Express Recognition of Deity in Constitutions
Jaclyn L Neo
- Constitutional mention of God or other deities — Official religion — Christianity — Islam — Status of religious law
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law. General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
A. Introduction: Range and Types
1. A significant number of countries explicitly or indirectly recognize deity or God in their constitutions. Express recognition may be found in either the preamble and/or the operative text. There is indirect recognition of deity when the constitution refers to a religion, a religious institution, or designates that the head of state must be a member of a specific religion (see also relation of religion to state and society). Such arrangements implicitly associate the constitution with deity, since at their core religions proclaim some belief in the divine.
1. Explicit Recognition of Deity in the Constitutional Preamble
2. A significant number of constitutions refer to deity in their preamble. In Europe, the preambles of the constitutions of Albania, Germany, Georgia, Latvia, Liechtenstein, Poland, Sweden, and Ukraine invoke ‘God’ while the preamble to Switzerland’s constitution refers to ‘Almighty God’. Such generic invocations are to be contrasted with references specifically rooted in Christian theology, such as in Greece and Ireland. The Preamble to the Constitution of Greece: 11 June 1975 (as amended to April 2001) (Greece) invokes the ‘Holy and Consubstantial and Indivisible Trinity’. Similarly, the Preamble to the Constitution of Ireland: 1 July 1937 (as amended to November 2013) (Ir) invokes the ‘most holy Trinity’ and ‘our Divine Lord, Jesus Christ’. It has been suggested that the ‘God’ referred to in many of these preambles may not be an exclusively Christian idea, but rather may be influenced by the Enlightenment (Schmid 21–2). This is particularly since God is invoked in conjunction with ideas commonly associated with the Enlightenment, such as universal values (see eg Albania and Poland).
3. In comparison, many more countries outside of Europe invoke God in their constitutional preambles. In the Americas, Argentina, Belize, Bolivia, Brazil, Colombia, Costa Rica, Ecuador, Guatemala, Guyana, Nicaragua, Panama, Paraguay, and Venezuela invoke ‘God’ in their preambles, whereas Peru and Puerto Rico refer to ‘Almighty God’. Even the Canadian Charter of Rights and Freedoms commences by declaring that ‘Canada is founded upon principles that recognize the supremacy of God and the Rule of Law’ (Canadian Charter of Rights and Freedoms: 17 April 1982 (Can)). Furthermore, while the Constitution of the United States of America does not contain any reference to deity, individual states within the union have constitutions that invoke ‘God’ (eg Alaska), ‘Almighty God’ (eg California, Florida, Georgia, Illinois, Kansas, Kentucky, Louisiana, New Mexico, North Carolina, North Dakota, Ohio, Pennsylvania, South Dakota, Texas, and Wisconsin), ‘Supreme Ruler of the Universe’ (eg Colorado, Washington State), ‘Supreme Being’ (eg Iowa), or ‘Great Legislator of the Universe’ (eg Massachusetts).
4. Notably, an overwhelming majority of those countries that refer to ‘God’ do not evoke any specific religious confession (Frosini 42). Indeed, the generic term ‘God’ could take on different meanings depending on the dominant religious tradition of each country as well as their particular historical and social context. In Asia, for example, the preambles to the constitutions of Indonesia and the Philippines invoke ‘God Almighty’, but the phrase is likely to be construed differently in pluralist but Muslim-majority Indonesia as compared to Roman Catholic-majority Philippines. Indeed, the phrase ‘God Almighty’ was adopted in the Philippines preamble to replace ‘Divine Providence’ which was considered vague and impersonal, while the replacement phrase served to emphasize the Filipino people’s belief in a personal God (Muñoz and Gonzales-Muñoz 26). In contrast, the choice of the term ‘God Almighty’ in the Indonesian constitution was meant to be religiously inclusive (Kim 358–360, Boland 35–6; Ramstedt 5–6). That said, the same preamble refers to belief in ‘the One and Only God’, thereby emphasizing a monotheistic god compatible with Islam as well as Judeo-Christian faiths.
