World: Freedom to choose, change or renounce religion or beliefEight countries provide for death penalty in case of change of religion
Taken with kind permission from the Newsletter "Intolerance and Discrimination Based on Religion or Belief“ edited by Willy Fautré on behalf of Human Rights Without Frontiers Int'l - www.hrwf.net
HRWF (16.01.2012) - The Universal Declaration of Human Rights (UDHR) sets forth, in article 18, the principle that 'everyone has the right to freedom of thought, conscience and religion' and clearly states that such a 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, practise, worship and observance'.
Article 18 of the International Covenant on Civil and Political Rights (ICCPR) offers general recognition of the right 'to have or to adopt' a religion of one's choice.
It is now established that religious freedom cannot be dissociated from the freedom to change religion.
As long ago as 1986, Elisabeth Odio Bénito wrote of the 1948 UDHR and the 1981 ICCPR that although they varied slightly in wording, both held identical meaning: that everyone had the right to leave one's religion or belief and to adopt another or to remain without any at all. That meaning, added Bénito, was implicit in the concept of the right to freedom of thought, conscience, religion and belief, regardless of how the concept was presented.
In its general comment 22 on article 18 of the ICCPR, the Human Rights Committee reached the same conclusion. It observes that the freedom to 'have or to adopt' a religion or belief necessarily entails a freedom to choose a religion or belief, including the right to replace one's current religion or belief with another or to adopt atheistic views, as well as the right to retain one's religion or belief.
The freedom to have a religion or not to have a religion as well as the freedom to change religion or belief is a fundamental right.
Human Rights Without Frontiers has identified 10 countries among many others where the individual freedom to change religion or belief is grossly violated. In 8 countries, apostasy is punishable by death: Afghanistan, Iran, Malaysia, Mauritania, Saudi Arabia, Somalia Sudan and Yemen. Although capital punishment is rarely practised, it should not be disregarded. Indeed, it should be vigorously combatted bring in contradiction to UN human rights instruments: each of the aforementioned countries, apart from Malaysia and Saudi Arabia, is a party to the ICCPR.
The criminalization of conversion usually goes together with the ban to propagate one's religion or belief. This policy literally kills the individual right to change one's religion and all other components of FORB: freedom of expression, freedom of association, freedom of worship, freedom of religious education of one's children, just to name a few. The threat of the death penalty, imprisonment, civil death or alienation from one's own family and society has a devastating effect on the conscience of potential converts. Moreover, the 'generous' possibility to recant under coercion amounts to no less than a rape of their conscience. In many cases, converts leave their country in search of a safe haven for themselves and their family.
The criminalization of conversion dramatically impedes the individual right to share one's religion or beliefs and any missionary activity. It solidifies a culture of religious permeability and protectionism, which rejects religious diversity and leads to social hostility and religious cleansing.
COUNTRIES OF PARTICULAR CONCERN
5. Saudi Arabia
The first eight countries ranked in alphabetical order provide for death penalty. The final two do not.
Countries providing for death penalty
By law, conversion from Islam to any other religion is considered apostasy and a crime against Islam. The criminal code does not define apostasy as a crime, and the constitution forbids punishment for any crime not defined in the criminal code. However, the penal code states that egregious crimes, including apostasy, are punishable in accordance with Hanafi religious jurisprudence and handled by the Attorney General's Office. Under some interpretations of Islamic law by Shia and Sunni Islamic clergy, apostasy is punishable by death.
Male citizens over age 18 or female citizens over age 16 of sound mind who convert from Islam have three days to recant their change of religion or possibly face death by stoning, deprivation of all property and possessions and/or the invalidation of their marriage. They would also lose their employment and be rejected from their families and villages.
The General Directorate of Fatwas and Accounts under the Supreme Court ruled in May 2007 that the Baha'i Faith was distinct from Islam and therefore a form of blasphemy. It held that all Muslims who converted to the Baha'i Faith were apostates. It is however unclear how the government would treat second-generation Baha'is born into Baha'i families as they are technically not converts. The state and the courts traditionally consider all citizens of the country to be Muslim. The ruling is not expected to affect foreign national Baha'is.
Legal aid for imprisoned converts from Islam remained difficult due to most Afghan lawyers' personal objection to defending apostates. By the end of 2011, according to the Attorney General's Office, there were no reported cases of national or local authorities imposing criminal penalties on converts from Islam. All known previously detained converts had been freed by the end of the year.
At the Universal Periodic Review of Afghanistan, an allegation was submitted by the Special Rapporteur on the right to freedom of opinion and expression in respect to a death sentence that had been imposed for apostasy. The Special Rapporteur stated that a law prohibiting conversion would constitute a State policy aiming at influencing individuals' desire to have or adopt a religion or belief and would therefore not be acceptable under human rights law.
