DAWN - Opinion; February 12, 2006

Published February 12, 2006

Free speech not absolute

By Agha Shahi

THE European newspapers which have printed the outrageous cartoons demonizing the Holy Prophet (PBUH) of Islam have given the deepest possible offence to more than a billion of his followers across the world. To justify this defamation their editors invoke the right to freedom of speech and expression. UN Secretary General Kofi Annan thinks this amounts to licence, “pouring oil on fire”

To make amends the Danish newspaper Jyllands Postens which first published the caricatures last September is reported to have decided to print an equal number of cartoons satirizing Jesus. This is not acceptable to Muslims because they believe that he also is a messenger and prophet of God.

The right to freedom of expression is not absolute. It is limited by the International Covenant on Civil and Political Rights (ICCPR) which requires due regard to maintenance of public order, health and morals. The sacrilegious drawings are so provocative to Muslims that many in the world wonder if this is not an opening salvo for a clash of civilizations, of the West vs Islam.

The cartoons are patently an expression of hate against the Holy Prophet and therefore Islam. As such, they violate the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) which outlaws dissemination of ideas of racial superiority, hate speech, and incitement to racial hatred. This convention makes it obligatory for states to punish those responsible.

Thus the drawings violate international law.

Civil societies in the countries concerned, in particular Muslims’ organizations and law experts, should take recourse to seeking rulings from their relevant judicatures, and most importantly, the European Court of Human Rights for redress against the wound inflicted on the Muslim faithful in the name of freedom of expression.

That this freedom is not absolute is clear from the above-mentioned international instruments (ICCPR and ICERD) to which the overwhelming majority of the international community (the UN) has acceded, and also from the case law of several European courts of justice and the European Court itself.

To cite the indicative jurisprudence, let me draw attention to the following:

The Committee on the Elimination of Racial Discrimination (CERD) which monitors implementation of ICERD lays down:

State parties are required “to penalize dissemination of ideas of racial superiority or hatred ... or incitement to racial hatred ... Any advocacy ... of national, racial or religious hatred....that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. (Such penalization) “is compatible with the right to freedom of expression”. To satisfy these obligations, state parties have not only to enact appropriate legislation, but also to ensure that it is effectively enforced. “The citizen’s exercise of this right (freedom of expression) carries special duties and responsibilities” (General Recommendation XV of CERD).

The fact that the insulted communities of Muslim belief are mostly different racially and ethnically from the white offenders brings the provocative cartoons within the purview of ICERD and CERD mandates.

The Human Rights Committee (HRC) which monitors the implementation of ICCPR, has produced voluminous jurisprudence on the interpretation of the rules of law relating to human rights and fundamental freedoms under the Covenant. It has endorsed the judgment in Faurisson vs France that “restrictions may be permitted on statements which are of a nature as to raise or strengthen anti-Semitic feelings in order to uphold the Jewish communities’ right to be protected from religious hatred. Such restrictions also derive support from principles reflected in Article 20(2) of the Covenant...” The exercise of the right to freedom of expression carries with it special duties and responsibilities...”

The HRC concluded that the restriction of this right was no violation of Article 19 of ICCPR.

The question arises why do not the European judicatures extend the same protection to Muslim communities as they do so zealously to the Jewish communities? Turning to the rulings of the European Court of Human Rights one finds the followings:

“The right to freedom of expression is also applicable to information and ideas that offend, shock, or disturb the State or any sector of the population. Such are the demands of pluralism and tolerance without which there is no “democratic society” (Handyside Case)

In other cases — Dichand and others vs Austria, Karatas vs Turkey, Bladet Troms and Stensaas vs Norway, the European Court’s rulings have extended journalists’ absolute freedom to exaggerate and provoke. Nevertheless the court gave a different judgment in Wingrove vs UK (No 17419/90 Rep 1995 para 58).

“Whereas there is little scope under Article 10(2) for restrictions on political speech or on debate of questions of public interest ...a wider margin of appreciation is generally available to the contracting states when regulating the freedom of expression in relation to matters liable to defend intimate personal convictions within the sphere of morals or, specially religion,....”

Similar principles are reflected in Otto Preminger Institut vs Austria in which the court considered that

....”respect for religious feelings of believers as guaranteed by Article 9 can legitimately be thought to have been violated by provocative portrayals of objects of religious veneration and such portrayals of objects of religious veneration can be regarded as malicious violation of the spirit of tolerance which must also be a feature of a democratic society...”

Strong regard must be had to the religious beliefs of others.

“...The manner in which religious beliefs and doctrines are opposed or denied may engage the responsibility of the state, notably the responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 to the holders of those beliefs and doctrines”.

Thus, the court would be entitled to impose on any individual expressing such views (opposing or denying religious beliefs) a positive obligation “to avoid as far as possible expressions which are gratuitously offensive to others.”

