Introduction
Religion is a difficult and sensitive subject. The Special Rapporteur of the Commission on Human Rights on Freedom of Religion or Belief said that her mandate is complex, “not black and white. It deals with people and their faith. It is in the emotional realm rather than cut and dry rules and regulation”(1).
However, the issue becomes even more controversial when one talks of the freedom of religion of the child. The “issues surrounding freedom of religion were among the most difficult to resolve when the Convention on the Rights of the Child (“CRC”) was drafted”(2). Sirat Sait notes that “the most contentious issue as far as Muslim countries were concerned was Article 14”(3).
It is submitted that there are 3 major areas where the child faces restrictions in exercising the right to freedom of religion:-
Article 14(1) of the CRC provides that the State parties must respect the Child’s right to inter alia freedom of religion. However, this right is not guaranteed as many States have entered reservations with regards to Article 14.
Article 14(2) of the CRC provides that parents have the rights and duties to “provide direction” to the child in the exercise of inter alia the right to freedom of religion.
Difficulty arises when the parents’ view are different from the child’s view, and when the views of individual parent differ.
It has been said that children do not lose their human rights by virtue of passing through the school gates(4). There are two major issues when it comes to schools/education:-
(a) The curriculum - religious knowledge as a subject in schools.
(b) Manifestation - the right to manifest one’s religion in school eg. the issue of head scarf and dressing.
However, it will not do justice to the subject if all the issues raised above are dealt with in this essay. As such, this essay will be limited to just the restriction by the State. In particular, the focus will be on freedom of religion only, looking at the reservations entered by Muslim States with regards to Article 14(1) of the CRC. The issue of freedom of thought and conscience, the role of parents and the manifest of the right will not be dealt with here.
A brief outline of this essay is as follows:-
Article 14(1) of the CRC provides that “State Parties shall respect the right of the child to freedom of… religion”.
The Belgian Government entered an interpretive declaratory stating that it “interprets article 14, paragraph 1, as meaning that, in accordance with the relevant provisions of article 18 of the International Covenant on Civil and Political Rights of 19 December 1966 and article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (“ECHR”), the right of the child to freedom of … religion implies also the freedom to choose his or her religion or belief”.
With regards to Article 18 of the International Covenant on Civil and Political Rights (“ICCPR”), the UN HRC in its General Comment No. 22 was of the view that the freedom:-
“to ‘have or to adopt’ a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one's current religion or belief with another or to adopt atheistic views, as well as the right to retain one's religion or belief.”(5)
This is consistent with Article 18 of the Universal Declaration of Human Rights (1948) (“UDHR”) which provides that “[e]veryone has the right to freedom of… religion; this right includes freedom to change his religion or belief…”.
It is submitted that Article 14 of the CRC should be interpreted in light of Article 18 of the ICCPR as well as Article 18 of the UDHR as it makes sense that the freedom to religion should include the freedom to change one’s religion. Even a Muslim State like Iraq have acknowledged this interpretation by entering reservations to Article 14 on the grounds that a child could not be allowed to change his religion.
Reservations and Declarations
The reservations considered here shall be loosely categorised into 3 types.
(1) a reservation of a general nature i.e. subjecting all the provisions of the CRC to Islamic Law, Shar’ia Law and/or domestic law which is based on Islamic principles. The States which entered such a reservation are Djibouti, Iran, Kuwait, Mauritania, Qatar, Saudi Arabia ;
(2) a reservation and/or a declaration with regards specifically to Article 14 of the CRC. The States which entered such a reservation are Algeria, Bangladesh, Iraq, Jordan, Malaysia, Maldives, Morocco, United Arab Emirates;
(3) a general reservation on all provisions of the CRC as well as a reservation specifically on Article 14. The States which entered such a reservation are Brunei Darussalam, Indonesia, Oman, Syrian Arab Republic
Unless indicated otherwise:-
(a) all the States mentioned above shall be referred to collectively hereinbelow as “the said Muslim States”;
(b) the 3 categories of reservations mentioned above shall be referred to collectively hereinbelow as “the said reservations”.
______________________________
(1) Respect – The Human Rights Newsletter Nr. 5 May 2005
(2) Lawrence J. LeBlanc The Convention on the Rights of the Child University of Nebraska Press 1995
(3) M. Sirat Sait Islamic Persepctives on the Rights of the Child in Fottrell, D (Ed) – Revisiting Children’s Rights Kluwer Law International 2000, pg 35
(4) General Comment No. 1 of the Committee on the Rights of the Child The Aims of Education : 17/04/2001. CRC/GC/2001/1
(5) General Comment No. 22: The right to freedom of thought, conscience and religion ( Art. 18) : . 30/07/93. CCPR/C/21/Rev.1/Add.4, General Comment No. 22., at para 5
(6) Only the reservations and/or declarations entered on the grounds of Islamic Law, Shar’ia Law and/or domestic law which is based on Islamic principles are considered here. For the complete list of all reservations, declarations and objections, view the following website:- http://www.ohchr.org/english/countries/ratification/11.htm#reservations
(7) Although Afghanistan made a declaration upon signature that they reserve the right upon ratification, to express reservations on all provisions which are incompatible with Islamic Law, no such reservation was entered. Pakistan entered a reservation of this nature upon signature and ratification but has withdrawn the same and informed the Secretary-General accordingly on 23 July 1997
However, the issue becomes even more controversial when one talks of the freedom of religion of the child. The “issues surrounding freedom of religion were among the most difficult to resolve when the Convention on the Rights of the Child (“CRC”) was drafted”(2). Sirat Sait notes that “the most contentious issue as far as Muslim countries were concerned was Article 14”(3).
