CNEWA

The Rising Tide of Restrictions on Religion: Religions Respond

by Elias D. Mallon, S.A., Ph.D.

Even though the concept of “religion” seems clear in common parlance, it is not that clear sociologically or legally. Too often the word religion evokes images of (often western) post-Constantinian Christianity which tends for the most part to be organized with a readily observable structure. Many Christian Churches would be organized in ways closely resembling a corporate structure. However, it is misleading to take this as normal either in the sense of being a universal phenomenon or of being the measure of what should be. Judaism, Islam and Hinduism are far less structurally organized than Christianity. Yet no one would deny that they are religions. In legal terminology many, if not most, Christian Churches can be a legal — as opposed to natural — person. However, it must also be admitted that the same cannot be said of Christianity as a whole. The situation becomes even more complicated as we move from Judaism, to Islam, to Hinduism, to indigenous religions. It is very easy to see how adherents of these belief systems are the subject of rights, especially the right to freedom of religion. It is less clear how and if the belief systems (and structures) themselves are the subject of rights in the same way. I am not saying they are not. I am saying that it is not clear to me how.

Religion is not something foreign to UN resolutions. However, a closer look at these resolutions shows both a development and a fundamental ambiguity. From 1962 to 2004 the UN General Assembly passed a resolution almost every year on the Elimination of All Forms of Religious Intolerance. In 1992 a new type of resolution began to appear which dealt with the rights of persons who belong to national, ethnic, religious and linguistic minorities. The 62nd Session of the General Assembly (2008-2009) dealt with the problem of global terrorism in two resolutions (A/RES/62/272 and A/RES/62/288). In the second resolution the GA states that “terrorism can in no way be identified with any religion, nationality or ethnic group….” In the following years a controversial discussion began on the so-called defamation of religion. These discussions took place at both the General Assembly and the Human Rights Council.

There are several things to be noted here. Religion is mentioned in articles 2 and 9 of the Universal Declaration of Human Rights. However, for almost forty years there were a series of resolutions which spoke about religious discrimination and freedom. What is important to note is that these resolutions dealt less with religion as such as with religion as it relates to individuals who have a right to hold, change or reject it. This is further underlined by the unusual language of the resolutions which speak of “religion or belief.” This expression, which is still used at the UN does not clarify what, if any, the difference is between religion and belief. Lastly, until the late 1990s no GA resolution made mention of any religion by name, despite the almost annual passage of resolutions against religious intolerance. I believe this underlines my position that the UN was not interested in religion in and for itself but only in religion in its relationship to individuals, that insofar as it relates to a basic human right of individuals. That situation began to change in the late 1990s with a specific religion, Islam, being mentioned for the first time. Likewise the concept of the Defamation of Religion introduced religion as an abstract concept into the discussion. It is extremely important to recognize that the topic was the Defamation of Religion and not the Defamation of Believers. At the same time the expression “religion or belief” continues to be used without clarification.

The Pew Study “Arab Spring Adds to Global Restrictions on Religion” (6 June 2013) is extremely important but poses as many questions as it answers. One of the first things I noted was that in the list of countries in which there was an increase of governmental restrictions and societal hostilities, many or even most of them are countries which use some type of a religious marker in its self-identity. This can be as overt as the Islamic Republic of Iran or less overt like the US where politicians routinely refer to “Judaeo-Christian” roots. This is further corroborated by the fact in the majority of these countries the restrictions and hostilities are not directed at all religions but some religions. Thus a religion/government dichotomy is misleading. There is a great deal of overlapping in fact.

The study uses two very important metrics: Government Restrictions and Social Hostilities. The study shows that “Government Restrictions on Religion” have increased in the five regions examined, viz., Middle East-North Africa; Asia-Pacific; Europe; Sub-Saharan Africa and the Americas. Social Hostilities have increased in the same regions.

At the outset I want to be clear that unjustified government restrictions of religion and belief systems are widespread. This is especially the case with minority religions and in societies with non-democratic, authoritarian forms of government.. It cannot be denied that people of faith suffer for their beliefs in many, if not most, parts of the globe. The Pew Study documents this most convincingly.

The category Social Hostilities seems to be unambiguous and represents activity which is always and everywhere wrong. However, even here there needs to be discernment. In the nine countries with large increases (2.0 points or more) on the 10-point Social Hostilities Index, Norway stands out. Closer examination, however, shows that Norway’s Social Hostility Index increase is due to the mass shooting at a youth camp and the bombing of government buildings in reprisal for the Norwegian government’s support of Muslim immigration. This was the work of one man, Anders Behring Breivik. To compare Norway’s Social Hostility Index with that of Syria, for example, which is in the same group just does not seem helpful. Social Hostility in Norway and in Syria is unequivocally wrong. However, the act of one depraved individual and a bloody civil war are simply not commensurate. Nonetheless, it can be clearly stated that Social Hostility, be it in Norway or Syria, is always wrong.

The situation is not that clear, however, when it comes to the category of Government Restrictions. The underlying assumption seems to be that government restrictions on religion are always and everywhere wrong and/or unjustified. The Universal Declaration does not speak of restrictions, perhaps because it is dealing with the rights of individuals.2 The European Convention on Human Rights and Fundamental Freedoms, Section 1, Article 9, Number 2 on the other hand does speak of limitations which are prescribed by law and necessary for what we could basically describe as the common good of society. The question is, therefore, crucial: is government restriction of religion always and everywhere per se wrong? At least the European Convention would answer that government restriction is not always and everywhere wrong. The Convention, however, lists very broad areas where restriction would be permissible. Yet even the most cursory reading of these areas shows them to be so general as not to be helpful and, in fact, easily open to abuse. History has shown this to be the case. Thus while at least the European Convention would not see government restrictions as always wrong, it is far less helpful in showing under what conditions they would be justified.