5. African countries that invoke ‘God’ in their preambles are Congo, Equatorial Guinea, Gambia, Ghana, Kenya, Nigeria, Seychelles, South Africa, South Sudan, Sudan, Swaziland, Togo, and Zimbabwe. In comparison, Libya and Mauritania specifically invoke ‘Allah’ in their preambles.
6. Compared to Europe and the Americas, a significant number of constitutions in Asia, Africa, and the Middle East specifically recognize the Islamic god, or Allah. In Asia, the Constitution of the Islamic Republic of Pakistan: 12 April 1973 (as amended to 7 January 2015) (Pak) refers to ‘Almighty Allah’ while the Constitution of the Islamic Republic of Afghanistan: 4 January 2004 (Afghanistan) invokes the ‘name of Allah, the Most Beneficent, the Most Merciful’. In the Middle East, while several constitutions have preambles invoking ‘God’, these are understood to refer to the Islamic god; these are Bahrain (‘God on high’), Egypt (‘God, Most Gracious, Most Merciful’), Iraq (‘God, the Most merciful, the Most compassionate’), and Kuwait (‘God, the Compassionate, the Merciful’). Furthermore, the very long preamble to the Constitution of the Islamic Republic of Iran: 3 December 1979 (as amended to 28 July 1989) (Iran) specifically invokes ‘Allah, the Compassionate, the Merciful’, while the constitution of the Constitution of the United Arab Emirates: 1971 (as amended to 2011) (UAE) invokes in its Preamble ‘Allah, our best Protector and Defender’, as well as ‘the Supreme and Omnipotent Creator’.
7. The inclusion of references to deity in a constitution’s preamble is significant because preambles often reflect the constitutional understanding of framers with regards to the founding norms of the constitution. While it is common to see preambles as having merely ceremonial or symbolic effect, preambles are also sometimes used as tools in constitutional interpretation (Orgad, 722–3). Besides this interpretive function, preambles may also be regarded as legally binding and serve as independent sources for rights and obligations, such as where preambular references are taken to be foundational norms that cannot be derogated from even by way of a constitutional amendment (Orgad 723–31).
2. Explicit Recognition of Deity in the Operative Parts of the Constitution
8. Constitutions may also expressly recognize deity in the operative parts of the constitution. This could be in addition to references in their preambles. For instance, besides the reference to God Almighty in its preamble, the Constitution of the Republic of Indonesia: 1945 (as amended in 2002) (Indon) also expressly states in Art. 29 that ‘[t]he State shall be based upon the belief in the One and Only God.’ Similarly, in addition to invocations to Allah in its preamble, the Constitution of the Islamic Republic of Iran: 3 December 1979 (as amended to 28 July 1989) (Iran) proclaims that the republic is based on belief in ‘the One God (as stated in the phrase ‘There is no god except Allah’), His exclusive sovereignty and the right to legislate, and the necessity of submission to His commands’ (Art. 2). The legal effect of these provisions depends on the exact phrasing of the constitutional provisions themselves as well as the constitutional context in which they operate, although the preamble and the operative parts are likely to reinforce one another.
3. Indirect Recognition of Deity by Reference to Religion
9. Constitutions may also indirectly recognize deity by referencing religion or establishing a state religion. Countries that establish Christianity (or more specifically Roman Catholicism) as the state religion are typically in Europe and the Americas. For instance, the Political Constitution of the Republic of Costa Rica: 8 November 1949 (as amended to 2011) (Costa Rica) declares that ‘Roman, Catholic, Apostolic Religion is that of the State’ (Art. 75). Other countries that expressly establish the Roman Catholic religion as the state religion are Malta and Monaco. The Constitution of the Argentine Nation: 1 May 1853 (as amended to 24 August 1994) (Arg) also establishes Roman Catholicism by declaring that ‘[t]he Federal Government supports the Roman Catholic Apostolic Faith’ (Art. 2).
