Freedom of religion of a child in Islamic states

Introduction

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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:-

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

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”.

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(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

Reservations

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1. Definition

To understand the meaning of “reservations” in the context of a treaty, a good place to start will be the Vienna Convention on the Law of Treaties (hereinafter referred to as “the Vienna Convention”). The Vienna Convention was adopted on 22nd May 1969 and came into force on the 27th January 1980(8). It has since been recognised to reflect the general international law(9).

Article 2(d) of the Vienna Convention defines “reservations” as follows:-

“a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”

Reservations are usually entered into in multilateral treaties(10). Cassese in his book(11) submits that reservations are entered with the intention of either:-

(a) exclude the application of one or more provisions; or
(b) place a certain interpretation on them(12).

As such, reservations are not only expected but are legally valid.

2. Limitations

While acknowledging the validity – and even the necessity – of reservations, the International Court of Justice state that with regards to multilateral treaties, “None of the contracting parties is entitled to frustrate or impair, by means of unilateral decisions or particular agreements, the purpose and raison d’etre of the convention”(13).

Article 19 of the Vienna Convention provides the following limitations:-

a. The reservation is prohibited by the treaty;

b. The treaty provides that only specified reservations, which do not include the reservation in question, may be made; or

c. In cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.

Thus, if a particular treaty is silent on the types of reservations which are prohibited or specifically allowed, the test to determine whether a reservation is valid is to see if it is incompatible with the object and purpose of the treaty.

3. Human Rights treaties

There has suggestions that for human rights treaties in particular, a special legal regime applicable to reservations in such treaties. Korkelia highlighted 2 special features of human rights treaties to support the argument(14). First, the lack of reciprocal obligations between State member parties. Therefore, there is no incentive for States to object to reservations by other member States.

The second special feature is the existence of a treaty supervising/monitoring body.

Hampson(15) finds that the Reservations to the Genocide Convention Case(16) and the Vienna Convention itself suggests that Article 19 therein is for general application, and as such, there is no evidence it would not apply to any special categories of treaties, if there are any.

Therefore, she concludes that the applicable legal regime is in the said Article 19. The CRC echoes Article 19 and specifically provides in Article 51(2) that “[a] reservation incompatible with the object and purpose of the present Convention shall not be permitted”.

However, these provisions are silent as to who should decide on the compatibility of reservations in human rights treaties.

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(8) source http://www.un.org/law/ilc/texts/treaties.htm
(9) Reservations to the Genocide Convention Case, ICJ Rep 15 (1951)
(10) For bilateral treaties, parties would simply just renegotiate the terms
(11) International Law (Oxford, oxford University Press, 2nd Edition, 2001), at pg 129
(12) But the UN HRC was of the view that “if a so-called reservation merely offers a State's understanding of a provision but does not exclude or modify that provision in its application to that State, it is, in reality, not a reservation”. See note 21 below at para 3
(13) See note 9 above
(14) Korkelia, K – New Challenges to the regime of Reservations under the International Covenant on Civil and Political Rights 13 EJIL 437 (2002)
(15) her working paper entitled Reservations to Human Rights Treaties submitted pursuant to Sub-Commission decision 1998-113 (E/CN.4/Sub.2/1999/28)
(16) See note 9 above

Who decides on whether reservations are compatible or not?

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Cassese submits that for the legal regime established by the Vienna Convention to be workable for multilateral treaties, there must be an “international body to monitor and assess the admissibility of reservations, and rule on the matter”(17).

In the European Court of Human Rights (“ECtHR”)case of Belilos v. Switzerland(18), the interpretive declaration entered by Switzerland was held to be an invalid reservation despite the lack of objections by other State parties.

However, Korkelia submits that using the decisions of the ECtHR as a precedent that a treaty monitoring body should have the competence to determine the validity of a reservation is not convincing due to the special feature of the ECHR which is “regarded as a constitutional instrument of European Public Order”(19). Korkelia further noted that the UN Human Rights Committee (“HRC”), unlike the ECtHR, lacked the power to make any binding decisions.

Nevertheless, in the Rawle Kennedy case(20), the HRC have taken the initiative to decide if a reservation is compatible with the object and purpose of the ICCPR.

Further, the HRC in its General Comment No. 24(52)(21) have found that it necessarily falls on them to decide if a reservation to the ICCPR is compatible with the objects and purpose of the said treaty. This is due partly to lack of reciprocity in human treaties, and partly “it is a task that the Committee cannot avoid in the performance of its functions”.

Redgwell observed that “General Comment No. 24 takes a bold step towards the articulation of a new and separate reservations regime in respect of human rights treaties, explicitly departing from what has been characterised as the unsatisfactory operation in relation to such treaties of the classical provisions on reservations embodied in Articles 19 – 23 of the 1969 Vienna Convention”(22).

Hampson submitted that the competence of a treaty monitoring body to take a view of the validity of a reservation “necessarily flows from their functions”(23).

While many States have raised objections to reservations made in human rights treaties, these objections may not mean anything to the citizens and people living in the reserving State. Even the HRC questions the value of inter-state objections with regards to human rights treaties like the ICCPR(24).

