One of my current research projects involves analysis of the religion provisions of various constitutions enacted since the year 2000. From time to time on this blog, I'll post extracts of those provisions arranged according to categories such as "Religious Freedom" (guarantee of individual right), "Established Religion" (joining religion and government), "Establishment Clause" (separating religion and government), "Ceremonial Deism" (symbolic references to religion that have little or no legal effect), "Equal Protection of Religion" (non-discrimination guarantees), "Preamble", "Religious Education", and "Religious Limitations".
Here is the Armenian Constitution of 2005: Website of the President of Armenia
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Constitution of Armenia (2005)
Source:
Establishment Clause
Article 8.1 The Church is separate from the State in the Republic of Armenia.
Ceremonial Deisms
Article 8. 1 The Republic of Armenia recognises the exclusive mission of the Armenian Apostolic Holy Church, as a national church, in the spiritual life of the Armenian people, in the development of their national culture and preservation of their national identity.
Religious Freedom
Article 8.1 Freedom of activity of all religious organisations functioning as prescribed by law shall be guaranteed in the Republic of Armenia.
Article 26 This right shall include freedom to change religion or belief, and freedom — either individually or in community with others — to manifest them in preaching, church ceremonies and other rites of worship.
Article 41 Persons belonging to national minorities shall have the right to preserve and develop their traditions, religion, language and culture.
Equal Protection of Religion
Article 14.1 Discrimination based on sex, race, skin colour, ethnic or social origin, genetic features, language, religion, ideology, political or other views, membership to a national minority, property status, birth, disability, age, or other personal or social circumstances shall be prohibited.
Unclear
Article 8.1 The relations of the Republic of Armenia and the Armenian Apostolic Holy Church may be regulated by law.
Monday, March 26, 2012
Sunday, March 25, 2012
Religion Provisions of the Afghanistan Constitution
One of my current research projects involves analysis of the religion provisions of various constitutions enacted since the year 2000. From time to time on this blog, I'll post extracts of those provisions arranged according to categories such as "Religious Freedom" (guarantee of individual right), "Established Religion" (joining religion and government), "Establishment Clause" (separating religion and government), "Ceremonial Deism" (symbolic references to religion that have little or no legal effect), "Equal Protection of Religion" (non-discrimination guarantees), "Preamble", "Religious Education", and "Religious Limitations".
To begin with, here is the Constitution of Afghanistan enacted in 2004.
-------------------------------------------------------------------------
Afghanistan Constitution 2004
Source: Comparative Constitutions Project
Preamble
In the name of Allah, the Most Beneficent, the Most
Merciful
Praise be to Allah, the Cherisher and Sustainer of
Worlds; and Praise and Peace be upon Mohammad,
His Last Messenger and his disciples and followers
We the people of Afghanistan:
Believing firmly in Almighty God, relying on His divine
will and adhering to the Holy religion of Islam;
Established Religion
Article 1. Afghanistan shall be an Islamic Republic,
Article 2. The sacred religion of Islam is the religion of the Islamic
Republic of Afghanistan. Followers of other faiths shall be free
within the bounds of law in the exercise and performance of their
religious rituals.
Article 3. No law shall contravene the tenets and provisions of the
holy religion of Islam in Afghanistan.
Article 62. The individual who becomes a presidential candidate
shall have the following qualifications:
1. Shall be a citizen of Afghanistan, Muslim, born of Afghan
parents and shall not be a citizen of another country;
Article 131. The courts shall apply the Shia jurisprudence in cases
involving personal matters of followers of the Shia sect in
accordance with the provisions of the law. In other cases, if no
clarification in this Constitution and other laws exist, the courts
shall rule according to laws of this sect.
Article 149. The principles of adherence to the tenets of the Holy
religion of Islam as well as Islamic Republicanism shall not be
amended.
Religion Education
Article 17. The state shall adopt necessary measures to foster
education at all levels, develop religious teachings, regulate and
improve the conditions of mosques, religious schools as well as
religious centers.
Article 45. The state shall devise and implement a unified
educational curricula based on the tenets of the sacred religion of
Islam, national culture as well as academic principles, and develop
religious subjects curricula for schools on the basis of existing
Islamic sects in Afghanistan.
Article 54. Family is the fundamental pillar of the society, and shall
be protected by the state. The state shall adopt necessary
measures to attain the physical and spiritual health of the family,
especially of the child and mother, upbringing of children, as well
as the elimination of related traditions contrary to the principles of
the sacred religion of Islam.
