Abstract

http://ssrn.com/abstract=1988189
 


 



Freedom of Conscience and Religious Belief


Puja Kapai


University of Hong Kong - Faculty of Law; University of Hong Kong - Centre for Comparative and Public Law

January 19, 2012

THE LAW OF THE HONG KONG CONSTITUTION, Johannes M. M. Chan, Lim Chin Leng, eds., Sweet & Maxwell, 2011
University of Hong Kong Faculty of Law Research Paper No. 2012/009

Abstract:     
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.

Keywords: freedom of thought conscience and belief, freedom of religion, constitutional rights, Basic Law of the Hong Kong Special Administrative Region

Accepted Paper Series


Not Available For Download

Date posted: January 19, 2012  

Suggested Citation

Kapai, Puja, Freedom of Conscience and Religious Belief (January 19, 2012). THE LAW OF THE HONG KONG CONSTITUTION, Johannes M. M. Chan, Lim Chin Leng, eds., Sweet & Maxwell, 2011; University of Hong Kong Faculty of Law Research Paper No. 2012/009. Available at SSRN: http://ssrn.com/abstract=1988189

Contact Information

Puja Kapai (Contact Author)
University of Hong Kong - Faculty of Law ( email )
Pokfulam Road
Hong Kong, Hong Kong
China
HOME PAGE: http://www.hku.hk/law/faculty/staff/puja_kapai_intro.html

University of Hong Kong - Centre for Comparative and Public Law ( email )
University of Hong Kong
Pokfulam Road
Pokfulam
Hong Kong
HOME PAGE: http://www.hku.hk/law/faculty/staff/puja_kapai_intro.html
Feedback to SSRN


Paper statistics
Abstract Views: 516

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.297 seconds