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IOS Minaret Vol-1, No.1 (March 2007)
Vol. 6    Issue 7   01-15 September 2011

Freedom of Expression, Human Rights and Inter-Cultural Sensitivity

Professor A. R. Momin

On June 23, 2011, a Dutch court in Amsterdam acquitted the far-right, anti-Muslim and anti-immigrant politician Geert Wilders of all charges, including incitement to racial hatred and discrimination against Muslims, relating to the statements he made in his film ‘Fitna’ and on the Internet.

The judge, Marcel van Oosten, said that though Wilders’ statements were indeed offensive to Muslims and that his film ‘Fitna’ promotes aggression against Muslims, his statements to the effect that Islam was a violent religion and that the immigration of Muslims to Europe should be stopped had to be viewed in the context of the wider debate in the Netherlands about immigration policies. The judge added that Wilders’ anti-Islamic statements formed part of a ‘legitimate public debate.’ Strangely, the judge said that although the bench found Wilders’ remarks “gross and denigrading,” they did not give rise to hatred.

Geert Wilders has been on trial since October 2010 when he compared the Quran to Adolph Hitler’s Mein Kampf in his film ‘Fitna’ and launched a virulent attack on Islam on the Internet. He has described Islam as ‘fascist’ and has persistently argued that ‘Islamization’ posed an ominous threat to European societies. Wilders makes no secret of his hatred for Islam and Muslims. He calls Islam “the ideology of a retarded culture” and demands a ban on the Quran in the Netherlands because it is “an inspiration for intolerance, murder and terror”. Wilders has set up an “International Freedom Alliance” in July 2010, with the twin objectives of “defending freedom and stopping Islam. While the controversy over his anti-Islamic statements was raging across large parts of the continent, he was banned from entering the UK.

Wilders claimed that his statements against Islam were legitimated and protected by the right to free speech, which is considered a cherished value across Europe. While Wilders’ supporters have hailed the verdict as a victory for free speech, Dutch Muslims propose to take the case to the European Court of Human Rights.

The verdict legitimizes, in the name of freedom of expression and public debate, racist and xenophobic outbursts against Islam and Muslims, slander and vilification, and discrimination against minority groups. The acquittal sends the wrong signal, as the German newspaper Suddeutsche Zeitung commented. It may be pointed out that freedom of expression cannot be regarded as an absolute and unfettered right.

The Social and Political Context of the Verdict

Legal opinions and court verdicts often reflect social and political conditions and the prevailing climate of opinion in a country. For more than two decades, the Netherlands has followed multicultural policies, which have been fairly accommodative of the rights and sensibilities of the Muslim minority. However, certain events in the West and in the Netherlands, such as the terrorist attack on the United States on September 11, 2001, the murder of the Dutch film maker Theo van Gogh in 2004 and the terrorist attack on London’s public transport system in July 2005, have triggered anti-immigrant and Islamophobic sentiments across the country. In the Dutch parliamentary elections held in June 2010 the anti-immigrant Freedom party (PVV), led by Geert Wilders, secured 24 out of 150 seats and emerged as the country’s third largest party. It supports the minority coalition government from the outside in return for tougher measures against immigration and against Muslims. In June 2011 the Dutch government declared that it would abandon the long-standing model of multiculturalism, which has allegedly encouraged Muslim immigrants to create a parallel society in the Netherlands. A new integration bill presented by the Dutch Interior Minister Piet Hein Donner to parliament on June 16 said that the values of the Dutch society would occupy a central role in the new integration policy. Moving in this direction, the Dutch parliament on June 17, 2011 passed a bill banning the slaughter of animals without first stunning them. Until now, Jews and Muslims were exempted from this rule. The bill has to be approved by the Senate before it can be enacted and enforced. Opinion polls show that the majority of Dutch voters support the ban.

Freedom of Expression in Europe: Paradoxes and Contradictions

Freedom of expression is considered a sacrosanct and inalienable right in European societies. In reality, a great deal of hypocrisy, double-speak and contradiction surrounds the issue. No country, including those of Europe, allows complete, unfettered freedom of expression. Freedom of expression in nearly all countries is restricted by prohibitions against defamation, libel, blasphemy, obscenity, national security, incitement to hatred, and judicial and parliamentary privilege. A recently released survey of media freedom in 20 European countries entitled Goodbye to Freedom?, published by the independent Association of European Journalists, found that within the past year alone, journalists in 18 out of 20 European countries have faced criminal prosecution or have been jailed for breaking various laws involving libel or secrecy.