This approach was followed in Dubowska and Skup vs Poland 40.

“Violent and provocative portrayals of objects of religious veneration may violate the rights under Article 9. The State is under a positive obligation to protect minorities with strongly held beliefs from attack. It is legitimate for the state to regulate the exercise of any right which interferes with an individual’s manifestation of belief. There may be an obligation on the part of the state to secure respect for freedom of religion in the sphere of relations between individuals as well as individuals and public authorities. It is in developing this duty that the (European) Convention may come to play an important part in promoting minority religions in the UK” (the Otto Preminger Case).

Besides this jurisprudence developed by the UN human rights treaty bodies (CERD and HRC) and the European Court, laws passed by the parliaments of France, Germany, Austria, Italy and some other countries have made it a crime to deny the Holocaust thus restricting the right to freedom of expression in this regard. Why then is expression of hate against the Holy Prophet permitted to be disseminated unchecked by the governments, legislatures and courts of the countries concerned? Is it because Muslims are considered to be less equal than Christians and Jews?

Hate speech if not checked can unleash violent conflict, even genocides. In the last decade in Rwanda and Bosnia inquiry commissions and international criminal tribunals at The Hague and Arusha have compiled voluminous evidence that goes to prove that expressions of hate, spoken, written or in drawing if widely disseminated by the media, are indicators of potentially massive violations of human rights. If European countries do not curb expression of hate in their media, tendentious theories of clash of western and Muslim civilizations could become self-fulfilling. Therefore, the imperative of an enlightened moderation must be reflected in the exercise of the right to freedom of expression in the interests of public, order, health (HIV/Aids, avian flu) and morals (pornography)

In the light of the aforesaid jurisprudence, civil society organizations in European countries need to draw the attention of the authorities, parliaments and judiciaries concerned to protect the 15 million Muslims in the EU from insult and onslaught on their religious sanctities. In particular, Prime Minister Rasmussen may be respectfully urged to act in behalf of meeting Denmark’s international obligations under human rights law.

A welcome gesture towards respecting religious sentiments of the peoples of the Muslim world is the condemnation by the US state department of the crass cartoons first published in Jyllands Postens, and more recently by the European newspapers. One also appreciates that most US and UK newspapers refrained from publishing the Danish cartoons.

The West sometimes questions whether Islamic values are compatible with the values of western societies. Yes, they are in unison on fundamentals but with marked differences in some respects as for example the right of absolute freedom of speech and expression in respect of religious sanctities.

The Islamic nations are parties to many human rights instruments, e.g. the International Covenants on Civil and Political Rights, Economic, Social and Cultural Rights, Prohibition of Discrimination against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child and some other instruments that translate the principles of the Universal Declaration of Human Rights into binding rules of law that obligate states parties to upgrade their legislative, administrative and criminal justice systems to conform to international standards and to enforce them.

It is true that quite a few of them have made reservations to many of the provisions of these instruments — but so too have many other western, Asian, African and Latin American states. In the implementation of these standards many of the parties fall short of full compliance with their obligations. It is the task of the monitoring bodies like CERD, HRC and other such committees elected on the basis of equitable geographical representation to point out shortcomings and to follow up their recommendations and conclusions to the reporting states for full compliance.

To talk of the incompatibility in the values of the two cultures and civilizations is to accentuate the differences and not the conjunctions.

To criticize Muslims states for not embracing western values in their totality is an unrealistic demand given the diversity in forms of civilization to which they are historically conditioned.

For example, if the West were to expect that Muslim countries embrace freedom of expression no matter how shocking and repugnant it may be to their religious sensibilities, even to the extent of the demonization of what is most sacrosanct and holy to them, the critics must be made aware there can be no takers for such freedoms which even in western societies are replete with internal contradictions and double standards vis-a-vis state parties.

To meet the challenge of the profanities against the Islam, Muslim world needs to level with the West in the ongoing intellectual debate and not let its righteous anger be appeased by resorting to any form of violent retaliation.

The Muslims owe their allegiance to the Holy Prophet who though reviled and persecuted, maintained a noble composure. Even though eventually he made a victorious entry into Makkah he put aside revenge and forgave his enemies. The peace of Makkah which he made remains unique in the annals of history as an example of mercy and magnanimity in victory.

So, to follow the Sunnah (practice) of the Holy Prophet his ummah (community of believers) in demonstrating allegiance to him must maintain their unity and discipline in the face of even the greatest of provocation from the irresponsible, crass and contemptuous attacks.

The writer is a former foreign minister. Mr Anwar Syed’s next column in this space will appear on March 12.

