In the name of Free speech

Print edition : April 07, 2006

A PROTEST IN Karachi against the Danish cartoons. - ZAHID HUSSEIN/REUTERS

Defining the issues - textual, legal and political - behind the Danish cartoons is essential to understand the rage it provoked in the Muslim world.

"ONE has to understand how much we love our Prophet," Ayyub Axel Kohler's remark reflects vividly the devotion Muslims the world over have for Prophet Muhammad. A convert to Islam, he is Chairman of the Central Council of Muslims in Germany. Another German, one of the most erudite scholars of Islam, Annemarie Schimmel, wrote an entire book on the "the veneration of the Prophet in Islamic piety" entitled And Muhammed is His Messenger.

Urdu poetry is replete with reproaches at, and complaints to, the Almighty. Iqbal revelled in both; Faiz was not inhibited, either. But none would take liberties with the name and memory of Prophet Muhammad. Hence the Persian couplet Ba Khudz deewana basho, Ba Muhammad Hoshyar (Play madly with God if you wish, but be careful with Muhammad). Unfortunately, few non-Muslims have understood his station in the Muslim psyche and in Muslim lives.

The scholar Arthur Jeffery recalled that the rector of Al-Azhar University in Cairo, Sheikh Mustafa al-Maraghi, once told his friend the Anglican Bishop in Egypt, that "the commonest cause of offence, generally unwitting offence, given by Christians to Muslims, arose from their complete failure to understand the very high regard all Muslims have for the person of their Prophet". On this, Annemarie Schimmel makes the perfect comment. The Sheikh's plaint "hits the mark precisely. Misunderstanding of the role of the Prophet has been, and still is, one of the greatest obstacles to Christians' appreciation of the Muslim interpretation of Islamic history and culture". Indeed, of the Muslim mind itself, "for, more than any other historical figure, it was Muhammad who aroused fear, aversion and hatred in the medieval Christian world".

The enormous services of Christian scholars such as her, Lous Massignon, Tor Andrae, Montgomerie Watt, F.E. Peters and Karen Armstrong notwithstanding, 21st century Europe is not free from those demeaning emotions either. They formed the subject of Minou Reeves' excellent study Muhammad in Europe. A Thousand Years of Western Myth-Making (vide "The West and Islam", Frontline, December 7, 2001). Karen Armstrong records that "the old hatred of Islam continues to flourish on both sides of the Atlantic and people have few scruples about attacking this religion, even if they know little about it" (Muhammad: Gollancz; page 995, page 10; emphasis added, throughout). The trait is not absent in some circles in India. Chapter I of her book "Muhammad the Enemy" documents briefly what Minou Reeves did at length. It all goes back a thousand years.

The Danish Cartoons revive the issues which Salman Rushdie's book The Satanic Verses raised in 1988-89. In both controversies, however, the issues got blurred. Contestants did not address each other and on specific issues. Emotions held sway and ignorance was overpowering. It is important to define the issues - textual, legal and political and answer them in earnest. What did the author write and why? What was the intention and what the motive? What is the law on such a writing? And what was the political setting in the writer's home and, no less, in the lands in which it erupted in anger?

AT A DEMONSTRATION in front of the Jama Masjid in New Delhi.-RAJEEV BHATT

On September 30, 2005, the Danish newspaper Jyllands-Posten published 12 cartoons of Prophet Muhammad. The Economist (February 11) reported that "the caricaturing... was clearly meant as a challenge. Several of the images were frankly insulting, particularly those that pictured the Muslim Prophet as a terrorist" (bombs strapped around the turban). A living person caricatured thus would have had a valid cause of action for libel. Editorially The Economist, true to form, opined: "Protecting free expression will often require hurting the feelings of individuals or groups, even if this damages social harmony. The Muhammad cartoons may be such a case."

The irresponsibility is shocking. Fleming Rose, the paper's cultural editor, told Time that he had asked 40 Danish cartoonists to "depict Muhammad as they see him" after he noticed that writers were wary of presenting Islam in an unfavourable light. He sought "to put the issue of self-censorship on the agenda and have a debate about it". In sum, "challenge" the law of blasphemy which, of course, does not extend to non-Christian religions in Europe.

In an interview to Glassgow Herald (February 19) the cartoonist Kurt Westegaard said that he had no regrets and that he was inspired by "terrorism - which gets its spiritual ammunition from Islam". Hence the caricature of the founder of the faith.