As such, it falls – and it is submitted rightly so – on the treaty monitoring body of a human rights treaty to determine if a reservation is compatible with the object and purpose of the said treaty.

Schabas submits that “the Committee on the Rights of the Child, in fact, is required by the Children's Convention to address the issue of the legality of reservations. Reservations limit the obligations of a state party. The Committee's mandate is to examine ‘the progress made by States Parties in achieving the realization of the obligations undertaken in the present Convention’(25). It can only do so if it can determine the extent of such obligations, and this necessarily involves an assessment of the scope as well as the legality of reservations”(26).

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(17) See note 11 above, at page 130
(18) Publications of the European Court of Human Rights, Series A (1988) Vol. 132
(19) See note 14 above
(200 Communication No. 845/1999 (CCPR/C/67/D/845/1999)
(21) General Comment No. 24: Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant : . 04/11/94. CCPR/C/21/Rev.1/Add.6, General Comment No. 24. (General Comments), at para 18
(22) Catherine J. Redgwell – Reservations to treaties and HRC General Comment No. 24(52) 46 ICLQ 390 at 399
(23) See note 15 above, at para 13
(24) See note 21 above, at para 17.
(25) Article 43(1) of the CRC
(26) William A. Schabas Reservations to the Convention on the Rights of the Child Human Rights Quarterly 18.2 (1996) 472-491, when Schabas was considering Iran’s reservations to the CRC

When are reservations not compatible with the treaty?

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The following list is not exhaustive and certain situations are not taken into account(27).

1. When it is too general in character

Article 64 of the ECHR provides that reservations “of a general character shall not be permitted”. It however does not mention about compatibility with the object and purpose of the treaty.

Having said that, it is submitted that any reservations which is of a general character cannot be compatible with the object and purpose of the treaty as they are either comprehensive/too far-reaching or too vague:-

(a) Too comprehensive/far-reaching

These are reservations which subordinates a treaty in its entirety to the limits and, in some cases, also to the domestic law of the reserving state. They are regarded as “general subordination reservations”. D. Shelton observes that such reservations are “the most questionable because they deny the very reason for adoption of human rights treaties: the establishment of minimum standards with which domestic laws should be brought into conformity”(28).

Schabas was of the view that such far-reaching reservations can be considered as a “total absence of ratification”(29) and in such a situation, it is not even necessary to consider if such reservation is compatible with the treaty or not.

(b) Too vague

Schabas noted that “A reservation which is too vague may deprive all concerned parties… of an accurate picture of the rights and obligations of the state”(30).

Some reservations are too vague that it is difficult to know the actual extent of the reservation. As such, the effect will be that individuals would not know for sure if their rights are protected and respected. It is submitted that this outcome of uncertainty is certainly incompatible with the object and purpose of any human rights treaty which seek to guarantee protection of a right.

With regards specifically to the said reservations to Article 14 of the CRC, many States have lodged objections to reservations on the grounds that it is not compatible with the treaty due to its far-reaching and vague terms(31).

While these objections have no binding authority, the HRC have recognised that such objections may help them determine if the reservations are compatible with the object and purpose of the treaty(32).

Based on the aforesaid, it is submitted as follows:-

(a) The said reservations which are the kind that can be described as the “general subordination reservations” are clearly incompatible with the object and purpose of the CRC and therefore violates Article 51 of the CRC as these reservations are too comprehensive and/or far-reaching in scope;

(b) As for the said reservations which refer specifically to Article 14 of CRC, it may be argued that they nevertheless still violate Article 51 of the CRC as they are too vague in nature. This argument will however hinge on what is meant by “Islamic Law” or “Shar’ia Law” which will be discussed in detail below.

2. When it offends peremptory norms

The HRC state(33) that reservations which offends peremptory norms are not compatible with ICCPR. The Committee went on by listing the rights in the ICCPR which are considered to be peremptory norms and therefore may not be subject to reservations. This includes the freedom of thought, conscience and religion(34).

As such, the right protected in Article 14 of the CRC is a peremptory norm and it is submitted that the said reservations which offend it are incompatible with the object and purpose of the CRC and violates Article 51 therein.

3. When it runs counter to some of the basic principles embodied in the treaty

The HRC in the Rawle Kennedy Case(35) was of the view that the reservation entered by Trinidad and Tobago “…constitutes a discrimination which runs counter to some of the basic principles embodied in the [ICCPR] and its Protocols, and for this reason the reservation cannot be deemed compatible with the object and purpose of the Optional Protocol”.

It is submitted that one of the basic principles embodied in the CRC is that the child should enjoy the same rights as an adult. Gone are the paternalistic notions of the child as being dependent on their parents and need to be protected as they are weak. Instead, the child is viewed as a human being, their views given due weight(36), and they possess the right to participatory rights as enunciated in Articles 12 – 16 of the CRC.

Adam Lopatka was of the view that the right of a child to freedom of religion is “a remarkable step towards general respect of a child’s personality”(37).