10. On the other hand, the Constitution of the Republic of Bulgaria: 13 July 1991 (as amended to 2007) (Bulg) establishes Eastern Orthodox Christianity by expressly considering it in the constitution as ‘the traditional religion in the Republic of Bulgaria’ (Art. 13). In Africa, Zambia stands out for declaring in its Preamble that the Republic is ‘a Christian nation’ (Constitution of Zambia: 24 August 1991 (as amended to 5 January 2016) (Zam)).
11. Currently, many more countries establish Islam as the religion of the state or its official religion than other religions. In Asia, Afghanistan, Bangladesh, Brunei Darussalam, Malaysia, Maldives, and Pakistan declare Islam to be the religion of the state. As an illustration, the Federal Constitution of the Republic of Malaysia: 27 August 1957 (as amended to 1 May 2009) (Malay) declares that ‘Islam is the religion of the federation, but other religions may be practiced in peace and harmony in any part of the Federation’ (Art. 3). In Africa, Mauritania, Morocco, Somalia, and Libya declare Islam to be the religion of the state. Notably, Morocco’s Preamble declares that it is a ‘sovereign Muslim State’ (Constitution of Morocco: 29 July 2011 (Morocco)). Several Middle Eastern countries declare Islam to be the religion of the state; they are Bahrain, Egypt, Iran, Iraq, Jordan, Kuwait, Oman, Qatar, Saudi Arabia, Syria, Tunisia, United Arab Emirates, and Yemen.
12. Besides the establishment of Islam and Christianity (or a denomination of it), some states explicitly establish Buddhism. The Constitution of the Kingdom of Cambodia: 24 September 1993 (as amended to March 2008) (Cambodia) expressly establishes Buddhism as its state religion (Art. 43), whereas Bhutan, Myanmar, Sri Lanka, and Thailand grant it a special or foremost position. For instance, the constitution of Thailand declares that ‘[t]he State shall patronize and protect Buddhism and other religions’, and this is expressly stated to include promoting and supporting Buddhist education, propagating Buddhist principles, establishing measures to prevent the desecration of Buddhism, and encouraging the participation of all Buddhists in the implementation of these measures (Section 67 of the Constitution of the Kingdom of Thailand: 7 August 2016) (Thai)).
4. Indirect Recognition of Deity by Reference to a Religious Institution
13. Constitutions also indirectly recognize deity when it establishes, not a religion, but a religious institution. This is where the constitution explicitly refers to a particular form of religious institution, either as part of the state apparatus or as having a special position within the constitutional arrangement (Temperman 32). Notably, the idea of an established church is unique to Christianity, since other religious groups do not have similar institutional structures and historical connections between the religious institution and political institutions. As such, countries that establish a religious institution are in Europe and the Americas. In Europe, Liechtenstein establishes the Roman Catholic Church as its state church, whereas Denmark, Iceland, and Norway designate the Evangelical Lutheran Church as their established, state, and national church respectively. In addition, the Republic of Armenia recognizes ‘the exclusive mission of the Armenian Apostolic Holy Church as a national church’ (Constitution of the Republic of Armenia: 5 July 1995 (as amended to December 2015) (Arm)), while Georgia recognizes ‘the outstanding role of the Apostolic Autocephalous Orthodox Church of Georgia’ (Constitution of Georgia: 24 August 1995 (as amended to December 2006) (Geor.)). Interestingly, the constitution of Hungary provides for religious communities cooperating with the National Assembly in order to achieve community goals to operate as ‘established churches’ with specific privileges (Art. VII of The Fundamental Law of Hungary: 25 April 2011 (as amended to 2013) (Hungary)).
14. While it is possible to legally distinguish between a state religion and a state church, in practice there may be little distinction, since the designation of a religion as the state religion almost automatically gives the church associated with that religion a privileged position and special ties with the state. One possible remaining distinction is that, in a state church regime, the state tends to have more far reaching powers to interfere with internal church affairs (Temperman 33).
