How do you set the limit for a human right?
To what extent freedom of expression should be celebrated and where it must be restricted has always been an interesting debate – not just due to religious reasons but for secular reasons as well.
Culture and history of the regions in question also play an important role in determining where the line is to be drawn in relation to laws relating to the restriction of the right to freedom of expression and there is no uniform yardstick as to the merits and demerits of the existence of these laws. Recently, allegations of blasphemy on social media resulted in several bloggers going missing. This is a failure of the law: that Pakistan, despite being known for its stringent laws on issues such as blasphemy, failed to devise a mechanism to extend those laws in the framework of social media. Whilst the judicial prowess of Justice Shaukat Siddiqui was celebrated by the right, there clearly is a lack of personnel seriously committed towards analysing the law and subsequently taking concrete steps towards placing limits on the freedom of speech on social media.
For some, this would amount to backwardness, limiting a fundamental human right. However, others would view such steps as progressive, building on the ideals that our society cherishes and should be proud of. In Human Rights terminology, these form part of the concept of ‘margin of appreciation’, which means that despite the fact that states adhere to upholding Human Rights, they are awarded a certain degree of flexibility in determining whether certain measures are necessary.
In the remainder of this article I intend to show how the right to freedom of speech was restricted in the West and having specific provisions limiting the right to free speech on the basis of teachings of a particular religion is not in any way contrary to the fundamental norms of human rights.
Article 9(2) of the European Convention on Human Rights states that:
“2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” (European Court of Human Rights, Research Division, Overview of the Court’s case-law on freedom of religion)
The article clearly shows that even from a secular perspective the right to freedom of speech is not an absolute right and has certain limitations that shall vary according to national law. In certain cases the right to freedom of speech could infringe upon other rights such as human dignity, respect for others or equal protection, hence calling for a limitation on the right. Where the line is to be drawn shall vary from jurisdiction to jurisdiction.
“Article 10(1) (iii) of the ECHR implicitly confirms that the scope for the protection of Article 10(1) ECHR as a whole extends to the freedom of broadcasting, television and film.” (D. Ehlers & U. Becker European Fundamental Rights and Freedoms, (Walter de Gruyter, 2007))
So this right does not differentiate between different mediums of transmission and encompasses all.
Hence it can be inferred that the Pakistani law on Blasphemy can be extended to making punishable, publishing of blasphemous content on social media.
Now the question shall arise regarding the nature of the blasphemous content and whether it is to be deemed blasphemous or not. For comparison let us consider the concept of ‘hate speech’ and what it constitutes. Robert Post has written that a certain threshold of intensity has to be crossed for a particular expression to be hate speech. He refers to the oxford dictionary meaning of “hate” as an emotion of extreme dislike/aversion etc. For him the key word is ‘extreme’ as emotions of dislike and intolerance are part of human nature that cannot be curbed through legal order. Hence any material that is likely to provoke extreme aversion in a Muslim country such as Pakistan may be declared blasphemous if it directly attacks religious personages in such a way.
In the Norwood case, the applicant displayed in the window of his flat a poster of the Twin Towers in flame with the words “Islam out of Britain – Protect the British People”. The domestic courts had convicted this applicant of a public order offence and the European Court of Human Rights agreed with the domestic courts and concluded that the conviction was not in violation of Article 10 ECHR because:
“[…] the words and images on the poster amounted to a public expression of attack on all Muslims in the United Kingdom. Such a general, vehement attack against a religious group, linking the group as a whole with a grave act of terrorism, is incompatible with the values proclaimed and guaranteed by the Convention, notably tolerance, social peace and non-discrimination.”
In one case in the UK, Justice Alderson directed the jury that
“A person may, without being liable to prosecution for it, attack Judaism, or Mahomedanism, or even any sect of the Christian Religion (save the established religion of the country); and the only reason why the latter is in a different situation from the others is, because it is the form established by law, and is therefore a part of the constitution of the country. In like manner, and for the same reason, any general attack on Christianity is the subject of criminal prosecution, because Christianity is the established religion of the country.”
In Rex v. Gott, William Gott was convicted of blasphemy and sent to prison for having described Jesus Christ as entering Jerusalem ‘like a circus clown on the back of two donkeys.’ This expression was viewed as being offensive not only to strong Christians but also to lukewarm Christians or those having sympathy towards their faith and hence considered an expression that could provoke a breach of peace. Another prosecution occurred in Reg v Lemon related to a poem about Christ on the Cross. As in the previous prosecution a similar analysis was given here. In this case the House of Lords said that there was no requirement of intent in blasphemy. The intention of the defendant would be disregarded if it was proved that the content published was of blasphemous nature.
Then in 1991 a case was filed against Salman Rushdie alleging blasphemy through his novel, “The Satanic Verses”. This time the alleged blasphemous insult was on Islam, rather than being related to the Church or the Old or New Testament. The court said that the law of blasphemy only was applicable to the Christian religion and not to other religions. If this was done then such law would be misused by people of different faith against one another and hence provoke a breach of peace and public order. Another conclusion that the court reached was that to include faiths other than Christianity, for the offence of blasphemy was something that required a change in law and could only be done by the parliament.
Hence, the courts were held “not competent” to administer such a change.
Therefore, it is the role of the courts to examine whether the material published on social media, is within limits or not, and whether it can provoke a breach of peace or cause extreme aversion to any ‘reasonable person.’ The argument that having restriction to free speech in favour of one particular religion is biased is not correct, as the above cases show that common law provisions catered for Christianity and specifically for the Church of England.
If we look at Article 19 of the Pakistani constitution, the constitutional provision providing protection for freedom of speech under the Pakistani Constitution, we find a number of qualifications and exceptions embedded in the text of the provision. It is something that has been circumscribed by “reasonable restrictions imposed by the law in the interest of the glory of Islam, the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign states, public order, decency or morality or in relation to contempt of Court or incitement to an offence.” For now, the guiding source has to be the Constitution of the Islamic Republic of Pakistan.