September 27, 2022
By Natalie Alkiviadou
Internationally acclaimed, Indian-born writer Salman Rushdie has written a range of novels and stories on social, historical and philosophical issues. He is a controversial figure mostly because of his fourth novel, ‘The Satanic Verses’. The book was published in 1988 and was heavily criticised by some Muslim leaders as blasphemous, particularly due to the depiction of the Prophet Mohammed. Violent demonstrations were held in several countries and in 1989 Ayatollah Khomeini issued a fatwah against Rushdie as well as to the editor and publishers of the book in any language. Khomeini called on all valiant Muslims wherever they may be in the world to kill them without delay, so that no one will dare insult the sacred beliefs of Muslims henceforth’. Rushdie subsequently went into hiding under police protection for several years while continuing to write. In August of this year, Rushdie was stabbed, suffering life-changing injuries while speaking at a public event in New York. The man accused of attacking Rushdie, Hadi Matar, pleaded not guilty to attempted murder. Others connected to the novel have also been victims of violence. Hitoshi Igarashi, the Japanese translator of the novel was murdered in 1991, the novel’s Norwegian publisher was shot in 1993 but survived and the Italian translator was stabbed in 1991 and also survived.
In 1995, the Parliamentary Assembly of the Council of Europe issued a report on the protection of Salman Rushdie, noting, amongst other things, the importance of free speech, the need to lift the fatwah and render trading relations between member states and Iran contingent on the fatwah’s repeal.
In 1990, the European Commission of Human Rights (EComHR) received an appeal by Abdal Choudhury, a British citizen who had applied to the UK courts to initiate criminal proceedings for blasphemy against Rushdie for his book ‘Satanic Verses’ and against the book’s publisher. The applicant reasoned that the book ‘unlawfully and wickedly published … blasphemous libels against Almighty God (Allah), the Prophet Abraham and his son Ishmad, Mohammed the Holy Prophet of Islam, his wives and companions and the religion of Islam’. Domestic courts refused to initiate such criminal proceedings on the grounds that the offence of blasphemy could not stand if the affected religion was not Christianity. Before domestic courts, Mr. Azhar argued that blasphemy should extend to religions beyond Christianity. For otherwise it is ‘anomalous and unjust to discriminate in favour of one religion’. The decision was that this falls to the role of the parliament. The House of Lords refused his application for leave to appeal.
The applicant exhausted all domestic remedies in the UK and made a complaint to the EComHR. His complaint was founded on Article 9 (right to freedom of thought, conscience and religion) of the European Convention on Human Rights (ECHR). He argued that by not proceeding with blasphemy charges against Rushdie, the UK was not protecting the Muslim religion against ‘abuse or scurrilous attacks’, without which Article 9 could not be enjoyed. The main question that the EComHR sought to answer was whether Article 9 of the ECHR may extend to guaranteeing a right to bring specific forms of proceedings against those who offend. Without extrapolating its rationale, the EComHR found that there was no link between Article 9 and the applicant’s complaint. The EComHR subsequently rejected the applicant’s allegation that Article 14, the non-discrimination clause, had also been violated. Here, the nature of the Commission (as opposed to that of the Court) must be borne in mind as this plays a role in the depth of its opinion. Specifically, The EComHR would consider if a petition was admissible to the European Court of Human Rights (ECtHR), looking at the facts of the case and searching whether a case could be settled in a friendly manner. The EComHR became obsolete in 1998. Afterwards, all cases were dealt with by the Court directly.
The EComHR’s reasoning is a partial reminder of the 1988 case before the United Nation’s Human Rights Committee (HRC), Yilmaz-Dogan v. the Netherlands. That case involved the alleged racial discrimination against a Muslim woman whose employment was terminated whilst she was pregnant. The HRC underlined the importance of the expediency principle, which it defined as ‘the freedom to prosecute or not prosecute, [which] is governed by considerations of public policy’ and noted that the International Convention against all Forms of Racial Discrimination ‘cannot be interpreted as challenging the raison d’être of that principle’.
