Islamophobes hide behind freedom of expression

Many assume the appalling manifestation of Islamophobic attacks — verbal or physical — can only be witnessed in countries where Muslims are a minority. It is true that from Myanmar in Southeast Asia to the US across the Pacific Rim, from the Nordic and Baltic countries in the north to sub-Saharan Africa in the south, Muslims are often targeted with disparaging assaults to their values partially because their religious convictions differ from the majority in the societies in which they live.

But it is also true that Islamophobes can rear their ugly heads in Muslim majority countries, albeit mostly in verbal assaults and provocative statements insulting and denigrating the very sacred values Muslims revere and cherish. By the way, this is not only a problem for Muslims. The same conclusion can also be drawn for other faiths and religions around the world as both other monotheistic religions, Christianity and Judaism, come under intense hate attacks in a scope and manner that greatly disturbs the feelings of millions of believers. The main challenge in coping with this hatred, which is totally uncalled for, stems from the daunting task of exposing faith-bashers for what they are as they try to hide behind the values of fundamental human rights such as freedom of speech.

As if these criminal offenders have been given free rein to mount an all-out war against Muslims and believers, Islamophobes abuse freedom of speech and completely disregard the protection of the rights of others including freedom of religion. Although there is no single European approach to this sensitive issue in our part of the world, numerous cases that have been brought before the European Court of Human Rights (ECtHR) in Strasbourg on this issue can shed some light on our path and provide a guideline on how to sort out this issue that will certainly become a more pressing subject for all governments in the future. To its credit, the court has tried to deal with attacks on religion based on a balancing act between freedom of speech (Article10) and freedom of religion (Article 9) in the European Convention on Human Rights (ECHR). At the global level, there was considerable progress made at the UN Human Rights Council (HRC) in Geneva in March 2011 thanks to the Barack Obama administration’s outreach efforts when the resolution, titled “Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against persons based on religion or belief,” also known as Resolution 16/18, was adopted by consensus.

The issue of blasphemy heated up again recently in Turkey when Fazıl Say, the pianist, and Sevan Nişanyan, a Turkish-Armenian journalist, both received sentences for insulting religious values in tweeted messages for the former and a blog article for the latter. From a legal point of proportionality, one might disagree with the jail sentences handed down by the courts, (I personally prefer to “name and shame” these two Islamophobic personalities with mere symbolic fines). Nevertheless, the substance of the very provocative nature of these cases certainly warrants legitimate prosecution and court proceedings against these two Islamophobes. These cases can be justified from the viewpoint of domestic legislation as well as from case law in the Strasbourg rights court. Say and Nişanyan, known hate-speech offenders against Muslims, have deliberately, continuously and systematically targeted Muslims by denigrating, ridiculing and disparaging Islamic values, their symbols and its Prophet. When complainants seek their rights in a court of law, they try to mask their Islamophobic character behind freedom of expression, artistic work or minority rights. In fact, these hate crime offenders feel deeply antagonistic towards millions of people who respect and admire Islam.

When their true face is exposed in a court of law, they cry foul for the infringement of their civil liberties by the justice system, the government and authorities that came after them. Unfortunately, some human rights advocacy groups come out in defense of these Islamophobes, dealing a huge blow to the credibility and reputation of these rights organizations in the eyes of millions of devout Muslims. Their defense of what is essentially a hate crime did not hold water when the courts examined the evidence before them. There are perfectly good precedents from the case law of the ECtHR that have reaffirmed time and again that Islamophobic attacks can’t occur with impunity by simply taking refuge in freedom of expression. For example, in the case of İ.A. v. Turkey, the court ruled in 2005 that the owner and managing director of Berfin, a publishing house, which in November 1993 published a novel by Abdullah Rıza Ergüven titled “Yasak Tümceler” (the forbidden phrases), did not have a case with regard to freedom of speech. The book was so offensive that two reports submitted by separate independent experts concluded that the author’s intent was to insult believers of the faith and could not be construed as a literary exercise within the meaning of scholarly work or freedom of expression.

In an indictment in April 1994, the public prosecutor charged the publisher under the third and fourth paragraphs of the now-defunct Article 175 of the Criminal Code (replaced with Article 216 in the new Turkish Penal Code [TCK]) with blasphemy and in May 1996, the Court of First Instance convicted the defendant and sentenced him to two years’ imprisonment and a fine. It commuted the prison sentence to a $16 fine. In October 1997 the Supreme Court of Appeals upheld the conviction. Challenging the decision, the defendant unsuccessfully applied to the ECtHR, which emphasized that freedom of expression also comes with duties and responsibilities and as such the punishment against the publisher was necessary in a democratic society.

The court also agreed with the government’s defense that the legal case against the publisher pursued the legitimate aims of preventing disorder and protecting morals and the rights of others, within the meaning of Article 10. This is actually a good benchmark where and how we can and should separate the often blurred line between freedom of speech and freedom of religion. The violent incidents and mass rallies last year over a provocative film, apparently made by hardcore Islamophobes in the US and featuring hate-filled speech and insults that defame the Prophet of Islam, showed us the urgency of cracking down on Islamophobic attacks. If Islamophobic assaults go unpunished, security and public safety would be put at great risk against the background of the violent outrage the world has witnessed. If the focus is just on protecting the freedom of hateful expression and disparaging remarks by one or a few at the expense of many others, then the path on to which we are setting ourselves for a journey will lead us nowhere but to further chaos.

In the Strasbourg court’s view freedom of expression is not absolute. Of course, freedom of expression includes ideas that may come as a shock and disturb others. Members of a religious majority or a minority cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs. Muslims do not have a problem with these benchmarks. But the court also says that these ideas may be subject to conditions, restrictions or penalties based on, inter alia, the prevention of disorder or crime, for the protection of morals and for the protection of the reputation or rights of others. The ECtHR is of the view that those who exercise freedom of speech may have to refrain from “expressions that are gratuitously offensive to others and profane” within the context of religious beliefs. Only those who do not have a conviction that their ideas cannot survive and sustain challenges resort to offensive and abusive language.

The court has also ruled against freedom of speech arguments in cases where Christians were subjected to rigorous attacks because of their faith. The court has given us a way to deal with cases in which the abuse of the right of freedom of expression may very well violate the rights of others with respect to their freedom of thought, conscience and religion. The ECtHR should accentuate this view in future cases rather than revisiting, as some have suggested, an already set and well-established precedent. If the court wants to give a boost to the peace, dialogue and coexistence that we desperately need in today’s world, the line between freedom of expression and freedom of religion must be made clearer for hate crime offenders.

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