Freedom of Religion: Between Universalism and Relativism

by Shahizad Sulaiman 

Freedom of religion is an integral element of human dignity. Therefore, it is guaranteed under Article 18 of Universal Declaration of Human Rights which recognizes every individual’s freedom of religion which includes the freedom to change religion and to manifest one’s religion. It is further entrenched under Article 18 of the International Covenant on Civil and Political Rights (ICCPR) which protects the freedom to adopt religion of his choice, freedom to manifest his religion and protection from coercion to adopt a religion of his choice. Similarly, Article 9 of European Convention on Human Rights conferred everyone the right to freedom of religion that includes freedom to change his religion and to manifest his religion. Nonetheless, both Article 18 of the ICCPR and Article 9 of the ECHR provide that the freedom to manifest one’s religion is subjected to such limitations as are prescribed by law and are necessary in the interests of public safety, public order, health or morals, or for the protection of the rights and freedoms of others.

In Malaysia, the freedom of religion is guaranteed under Article 11 of Federal Constitution which guarantees every person’s right to profess and practise his religion and subject to Article 11(4), to propagate his religion. While other international human rights instruments circumscribe the limitations only on the right to manifest one’s religion, the federal constitution subjected the whole spectrum of the freedom of religion to any limitations on the basis of public order, public health or morality.

It is clear from the above international, regional and national provisions that the government has the obligations to protect and recognise the freedom of religion of every individual and to limit such rights in order to protect public order, health or morals, or for the protection of the rights and freedoms of others. In this regard, the permitted limitation must fulfil certain criteria as follows:

i. It is prescribed by law.

ii. The limitations are to achieve legitimate aims.

iii. It is necessary in a democratic society.[1]

However, what can be defined as legitimate aims or what is necessary in a democratic society can be debated. The contentious issue not only arises from the different perspectives of what may be conceived as public order, health or morals but also in the determination of necessity in imposing the limitation in order to fulfil the purpose of protecting peace and harmony. This difference in perspective can also be seen in societies with different sets of values. In other word, should a state in which religion plays an important role in public life, have the same legal limitation on freedom of religion as a state that subscribes to secularism?

As in many Muslim states, Malaysia imposes certain limitations on the freedom of religion. These limitations which have been imposed in Malaysia are such as the declaration of certain teachings by Muslims as ‘deviationist practices’, the criminalization of propagation of other religions to Muslims, banning the use of certain terms such as ‘Allah’ by Christian groups and the restrictive procedure for Muslim to convert out of their faith, have been alleged as violating the freedom of religion. Nevertheless, these interferences are actually defensible based on the doctrine of Margin of Appreciation which is widely used by the European Court of Human Rights (ECtHR).

The Margin of Appreciation refers to the room for manoeuvre the Strasbourg institutions are prepared to accord national authorities in fulfilling their obligations under the European Convention on Human Rights.[2] One of the rationales of Margin of Appreciation is that the authorities are best placed to assess the necessity and appropriateness of restrictions and limitations as they have better access to factual information about the need for such restrictions and in a better position to evaluate how a certain national measure or decision relates to national constitutional values and legal traditions.[3] Under international law, the Margin of Appreciation doctrine has been developed extensively by the European Court of Human Rights (ECtHR). As Ronald St J Macdonald pointed out, the doctrine ‘is now the primary tool of the Court’ in the application of the European Convention on Human Rights.[4]

In the case of Dahlab v Switzerland, a Primary school teacher in Switzerland was prohibited from wearing Islamic headscarf (hijab) in the performance of her teaching duties on the basis it breaches the principle of denominational neutrality in schools. Notably, there were no complaints from parents of the teacher’s pupils. In this case, the ECtHR, on 15 February 2001, affirmed that the Geneva authorities did not exceed their margin of appreciation in assessing the existence and extent of the need for interference with the teacher’s freedom to manifest her religion as a measure to protect the schoolchildren’s freedom to receive education without religious influence. Therefore the interference was held to be justifiable and proportionate in order to protect the freedoms of others as within the limitation of Article 9 of the ECHR.[5]