In the spring of 2006, Afghan citizen Abdul Rahman was informally charged with apostasy after his family exposed him as a Christian during child custody proceedings. He had converted 16 years earlier while working for a Christian aid group. Rahman's prosecution caused an international stir, but President Karzai refused to intervene directly.
Although Rahman denied any insanity, the case was ultimately dismissed on the ground that he was mentally unfit to stand trial. Despite protests by Afghan citizens and clerics, Rahman was released and subsequently fled to Italy, where he had been promised asylum.
The constitution does not provide for the rights of Muslim citizens to choose, change or renounce their religious beliefs and there is no direct law addressing apostasy. However, two important provisions in the Iranian Constitution create a de facto legal stance on the punishment of apostates.
Article 12 states, 'The official religion of Iran is Islam and the Twelver Ja'fari school, and this principle will remain eternally immutable. Other Islamic schools, including the Hanafi, Sha'fi, Maliki, Hanbali and Zaydi, are to be accorded full respect, and their followers are free to act in accordance with their own jurisprudence in performing their religious rites.' All these schools agree on capital punishment for the male apostate.
Article 167 of the Constitution allows for judges to deliver verdicts 'on the basis of authoritative Islamic sources and authentic fatwa' in the absence of any relevant legislation in the codified law. Since there is no relevant legislation on apostasy, and the constitution refers the judge to the sharia for guidance, the death penalty is automatically implied. Converts from Islam are therefore regularly threatened with apostasy charges and the death penalty on the basis of a constitutional appeal to traditional Islamic jurisprudence.
Although there has been no capital punishment in cases of apostasy for over fifteen years, the threat of apostasy charges and capital punishment has been used to pressure converts in detention.
In September 2008, a prosecutor at the Public and Revolutionary Court in Shiraz requested the death penalty for 53-year-old Mahmoud Mohammad Matin-Azad and 40-year-old Arash Ahmad-Ali Basirat by evoking the judge's constitutional obligations to refer to Shari'a law and by citing Imam Khomeini's book, Tahrir-ul-Vasile, which stipulates the death penalty for apostasy. Mr Matin-Azad and Mr Basirat, who had been held in detention since 15 May of the same year, were subsequently released following international pressure.
A more recent case is Youcef Naderkhani's. Naderkhani, 33, was born to Muslim parents and converted to Christianity at the age of 19. Prior to his arrest, he led a congregation of about 400 Christians in the northern city of Rasht. He was jailed in October 2009. In September 2010 Naderkhani was sentenced to death on charges of apostasy after a court of appeals in Rasht, 243 kilometers northwest of Tehran, found him guilty of leaving Islam. His sentence was upheld by Branch 11 of Gilan Province's Appeals Court on August 23, 2010.
At an appeal hearing in June 2011, the Supreme Court of Iran determined that his death sentence could be annulled if he recanted his faith. The judges asked the court in Rasht if he was a practicing Muslim before his conversion. The answer was negative, but that he was nonetheless considered guilty of apostasy due to his Muslim ancestry. There were three court sessions between September 25 and September 28, 2011 in which Youcef Naderkhani was asked to repent, but he refused.
In December 2011, the head of Iran's Judiciary, Ayatollah Sadeq Larijani, reportedly ordered the presiding judge over the trial in Rasht to make no moves on Naderkhani's case for one year.
Nadarkhani's case was then sent to Supreme Leader Ayatollah Khamenei for a decision on his death sentence, even though legally the lower court still had the authority to issue an order for execution.
In September 2012, a court acquitted Pastor Nadarkhani of apostasy but sentenced him to three years for evangelising Muslims. Since he had already spent close to three years in Lakan Prison in Rasht, the pastor was released after posting bail.
On the basis of other laws, converts can face trial before the Revolutionary Courts on accusations of harming national unity.
The Constitution of Malaysia defines ethnic Malays as Muslim.
Muslims may not legally convert to another religion except in extremely rare circumstances, although members of other religions are permitted to convert to Islam.
The Syariah Criminal Code (II) Act 1993 of the State of Kelentan and the Terengganu Syariah Criminal Offence Act 2002 both stipulate the death penalty for an apostate who refuses to repent after three days. In most Malaysian states apostasy is punishable with a fine up to RM 5,000 (around USD 780), 3 years imprisonment, 6 lashes of a cane or any combination of these punishments.
State-level sharia courts have authority to order individuals who request to convert from Islam or who profess belief in a 'deviant' Islamic sect to enter religious rehabilitation centres.
