|FREEDOM OF RELIGION OR BELIEF
|2. Freedom from coercion
"Everyone has the right to freedom of thought, conscience and religion; this right includes 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."
Art. 18 (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."
1981 Declaration of the General Assembly
Art. 1 (2) : "No one shall be subject to coercion which would impair his freedom to have 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 18.2. The same protection is enjoyed by holders of all beliefs of a non-religious nature."
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Excerpts of relevant paragraphs of 25 years mandate reporting practice (1986-2011)
E/CN.4/1996/95/Add.2, para. 97 (country visit to the Islamic Republic of Iran):
"97. In the socio-cultural field, the Special Rapporteur recommends that practical steps should be taken to ensure strict respect for the principle that religious laws should be applied in personal and community affairs, thereby excluding the application of the Shari'a to non-Muslims. With regard to the dress code, the Special Rapporteur emphasizes that the various community traditions and behaviour concerning dress should likewise be respected, but believes that dress should not be turned into a political instrument and that flexible and tolerant attitudes should be shown so that the richness and variety of Iranian dress can be manifested without coercion. In particular, in the field of education, and especially in minority schools, the Special Rapporteur recommends freedom of dress on the understanding that this should obviously not be exercised in a manner contrary to its purposes."
A/60/399, paras. 49-53:
"49. The fact that article 18, paragraph 3, of the Covenant is to be imposed only on the manifestation of religion or belief clearly assigns the freedom to "have or to adopt a religion or belief" to the first part of paragraph 1, freedom of thought, conscience and religion, also called forum internum, which cannot be interfered with in any way. In its general comment No. 22 the Human Rights Committee states clearly that article 18 "does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one's choice" (para. 3).
50. This prohibition of limitation is reinforced by paragraph 2 of the same article, which provides that "[n]o one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice." The fact that the prohibition of coercion was made explicit shows that the drafters of the Covenant found the freedom provided by paragraph 1 to be so significant that any form of coercion by the State was impermissible, independently of whether the coercion was physical or in the form of State-sponsored incentives. According to the Human Rights Committee:
"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 18.2" (general comment No. 22, para. 5).
51. The Special Rapporteur notes that there is a clear prohibition under international human rights law of coercion to change or maintain one's religion. She also draws attention to the fact that the term "coercion" in article 18, paragraph 21, is to be broadly interpreted and includes pressure applied by a State or policies aiming at facilitating religious conversions. In the case Kang v. Republic of Korea, the Human Rights Committee found the "ideology conversion system" as well as the succeeding "oath of law-abiding system" to be in violation of article 18, paragraph 1, of the Covenant. [Views of the Human Rights Committee in Kang v. Republic of Korea, adopted on 15 July 2003 (CCPR/C/78/D/878/1999), para. 7.2: "As to the author's claim that the 'ideology conversion system' violates his rights under articles 18, 19 and 26, the Committee notes the coercive nature of such a system, preserved in this respect in the succeeding 'oath of law-abidance system', which is applied in discriminatory fashion with a view to [altering] the political opinion of an inmate by offering inducements of preferential treatment within prison and improved possibilities of parole. The Committee considers that such a system, which the State party has failed to justify as being necessary for any of the permissible limiting purposes enumerated in articles 18 and 19, restricts freedom of expression and of manifestation of belief on the discriminatory basis of political opinion and thereby violates articles 18, paragraph 1, and 19, paragraph 1, both in conjunction with article 26."]
52. The same is true, mutatis mutandis, for prohibition of conversions. Since the choice of religion or belief is part of the forum internum, which allows for no limitations, a general prohibition of conversion by a State necessarily enters into conflict with applicable international standards. A law prohibiting conversion would constitute a State policy aiming at influencing individual's desire to have or adopt a religion or belief and is therefore not acceptable under human rights law. A State also has the positive obligation of ensuring the freedom of religion or belief of the persons on its territory and under its jurisdiction.
53. In the cases where non-State actors interfere with the right to "have or adopt a religion or belief of [one's] choice", the requirements of article 18 of the Covenant and other relevant international instruments also entail a positive obligation for the State to protect persons from such interference. The Special Rapporteur wishes to re-iterate in this regard that States must ensure that the persons on their territory and under their jurisdiction, including members of religious minorities, can practise the religion or belief of their choice free of coercion and fear. If non-State actors interfere with this freedom, and especially the freedom to change or to maintain one's religion, the State is obliged to take appropriate measures to investigate, bring the perpetrators to justice and compensate the victims (see also E/CN.4/2005/61, para. 42)."