Therefore, by placing limitations to their rights in Article 14, it is submitted that the said reservations do not view the child as having the same rights as an adult, being able to make his or her own decisions – albeit subject to their evolving capacities(38). It is submitted that this amounts to restriction which runs counter to some of the basic principles in the CRC.

4. When the reservation is made against the substance of a right

In the concurring opinion of Judge De Meyer in Belilos v Switzerland(39), it was held as follows:-

“The object and purpose of the European Convention on Human Rights is … to recognise rights which must be respected and protected even in the absence of any instrument of positive law.

It is difficult to see how reservations can be accepted in respect of provisions recognising rights of this kind. It may even be thought that such reservations, and the provisions permitting them, are incompatible with the ius cogens and therefore null and void, unless they relate only to arrangements for implementation, without impairing the actual substance of the rights in question.”

It is submitted that this view may seem a little extreme. It would seem that only reservations which relate to “arrangements for implementation” are allowed. Having said that, the logic of the view is tempting. The objects and purposes of generally, any human rights treaty, and specifically, the CRC is to recognise human rights. A reservation made against the substance any of the rights contained therein – in this case, the freedom of religion in Article 14 of the CRC - would therefore not be compatible with the object and purpose of the treaty.

Granted, reservations are still useful when it concerns the “arrangements for implementation”. Redgwell finds that reservations “permit States to accept the generality of an instrument while entering reservation in respect of those rights which may be difficult initially to guarantee”(40).

These reservations are the kind that allows States to progressively achieve the objects and purpose of a human rights treaty as it is recognised that certain States may need time to make the necessary amendments and changes to its domestic law. These reservations, by their very nature, are temporal. The same however cannot be said with the said reservations by the relevant Muslim States.

The probable response by the relevant Muslim States is that the said reservations are not a reflection of a simple refusal to recognise the right of the child to freedom of religion. The issue is about their freedom of religion – their freedom to manifest and practice their religion. Cultures may evolve and traditions can die away but the basis of religion – and in this case, of the Islam religion – is the same throughout its history.

What if the beliefs of a religion – in this case, the Islam faith – are contrary to the substance of a right that is sought to be recognised and protected in a human rights treaty – in this case, the right of a child to freedom of religion?

It may perhaps be better to answer another question first i.e. does the Islam faith in any way restrict the child’s right of freedom of religion in the CRC? Perhaps it is a good time now to investigate what the Islamic Law provides regarding freedom of religion generally, and freedom of religion in the context of a child. This will assist in deciding if the said reservations run counter to the basic principles of the CRC and if it is indeed against the substance of the right recognised in Article 14 of the CRC. This exercise can also help reveal if the said reservations are indeed too vague or otherwise.

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(27) For instance, the HRC raised the issue whether non-derogable rights can be made the subject of a reservation – para 10 of General Comment No. 24. However, since there are no non-derogable rights in the CRC, it will not be considered in this essay.
(28) State Practice on reservations to Human Rights Treaties (1983) Can Human Rights Y.B. 205 at 227
(29) See note 26 above
(30) See note 26 above
(31) See inter alia the objections of the Denmark against Brunei’s reservation, the objections of Norway against Malaysia’s reservations and the objections Italy against Syria’s reservations. View the website http://www.ohchr.org/english/countries/ratification/11.htm#reservations for the complete list
(32) See note 21 above
(33) See note 21 above at para 7
(34) Ibid, at para 8
(35) See note 20 above
(36) In accordance with their age and maturity – Article 12 of the CRC
(37) In his article, Appropriate Direction and Guidance in the Exercise by a Child of the Rights to Freedom of Expression, Thought, Conscience and Religion found in Monitoring Children’s Rights E Verhellen (Ed) Martinus Nijhoff Publishers 1996 at pages 287 - 292
(38) See Article 5 CRC
(39) See note 18 above
(40) See note 22 above

A brief background of Islamic Law

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In order to appreciate the legal arguments on the Freedom of Religion within the Islamic Law, some preliminary matters have to explained first.

1. Islamic Law and Shar’ia Law

Literally, the “Shari’a”(41) means “the straight path”(42). De Seife describes the Shar’ia as the law of Islam(43).

Mayer notes(44) that in the Universal Islamic Declaration of Human Rights (UIDHR)(45), the phrase “the Law” refers to the Shar’ia, and that the Shar’ia is defined in the Explanatory Notes section of the UIDHR as:-

“the totality of ordinances derived from the Quran and Sunnah(46) and any other laws that are deduced from these two sources by methods considered valid in Islamic jurisprudence”.

As such, Shar’ia Law is the Islamic Law. When the said reservations make reference to “Islamic law” or subject to the constitution or domestic laws which are based on the Muslim religion, it is in fact referring to the Shar’ia Law.

Brown notes that although Shar’ia is often translated as Islamic Law, it encompasses a much broader range than just a legal system – it also reflects the morals and religious teaching of Islam

2. Sources of the Shar’ia Law

De Seife(48) refers to George M. Baroody’s Shar’ia: Law of Islam(49) for the sources of the Shar’ia. Basically, there are four sources which are as follows:-

(a) The Quran – God’s own words told to the Prophet Muhammad;
(b) The Sunna – a record of what the Prophet said and did. A compilation of these are the Hadith;
(c) The Ijma – consensus of scholars on problems whose solutions are not found in (a) and (b) above; and
(d) The Qiyas – reasoning by analogy to be applied to problems not covered by the other sources.