Lautsi v. Italy was a case brought before the ECtHR, which, on 18 March 2011, ruled that the requirement in Italian law that crucifixes be displayed in classrooms of schools does not violate the European Convention on Human Rights. In this case, Lautsi applied for the crucifixes to be removed from her sons’ classrooms on the basis that the displaying of the crucifixes is an infringement of the principle of secularism. The ECtHR accepted the Government explanation that the presence of crucifixes in State-school classrooms is the result of Italy's historical development which they considered it important to perpetuate. The Court took the view that the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation of the State. The Court therefore agreed that the Government enjoyed a margin of appreciation in their efforts to reconcile the exercise of the functions they assume in relation to education and teaching with respect for the right of parents to ensure such education and teaching are in conformity with their own religious and philosophical convictions.[6] In making its decision, the ECtHR had also considered the decisions in the Dahlab case as well as two other similar cases namely, the Folgero[7] and Zengin[8] cases. The ECtHR noted that whilst each case had opposing outcomes, the State in each of the cases had acted within the margin of appreciation based on the weight of the competing interests involved (Dahlab case); the history and tradition of the State (Folgero case); and the majority religion of the State (Zengrin case).

The above cases demonstrate that the ECtHR provides the States with a wide application of the margin of appreciation doctrine in limiting the freedom to manifest one’s religion and recognising that different factors will determine the extent of that margin of appreciation. This is to the extent that in one state a law viewed in the abstract outside other national circumstances might be seen as violating the invidual’s freedom of religion, but viewed in the light of some other national matter or practice it may not. Accordingly, MA Baderin argued that the adoption of the margin of appreciation doctrine in assessing the laws and practises in the Muslim world vis-à-vis the international human rights treaties is necessary to create ‘breathing space’ for a closer rapport that will gradually and ultimately lead to a realisation of a common standard of universalism in human rights between international human rights law and Islamic law in the Muslim world.[9]

Some critics of the margin of appreciation such as Schmidt claim that admitting a margin of appreciation doctrine might prompt some states to justify serious human rights abuses. In addressing these critics, Mcgoldrick argued that the critical prior question is to determine the scope of obligations under the substantive ICCPR rights. A failure to comply with these obligations cannot be justified by reference to political, social, cultural, and economic considerations or by traditional, historical, religious or cultural attitudes within the State.[10]

Based on those arguments, I conclude that every country has its own cultural, social, economic and historical background which they are required to take into account when taking any action on the basis of limiting freedom of religion. The ‘one fits all’ formula is not practical in determining the limitations on freedom of religion for different countries. Jack Donnely recognises this approach as relative universalism as opposed to the unilateral universalism in human rights[11]. However, the onus is on the government to establish the legal justification for exercising its margin of appreciation in any alleged violation of human right. The margin of appreciation must then be exercised proportionately and the court will have to play a pivotal role to prevent its abuse.

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[1] Council of Europe, accessed 17 May 2020. 

[2] Steven Greer, The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights, Council of Europe Publishing, 2000. 

[3] Janneke Gerrards, Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human Rights, Human Rights Law Review, 2018, 18, p.498. 

[4] Macdonald, Ronald St J. et al. (eds.), The European system for the protection of human rights, Martinus Nijhoff, Dordrecht/London, 1993, p. 84. 

[5] Case of Dahlab v. Switzerland, No. 42393/98 (Eu Ct. H.R. February 15, 2001) available at http://hudoc.echr.coe.int/eng?i=001-22643 

[6] Case of Lautsi and others v. Italy, No. 30814/06 (Eu Ct. H.R. February 16, 2011) available at http://hudoc.echr.coe.int/eng?i=001-104040. 

[7] Case of Folgero and others v. Norway, No. 15472/02 (Eu Ct. H.R. June 29, 2007) available at http://hudoc.echr.coe.int/eng?i=001-81356 

[8] Case of Hasan and Eylem Zengin v. Turkey, No. 1448/04 (Eu Ct. H.R. October 9, 2007) available at http://hudoc.echr.coe.int/eng?i=001-82580 

[9] A. Baderin, Mashood, International Human Rights and Islamic Law, Oxford University Press, 2003. 