E/CN.4/2006/5/Add.3, paras. 70-78 (country visit to Sri Lanka):
"70. Supporters of the "unethical" conversions bills were confident that the text of the bills had been carefully drafted and did not violate or contravene international law, including the right to freedom of religion or belief. They often referred to the findings of the European Court of Human Rights in the case Kokkinakis v. Greece, [Judgement of the European Court of Human Rights of 19 April 1993, Kokkinakis v. Greece, case No. 3/1992/348/421] and in particular its paragraph 48 where the Court held that "First of all, a distinction has to be made between bearing Christian witness and improper proselytism. The former corresponds to true evangelism, which a report drawn up in 1956 under the auspices of the World Council of Churches describes as an essential mission and a responsibility of every Christian and every Church. The latter represents a corruption or deformation of it. It may, according to the same report, take the form of activities 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; more generally, it is not compatible with respect for the freedom of thought, conscience and religion of others."
71. In commenting on the determination of the Supreme Court, the Rapporteur on Religious Intolerance of the Human Rights Commission of Sri Lanka observed that the Court had relied on Kokkinakis case, "albeit mistakenly". The Court had made its determination in abstracto. Unlike the Kokkinakis case, the Court's jurisdiction had not been invoked by a victim. The Rapporteur concluded that in all three determinations made by the Supreme Court around the issue of conversion, its decisions were "in the realm of conjecture or speculation that the disadvantaged or vulnerable would be subject to improper conversion. What material was submitted to the Court to back this impression is not clear".
72. While not willing to discuss the findings of the European Court of Human Rights in a particular case, the Special Rapporteur is of the opinion that the supporters of the draft laws have disregarded the context of the Kokkinakis case. She recalls that the European Court eventually found a violation of the right to freedom of religion or belief of those who wanted to propagate their religion. The Court also held that "freedom to manifest one's religion is not only exercisable in community with others, 'in public' and within the circle of those whose faith one shares, but can also be asserted 'alone' and 'in private'; furthermore, it includes in principle the right to try to convince one's neighbour, for example through 'teaching', failing which, moreover, 'freedom to change [one's] religion or belief', enshrined in Article 9 (art. 9), would be likely to remain a dead letter".
73. In the opinion of the Special Rapporteur, the draft laws do indeed raise concern in terms of human rights law, including in terms of the right to freedom of religion or belief. While some maintain that freedom of religion, and in particular the right to choose a religion, may be violated in cases where, for example, a person in need has converted after having received presents and inducements that may significantly improve his or her life, the enjoyment of that right by the same person may equally be impaired if he or she does not have the possibility to freely decide to convert to another religion, even after having received a gift. Of even greater concern is that the decision to complain is not restricted to the aggrieved party. The Special Rapporteur's role is indeed to ensure that individuals are both protected against acts aimed at forced conversions and that their freedom to adopt a religion of their choice or to change religion is safeguarded. In its general comment No. 22, the Human Rights Committee clearly held that "the freedom to 'have or to adopt' a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one's current religion or belief with another or to adopt atheistic views, as well as the right to retain one's religion or belief".
74. Moreover, the draft laws challenge an aspect of the right to manifest one's religion because they would criminalize certain acts that, according to how restrictively the laws are interpreted, may be part of the right to manifest one's religion. According to the Human Rights Committee, "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. 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 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".
75. Finally, the Special Rapporteur considers that article 9 of the Constitution, which gives a "foremost" place to Buddhism, may not per se be contrary to international human rights law, and in particular the right to freedom of religion. Nevertheless, the provision should not be used to limit the right to freedom of religion or belief of religious minorities living on the territory of Sri Lanka. In this respect also, the Human Rights Committee held that "The fact that a religion is recognized as a state religion or that it is established as official or traditional or that its followers comprise the majority of the population, shall not result in any impairment of the enjoyment of any of the rights under the Covenant, including articles 18 and 27, nor in any discrimination against adherents to other religions or nonbelievers. In particular, certain measures discriminating against the latter, such as measures restricting eligibility for government service to members of the predominant religion or giving economic privileges to them or imposing special restrictions on the practice of other faiths, are not in accordance with the prohibition of discrimination based on religion or belief and the guarantee of equal protection under article 26."
D. Difficulties pertaining to the future implementation of the laws
76. Probably one of the main problems with the draft laws on "unethical" conversions will be in their implementation. In particular, they use wording that allows for too broad an interpretation. Moreover, it is very difficult to assess the genuineness of a conversion. While it may be easy to prove that a person has received a gift, it would not be easy to demonstrate that the person has converted because of the gift. Under international law, freedom of conscience is absolute and cannot be subject to any limitation. A mechanism designed to monitor conversions and thus the reasons and purposes behind them could constitute a limitation on freedom of conscience.
77. The wording of the draft laws is also too vague. It allows too great a margin of interpretation, which could be a source of possible abuse and could potentially transform the law into a tool of persecution by those who are genuinely opposed to religious tolerance. The Special Rapporteur is concerned that the adoption of these laws would provide legitimacy to those who want to promote religious intolerance and hatred vis-à-vis certain religious groups.
78. Criminalizing unethical conversions, as defined by the bills, in particular the Ministry Bill might pave the way for persecution of all religious communities, and particularly of religious minorities. The bills allow anyone to complain even if the victim may be unwilling to do so. It thus leaves the door wide open for overzealous people to create further polarisation and to generate an atmosphere of fear among religious minorities."
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