Ceremonial Deisms
Article 18. The source for the calendar year of the country shall be
based upon the migration of The Prophet (PBUH).
Article 19. The flag of Afghanistan shall be . . . inscribed in the top middle the holy phrase “There is no God but Allah and Mohammad is his Prophet, and Allah is Great.”
Article 20. The national anthem of Afghanistan shall be in Pashto
with the mention of “God is Great”
Article 23. Life is the gift of God
Article 63. Before assuming office, the President shall take, in
accordance with special procedures set by law, the following oath of
allegiance:
“In the name of God, Most Gracious, Most Merciful, I swear by the
name of God Almighty that I shall obey and protect the Holy
religion of Islam, respect and supervise the implementation of the
Constitution as well as other laws, safeguard the independence,
national sovereignty and territorial integrity of Afghanistan, and, in
seeking God Almighty’s help and support of the nation, shall exert
my efforts towards the prosperity and progress of the people of
Afghanistan.”
Article 74. Before assuming office, the Ministers shall take the
following oath in the presence of the President:
“In the name of God, Most Gracious, Most Merciful, I swear in the
name of God Almighty that I shall protect the Holy religion of Islam,
respect the Constitution and other laws of Afghanistan, safeguard
the rights of citizens as well as independence, territorial integrity
and the national unity of the people of Afghanistan, and, in all my
deeds consider the Almighty’s presence, performing the entrusted
duties honestly.”
Article 119. Members of the Supreme Court shall take the following
oath of office in the presence of the President: “In the of God, Most Gracious, Most Merciful, I swear in the name of God Almighty to attain justice and righteousness in accordance with tenets of the Holy religion of Islam, provisions of this Constitution as well as other laws of Afghanistan, and to execute the judicial duty with utmost
honesty, righteousness and impartiality.”
Religious Limitations
Article 35. The people of Afghanistan shall have the right, in accordance with provisions of the law, to form political parties, provided that: 1. Their manifesto and charter shall not contravene the Holy religion of Islam and principles and values enshrined in this
constitution;
To begin with, here is the Constitution of Afghanistan enacted in 2004.
-------------------------------------------------------------------------
Afghanistan Constitution 2004
Source: Comparative Constitutions Project
Preamble
In the name of Allah, the Most Beneficent, the Most
Merciful
Praise be to Allah, the Cherisher and Sustainer of
Worlds; and Praise and Peace be upon Mohammad,
His Last Messenger and his disciples and followers
We the people of Afghanistan:
Believing firmly in Almighty God, relying on His divine
will and adhering to the Holy religion of Islam;
Established Religion
Article 1. Afghanistan shall be an Islamic Republic,
Article 2. The sacred religion of Islam is the religion of the Islamic
Republic of Afghanistan. Followers of other faiths shall be free
within the bounds of law in the exercise and performance of their
religious rituals.
Article 3. No law shall contravene the tenets and provisions of the
holy religion of Islam in Afghanistan.
Article 62. The individual who becomes a presidential candidate
shall have the following qualifications:
1. Shall be a citizen of Afghanistan, Muslim, born of Afghan
parents and shall not be a citizen of another country;
Article 131. The courts shall apply the Shia jurisprudence in cases
involving personal matters of followers of the Shia sect in
accordance with the provisions of the law. In other cases, if no
clarification in this Constitution and other laws exist, the courts
shall rule according to laws of this sect.
Article 149. The principles of adherence to the tenets of the Holy
religion of Islam as well as Islamic Republicanism shall not be
amended.
Religion Education
Article 17. The state shall adopt necessary measures to foster
education at all levels, develop religious teachings, regulate and
improve the conditions of mosques, religious schools as well as
religious centers.
Article 45. The state shall devise and implement a unified
educational curricula based on the tenets of the sacred religion of
Islam, national culture as well as academic principles, and develop
religious subjects curricula for schools on the basis of existing
Islamic sects in Afghanistan.
Article 54. Family is the fundamental pillar of the society, and shall
be protected by the state. The state shall adopt necessary
measures to attain the physical and spiritual health of the family,
especially of the child and mother, upbringing of children, as well
as the elimination of related traditions contrary to the principles of
the sacred religion of Islam.
Ceremonial Deisms
Article 18. The source for the calendar year of the country shall be
based upon the migration of The Prophet (PBUH).
Article 19. The flag of Afghanistan shall be . . . inscribed in the top middle the holy phrase “There is no God but Allah and Mohammad is his Prophet, and Allah is Great.”