In the States of Malacca and Sabah, if a Muslim attempts to change his religion, either by words or by conduct, that person is to be detained in the Islamic Rehabilitation Centre for rehabilitation purposes and is required to repent in accordance with Islamic law. Upon confirmation of repentance, the person is released .
The government does not release statistics on the number of persons sentenced to religious rehabilitation centres. In a written letter to Parliament on 14th June 2011, Islamic Affairs Minister Jamil Khir Baharom stated that the total number of applications by Muslims to change their religious status in sharia court from 2000 to 2010 was 863, of which 168 were approved. He later explained that the sharia court had determined that the 168 applicants were not Muslims to begin with.
On 24th January 2011 an opposition Sabah Progressive Party (SAPP) figure publicly stated that the government cannot arbitrarily move to enforce anti-apostasy laws in Sabah. He was responding to a December 2010 official media report that the Sabah Islamic Affairs Department (JHEAINS) planned to enforce the apostasy law beginning in 2011 as part of its five-year strategic plan, as announced by JHEAINS Director Amri A. Suratman. Catholic Archbishop Murphy Pakiam called on the federal government to intervene, saying that the apostasy law 'will create fear.'
The law and government policy does not restrict changing one's religious beliefs and affiliation for non-Muslims. Conversion to Islam raises several issues. A non-Muslim wishing to marry a Muslim must convert to Islam before the marriage can be recognized as valid. A minor (defined by federal law as under the age of 18) may not convert to another faith without explicit permission of his or her guardian; however, some states have passed laws providing for conversion to Islam without permission after age 15. Although the constitution provides that federal law takes precedence over state law, in practice many issues of legal conflicts among federal, state and sharia law have not been clearly resolved. The constitution provides that the religion of a minor is decided by his or her parent or guardian.
There were reports of minors being converted to Islam in cases where one parent voluntarily converted to Islam and converted the children without the consent of the non-Muslim parent. Sharia courts usually upheld the conversions of minors despite the opposition of one parent. In most cases the government did not act to prevent such conversions. Religious leaders have urged the government to move forward with a proposal to encourage Muslim converts to publicly announce their religious status. Under the proposal, upon a conversion the relevant administrative authorities would automatically document the conversion so that the information would be made available to interested parties in an effort to avoid disputes over the status of Muslim converts upon their death.
Muslims who wish to convert from Islam face tremendous obstacles, because neither the right to leave Islam nor the legal process of conversion is clear. A Muslim who wants to convert to another religion must obtain permission from a sharia court; however, such courts grant such permission only in extremely rare circumstances, opting instead to sentence applicants to rehabilitation until they accept Islam fully. Generally, the only conversions recognized were for non-ethnic Malay individuals who had previously converted to Islam for marriage but were seeking to reconvert to their previous religious affiliation after their marriages dissolved.
Law and government policy sometimes require and often exert significant pressure on individuals to convert or reconvert to Islam. A non-Muslim who wishes to marry a Muslim must convert to Islam first. The religion of a minor child is decided by his or her parent or guardian.
The country's legislation has been based on shariah since 1983. Apostasy is a capital offence punishable by death but this law has never been codified and there have been no reports of official executions of converts.
Article 306 of the Penal Code of Mauritania states, "All Muslims guilty of apostasy, either spoken or by overt action, will be asked to repent during a period of three days. If he does not repent during this period, he is condemned to death as apostate and his belongings confiscated by the State Treasury."
Due to this position, all non-Muslims are restricted from being citizens of the country and persons who convert from Islam lose their citizenship.
There is no written clause or legislation regarding apostasy, but the fact that the country seeks to follow traditional Islamic jurisprudence through sharia courts automatically makes apostasy a criminal act punishable by death.
Children born to Muslim fathers are by law deemed Muslim, and conversion from Islam to another religion is considered apostasy.
In 2012, Raif Badawi, a 31-year old blogger who founded 'Saudi Arabian Liberals', a website for political and social debate, was accused of apostasy.
On 17th June 2012, he was arrested on a charge of insulting Islam through electronic channels and in December of that year was also cited for apostasy, a conviction which carries an automatic death sentence. Badawi's trial began in June 2012 in a Jeddah District Court and was rife with irregularities.
According to his lawyer, the original trial judge was replaced by another judge who had previously advocated that Badawi be punished for apostasy. His lawyer has contested the judge's impartiality in the case.
The charges against Badawi relate to a number of articles, including one he wrote about Valentine's Day, the celebration of which is prohibited in Saudi Arabia.
