The freedom not to believe

If you are unfortunate enough to live under an oppressive regime but have never been involved in active opposition to it, can you legitimately claim asylum in the UK on the grounds that the regime is generally nasty and persecutes people unless they profess loyalty to it? Or should you merely have kept out of trouble back home by keeping your mouth shut so far as you could, and lying when asked about your political opinions?

In RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2012] UKSC 38 (25 July 2012) the Supreme Court came down on the side of the refugees in such circumstances, ruling that an asylum claim could not be rejected simply on the grounds that the claimants could have avoided persecution by lying and feigning loyalty to the regime. In doing so, the Court followed its decision in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31, in which it was held that a gay man was entitled to live freely and openly in accordance with his sexual identity under the Refugee Convention and that it was no answer to his asylum claim that he could conceal his sexuality in order to avoid persecution. As Rosalind English points out on the UK Human Rights Blog, the appalling Mugabe regime is so paranoid that it expects regular affirmations of loyalty, with the result that Zimbabweans who hold no political opinions are just as likely to be persecuted as opponents of the regime. So the Court was asked to decide a negative – whether the freedom not to hold political opinions was a protected right – and held that it was indeed protected.

But what has all this to do with religion?

In the judgment of the Court (to which Lord Kerr added a very short concurring opinion), Lord Dyson pointed (at para 33) to Articles 18 and 19 of the Universal Declaration of Human Rights 1948, which are given effect internationally by Articles 18 and 19 of the International Covenant on Civil and Political Rights 1966:

“Article 18 of the ICCPR deals with the right to freedom of thought, conscience and religion. Article 19 deals with the right to freedom of opinion and expression. The United Nations Human Rights Committee has commented on these rights. In its General Comment No 22 on Article 18 (30 July 1993), it said that the right to freedom of thought, conscience and religion in Article 18.1 is ‘far-reaching and profound’ (para 1); the terms ‘belief’ and ‘religion’ are to be ‘broadly construed’ (para 2); and article 18 protects ‘theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief’ (para 2). In its General Comment No 34 on article 19 (12 September 2011), it said that freedom of opinion and freedom of expression are ‘indispensable conditions for the full development of the person. They are essential for any society. They constitute the foundation stone for every free and democratic society’ (para 2). All forms of opinion are protected (para 9). At para 10, it said: ‘Any form of effort to coerce the holding or not holding of any opinion is prohibited. Freedom to express one’s opinion necessarily includes freedom not to express one’s opinion.’.”

Further, at para 35 Lord Dyson cited with approval Buscarini & Ors v San Marino (24645/94 [1999] ECHR 7 (18 February 1999). In Buscarini the applicants objected to being obliged to swear an oath on the Gospels in order to take their seats in the San Marino Parliament and the Grand Chamber of the ECtHR unanimously concluded that this was incompatible with Article 9 ECHR (thought, conscience and religion), adding (at para 34) that the freedom enshrined in Article 9 “… entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion.”

He concluded that

“… under both international and European human rights law, the right to freedom of thought, opinion and expression protects non-believers as well as believers and extends to the freedom not to hold and not to express opinions. It is true that much of the case-law and commentary is on freedom of belief in the context of religion, rather than other kinds of belief (whether political, philosophical or otherwise). But I see no basis for distinguishing between the freedom to hold and express different kinds of belief here.” (para 39).

Moreover, Lord Dyson rejected the idea of any implicit “hierarchy of rights”:

“… [T]he right not to hold the protected beliefs is a fundamental right which is recognised in international and human rights law and … the Convention too. There is nothing marginal about it. Nobody should be forced to have or express a political opinion in which he does not believe. He should not be required to dissemble on pain of persecution. Refugee law does not require a person to express false support for an oppressive regime, any more than it requires an agnostic to pretend to be a religious believer in order to avoid persecution. A focus on how important the right not to hold a political or religious belief is to the applicant is wrong in principle.” (para 42: emphasis added).

Comment: Though RT (Zimbabwe) & Ors was about the right not to hold political opinions rather than religious ones, it serves to underline the fact that the protections in international law for the forum internum are for thought and conscience as well as for religion – and that they are intended to protect the atheist, the agnostic and the indifferent as much as the devoutly-religious.

In an interview in the Daily Telegraph on 19 June 2011, Trevor Phillips, the Chairman of the Equality and Human Rights Commission, was quoted as saying, inter alia:

“Our business is defending the believer. The law we’re here to implement recognises that religious identity is an essential part of this society. It’s an essential element of being a fulfilled human being.”

True: but true only up to a point. As the Supreme Court has just confirmed, the business of the Equality and Human Rights Commission – and of the courts – is defending the believer and the non-believer alike.

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