Such insensitivity is not bred by arrogance and ignorance alone. It is inspired by hate. The cartoon was not an expression of artistic talent; not that this would have furnished a defence. It was a political statement dripping with hatred towards Islam and Muslims. As late as on February 12, Danish Prime Minister Anders Fogh Rasmussen could not understand, as he told the BBC, why a mere "12 drawings" aroused the fury they did. He never will.

The political climate in Denmark has changed radically for the worse since the 1990s as Kiku Day, a Danish musician, notes with regret (The Hindu, February 16). The country "took a step not merely to the Right but to the far Right". The centre-right government depends for its majority on the anti-immigrant Danish People's Party (DPP) founded by Pia Kjaersgaard. Muslims have been denied permission to build a mosque in Copenhagen. Not a single Muslim cemetery exists. So much for the European Convention on Human Rights and Fundamental Freedoms. The DPP calls Muslims "cancer cells" (International Herald Tribune, February 14). Its leader calls Muslims "the enemy inside. The Trojan horse in Denmark. A kind of Islamic mafia".

Afton Bladet, the biggest Swedish newspaper, has dubbed Denmark "the most prejudiced, bigoted and narrow-minded country in Western Europe".

Rasmussen refused to meet 10 Ambassadors from Muslim countries last October because he shares these beliefs. "Freedom of speech should be used to provoke and criticise political or religious authoritarians." Also "I will never accept that respect for a religious stance leads to the curtailment of criticism, humour and satire in the press." He belongs to the Liberal Party - just as Liberals such as M.R. Jayakar supported the Hindu Mahasabha.

Mainstream American comment has followed suit with the likes of Thomas L. Friedman in full bray. Roger Cohen writes: "Rasmussen is right. Europe has to make it clear where it stands on its freedom" (International Herald Tribune, February 11).

One is sick of pleas to "moderate" Muslims "to speak up". Where were the "moderate" Americans when their President planned and executed what the Friedmans exquisitely called "a war of choice"? The hypocrisy about "self-censorship" was mercilessly exposed by Robert Wright, author of The Moral Animal: "What nonsense. Editors at mainstream American media outlets delete lots of words, sentences and images to avoid offending interest groups, especially ethnic and religious ones. It's hard to cite examples since, by definition, they don't appear. But use your imagination.

"Hugh Hewit, a conservative blogger and evangelical Christian, came up with an apt comparison to the Muhammad cartoon, `a cartoon of Christ's crown of thorns transformed into sticks of TNT after an abortion clinic bombing'. That cartoon would offend more American Christians. That's one reason you haven't seen its like in a mainstream American newspaper.

"Or, apparently, in many mainstream Danish newspapers. The paper that published the Muhammad cartoon, it turns out, had earlier rejected cartoons of Christ because, as the Sunday editor explained in an e-mail message to the cartoonist who submitted them, they would provoke an outcry" (International Herald Tribune, February 18). This was exposed by The Guardian (February 6). The paper's Sunday editor Jens Kaiser explained to the cartoonist Christoffer Zielar: "I don't think Jyllands-Posten's readers will enjoy the drawings. As a matter of fact, I think that they will provoke an outcry. Therefore I will not use them."

In 1998 when a Broadway theatre announced the production of Terrence McNally's play "Corpus Christi", depicting a gay Jesus-like character, the Catholic League for Religious and Civil Rights began a letter-writing campaign against it. There were also threats of violence and arson, which at one point swayed the theatre to cancel the play. Last March the Catholic Church successfully sued a French fashion company for posing half-naked girls in the positions of 12 apostles as portrayed in Leonardo da Vinci's "The Last Supper".

Robert Wright points out that initially Muslims reacted by holding peaceful demonstrations. "Only after these activists were snubbed by Danish politicians and found synergy with powerful politicians in Muslim states did big demonstrations ensue. Some of the demonstrations turned violent, but much of the violence seems to have been orchestrated by State governments, terrorist groups and other cynical political actors." He is absolutely right.

As for self-censorship, it is "not just an American tradition, but a tradition that has helped make America one of the most harmonious multi-ethnic and multi-religious societies in the history".

An eminent Muslim African-American Law Professor Bernard K. Freamon's inference is incontestable. The cartoons fell within S.266 b of the Danish Penal Code which penalises anyone who "insults" any group on account of its creed. The cartoonist stands convicted of his own mouth. The motive was to attack Muslims and their faith. The cartoons were drawn with this intention.

In no civilised country is freedom of speech absolute or unrestricted. Such a freedom for which the Danes, others in Europe and many Americans now contend is a licence to anarchy. One of the great champions of free speech, Justice Oliver Wendell Holmes of the United States Supreme Court, propounded the test in a judgment that ranks as a classic. "The character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre, and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree" (Schenck vs. The U.S. (1919) 249 U.S. 47 at page 52).