Turning to the institutions of the Council of Europe, a case of blasphemy that came before Choudhury was the 1982 case of Gay News Ltd. v. the United Kingdom. It concerned the prosecution of the applicants for the offence of blasphemy in relation to the publication of a poem entitled ‘The Love That Dares To Speak Its Name’, written by professor and poet James Kirkup. Using graphic language, the poem described the crucifixion of Christ as seen through the view of a homosexual Roman centurion. He spoke of Jesus’ sexual adventures with his disciples and others. The poem also described the centurion engaging in sexual activity with a dead Jesus. In finding the application manifestly ill-founded, the EComHR agreed with the finding of blasphemy on the grounds that the surmounting penalty was legitimately imposed for ‘protecting the rights of citizens not to be offended in their religious feelings by publications’. Four years after the decision in Choudhury, the ECtHR ruled on the 1994 case of Otto-Preminger-Institut v. Austria. The Court agreed with Austria’s decision to seize the movie Das Liebeskonzil (The Council of Heaven). The accompanying statements to film screenings noted that ‘trivial imagery and absurdities of the Christian creed are targeted in a caricatural mode and the relationship between religious beliefs and worldly mechanisms of oppression is investigated.’ In considering whether the film’s seizure was legitimate, the Court (relying on the Kokkinakis case involving the alleged proselytism by a Jehovah’s witness) noted that ‘the respect for the religious feelings of believers as guaranteed in Article 9’ can be violated due to ‘the provocative portrayals of objects of religious veneration’. In assessing the limitations to the freedom of expression, the Court underlined that no Article 10 issues arise when expressions are ‘gratuitously offensive to others and, thus, an infringement of their rights and which, therefore, do not contribute to any form of public debate capable of furthering progress in human affairs’. The same pattern was followed in the 1996 case of Wingrove v. The United Kingdom. This involved the film ‘Visions of Ecstasy’ written and directed by Wingrove. The film was based on the life of a nun with segments showing her kissing and licking the wounded body of Jesus Christ. The British Board of Film Classification refused to certify the film on the grounds that it was blasphemous. The ECtHR found that the refusal to issue a certificate for the film did not lead to a violation of Article 10 ECHR. The UK government referred to findings in Otto-Preimnger-Institute, that ‘the respect for the religious feelings of believers can move a State legitimately to restrict the publication of provocative portrayals of objects of religious veneration’. The ECtHR agreed with the State’s argument and maintained its Otto position. Importantly and relevant to the argument in this post, dissenting Judge Lohmus argued that since the objective of the blasphemy law was only to protect Christians and their religion, the question of the interference’s necessity in a democratic society remains.
Whilst the prosecution for blasphemy was considered legitimate in the above cases involving the depiction of Christianity in the eighties and nineties, more recently, and specifically in 2018 in ES v. Austria, the Court held that criminalising allegations of Prophet Muhammad being a paedophile did not violate freedom of expression under the ECHR. This follows the previous approach to the alleged offence towards the Islamic religion and figures in the Choudhury case.
Blasphemy laws prevent social, political, artistic and other criticism of religion and its institutions. As such, they are an anathema to one of the most fundamental rights of humankind, namely that of freedom of expression. One would have expected that, at least within liberal democracies, blasphemy laws are no longer in force. However, one can turn to Spain and Austria as examples to see that this is not the case. Although rarely used, we have Article 525 of Spain’s Penal Code that punishes, amongst others, the ‘vilification of religious feelings’. Chapter 11 of the German Criminal Code includes a chapter on ‘offences relating to religion and ideology’.
In this light, the decision of the EComHR on the case brought by Choudhury on the grounds that the UK had not done what it should have done to protect the Muslim community from religious offence had a legitimate outcome but on unjustifiably differential grounds. Whilst there is no space for blasphemy laws in a democracy, there is also no space for differential treatment of religions within the ambit of countries that continue, or at the material time continued, to apply blasphemy laws. Such treatment has been manifested in Choudhury and subsequently ES when compared to cases involving alleged blasphemy against the Christian religion.
