Introduction

Introduction

In many countries, laws that criminalize blasphemy have been on the books for decades, and in some cases centuries. Critics have increasingly questioned their necessity and effectiveness in recent years, but the laws have been defended by state authorities who claim they are needed for the maintenance of social harmony among various religious groups. This argument has also been employed at the United Nations as part of an effort to prohibit blasphemy—or “defamation of religions”—on an international level. Supporters of the project characterize it as an extension of the existing human rights framework, maintaining that blasphemous expression is discriminatory and negatively affects freedom of religion for the offended groups. However, an examination of the application of blasphemy laws indicates that they typically give rise to the violation, not the protection, of fundamental human rights.

 

This study assesses blasphemy and religious insult laws in Algeria, Egypt, Greece, Indonesia, Malaysia, Pakistan, and Poland, analyzing their compatibility with international law and their impact on human rights. By definition, these laws, which are designed to protect religious institutions, doctrines, figures, and concepts—in other words, nonhuman entities and ideas—from insult or offense, impose undue restrictions on freedom of expression. Moreover, blasphemy laws are often vaguely worded and ill-defined, making them prone to arbitrary or overly broad application, particularly in settings where there are no checks and balances in place to prevent such abuses. In countries with weak democracies, authoritarian systems, or compromised judiciaries, these laws have a particularly pernicious effect:

 

  • Governments have abused blasphemy laws to silence the political opposition, government critics, and other dissidents.
  • Individuals have fabricated charges of blasphemy against others in their communities to settle petty disputes.
  • Religious extremists have exploited blasphemy laws to justify attacks on religious minorities, thereby fostering an environment of intolerance where discrimination is effectively condoned by the state.
  • Religious institutions, often with official or unofficial government backing, have used blasphemy laws to impose the state-sanctioned interpretations of religious doctrine on members of minority sects that are deemed deviant or heretical.

 

While freedom of expression is always constrained by blasphemy laws, through direct enforcement as well as the self-censorship they engender, this report identifies a host of other human rights that are negatively affected by such laws:

 

  • The selective application of blasphemy laws gives rise to discrimination based on religion and belief, as religious minorities and heterodox sects are often targeted disproportionately.
  • In many cases, alleged blasphemers have been arbitrarily arrested based on false or unsubstantiated accusations of blasphemy, and reports of unfair trials, lax legal procedures, and prolonged periods of pretrial or administrative detention on blasphemy charges are plentiful.
  • Individuals accused of blasphemy have endured torture and ill-treatment in custody.
  • Blasphemy suspects, including those who have been acquitted, have experienced breaches of their right to security of the person in the form of death threats, mob beatings, and other violence by nonstate actors.

 

There is no question that discrimination based on religion or belief is a genuine grievance for many and in some instances leads to limitations on freedom of religion. However, the notion that insults or criticism aimed at a religion or religious doctrine somehow restrict adherents’ ability to freely practice their religion has been rejected by renowned experts and human rights activists, who have emphasized the interdependence and indivisibility of freedom of expression, freedom of religion, and all other human rights. Freedom of expression is considered a “cornerstone right” without which other rights fall into jeopardy. As one expert has pointed out, “freedom of expression is also essential to the exercise of freedom of religion.”[1] Moreover, there is little evidence to support the argument that prohibiting defamation of religions is an effective means of combating racial and religious hatred. In fact, the application of blasphemy laws appears to instigate and exacerbate communal conflict rather than prevent it.

 

Blasphemy Laws: Inherent Flaws and Threats

 

All blasphemy laws carry inherent flaws that make them especially likely to lead to human rights abuses. They inevitably fail to address the issue of what exactly constitutes blasphemy, leaving enormous discretion in the hands of prosecutors, judges, and accusers who may be influenced by political or personal priorities. They also vary considerably in the punishments they prescribe, since unlike other crimes, the victims of and damage caused by blasphemy are uncertain or intangible; acts covered by blasphemy laws can be interpreted as relatively mild offenses against individual feelings, offenses against the beliefs of an entire community, or grave attacks on a deity. These weaknesses leave blasphemy laws open to selective, arbitrary, or discriminatory enforcement, which worsens existing problems in countries with shaky institutions and mars the human rights credentials of otherwise well-functioning democracies. No matter what the political environment, however, blasphemy laws lend the power of the state to particular religious authorities and effectively reinforce extreme views, since the most conservative or hard-line elements in a religious community are generally the quickest to take offense and the first to claim the mantle of orthodoxy.

