LW729 COMPARATIVE HUMAN RIGHTS PROCESS

Freedom of Religion: Between Universalism and Relativism

by Shahizad Sulaiman (Student Id:2020355637)

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

1
Council of Europe,
<https://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/echr/paper2_en.asp#P126_11087> accessed
17 May 2020.

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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
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.

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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 Folgero7 and
Zengin8 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).

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

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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 rights11. 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.

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.

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