International mechanism on protection of the right to freedom of religion

Uli Parulian Sihombing Jakarta

This newspaper reported on Thursday Aug. 25, 2005 that 23 churches in Bandung, West Java were forced to close by hard-line Muslim groups. The Ahmadiyah worship facilities were destroyed in Parung Bogor and other cities also. On the other hand, the law enforcement officers failed to stop the closure or bring the violators to court.

The closure and destruction of places of worship and/or facilities are a violation of the right to freedom of religion which are protected by the 1945 Constitution, article 22 of The Human Rights Act No. 30/1999. International Human Rights Law also provides protection on the right to freedom of religion, which is accordance with the International Covenant On Civil And Political Rights (ICCPR).

Article 18 of ICCPR mandates the protection of the rights to freedom of thought, conscience and religion.

The term of belief includes theistic, non-theistic and atheistic beliefs. The protection accorded by article 18 ICCPR is not restricted to traditional religions or those analogous to traditional religions. The United Nations High Commissioner for Human Rights (UNHCHR) has expressed concern over the tendency to discriminate against newly established religions or beliefs.

Similarly, it has also expressed concern that religious minorities may be subjected to hostility from the dominant religious community.

According to General Comment No. 22 of the UNHCHR, the right to manifest religion covers a range of acts. It includes worship, which involves building places of worship, the use of ritual formulas and objects, the display of symbols, and the observance of holidays.

In addition, the right to observe and practice religion or belief includes customs such as wearing distinctive clothing, conducting rituals associated with certain stages of life, and the use of a particular language of the group. Finally, it includes the freedom to choose their religious leaders, priest and the teachers, freedom to establish religious schools and the freedom to publish and distribute religious texts or publications.

The freedom to manifest religion or beliefs may be subject to limitation to protect public safety, order, health or morals or the fundamental rights and freedom of others. However, no limitation can be imposed on freedom from coercion to have or to adopt a religion or belief and the liberty of parents or guardians to ensure religious or moral education.

The right under article 18 ICCPR includes the freedom to retain one's religion or belief, and the freedom to change to another religion or belief with an atheistic view. Article 18 (2) ICCPR prohibits compelling a person to reveal his thoughts or to follow a religion or belief. The prohibited acts include the use of threat of physical force or penal sanctions to compel believers or non-believers to follow their religious belief, to renounce their religion or belief or to convert.

Religious or belief organization or individual who is a victim of violation of the right to freedom of religion could use an international mechanism through the UNHCHR or the ICCPR. Under the ICCPR, the UNHCHR has been established to monitor the compliance of the rights recognized under the ICCPR. The UNHCHR consists of eighteen independent experts who are elected from the state parties of the covenant.

The responsibilities of the UNHCHR are consideration of reports submitted by the states parties, the preparation of general comment and examining communication from individuals alleging violations of any of the rights contained in the covenant as provided by the first Optional Protocol to the covenant.

If the victim should have exhausted all available domestic remedies and the government fails to fulfill domestic remedies including a judicial remedy, the victim could submit a complaint to the UNHCHR or the ICCPR.

Two cases of violation of the right to freedom of religion which are the closure 23 churches in West Java and destruction of The Ahmadiyah's worship houses and facilities in Indonesia, could be investigated by the UNHCHR or the ICCPR as well as Special Rapporteur On Religious Intolerance if domestic remedies fails.

Local law enforcement officers should take progressive steps to guarantee justice for these victims in order to avoid two cases that could invite an international probe by the UNHCHR, the ICCPR or Special Rapporteur On Religious Intolerance.

The writer is Director Of The Jakarta Legal Aid Institute. He can be reached at ulipid1@yahoo.co.id