Article 20. The national anthem of Afghanistan shall be in Pashto
with the mention of “God is Great”
Article 23. Life is the gift of God
Article 63. Before assuming office, the President shall take, in
accordance with special procedures set by law, the following oath of
allegiance:
“In the name of God, Most Gracious, Most Merciful, I swear by the
name of God Almighty that I shall obey and protect the Holy
religion of Islam, respect and supervise the implementation of the
Constitution as well as other laws, safeguard the independence,
national sovereignty and territorial integrity of Afghanistan, and, in
seeking God Almighty’s help and support of the nation, shall exert
my efforts towards the prosperity and progress of the people of
Afghanistan.”
Article 74. Before assuming office, the Ministers shall take the
following oath in the presence of the President:
“In the name of God, Most Gracious, Most Merciful, I swear in the
name of God Almighty that I shall protect the Holy religion of Islam,
respect the Constitution and other laws of Afghanistan, safeguard
the rights of citizens as well as independence, territorial integrity
and the national unity of the people of Afghanistan, and, in all my
deeds consider the Almighty’s presence, performing the entrusted
duties honestly.”
Article 119. Members of the Supreme Court shall take the following
oath of office in the presence of the President: “In the of God, Most Gracious, Most Merciful, I swear in the name of God Almighty to attain justice and righteousness in accordance with tenets of the Holy religion of Islam, provisions of this Constitution as well as other laws of Afghanistan, and to execute the judicial duty with utmost
honesty, righteousness and impartiality.”
Religious Limitations
Article 35. The people of Afghanistan shall have the right, in accordance with provisions of the law, to form political parties, provided that: 1. Their manifesto and charter shall not contravene the Holy religion of Islam and principles and values enshrined in this
constitution;
Monday, March 19, 2012
Bowman v. Secular Society (1917)
Bowman v. Secular Society, [1917] A.C. 406. (UK House of Lords)
Bowman is one of the most important law and religion cases in the history of England. The case conclusively established two key points: (1) Blasphemous libel consists only in scurrilous or profane attacks on Christianity, not in temperate or reasoned criticism (thus resolving the debate between Coleridge and Stephen in the former's favor); and (2) A denial of the truth of Christianity does not render a person or organization unable to claim the benefit and protection of the civil law (thus overruling Cowan v. Milbourn (1867) L.R. 2 Ex. 230 and the famous statement in that case that "a thing may be unlawful, in the sense that the law will not aid it, and yet that the law will not immediately punish it.")). The five separate opinions are lengthy but contain a valuable exposition and analysis of the history of blasphemy in English law.
The facts of the case are straightforward. In 1908, a man named Charles Bowman died. His will bequeathed a portion of his estate to the Secular Society Limited, an association incorporated under the Companies Acts with the stated object to "promote, in such ways as may from time to time be determined, the principle that human conduct should be based upon natural knowledge, and not upon super-natural belief, and that human welfare in this world is the proper end of all thought and action." Bowman's next of kin disputed the validity of the gift to the Society, arguing that the objects of the Society were unlawful insofar as they constituted a blasphemous libel and therefore the gift was contrary to public policy and invalid.
The case was heard before five members of the House of Lords.
Lord Finlay began by examining in detail the purposes of the Secular Society as contained in the group's memorandum of association. He concluded that as a whole "[t]his amounts to a negation of all religion, including, of course, the Christian religion, as governing human conduct." (p. 420) He stated that the core issue in the case was "[i]s a legacy in favour of a society which exists for such a purpose enforceable by English law?" (p. 420). In the course of his analysis, he dispensed with the argument that the Society's goals constituted blasphemy: "I think we must hold that the law of England on this point is the same as that of Scotland, and that the crime of blasphemy is not constituted by a temperate attack on religion in which the decencies of controversy are maintained." (p. 423) Finlay then turned to a discussion of Cowan v. Milbourn and Briggs v. Hartley. He concluded that "[t]he authority of these two decisions has never, so far as I am aware, been questioned in any later case" (p. 426) and that "[i]t has been repeatedly laid down by the Courts that Christianity is part of the law of the land" and that this "is quite sufficient reason for holding that the law will not help endeavours to undermine it." (p. 428) Thus, Finlay concluded that there was "a definite rule of law to the effect that any purpose hostile to Christianity is illegal" and that therefore the Society could not benefit from the gift. (p. 432)
Lord Dunedin agreed with every other Lord hearing the case that the crime of blasphemy requires profane or irreverent attacks. On the more contested issue relating to whether the Society could receive the money if its stated goal was to criticize Christianity, he argued that the Society should be treated just as if it were an individual about to receive a bequest who could in theory use the money for both legal and illegal goals: "If the legacy were due to an individual, the executor would not be heard to discuss the probable uses to which the legatee would put the money. I do not think he can do so in the case of the society. For after all . . . there is no reason why the society should not employ the money in paying its office rent." (p. 435-36). Thus, Dunedin concluded the Society should receive the money.
