Public nuisance
and ‘Adzan’
Harison Citrawan ; Working at the Human Rights Research and
Development Agency (Balitbang HAM), Law and Human Rights Ministry
SUMBER : JAKARTA
POST, 11 Mei 2012
The Vice President’s
criticism of the volume of the adzan, a call for prayer from a mosque, has
reaped public controversy.
Such criticism followed concerns that the volume of a mosque’s loudspeakers might potentially cause public nuisance.
The criticism, therefore, implies that the state ought to consider a feasible policy that will create a conducive and quiet environment, without barring our fellow Muslims from exercising their religious obligations.
From a human-rights standpoint, the state needs to strike a fair balance between the protection of religious exercise and the protection of private and family life from noisy disturbances.
First, the human rights law preserves one’s right to practice his or her religion. Article 18 of the International Covenant on Civil and Political Rights states that: “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or embrace a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”
However, such a freedom, as regulated under paragraph 3 of the article, “may be subject only to
such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” It is then quite clear that our Muslim brothers and sisters have the right to hold a certain practice of faith, including the chanting of the adzan, which has been in place in society for centuries.
However, it is also undeniable that the structure — as well as the paradigm — of society changes with time. Religious tolerance and respect for other’s rights are currently a major campaign around the country. Such a paradigm is therefore needed as we are struggling to eliminate religious and sectarian conflicts.
In relation to the discussion at hand, one should also bear in mind that every individual has the right to a private and family life. Article 17 of the ICCPR enshrines that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation.”
But, how could the right to a private and family life be related to religious practice? A view from the European Court of Human Rights below might give us some insight.
In the case of Hatton and others vs the United Kingdom (2003), the applicants who lived around Heathrow Airport alleged that government policy on night flights gave rise to a violation of their rights under Article 8 of the European Convention on Human Rights, which protects the right to a private and family life.
To be more specific, it is interesting to note the court’s argument regarding the interpretative nature of that human rights convention, in which it stated that: “The convention is a living instrument, to be interpreted in the light of present-day conditions.”
This “evolutive” interpretation by the commission and the court of various convention requirements has been considered “progressive”, in the sense that they have gradually extended and raised the level of protection afforded to the rights and freedoms guaranteed by the convention to develop the “European public order”.
Subsequently, in relation to the interpretation of a private and family life, the court furthers the argument by stating: “In the field of environmental human rights, which was practically unknown in 1950, the commission and the court have increasingly taken the view that Article 8 embraces the right to a healthy environment, and therefore to protect against pollution and nuisances caused by harmful chemicals, offensive smells, agents which precipitate respiratory ailments, noise and so on.”
The legal reasoning argued by the European Court of Human Rights may serve us logic in human rights interpretation. In its broad sense, the right to a private and family life shall cover one’s right to a healthy environment includes a protection against noise disturbances.
It is to my understanding that the criticism voiced by the Vice President over the loudness of the adzan is grounded in this sense of a private and family life. The state’s interference with freedom to exercise religious practices thus would be justified if such practices well-foundedly discomfort the neighborhood around the place of worship.
The sense of subjectivity is extremely high to this point, however, in line with the dissenting opinion made by Judges Costa, Ress, Türmen, Zupani and Steiner in Hatton Case above: “One of the important functions of human rights protection is to protect ‘small minorities’ whose ‘subjective element’ makes them different from the majority.”
Certainly, it is a new challenge for the government, as the state’s duty to strike a fair balance between individual rights and public nuisance — as a public interest — should be initially justified on scientific study and investigation.
The guidelines for community noise published by the World Health Organization (1999) might be a good starting point to manage the two conflicting interests, between the freedom to exercise religious practice and the right to a private and family life. ●
Such criticism followed concerns that the volume of a mosque’s loudspeakers might potentially cause public nuisance.
The criticism, therefore, implies that the state ought to consider a feasible policy that will create a conducive and quiet environment, without barring our fellow Muslims from exercising their religious obligations.
From a human-rights standpoint, the state needs to strike a fair balance between the protection of religious exercise and the protection of private and family life from noisy disturbances.
First, the human rights law preserves one’s right to practice his or her religion. Article 18 of the International Covenant on Civil and Political Rights states that: “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or embrace a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”
However, such a freedom, as regulated under paragraph 3 of the article, “may be subject only to
such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” It is then quite clear that our Muslim brothers and sisters have the right to hold a certain practice of faith, including the chanting of the adzan, which has been in place in society for centuries.
However, it is also undeniable that the structure — as well as the paradigm — of society changes with time. Religious tolerance and respect for other’s rights are currently a major campaign around the country. Such a paradigm is therefore needed as we are struggling to eliminate religious and sectarian conflicts.
In relation to the discussion at hand, one should also bear in mind that every individual has the right to a private and family life. Article 17 of the ICCPR enshrines that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation.”
But, how could the right to a private and family life be related to religious practice? A view from the European Court of Human Rights below might give us some insight.
In the case of Hatton and others vs the United Kingdom (2003), the applicants who lived around Heathrow Airport alleged that government policy on night flights gave rise to a violation of their rights under Article 8 of the European Convention on Human Rights, which protects the right to a private and family life.
To be more specific, it is interesting to note the court’s argument regarding the interpretative nature of that human rights convention, in which it stated that: “The convention is a living instrument, to be interpreted in the light of present-day conditions.”
This “evolutive” interpretation by the commission and the court of various convention requirements has been considered “progressive”, in the sense that they have gradually extended and raised the level of protection afforded to the rights and freedoms guaranteed by the convention to develop the “European public order”.
Subsequently, in relation to the interpretation of a private and family life, the court furthers the argument by stating: “In the field of environmental human rights, which was practically unknown in 1950, the commission and the court have increasingly taken the view that Article 8 embraces the right to a healthy environment, and therefore to protect against pollution and nuisances caused by harmful chemicals, offensive smells, agents which precipitate respiratory ailments, noise and so on.”
The legal reasoning argued by the European Court of Human Rights may serve us logic in human rights interpretation. In its broad sense, the right to a private and family life shall cover one’s right to a healthy environment includes a protection against noise disturbances.
It is to my understanding that the criticism voiced by the Vice President over the loudness of the adzan is grounded in this sense of a private and family life. The state’s interference with freedom to exercise religious practices thus would be justified if such practices well-foundedly discomfort the neighborhood around the place of worship.
The sense of subjectivity is extremely high to this point, however, in line with the dissenting opinion made by Judges Costa, Ress, Türmen, Zupani and Steiner in Hatton Case above: “One of the important functions of human rights protection is to protect ‘small minorities’ whose ‘subjective element’ makes them different from the majority.”
Certainly, it is a new challenge for the government, as the state’s duty to strike a fair balance between individual rights and public nuisance — as a public interest — should be initially justified on scientific study and investigation.
The guidelines for community noise published by the World Health Organization (1999) might be a good starting point to manage the two conflicting interests, between the freedom to exercise religious practice and the right to a private and family life. ●
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