It should be noted therefore that there is no one compilation of the Shar’ia Law like a written Constitution or a Declaration or a Statute. As will be seen later, this will result in a lack of consensus on certain matters. This also resulted in the establishment of “different theological or juridical schools” within the orthodox Muslim Community, four of which have survived i.e. the Hanafi school, the Maliki school, the Shafi’i school and the Hanbali school(50)

3. Definition of a Muslim

De Seife comes up with this definition - “Islam means submission to the will of God. A Muslim is one who submits to the will of God”(51).

Pearl and Menski in their book(52) noted that the definition of a Muslim is “a matter of religion than of law”. They find it is a combination of belief and practice(53).
As such, it is a matter of the will. A person cannot therefore be “born into the faith”.

Having said that, two Judges from Pakistan found great difficulty in finding a definition of what is a Muslim(54). Justice Muhammed Munir and Justice Kayani observed that the definition provided by various ulama (teachers of the faith) in Pakistan differ significantly.

Abdullah Saeed comments that “If the ulama of Pakistan could not agree on the definition of a Muslim, the difficulties of arriving at a universally acceptable definition of ‘apostasy’ and ‘apostate’ are obvious”(55).

4. How does Islam view children

Pearl observes(56) that under Islamic Law, a child has no legal capacity in Islamic law(57). There seems to be 3 different stages in the life of a minor. The first stage, a child is totally incapable of anything. Above that age, he attains perfect understanding and can participate in legal acts but subject to interdiction by the guardian if it is in the best interest of the minor. Finally, after a certain age, there will no longer be any interdiction.

Siraj Sait(58) notes that under classical Islamic formulations, the end of childhood is marked by the first signs of puberty. In case of doubt, the recognise age of manhood is 15 years, although some schools prefer 18 years.

According to the UIDHR(59), the child has “the right to be maintained and properly brought up by its parents”. Further it is provided that it is “forbidden that children are made to work at an early age or that any burden is put on them which would arrest or harm their natural development.”

Article 7 of the Cairo Declaration on Human Rights in Islam(60) provides that “every child has rights due from the parents, society and the the State to be accorded proper nursing, education and material, hygienic and moral care.”

As such, a child is viewed as one who is in need of protection and nurturing. There however do not seem to be any view that a child possess any of the participatory rights that are included in the CRC.

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(41) Including the variations eg “Syariah”, “Shar’iah”, “Shar’ia”
(42) Used in the Quran, eg Quran 1:6 “Show us the straight way”
(43) De Seife, RJA The Shar’ia – An Introduction To The Law of Islam Austin & Winfield, Publishers 1994, at pg 1
(44) Ann Elizabeth Mayer Islam and Human Rights – Traditions and Politics Westview Press 1999 at pg 76-77
(45) See the following website: http://www.alhewar.com/ISLAMDECL.html
(46) For definition, see below
(47) Nathan J. Brown Islamic Constitutionalism in Theory and Practice in Cotran, Eugene and Sherif, Adel Omar (Eds) - Democracy, the Rule of Law and Islam Kluwer Law International 1999
(48) See note 43 above at pg 25 - 34
(49) Shar’ia: Law of Islam Aramco World, November – December 1966, pg 27
(50) See note 43 above, pg 36
(51) Ibid at pg 5
(52) Muslim Family Law (3rd Edn) Sweet & Maxwell Ltd 1998
(53) A combination of the belief in the Islamic Creed and the practice of what is commonly known as the 5 Pillars of Islam, namely to recite the creed, worship, give alms, fast and pilgrimage
(54) See Report of the Court of Inquiry Constituted Under Punjab Act II of 1954 to Enquire into the Punjab Disturbances of 1935, Lahore: Superintendent of Government Printing, 1954. The issue arose when 2 groups of Muslims accused each other of unbelief and labeled the other side as non-Muslims
(55) Abdullah Saeed and Hassan Saeed Freedom of religion, apostasy and Islam Aldershot: Ashgate 2004, pg 50
(56) In his article, A note on children’s rights in Islamic law found in Children’s Rights and Traditional Values Douglas, G and Sebba, L (Editors), Dartmouth Publishing Company Limited 1998
(57) This is based on the Islamic principle of ‘akl (reason). M. Siraj Sait agrees with this in his article – see note 3 above
(58) See note 3 above, pg 42
(59) See note 45 above, at Article XIX(d)
(60) Adopted by the Organisation of Islamic Conference in Cairo, Egypt on 5 August 1990

Freedom of religion in Islamic Law

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1. No compulsion in Islam

The Quran states “Let there be no compulsion in religion. Truth stands out clear from error”(61). This is a clear recognition that faith is a matter for the individual to decide. This is consistent with the definition of Muslim as seen earlier.