Denial of the Holocaust is a punishable offence in several European countries, including France, Germany, Austria, Belgium and Spain. The world’s best-known Holocaust-denier Ernst Zundel, who was deported from Canada in 2005, faces 14 charges in Germany. British historian David Irving, author of 30 books on World War II, was jailed for three years by an Austrian court in 2006 for denying the Holocaust and the existence of gas chambers in Auschwitz in a speech he had given in Austria in 1989. A German court fined British bishop Richard Williamson £12,000 in November 2009 for denying the Holocaust in an interview he gave to Swedish television last year that caused outrage around the world.

There is an anti-blasphemy law in the UK, Denmark and Greece, but it is applicable only to Christianity and not to other religions. Curiously, Denmark’s Liberal Party, which is against the blasphemy law, and the ruling Conservative Party have opposed a parliamentary move to overturn the blasphemy law. In Britain, the Race Relations Act 1976 outlaws discrimination on grounds of race, colour and ethnic or national origin, but not religion. Until a few years ago, discrimination against Muslims was not considered illegal because the courts did not accept that Muslims were an ethnic group, although, paradoxically, Jews and Sikhs are recognised as ethnic groups. Nick Griffin, a leader of the far-right and morbidly anti-Muslim British National Party, said in a statement in January 2006 that Islam was “a wicked, vicious faith”. He was tried for incitement to racial hatred under the Race Relations Act 1976, but walked free at the rather swift end of the trial. In his defence Griffin argued that he attacked a religion (which is not an offence in Britain, except in the case of Anglican Christianity), not a race.

A Spanish court in November 2007 convicted Manel Fontdevila, cartoon editor of the popular satirical weekly magazine El Jueves, and cartoonist “Guillermo” on charges of “damaging the prestige of the crown.” The journalists, who were fined 3,000 euros, had published a cartoon in July 2007 which made fun of Prince Filipe, heir to the Spanish crown, and of the government’s scheme to encourage women to have more babies. Within a few hours of the cartoons’ appearance, the court ordered the confiscation of all copies of the magazine.

On the other hand, far-right politicians, writers and journalists in Western countries are allowed to indulge in hate speech and to make derogatory statements about Islam and Muslims with impunity and with no fear of prosecution. Susanne Winter, a leader of Austria’s far-right FPO Party, while campaigning for the Graz City Council elections in January 2008, said that (Prophet) Muhammad wrote the Quran in “epileptic fits”. The late Italian writer and journalist Oriana Fallaci famously described Muslims in Europe as “terrorists, thieves, rapists, ex-convicts, prostitutes, beggars, drug-dealers, dangerously ill.” Her pamphlets, which contain a stream of invective against Islam and Muslims, became bestsellers in French, German, Italian and other European languages.

Prominent leaders of the Christian Right in the US often denigrate and demonize Islam. In late 2001, Franklin Graham, the Rev Billy Graham’s son and successor, described Islam on BBC News as “very evil and very wicked religion”. In September 2002, televangelist and founder of the Christian Coalition, the Rev Pat Robertson, called Prophet Muhammad “an absolute wild-eyed fanatic….a robber and brigand….a killer”. A Catholic bishop said that a wave of petrodollars is fueling a wave of “Muslim reconquest of Europe.”

Modern information and communication technologies, including the Internet, videos and films, are being increasingly used to disseminate hate against Islam and Muslims. A Dutch film maker Theo van Gogh made a derogatory film called Submission, which was aired on Dutch television in the summer of 2004. The script of the film was written by Ayaan Hirsi Ali, a self-styled Somalian-born rebel who sought asylum in the Netherlands. The film opens with a prayer and then presents, through Ali’s voice-over, the stories of four Muslim women telling God about the abuse (including incestuous rape) they have suffered at the hands of men. The film shows semi-nude images with verses from the Quran inscribed on their naked bodies. The film quite explicitly conveys the message that Islam denigrates and enslaves women and that the abuse and humiliation of women is sanctioned by the Quran. The film created a great deal of anger and resentment among Muslims in the Netherlands. On November 2, 2004 a Muslim youth of Moroccan origin stabbed Gogh to death.