[10] Dominic Mcgoldrick, A Defence of the Margin of Appreciation and an Argument for its application by the Human Rights Committee, ICLQ vol 65, January 2016 pp 21–60. 

[11] Jack Donnely, Universal Human Rights, In Theory and Practice,Cornell University Press, 2013, pg. 118.

CAPITAL PUNISHMENT: THE ABOLITIONIST’S AND RETENTIONIST’S ARGUMENTS

by: Shahizad Sulaiman

Introduction

Human rights discourse is developing in tandem with the social and historical development of global community. Capital punishment which is considered the oldest punishment meted out for certain crimes for centuries until today, has now become an indicator to determine whether a state has fully embraced the human rights idea. Though the idea of abolishing the death penalty has been mooted since the 1750’s by academics namely the Italian jurist, Cesare Beccaria; the French philosopher, Voltaire; and the English law reformers, Jeremy Bentham and Samuel Romilly, it began to gain traction in the past 20 years. These academics along with Quaker leaders and other social reformers defended life imprisonment as a more rational alternative.[1] Among the earliest countries to formally abolish the capital punishment in their criminal justice system are Venezuela in 1867, Netherlands in 1870 and Michigan in 1846.[2] As of October 2019, 142 countries have abolished the death penalty in law or practice.[3] In Malaysia, the mandatory and discretionary capital punishment is provided in the criminal justice system.[4]

Capital Punishment from the International Human Rights Perspective

The abolition of capital punishment was a progressive development starting with the adoption of the Universal Declaration of Human Rights 1948 (UDHR). The UDHR does not expressly prohibit the imposition of the death penalty. However, the question of whether capital punishment should be incorporated in the UDHR was debated at the General Assembly.[5] Other international and regional human rights instruments, such as the International Covenant on Civil and Political Rights (ICCPR) 1979, the European Convention on Human Rights (ECHR) 1950 and the American Convention on Human Rights 1969, do not outrightly ban the death penalty but they imposed certain limits to ensure that the death penalty is observed in the strictest sense and would only be implemented for the most serious crimes. The Second Optional Protocol to the ICCPR[6] is the first instrument to strongly and clearly urge the State Parties to end all executions and to take all necessary measures to abolish the death penalty within their jurisdiction. Subsequently, 7 resolutions entitled “Moratorium on the use of the death penalty” were adopted by UN since 2007 to further urge countries to end the death penalty[7].

As the abolitionists is challenging the status quo of death penalty, understandably to find their arguments surpass the number of arguments provided by the retentionists. For the purpose of this article, three main arguments from the abolitionists and retentionists respectively, are briefly discussed here.

Absoluteness of rights to life

It is undisputed that the rights to life is the most fundamental right upon which other rights are granted to the individual. Therefore, it is accepted by the international community that the right to life is a jus cogen which could not be derogated under any circumstances[8]. Whereas, allowing the state to impose a death sentence on any individual means empowering the state to violate every human right to the fullest extent permitted by law. Thus, it renders all other human rights trivial. Furthermore, death penalty is considered by abolitionists as a form of torture. The cruelty of the death penalty is manifest not only in the execution but in the delay in executing the penalty[9].

Restorative Justice

It is undeniable that the purpose of sentencing has evolved over time. According to the abolitionist, the ultimate purpose of a sentence is to rehabilitate the offender in order to return he or she as a productive member of society[10]. However, the death sentence denies a person the opportunity to change and it merely serves as a retribution for the satisfaction of the victim or family of the victim and that does not correspond to the value of the forfeited life. However, the retentionist would rebut this argument on the basis that it fails to look on the perspective of justice for the victim or family of the victim which will be discussed later. 

