Puja Kapai (University of Hong Kong – Centre for Comparative and Public Law) has posted Freedom of Conscience and Religious Belief. The abstract follows.
Although the freedom of religion is a constitutionally guaranteed right in numerous jurisdictions around the world, ambiguities surrounding the content of the right continue to baffle courts as well as religious subjects seeking protection pursuant to the right the world over. The conceptual underpinnings of the right continue to prove elusive. This paper traces the journey of Hong Kong courts in the elaboration of various aspects of this right through an examination of local jurisprudence to determine the scope and limits of the protections as enshrined in the Basic Law of the Hong Kong Special Administrative Region (HKSAR). An examination of the jurisprudence indicates the need for a sophisticated approach towards the construction of religion. Given the limitations inherent in any attempt to comprehensively categorize social and psychological phenomena, particularly in light of the importance of the liberty of conscience, the task becomes increasingly challenging given the amorphous nature of the right and the likely ramifications if it is over-extended.
In most cases the court is ready to find violation if there is discrimination. However, the courts are yet to develop an analytical framework within which competing interests between religious freedom and the interests of the public are properly and rigorously assessed. There is also a need for greater sensitivity in the consideration of claims based on religious freedom. In many cases concerning substantive rights of manifestation, for example, the courts have found the defense based on religion as lacking in genuineness to warrant serious treatment. On the other hand, the court’s unfamiliarity with some religious ideas may also have contributed to its reluctance in pronouncing definitively on issues of doctrinal religion. The difficulty however, lies in identifying the extent to which the framework of belief motivates a particular way of life or percolates into various spheres of existence and activity to have a deep impact on matters of conscience. The bifurcation of religious practice into beliefs and actions motivated by such beliefs may be artificial and modeled on established religions and their common expression. Care must be taken to avoid holding beliefs to standards that are common to the established religions and their traditional spheres of activity. If we are to be flexible, there must be further probing of the criteria which elevate mere thoughts or beliefs to a realm beyond legitimate state intervention. A more nuanced approach would serve to increase the confidence of people in the robustness of the courts and their protection of fundamental rights.