Overview

In determining a project in which the RFGTF might get involved, I kept several objectives in mind.  They include:

1. The project should be one which will encourage, equip and enable Christian lawyers around the world to use their legal skills to serve Christ by bringing about the biggest possible improvement in religious freedom at the lowest possible cost.

2. In carrying out this objective, I considered several other objectives.
   
   1. The project should be one which will encourage participation by lawyers in countries all around the world but for which lawyers in AA can establish the model for other regions.
   2. The project should be one which can be carried out by Christian lawyers  mostly on a voluntary basis;
   3. The project should be one which will “make a difference” to as large a group of people as possible;
   4. The project should be affordable, generally because it is low cost, but also possibly because funding is available for it;
   5. To the extent possible, the project should build on experiences Advocates’  lawyers and others have already accumulated; and
   6. If feasible, the project should incorporate an effort to bring about the desired result without litigation, always keeping in mind the Christian’s responsibility to do justice with mercy and compassion.

 PROPOSED PROJECT AND RATIONALE FOR IT

In short,  I recommend that the RFGTF focus on assisting Advocates lawyers in countries in which religious freedoms are limited to think up and implement  "creative litigation strategies” to accomplish important religious freedom objectives. 

One example of such a strategy might be to bring class actions (or their equivalent) on behalf of persecuted Christians or other religious minorities against organizations of religious zealots who have fomented the persecution.  For example, in India, a class action might be initiated on behalf of the persecuted Christians in Orissa Province against the Hindu organizations that have fomented the murders of Christians and the burning of over four thousand homes.  Such a strategy might provide a way around the problem of not being able to get local officials to act against the perpetrators of the violence.  If any discovery procedures are available in India, they might be used to compel the production of documents and the giving of testimony which might be devastating to the organizations perpetrating the violence, and the threat of a civil judgment in an amount which would compensate the persecuted Christians for their losses could have a tremendous impact in discouraging the fomenting of persecution by those groups in the future.

I believe a second strategy, which is the one I suggest the RFGTF pursue (or at least pursue first), could be especially effective.  The concept would be to use declaratory judgment actions and/or actions seeking injunctive relief (or the local equivalent) to invalidate or limit the application of various statutes, rules or regulations ("laws") which preclude or restrict the exercise of religious freedom in many countries because those laws conflict with:

1. Constitutional provisions in those countries that guaranty religious freedom; and/or

2. Provisions of treaties, charters and/or other organizational documents of various international organizations of which those countries are members, such as the United Nations, the European Union, or possibly the World Trade Organization. 

The plan would be to work with our lawyers in various countries to identify the repressive laws in their countries that might be subject to challenge under their national constitutions in their constitutional courts (or other courts having jurisdiction over such matters); to identify provisions in the constitutions of those countries and in charters and other governing documents of international organizations of which they are members containing religious freedom guarantees that might invalidate those laws; to develop petitions, briefs, research memoranda, etc. which might be useful in challenging such laws; and then to support the lawyers in those countries in prosecuting cases seeking to invalidate those laws. The litigation could challenge some laws on their face, and could challenge others in the way they are applied.

I expect that there are few things the RFGTF could do for which it would get more "bang for its buck" (a very American term I hope will be understood by all). Also, the project would focus on an area that is central to the RFGTF’s purposes. The RFGTF may not only be the best, but it may be the only, player on the field in a position to do all this.  I also think that this process could be encouraged, supervised and implemented by volunteers, and that it could involve our constituents in many of our regions and countries, Furthermore, I expect that, if funds could be found to finance any project, it might be this one. The project also appears to me to have little downside.

Again, using  India as an example of a country in which such an approach might be applied, litigation could be initiated to challenge the validity of the anti-conversion laws promulgated in a number of (I believe eight) states in that country in which the Hindu majority influence is very strong.  These laws, it would be argued, conflict with the strong religious freedom provisions of the Indian Constitution as well as the human rights and religious freedom provisions of treaties and the organizational documents of international organizations of which India is a member.

Another example is a case which I believe has now been filed in Kyrgyzstan.  I will discuss it in the next section of this memorandum.

APPLICABLE  AI  EXPERIENCE

I believe that AI already has quite a bit of experience in this area that should be helpful in permitting us to pursue the proposed course of action. 

As I recall, Ann Buwalda has been involved in taking on such matters in the United Nations.  Sam Ericsson and others (especially our Swedish friends) were involved in the Ake Green case in which, I believe, the validity of the law permitting the prosecution of Pastor Green was challenged as being inconsistent with the religious freedom guarantees of the Swedish constitution and the charter of the European Union and found to violate the latter. Latcho Popov recently successfully challenged the validity (at least as it was applied) of the Bulgarian law under which a large number of Orthodox priests had their churches and other property confiscated.