 

Lack of Safeguards to Prevent Abuse

In almost all cases, blasphemy laws lack clear and precise definitions, making them prone to manipulation and arbitrary application. There is no international consensus on the kinds of acts that would constitute blasphemy or defamation of religions, and even at the national level these terms are quite nebulous. As a result, blasphemy laws are generally expansive in scope, and virtually any act has the potential to draw an accusation and prosecution. In many cases, blasphemy laws are worded so as to criminalize “insults” or “offenses” against religions or religious figures. These are highly subjective terms, and what is an insult to one may not be offensive to another. At their most benign, blasphemy laws lead to what have been described as “petty cases,” as seen in Greece, where individuals have brought complaints against others for everyday comments or expressions that were perceived as insulting. The majority of these cases are reportedly dismissed in the first instance by Greek courts, but even the threat of unsuccessful legal action can encourage self-censorship.

 

More worrisome are cases in which governments use blasphemy laws to silence political opponents. In Egypt, for example, several bloggers are currently detained for alleged blasphemy under Article 98(f) of the Penal Code. They had also written critically about government institutions and figures, and the charges are believed to be politically motivated. In another form of abuse, individuals have filed blasphemy complaints to settle property disputes and other personal rivalries. In some cases, as seen in Pakistan, charges are brought by Islamic extremists against members of minority groups as a means of religious persecution. The laws of certain countries incorporate the Islamic principle of hisba, which allows a Muslim to bring a complaint against any other Muslim for perceived breaches of Shari’a (Islamic law). The failure of governments to limit when such cases can be brought has had serious consequences for freedom of expression.

 

There are also human rights concerns with regard to the punishments for blasphemy. These vary considerably from state to state, and include fines, or a combination of fines and light or suspended prison sentences, as in Greece, Poland, and Algeria; longer sentences of up to five years in prison, as in Indonesia; extremely long sentences, for instance up to 20 years in Afghanistan; corporal punishment in the form of caning, as in Sudan; and even the death penalty, which is possible in countries like Saudi Arabia and Pakistan. It is worth noting that blasphemy falls well short of the international standard on crimes for which the death penalty is considered acceptable.

 

 

While the death penalty has not been banned by international law, the United Nations has set limitations on its use. Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR) states: “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.” The UN Human Rights Committee has routinely interpreted “the most serious crimes” to mean those offenses that result in loss of life. The panel’s General Comment 6 also states that the committee “is of the opinion that the expression ‘most serious crimes’ must be read restrictively to mean that the death penalty should be a quite exceptional measure.” A number of other UN reports have sought to clarify the limitations implied by “the most serious crimes.” The Economic and Social Council, along with the General Assembly, adopted the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, which states in paragraph 1: “In countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences.”

 

 

See UN Human Rights Council, Report of the Special Rapporteur on Freedom of Religion or Belief, Asma Jahangir: Addendum—Summary of Cases Transmitted to Governments and Replies (A/HRC/7/10/Add.1), February 28, 2008, paragraph 199, available at http://www2.ohchr.org/english/bodies/hrcouncil/7session/reports.htm; UN Human Rights Committee, General Comment 6 (HRI/GEN/1/Rev.1), 1982, paragraph 7; Office of the UN High Commissioner for Human Rights, “Safeguards Guaranteeing the Rights of Those Facing the Death Penalty, Approved by Economic and Social Council Resolution 1984/50 of 25 May 1984,” http://www2.ohchr.org/english/law/protection.htm; UN Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston (A/HRC/4/20), January 29, 2007, paragraph 51, available at http://www2.ohchr.org/english/bodies/hrcouncil/4session/reports.htm.