He was accused of ridiculing Saudi Arabia's Commission on the Promotion of Virtue and Prevention of Vice - also known as the religious police - in the conclusion of his article: 'Congratulations to us for the Commission on the Promotion of Virtue for teaching us virtue and for its eagerness to ensure that all members of the Saudi public are among the people of paradise.'
The charges against Badawi also mention his failure to remove articles by other people on his website - including one insinuating that the al-Imam Mohamed ibn Saud University had become 'a den for terrorists'.
On 22th December the General Court in Jeddah had Raif Badawi, age 25, sign documents that permitted his trial on apostasy charges to go ahead, after his case had been passed on by a District Court on 17th December.
Badawi was first detained on apostasy charges in 2008 but was released after a day of questioning. The government banned him from leaving the country and froze his bank accounts in 2009. The family of Badawi's wife subsequently filed a court action to forcibly divorce the couple on grounds of Badawi's alleged apostasy.
On 24th December 2012, Saudi novelist and political analyst Turki al-Hamad was arrested after a series of tweets on religion and other topics. The arrest was ordered by Saudi Interior Minister Prince Muhammad bin Nayef bin Abdel Aziz, who was tipped off by a religious organisation that alleged insults to Islam he had made on Twitter. However, the official charges against al-Hamad were not immediately announced.
The posted comments had attacked radical Islamists he said were twisting the Prophet Mohammed's 'message of love' and described as 'a neo-Nazism which is on the rise in the Arab world - Islamic extremism'.
The postings provoked fierce debate on social networking sites in Saudi Arabia between his supporters and detractors.
No executions on the grounds of apostasy have been reported of late.
Somalia is fragmented into regions administered in whole or in part by different entities, including the central authority Transitional Federal Government (TFG), based in Mogadishu; the semi-autonomous region of Puntland in the northeast, aligned with the TFG; and the self-declared independent Republic of Somaliland in the northwest.
The central and southern regions, including the capital of Mogadishu, have been struggling against Islamist militias since 2006. These militias have gained control of large portions of the country, where they have assumed governing and judicial authority. The major militias - al-Shabaab, Hizbul Islam and Ahlu sunna Waljam'a - follow a strict interpretation of Islam and impose sharia law on the areas they control. Human Rights Watch stated that al-Shabaab rules the region with a 'draconian interpretation which goes well beyond its traditional application in Somalia. Many of the measures used by the al-Shabaab and justified in the name of sharia contravene regional and international human rights standards.'
Somaliland and Puntland have their own constitutions, which provide some protection for religious freedom, although both prohibit apostasy and the propagation of religions other than Islam. The prohibition on apostasy has also been interpreted to mean that conversion from Islam to other religions was prohibited.
The Puntland constitution, which was approved by parliament in 2009 and adopted by a constituent assembly on April 18, states that no one can be forced to a faith different from one's own beliefs. However, it also states that Muslims cannot commit apostasy (renounce their religion) and prohibits propagation of any religion other than Islam. This section of the Puntland constitution also is interpreted to mean that conversion from Islam to other religions is prohibited.
The Somaliland constitution states that it protects the right of freedom of belief. However, it also states that Islamic law does not accept that a Muslim person can renounce his or her beliefs (apostasy) and prohibits the promotion of any religion other than Islam. This section of the Somaliland constitution also is interpreted to mean that conversion from Islam to other religions is prohibited.
The Somali Penal Code, which applies to all regions of the country, although not always enforced, does not prohibit conversion from Islam.
In 2008 an Al Shabab video swept the internet portraying the brutal beheading of 25-year-old aid worker Mansour Mohammed. His crime was simply his conversion from Islam to Christianity.
On 2nd January 2012, al Shabaab militia claimed responsibility for the murder of Zakaria Hussein Omar, age 26, in Cee-carfiid village, about 15 kilometers (nine miles) outside of the Somali capital. Omar had worked for a Christian humanitarian organization that al Shabaab banned in 2011.
His body was left lying for 20 hours before nomads found it and carried it into Mogadishu, a close friend said.
Omar converted to Christianity seven years earlier while in Ethiopia, where he lived with relatives. He returned to Somalia in 2008 and completed his university education in 2009 with a degree in accounting.
On 2nd September 2011, Juma Nuradin Kamil, a Christian convert from Islam who had been kidnapped on 21st August by al Shabaab militiamen, was found decapitated on the outskirts of Hudur City in Bakool region, in southwestern Somalia.
With estimates of al Shabaab's size ranging from 3 000 to 7 000, the insurgents seek to impose a strict version of sharia, but the transitional government in Mogadishu fighting to retain control of the country, treats Christians little better than the al Shabaab extremists do. While proclaiming himself a moderate, President Sheikh Sharif Sheik Ahmed has embraced a version of sharia that mandates the death penalty for those who leave Islam.
