Convention against defamation

December 10, 2018

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The writer is a practising international lawyer and a graduate of Harvard Law School.
The writer is a practising international lawyer and a graduate of Harvard Law School.

IN a speech on Nov 21 during a conference on the finality of prophethood, Prime Minister Imran Khan, lamenting the trend of blasphemous acts in the West under the garb of freedom of expression, resolved to propose a global convention against the defamation of religions. According to media reports, Mr Ahmer Bilal Soofi, a leading international lawyer, will be the prime minister’s special envoy to garner support for the convention.

Through the convention, the prime minister is aiming at global protection for the religious beliefs of 1.25 billion Muslims. Although the prime minister’s initiative is indeed commendable, getting the world to agree to a convention against defamation — even if it is framed as a multilateral agreement prohibiting the defamation of all religions — will not be easy.

This is because it involves two competing rights that are on a collision course. On the one hand is freedom of expression — a universally recognised right that has its origins in Western liberal democracy and is generally subject to few restrictions. On the other hand is the right against insult to religions or religious beliefs — a lesser recognised right mostly in the Muslim world and developing countries. How Pakistan manages to navigate the conflict involving these two rights on the global stage will seal the fate of the proposed convention.

This will not be the first time that Pakistan will be launching such an initiative. In 1999, at the behest of the Organisation of Islamic Cooperation, Pakistan brought before the UN Commission on Human Rights, a resolution (non-binding) titled ‘Combating Defamation of Religions’ on the principle that defamation of religions is a human rights violation that leads to discrimination against religions.

Although the PM’s initiative is commendable, getting the world to agree to a convention against religious defamation will not be easy.

Although with varying state support this resolution was adopted from 1999 till 2010, the question of whether religious defamation could fit in the scheme of human rights remained contentious. Western countries contended that protecting religious beliefs had no place in the framework of human rights that are designed to protect individuals as opposed to ideas. They also expressed the apprehension that the Muslim initiative was intended as a broader anti-blasphemy drive against minorities.

Muslim countries’ position suffered a setback after the Arab Spring which was blamed primarily on a lack of fundamental rights such as freedom of speech and expression. The year 2011 witnessed a shift in approach from defamation of religions towards focusing on incitement to violence, discrimination or hatred. Consequently, the Human Rights Council adopted Resolution 16/18 which called on states to combat religious intolerance, foster religious freedom and adopt measures to “criminalise incitement to imminent violence based on religion or belief”.

In June 2011, the Human Rights Committee issued Comment 34 on the International Covenant on Civil and Political Rights, 1966 — a universal international human rights treaty whose implementation is monitored by the committee. Notably, through its Comment 34, the committee anchored the discussion in Resolution 16/18 within the framework of the ICCPR Articles 19 (this article provides for the right of freedom of expression and the circumstances when freedom of expression can be limited) and 20 (this prohibits advocacy of religious hatred that constitutes incitement to discrimination).

Significantly, it noted: “prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant [ICCPR] except in the specific circumstances envisaged in Article 20”. This effectively impeded the Muslim endeavour to frame the religious defamation narrative within the human rights framework.

In later developments since 2011, although Resolution 16/18 has been reaffirmed and parallel non-binding resolutions have been adopted by the UN General Assembly, UN special rapporteurs appointed to undertake fact-finding have expressed concerns that measures to protect defamation of religions could be a threat to the freedom of expression.

This leaves us with a global consensus that works both ways: it arguably protects Muslims under imminent threat of violence due to religious defamation, as well as non-Muslim minorities from discrimination or acts such as favouring one religion over another. To consolidate consensus on the proposed convention against defamation of religions will require somehow reviving the moribund defamation-against-religions debate at the global level. To do so, some larger issues that Pakistan will need to address are the following:

First, Pakistan would have to justify the need and basis for reviving a matter that has been conclusively placed outside the remit of the international human rights framework. Pakistan will have no choice but to initiate the debate in secular human rights terms in a manner that fits within the existing international human rights framework.

Second, Pakistan will have to prepare a clear policy framework for a draft convention that is carved in a manner consistent with the exceptions to free speech set out in Articles 19 and 20 of the ICCPR. The framework will need to address, amongst other things, the thresholds for defamatory speech and the causal link between such speech and a violation of established human rights (eg protection against religious discrimination).

Third, any such convention will, in all likelihood, require a broad state reservations clause which would permit countries to object to provisions of the treaty that they do not consider legally binding. Although reservations that strike at the subject matter of any international convention risk diluting its effectiveness, it is unlikely Pakistan will get the convention passed in the absence of a broad reservations framework.

The edifice of international human rights law rests on the foundational principle of freedom of expression and speech. The world is now a marketplace of ideas and opinions and does not protect religious beliefs or ideas from insult or defamation. Pakistan will have to go down the slippery slope of initiating discussions about when the promotion or protection of free speech transforms into protection of defamatory speech. This will not be an easy task in a world that appears to have found the answer.

The writer is a practising international lawyer and a graduate of Harvard Law School.

veritas@post.harvard.edu

Published in Dawn, December 10th, 2018