 

Effects on Democratic Standards and Institutions

The country studies in this report show a notable distinction between the impact of blasphemy laws in democratic countries and their influence in semidemocratic or authoritarian states. While the laws restrict freedom of expression in all political contexts, their effects on human rights are much broader and more severe in countries where there are insufficient checks and balances on the executive, the independence of the judiciary is in question, discrimination is condoned or endorsed by the government, and religious extremists engage in violence with impunity. In such countries, there have been numerous reports of false and unsubstantiated blasphemy charges leading to unfair trials, long periods of arbitrary detention, and even torture. While it is true that all types of defendants are subject to ill-treatment and injustice in societies where the rule of law is weak, blasphemy cases entail an added layer of abuse in that they are applied in a discriminatory manner, focusing on already disadvantaged minorities and stoking mob violence against them. Moreover, religious extremists in some countries seem to dictate law enforcement and trial outcomes to state authorities, who appear cowed by threats of vigilantism.

 

Even when they appear in the legal systems of robust democracies, blasphemy laws represent threats to human rights both at home and internationally. There are blasphemy laws on the books in a number of countries where free speech and other democratic ideals are for the most part vigorously upheld and protected. In some, such as Germany, Greece, and Poland, the laws are still in use. In others, like the Netherlands, they have not triggered prosecutions in decades. Ireland in July 2009 enacted a new blasphemy law that entered into force in January 2010, to the disappointment of manyfreedom of expression experts and human rights groups. The persistence of these laws in some of the world’s best-performing democracies not only lends legitimacy to their abusive enforcement elsewhere, it also bolsters arguments for an international law against defamation of religions. For example, Pakistan has incorporated the language of Ireland’s new blasphemy law in its proposals before the Ad Hoc Committee on the Elaboration of Complementary Standards (see below) calling for an internationally binding instrument to prohibit defamation of religions. The European Union has been a strong opponent of the defamation of religions effort at the United Nations, and as freedom of expression expert Agnes Callamard argued in a 2009 op-ed for the Guardian, “the resolve demonstrated by European states to fight defamation of religion at the international level must be matched by a similarly courageous resolve at home.”

 

Discrimination

The blasphemy laws in Indonesia, Pakistan, Malaysia, and a number of other countries have been described by experts as a form of legalized discrimination against minority religious groups. Those affected include individuals seen to be questioning the state-sanctioned religious doctrine, heterodox Islamic sects, Christians, and followers of traditional indigenous beliefs. The demographic breakdown of blasphemy defendants in Pakistan represents a prime example of selective application. Although Christians, Ahmadis, and Hindus make up less than 3 percent of the country’s population, they have accounted for about half of the blasphemy defendants in Pakistan over the past two decades, according to some estimates.

 

The official and unofficial discrimination associated with the application of blasphemy laws has been seen to foster a general climate of intolerance for religious diversity. Contrary to the arguments of many governments and judicial authorities, these laws damage rather than preserve communal harmony. Indonesian legal expert Todung Mulya Lubis was quoted this year in the Jakarta Post as stating that “conflicts happen when there [are] repressive actions by groups which believe that only the state-sanctioned religions (the “standard” forms of Islam, Christianity, Protestantism, Hinduism, Buddhism, and Confucianism) are legal while the others have to be eradicated. Such actions are a source of conflict.” Pakistani expert Akbar S. Ahmed similarly pointed out in a 2002 op-ed in the Washington Post that “in the application of the blasphemy law [in Pakistan], intolerance has fed on intolerance.”