The risk of sentencing an innocent[11]
No criminal legal system is infallible and thus there is always the risk of sentencing an innocent person. This is one of the arguments strongly used by the abolitionist[12]. Most of those convicted and sentenced are persons of less advantaged socio-economic backgrounds, women and foreign nationals, and those from certain ethnic minorities[13]. The risk is compounded with several weaknesses in the criminal justice system namely the limitation on access to competent and effective legal counsel, delays in notification of arrest, lack of access to language interpretation for a non-citizen accused, secretive pardon procedure and so on so forth[14]. All these factors contribute to the miscarriage of justice and with the imposition of death penalty the error is irreversible. However, the retentionist points out that this is not the fault of the death penalty but the fault of the administration of justice system involving procedural requirement and standard of proof. It indicates there is a need to overcome the flaws in the procedural and evidential systems and the standard of proof should be raised from ‘beyond any reasonable doubt’ to ‘beyond any shadow of a doubt’[15].

The retentionist also has several other arguments or counter arguments to the abolitionist’s narratives as follows:

Deterrent for potential crimes

For retentionists, the purpose of sentencing is to deter potential crimes. This can be done by making punishment so severe that it outweighs the benefits gained from any criminal act. Furthermore, by making “an example” of an offender, it is argued that others will learn their lesson on the consequences of such crime and will be dissuaded from committing a similar crime. They further argue that a death sentence is a far more effective deterrent than life imprisonment[16]. The problem with this argument is that the current implementation of death punishment is carried out in a ‘secretive manner’ or within the four walls of the prison. If the punishment is meant as a deterrence to the public, the execution should then be carried out in public. Furthermore, there is no evidence or data that could prove that the death penalty has served or could have served as a deterrence for future crimes as crime rates are still increasing over the years in the countries that implement the death penalty[17].

‘An eye for an eye’ is justice for the family of the victims

The proponent of capital punishment argues that it provides the victim or the victim’s family the ‘closure’, in the sense that it reduces the sorrow of the crime suffered by victims and their family which can only be achieved through retributive punishment. Hence to sentence a murderer to death is a form of justice as it brings closure to the family of homicide victims. Nonetheless, there is no universal agreement on what would result in such ‘closure’ as some argue that forgiveness could also bring closure while others argue that there is no such thing as ‘closure’ and thus disdain the word.[18]

Religious argument 
Last but not least, the retentionist argues that some religions such as Islam provides death penalty as punishment for certain crimes and to support the abolition of death penalty would mean to go against the very command of God[19]. This is best demonstrated in the ‘Ramadan Affair’ when a prominent Islamic scholar in Europe, Tariq Ramadan published a manifesto in 2005, calling for an immediate moratorium on the application of the death penalty in Muslim-majority countries on the basis that injustices in the implementation of the punishment[20]. The call received backlashes from other prominent Muslim scholars including Taha Jabir Al-Alwani and Yusuf Qaradawi. In response to the call, Egypt’s Al-Azhar Darul Ifta’s collective opinion implied even proposing a suspension of the hudud was a violation of Islam tantamount to apostasy.[21] However, the religious argument could also be used to support the abolition of the death penalty in which it could be argued that a country which is not implementing Islamic Law is not authorized to take the life of a human being since human life is the greatest gift of God hence it can only be revoked through the procedures determined by God.

My standpoint and Conclusion
As Prof. William Schabas mentioned in his article, it is premature to suggest that customary law prohibits capital punishment[22]. While it is clear that the prohibition of death penalty is not an inherent human rights principle, it is an established principle in human rights laws that the death penalty is limited to the most serious crimes. However, what is defined by serious crime is indefinite and lacks universal agreement. In a democracy, a law is the system of rules which a particular community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties. In this regard, the decision of whether death penalty should be abolished or retained should be in the hands of the majority people of a country and is hinged upon their understanding of the rights to life and capital punishment. As such, the decision may differ from one country to another. In this regard, currently the majority of Malaysians are inclined toward the retentionist’s arguments as discussed above[23]. However, as part of a global community we have to observe at the very least the minimum standards set by the international community. Therefore, while retaining the death penalty in its criminal laws, I am of the opinion that a state should strictly observe the conditions in the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty issued by the UN Economic and Social Council which among other things, capital punishment be imposed only for the most serious crimes and when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts[24].