Lord Parker of Waddington stated that the common law "takes no notice whatever of the donor's motive in making the gift or of the purposes for which he intends the property to be applied by the donee" and that "[a] gift at common law is never executory in the sense that it requires the intervention of the Court to enforce it." (p. 436) He then conducted a long and thorough analysis of whether the Society should be considered a trustee and thus held to stricter standards before concluding that it should not. On the issue of blasphemy, Lord Parker agreed with the others that "to constitute blasphemy at common law there must be an element of vilification, ridicule, or irreverence as would be likely to exasperate the feelings of others and so lead to a breach of the peace." (p. 446) He went on to hold that although the Society's goals were "no doubt, anti-Christian", that there was nothing unlawful or contrary to public policy in those goals. (p. 451)
Bowman is one of the most important law and religion cases in the history of England. The case conclusively established two key points: (1) Blasphemous libel consists only in scurrilous or profane attacks on Christianity, not in temperate or reasoned criticism (thus resolving the debate between Coleridge and Stephen in the former's favor); and (2) A denial of the truth of Christianity does not render a person or organization unable to claim the benefit and protection of the civil law (thus overruling Cowan v. Milbourn (1867) L.R. 2 Ex. 230 and the famous statement in that case that "a thing may be unlawful, in the sense that the law will not aid it, and yet that the law will not immediately punish it.")). The five separate opinions are lengthy but contain a valuable exposition and analysis of the history of blasphemy in English law.
The facts of the case are straightforward. In 1908, a man named Charles Bowman died. His will bequeathed a portion of his estate to the Secular Society Limited, an association incorporated under the Companies Acts with the stated object to "promote, in such ways as may from time to time be determined, the principle that human conduct should be based upon natural knowledge, and not upon super-natural belief, and that human welfare in this world is the proper end of all thought and action." Bowman's next of kin disputed the validity of the gift to the Society, arguing that the objects of the Society were unlawful insofar as they constituted a blasphemous libel and therefore the gift was contrary to public policy and invalid.
The case was heard before five members of the House of Lords.
Lord Finlay began by examining in detail the purposes of the Secular Society as contained in the group's memorandum of association. He concluded that as a whole "[t]his amounts to a negation of all religion, including, of course, the Christian religion, as governing human conduct." (p. 420) He stated that the core issue in the case was "[i]s a legacy in favour of a society which exists for such a purpose enforceable by English law?" (p. 420). In the course of his analysis, he dispensed with the argument that the Society's goals constituted blasphemy: "I think we must hold that the law of England on this point is the same as that of Scotland, and that the crime of blasphemy is not constituted by a temperate attack on religion in which the decencies of controversy are maintained." (p. 423) Finlay then turned to a discussion of Cowan v. Milbourn and Briggs v. Hartley. He concluded that "[t]he authority of these two decisions has never, so far as I am aware, been questioned in any later case" (p. 426) and that "[i]t has been repeatedly laid down by the Courts that Christianity is part of the law of the land" and that this "is quite sufficient reason for holding that the law will not help endeavours to undermine it." (p. 428) Thus, Finlay concluded that there was "a definite rule of law to the effect that any purpose hostile to Christianity is illegal" and that therefore the Society could not benefit from the gift. (p. 432)
Lord Dunedin agreed with every other Lord hearing the case that the crime of blasphemy requires profane or irreverent attacks. On the more contested issue relating to whether the Society could receive the money if its stated goal was to criticize Christianity, he argued that the Society should be treated just as if it were an individual about to receive a bequest who could in theory use the money for both legal and illegal goals: "If the legacy were due to an individual, the executor would not be heard to discuss the probable uses to which the legatee would put the money. I do not think he can do so in the case of the society. For after all . . . there is no reason why the society should not employ the money in paying its office rent." (p. 435-36). Thus, Dunedin concluded the Society should receive the money.