Because I find the concept of religion to be polyvalent, I think treating it in isolation from other realities does not help understand the problems or point to solutions. The dialectic is not merely religion-government. It is far more complicated. I believe the question of freedom of religion and/or government restrictions on religion has to be set in the context of: religion, common good, individual rights, group rights3 and conscience. The discussion also has to take place in the context of pluralistic societies. Almost every major religion experienced at one time or another political, cultural and linguistic hegemony (power) over huge territories. In an increasingly pluralistic and globalized world these hegemonies have disappeared or are weakening. It must be honestly recognized that the maintenance and or recovery of these hegemonies is not an issue of religious freedom. Religious hegemony is not a right.

Every conflict regarding religion cannot be taken as an attack or restriction on it. It seems to me one of the main difficulties in discussions about freedom of religion is not recognizing the rather frequent occurrence of conflicting rights. How, for example, does the common good intersect with freedom of religion? In times of contagion do the beliefs of an individual or individuals against inoculation take precedence over against the health of the overall society?

Historically in Christianity there was the principle that error had no rights. Ignoring for the present discussion who decides what error is, how can this principle coexist with the principle of the sovereignty of conscience? Does the right to religious freedom of one religion allow it to restrict or even destroy the freedom of another religion? In some legal schools of Islam conversion from Islam to another religion or to no religion is apostasy and is a capital crime. Here the principle of freedom of religion comes into conflict with the right of a person to change religions. Which principle takes priority, why and who decides? The potential for conflict between competing rights is not merely theoretical. It happens all the time. When the conflict involved is between the rights of two (or more) religious groups, is it the case that the rights of one group must be sacrificed? If it is a conflict between the beliefs of one group and the common good of society, is it a violation of religious freedom if the common good takes precedence? Does a religion have the right to impose its values which it deeply holds and which it believes divinely commanded on groups which do not hold those values? If it does not, is that a violation of its religious liberty?

I find these questions to be very important. I do not pretend to have the answer to any of them. However, the Pew Report shows that, despite the fact we have been talking about freedom of religion since at least 1948, the situation is not improving. Indeed Pew sees a worsening of the situation. My question is whether we have adequately dealt with the issues involved. Have we allowed a facile, uncritical understanding of religion to dominate the conversation? Have we set up dichotomies which are not only artificial but basically insoluble while overlooking the extremely important dichotomy of conflicting rights? The Pew Report is very important and provides us with a great deal of information but perhaps not nearly as much information as we really need.

Rev. Dr. Elias D. Mallon
Catholic Near East Welfare Association

SOME BASIC DOCUMENTS

Universal Declaration of Human Rights (10 December 1948)

Article 2.

  • Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty

Article 18.

  • Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and 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.

European Convention on Human Rights and Fundamental Freedoms (4 November 19501)

Section I, Article 9

Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others (Section 1, Article 9).

1 The text of the Convention is presented as amended by the provisions of Protocol No. 14 (CETS no. 194) as fromits entry into force on 1 June 2010. The text of the Convention had previously been amended according to the provisions of Protocol No. 3 (ETS no. 45), which entered into force on 21 September 1970, of Protocol No. 5 (ETS no. 55), which entered into force on 20 December 1971, and of Protocol No. 8 (ETS no. 118), which entered into force on 1 January 1990, and comprised also the text of Protocol No. 2 (ETS no. 44) which, in accordance with Article 5 § 3 thereof, had been an integral part of the Convention since its entry into force on 21 September 1970. All provisions which had been amended or added by these Protocols were replaced by Protocol No. 11 (ETS no. 155), as from the date of its entry into force on 1 November 1998. As from that date, Protocol No. 9 (ETS no. 140), which entered into force on 1 October 1994, was repealed and Protocol No. 10 (ETS no. 146) lost its purpose.
The current state of signatures and ratifications of the Convention and its Protocols as well as the complete list of declarations and reservations are available at www.conventions.coe.int.

2However, GA RES/36/55 (25 November 1981) in Article 1, No. 3 notes: “Freedom to manifest one’s beliefs may be subject only to such limitations as are prescribed by law and are necessary to protest public safety, order, health or morals or the fundamental rights and freedom of others. This is the same wording as in the European Convention (1950) Section 1, Article 9, No. 2.

3GA RES/36/55 Article 6 speaks about matters which are basically group rights such as education, publications, etc. but not deal with situation in which there might be conflict of rights between and individual and a group.

Bibliography
C. Evans. Freedom of Religion in the European Convention on Human Rights.Oxford: Oxford University Press, 2001.

Elias D. Mallon ,,Interreligiöser Dialog und die UNO Möglichkeiten und Grenzen des interreligiösen Dialogs in der Pluralität der an der UNO akkreditierten NGO’s.“ PThI, 30. Jahrgang, 2010-1, S. 160–175 urn:nbn:de:hbz:6-97419522391.

Oxford Journal of Law and Religion Volume 2, Number 2, October 2013. The entire issue is dedicated to the topics of religious freedom, international law and pluralism.

AnatScolnicov, The Right to Religious Freedom in International Law: Between Group Rights and Individual Rights. London Rutledge 2011.

P.M. Taylor. Freedom of Religion: UN and International Human Rights Law and Practice. Cambridge: Cambridge University Press, 2005.

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