Britain, along with other Western countries, is often described as a pluralist state in which people enjoy freedom of expression, assembly, movement and religion. Freedom in the West operates within a tolerant context characterised by a great philosopher Voltaire who said: “I disagree with what you say, but I will defend to my death your right to say it.” Recent repeated and deliberate mockery of the Prophet Mohammed (PBUH) in the satirical magazine Charlie Ebdo in the name of freedom of expression hurt billions of Muslims around the world and led to the heinous crime committed in Paris, in which 17 people were killed in the name of religion. These events have raised the questions: Do the people have or need an unrestricted freedom to do whatever they want? Should the freedom ever be restricted to protect other people’s freedom?
We utterly condemn the heinous crime committed by the two brothers in Paris in the name of Islam. They are the criminals and have, in fact, provided disservice to the religion of peace, Islam. Islam does not and would never approve such horrendous criminal acts. This is not the way at all to show love and affection to the prophet. The best proof and the best example of showing genuine love to Prophet Mohammed (PBUH) is to know him and learn about him properly and to follow what he said and did in his lifetime. The Prophet (PBUH) even loved those who hated him, hurt him and tortured him. Prophet Mohammed (PBUH) won the hearts and minds of the people around him through exemplary conduct, outstanding behaviour and excellent manners. Having said this, we also strongly condemn Charlie Ebdo’s repeated initiatives to demonise Prophet Mohammed (PBUH) and the attitudes it has taken towards this, which has hurt billions of Muslims around the globe.
Western countries in general and Britain in particular have enjoyed a reputation of having the greatest amount of freedom, in which tolerance and liberty are the hallmark. For example, in the UK, the press, to a great extent, is free from censorship. People are free to criticise the government, and freedom of speech and expression are not only tolerated but actively encouraged. In many Western democracies, the rights of citizens are enshrined in a constitutional document sometimes known as a Bill or Charter of Rights. The UK, however, has no such Bill of Rights in the modern sense, nor does it have a written constitution. Therefore, in order to discover which freedoms are protected and the extent of that protection, it is necessary to examine common law, statutes and the influence of international treaties and conventions to which the UK is a party or signatory. Once the extent of legal restrictions on liberty has been examined, the area of freedom which is left can be identified.
Interestingly, most freedoms in the UK are merely liberties: a person is free to do anything which is not prohibited. That means there is no positive duty on any organ of the state to allow or facilitate them.
The UK is a party or signatory to many treaties and conventions. Among those treaties and conventions, the Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR) are most notable. There is a presumption that the UK legislation complies with that part of international law which contains a number of human rights guarantees - including freedom of speech, expression and association - and judges are authorised to apply those treaties and conventions when they interpret or construe an ambiguous statute. Until 2000, the European Convention on Human Rights (ECHR) had considerable indirect impact on UK domestic law. English judges were, to a great extent, influenced by the UK’s ratification of the ECHR - although these rights could not be enforced in the domestic courts because the Convention had not been incorporated into domestic law. The situation has since changed. The ECHR was incorporated into the UK’s domestic law by the Human Rights Act (HRA) 1998 and it came into force on October 2000. The HRA means that we can now safeguard our rights – as enshrined in the EHCR - in the UK.
Let us see our rights under the domestic law and international treaties and conventions. In relation to the freedom of expression, Article 10(1) of the ECHR says “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”
Similar provisions can be found in the international conventions and treaties. For example, in relation to the freedom of thought, conscience and religion, Article 18 of the UDHR says “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” In relation to the freedom of expression and opinion, Article 19 of the UNHR says “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
In relation to the freedom of thought, conscience and religion Article 18(1) & (2) of the ICCPR says “1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.” In relation to the freedom of expression and opinion, Article 19(1) & (2) says “1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”
Freedoms of expression, speech, thought, conscience and religion are basic fundamental rights which are guaranteed by the ECHR, UDHR and ICCPR. Furthermore, political philosophers sometimes regard liberty as a natural right of the individual as against the state, which must be recognised whether or not, either in general or in particular cases, it is for the benefit of the society as a whole. This is regarded as internally connected with fundamental concepts of human dignity and the rights of each person to equal respect and concern (Dworkin, “Taking Right Seriously,” P266).