Is punishment for blasphemy a legitimate restriction of freedom of speech? In Britain it is still good law. In Europe the offence has received extended meaning from none other than the Europe Court of Human Rights.

In Britain the author's intention is irrelevant as also the issue whether the blasphemy leads to breach of the peace. Once publication is proved, the only issue for the jury to decide is "whether the dividing line... between moderate and reasoned criticism on the one hand and immoderate or offensive treatment of Christianity or sacred objects on the other, has been crossed", the Court of Appeal ruled in 1978.

This is no different from Mohammed Ali Jinnah's formulation in the Central Assembly on the Criminal Law Amendment on September 5, 1927: "I thoroughly endorse the principle that while this measure should aim at those undesirable persons who indulge in wanton vilification or attack upon the religion of any particular class or upon the founders and prophets of a religion, we must also secure this very important and fundamental principle that those who are engaged in historical works, those who are engaged in the ascertainment of truth and those who are engaged in bona fide and honest criticisms of a religion shall be protected."

The line is correctly drawn. But what constitutes blasphemy in English law? "Every publication is said to be blasphemous which contains any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ or the Bible, or the formularies of the Church of England as by law established. It is not blasphemous to speak or publish opinions hostile to the Christian religion or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not as to the substance of the doctrines themselves" (Stephen: Digest of Criminal Law, 9th edition; page 163).

The law is ancient; but not oppressive. As far back as 1883 Chief Justice Coleridge ruled: "If the decencies of controversy are observed, even the fundamentals of religion may be attacked without the writer being guilty of blasphemy" (Rus Ramsay and Foote (1883) 15 Cox CC 231 at 238). Lord Coleridge said: "The law visits not the honest errors but the malice of mankind. A wilful intention to prevent, insult and mislead others by means of licentious" language reflecting "a state of apathy and indifference to the interests of society".

Section 295A of the Indian Penal Code makes "deliberate and malicious intention of outraging the religious feelings of any class of citizens of India" or "insult" to "religion or religious beliefs" essential to conviction of the offence it defines. In Ramji Lal Modi's case (AIR 1957 S.C. 620) the Supreme Court upheld its validity and pointed out that it penalises only those who "insult" with that intention deliberately.

The House of Lords gave a definitive ruling on February 21, 1979 in the case of R. vs Lemon (1979) AC 617; (1979) 2 WLF 281). Gay News had published a poem entitled "The Love that Dares to Speak its Name", written by Prof. James Kirkup, with an illustration of the Crucifixion featuring the body of Jesus Christ in the embrace of a Roman Centurion. The poem described revoltingly acts of sodomy with the body of Christ immediately after his death and, worse, to attribute to him such practices with his Apostles and others. All the Judges agreed that it was an intentional and revolting blasphemy. Two of the Law Lords (Diplock and Edmund-Davies) held that the prosecution must establish an intent to blaspheme. The writer was denied that opportunity.

Lord Russell treated Diplock's logic to scorn. In law "motive is certainly not a defence". The jury had found the material blasphemous. Was the prosecution required also to prove that the accused "intended it to be such", adding "I consider that sense should retain a function in one criminal law". Diplock retaliated by praising all his colleagues, including those who differed. He ignored Russell.

AT A MARCH to the office of the United Nations High Commission for Refugees in Hong Kong.-MIKE CLARKE/AFP

The best judgment was produced by the most liberal judge of his times, Lord Scarmen: "I do not subscribe to the view that the common law offence of blasphemous libel serves no useful purpose in the modern law. On the contrary, I think that there is a case for legislation extending it to protect that religious beliefs and feelings of non-Christians. The offence belongs to a group of criminal offences designed to safeguard the internal tranquillity of the kingdom. In an increasingly plural society such as that of modern Britain it is necessary not only to respect the differing religious beliefs, feelings and practices of all but also to protect them from scurrility, vilification, ridicule and contempt... When nearly a century earlier Lord Macaulay protested in Parliament against the way the blasphemy laws were then administered, he added (Speeches, page 116) `If I were a judge in India, I should have no scruple about punishing a Christian who should pollute a mosque'. When Macaulay became a legislator in India, he saw to it that the law protected the religious feelings of all. In those days India was a plural society; today the United Kingdom is also." This was said a whole decade before The Satanic Verses was published.

However, this is precisely what some European countries and some in the U.S. are not prepared to accept vis-a-vis Muslims; a plural society which can accommodate people whose worldview differs from theirs.

