.........Chapter 12 SOME OTHER KEY RIGHTS: FREEDOM OF THOUGHT, CONSCIENCE, RELIGION, OPINION, EXPRESSION, ASSOCIATION AND ASSEMBLY............................. Learning Objectives l To familiarize the participants with some other key rights, namely freedom of thought, conscience, religion, opinion, expression, association and assembly, and their importance in a society that is respectful of human rights in general l To illustrate how these freedoms, as well as the limitations attached to the exercise of most of them, are interpreted by the international monitoring bodies l To explain the role of judges, prosecutors and lawyers in safeguarding the freedoms dealt with in this chapter Questions l How are the following freedoms protected in the country in which you work: – freedom of thought, conscience, and religion, – freedom of opinion and expression, and – freedom of association and assembly? l Are there any particular concerns with regard to the effective implementation of these freedoms in the country in which you work? l Are there any groups in the country in which you work that might be particularly vulnerable to violations of one or more of these freedoms? l If so, who are they and how may their freedoms be violated? Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 521 Chapter 12 • Some Other Key Rights: Freedom of Thought, Conscience, Religion, Opinion, Expression, Association and Assembly Questions (cont.d) l What judicial or administrative remedies exist in the country in which you work for persons who consider themselves to be victims of violations of these freedoms? l What role is played by the following freedoms in building, preserving and/or strengthening a democratic society/a society respectful of human rights: – freedom of thought, conscience, and religion, – freedom of opinion and expression, and – freedom of association and assembly? l With regard to freedoms whose exercise may be limited: in your view, how can a balance be struck between an individual’s right to exercise those freedoms and a society’s general interest in protecting, for instance, national security, public order, safety, health, morals or the rights and freedoms of others? l What can you as judges, prosecutors or lawyers do to protect every person’s right to freedom of thought, conscience, religion, opinion, expression, association and assembly? Relevant Legal Instruments Universal Instruments l International Covenant on Civil and Political Rights, 1966 l International Covenant on Economic, Social and Cultural Rights, 1966 l International Convention on the Elimination of All Forms of Racial Discrimination, 1965 l Convention on the Elimination of All Forms of Discrimination against Women, 1979 l Convention on the Rights of the Child, 1989 l ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 l ILO Right to Organise and Collective Bargaining Convention, 1949 ***** l Universal Declaration of Human Rights, 1948 l United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, 1999 522 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers Chapter 12 • Some Other Key Rights: Freedom of Thought, Conscience, Religion, Opinion, Expression, Association and Assembly Relevant Legal Instruments (cont.d) Regional instruments l African Charter on Human and Peoples’ Rights, 1981 l African Charter on the Rights and Welfare of the Child, 1990 l American Convention on Human Rights, 1969 l Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, 1994 l European Convention on Human Rights, 1950 l European Social Charter, 1961, and European Social Charter, 1996 (revised) 1. Introduction This chapter will deal with a number of fundamental freedoms which constitute some of the pillars of a democratic society that is respectful of human rights. Owing to space constraints, however, only the most important aspects of these freedoms will be highlighted. The Manual has hitherto emphasized the importance of a number of rights such as the right not to be subjected to arbitrary detention, the right to a fair trial and the right to freedom from torture and other forms of ill-treatment. As a result, many of the chapters have also focused on protection of the human person in the course of law enforcement procedures. This chapter, on the other hand, is concerned with rights or freedoms that are exercised at all levels of society and in a wide variety of settings and situations, for example in a person’s religious or philosophical activities, educational undertakings or in the spoken or written word. However, in many situations where there are problems with the effective protection of human rights during law enforcement procedures, there is often a corresponding lack of tolerance for a person’s religious beliefs or his or her political or other convictions expressed at public gatherings, in books or in the mass media. To move towards full and comprehensive protection of the rights and freedoms of the individual, States should therefore take appropriate action to advance the cause of human rights in all relevant dimensions of society. The chapter will deal first with freedom of thought, conscience and religion, secondly with freedom of opinion and expression, and thirdly with freedom of association and assembly. Lastly, the role of the legal professions in protecting freedom of thought, conscience, religion, opinion, expression, association and assembly will be emphasized, and the chapter will close with some concluding remarks. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 523 Chapter 12 • Some Other Key Rights: Freedom of Thought, Conscience, Religion, Opinion, Expression, Association and Assembly 2. The Right to Freedom of Thought, Conscience and Religion 2.1 Relevant legal provisions This sub-section contains the text of the most important legal provisions pertaining to freedom of thought, conscience and religion: Article 18 of the Universal Declaration of Human Rights: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” Article 18 of the International Covenant on Civil and Political Rights: “1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.” Article 8 of the African Charter on Human and Peoples’ Rights: “Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.” Article 12 of the American Convention on Human Rights: “1. Everyone has the right to freedom of conscience and of religion. This includes freedom to maintain or to change one’s religion or beliefs, and freedom to profess or disseminate one’s religion or beliefs either individually or together with others, in public or in private. 524 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers Chapter 12 • Some Other Key Rights: Freedom of Thought, Conscience, Religion, Opinion, Expression, Association and Assembly 2. No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs. 3. Freedom to manifest one’s religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others. 4. Parents or guardians, as the case may be, have the right to provide for the religious or moral education of their children or wards that is in accord with their own convictions.” Article 9 of the European Convention on Human Rights: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” The right to freedom of religion is further guaranteed by: v Article 5(d)(vii) of the International Convention on the Elimination of All Forms of Racial Discrimination; v Article 14 of the Convention on the Rights of the Child; v Article 9 of the African Charter on the Rights and Welfare of the Child; and v Article 4(i) of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women.