is a qualified one. Limitations can be adopted when they are prescribed
by law and are necessary to protect public safety, public order, public health, public
morals, or the rights and freedoms of others. Now, the limitations are a very tricky business, it’s an important area and I
know the NSS are very keenly committed to working in this area. It’s a very
important area. Last year I wrote a whole report on the links between religion and
state, and part of that looked at times when the right to equality and
non-discrimination comes against claims to religious freedom. In other words how
do we negotiate a space between the rights of everybody and the rights that
some religious orders claim. In short these limitations have a high threshold
and must be very narrowly constructed. They must be very clear in terms of
when a person may actually trigger that border. The forms of manifestation
protected are those linked to worship, observance, teaching, and practice, and a
more detailed list, of course, of these rights are found in the 1981 declaration,
as I mentioned. These are the declaration, entail, for instance, observance of religious
holidays, of dietary rules, the wearing of the symbols, and acts integral to the to
the conduct of religious groups, such as the freedom to elect religious leaders,
priests and teachers, to establish place of worship, and others. So a detailed
listing of these rights are found in article 6 of this declaration. I think
it’s useful to look at what are the permissible limitations and
exceptions to these rights. I would argue that institutions that
open their doors to the public to provide services whether for lodging, catering or
health care, should not be able to claim a religious exemption to rules
furthering public health. Any contrary rule would permit
the institution to impose its faith, or the leaders of the institution’s, their
faith, upon others with resulting harm to health. equality and dignity. And I
shall insist on this principle every time I speak about the accommodation
that has to be offered on account of religion. Institutions that provide goods
or services to the public, of course, differ from churches,
synagogues, mosques, temples and other houses of worship, in those institutions the
rules of the faith are typically being imposed only on those who have chosen to
accept, or at least explore, the faith voluntarily. By contrast, government officials such as clerks, charged with issuing marriage licenses,
should not be afforded an exemption from laws advancing equality. And this is true
even if the objector can be accommodated, in such that the person or couple can be
served without being aware of the objection. Any accommodation of a
government official, even behind the counter, puts the imprimatur of the
government on the discrimination, and it should be disallowed. Of
course, outside the government context individuals should be
accommodated, where doing so does not result in harm. Consistent with this,
principle expressions of faith manifested in appearance should be
accommodated, absent a showing of harm to others, and a showing we think very hard
to really sustain. I know educationis an area in which the
NSS are quite active, and again I would argue that article 18, while it provides
for the rights of parents, or legal guardians, to raise their children or ward
in education of their choice, there are strict limitations or how far this right
will extend. This right has to be balanced with the child’s
own right to freedom of thought, in a manner consistent with the child’s
evolving capacities. This principle is crucial, since it acknowledges that at a
certain age, the child shall be free to make their personal choices in matters
of thought, religion or belief. There’s a debate going on, there’s some activity
going on in the UK, about how far parents can influence the education of
a child. I want to note that the child must also be directed to certain principles,
among which, in international law, there is the preparation of the child
for a responsible life in a free society in the spirit of understanding, peace,
tolerance, equality of sexes, and friendship amongst all people’s, ethnic,
national and religious groups, and persons of indigenous origin.
That’s article 29 D of the Childhood Convention, also found, similarly, in the
81 declaration as a limit on how far parents can claim their right to raise
children or educate children in their beliefs. We will also talk about common
misunderstandings and some features of the core features. In my work I
find that misconceptions, either willful or not so willful, are plenty, and let me
just highlight some of the key ones I come across. The first, of course, is
to assert that this right protects individuals, not ideas, beliefs or
religions. And I can’t say it enough, because, very often, it is about people
trying to protect an idea. This right includes an extremely broad set of
beliefs, including traditional and non-traditional religious beliefs, non
religious beliefs, and new beliefs. So it is anything, essentially, the right to
hold that in our minds. It includes a very strict interpretation of
limitations. They must always be the exception, and must be narrowly construed,
and should never destroy any part of that itself it certainly does not give a
license to discriminate, that’s not what the right is about, there is an inbuilt
claim to equality in the right. It also includes the freedom not to
manifest, a belief and certainly freedom from religion. Now, last March, the UN
Human Rights Council, in the interactive dialogue I had with with
member states and other observers’ organizations, a delegation, it was an open
meeting, so it was a Vatican delegate, disputed that Freedom From Religion is
covered by international law and here is what he said: “Of the utmost concern,
the use of the term freedom from religion, which is not contemplated in the international instruments, reveals a patronising idea of religion, going beyond
the mandate of the Special Rapporteur.” I, of course, had to respond to
this by saying in fact there can be no meaningful right of
freedom of religion unless there was a right to freedom from religion as well.
And, another subject of importance to the NSS, the name is the clue “Desecularization”.
In the Western political debate we see an increased number of questions
concerning the space that you occupy in society. According to some
scholars, this is a consequence of migration movements, or rather to the
arrival in Western societies of people whose religious beliefs have not gone through
a historical process of secularization in the countries of origin . Yet, if you
look at many countries, UK for instance, some have observed that the majority of legal
cases requesting exemptions from laws of general applicability are being advanced
not by minority or migrant groups, but by established religious traditions.
Protecting freedom offers in a belief in context, in which the principles of state
neutrality, and separate religion and state, under threat, is remarkably
challenging. Indeed, even though international law does not prescribe a
specific form of relationship between state and religion, the analysis of
worldwide restrictions of freedom of religion or belief has shown that states
that identify with the religion or states that have a negative view of
religion, are more proprensed to violate that fight. If you look at my communications
database, the bulk, the majority of the communications are given to
states which have an official religion or attachment to religion, and the least
amount of communications go to states where there is respect for human rights
while observing secular traditions. Of course, secularism
itself comes in many forms, some of which are more likely to respect formal
freedoms and accord little concern, while others are not. I’m dealing with, on one
hand China, where there is a serious concern, but I also look at secular
societies, where there is respect for human rights, where there is a lot more
space for equal concern an equal respect. Therefore, I argue that the model
of relationship that is best in line with right to freedom, of the no belief,
is the one that is in harmony with the concept of respectful distancing, and
which acts on deep grounding of secularity based on human rights.
International law does not say a state should be secular, but it’s obvious that,
unless there’s a distance between state and religion, there is no space to respect
human rights. But, having that space also means that state should not view
religion or his people with hostility, as some states do. So, to conclude, overall, in
reclaiming this freedom, keep mindful of what the UDHR says in its preamble, that
the foundation of peace, freedom and justice in the world, is a recognition of
the inherent dignity and the equal and inalienable rights of all members of the
human family. And to recall the very first article of UDHR, drafted by Dr.
Charles Malik, I’m putting it in modern language here, all humans are born free
and equal in dignity and rights, they are endowed with reason and conscience, and
must act towards each other in spirit of fraternity. So the task ahead of us is as
difficult or as simple, as the assertion the constant affirmation of being free
and equal. Thank you. [Appaluse]

 

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