The Quran is clear that Allah does not compel people to believe - “If it had been thy Lord’s Will, they would all have believed, - all who are on earth! Will thou then compel mankind, against their will, to believe!”(62) Allah further instructs the prophet that his duty is merely to proclaim the message, not to force the people to believe(63).

As such, in the Islamic faith, it appears that one is free to choose which religion that one wills. This is reflected during the drafting of Article 18 of the ICCPR where there were objections by some Muslim States to the inclusion of the clause “This right includes freedom to change [one’s] religion or belief”. However, once the offending clause was changed to “[t]his right shall include freedom to have or to adopt a religion or belief of [one’s] choice, the Article was unanimously adopted without reservations(64).

Therefore, it appears that while there is some objections on one’s freedom to change his religion – and this will dealt with in detail hereinbelow when we look in the issue of apostasy – the general rule is that Islam gives freedom to choose one’s own religion.

Having said that, if one were to look at some of the said reservations, this rule does not appear to apply to children. Jordan objects to the provisions which grants “freedom of choice of religion” to the child as this is “at variance with the precepts of… Islamic Shar’ia”. Maldives express reservation to Article 14 on the grounds that “all Maldivians should be Muslims”! Oman does not consider itself bound to the provision which “accord a child to choose his or her religion”.

However that these views do not seem to be consistent with the Quranic injunction referred to above that there should to be any compulsion in religion(65). While the said verse does not mention children specifically, the context of the verse shows that the verse is in fact directly concerning children. At that time, some Christians who converted to Muslim tried to convert their children as well. This verse was spoken to such parents to warn them against any acts of forceful conversion. It is commented that “Compulsion is incompatible with religion: because … religion depends upon faith and will, and these would be meaningless if induced by force”(66).

Furthermore, as will be seen later, most Muslim States do not allow a Muslim to convert out of Islam to another religion. If a child born into a Muslim family is not allowed to choose his/her own religion, then it means that that child will never ever have a chance to choose his/her religion.

It is submitted therefore that the reservations which suggest that a child has no right to choose his or her own religion are themselves not compatible with the Quran.

2. Apostasy

The word “apostasy” comes from the root word “Riddah”, which literally means “turning back”(67). Thus an apostate is “a muslim who rejects Islam and/or converts to another religion(68). Unless stated otherwise, this will be the definition used whenever the word “apostasy” is used hereinbelow.

Abdullah Saeed considers that before one can be found guilty of apostasy(69), it must be shown that it was voluntary and the person must also be sane.

Saeed further notes that the apostasy of a minor who does not comprehend the meaning of apostasy is not valid. But in the case of a minor who comprehends the meaning of apostasy, the views diverge. One school of thought maintains that the apostasy is invalid unless maturity or puberty can be proved(70). Other schools hold the view that the apostasy is valid. They argue that if the profession of Islam by the minor is valid, the subsequent rejection of Islam is too as long as the minor understands it.

It is submitted that the latter view is logical and makes sense. It does not matter how old the child is – if the child could profess belief in a religion, that should be valid. If the child subsequently chooses to reject it, that should equally be allowed. In fact, this is a clear reflection of Article 14 of the CRC.

3. Apostasy forbidden

In the pre-modern Islamic Law, apostasy if prohibited and the punishment for apostasy is death. There is no direct reference in the Quran that the punishment for apostasy is death(71). This view is based on several hadith.

The first and most widely referred to is the hadith which states “Whoever changes his religion, kill him”(72). Other hadiths referred to involve the Prophet ordering the killing and the execution of apostates(73).

Sultanhussein Tabandeh objects to change of religion(74) as the decision may have been made under duress, or it could be done for ulterior motives. Further, he is of the view that as Islam is superior over the rest, anyone who deserts Islam “betrays the fact that he must have played truant to its moral and spiritual truths in his heart earlier”.

Hassan Ahmad Abidin of the Sunni Islam notes that apostasy was prohibited as a precautionary measure to safeguard the Muslim community(75). Mayer notes that proponents of the death punishment for apostasy view that it can be a deterrent as no one should be encouraged to consider it(76).

Even at this point of time, a man in Afghanistan is on trial for converting from Muslim to Christianity . Reports say that “Abdul Rahman, 41, is charged with rejecting Islam and could be executed under Shar’ia law unless he reconverts”.

4. How does the issue of apostasy affect the Muslim child?

The Moroccan observer in the Working Group on the negotiation of the CRC argued the notion that a child could freely choose his/her religion “ran counter to the principles of Muslim Law: The child of a Muslim was bound to be a Muslim, and in order to renounce that fact, he had to conform to the rules of Muslim Law on the matter”(78).

Therefore, if a child of Muslim parents has attained manhood according to Islam(79), and he wishes to embrace another religion, he will be guilty of apostasy and can be sentenced to death. If the child is a girl, the situation is different. In the case of a woman who commits apostasy, the punishment is not death but the woman will be beaten and kept in prison until she reverts back to Islam or dies. This will apply to a female minor who understands the meaning of apostasy. Some schools goes further to say that all minors who are guilty of a valid apostasy will not face the death penalty but instead, be instructed to revert back to Islam(80).