 There is also quite a bit of activity challenging the validity of repressive anti-religion laws under way in Central Asia.  As you may know, the president of Kazakhstan recently accepted the decision of that country's Constitutional Council invalidating parts of the country's new and oppressive law on religion.  But most significantly, as I believe you also know, Advocates lawyers in Kyrgyzstan have prepared (and I believe recently filed) a suit to challenge a similar law there.  This is the case in which Syd Hume is very much involved and I believe Matt Bristol and Ann Buwalda may have also provided assistance.  I believe that Syd and Matt, and maybe Ann, have been assisting counsel in that case in preparing the petition filed in Kyrgyzstan's Constitutional Court seeking to invalidate Kyrgyzstan’s recently enacted law on the grounds that it violates both the Kyrgyzstan constitution and covenants to which Kyrgyzstan has agreed under treaties and/or other international documents.  It is the kind of lawsuit in which I am recommending that the RFGTF  get involved.  Gregory Vijayendran described it in a recent Advocates Asia newsletter as follows:

Kyrgyzstan. Finally, usually reliable sources from Kyrgyzstan request prayer support for a challenge to a recently passed restrictive law on "freedom of religion and religious organisations". Asel, who has been a regular participant in Advocates Asia Conferences, has been instructed by a broad cross section of locally registered churches to bring a legal challenge to the constitutional validity of this law. A Petition is in the final stages of review prior to lodgement with the Constitutional Court.  The outcome of this challenge is extremely important for continued freedom of religion and also for the future of the Rule of Law in Kyrgyzstan.  The decision could have a major impact on both the future direction of the country and the role of expatriates working there.

Syd has already contacted AI about the case and, in a responsive email message, Sam Casey outlined the kind of laws which I expect exist in many countries and will help provide a basis for bringing such cases in them.  He pointed out:

As you can find in Paragraph 3 of Article 12 of the attached Constitution of the Kyrgyz Republic (adopted by referendum on October 12, 2007):

“3. International treaties and agreements to which the Kyrgyz Republic is a party and other universally accepted principles and norms of international law shall be a constituent part of the legislation of the Kyrgyz Republic.”

RECOMMENDATIONS FOR IMPLEMENTING THE PLAN

I believe that, if you approve this plan, AA should be integrally involved in implementing it.  However, it is an ambitious plan so we also have the problem that all of you and our other lawyers in Asia who are serving only in a volunteer capacity may need help in implementing it. Nevertheless, I am hoping that some of you and others in our Asian organization will be able to take the lead on the project and that we can provide any help you need from here.  Sam Casey is anxious to be involved and has the advantage of being paid by AI for the time he works on it (although he has many other responsibilities as well).  He also has been in touch with others who seem anxious to help, including Blake Puckett, a protégé of Matt Bristol’s who appears to be very competent.  I have been working on the plan I am presenting to you with the other members of the AI executive committee, Mat Bristol, Ann Buwalda and Tim Klenk.   If there are ways they can be helpful, they would also like to be involved.  As you know, Matt has a very broad background in international law and is more familiar with Central Asia than almost anyone else in the Advocates organization. Ann has a tremendous amount of knowledge about religious freedom issues and the persecuted church, especially in Asia, and Tim has over forty years of experience in complex litigation, including religious freedom cases.  As you know, I also have been involved for many years in religious freedom efforts such as the one I am proposing and I also would like to be involved.  Needless to say, we also want to keep Sam Ericsson in the loop.

If you think the general plan I propose is workable and the direction you would like to go, you might want to give some thought to the steps you think should be taken to implement it and by whom.  Here are my suggestions;

1. Get Involved in the Kyrgyzstan Case

The Kyrgyzstan case seems to be heating up quickly.  I think it would be helpful for Min Choon and any of the other members of the AA board who are interested to get up to date on the case as quickly as possible and keep track of it as it proceeds. I think you all need to decide in what other ways, if any, AA and you would like to be involved in that case and coordinate with Syd.

2. Collect Available Information About  Former or Presently Existing Cases

Matt Bristol tells me that the Kyrgyzstan case involves a “cookie-cutter” law based on the new Russian law on religion that has been adopted by a number of other former Soviet bloc countries. If this is the case, it may be that much of what Syd and the other lawyers in Kyrgyzstan do there could be passed on to our lawyers in some of those other countries. We also should be able to get access to the pleadings, briefs, research, etc. that Latcho Popov used in challenging the validity (at least as it was applied) of the Bulgarian law that permitted the old guard Orthodox church in Bulgaria to attack and attempt to destroy the newer Orthodox churches.  The pleadings, briefs, research, etc., in the Ake Green case in Sweden ought to also be available to us.  I expect that we may locate other cases in which helpful documents might apply, although some translating may need to be done in these cases.  We can also check with Robin David and our other lawyers in India to see if they might have anything helpful, and Ann might have  pleadings and other papers from her efforts in the UN and elsewhere.  Also, Baasankhuu and Nomiko might have something in Mongolia and I expect that, if we look into it, some helpful research may have been done by students or professors at Handong.  Students there might also be willing to help us with some of the research and other work that needs to be done on this project.   We can also explore other possible sources of information. I think one of the first things we should do is to start to pull these things together and file them in a way that might permit us to provide useful documents to our lawyers in other countries.  We have two interns working at the AI office this summer. Perhaps they might be able to help on this phase of the project.

