Like what you've read?

On Line Opinion is the only Australian site where you get all sides of the story. We don't
charge, but we need your support. Here�s how you can help.

  • Advertise

    We have a monthly audience of 70,000 and advertising packages from $200 a month.

  • Volunteer

    We always need commissioning editors and sub-editors.

  • Contribute

    Got something to say? Submit an essay.


 The National Forum   Donate   Your Account   On Line Opinion   Forum   Blogs   Polling   About   
On Line Opinion logo ON LINE OPINION - Australia's e-journal of social and political debate

Subscribe!
Subscribe





On Line Opinion is a not-for-profit publication and relies on the generosity of its sponsors, editors and contributors. If you would like to help, contact us.
___________

Syndicate
RSS/XML


RSS 2.0

European Court of Human Rights legitimises unique speech privilege demanded by Islam

By Laurence Maher - posted Tuesday, 9 July 2019


In October 2018, the European Court of Human Rights (ECHR) in Strasbourg and the Supreme Court of Pakistan (SCP) in Islamabad decided controversies affecting public discussion of the unique politico-religious claims that constitute Islam (encapsulated in the Shahada), namely, that The Koran recites the direct word of The Almighty, and that it is the final, complete and unalterable revealed truth by which the lives of all persons in all societies on Earth are to be governed in preparation for eternal life hereafter.

The institutional contrast between the two courts could not be more glaring. The ECHR is part of the secular democratic framework of the Council of Europe. The SCP is an integral part of the theocratic polity that is the Islamic Republic of Pakistan. The Constitution of Pakistan contains a preamble which commences "Whereas sovereignty over the entire Universe belongs to Allah alone [and]... Whereas the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam, shall be fully observed" (my underlining). The SCP also reminds the world of Islam's fundamental claim that the Prophet possesses the highest rank and status of all creatures of Allah.

The ECHR case, ES v Austria (the final judgment was issued on 18 March 2019) concerned an Austrian citizen who had failed in an appeal in Austria against her conviction on a charge of publicly disparaging an object of veneration of a domestic church or religious society, namely Muhammad, the Prophet of Islam, in a manner capable of arousing justified indignation contrary to Article 188 of the Austrian Code. The ECHR rejected her claim that the conviction infringed her right to freedom of expression under Article 10.1 of the (Rome) Convention for the Protection of Human Rights and Fundamental Freedoms (1950) having determined that the impugned Austrian law was, within the meaning of Article 10.2 of the Convention, a justified restriction on free speech because it safeguards religious peace and protects religious feelings.

Advertisement

In Bibi v State of Pakistan, the SCP allowed an appeal by a Pakistani Christian woman against her 2010 conviction for blasphemy (a crime punishable by death) arising from a dispute between a group of villagers about the refusal to accept water which had been handled by a Christian as a result of which, the court noted, "bitter words were exchanged". The appeal succeeded only because the SCP decided that the evidence relied upon by the prosecution had not proved the charge beyond a reasonable doubt.

Public outrage with the SCP decision led to street disturbances in which protesters demanded that Asia Bibi be put to death. Such is the nature of one form of violent sectarian expression of religious fanaticism nowadays in parts of the globe.

The logic of Islamic blasphemy law as expounded by the SCP is that "Muslims all over the world have immense love, admiration and affection for the Prophet more than their own lives or the lives of their parents and children." It follows from the sanctity of the Prophet that any attack on him merits the death penalty.

Not to put too fine a point on it, those who believe in The Koran, cannot expect that book's politico-religious supremacism to be free of close and critical inquiry in any society which purports to be a democracy.

Despite the inherent incompatibility of theocracy and secular democracy, there is, regrettably, a substantive connection between the two decisions inasmuch as the effect of the ECHR decision is to confer a measure of legitimacy on Islam's unique supremacist demand that its politico-religious ideas are not to be defamed in the nations which are signatories to the Rome Convention.

In Australia, the religious freedom which is given substantial but not complete protection in s 116 of the Commonwealth Constitution extends to the freedom to have no religion and, further, to regard all religion as nonsense on stilts and to say so publicly, no matter how outraged any individual believer or group of believers may feel that their most cherished beliefs have been insulted.

Advertisement

In October and November 2009, ES (of ES v Austria) held two public seminars in Vienna entitled "Basic Information on Islam". The gist of the ECHR's English translation of the offending statements expressed in the German language by ES was as follows: The Prophet of Islam is regarded as the ideal man, the perfect human, and the perfect Muslim, and thus the highest commandment for a male Muslim is to imitate the Prophet, and to live his life. However - so ES said - that produced a conflict with contemporary Austrian social standards and laws because the prophet was a warlord, he had many women, and because he apparently engaged in sexual activities with children which nowadays are described as paedophilia.

