By Prabhat Singh:
Unrelenting and unrepentant, the draconian blasphemy laws have struck again. This time in Egypt, where prominent public figures have been convicted for blasphemy. These convictions, along with the still hot embers of the conflagration over the movie Innocence of Muslims, have reignited the debate over where to draw the fine line between freedom of expression and defamation of religion. Liberals point out that the former is the most sacrosanct human right and a prerequisite to holistic development, whereas conservatives are quick to highlight that one person’s freedom ends where another’s begins.
This agenda has been intensely debated in the UN too. Each year since 1999, the OIC (Organization of Islamic Countries) has presented resolutions highlighting Islamophobia and condemning “defamation of religions”, in UNHRC and General Assembly. These resolutions have been passed by both these committees, with EU and US having voted against every such resolution.
It would be worthwhile to get a holistic perspective on the reasons behind the glaring dichotomy over this issue between the Western bloc and OIC. Post 9/11, Islam has come under severe, often completely unjustified scrutiny. Muslims are stereotyped as violators of peace, with innocents being singled out at airports for ‘routine checks’. Another major trigger that prompted OIC to present these resolutions was the Danish Cartoon controversy in 2005. On the other hand, EU and US have excoriated any international instrument calling for censuring defamation of religions on a plethora of grounds, the most cogent being that freedom of expression is the most basic and essential of human rights and cannot be taken away unless the severity of offence is really grave.
Governments of Iran, Pakistan, Egypt etc. have been routinely accused by international community of using their ill defined blasphemy laws as tools for punishing political dissenters and minorities. A prominent example is the death penalty awarded to Asia Bibi, a Pakistani Christian, over “alleged” remarks against Prophet Mohammed. It is noteworthy that Salman Taseer and Shabaz Batti were assassinated owing to their astute stand against blasphemy laws. Iran has been accused of using Moharebh to silence political opponents. OIC has also been accused of using blasphemy laws as decoy to restrict online freedom, since with governments coming down on free speech ever more harshly, internet has proved to be the free man’s last standing bastion.
The most well founded criticism of blasphemy laws comes from the fact that they seem to punish differing opinions instead of factually incorrect expressions meant to deliberately incite violence. Indeed it should be recognized that religion is not a collection of facts and is thus open to varied interpretation. Punishing every opinion that varies from the one established by the State or an oligarchy of religious leaders is not just against free expression but also eliminates any chances of a constructive debate between and within religions, which is most vital for promoting religious harmony.
The caveat behind giving into every voice calling for ban of allegedly defamatory material is perhaps best exemplified by India’s situation where a culture of “competitive intolerance” has taken hold. Indian government has almost always taken the easy way out by banning any speech or writing that even logically questions the sanctity of a religion as perceived by its followers. Satanic Verses, Fire, Innocence of Muslims etc. have all been permanently or temporarily banned for fear of violence, giving extremists the whiff that they only need to shout loud enough to have their way. Mollycoddling the extremist factions has only emboldened them over time and has exacerbated the religious divide in Indian society. Such policies have dissociated artists like MF Hussain, Salman Rushdie and Taslima Nasreen from India. The omnipotence and vagueness of blasphemy laws makes them anathema to human development.
Most blasphemy laws don’t even allow for repetition of allegedly defamatory sentences, since repetition is itself considered blasphemous, thus leading to unfounded convictions. Such laws lack evidentiary standards and procedural safeguards to penalize false allegations. What constitutes blasphemy is obfuscated, meaning the standard is left to whims of the accuser. Blasphemy is recognized as a cognizable offence, allowing police to file charges and arrest without warrant. Punishments under blasphemy laws clearly violate doctrine of proportionality by punishing mere utterances against God by death. Another less obvious problem with blasphemy laws is that they seem to protect ideologies instead of individuals. Defamation of religion does not cause any harm to its followers per se. Going by the same yardstick, there could be demand for legislations banning defamation of communism and capitalism.
The extant international law instruments, such as ICCPR, UDHR lay unquestionable emphasis on right to free expression. However, as with all other rights, even this one is not without riders. Article 19 of ICCPR guarantees absolute Right to Freedom of Opinion, differentiating it from Right to Expression by mentioning that the latter may be curbed for (a) respect of the rights or reputations of others and (b) protection of national security or public order. States often cite above provisions while invoking blasphemy laws. However, they choose to ignore General Comment 34 on Article 19 of ICCPR which states that it is the foremost duty of the State to prove that invoking the above law was indeed the last option and that punitive actions were proportional to the offence, thereby establishing beyond doubt that such measures are to be invoked only in the rarest of rare circumstances. This precedent has been set on multiple occasions by courts in democratic countries, an example being Handyside vs. UK (1976), where the gist of the judgement by European Court of Human Rights stood as: “Freedom of expression applies not only to information or ideas that are favourably received or regarded as inoffensive, but also to those that offend, shock or disturb the State or any sector of population.”
The most egregious violation of international law comes from making apostasy punishable under blasphemy, which means conversion to another religion or atheism is banned, thereby murdering Freedom of Religion guaranteed under Article 18 of UDHR. In a world turning increasingly scientific, where certain archaic religious beliefs are being replaced by modern practices, blasphemy laws provide one of the stiffest challenges to scientific thought as well as religious reform.
Western bloc contends that extant international instruments are sufficient to cover any instances of defamation and a “global blasphemy law”, as sought by OIC, would be redundant. It is noteworthy that even western countries have safeguards in their domestic legislation to punish hate speech. However, such laws are rarely invoked and gravity of offence is carefully weighed before punishment is handed over. USA seems to be the one country which allows almost any degree of defamation of religion under the First Amendment to its constitution which astutely guards free expression. US courts contend that the only thing that calls for censuring expression is an “immediate threat to violence”, and have allowed KKK leaders to deliver hate speeches since they were found wanting of the above criteria.
The criticism of blasphemy laws is not to mean that any defamation should go unpunished. Indeed there are times when the motive of defamation is incitement of violence against a particular sect, in which case there must be appropriate legislation. This is the very motive behind Article 4 of ICERD, which obligates its signatories to frame laws banning hate speech and crime. Sadly, USA has reservations to this article. It is the duty of nations to ensure that their officials don’t indulge in maligning any religion, willingly or unwillingly, which is what is happening in certain western countries. Scant knowledge about other religions and deep divides between immigrant and native communities also contribute greatly to one sect perpetuating ill informed criticism of another. Having multiculturalism as state policy and taking initiatives to bring far flung communities closer would help reduce instances of defamation.
However, any legislation against defamation must be used only as a last resort and the criticality of free speech to human development and discourse must be given precedence. Instead of sweeping them under the carpet, defamatory speeches should be held up to bright light of public scrutiny, which would allow the offended to retort by counter speech, a prerequisite to civilized society. This is precisely the motive behind initiatives like Alliance of Civilizations, where in spite of strong disagreement, there is agreement to disagree.
It is a welcome sign that the latest resolution passed in UNHRC drops the term “defamation of religion” altogether and uses more progressive ones which aim to protect individuals rather than faiths. This resolution has been supported by both OIC and the West. There is an irrefutable link between democracy and freedom of expression which is established by the fact that countries like UK and Netherlands, which once had blasphemy laws, have gotten rid of them. History proves that democracy indeed provides the best environment for development of human character, and revoking blasphemy laws is definitely one of the prerequisites to that.