In conclusion, the violence committed against Rushdie (and others due to their depiction of religions) is deplorable. Blasphemy laws offer no solution to facilitating ties in a multi-religious society. All they can do is choke public discourse and the arts, placing authors and their bodily integrity at risk of sheer extremism. As argued by Rushdie himself: ‘the moment you limit free speech it’s not free speech. The point about it is that it’s free! You can dislike Charlie Hebdo … Not all their drawings are funny, but the fact that you dislike them has got nothing to do with their right to speak’.
A proper analysis of the harms of blasphemy laws and a blanket ban of blasphemy laws based on the nature, scope and application of Articles 9 and 10 ECHR would have been preferable at the level of the Council of Europe (particularly at the ECtHR, the highest human rights court of the European region). Instead, the former Commission and the Court enter a discussion as to whether or not they disagree with the position of the State Party in question. This has essentially led to tilting the bias against Islam, with allegedly offensive depictions of this religion falling outside the framework of protection afforded by Articles 9 or 10 ECHR. At the same time, religious offence/blasphemy against Christianity and its symbols is considered unacceptable. Two issues can be discerned. Firstly, the restrictive approach to free speech when it comes to Christianity does not bode well with the pluralist, tolerant and broadminded society described in the 1976 case of Handyside v. the United Kingdom. Further, when it comes to Islam, the vast differentiation in approach, whilst protective of free speech, has resulted in this status quo on inequitable grounds, namely the unequal treatment of two major religions.
In sum, as argued by free speech expert Mchangama, we are experiencing a ‘free speech recession’. Rushdie’s stabbing is an abdominal manifestation of this recession. The ECtHR’s position on blasphemy laws, an anathema to any democratic society, has been disappointing for the reasons highlighted below. The central premise adopted by Council of Europe institutions (former Commission and Court) vis-a-vis the permissibility of restrictions to insults against the (Christian) religion is the protection of the rights of others (Christians) and their feelings. However, it could be argued that blasphemy laws essentially protect ideas rather than people, even though there is no commonly accepted understanding of what ideas may be offensive to religious persons and whilst the Court itself has noted that freedom of expression extends not only to ‘information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend shock, offend or disturb’. In fact, as argued this year by Elizabeth O’Casey, member of the OSCE/ODIHR Panel of Experts on Freedom of Religion or Belief, countries which prosecute blasphemy and insult to religion ‘tend to suffer disproportionately from inter-communal intolerance’. I do hope that the next time the ECtHR is faced with a case of blasphemy/religious insult (against Christians), it follows a speech protective approach that it has ‘tailored’ in relation to Islam and its symbols.
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1 Comment
I struggle to follow this argument. In particular, I struggle to understand the contrast this post draws between E.S. v. Austria and the other cases, said to demonstrate an anti-Islamic bias.
E.S. did not hold that the impugned speech fell outside of art.10 entirely. It rather held that the fine did not exceed the art.10 margin of discretion. Nor did it hold that article 9 was inapplicable. On the contrary, it emphasised the State’s positive obligations in this respect: §53. In substance, and keeping in mind the rather astonishing facts of the case, the outcome in E.S. appears to be identical to the outcome of the other cases: the Court found that prosecution for blasphemy/offending religious feelings was legitimate.
What, then, is the difference or bias that the author sees? Is it simply a formalistic point (some states have blasphemy laws that only protect certain religions)? If so, does this in fact matter if in substance laws protecting other religions are equally ECHR-compatible?
Is the argument that the Convention includes a positive obligation to prosecute for blasphemy against Christianity, but not against other religions? The post does not provide evidence for this argument. Cf. §§252-253 of the Court’s case-law guide on the ECHR.
(One might add that even if E.S. had found the remarks to fall outside of art.10, this would *heighten* rather than *lowering* the consequent protection for the religion. Art.10 would then place no constraint at all on the State’s actions. This has of course happened in a large number of cases involving Islam, notably Norwood v. UK.)
Perhaps I am simply misunderstanding the argument. I would be grateful for any clarification.
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