It is submitted that based on the matters raised above, the main reason for the reservations made against Article 14(1) of the CRC is that the Muslim child is not free to convert out of the Muslim faith. While the Quran does not compel people of other faiths to belief in the Muslim faith, the freedom to change one’s religion appears to be out of the question if one is a Muslim.

Iraq in its reservation to Article 14 explained that the reason for the reservation was because “allowing a child to change his or her religion runs counter to the provisions of the Islamic Shar’iah”.

If this is the case – and the basis of the said reservations rests on the religious belief of the Muslim States, it appears that there will be great difficulty in the said reservations being withdrawn or modified so as to be compatible with the objects and purpose of the CRC. However, there have been great doubts cast on the interpretation of the Shar’ia regarding the law on apostasy, in particular, regarding the death sentence imposed. In the next section, we’ll investigate these views.

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(61) Quran 2:256 – all Quranic verses quoted herein are taken from The Holy Quran – English Translation of the Meanings and Commentary
(62) Quran 10:99
(63) Quran 3:20, 5:99, 24:54
(64) Baderin, Mashood A. - International Human Rights and Islamic Law. Oxford University Press 2003 at 119
(65) See note 61 above
(66) Commentary on Quran 2:256 – all commentary on Quranic verses are taken from The Holy Quran – English Translation of the Meanings and Commentary
(67) See note 55 above, pg 36
(68) See note 55 above, pg 37
(69) See note 55 above, pgs 5-52
(70) Puberty marks the end of childhood – see note 58 above
(71) Although it has been observed that many Quranic verses have been used indirectly. However, these verses are general in nature and does not speak of earthly punishment for apostasy nor does it state expressly that apostasy is to be punished with death – see note 55 above at pg 57-58
(72) Sarakhsi, Al-Mabsuf 10:98
(73) See note 55 above at pg 58 - 66
(74) In A Muslim Commentary on the Universal Declaration of Human Rights, London F.T.Goulding 1970 at pg 70 onwards
(75) See above at pg 16
(76) See note 44 above at pg 159
(77) See the BBC news report at this following link - http://news.bbc.co.uk/1/hi/world/south_asia/4832872.stm
(78) See note 2 above at page 196
(79) As seen above, a Muslim child is considered to have reached adulthood as early as 15 years.
(80) See note 55 above, pg 52

Death penalty for apostasy – is there a consensus?

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1. The situation in Muslims states

The situation in the Muslim States today is not consistent when it comes to the issue of freedom of religion generally – while some States allow it with some restraints(81), others restrict it severely(82).

There do not seem to be an agreement among the Muslims on whether this means that one is free to change his religion.

This lack of consensus was illustrated by Abdullah Saeed(83) when he referred to the incident in 1948 when the representative of Pakistan to the United Nations disagreed with the representative of Saudi Arabia. The latter raised an objection to Article 18 of the Universal Declaration of Human Rights, in particular, to the freedom to change one’s religion but the former supported the said Article 18 on the basis that the Quran allows a person to believe or not to believe.

Mayer was of the view that one of the problems faced when dealing with Islamic Law is the fact that unlike the Roman Catholics which has the Vatican Church to pronounce doctrine, Islam as a religion is “decentralised”(84). This led and is leading to many Muslims reinterpreting the Quran and moving away from the old school of thought(85).

2. Death penalty – argument against

Nowhere in the Quran is death penalty imposed for apostasy. The Quran warns against it, deplores it but reserves punishment for it in the next life(86).

As for the many hadiths referred to to support the death penalty, Abdullah Saeed helps us understand the historical context:-

“The earliest Muslim community of Medina at the time of the Prophet was preoccupied with the threat to its survival from external and internal opponents. …A person had to belong to one group or the other: the Muslims or their opponents. A person leaving one group was bound to join the other. …Given the state of war that existed between Muslims and their non-Muslim opponents throughout much of the prophet’s time in Medina, the reported declaration that the apostate should be put death seems reasonable”(87).

As such, the argument is that in the cases used to support the death penalty for apostasy, the death penalty was imposed not so much for the act of apostasy but for those who “repudiate Islam, join the enemy and struggle to inflict harm on the Muslim community and Islam”(88).

The view that the death penalty imposed on the apostates in the hadiths was for the offence of defecting to the enemy to wage war against the Muslim community is consistent with the view that women and minor apostates do not deserve the death sentence as the women and minors in that historical context do not participate in war. If the punishment of death was to be imposed on apostasy alone, it does not make sense why there should be any exceptions or discrimination.

It is submitted that this view has merit. The act of apostasy is one committed against God and it shall be that the God himself shall punish the apostate. A spiritual offence will reap a spiritual consequence.

It is submitted further that this view appears to be consistent with the Quran’s stand that there should be no compulsion in religion. This stand should apply equally to one who wants to convert into the Islam faith as well as one who wants to convert out.

It is also submitted that for such a serious punishment, there must be express and unequivocal provision in the Shar’ia – especially in the Quran.

As such, it appears that there is possibility that the Shar’ia Law can go hand in hand with modern international human rights law. Mayer is of the view that the “rich material and complex legacy of Islamic civilisation offer many avenues for meshing human rights law with Islamic values”(89). However, progress is impeded(90).

