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.
