The protection of religion and belief is the oldest, most
fundamental and
essential of all rights.
This question requires a consideration of the right of freedom of religion,
belief and conscience. This right is a universally applicable right that is
applied in the different jurisdictions all around the world and its application
requires a taking into account of the different cultures, traditions and
jurisdictions where it is being applied. This question will be taking into
account the background of the right of religious freedom and belief with
respect to different international documents such as the UDHR, the ICCPR
and the Declaration on the Elimination of Discrimination based on Religion
or Belief 1981. These documents will be analyzed with reference to the
various case law and the different academic and juristic opinions and it will
be judged whether it is accorded fundamental protection and whether or
not it is the oldest of all the beliefs. This answer will be supporting the
stance that the right to religious freedom is definitely an old fundamental
right but it cannot be argued to be the most fundamental and essential of all
the rights.
Conclusively, a brief summary will be given and the stance taken will be
stated again.
It is to be noted that the right of religious freedom is definitely an old know
right and was even eminent in the ancient times. The importance of the
right
of religious freedom was evident during the reign of Edward I and the right
of
religious freedom was also granted to the Christians during the Edict of
Milan
under the rule of Emperor Constantine. Hence it can be argued that the
question rightly points out that the right of religious freedom and belief is
the
oldest of all the protected rights and can even be seen in an era where
other
essential rights such as the rights of women and children were not even
granted.
A general clause against discrimination is provided in article 2 of the UDHR
which prohibits discrimination on all grounds including race, religion, culture
nationality etc. Article 18 of the UDHR is very detailed in providing the right
to
opt a religion and the right to practice your religion freely. This article needs
to be seen in conjunction with articles 29 and 30 which are limitation
clauses.
Article 18 has been the subject of much criticism and debate much of which
came from the Muslim Countries. The Muslim countries particularly do not
sit
well with the right to change your religion being freely provided for in the
article. The Saudi suggestion of removing this provision was declined is is
probably one of the major reasons why the Kingdom of Saudi Arabia has
not
accepted the UDHR and is not party to it. This shows that although this
protection has been accorded from a very long time it may not be that
prominent in countries which are not party to the documents which contain
express provisions on the right of religion. It is also to be noted that the
UDHR 9is non legal in its nature and hence states who are party to it may
still
violate the essential right of religious freedom and belief.
Similarly, article 18 of the ICCPR also lays down a similar right to religion
as
the UDHR and further also limits it nut the limitations could only be based
on
law. Furthermore, article 26 states that all humans will be considered equal
before the law regardless of their religion, gender, or any other qualifying
feature and this includes their political ar any other opinions. It is to be
noted
that article 18 is less coherent and clear then that of the UDHR but faces
the
same criticism with regards to the right to change religion. However, the
significance of article 18 of the ICCPR is that it is one of the few rights that
cannot be derogated from even in the case of an emergency as provided
for
in article 4. It 9is also to be noted that this article is subject to less
restrictions
as opposed to other articles. For instance, due to 'national security'
restrictions may be placed on other rights such as that of assembly (article
21) or the right to hold an opinion as in article 19. However, such
restrictions
are not imposed on article 18. This shows the importance of the right in
itself.
It is also to be noted that the restrictions on the right of religious freedom
can
only be imposed if the fundamental rights of others are at stake. This
shows
the importance of the right due to the protections that article 18 is granted
which are not in place with regards to any other article.
It would also be fundamental to note that the declaration on the religious
freedom and belief is not a legally binding document. This again forces to
argue that the right may not be that important and fundamental in nature
and
this can be reinforced by the fact that the right does not have a binding
legal
document solely for its own purposes and the declaration in itself is not
legally binding and hence the declaration cannot form the basis of holding
the
states to account for their breaches. Article 1 of the declaration is similar to
those contained in the UDHR and the ICCPR. However, article 1 again
shows that there is no consensus when it comes to the right to change
religion. Article 8 states tat the declaration will not be restricting or
derogating
from those rights contained in the UDHR and the ICCPR. It has been argued
by experts that since the article 1 does not provide any additional rights other
then those contained in the previous documents hence it adds nothing to the
protection accorded by them. This can again be used to argue that if the right
was considered to be that essential then the declaration should have found
ways to award rights in addition to those protected by the previous
documents.
consider the example of another province. In the case of Chasman Kanwal,
the Lahore high court failed to give a decision saying that the matter was
beyond their jurisdictions. This shows how variations exist with the
application of this right even in the same country. The above mentioned
abuses of the right of religious freedom can again be used to argue that the
right is in fact not considered to be an essential and fundamental rights as
compared to other rights such as the rights of the child and women.