Even if it is accepted that the Shar’ia Law imposes death penalty for apostates, there are views that such laws were only applicable to the early Muslim community in Medina and as such of no relevance today(91).

3. The real issue behind apostasy?

Mayer questions the motivations of those who insist on death penalty for apostates despite the alternative views available and wonders whether their real concern is over religion or over some other matter(92).

Siraj Sait observes that reservations in the CRC were mainly due to political contingencies, not the Shar’ia. He suggests that the reservations could be motivated by the fear of “Western values infiltrating the Muslim society” or “the prospect of an independent thinking new generation well positioned to challenge their authoritarian policies”(93).

Mayer seems to agree when she noted that “…[t]here is fear that the individual may attempt to assert excessive rights that could harm the authority of the state or undermine the moral order of society. Islam is viewed in these schemes as a device for restricting individual freedoms and keeping the individual in a subordinate place vis-à-vis the government and society”(94).

While these views cannot be proven for sure, what is certain is that there is no general agreement or consensus on the issue of apostasy. Unless domestic law provides for its criminalisation expressly, there will be uncertainty on how the Shar’ia Law will be applied. In the present on-going case of the Afghan who is on trial for apostasy(95), while many say that he may be executed if found guilty, no one can be certain of that.

It is submitted therefore that if basis of the said reservations is the restriction on apostasy, then the reservations will be incompatible with the objects and purpose of the CRC on the basis that it is vague and uncertain.

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(81) For instance, freedom of religion is guaranteed in Turkey (Article 24 of the Constitution) and Tunisia (Article 5 of the Constitution)
(82) For example, Saudi Arab, Sudan and Yemen have laws against the offence of apostasy which is punishable by death
(83) See note 55 above at page 14
(84) Gustafson & Juviler – Religion and Human Rights – Competing Claims? M.E. Sharpe, Inc 1999, at 180
(85) Ibid - Mayer views that with the rise of literacy, Muslims are reading the Quran and the Prophet Muhammad’s accounts and are extracting their own lessons
(86) See Quran 2:217, 3:87, 3:106, 4:137
(87) See note 55 above at pg 60
(88) Ibid
(89) See note 84 above at 188
(90) Ibid, pg 189 Mayer quotes examples of people like Prof Abdol Karim Sorush, MM Taha and feminists Fatima Mernissi, Toujan Faisal and Taslima Nasreen who have been harassed – and in the case of MM Taha, executed – due to their attempts at progress
(91) See note 44 above, pg 169. a famous advocate of this view is Mahmud Muhammad Taha, the leader of the Sudanese Republican movement who was executed in 1985 as an apostate for his radical views
(92) Ibid pg 158
(93) See note 3 above, pg 35, 49
(94) See note 44 above, pg 81-82 I&HR
(95) See note 77 above

What will happen to a reservation which is found to be incompatible?

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1. The reservation should be disregarded

In the decision of the Rawle Kennedy’s case(96), UN HRC held that reservations which are found not to be compatible with the object and purpose of the relevant treaty are to be null and void. The reservation in that case was disregarded(97). Cassese submits that this view which “is in keeping with the object and purpose of human rights law” and which “commends itself as appropriate” and should be extended to other treaties(98).

2. The reserving State should take appropriate steps

The individual, dissenting, opinion of Committee members in the Rawle Kennedy case acknowledge that a position such as that taken by the majority “has met with serious criticism... If a reservation is incompatible with the object and purpose of a treaty, the critics argue, the reserving state does not become a party to the treaty unless it withdraws that reservation”.(99)

It is submitted that solution of treating such incompatible reservations as null and void may not be useful in certain situations, the most obvious being the situation of the CRC where there is no avenue for individual complaints. The act of disregarding the reservation may be disregarded by the reserving State!

Korkelia is of the view that if the reservation is found not to be compatible, it will be for the reserving State itself to decide on whether to withdraw the reservation, modify it or – in the extreme case – withdraw from the treaty(100).

3. Obtain an advisory opinion from the International Court of Justice

What will happen if the reserving State refuses to take any action even after the determination by a treaty monitoring body that the reservation is incompatible with the object and purpose of the treaty?

In a meeting of the chairpersons of the human rights treaty bodies(101) in 1992, the chairpersons agreed that in such a case, “that treaty body should consider requesting the Economic and Social Council or the General Assembly, as appropriate, to request an advisory opinion on the issue from the International Court of Justice(102)”.

In the same manner, Fottrell – in the context of the Committee on the Rights of the Child – proposes that what could be done is to “refer the matter to the Secretary General suggesting that he seek an advisory opinion from the International Court of Justice”(103). Any judgment would potential shed light on the effect or status of reservations found to be incompatible with the object and purpose of a human rights treaty.

It is submitted that suggestion by the learned chairpersons and Fottrell has merit and should be taken up sooner rather than later.

Until then, we remain “in the dark”. For the 4 UN human rights treaty bodies(104) which may consider individual complaints or communications from individual, it is submitted that they will have to disregard any reservations which are incompatible with the treaty – following the example of the HRC in Rawle Kennedy’s Case(105).