5. Indirect Recognition of Deity by Designating a Religious Head of State
15. Several constitutions recognize deity by expressly providing that the head of state must be a member of a specific religion. In 2014, a Pew Research analysis found that 30 of the world’s countries (15 per cent) require their heads of state to have a particular religious affiliation (Theodorou). In Europe, this requirement is present in countries that retain the monarchy as part of their constitutional arrangement. Thus, the Norwegian monarch ‘shall at all times profess the Evangelical-Lutheran religion’ (Art. 4 of The Constitution of Norway: 17 May 1814 (as amended to 1 June 2015) (Norway)), the Swedish monarch ‘shall always profess the pure evangelical faith’ (Art 4 of The Act of Succession 1810 (Swed)), the Danish monarch ‘shall be a member of the Evangelical Lutheran Church’ (Art. 6 of The Constitutional Act of Denmark: 5 June 1953 (Denmark)), and the English monarch ‘shall join in communion with the Church of England’ (Act of Settlement (1701) (UK)). The intertwining of religious identity and the monarchy is also present in Asia. In Thailand, the King must be ‘Buddhist’ (Section 7 of the Constitution of the Kingdom of Thailand: 7 August 2016 (Thai)). Furthermore, the constitutional arrangements in Malaysia and Brunei designate the rulers as the heads of Islam, thereby implicitly requiring that the heads of state be Muslims.
16. This religious test extends to other positions of power. In Malaysia, only a Muslim can be the Chief Minister in several of its constituent states. Similarly, Tunisia requires that only those whose religion is Islam can stand for election to the position of the President of the Republic (Art. 74 of the Constitution of Tunisia: 27 January 2014 (Tunis)). In Brunei, several positions of high office including the Attorney General, Speaker of the Legislative Council, and Chairman of the Public Service Commission can only be occupied by Muslims (Art. 84A of the Constitution of Brunei Darussalam: 1959 (reprint as at 8 November 2008) (Brunei)).
B. Historical Overview
17. The discussion above shows that while many countries invoke God in their constitutional preambles, the number of countries that establish Islam as their state religion far exceeds those that establish other religions. This is due to a resurgence of religion in constitution-making in many Muslim-dominant countries in Asia, Africa, and the Middle East in the twentieth and twenty-first centuries (Ahmed and Ginsburg). Post-war constitution-making that took place in Europe favoured transnational and secular universal values as a normative framework, where religion was understood as just another human right to protect (Backer 124, 126; secularism). While this influence was present in constitutions drafted in Asia in the immediate post-war period, post-colonial conditions often meant that there was also pressure to provide some constitutional recognition for the majority religion (see eg Malaysia).
18. Constitution-making in Asia, Africa, and the Middle East in the latter half of the twentieth century and in the twenty-first century have further embraced a different normative framework that is rooted in the Islamic tradition. The 1979 Iranian constitution is often seen as the exemplar of a constitution that establishes constitutionalist (power limiting) principles based on substantive norms drawn from Shia Islam (Backer 127–32). Post-conflict constitution-making in Iraq and Afghanistan are American-led experiments in Islamic democracy (Backer 137). The influence of Islamic constitutionalism has led several countries that previously adopted Islam as the state religion from mostly symbolic adherence to Islamic rituals to applying Islamic norms in law and policy. For instance, while Pakistan adopted the name ‘Islamic Republic’ and has declared Islam to be its official religion since its first constitution was adopted in 1956, it was only later, in the 1980s, that systematic Islamicization of the legal order took place (Lau (2006); Redding). Interestingly, while the shifts in Muslim-majority countries have been towards greater recognition of Islam, the trend in countries which recognized Christianity/Catholicism has been to move away from that recognition. Thus, for instance, Sweden amended its constitution to separate the Lutheran Church of Sweden from the state by 1999 (‘Swedes End Long Union of Church and State’ (31 December 1995) The New York Times), while Norway amended its constitution in 2012 to separate the Church of Norway from the state (Fraser).