In September 2005, a minor Danish newspaper Jyllands-Posten published 12 highly derogatory cartoons of the Prophet Muhammad. In one of them he was shown wearing a bomb-shaped turban (thus portraying him as a terrorist). It is interesting to note that Jyllands-Posten had earlier refused to print cartoons of Jesus Christ because it involved the risk of hurting the religious sentiments of Christians. In early February 2006, several newspapers in 22 European countries reproduced the cartoons, which generated an enormous amount of resentment among Muslims around the world. At the height of the controversy, Roberto Calderoli, a member of the Italian parliament, wore on television a T-shirt depicting the cartoons. This sparked riots against Italy’s consulate in Benghazi, Libya, in which 11 people died. There were massive protests in Muslim countries in which scores of people were killed. Danish embassies in Iran, Lebanon, Libya and Syria were attacked and vandalised. Iran, Syria, Saudi Arabia and Libya recalled their envoys to Denmark. Large numbers of Muslim consumers across the world boycotted Danish products on a massive scale. Trade between Denmark and the Persian Gulf, which amounted to billions of dollars each year, came to a halt. By and large, European writers and intellectuals and the media justified the publication of these cartoons in the name of freedom of expression.

European countries are trying to reconcile the conflicting pressures of safeguarding freedom of speech and protecting citizens from racist and hate crimes. In 2005, Luxembourg tried to push through Europe-wide anti-racism legislation during its presidency of the European Union, but it was blocked by Italy’s centre-right government on the grounds that it threatened freedom of speech. The European Convention on Human Rights, while recognizing that everyone has the right to freedom of expression, allows European nations to impose restrictions “in interests of national security, territorial integrity or public safety, for the prevention of disorder, for the protection of health or morals, for the protection of the reputation or rights of others.” A recent report of the European Monitoring Centre on Racism and Xenophobia points out that freedom of expression is not an absolute right. International law and the legal order of EU Member States lay down certain limits that democratic societies consider important and necessary in order to protect other fundamental rights. The report adds that freedom of expression and the protection against racist and xenophobic language can, and have to, go hand-in-hand.

On April 19, 2007 the European Union approved the draft of a Europe-wide legislation that would make hate crimes punishable by jail sentences. The legislation called for jail terms for “intentional conduct” that incites violence or hatred against a person’s race, colour, religion, descent or national or ethnic origin. The same punishment would apply to those who incite violence by “denying or grossly trivializing crimes of genocide, crimes against humanity and war crimes”. Curiously, the legislation states that the constitutional protection of freedom of speech in individual European countries would be upheld. In other words, publishing the derogatory cartoons of the Prophet Muhammad would not constitute an offence in any European country because it would be protected by the provision of freedom of speech. The critics of the anti-hate legislation accuse the European Union of having double standards in that while it protects established Christian religions against blasphemy and outlaws anti-Semitism, it does nothing to protect Muslims against demonization and Islamophobia.

The right to freedom of expression needs to be tempered with social responsibility and sensitivity towards the beliefs and sentiments of others. An unbridled right to freedom of expression is fraught with socially disruptive consequences. A recent report of the European Monitoring Centre on Racism and Xenophobia points out that freedom of expression is not an absolute right. International law and the legal order of EU Member States lay down certain limits that democratic societies consider important and necessary in order to protect other fundamental rights. The report adds that freedom of expression and the protection against racist and xenophobic language can, and have to, go hand-in-hand.

Since 1998 the Organisation of the Islamic Conference has been pressing for a series of resolutions in the United Nations General Assembly on “combating defamation of religions.” Western countries and their allies have opposed these resolutions on the ground that they run against the cherished principle of freedom of expression. Consequently, the support for these resolutions has been dwindling. The UN General Assembly passed a resolution on December 21, 2010 on “combating defamation of religions.” The resolution was passed with 79 votes to 67, with 40 abstentions. In view of the dwindling support for the resolutions, the OIC agreed on march 25, 2011 to set aside the 12-year campaign, allowing the UN Human Rights Council in Geneva to approve a plan to promote religious tolerance. The new approach shifts focus from protecting beliefs to protecting believers. This represents, at best, legal sophistry and will be of little help in combating defamation and slandering of religions. The new approach looks at beliefs in abstraction and mistakenly assumes that they can be disembedded from believers.

An important judgement of the Indian Supreme Court can provide some enlightenment on this issue. On May 5, 2007 the Supreme Court of India ruled that no person can take undue advantage of the fundamental right to freedom of speech and expression to indulge in ‘malicious criticism’ of other faiths. Upholding the government’s power to confiscate books which contain references that can spark violence, the Court observed that no person has the right to hurt the feelings of others on the premise that his/her right to freedom of speech should be unrestricted and unfettered. The Court observed: “It cannot be ignored that India is a country with vast disparities in language, culture and religion, and unwarranted and malicious criticism or interference in the faiths of others cannot be accepted.” The learned judges pointed out that there was no doubt that freedom of speech and expression was an important right and should be available to all. At the same time, while exercising the right, one should be careful not to hurt others’ feelings.

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