 

As noted above, blasphemy laws have been used by vigilante groups to justify and instigate incidents of interreligious violence. There are reports from a range of countries of communal conflicts that were triggered by allegations of blasphemy. For example, prosecutions for blasphemy under the penal code are virtually nonexistent in Nigeria, but there have nevertheless been numerous incidents of violence stemming from unsubstantiated accusations of blasphemy. Similarly, in Indonesia and Pakistan, religious extremist groups have rallied angry mobs to take justice into their own hands, threatening accused blasphemers and their families, and in some cases raiding their homes and assaulting the perceived offenders. There is evidence that religious extremists often act with the tacit consent or even the assistance of the police. The failure of state authorities to hold such thuggish groups accountable for their actions has only served to embolden them, as has been the case with the Islamic Defender Front (FPI) in Indonesia.

 

In some countries, the blasphemy laws are discriminatory not just in their application, but also in their substance, with language that protects a specific religion or belief from insult, or that effectively prohibits a particular sect. As scholar Jeroen Temperman argued in a 2008 article in the Netherlands Quarterly for Human Rights, “blasphemy/defamation prohibitions that are designed to protect just one religion—that is, the State/predominant religion—are contrary to the non-discrimination or equality principle.” This was one of the reasons behind the United Kingdom’s 2008 repeal of its blasphemy law, which had protected only the Church of England from insult.

 

Defining Orthodoxy

In determining what constitutes blasphemy, state authorities must establish some notion of religious orthodoxy against which to measure an alleged offense. This effectively allows governments to impose particular strains of the official or predominant religion on the country or religious community as a whole. In some countries the state uses blasphemy laws to exercise extensive control over religious practice, while in others the government is exceedingly deferential to the dominant or most assertive religious authorities, who use the justice system to magnify their influence and enforce conformity.

 

In Egypt, Indonesia, Malaysia, and Pakistan, there are abundant examples of the use of blasphemy laws to crack down on religious minorities that are deemed “deviant” or “heretical” offshoots of Islam. The Becket Fund for Religious Liberty has described how blasphemy laws force “the state to determine which religious viewpoints may be expressed, thus putting states in the business of judging the truth claims of religions.” This process is particularly apparent when it comes to Ahmadiyya, a sect whose members consider themselves Muslims but do not believe that Muhammad was the final prophet. Several governments in Muslim-majority countries do not accept the legitimacy of Ahmadis’ beliefs, and subject them to significant legal restrictions.

 

The enforcement of religious orthodoxy through blasphemy laws sometimes extends to the punishment of those who simply fail to display sufficient piety within the dominant faith. For example, there have been reports of Sunni Muslims being arrested for blasphemy after violating the fast during Ramadan or praying in non-Arabic languages. In addition, Muslims wishing to convert to other religions face serious legal obstacles, as they are considered apostates rather than members of their new faiths.

 

International Law and Restrictions on Freedom of Expression

 

There is an important distinction in international law between blasphemy—meaning critical, insulting, or offensive expression against religious doctrines, figures, and deities—and incitement—meaning expression that explicitly encourages and calls for hostility and violence. Of the two, only the latter appears to fit the limited circumstances in which restrictions on freedom of expression are considered acceptable.

 

According to Article 19 of the International Covenant on Civil and Political Rights (ICCPR), limitations on freedom of opinion are never allowed. However, Article 19(3) permits states to impose constraints on freedom of expression if they are provided by law and are necessary for respect of the rights or reputations of others, or for the protection of national security, public order, or public health or morals.

 

The idea that the constraints must be “necessary” is crucial, as it sets the threshold beyond what is simply appropriate, useful, or reasonable. As human rights scholar Nazila Ghanea-Hercock pointed out in a presentation at the October 2008 UN expert conference on Articles 19 and 20 of the ICCPR, the “necessary” qualifier indicates that any restrictions must be “proportional to the value which the restriction serves to protect.” The UN Human Rights Committee has also confirmed in General Comment 10 that any restrictions on freedom of expression justified under Article 19(3) “may not put in jeopardy the right itself.”

 

The threshold for restrictions under Article 20(2) of the ICCPR—which bans “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”—is less clear. However, there is agreement among leading freedom of expression experts that the bar is quite high. They cite the historical context in which Article 20 was drafted, namely the recent horrors of World War II and the Nazi regime. Ghanea-Hercock noted that the first part of Article 20 bans “propaganda for war,” indicating “the gravity of hatred that it is concerned with.”