C. Constitutional Recognition of Deity, Theocracy, and Secularism
19. Just because a constitution expressly recognizes deity does not mean that it is a theocracy. Even in states that establish religion or a church, there is some functional and institutional differentiation between the religious and political orders. Such states are not theocratic since the state is not governed by the sacerdotal order, whereby the state is governed by divine laws often directly administered by a priestly or clerical order claiming divine commission (Bhargava 639; The Catholic Encyclopedia of Religion 13). The word ‘theocracy’ derives from the ancient Greek words for god (theos) and power (kratos) (Perl 14). There is, however, no fixed understanding of what would constitute a theocracy. According to Lucas Swaine, a working definition of theocracy can be said to be composed of four components: (1) it is a strict way of governing; (2) there is a religious understanding of ‘the good’ in theocracy; (3) religious authorities direct daily affairs in a community; and (4) all sovereignty is God (Swaine 4). Notably, this working definition may not capture all the nuance that could present itself in theocratic regimes. For instance, not all religions locate sovereignty in God. Nonetheless, it is a useful definition to demonstrate the conflation of the religious order with the political order, which appears to be key to characterizing a regime as theocratic. A modern day example of a theocracy would be the Vatican City, where the Pope rules according to a divine system of law as God’s ‘divinely appointed’ and ‘divinely inspired’ agent.
20. Furthermore, recognition of deity could be counterbalanced against other provisions in the constitution adhering to secular ideals and/or arrangements. For instance, while the Constitution of the Republic of the Philippines: 11 February 1987 (Phil) invokes ‘the aid of Almighty God’ in its preamble, the constitution also explicitly proclaims that ‘[t]he separation of Church and State shall be inviolable’ (Art. II, Section 6). This is reinforced by Art. III section 5, which states that ‘[n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.’ This frames the country’s persistent contestation about the role of religion as well as of the Roman Catholic Church (which is the religious institution that most Filipinos belong to) within the legal–political order. Historically, the Filipino Catholic Church has exercised significant influence over politics and social policy, and there is considerable entanglement between the church and government (Pangalangan). Indeed, Catholic doctrine plays an important role in shaping policy, as evidenced by the fact that the Philippines is the only country in the world today, other than the Holy See, that does not allow divorce. Opposition from the Catholic Church has also been identified as a key reason that the government was stalled for more than 14 years in enacting the Reproductive Health Law; this was despite evidence showing that most Filipinos supported the law (Hundley).
D. Constitutional Implications of the Express Recognition of Deity
21. Constitutionally recognizing deity, both directly and indirectly, has many and various implications for the legal and political system, since recognizing deity in the constitution essentially reserves a special status for religion in the shaping and functioning of the legal and political system.
1. State Sovereignty
22. Several constitutions proclaim that sovereignty lies not in the people but in God. The Constitution of the Islamic Republic of Iran: 3 December 1979 (as amended to 28 July 1989) (Iran) is one such example, where Art. 2 declares that the republic is based on belief in Allah and in His exclusive sovereignty. On the face of it, declaring sovereignty to God contradicts popular sovereignty, which is the legitimating basis for democracy. Feldman, however, has sought to bridge this problem by arguing that, while God is sovereign in Islam, people can still be the ultimate decision-makers in their governance (Feldman). This way of reconciling divine sovereignty with democracy is reflected in the Constitution of the Islamic Republic of Pakistan: 12 April 1973 (as amended to 7 January 2015) (Pak), where the Preamble states that ‘sovereignty over the entire Universe belongs to Almighty Allah alone’, but also that ‘the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust’. By virtue of Art. 2A of the Pakistani constitution, the declaration of the sovereignty of God is a ‘substantive and justiciable part of the constitution’ (Grote and Röder 8–9; Lau (2012) 197–8) and ‘an immutable and unalterable norm’ (Asma Jilani v The Government of Punjab (Pak).