Lord Parker of Waddington stated that the common law "takes no notice whatever of the donor's motive in making the gift or of the purposes for which he intends the property to be applied by the donee" and that "[a] gift at common law is never executory in the sense that it requires the intervention of the Court to enforce it." (p. 436) He then conducted a long and thorough analysis of whether the Society should be considered a trustee and thus held to stricter standards before concluding that it should not. On the issue of blasphemy, Lord Parker agreed with the others that "to constitute blasphemy at common law there must be an element of vilification, ridicule, or irreverence as would be likely to exasperate the feelings of others and so lead to a breach of the peace." (p. 446) He went on to hold that although the Society's goals were "no doubt, anti-Christian", that there was nothing unlawful or contrary to public policy in those goals. (p. 451)
Lord Sumner argued that "the law must presume that what is legal will be done, if anything legal can be done under [the Society's] memorandum [of association]." (p. 453) Sumner conducted a long analysis of the history of blasphemy in English common law and concluded "there is no instance recorded of a conviction for a blasphemous libel, from which the fact, or at any rate, the supposition of the fact, of contumely and ribaldry has been absent" (p. 460). After analyzing these and other authorities, he stated that "the phrase 'Christiantiy is part of the law of England' is really not law; it is rhetoric" (p. 463) and that therefore the Society was a lawful recipient of the gift.
Last, Lord Buckmaster also rejected the idea that the Society's goals were necessarily blasphemous because they involved a denial of the Christian religion. "To do so would involve the conclusion that all adverse critical examination of the doctrines of Christianity--even though it was conducted with the utmost reverence--was a blasphemous publication . . . It would, indeed, be hard to find a worse service that could be done to the Christian faith than to prevent people from explaining and inviting an answer to the reasoned convictions that led them to question its truth." (p. 470) The Society's goals were thus not illegal or unlawful.
The effect of the separate opinions was that all five of the Lords agreed that blasphemy required an element of irreverence or profanity, and four of the five Lords held that Cowan should be overruled.
Sunday, March 11, 2012
Fallout Over U.S. Soldiers' Koran-Burning Continues
As Legal Heresy continues to get caught up on older news, one of the most important recent stories to archive is the outcry in Afghanistan after it was discovered that U.S. military personnel had burned several copies of the Koran at a military base in the country. The copies were used by detainees housed at the base. A spokesman for the military stated that the burning was inadvertent and apologized for the improper method of disposing of religious materials, but as protests mounted, President Obama sent his own apology to Afghan President Hamid Karzai. The incident also sparked several acts of violence, including multiple fatal attacks on U.S. military personnel. At the beginning of March, the military announced that an inquiry into the burning identified at least five service members as being involved, and that although they could face a reprimand or a loss of rank, they will not face a public trial.
Sources:
National Post, February 21, 2012
CBS News/WSPA February 24, 2012
New York Post March 2, 2012
Sources:
National Post, February 21, 2012
CBS News/WSPA February 24, 2012
New York Post March 2, 2012
Thursday, March 8, 2012
Accused Witch Burned Alive in Nepal
Last month, CNN reported that a woman in Nepal was beaten and then burned alive by family members and neighbours after a shaman accused her of being a witch and of having cast a spell to make a family member ill. Police arrested 10 people in connection with the attack and intend to press murder charges. The government has announced compensation for the victim's children and the Prime Minister called on residents not to listen to faith healers and shamans.
Wednesday, March 7, 2012
Saudi Journalist Deported and Faces Likely Death Over "Blasphemous" Tweets
Last month, the New York Times reported that a Saudi journalist named Hamza Kashgari has been deported to Saudi Arabia to face trial and a likely death sentence over allegedly blasphemous tweets. Kashgari was detained en route to New Zealand by Malaysian authorities at the Kuala Lampur airport at the request of the Saudi government. According to the article, another media outlet called The Daily Beast reported that Kashgari tweeted about an imaginary conversation with the Prophet Muhammad, including one post which stated: "On your birthday, I will say that I have loved the rebel in you, that you’ve always been a source of inspiration to me, and that I do not like the halos of divinity around you. I shall not pray for you."
Thank you to Religion Clause Blog for bringing this story to my attention.
Thank you to Religion Clause Blog for bringing this story to my attention.
USQ Appointment
I am extremely pleased that after sorting through some immigration delays, my family and I have now arrived in Toowoomba where I've taken up an appointment as Lecturer in the University of Southern Queensland School of Law. During this first year I'll be teaching Constitutional Law. Both the city and the university are lovely, and my family and I are excited about this new opportunity. Although the move has led to some delay in posts here, I now plan to update again regularly.
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