 

The UN special rapporteur on freedom of expression, Frank La Rue, compiled a set of principles in his 2010 annual report to the Human Rights Council to help guide states on questions relating to limits on freedom of expression. Among other advice, he called on states to ensure that any restrictions are clear and unambiguous, compatible with human rights law, and regularly reviewed to assess their continued relevance. Because blasphemy laws are almost always vaguely worded and deeply ambiguous, they directly conflict with these principles.

 

Nevertheless, proponents of blasphemy laws have argued that offensive religious expression must be restricted for the maintenance of communal harmony, and that they are in line with international obligations under Articles 19(3) and 20(2) of the ICCPR. In addition to the evidence mentioned above that blasphemy laws actually stoke religious tensions, experts have countered that permissible limitations on expression do not include the protection of religious or belief systems from criticism. As the special rapporteurs on freedom of religion and belief and on contemporary forms of racism pointed out in a joint annual report to the Human Rights Council in 2006, “the right to freedom of expression can legitimately be restricted for advocacy that incites to acts of violence or discrimination against individuals on the basis of their religion. Defamation of religions may offend people and hurt their religious feelings but it does not necessarily or at least directly result in a violation of their rights, including their right to freedom of religion.”

 

While blasphemous expression can at times be reprehensible and deliberately provocative, it is essential to distinguish it from the kind of expression that may be legitimately restricted under international law. Freedom of expression includes the right to be controversial, insulting, or offensive, even when such speech targets ideas that are devoutly held beliefs for some. This principle was affirmed by the European Court of Human Rights (ECHR) in the Handyside v. United Kingdom case of 1976, in which the court found that expression was protected even if it “offends, shocks, and disturbs,” adding, “such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society.’” The former special rapporteur on freedom of expression, Ambeyi Ligabo, similarly pointed out in his 2008 annual report to the Human Rights Council that “the constant confrontation of ideas, even controversial ones, is a stepping stone to vibrant democratic societies.”

 

Despite its decisions upholding controversial speech, the ECHR has drawn criticism from human rights experts for failing to categorically rule out blasphemy laws. The court has found that state authorities would know better than its own judges whether a particular restriction fell within the boundaries set by Article 10(2) of the European Convention on Human Rights, which are similar to those in Article 19(3) of the ICCPR. Callamard, the executive director of the nongovernmental organization Article 19, stated in her 2006 Equal Voice article that this reasoning “calls into question the normative courage of the court.”

 

“Incitement” and “Defamation of Religions” at the United Nations

 

UN member states from the Organization of the Islamic Conference (OIC) and the African group—particularly Egypt, Algeria, and Pakistan—have been leading an initiative to incorporate a prohibition on defamation of religions into the international human rights framework. Pakistan, acting on behalf of the OIC, introduced the first resolution on this issue at the Commission on Human Rights in 1999, and similar resolutions have been passed each year since. The 2009 version of the resolution, introduced in the Human Rights Council, explicitly linked defamation of religions with states’ obligations under Article 20(2) of the ICCPR to legally prohibit “incitement to hatred.” The move represented an attempt to expand existing international norms on incitement. The March 2009 resolution makes at least seven references to defamation of religions as a form of, or catalyst for, incitement to religious hatred. For example:

 

Stressing that defamation of religions is a serious affront to human dignity leading to a restriction on the freedom of religion of their adherents and incitement to religious hatred and violence…

 

13. Urges all States to provide, within their respective legal and constitutional systems, adequate protection against acts of hatred, discrimination, intimidation and coercion resulting from defamation of religions and incitement to religious hatred in general, and to take all possible measures to promote tolerance and respect for all religions and beliefs.