3. Determine Laws That Are Most Onerous And Most Susceptible To Attack

Another thing we would need to do is to determine which laws we think we might want to encourage our national lawyers to challenge.  As I see it, there will be two factors that will most influence this determination.  First, how onerous the laws are (how significantly they impact religious freedom).  We would want to determine which laws in a country create the biggest problem for Christians and other religious minorities and how they compare (in terms of the difficulties they create for religious people) to the laws in other countries we are considering challenging.  I see us approaching this in a few ways:

1. Some basic research is bound to turn up numerous articles about such laws; 

2. We can get the word out through the Global Council and our regions asking our lawyers on the ground in various countries around the world to inform us about such laws in their countries and about the impact they are having; 

3. I think it would be simple to contact various missions, religious NGOs, and other Christian organizations that are impacted by (or work with nationals who are impacted by) such laws asking them to identify the most problematic laws and their effect; and
4. Perhaps the US Commission on International Religious Freedom (“USCIRF”) and other organizations interested in religious freedom such as the Alliance Defense Fund (“ADF”) might also be willing to help. In any event, I would like to see if we could get that Commission, which has already expressed concern about the Central Asian laws, involved at an early stage.

The second factor in determining what laws we might want to encourage be made the subject of litigation is what our chances of success might be.  For example, even if we determined that the most onerous laws are in North Korea, we might also conclude that our chances of successfully challenging the validity of those laws or of getting North Korea to act on any determination that they are invalid, might be close to nonexistent.  Another consideration in determining the likelihood of success would definitely be the strength of our legal cases.

Still another issue to be considered might be the strength of our “troops on the ground” in the country involved.  For example, we have no one I know of in North Korea who could file a lawsuit in that country no matter how strong our case might be.  But we have some pretty strong soldiers in our armies in India, Sri Lanka and Malaysia. 

Finally, we would want to count the cost.  What would be the cost of prosecuting such a case and what funding might be available to do it?  Is the law in question one we could attack on its face or would such an attack require extensive fact finding, discovery (if it is available in the country), and the expensive proof of facts?

In short, we would have to start collecting information about such laws (including copies and translations of those laws) and the other information (about the application of the laws, their impact, the availability of capable lawyers, etc.) which would be relevant to a determination of which laws should be made the subject of litigation.

4. Determine What Laws Might Be Used To Support Our Claims of Invalidity  

The remaining initial step I think we could take would be to determine what laws might be used to support our claims that the "invalid laws" are in fact invalid.  Here, we need to consider the two kinds of laws I have discussed. First, there are internal laws (usually, I would expect, constitutional guarantees of religious freedom) which would provide a basis for a claim that the law in question is invalid under the constitution of the country in which that law exists.  In addition to the constitutional guarantees themselves, we would want to find out about any interpretations or applications of the law in question. Second, there are the treaties to which the country might be a party and provisions of charters and other legislative-type documents (as well as membership agreements, etc.) of documents of international organizations (the UN, the EU, the World Bank, the World Trade Organization, etc.) of which the country might be a member.

Here, I would think, the first step would be to find out from our lawyers in the country about any such provisions of which they are aware.   But I think some research might also help.  We would need to identify each international organization which has religious liberty requirements and determine what those requirements are.  We would also need to look at requirements of our own State Department for countries receiving US aid, and ascertain other sources of religious liberty mandates.  Again, the interns working for AI this summer might be able to work on this.  In addition, we may find that a lot of research on the subject has already been done by others. Also, Tim Klenk mentioned that his former law firm might be able to help on a pro bono basis.

CONCLUSION

I suggest that the RFGTF seriously consider adopting the plan I have described for encouraging, equipping and enabling Advocates lawyers around the world to get involved in creative litigation strategies to preserve the rights of Christians and persons of other minority faiths to freely exercise their religious beliefs, including a program to contest the validity of laws that deny or restrict those rights, and that the RFGTF also consider implementing this program by following the steps I have described. But I would first like to be sure that this is a program that AA feels good about and desires to put into effect.  Please let me know when you have had a chance to review the proposed program what you would like to do.

A special thanks to Lynn Buzzard for his work on this document