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[1] Vaibhav, Goel, Capital punishment: A human right examination case study and Jurisprudence, in International NGO Journal Vol. 3 (9), September, 2008, at p. 155.

[2] C. Dieter, Richard, The Death Penalty and Human Rights: U.S. Death Penalty and International Law, at p.3.

[3] Amnesty International, Fatally Flawed: Why Malaysia must Abolished the Death Penalty, 2019, at p.12.

[4]Capital punishment is currently retained under nine Malaysian laws for a total of 33 offences, including 12 for which it is imposed as the mandatory punishment.  

[5] Gudmundur, Alfredson, The Universal Declaration of Human Rights, Asbjorn Eide: 1999, at p. 782.

[6] The Second Optional Protocol to the ICCPR was adopted and proclaimed by General Assembly resolution 44/128. It was adopted on 15 December 1989 with the aiming to abolish the death penalty. Office of High Commissioner for Human Rights, > accessed on 22 April 2020.

[7] Death Penalty Information Centre, 2018, <https://deathpenaltyinfo.org/news/a-record-120-nations-adopt-un-death-penalty-moratorium-resolution> accessed on 22 April 2020.

[8] Galtung, Dr. Irene, A Jus Cogens Approach, accessed on 22 April 2020. J. Riga, Peter, Capital Punishment and the Right to Life: Some Reflections on the Human Right as Absolute, University of Puget Sound Law Review, Vol.5.23, pp. 33-45.

[9] Prokosch, Eric, Human Rights V. The Death Penalty: Abolition and Restriction in Law and Practice, < https://www.amnesty.org/download/Documents/148000/act500131998en.pdf>, accessed on 23 April 2020. Human Rights Commission of Malaysia, Annual Report 2017 (2018), p. 188.

[10] G. Lambert, Eric; Clarke, Alan; & Lambert, Janet, Reasons for Supporting and Opposing Capital Punishment in the USA: A Preliminary Study,in Internal Journal of Criminology, 2004, pp. 3-6.

[11] The death case of Malaysian Beauty Queen, Jean Pereira in 1979, is a perfect example of the possibility of miscarriage of justice. Malay Mail, The Inevitability of Error, December 15, 2015, assessed on 25 April 2020. 

[12] IAIS Malaysia, Report: Roundtable Discussion on Abolishing Death Penalty, March 19,2019, unpublished report, p.4.

[13] Note 3 at pp. 19 -22

[14] Ibid at pp. 26 -34

[15] Note 12 at p.

[16] Note 10 at p. 5.

[17] Note 12 at p. 4.

[18] Kanwar, Vik, Capital Punishment as Closure: The Limits of a Victim-Centered Jurisprudence. LSN: Criminal Law (Public Law), 2007.

[19] Mumisa, Michael, Sharia law and the death penalty: Would abolition of the death penalty be unfaithful to the message of Islam?, Penal Reform International, July 2015.
[20] Ramadan, Tariq, An International call for Moratorium on corporal punishment, stoning and the death penalty in the Islamic World, 2005, accessed on 23 April 2020.

[21] Brown, Eric, After the Ramadan Affair: New Trends in Islamism in the West, https://www.hudson.org/research/3780-after-the-ramadan-affair-new-trends-in-islamism-in-the-west, accessed on 23 April 2020.

[22] Schabas, William, The Abolition of Capital Punishment from an International Law Perspective, , accessed on 23 April 2020.

[23] Hood, Roger, The Death Penalty in Malaysia; Public Opinion on Mandatory Death Penalty for Drug Trafficking, Murder and Firearms Offences, The Death Penalty Project, 2014, at pp. 9 -11. Abas, Azura, ‘No to abolishing mandatory death sentence’, New Straits Times, (Kuala Lumpur January 14, 2020) < https://www.nst.com.my/news/nation/2020/01/556545/no-abolishing-mandatory-death-sentence> assessed on 25 April 2020.

[24] Resolution 1985/50 was approved on 25 May 1984, , accessed on 25 April 2020.