2. Religion as a Source of Law
23. Constitutionally recognizing deity could lead to religious precepts being used as a source of law, and this could have implications for constitutional interpretation.
24. First, religious precepts may be used as a source of law, which means that they are to be taken into account in the making of laws and policies in such a country, albeit not exclusively. Countries such as Saudi Arabia, Kuwait, Bahrain, Yemen, and the United Arab Emirates not only make references to deity in their constitutions, but also entrench Islamic law (Sharia) as ‘a source,’ ‘a primary source,’ or ‘the primary source’ for legislation (Ahmed and Ginsburg; Hirschl 436; constitutions and Sharia provisions). Religious considerations are considered in law and policy-making, possibly granting the dominant religion and religious leaders tremendous powers over the making of law and policies.
25. Secondly, in some constitutions recognizing deity, religious precepts are used as the only source of higher law, such that existing or future laws that do not conform with those religious precepts may be struck down as unconstitutional. This is the case in countries like Pakistan, Afghanistan, Egypt, Iran, and Iraq. Their constitutions contain provisions that essentially forbid the enactment or enforcement of legislation that is antithetical to Islam. To illustrate, Art. 227 of the Constitution of the Islamic Republic of Pakistan: 12 April 1973 (as amended to 7 January 2015) (Pak) requires that ‘no law shall be enacted which is repugnant to Islam.’ This is further buttressed by provisions granting a particular institution the power and jurisdiction to strike down laws accordingly. In Pakistan, Art. 203D of the constitution empowers the Federal Shariat Court to declare any law to be ‘repugnant to the injunctions of Islam’ and to cease to have effect. Similarly, the Constitution of the Islamic Republic of Afghanistan: 4 January 2004 (Afghanistan), which explicitly refers to God and more specifically Allah, as well as designating Islam as the state religion, further provides at Art. 3 that ‘[n]o law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan.’ In Egypt, Art. 2 of the Constitution of the Arab Republic of Egypt: 15 January 2014 (Egypt), which declares that ‘[t]he principles of Islamic Sharia are the principle source of legislation,’ has been interpreted as having the effect of a repugnancy clause (Lombardi).
3. Religion and Political Authority
26. Constitutional recognition of deity is likely to validate religion having a role in political power and politics. Firstly, express recognition of deity could justify an intertwining of religious and political authority within the state. For instance, the Constitution of Brunei Darussalam: 1959 (Reprint as at 8 November 2008) (Brunei) invokes ‘the name of God, the Compassionate, the Merciful, Praise be to God, the Lord of the Universe, and may the benediction and peace of God be upon Our Leader Muhammad and upon all his Relations and Friends’ in promulgating the constitution. This becomes the foundation for instituting the Sultan as both the Head of Religion and the Head of State and Government (‘Supreme Executive Authority’). Indeed, this intertwining is encapsulated in the national philosophy of Melayu Islam Beraja (Malay Islam Kingship).
27. Secondly, even where there is no absolute intertwining of religious and political authority, the express recognition of deity could nonetheless justify the co-optation of religious authority into the political system. This takes the form of the government directly including religious personnel into the state’s bureaucracy or the direct incorporation of religious leaders into the political system. On the former, religious personnel may be directly hired by the state, ie as public servants. On the latter, an example is the way certain seats within the House of Lords (the UK Parliament’s Upper House) are reserved for representatives of the Church of England.
