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Framework for Communications - II 2


DISCRIMINATION

2. State religion

Human Rights Committee general comment 22

Para . 9 : "The fact that a religion is recognized as a State religion or that it is established as official or traditional or that its followers comprise the majority of the population, shall not result in any impairment of the enjoyment of any of the rights under the Covenant, including articles 18 and 27, nor in any discrimination against adherents to other religions or non-believers. In particular, certain measures discriminating against the latter, such as measures restricting eligibility for government service to members of the predominant religion or giving economic privileges to them or imposing special restrictions on the practice of other faiths, are not in accordance with the prohibition of discrimination based on religion or belief and the guarantee of equal protection under article 26. The measures contemplated by article 20, paragraph 2, of the Covenant constitute important safeguards against infringement of the rights of religious minorities and of other religious groups to exercise the rights guaranteed by articles 18 and 27, and against acts of violence or persecution directed towards those groups. The Committee wishes to be informed of measures taken by States parties concerned to protect the practices of all religions or beliefs from infringement and to protect their followers from discrimination. Similarly, information as to respect for the rights of religious minorities under article 27 is necessary for the Committee to assess the extent to which the right to freedom of thought, conscience, religion and belief has been implemented by States parties. States parties concerned should also include in their reports information relating to practices considered by their laws and jurisprudence to be punishable as blasphemous."

Para . 10 : "If a set of beliefs is treated as official ideology in constitutions, statutes, proclamations of ruling parties, etc., or in actual practice, this shall not result in any impairment of the freedoms under article 18 or any other rights recognized under the Covenant nor in any discrimination against persons who do not accept the official ideology or who oppose it."

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Excerpts of relevant paragraphs of 25 years mandate reporting practice (1986-2011)

E/CN.4/1996/95/Add.1, para. 81 (country visit to Pakistan):

"81. With regard to legislation, the Special Rapporteur would like to point out that an official or State religion in itself is not opposed to human rights. The State should not, however, take control of religion by defining its content, concepts or limitations, apart from those which are strictly necessary, as provided in article 1, paragraph 3, of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, and in article 18, of the International Covenant on Civil and Political Rights. On 20 July 1993, the Committee on Human Rights adopted General Comment No. 22 concerning article 18 of the Covenant, in which it expressed the opinion that the right to freedom of thought, conscience and religion was far-reaching. The Committee also pointed out that limitations on the freedom to manifest a religion or belief are authorized only if prescribed and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others, and are applied in such a manner that would vitiate the right to freedom of thought, conscience and religion."

E/CN.4/1996/95/Add.2, para. 88 (country visit to the Islamic Republic of Iran):

"88. With regard to the legislation, the Special Rapporteur has indicated that a State religion is not, in itself, in contradiction with human rights. However, this state of affairs - which is consecrated by the Iranian Constitution - should not be exploited at the expense of the rights of minorities and the rights associated with citizenship, which imply that citizens should not be discriminated against on grounds such as, inter alia, religion or belief. From this standpoint, the concept of Islamic criteria as set forth in article 4 of the Constitution should be precisely defined in regulations or legal texts without, however, giving rise to discrimination among citizens."

A/51/542/Add.1, para. 132 (country visit to Greece):

"132. With regard to legislation, the Special Rapporteur observes that the existence of a State religion is not in itself incompatible with human rights. However, this situation, which in the case of Greece is sanctioned by the Constitution, must not be exploited at the expense of the rights of minorities and the rights linked to citizenship, which imply prohibition of discrimination among citizens on the grounds, inter alia, of considerations relating to religion or belief."

A/51/542/Add.2, para. 134 (country visit to Sudan):

"134. On the subject of legislation, the Special Rapporteur stressed that the State religion, or the religion of the State, is not inherently incompatible with human rights. However, that fact - which is confirmed by Constitutional Decree No. 7 - should not be exploited to the detriment of the rights of non-Muslims and the rights derived from citizenship, which imply that there should be no discrimination between citizens based, inter alia, on considerations of belief or conviction."

A/CONF.189/PC.1/7, paras. 119-120:

"119. Moreover, aggravated discrimination tends to intensify or become more likely to occur when the State itself officially adopts the religion of the majority or of the ethnically dominant minority, or subscribes to a particular ideology. The State religion or the religion of the State is not, of course, a characteristic of the religion, but of the State. However, if in its Constitution the State professes its adherence to a particular faith, some will see the mere profession of that faith - whatever the good intentions of the State - as a form of discrimination against the ethnic or religious minority or minorities. In the area of legislation, moreover, some such States adopt clearly discriminatory provisions, as we have seen, in order to impose the constitutionally established religion or ideology, and therefore a particular vision of society and of the universe, on members of ethnic or religious minorities. [Thus, in national systems, de jure acts of discrimination are not racial, but religious, in nature. However, to the extent that they affect ethnic groups, they are also racial in nature (in the broad sense).] This is no doubt one of the most unacceptable violations of an individual's right to have and practice his religion and that of his ancestors. It is true, as the Special Rapporteur has noted, that "States which are or claim to be based on religion may be either exclusive - for the benefit of the predominant religion alone - or open and respectful vis-à-vis other religions" (E/CN.4/1998/6, para. 42). However, to the extent that everything ultimately depends on the goodwill of the State, the personality of those in office at any given moment, and other unpredictable or subjective factors, there is no serious guarantee in law that the State will at all times respect minority ethnic and religious rights.

120. In States with a range of religious and ethnic identities, the constitutional profession of an official religion, a State religion or a religion of the State, may be politically or historically justified, but by its very nature it carries the seed of aggravated discrimination. [In the Waldman v. Canada case of 21 October 1999, the Human Rights Committee rejected the State party's argument that the privileged treatment of a religion (a Catholic school) was not discriminatory because it was a Constitutional obligation. The Committee noted that the fact that a distinction is enshrined in the Constitution does not render it reasonable and objective (para. 10.4).] As Gordon Allport [1954] puts it, a possible root cause of religious intolerance stems from the fact that religion usually encompasses more than faith. Often it is the focus of the cultural tradition of a group [The Nature of Prejudice, Cambridge, Mass., Addison-Wesley, 1954, cited by Odio Benito, op. cit., para. 184]. He notes that this applies to the majority of religions. Therefore, when the State itself announces its religion in its Constitution, the law ceases to reflect the ethnic and religious variety of the society, and the way is opened to arbitrary action and intolerance."

E/CN.4/2005/61, paras. 61-62:

"61. Without addressing the question of whether a "State religion" is a system that is compatible with human rights, the Special Rapporteur has noted that in a few States, legislation has been adopted that recognizes certain religions and not others or that institutes a different status among certain categories of religions. While the Special Rapporteur has not been provided with sufficient information suggesting that in any of these cases the legislation actually causes violations of the right to freedom of religion or belief, she is of the opinion that the legalization of a distinction between different categories of religion is liable to pave the way for future violations of the right to freedom of religion or for discrimination on the basis of religion or belief.

62. On this question, the Special Rapporteur would like to refer to a report on a country visit made by her predecessors and according to which "the principle of freedom of religion or belief, as enshrined in international human rights law, is difficult to reconcile with a formal or legal distinction between different kinds of religious or faith-based communities insofar as such a distinction in their status must imply a difference in rights or treatment, which may, in some cases, constitute discrimination that is incompatible with the exercise of human rights" [Report on the visit of the Special Rapporteur on freedom of religion or belief to Romania (E/CN.4/2004/63/Add.2), para. 94.]"

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