 

This description of defamation of religions as a form of incitement to religious hatred is made more worrisome by the language of an October 2009 resolution (12/16) on freedom of expression that was cosponsored by Egypt and the United States. The document, which makes no mention of defamation of religions, has been praised for recognizing freedom of expression as “one of the essential foundations of democracy” and calling on states to respect and uphold this fundamental right. However, it makes abundant reference to the obligations of states, including the Article 20 prohibition on any “advocacy of…religious hatred that constitutes incitement to discrimination, hostility or violence.” Similarly, the outcome document of the 2009 Durban Review Conference, a follow-up to the 2001 World Conference Against Racism, included no references to defamation of religions, and it did not explicitly link the concept with incitement, but its Paragraph 134 calls on the Office of the High Commissioner for Human Rights (OHCHR) to organize regional conferences aimed at clarifying the scope and meaning of “incitement to hatred.” The provision has raised concerns that these conferences will affirm the link between defamation of religions and incitement, thereby legitimizing domestic blasphemy laws and bolstering the call for an international prohibition on defamation of religions.

 

The General Assembly passes an annual resolution on defamation of religions that is much like those adopted in the Human Rights Council. These documents have steadily lost support and votes in both bodies in recent years, and in the past year abstentions and votes against the resolutions outnumbered those in favor. According to some analysts, this declining support is linked to the OIC’s publicly avowed goal of establishing an internationally binding instrument, in the form of a treaty or additional protocol to a treaty, that would prohibit defamation of religions.

 

Proponents of such an instrument are currently focusing their efforts on an obscure UN body, the Ad Hoc Committee on the Elaboration of Complementary Standards, which came out of the recommendations of the Durban Declaration and Platform for Action (the outcome document from the 2001 World Conference Against Racism). In 2002, in the lead-up to the creation of the Ad Hoc Committee, the Commission on Human Rights passed a resolution establishing an Intergovernmental Working Group to prepare “complementary international standards to strengthen and update international instruments against racism, racial discrimination, xenophobia and related intolerance and all their aspects.” The Working Group commissioned two studies to examine whether there are gaps in international law on racism—one by the Committee on the Elimination of Racial Discrimination (CERD), the treaty body overseeing implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and one by a group of five human rights experts. Neither study identified any gaps in international law on racism, though both did cite a need for better implementation of existing treaties, including improving monitoring systems and strengthening education programs. Nevertheless, in 2007 the Human Rights Council established the Ad Hoc Committee through resolution 3/103, with a mandate to “elaborate…complementary standards in the form of either a convention or an additional protocol to the International Convention on the Elimination of All Forms of Racial Discrimination, filling the existing gaps and also providing new normative standards aimed at combating all forms of contemporary racism, including incitement to hatred.”

 

During the Ad Hoc Committee’s October 2009 meeting, Pakistan, on behalf of the OIC, submitted a proposal calling for the adoption of an optional protocol to the ICERD that would ban defamation of religions. Nigeria, on behalf of the African group, submitted a similar proposal. Established democracies including the United States, Canada, and members of the European Union pushed back, arguing that existing international law is sufficient to address incitement to racial or religious hatred, and that better implementation, including the promotion of tolerance and education, should be the focus.

 

 

Conclusion

Conclusion

The severity and range of abuses that can result from the application of domestic blasphemy laws should raise serious doubts about the prospect of a similar law at the international level. Such a law would legitimize its flawed national counterparts while working against the communal harmony they are supposedly designed to protect. Worse still, it would insert into the international human rights framework a concept that essentially turns human rights upside down, restricting the speech and actions of men and women for the sake of disembodied ideas as such, and replacing equality and the rule of law with deference to religious orthodoxy and subjective feelings of outrage. An internal contradiction of this magnitude would cripple international human rights law as a whole and leave little recourse to victims of persecution around the world.

Footnotes

[1]Agnes Callamard, “Freedom of Speech and Offence: Why Blasphemy Laws Are Not the Appropriate Response,” Equal Voice (Magazine of the European Monitoring Centre on Racism and Xenophobia, EUMC), no. 18 (June 2006), available at http://www.article19.org/pdfs/publications/blasphemy-hate-speech-article.pdf.