28. Thirdly, express recognition of deity in the constitution may be an indicator of a particular social–political condition, in particular where such recognition is meant to reflect the views and belief systems of the majority of the population. Under such conditions, politicians may be emboldened to invoke deity or religion to reinforce their political legitimacy. This may lead to a politicization of deity or religion as they are invoked for political aims, ie to gain further political support or to legitimize a particular political agenda. Politicians thus claim to speak on behalf of a religious community in order to legitimate their political goals. In addition, express recognition of deity in constitutions may also contribute to or reinforce religious nationalism, whereby the nation becomes identified in religious terms (Gorski and Türkmen-Dervişoğlu 140). Religious nationalists also politicize religion but they do so by invoking religious identity to mobilize followers in opposition to other religious groups. Thus, it has been observed that religious nationalism has a tendency towards symbolic and physical violence because of the need to ‘align and sharpen the boundaries of the religious and political communities,’ resulting in ‘a very high level of political animosity to those outside of it’ (Gorski and Türkmen-Dervişoğlu 141).
4. State Involvement in Religion
29. Recognition of deity will also impact the administration of religious affairs in the country. This is particularly the case where express recognition takes the form of the establishment of a religion or religious institution. Thus, for instance, in Denmark, the Evangelical Lutheran Church, which is the established church, has very little autonomy from the state with respect to its legislative and organizational aspects. Indeed, it has ‘no independent representational structure’; the legislative body of the church is parliament and the Queen is regarded as the head of the church (Nielsen and Kühle 178).
30. Besides the lack of autonomy, state bureaucracy may also be directly involved in administering religious affairs and implementing religious doctrines, even in the form of religious courts. For instance, in Malaysia, state departments administer religious affairs and this has even extended to policing Muslims to ensure adherence to religiously inspired moral codes. In addition, state Syariah (Sharia) courts adjudicate over disputes arising from religious laws such as marriage, divorce, and conversion (Harding 233).
31. Such state involvement in religion could seriously impact religious freedom of individuals as the state becomes involved in determining religious orthodoxy, and religious orthodoxy becomes conflated with state doctrine. Under such circumstances, defying or opposing religious orthodoxy could be taken to also be defiance or opposition to the state, and vice versa. Blasphemy becomes indistinguishable from sedition.
5. Individual Rights
32. Recognition of deity could also have serious implications for individuals. Specifically, it may impact the extent to which the individual right to freedom of religion and freedom of speech is protected in the state. Furthermore, explicit recognition could also lead to unequal status or protection for citizens who are not from the majority religion. This is because explicit recognition tends to lead the government to coincide with majority–minority divides, such that the government that is dominated by the majority would tend to identify with the dominant religious group. When this happens, the government may discriminate against other religious groups, whether directly and intentionally or otherwise. An example of this is Malaysia, where the explicit endorsement of Islam as the religion of the federation in the constitution has been used to justify restricting the right of Christians to use the word ‘Allah’ to refer to the Christian God in their Malay language publications (Neo).
33. Most constitutions that explicitly recognize deity do guarantee individual rights. For instance, Art. 29 of the Constitution of the Republic of Indonesia: 1945 (as amended in 2002) (Indon) also declares that ‘[t]he State guarantees all persons the freedom of worship, each according to his/her own religion or belief.’ The constitution also guarantees freedom of expression (Art. 28) and equal protection (Art. 27). In this regard, a balance is often said to be required between protecting the religious foundation of the state and individual rights. This could lead to outcomes that appear to undervalue individual rights, at least in its liberal conception. In the case of Indonesia, for example, the Constitutional Court has upheld the validity of a blasphemy law as a legitimate limitation on religious freedom and freedom of expression. The Court held, inter alia, that the law was necessary to preserve public order and to protect the rights of religious believers from being infringed (presumably by those who proclaim deviant views) (Decision of the Constitutional Court; Crouch).
34. Where the express recognition of deity is part of the establishment of a closer relationship between the secular and legal–political order, it is often assumed that there would be less tendency to grant religious freedom to individuals. An absolute theocracy would quite obviously not recognize individual rights to religious freedom. However, it is less obvious if religious establishment, even in the strong form, would necessarily eradicate religious freedom. Nonetheless, any constitutional arrangements that seek to assert a strong form of establishment is likely to be less tolerant of religious difference. This could seriously undermine the religious freedom of religious minorities (protection of religious minorities). Another group likely to be affected are minorities or dissenters within the majority religion. In addition, even if religious minorities enjoy a high degree of autonomy over their religious affairs, they are likely to not be treated as having equal status to citizens from the majority religion. This is not least because their religious views may not carry as much weight in law and politics within the country as those of the majority religion.