For the other treaty bodies, there does not seem to be much that can be done save for the constant reminder and exhortation to State members to withdraw their reservations. The chairpersons of the treaty bodies agreed on the following:-

“…the States parties concerned should be urged to withdraw the reservations ... The treaty bodies should systematically review reservations made when considering a report and include in the list of questions to be addressed to reporting Governments a question as to whether a given reservation was still necessary and whether a State party would consider withdrawing a reservation that might be considered by the treaty body concerned as being incompatible with the object and purpose of the treaty”(106).

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(96) See note 20 above
(97) See also para 18 of General Comment No. 24
(98) See note 11 above, at page 131
(99) See note 20 above, at para 15
(100) See note 14 above
(101 Report of the Fourth Meeting of Persons Chairing the Human Rights Treaty Bodies A/47/628 10 November 1992
(102) Ibid, para 61
(103) In her article Children’s Rights found in Human Rights: An Agenda for the 21st Century Heganty & Leonard (Eds), Canvendish 1999, pg 167
(104) The HRC, the Committee on the Elimination of Racial Discrimination, the Committee Against Torture and the Committee on the Elimination of Discrimination Against Women
(105) See note 20 above
(106) See note 101 above at para 36

What should happen to the reservations to Article 14?

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In the case of the said reservations to Article 14(1) of the CRC, it is submitted first that the Committee on the Rights of the Child must make a clear and express decision on the compatibility of the said reservations. Based on the issues raised above, the decision should be that the said reservations are indeed not compatible with the object and purpose of the CRC.

Thereafter, that a much stricter stance should be taken when considering the reports of the said Muslim State. For Muslim States which entered reservations made specifically against Article 14, they should be confronted and challenged on the reasons why they have not withdrawn or modify such reservations.

As for the Muslim States which entered sweeping and general reservations against all the provisions of the CRC, they may have to be challenged to reconsider their commitment to the CRC. While it is understood that the high number of ratifications are important to the CRC, it has to be balanced with the integrity of the CRC. It would be pointless to have State members of the CRC who on the one hand commits itself to upholding the objects and purpose of the CRC but on the other hand places severe limitations to it. As Fottrell submitted, “this trend is evidence of a reprehensible duplicity on the part of these states”(107).

Further, it is submitted that the committee should familiarised itself with some basic understanding on the Shar’ia Law(108) and have discourses with the Muslim States regarding their reservations and fears. The challenge to them will be to reconsider their reservations in light of fresh new ways of looking at the Shar’ia law instead of “western standards”. As can be seen above, there are Muslim views on freedom of religion of the child which do not necessarily be at variance with Article 14. At the very least, the said Muslim States will be more willing to discuss the modification or even withdrawal of their reservations if the Committee approach them from this angle.

Mayer noted something interesting in the persecution of those of the Bahai faith in Iran not too long ago. The attacks on them were justified by official attempts to hide any religious motives. Instead, it had been alleged that those who were persecuted were guilty of inter alia crimes of spying, treason and drug trafficking. Mayer questions whether this is a “lack of confidence that criminalising religious belief can be justified in today’s world”.

If there is indeed a lack of confidence as suggested by Mayer, then it is submitted that there should be an even greater lack of confidence to criminalise religious belief of a Muslim child (who has attained adulthood in the eyes of Islam) who wants to converts out of Islam.

It is submitted that this may well force the Muslim states to rethink their stand on the matter and to look afresh again at the Shar’ia Law. After all, the fact that Muslim states like Pakistan and Egypt could withdraw their reservations means that it is possible for the other Muslim states to do the same.

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(107) See note 103 above
(108) It is noted that a few of the Committee members are from the said Muslim States – Qatar, Algeria and Bangladesh

Impossible or inevitable?

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Base on the what have been raised hereinabove, it is without a doubt that the issue freedom of religion of the child in a Muslim State raises much problems. Some might wonder why the fuss over the issue of religion when other rights of the child seem to be far more essential – right to life, right to education, right to health, right to be protected from exploitation etc.

It is submitted that the issue of freedom of religion is more than just the right to choose which religion. With the right to freedom of religion comes the recognition that the child is an individual, whose views are taken into account, and who possess human rights as adults do. As was stated above, the right of a child to freedom of religion is “a remarkable step towards general respect of a child’s personality”(109).

While recognising that the issue of religion is sensitive, it is submitted that the road ahead is not as difficult as perceived:-

(a) Although there are many Muslim States which have entered reservations regarding Article 14, there are also other Muslim States(110) (or States where a large majority of people are of the Muslim faith(111)) who have not entered similar reservations, thus impliedly agreeing that Article 14 is not incompatible with the Shar’ia Law.

(b) Further, States like Pakistan and Egypt have had their reservations withdrawn.

(c) more people of the Muslim faith today are going back to the Shar’ia and its sources to re-look at it in the context of the modern world.

Freedom of religion of the child in a Muslim State may not be impossible after all.

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(109) See note 37 above
(110) For instance, Yemen
(111) For instance, Turkey and Tunisia