Stranded for long and still waiting

By Kunwar Idris

EARLIER this week, newspapers here and abroad published a photograph showing the police beating a protesting “Pakistani refugee” in Dhaka. The person getting the beating is a refugee not because he left his country but, as someone poignantly put it, the country left him.

In the picture, he looks young enough to have been born in Bangladesh but considers Pakistan, a country he has never seen, as his home. So do a quarter of a million others who couldn’t flee before Dhaka fell to the invading Indian army, and their part of the country became Bangladesh. They live in Bangladesh but are not its citizens — either they don’t want to be or the government does not accept them. The government of Pakistan remains unconcerned either way.

Their aspirations and future no longer seem to bother either of the two governments for they have millions of their own dissenters and destitutes to contend with. But what is amazing is the silence and indifference of the people and parties who owe it to them to bring to an end the excruciating uncertainty of their existence: they have become stateless and refugees in their own country because Islamic and patriotic groups trained and armed them to resist Mujibur Rehman’s liberation militia (Mukti Bahini) and the Pakistan army, marooned and outnumbered, used them as spies and carriers.

At present, the army and the Islamists both have an effective voice in the affairs of the state in Pakistan as well as in Bangladesh. It is their collective moral responsibility to pull them out of the limbo and get them the citizenship of either of the two countries.

What is also amazing also is the indifference of the MQM, the champion of the Mohajir cause. The stranded Pakistanis are Mohajirs twice over — from India to Pakistan and now in Bangladesh. Unfortunately for them, they are too few, too poor and distant to excite the sympathy either of the army command or of the Jamaat-i-Islami or of their ethnic custodians here. The issue is humanitarian and this hardly finds a place in Pakistan’s current equation of power.

Z. A. Bhutto, in his early days as president and chief martial law administrator, visited an expanding settlement of the Biharis fleeing from East Pakistan on the fringes of Karachi. The local villagers, supported by the revenue officials, protested that their ancestral lands were being occupied without permission or compensation. Mr Bhutto counselled patience and expressed sympathy for the settlers for they had suffered in the cause of Pakistan and trekked a long way to it.

Not long after that counsel, a rowdy procession of those very refugees with women in the vanguard appeared at the gates of the Sindh Governor House demanding that the government give them shelter and jobs. Governor Mumtaz Bhutto, suspecting that the agitation had been instigated to topple the government (the PPP was then being widely accused of having engineered the civil war in East Pakistan to gain power) had to be persuaded to see the processionists to pacify them. No sooner had he appeared at the gate and before he could utter a word, a hail of stones and sundry missiles were hurled at him. His suspicions were not ill- founded.

The refugees, despite the sympathetic assurances of President Bhutto, thus thoughtlessly squandered the goodwill of the administration of the province that they had chosen as their new home and which was also to be the destination of many more to follow. A humanitarian issue instantly became an ethnic problem, which a year later, culminated in the language riots.

In the wake of these developments all official or voluntary private efforts to bring the remaining refugees slowed down or were altogether abandoned. A British earl (I cannot recall his name) and the Rabita Alam-i-Islami who were negotiating repatriation arrangements and had also collected funds for the purpose gave up in the face of the cool response from parties in power and the opposition.

In his decade-long army-cum-Islamic rule, General Ziaul Haq hosted three million or more Afghan refugees and sheltered fighters at a huge cost to the country but gain to himself. However, he never spared a thought or penny for a fraction of that number of his own countrymen waiting in the ghettos of Bangladesh.

After a long pause, hopes for the refugees revived once again in March 1999 when Chaudhry Shujaat Hussain, Nawaz Sharif’s interior minister, publicly pledged to bring them to Pakistan. It seems that he made no effort to fulfil his commitment in the six months that he was interior minister. Now, once again, he is in a better position to do so. He has the influence and his own province as well as the NWFP and Balochistan are willing to receive the refugees and the Rabita Alam-i-Islami (its secretary- general indicated some time ago) is still willing to make financial contributions towards their rehabilitation. If Chaudhry Shujaat takes up this challenge it may earn him a place in history and public esteem more than his lifetime in politics or 90 days as prime minister has or ever will.

An advertisement recently published in a newspaper on behalf of the “besieged Pakistanis” appealed to “one from among them born in Bihar” who is now the prime minister of Pakistan to bring them to the country of their dreams for they belong to no other country. Shaukat Aziz’s sentiments and Chaudhry Shujaat’s political commitment combined can bring about what has eluded others before them. The nation has more serious issues — terrorism, dams and others — to contend with. But it also has a promise to fulfil, a pledge to redeem.

Lastly, this writer is of the view which is emphatically endorsed by Barrister Iqbal Haider of the Human Rights Commission that considering the circumstances in which the country broke up the people left behind in Bangladesh but continually owing allegiance to Pakistan remain its citizens and have the right to return to their country under the international law and conventions.



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