Freedom of Religion - A Western Concept

Freedom of Religion

By Shannon Darroch

The international laws on freedom of religion or belief are proven to be extremely broad. Covering a wide range of features such as the freedom to adopt, change, renounce and manifest a religion or belief through to the right of parents to ensure the religious and moral education of their children; it is evident that religious freedom concerns both private and public manifestation- whether that be in the community and in education or in an individual’s private life. Moreover, it can also be said that such rights apply to everyone equally due to their universal nature. Despite this, a state’s ability to interfere with this right, due to it being qualified (meaning it may be interfered with on specific grounds), remains extremely controversial.

Limitations to the freedom of religion remains prevalent across all regions. For example, in Africa and Asia where many countries, including Somaliland, have Sharia Law as their national religion and outlaw religions other than Islam within its Constitution (Article 5). However, the idea of universal human rights has been deemed a ‘manifestation of Western cultural imperialism’ and often looked at from a ‘western’ perspective.

Arguably the secular approach of many States, particular those with Western ideology and/or those in Europe, towards this right has severely interfered with and often limited an individual’s freedom. This is recognised by writers such as Raza who argue that normative clarity is required with regards to the limits on this right as well as the adoption of differing approaches to justifying such limitations. On one hand, there are occasions where these rights may be interfered with due to their qualified nature. This is where a State may interfere with this right wherever necessary; for example, in order to protect the rights of another or the wider public interest. This is enforced through a number of provisions such as Article 18(3) ICCPR which states that freedom to manifest one’s religion or beliefs may only be subject to limitations prescribed by law necessary to protect public safety, order, health or morals, or the fundamental freedoms of others; in order to prevents minorities from being discriminated against. However, it is clear that the global approach to human rights is competing with the contrast between universalism and cultural relativism.

One of the most controversial example of this contrast lies between the right to freedom of religion and the use of the Islamic headscarf. In Dahlab v Switzerland [2001] ECHR 15, a primary-school teacher who had converted to Islam claimed that her rights had been breached when the school authorities made a decision to prohibit her from wearing a religious headscarf, deeming it to be a ‘powerful external symbol’. In this instance, the Court regarded such measure not being unreasonable due to the applicant being regarded as a representative of the State and of an age (between four and eight) that could be easily influenced than older children. Similarly, S.A.S. v. France (no. 43835/11) concerned a French national, of whom was a practicing Muslim. The Applicant claimed that a French law prohibiting the concealment of the face in public interfered with her right considered there to be an objective and reasonable justification through the emphasis on the condition of “living together”(p142); which is deemed fundamental to a French Society and thus a legitimate aim. Consequently, in this instance the Court again held that there has been no violation of her Article 9 ECHR right- the right to freedom of thought, conscience and religion. The legal banning of full-face veils is argued to have a huge impact on a woman’s dignity and freedom; since they ‘misrecognise and disrespect her identity as an individual human being and as a member of a religious or cultural group’. It also represents the controversial application of this right whereby the Courts may restrict an individual’s freedom to religion and the way in which one chooses to manifest such right.

Whilst the secular approach appears to be the overriding theme in the enforcement of freedom of religion in a Western context, it must be questioned whether such a decision be made in a state like Somaliland. Clearly, the application of human rights has become contextualised according to state culture, tradition and ideology and can therefore direct comparison can be made. Like many countries in Africa, Islam is deemed the state religion of Somaliland. The constitution itself, at Article 5, outlaws religions other than Islam with the entirety of the Constitution being based on Islamic principles, as set out in Article 128. Religion here, therefore, is widely practiced and incorporated into social norms and practices, for example through individuals wearing religious clothing through to abstinence of alcohol. Whilst this may be regarded as far more draconian than that of the banning of the Islamic headscarf, through the way in which it outright outlaws the following of any other religion, such approach to religion may be argued to attempt to ‘accommodate the importance of religion as a moral force within the body of politics.’ This is in the same way that the Banjul Charter, in its Preamble, is said to be based on "the virtues of [African] tradition and the values of African civilization.".

It is arguable that each State deserves its own discretion since they are better equipped to understand the need for potential restrictions through their understanding of how national measures relate to constitutional values and legal traditions. Though this does raise questions as to whether each state aims to promote cultural relativism or the idea of "universal" human rights norms. Whilst the freedom of religion is qualified, any limitation is ultimately at the expense of the individual, and therefore, the legitimacy of such protections should be questioned.