بذل الماعون في فضل الطاعون

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Ulama' dan Pandemik Dalam sejarah Islam, ramai ulama' telah merekodkan sejarah berlakunya wabak @ pandemik yang berlaku di zaman mereka. Antara peristiwa wabak yang terkenal dalam sejarah adalah: - Taun Amwas (18H) - Taun Jarif - Taun Fatayat @ Ashraf - Taun Muslim Bin Qutaibah - Wabak zaman pemerintahan Abbasiyyah, Mamlukiyyah dan Ayyubiyyah di Timur serta di Barat Islam. Salah seorg yg menulis berkenaan wabak adalah Al-Imam Ibn Hajar Al-Asqalani, pensyarah terkenal Sahih Al-Bukhari, dengan tajuk بذل الماعون في فضل الطاعون @ 'Meberikan pertolongan kepada kelebihan wabak taun'. Imam Ibn Hajar menulis buku ini pada tahun 819H atas permintaan orang ramai yg mahu beliau mengulas tentang hadith-hadith berkaitan wabak. Namun penulisan tersebut terhenti sehinggalah disambung kembali pada tahun 833H. Antara faktor beliau berhenti dan menyambung kembali adalah kerana kematian 3 anak perempuannya, Aliyah, Fatimah dan Zain Khatun, kerana wabak taun. Buku ini memberikan ketenangan kepada beliau dalam menhadapi kematian anaknya kerana antara hadith yang disyarahkan dalam kitab ini adalah sesiapa yang mati kerana taun maka dia mati syahid. Wallahua'lam.

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Cold War In The Islamic World

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Arab Saudi dan Iran adalah 2 negara yang sering bertelagah demi menguasai pengaruh di dunia Islam. Dilip Hiro membawakan tema Perang Dingin di Dunia Islam dalam buku beliau terbitan tahun 2018. Seorang bekas wartawan yg banyak menulis tentang geopolitik negara Timur Tengah dan Asia Tengah ini membicarakan peranan Arab Saudi dan Iran dalam percaturan mereka semasa perang di Afghanistan, Iraq, Syria, Yaman, Bahrain dan Lubnan dalam usaha mereka memposisikan negara mereka sbg pemimpin dunia Islam. Banyak fakta menarik yg dikemukakan tetapi tidak semestinya diterima bulat- bulat. Walaupun sentiasa berkonfrontasi antara dua negara berkenaan namun ada usaha untuk berdamai ketika di bawah Raja Abdullah dan Presiden Rafsanjani pada tahun 1999.Ketika itulah kuota Haji kepada penganut Syiah ditambah. Wallahu a'lam

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Maksud Kufur dari Perspektif Mahmud Syaltut

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Shaykh Mahmud Shaltut merupakan Syeikhul Azhar dari tahun 1958-1963. Beliau adalah anak murid kepada Muhammad Abduh dan sebagaimana gurunya membawa idea pembaharuan. Salah satu karya beliau adalah 'Islam: Akidah dan Syariah' (الاسلام عقيدة و شريعة) yang menjelaskan tentang perihal Islam merangkumi akidah dan syariat secara tersusun dan rasional. Buku ini umpama buku karya Ali Al-Tantawi iaitu تعريف عام بدين الاسلام yang ditulis tahun 1970. Antara yang dibicara oleh beliau dalam buku tersebut ialah orang yang tidak beriman dengan segala rukun Iman dan Islam tidak boleh dikatakan kufur di sisi Allah dan kekal di neraka sebaliknya ia hanyalah hukum Islam tidak boleh dikenakan ke atas mereka di dunia. Manakala kekufurannya kepada Allah bergantung kepada keingkarannya kepada aqidah Islam setelah sampai kepadanya gambaran Islam yang sebenar, dan dia berpuashati dengan maklumat tersebut bahawa Islam adalah agama yang benar tetapi masih ingkar kerana sombong, atau tamak kepada harta, pangkat dan kemegahan atau takut akan celaan orang lain. m/s 37-38. Wallahu A'lam. غفر الله للشيخ ورحمه.

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