International Law and Religion Moot Court

Brazil 2020

[EVENT SUSPENDED UNTIL FURTHER NOTICE DUE COVID-19]

Hypothetical Case

N.E. v Republic of Seculana of the Amerigos

1. The Republic of Seculana of the Amerigos (ROSA) is a landlocked country on the continent of Amerigo. According to the latest census of October 2019, ROSA has around 21 million inhabitants, of which 80% identified themselves as secular, 15% as Kneelers and 5% belonging to other religious minorities.

2. Until 1998, ROSA was part of Kneelana, the biggest country on the continent of Amerigo, with around 200 million inhabitants, consisting of over 90% Kneelers and around 9% atheists. Kneelers are religiously very devout persons and derive their name from worshipping by kneeling and praying to the Supreme Being. During the late 19th century, when the Kneelers were founded, some of their religious leaders led a polygamous life, however, in 1907 their highest spiritual authority, the Kneeler Council, decided that polygamy was prohibited for any Kneeler. They historically wear knee cap guards during pilgrimages, with pilgrims walking the last mile to the Nesanctuary in the capital city of Kneelana on their knees with the aid of knee pads. In Kneelana, many men – albeit no women – nowadays wear a knee cap guard on the head to show their faith publicly.

3. After a successful referendum in Kneelana on 20 November 1998, ROSA became independent peacefully and elected its first parliament and prime minister in March 1999. One of the first steps taken by the government and parliament of ROSA was to adopt in July 1999 a Constitution (whose substantive provisions in articles 3 to 30 copy verbatim the related articles of the American Convention on Human Rights, ACHR) and to join the Amerigo Human Rights Commission (whose founding texts are similar to the Inter-American Commission on Human Rights, including articles 34 to 51 of ACHR).

4. Furthermore, in December 1999, ROSA ratified the International Covenant on Civil and Political Rights (ICCPR) as well as its first Optional Protocol (OP1) on individual communications to the UN Human Rights Committee. Upon ratification of OP1, ROSA entered a reservation excluding the Committee’s competence to consider cases that are being or have been examined under another procedure of international investigation or settlement. In addition, ROSA declared that its constitutional articles 13 to 16 on freedoms of expression, assembly and association will be implemented in accordance with the ACHR.

5. The Constitution of ROSA states in article 1 that “All human beings are born free and equal, in dignity and human rights, and being endowed by nature with reason and conscience, they should conduct themselves as brothers and sisters one to another.“ Its article 2 provides for details of the Secular Doctrine: “ROSA is a Secular Republic, which strictly separates the State and religions pursuant to its foundational Secular Doctrine (SecDoc). Accordingly all religious belief is purely personal. The State and all persons holding public office must not dictate any religious belief. No one shall assert his or her religious belief as a legal reason to disregard this Constitution or any other law.“ Furthermore, article 12 of the Constitution guarantees freedom of conscience and religion, with the same text as article 12 of ACHR.

6. In May 2018, the yellow press of ROSA ran several articles predicting significant demographic changes due to a higher fertility rates of Kneelers (with an average of 3.4 children per couple) in comparison to secular persons (with an average of 2.6 children per couple) and warning against Kneelers "taking over first schools and then the whole society".

7. The governing SecDocParty subsequently introduced the draft Law to Preserve Secular Doctrine (LPSD), which prohibits wearing conspicuous religious symbols, both in public schools (article 4 of LPSD) and in public places or circumstances (article 5 of LPSD). Contravening articles 4 or 5 of LPSD may lead to fines of up to two monthly wages or two months imprisonment pursuant to article 8 of LPSD. While the opposition parties, mainly from the KneelParty, argued fervently against the draft law, the absolute majority of SecDocParty in Parliament adopted LPSD on 20 November 2018 as part of a comprehensive legislative package on the occasion of the 20th anniversary of ROSA’s independence referendum.

