Monday, November 19, 2012

NEVIS Review No 4 , Section I :Ref # 4.1

NEVIS Review No 4
Section I
 Ref # 4.1

On religious freedom: a legal perspective
 by Tessema Simachew
1. A brief digression
In 1998 G.C. the vice president of a certain university (somewhere in this world) issued an official statement stating that “Students whose “heads are covered”(wearing the Islamic headscarf) and students(including overseas students) with beards must not be admitted to lectures, courses or tutorials.” Can you guess in which country this thing happened? You might say this must be Switzerland. No. That country was Turkey. Sahin, a University student at the time took this case all the way to the European Court of Human Rights opposing this attempt to regulate the wearing of Islamic headscarf and claiming that the prohibition infringe on her right . Among other things, this case gave rise to the issue of religious freedom and the possible limitations to it.
In 2009, following a proposal initiated by members of two Swiss parties, Swiss nationals were asked in a referendum whether or not they wish to add the sentence “ the construction of minarets is forbidden” in the Swiss Constitution.
(Minaret is a tall slender tower in a mosque, with a balcony from which Muslims are called to a prayer.)
Both the decision of the European Court in Sahin case and the outcome of the 2009 popular referendum in Switzerland, were not in favour of religious freedom. The European Court decided that the prohibition on wearing the Islamic headscarf in universities was not a violation of the right to religious freedom. On the other hand, following the popular referendum mentioned above, the Constitution of Switzerland was amended prohibiting the building of mosque minarets. I found both outcomes to be a bit strange. That is perhaps because I am from Ethiopia, a country of incredible diversity and tolerance.
2. Religious freedom and possible restrictions under the Ethiopian Constitution
On 27 September 2012, The Reporter came up with a news article indicating that Ethiopia is planning to ban “religion-oriented messages at public places”. According to the report, among other things, display of religious pictures, proverbs, playing religious hymens in public transportation and hotels, and loud voice praying in residence areas might be banned. Such restrictions may give rise to possible violations of citizens’ rights to religious freedom and freedom of expression. In this short note I will raise some points on the issue of religious freedom and ask whether such law, if enacted, would be Constitutional.
The Ethiopian Constitution guarantees religious freedom while at the same time allowing the possibility of legally restricting religious freedom in the name of protecting public order and the rights and fundamental freedoms of others. The right is guaranteed in Article 27(1) of the Constitution, which provides that “everyone has the right to freedom of thought, conscience and religion. This right shall include the freedom to hold or to adopt a religion or belief of his choice, and the 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”. However, the freedom to manifest religious belief is not absolute. It may be subject to limitations on the basis of Article 27(5) of the same Constitution. The limitation clause reads: “Freedom to express or manifest one’s religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, peace, health, education, public morality or fundamental rights and freedoms of others, and ensure the independence of the State from religion.”
The limitation clause has different components. First, the limitation must be “prescribed by law”. As one can understand from the jurisprudence of human rights bodies, apart from the existence of a law, the quality of the law must also be taken into account in assessing acceptability of a restriction. The law must be clear and must conform to international human rights standards. Therefore, when a State considers enacting a law limiting exercise of a right, it first should assess the possible impact of that law on the enjoyment of the human rights of individuals. Normally, limitations must be exceptional and should not make the substantive right meaningless. For example, a limitation on manifesting a religious belief in public should not go to the extent of making this aspect of the right practically meaningless. In our case, if the ban goes to the extent of prohibiting displaying religious pictures and proverbs in public places, one can ask if such measure would not make the very right of manifesting religious belief practically non-existent. Related concerns based on freedom of expression can also be raised.
Second, the restriction must be designed having one of the legitimate aims listed in Article 27(5) of the FDRE Constitution in mind. In other words, it needs to be “necessary to protect public safety, peace, health, education, public morality or fundamental rights and freedoms of others, and ensure the independence of the State from religion.” Based on the proportionality principle, the means used for restriction must be the least intrusive among the possible alternatives to achieve the objective in mind.
Based on the report, the Ethiopian government is considering enacting a law on this issue because; it considers that ‘religion-oriented messages at public places may instigate public conflicts and religious tensions’. This gives the impression that the justification for the intended restriction would be a public order concern. On the other hand, a possible restriction in an attempt to prevent sound pollution can be justified on health grounds and on the basis of freedom of others.
With the above in view, one may say that there is a chance for making at least some of the intended restrictions without violating the Constitution. In any case, the duty on the part of the government to strike a fair balance between the aims it is intending to pursue by such law and citizens’ freedom of religion remains intact.
However, in my personal view, it is better to try to tackle problems related to religious activities using non-legal strategies. If that is not possible, it would be better if “religious practices” (practices of religious institutions or religion oriented actions of individuals) are limited or prohibited by laws of neutral nature (i.e, not specifically directed to religious activities). For instance, sound pollution concerns can be easily regulated under general environmental regulations which are not specifically directed towards religious institutions, or religious activities. According to Article 519 of the Ethiopian Criminal Code discharging pollutants into the environment in breach of environmental law is punishable. Since noise is recognized as a pollutant, it is possible to use this law after creating (if there is none) or making the noise standard known to the public.
I am not also sure if the reason behind the intended legislation is well-founded. Can the government show with concrete evidence that its fear about religious tension arising as a result of these activities is not groundless? Were there any incident of disagreement and conflict reported to the authorities, which occurred because of the activities the government is intending to regulate/ban? What if banning the acts indicated in the report come with the unintended result of making people supersensitive to such issues and give intolerance the backing of the law? Even if such law is necessary, isn’t it better to leave this to local and regional authorities so that they can enact regulations taking into account local conditions and specificities?
Let me end my note by making the following point. If the government is intending to take European countries, or for that matter any country (even countries with a lot of diversity such as India), as a model on this issue, it might end up in enacting a law which cannot reflect our own unique societal realities and culture of religious tolerance