One of the seminar participants, an unidentified undercover journalist, felt compelled to report ES to the State Prosecutor's office and that led to her prosecution and conviction in 2011 for inciting hatred contrary to Article 283 of the Austrian Criminal Code, for which crime she was fined 450 Euros.

The reasons for the ECHR's decision do not fully expose the underlying evidentiary basis or reasoning for its interpretation and application of the Rome Convention. The main deficiencies can be summarised as follows:

  • The ECHR decision is replete with Aesopian formulations such as "serious/objective debate", "gratuitously offensive to other people's faith", "comments merely provocative or intended as an abusive attack", "legitimate aim of a prosecution", "merely (regulating) the manner in which statements could be made", "acceptable criticism", "objective discussion", and "justified indignation". What they mean is anybody's guess;
  • The absence of a clearly ascertainable standard of legal liability (criminal or civil) is the inherent vice of all tendency-based speech prohibitions. Not surprisingly, they have long been a favourite weapon of all existing or would-be censors;
  • There is no consideration of the unique politico-legal claims embodied in The Koran. The unequivocal contention of votaries of Islam in Australia that the contents of The Koran are not to be called into question in any way was made clear in the intemperate and insulting public responses, including those of the Grand Mufti of Australia, to the sentencing remarks of Justice Kagan of the Supreme Court of New South Wales in the recent terrorism case, R v Bayda and Namoa;
  • The absence of any acknowledgement that, insofar as compelled "respect" for religious ideas has any role to play in the operation of the Rome Convention, it can only extend to respect for the right to hold and express religious ideas, not to compel acceptance of the content of such ideas. In a secular democracy, it should be obvious that there is nothing special about Islam. Like all other religions old and new, it has to put up with all the "insults" that every one of those other religions has to endure. In the case of Christianity, this can be illustrated, by the decision of Justice Harper of the Supreme Court of Victoria in Pell v Council of Trustees of the National Gallery of Victoria (the "Piss Christ case") (1997). And, in the case of Islam, Justice Nettle (then also of the Supreme Court of Victoria) in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc(2006)made the following unimpeachable observation which is likely to be held by many Australians: "And there are anynumber of persons whomay despise each other's faiths and yet bear each other no ill will. I dare say, for example, that there would be a large number of people who would despise Pastor Scot's perception of Christianity and yet not dream of hating him or be inclined to any of the other stipulated emotions."
  • The ECHR's unparticularised passing mention of the "particularly sensitive nature" of the case and the need "to have religious peace preserved in Austrian society" is highly suggestive of what in US First Amendment jurisprudence is called "the heckler's veto", and more particularly that there is a well-founded apprehension that indignant votaries of The Koran will take to the streets and engage in violence to discourage or suppress that which offends them (as happened, for example, in central Sydney in September 2012, including the despicable use of children to urge people to behead anyone who insults the Prophet);
  • The ECHR emphasised that in making controversial statements regarding events which occurred 14 centuries ago, ES had failed to deal the historical background "neutrally" and thus ES had not contributed to a debate of general interest because she had made her allegation primarily in order to defame Muhammad. However, again, this is what believers of any faith have to accept in a secular democracy;
  • The proposition that courts in the 21st century should be adjudicating the accuracy of disputed claims about what may or may not have happened, including allegedly false statements attributing paedophile behaviour to the Prophet of Islam, 1,400 years ago, or that contemporary discussion about child marriages, the rights of women or homosexuals should be limited out of "respect" for such ancient sectarian scriptural standards and sensitivities is antithetical to the rights of the individual in a secular democracy.

The obscurantism of the ECRC decision is open to the interpretation that the Court is of the view that the preferred way to foster "religious peace" (whatever that means) and to soothe the unique sectarian sensitivities of the followers of the Prophet is to pander to the hotheads among them who (to borrow the words of the SCP) being infuriated to an intolerable limit by anything which in any way attacks any aspect of the Prophet's sacred life, take to the streets and object violently to any critical analysis of the contents of The Koran or the Prophet. This censorious approach is bound to produce sectarian disorder.

  1. Pages:
  2. 1
  3. 2
  4. All

Article edited by Margaret-Ann Williams.
If you'd like to be a volunteer editor too, click here.



Discuss in our Forums

See what other readers are saying about this article!

Click here to read & post comments.

14 posts so far.

Share this:
reddit this reddit thisbookmark with del.icio.us Del.icio.usdigg thisseed newsvineSeed NewsvineStumbleUpon StumbleUponsubmit to propellerkwoff it

About the Author

L W Maher is a Melbourne barrister with a special interest in defamation and other free speech-related disputes. He has written extensively on Australian Cold War legal history.

Other articles by this Author

All articles by Laurence Maher

Creative Commons LicenseThis work is licensed under a Creative Commons License.

Photo of Laurence Maher
Article Tools
Comment 14 comments
Print Printable version
Subscribe Subscribe
Email Email a friend
Advertisement

About Us Search Discuss Feedback Legals Privacy