1 of the Charter will not be considered separately from the alleged violation of Article
2 and 8 of the Charter.16
128. Regarding the substantive rights and freedoms alleged to have been violated,
the Commission notes that religion is pivotal. It seems natural therefore to consider
the alleged violation of Article 8 of the Charter first.
Alleged violation of Article 8 of the Charter
129. Article 8 of the Charter guarantees the “freedom of conscience, the profession and
free practice of religion”. The operative guarantees are thus twofold: the freedom to
profess a religion and the freedom to practice religion.17
130. Whereas the term ‘profession of religion’ may mean an open declaration or
affirmation of one’s religion, which is an outward act, in the context of Article 8 of the
Charter it is to be interpreted as denoting the act of adopting, having, maintaining or
holding a religion.18 Thus the freedom to profess a religion entails the freedom to adopt,
have, maintain, or hold a religion. In addition to these positive freedoms, the freedom
to profession a religion implicitly includes the negative freedom not to profess any
religion. It also includes the freedom to recant or denounce a religion one holds at any
time.
131. These core aspects of freedom of religion are exercised in the innermost faculties
of a human being - the forum internum which includes the conscience. Whereas Article
18 of the Charter provides for the possibility of restricting “these freedoms” on grounds
of law and order, the Commission considers that the core freedoms within one’s forum
Curiously, whereas the initially the Complainants alleged the violation of Articles 2,3 and 8 of the
Charter (see para 14 above), they make no reference to Article 3 of the Charter in their merits
submissions, and only focus on Article 2 and 8. In considering Article 2 however, the Commission will
have regard to Article 3 as the two concern the same values and rights.
17 Comparatively, this twofold formulation of freedom of religion is the same under Article 9 of the
European Convention on Human Rights (ECHR) which provides in the material parts that “Everyone
has the right to freedom of thought, conscience and religion; [which] includes freedom to change his religion
or belief and freedom, … , to manifest his religion or belief, …”; Article 12(1) of the American
Convention on Human Rights (ACHR) which states that “Everyone has the right to freedom of conscience
and of religion, [which] includes freedom to maintain or to change one’s religion or beliefs, and freedom
to profess or disseminate one’s religion or belief…”; Article 18(1) of the International Covenant on Civil
and Political Rights (ICCPR) which provides that “Everyone shall have the right to freedom of thought
conscience and religion, [which] shall include freedom to have or to adopt a religion or belief of his choice,
and freedom, … , to manifest his religion or belief …”; Article 18 of the Universal Declaration on Human
Rights (UDHR) which declares that “Everyone has the right to freedom of thought, conscience and religion;
[which] includes freedom to change his religion or belief, and freedom, … , to manifest his religion or
belief …” The Commission therefore draws inspiration from jurisprudence that expounds this
dichotomous interpretation of freedom of religion under these comparable instruments.
18
To hold otherwise would render the second limb of the freedom (free practice) redundant as it also
appertains to the outward manifestation of religion.
16
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