8. Another part of the 2018 legislative package was the Law to Reform School Education (LRSE). Article 11 of LRSE introduced in all public schools a compulsory SecDoc subject starting in secondary school on 1 January 2019. The Minister of Education, who is also the Vice-President of SecDocParty, already prepared since early 2017 a detailed SecDoc curriculum and teaching materials. These SecDoc classes include discussion of history and philosophy of religions and beliefs, describing Kneelers in a negative manner and as “morally backward and polygamous“. The Ministry of Education had not held any consultations with Kneelers in elaborating the curriculum and teaching materials. In addition, pursuant to article 12 of LRSE, each day in public schools starts with all pupils and teachers jointly reciting (called “secdocing“) the full text from article 2 of the Constitution. LRSE does not foresee any opt-out possibilities from jointly secdocing and participating in SecDoc classes.

9. After gaining independence, ROSA had issued a standing invitation to all thematic Special Rapporteurs of the UN Human Rights Council. From 10 to 17 December 2018, the UN Special Rapporteur on freedom of religion or belief visited ROSA in order to identify existing and emerging obstacles to the enjoyment of the right to freedom of religion or belief and present recommendations on ways and means to overcome such obstacles. In his press statement at the conclusion of his visit, the Special Rapporteur he stressed that according to the Beirut Declaration and its 18 commitments on “Faith for Rights” all stakeholders should prevent the use of “doctrinal secularism” from reducing the space for religious or belief pluralism in practice. He also warned against increasing polarization in ROSA and the risk of incitement to hatred and violence, pointing to the six-part threshold test of the Rabat Plan of Action.

10. Neil Eel (N.E.) is a television journalist at public broadcaster ROSATV, hosting a popular daily show in which he interviews individuals from society and politics in ROSA. N.E. is a devout Kneeler and in his pasttime he leads a small congregation of around 20 believers who meet once a week in his house. In December 2018, N.E. started wearing a knee cap guard on his head, occasionally also while walking on the streets and at work (but not when he was live on air), to make a point against the adoption of LPSD, which he says was clearly discriminatory against Kneelers and their beliefs. In January 2019, he had to renew his passport and for that purpose he submitted an identity photo that showed him wearing a tibia protector on his head (instead of a knee cap guard). However, the Ministry of Interior rejected his request for passport renewal, stating that he should submit an ID photo showing him without any conspicuous religious symbol and arguing that the tibia protector was obviously intended by N.E. to substitute the knee cap guard. On 7 February 2019, N.E. also got fined two monthly wages by the police for wearing a knee cap guard while he walked on the street to work.

11. Neil‘s son Keed Eel (K.E.) was born in 2009 and entered secondary school at the public Rosario school when the new school year started on 6 January 2019. However, from the first day, K.E. refused to attend SecDoc classes and to participate in secdocing the text of article 2 of the Constitution. In addition, he insisted wearing a knee cap guard on his head, which led to him being reprimanded first by his teacher, then by the headteacher and ultimately the school board decided on 10 February 2019 to expel K.E. from Rosario school for one month or until he agrees to wear no conspicuous religious symbols in school and participate in SecDoc classes and secdocing. N.E. refused to have K.E. comply with these conditions and enrolled him in a private school run by the local Kneeler Community, mainly through distance learning and online classes provided by Kneelana University.

12. On 11 February 2019, N.E. posted on his private account at the social media site Faithbook the photo of a famous player from ROSA’s national soccer team, which N.E. had digitally altered by adding a knee cap guard on his head and by putting as a caption „Kneemar (by Neil Eel ;-)“. While N.E.‘s account was only intended for his friends, one of his followers reposted this altered photo and caption on his public channel on InstaSeculana. The daily newspaper YellowRosa picked this up on its website and also included a link to N.E.‘s account on Faithbook. This triggered 1.2 million visits of YellowRosa’s webpage within one week, with about 80% of the comments being negative against N.E. and Kneelers in general. N.E. also received hate messages and threats via his Faithbook account, which he decided to close on 20 February 2019. However, the altered photo is still readily accessible via hundreds of other social media sites from individual Kneelers in ROSA and Kneelana.