Converting from Islam to another religion is punishable under the law by imprisonment or death, but there is no penalty for converting from another religion to Islam. A person convicted of conversion is given the opportunity to recant his or her conversion before capital punishment is carried out.
Article 126 of the Sudanese Penal Code of 1991 stipulates:
'Every Muslim who advocates the renunciation of the creed of Islam, or who publicly declares his renouncement thereof by an express statement or conclusive act, shall be deemed to commit the offence of apostasy.
Whoever commits apostasy shall be given a chance to repent during a period to be determined by the court; if he persists in his apostasy, and is not a recent convert to Islam, he shall be punished with death.
The penalty provided for apostasy shall be remitted whenever the apostate recants his apostasy before execution.'
Even though the 1991 Penal Code remains in use, Article 38 of the Interim National Constitution, which came into force in 2005, includes the provision that 'no person shall be coerced to adopt such faith that he/she does not believe in, nor to practice rites or services to which he/she does not voluntarily consent.'
Under the government's interpretation of Islamic law, a Muslim man may marry a Christian or Jewish woman, but a Muslim woman cannot marry a non-Muslim unless he converts to Islam.
Under Islamic law as applied in Yemen, the conversion of a Muslim to another religion is considered apostasy, which is a capital offense, although one that is rarely enforced.
The government imposes restrictions on conversion from Islam. Under sharia law, the conversion of a Muslim to another religion is considered apostasy, which the government interprets as a crime punishable by death. In recent years, the police in Yemen have arrested people for apostasy. Those arrested are only released if they renounce their new faith and vow to embrace Islam again.
There is no commensurate law pertaining to conversion under Yemeni civil law.
Countries providing for civil death
There are no laws that stipulate the death penalty for apostates, but the Prosecutor-General has the right to punish an apostate with 'civil death' on the basis of several laws that negatively affect the personal status of converts from Islam. These include the risk of having one's marriage annulled, losing rights over one's children and other such actions.
In 1995, the Court of Cassation set case law precedent when it ruled that 'the invalidity of the marriage of a female Muslim apostate, if she gets married after apostasy to a non-Muslim and separation, is enforceable... and the impermissibility of changing the name or religion status of the apostate in the identity card information... a woman apostate does not originally have the right to marry either a Muslim or a non-Muslim; she is considered dead, and the dead is not subject to marriage.'
The same ruling also disqualifies a female apostate from family inheritance in accordance with Law No. 77 of 1943.
The government interprets sharia as forbidding Muslims from converting to another religion. Although there are no statutory prohibitions on conversion, the government does not recognize conversions to Christianity or other religions of citizens born as Muslims. This policy, along with the refusal of local officials to legally recognize such conversions, constitutes a prohibition in practice.
In January 2008 the Cairo Administrative Court ruled that freedom to convert does not extend to Muslim citizens. The court stated that the freedom to practice religious rites is subject to limits, especially those entailed by the maintenance of public order, public morals and conformity to the provisions and principles of Islam, which forbid Muslims to convert. The court stated that 'public order' is defined as the official religion being Islam, that most of the population professes Islam and that Islamic law is the primary source of legislation. The ruling is not binding in other courts.
Jordan has no codified law on apostasy. Neither the constitution nor the penal code nor civil legislation bans conversion from Islam or efforts to proselytize Muslims. While the government freely allows conversion to Islam and from one recognized non-Islamic faith to another, it prohibits conversion from Islam in that it accords primacy to Islamic law, which governs Muslims' personal status and prohibits them from converting.
As the government does not allow conversion from Islam, it also does not recognize converts from Islam as falling under the jurisdiction of their new religious community's laws in matters of personal status; rather, converts from Islam are still considered Muslims. In general under Islamic law, these converts are regarded as apostates, and any member of society may file an apostasy complaint against them. In cases decided by an Islamic law court, judges have annulled converts' marriages, transferred child custody to a non-parent Muslim family member, denied inheritance rights, conveyed an individual's property rights to Muslim family members, removed individuals from official records and confiscated their identity cards, leaving them without any rights. In this way, even though apostasy is not a codified 'crime' in Jordan, a convert from Islam faces the risk of 'civil death'.
Other states also have some problematic legislation or jurisprudence or practices dealing with the right to change religion, such as Comoros, Kuwait, Maldives and the United Arab Emirates.
Main sources of information
* Database of Human Rights Without Frontiers
* No Place of Call Home. Experiences of Apostates from Islam, by Christian Solidarity Worldwide
* Universal Periodic Review material at http://www.upr-info.org
* US Department of State Annual Report on International Religious Freedom