Freedom of speech and expression are fundamental human rights and therefore an individual cannot be deprived of these rights for three reasons. Firstly: freedom of speech is essential to the discovery of the truth, as in Mill’s Argument in “On Liberty.” Secondly: it is an integral aspect of each individual’s right to self-development and fulfilment. Restrictions on what a human being is allowed to say and write or to hear or read inhibit the growth of his or her personality (Barendt, Freedom of Speech, Oxford, p14. Thirdly: it is essential for the participation of people in a democracy. (Brandeis J in Whitney v California).
However, these freedoms and rights are not, and indeed should not be, unqualified or unlimited. There are some rights in the law and international conventions which are absolute and unqualified. For example, in relation to the prohibition of torture, Article 3 of the ECHR says “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Similar absolute rights are given in Article 5 of the UDHR as “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” and in Article 7 of the ICCPR as “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” These are the unlimited, absolute and unqualified rights, for these provisions are not subject to anything: they do not have “if”, “except” or “provided” applied to them.
By comparison, the freedom of expression, conscience, opinions and thought are not absolute. Rather, these freedoms are limited and qualified. The very laws and conventions which have guaranteed these freedoms and rights have spelt out and categorised the competing public interests by reference to which the rights to freedom of thought, speech, and expression may be curtailed. For example, Article 9(2) of the ECHR says “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.” Similarly, limiting the freedom of expression, Article 10(2) of the ECHR says “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
In restricting the rights to the freedoms which it sets out, Article 29(2) of the UDHR says “in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” On the other hand, Article 18(3) of the ICCPR says “Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” In relation to restricting freedom of expression and opinion, Article 19(3) of the ICCPR says “The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (order public), or of public health or morals.”
Although there is a long tradition of freedom of speech in the UK, it has been recognised that there are some areas which should be limited. For example, civil servants are expected to remain publicly silent. People cannot publicly demonise the monarchy in the UK. Can people publicly deny holocaust? Certainly not. In fact, complete freedom would be self defeating. If people had right to do or say anything they wished, then this would destroy other people’s freedom. One man’s right must not be another man’s oppression! Salman Rushdie’s Satanic Verses affair in the late 1980s and Charlie Ebdo’s recent affairs have raised difficult questions concerning the unlimited freedom of expression in a multi-racial, multi-cultural and multi-religious society in the West.
When Salman Rushdie’s novel Satanic Verses – which hurt the religious sentiment of Muslims in the late 1980s - caused huge outcry, the matter was taken to the British High Court by way of judicial review to see whether hurting religious sentiment of Muslims would be covered by the existing blasphemy law. The matter was heard in the High Court for several days and the case was reported as R V Secretary of State for Home Department, Ex Parte Abdul Chowdhury. The High Court held that the existing blasphemy law only covered the Christian religion and it was not extended to other religions. It was a matter for Parliament to decide whether to extend it to other religions. The UK has now more than three million Muslims. There are other religions (such as Hinduism, Buddhism) which have hundreds of thousands of followers. The time has come to extend the existing blasphemy laws to cover other religions for social co-existence, stability, and religious harmony.
A few years ago Danish newspaper published cartoons demonising Prophet Mohammed (PBUH), offending billions of Muslims around the world. Interestingly, three years prior to this, there was a request to publish Jesus’s cartoon in a similar fashion, but it was declined on the basis that it would cause a public outcry. Wasn’t hurting the sentiment of billions of Muslims tantamount to a public outcry? Shame on the one-eyed or blind consideration of those people!
There has been a long tradition of freedom of speech and expression in the West, but there are some areas which should be limited. For a society to be free requires a large measure of individual freedom, but if freedom means “do what you like,” then this is likely to restrict other people’s freedom. Disciplined freedom can mean liberty, but unrestricted freedom could lead to anarchy, social instability and religious tension.
Barrister Nazir Ahmed: a UK-based Legal expert, analyst, writer and columnist. He can be contacted via e-mail: ahmedlaw2002@yaho.co.uk
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