35. Indeed, the possibility of discriminatory practices arising from a dominant religion has notably been recognized and addressed by the United Nations Human Rights Committee. In its General Comment No 22 on Art. 18 of the International Covenant on Civil and Political Rights (1966), the Committee recommended that, where ‘a set of beliefs is treated as official ideology in constitutions, statutes, proclamations of ruling parties, etc., or in actual practice’, the key is to ensure that this would ‘not result in any impairment of the freedoms under Art. 18 or any other rights recognized under the Covenant nor in any discrimination against persons who do not accept the official ideology or who oppose it’ (General Comment No 22 para. 10).
36. Within Europe, traditional state patronage of Christianity has raised questions about its compatibility with the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (ECHR). The case of Lautsi v Italy illustrates this well. At issue was whether the display of crucifixes in classrooms in an Italian school violated the ECHR’s guarantee of freedom of thought, conscience, and religion (Art. 9; freedom of conscience and religion or belief) as well as the guarantee to parents that the state shall respect their right to ensure their children’s education and teaching are in conformity with their own religious and philosophical convictions (Protocol 1, Art. 2). In 2009, a seven-judge Chamber of the European Court of Human Rights (ECtHR) decided unanimously that the presence of the crucifixes violated the ECHR (Lautsi). However, Italy appealed (and other European countries intervened). In 2011, the Grand Chamber of the ECtHR reversed the decision and upheld Italy’s right to display the crucifix in public classrooms, ruling that ‘the decision whether crucifixes should be present in State-school classrooms is, in principle, a matter falling within the margin of appreciation of the respondent State’ (Lautsi GC paras 69–70). The Grand Chamber further opined that the crucifix is essentially a ‘passive’ symbol and does not amount to indoctrination since it ‘cannot be deemed to have an influence on pupils’ (Lautsi GC para. 72). The Chamber compared this to ‘didactic speech or participation in religious activities’ (Lautsi GC para. 72), which presumably would have an indoctrination effect.
E. Concluding Observations
37. Different constitutional issues are implicated in constitutions that expressly recognize deity as compared to those that proclaim the principle of secularism or more specifically the separation of state and religion. Such secular constitutions tend to focus on how much autonomy the state’s legal and political order should have from religious influence. State entanglement with religious institutions and religious law would typically be seen as violating the constitutional principle of secularism. In contrast, in constitutions that expressly recognize deity, there is less of a fixation with political and legal autonomy from religion, but with how much of such entanglement would be permissible before it transgresses upon individual rights. Consequently, constitutional recognition of deity could more easily legitimate practices that may impinge upon individual rights. This is by no means always the case. In some countries, constitutional recognition could lead to greater liberties for religious adherents as the state is not preoccupied with emptying the public sphere of religious influence, which could lead to situations where religious individuals and groups become shut out of public discourse (Stout 538; Taylor 49).
38. That said, the express recognition of deity may make the constitutional system less accommodative of religious diversification, because such diversification—often the result of immigration—would be seen as a threat to national identity, which is closely intertwined with religious identity (Modood). While constitutions that adhere to the principle of secularism, or more specifically the separation of state and religion, would have to find a way to bridge the gap between the legal–political commitment to religious diversity and the possible resistance to such diversity on the societal level, constitutions that expressly recognize deity could provide a legitimate basis to openly deny equal rights to persons who are from different religious backgrounds. As such, the challenge in constitutions that recognize deity is to balance such recognition, and the legal–political advantages that such recognition gives to the dominant religion, with fundamental rights such as freedom of religion and equal citizenship.
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