It is submitted that there are 3 major areas where the child faces restrictions in exercising the right to freedom of religion:-
- The State
Article 14(1) of the CRC provides that the State parties must respect the Child’s right to inter alia freedom of religion. However, this right is not guaranteed as many States have entered reservations with regards to Article 14.
- The home/family
Article 14(2) of the CRC provides that parents have the rights and duties to “provide direction” to the child in the exercise of inter alia the right to freedom of religion.
Difficulty arises when the parents’ view are different from the child’s view, and when the views of individual parent differ.
- The school/education system
It has been said that children do not lose their human rights by virtue of passing through the school gates(4). There are two major issues when it comes to schools/education:-
(a) The curriculum - religious knowledge as a subject in schools.
(b) Manifestation - the right to manifest one’s religion in school eg. the issue of head scarf and dressing.
However, it will not do justice to the subject if all the issues raised above are dealt with in this essay. As such, this essay will be limited to just the restriction by the State. In particular, the focus will be on freedom of religion only, looking at the reservations entered by Muslim States with regards to Article 14(1) of the CRC. The issue of freedom of thought and conscience, the role of parents and the manifest of the right will not be dealt with here.
A brief outline of this essay is as follows:-
- What does Article 14(1) say?
- Which Muslim States entered reservations against Article 14(1)?
- Reservations in general
- The validity of the reservations made by the Muslim States
- The basis of those reservations
- What can be done regarding the reservations which are incompatible with the CRC
Article 14(1) of the CRC provides that “State Parties shall respect the right of the child to freedom of… religion”.
The Belgian Government entered an interpretive declaratory stating that it “interprets article 14, paragraph 1, as meaning that, in accordance with the relevant provisions of article 18 of the International Covenant on Civil and Political Rights of 19 December 1966 and article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (“ECHR”), the right of the child to freedom of … religion implies also the freedom to choose his or her religion or belief”.
With regards to Article 18 of the International Covenant on Civil and Political Rights (“ICCPR”), the UN HRC in its General Comment No. 22 was of the view that the freedom:-
“to ‘have or to adopt’ a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one's current religion or belief with another or to adopt atheistic views, as well as the right to retain one's religion or belief.”(5)
This is consistent with Article 18 of the Universal Declaration of Human Rights (1948) (“UDHR”) which provides that “[e]veryone has the right to freedom of… religion; this right includes freedom to change his religion or belief…”.
It is submitted that Article 14 of the CRC should be interpreted in light of Article 18 of the ICCPR as well as Article 18 of the UDHR as it makes sense that the freedom to religion should include the freedom to change one’s religion. Even a Muslim State like Iraq have acknowledged this interpretation by entering reservations to Article 14 on the grounds that a child could not be allowed to change his religion.
Reservations and Declarations
The reservations considered here shall be loosely categorised into 3 types.
(1) a reservation of a general nature i.e. subjecting all the provisions of the CRC to Islamic Law, Shar’ia Law and/or domestic law which is based on Islamic principles. The States which entered such a reservation are Djibouti, Iran, Kuwait, Mauritania, Qatar, Saudi Arabia ;
(2) a reservation and/or a declaration with regards specifically to Article 14 of the CRC. The States which entered such a reservation are Algeria, Bangladesh, Iraq, Jordan, Malaysia, Maldives, Morocco, United Arab Emirates;
(3) a general reservation on all provisions of the CRC as well as a reservation specifically on Article 14. The States which entered such a reservation are Brunei Darussalam, Indonesia, Oman, Syrian Arab Republic
Unless indicated otherwise:-
(a) all the States mentioned above shall be referred to collectively hereinbelow as “the said Muslim States”;
(b) the 3 categories of reservations mentioned above shall be referred to collectively hereinbelow as “the said reservations”.
______________________________
(1) Respect – The Human Rights Newsletter Nr. 5 May 2005
(2) Lawrence J. LeBlanc The Convention on the Rights of the Child University of Nebraska Press 1995
(3) M. Sirat Sait Islamic Persepctives on the Rights of the Child in Fottrell, D (Ed) – Revisiting Children’s Rights Kluwer Law International 2000, pg 35
(4) General Comment No. 1 of the Committee on the Rights of the Child The Aims of Education : 17/04/2001. CRC/GC/2001/1
(5) General Comment No. 22: The right to freedom of thought, conscience and religion ( Art. 18) : . 30/07/93. CCPR/C/21/Rev.1/Add.4, General Comment No. 22., at para 5
(6) Only the reservations and/or declarations entered on the grounds of Islamic Law, Shar’ia Law and/or domestic law which is based on Islamic principles are considered here. For the complete list of all reservations, declarations and objections, view the following website:- http://www.ohchr.org/english/countries/ratification/11.htm#reservations
(7) Although Afghanistan made a declaration upon signature that they reserve the right upon ratification, to express reservations on all provisions which are incompatible with Islamic Law, no such reservation was entered. Pakistan entered a reservation of this nature upon signature and ratification but has withdrawn the same and informed the Secretary-General accordingly on 23 July 1997
posted by imissw at 7:54 pm
0 Comments:
Post a Comment
<< Home