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Defamation under freedom of expression

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Abdul Rasool |

The European Court of Human Rights (ECHR) made history by rejecting the plea by an Austrian woman that her conviction for blaspheming the Holy Prophet (SAW) breached her freedom of speech. The court ruled that defaming the Prophet Mohammad “goes beyond permissible limits of an objective debate and could stir up prejudice and put at risk religious peace and thus exceeds the permissible limits of freedom of expression…” The court further maintained that Austrian courts had “carefully balanced her right to freedom of expression with the right of others to have their religious feelings protected”.

The woman in her late 40S, identified only as ES, uttered some profanities with regard to Prophet Mohammad and Islam during two seminars in 2009. A Vienna court convicted her in 2011 of disparaging religious doctrines, ordering her to pay a $547 fine plus cost of court proceedings. The ruling was later upheld by Austrian appellate courts. The ECHR said that the Austrian court’s decision “served the legitimate aim of preserving religious peace”.

The European Union, and international human rights commission in order to resolve this highly sensitive issue should exert their clout to inhibit and discourage such practices in the future.

This is indubitably a landmark verdict that will for sure give a colossal setback to those anti-Islam forces who leave no stone unturned to denigrate the Prophet Mohammad (SAW) and malign Islam under the pretext of freedom of expression. Nearly two months back, the malicious attempt by anti-Islam Dutch law-maker Geert Wilders to ridicule Prophet Mohammad (SAW) through making blasphemous and defamatory caricatures had also ignited an unmanageable ire and protests around the world.

He was also poised to do so under the banner of free speech. But due to escalating pressure from whole the world exclusively from Pakistan, he had to cancel his planned cartoon competition. Unfortunately, Islam and its founder have been subjected to such attacks many times. Previously, in 2005, the Danish newspaper Jyllands-Posten provoked the protests across the world and riots in many Muslim countries by publishing several cartoons of Mohammad (peace be upon him), including one depicting the prophet with a bomb in his turban.

Read more: Freedom of expression or National interests ?

And, in 2015 another French satirical magazine Charlie Hebdo also offended the millions of Muslims by printing the caricatures of the holy prophet (peace be upon him). This is all happening under the pretext of freedom of speech.” Freedom of speech is threatened, “MR, Wilders said, “we should never accept that. Freedom of speech is our most important freedom.” Wilders believed that the right to freedom of expression was being undermined by the Muslims.

He claimed that Islam is a totalitarian political ideology rather than a religion which is altogether a wrong notion and a fallacy based on his bias and prejudice against Islam. However, in fact, the issue is not one of curtailing the right to freedom of expression since this a right that is not absolute, nor anyone can claim so. Rights are reciprocal and their enforcement is interdependent on other fundamental rights.  “I also respect the right of freedom of speech.”

The ruling was later upheld by Austrian appellate courts. The ECHR said that the Austrian court’s decision “served the legitimate aim of preserving religious peace”.

Remarked Kofi Annan the then Secretary-General of U.N “but of course freedom of speech is never absolute. It entails responsibility and judgment”. Every country that claims to be a part of the civilized and democratic world has put its own limitations on freedom of expression in order to regulate a certain level of human behavior and thereby protect the dignity of their moral, religious, social, and societal values. The free propagation of child pornography, for instance, or the stimulation of religious or racial antipathy in the media, is banned in many countries.

Further, in many European countries like Australia, Belgium, France, Germany, Poland, Romania, Switzerland, and Israel; it is a crime to deny holocaust. Moreover, in many countries it is illegal or at least discouraged to degrade or abuse the constitution or certain national institutions such as army, courts of law, or parliament. Contempt of the court also exists all over the world which severely limits the freedom of speech, violation of which can lead to imprisonment.

Read more: Freedom of speech and blasphemous caricatures – Dr. Zeeshan Khan

If the right to freedom of expression is absolute, why are there no objections to laws such these? Interestingly, some U.S States do have blasphemy laws in their statute books. The U.S state of Massachusetts General Laws (chapter 272 section 36) states:

“Whoever willfully blasphemes the holy name of God by denying, cursing or contumeliously reproaching God, his creation, government or final judging of the world, or by cursing or contumeliously reproaching Jesus Christ or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail…”

Rights are reciprocal and their enforcement is interdependent on other fundamental rights.  “I also respect the right of freedom of speech.”

In addition, when the Italian Prime Minister Silvio Berlusconi compared himself to Jesus Christ, the Vatican including Italian politicians reacted to his statement with colossal shock and disgust. A senior official of Catholic Church added, “I know he will say he was speaking in jest but such things should not be spoken even in jest”.

Besides, Jyllands-Posten, the Danish newspaper that published the caricatures of the prophet Mohammad (SAW) reportedly rejected cartoons mocking at Jesus Christ because they would provoke an outcry and proudly declared it would “in no circumstances publish holocaust cartoons”. It is indubitably a blatant manifestation of sheer duplicity on part of the newspaper and a reflection of its bias towards Islam and its founder.

Read more: Freedom of Press in Pakistan under threat from multiple fronts

Islam doesn’t oppose the freedom of expression. However, to ridicule and insult the sacred elements in the name of freedom of speech can under no circumstances be condoned. The similar views were expressed by Pope Francis while speaking about the Paris attacks in (January 2015). He said: “there are so many people who speak badly about religions or other religions, who make fun of them, who make a game out of the religions of others. They are provocateurs.”

Responding to the publication of blasphemous caricatures of Prophet Mohammad (peace be upon him) by Jyllands-Posten; some dignitaries not only condemned the publication but also emphasized the restriction of the right of freedom of speech too. Jack Straw, British foreign secretary remarked: “there is freedom of speech, we all respect that. But there is not any obligation to insult or to be gratuitously inflammatory. I believe that the republication of these cartoons has been insulting; it has been insensitive; it has been disrespectful and it has been wrong”.

Contempt of the court also exists all over the world which severely limits the freedom of speech, violation of which can lead to imprisonment.

The U.S state department condemned: “these cartoons are indeed offensive to the belief of Muslims.” Spokesman, Kurtis commented: “We all fully respect freedom of the press and expression but it must be coupled with press responsibility. Inciting religious or ethnic hatred in this manner is not acceptable”.

Inter alia, Islam too teaches the principles of tolerance and co-existence, to live and let live. It discourages the defamation of other Gods and religious symbols teaching respect to mankind (Quran, al-anam, 6:108).

Read more: Nawaz’s new found love for ‘freedom of speech’

To sum it all, defamation of sacred elements under the pretext of freedom of expression cannot be justified. Therefore, the U.N, the European Union, and international human rights commission in order to resolve this highly sensitive issue should exert their clout to inhibit and discourage such practices in the future.

The feelings of more than a billion peace-loving Muslims should not be hurt by blaspheming the Prophet (SAW) and Islam. Last but not least, such blasphemous attempts also give justification to terrorists to retaliate taking it as an alibi. Therefore, if this issue is not tackled seriously, it could miserably scupper the war against terrorism and thereby jeopardize the peace of the whole world.

Advocate Abdul Rasool Syed is a lawyer by profession and is based in Quetta, Baluchistan. He also has MBA from IBA Karachi. He is passionate about writing and contributes to various publications including Daily Times and Frontier Post. The views expressed in this article are author’s own and do not necessarily reflect the editorial policy of Global Village Space.