13. George Oakholy, the speaker of Parliament, who had been nominated by the SecDocParty in 2010, on 21 February 2019 called for a new provision in the Criminal Code of ROSA in order to avoid defamation of public figures and safeguard SecDoc. After two readings, on 28 February 2019, the Parliament adopted the amendment to article 220(d) of the Criminal Code, which now reads: "Whoever defames in print media or online any public figure with conspicuous religious symbols shall be liable to a fine of maximum six monthly wages or six months imprisonment. ‘Public figures’ in the sense of this provision include any member of parliament, cabinet minister, head of administration and all those who play for a national sports team of ROSA." In addition, article 220(e) was introduced in the Criminal Code, obliging all social media companies based in ROSA to develop and use artificial intelligence software to filter any photo that is digitally altered to include a knee cap guard. If social media companies cannot show efficient filters within six months of the entry into force of this provision they may be fined up to 10% of their annual profit.

14. On 1 March 2019, N.E. hosted George Oakholy on his daily TV show. N.E., wearing a knee cap guard on his head, started the interview with the following question: "Welcome, Mr. Speaker to my series of interviews ’The Hot Spot‘. Yesterday, the Parliament amended the Criminal Code, which now effectively prohibits blaspheming doctrinal secularism. The UN Special Rapporteur had also been critical in this regard last December. As a lawyer by training, wouldn’t you agree that this new law goes bluntly against the provisions of the Rabat Plan of Action and Beirut Declaration?" George Oakholy replied the following: "We in ROSA don’t care about declarations and action plans, and it was a mistake to invite this UN special rapporteur in the first place. And your opening question shows a serious lack of respect for the speaker of Parliament. Look at yourself, you even dare breaking the law publicly by wearing this horrible sign of submission. You should be kicked out of your cushy TV seat and even better also out of ROSA, together with your followers!" George Oakholy then angrily stood up and left the TV studio. The interview was viewed by around 200,000 people live, but subsequently it trended online with more than 2 million views alone on the private video portal RosaTube.

15. On the following days, N.E. faced various negative comments from colleagues and unknown persons, including the words “Go home! ROSA is not for Kneelers!” being sprayed on the entrance door of his house. On 4 March 2019, K.E. had a fist fight on his way home with three kids from the neighbourhood, leading to a broken nose for K.E.

16. On 6 March 2019, N.E. filed a case with the court of first instance in ROSA, claiming that his and K.E.‘s rights had been violated through the:

a. Rejection of N.E.‘s passport renewal and imposition of a fine for wearing a knee cap guard on the street;

b. Expelling of K.E. from public school and lack of adequate State action against incitement to hatred; and

c. Amendments to the Criminal Code in articles 220(d) and 220(e).

17. The Court of first instance of ROSA rejected all his claims on 12 March 2019 without giving a detailed reasoning while referring to applicable domestic norms. N.E.‘s lawyer advised him not to appeal this decision because it was clear that ROSA’s legislation and courts do not afford due process of law for the protection of his rights as a Kneeler.

18. On 27 March 2019, N.E. submitted his case to the Amerigo Human Rights Commission, reiterating the above-mentioned claims at the regional level. On 2 October 2019, the Amerigo Human Rights Commission held the application inadmissible since not all remedies under domestic law had been pursued and exhausted by N.E. in accordance with generally recognised principles of international law.

19. On 10 October 2019, N.E. submitted an individual communication to the UN Human Rights Committee, again raising the above-mentioned claims now at the global level. The Committee is scheduled to discuss the case on 16 June 2020.

20. Please prepare written memorials of behalf of N.E. (applicant) and the Government of ROSA (respondent) addressing both admissibility and merits.