Referring to the U.K. legislation on race hatred, Scarman said: "All this makes legal sense in a plural society which recognises the human rights and fundamental freedoms of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). Article 9 provides that every one has the right to freedom of religion, and the right to manifest his religion in worship, teaching, practice and observance. By necessary implication the Article imposes a duty on all of us to refrain from insulting or outraging the religious feelings of others. Article 10 provides that every one shall have the right to freedom of expression. The exercise of this freedom `carries with it duties and responsibilities' and may be subject to such restrictions as are presented by law and are necessary `for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others... ' It would be intolerable if by allowing an author or publisher to plead the excellence of his motives and the right of free speech he could evade the penalties of the law even though his words were blasphemous in the sense of constituting an outrage upon the religious feelings of his fellow citizens. This is no way forward for a successful plural society."

Scarman was a compassionate judge. He went so far as to accept that the accused had good motives - "to comfort the gays" and teach them that "there was room for them in the Christian religion". But whatever be their motive their intention was to depict Christ as they did. That was an offence in law.

Rulings of the European Court of Human Rights are even more strict on blasphemy. This exposes the falsity of Danish, French and some American talk of free speech. The court held as recently as in 1996 that "there is as yet not sufficient common ground in the legal and social orders of the member-states of the Council of Europe to conclude that a system whereby a state can impose restrictions on the propagation of material on the basis that it is blasphemous is, in itself, unnecessary in a democratic society and thus incompatible with the convention".

Two rulings reflect the court's approach. In 1994, it "extended" the protection afforded by Article 9. In Otto-Preminger-Institute vs. Austria, the complainant challenged the decision of the Austrian authorities to confiscate copies of a film which characterised the persons of God, Jesus and Mary in a manner which would have been offensive to many people. They prevented it from being shown anywhere in Austria and were held by a majority of the court not to have infringed the right to freedom of expression under Article 10. The court held that the film was liable to infringe "the rights of others", such that a justification under Article 10(2) could be made out.

It said: "Whoever exercises the rights and freedoms enshrined in the first paragraph of that Article (Art. 10-01) undertakes `duties and responsibilities'. Amongst them, in the context of religious opinions and beliefs may legitimately be included an obligation to avoid as far as possible expressions that 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 court further stated that the justification for the restriction upon freedom of expression was the need "to protect the right of citizens not to be insulted in their religious feelings by the public expression of views of other persons". It referred to their "right to respect for their religious feelings". Are Muslims not entitled to this right from Europeans and Americans?

The court said: "The court cannot disregard the fact that the Roman Catholic religion is the religion of the overwhelming majority of Tyroleans. In seizing the film, the Austrian authorities acted to ensure religious peace in that region and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner. It is in the first place for the national authorities who are better placed than the international Judge, to assess the need for such a measure in the light of the situation obtaining locally at a given time."

The court ruled again on the offence in Wingrove vs. United Kingdom (1997) 24 EHRR 1. The case concerned a video entitled Visions of Ecstasy which depicted St. Teresa of Avila in erotic scenes with the body of the crucified Christ. The British Board of Film Classification had refused it a certificate on the basis that it was likely to be found to infringe the laws against blasphemy. The European Court of Human Rights upheld this decision as not involving a breach of Article 10. The court noted that the application of blasphemy laws was rare in the various European countries in which they still existed and that the fact that the case involved prior restraint "called for special scrutiny". Nevertheless, it held that the concern of the British Board of Film Classification that the public distribution might "outrage and insult the feelings of believing Christians" and in particular that it might involve the commission of a criminal offence, meant that the interference could not be said to be "arbitrary or excessive".

The cases - American, British and European - clearly establish that in cases like the Danish cartoons, the issue simply is not freedom; it is licentious self-indulgence with an eye on publicity. Such people falsely raised the banner of freedom and sailed with the anti-Muslim current in Europe.

There is another aspect to blasphemy. It is the use of blasphemous writing to express and spread hate - as in the Danish cartoons. The Human Rights Committee set up by the International Covenant on Civil and Political Rights ruled in 1996 in Favrisson vs. France that Article 19 of the Covenant (on free speech) was not infringed by the punishment of a person who made statements promoting anti-Semitism.

David Irving was convicted by a Viennese court for denying that the Nazis used gas chambers to murder Jews at Auschwitz and for declaring Hitler innocent of that crime.

Is this defensible? David Cesarani, author of Eichmann: His Life and Crimes, thinks it is. How? Is it not just perverse, dishonest rewriting of history? But Cesarani says it "amounts (sic.) to propaganda for the neo-Nazi cause" and "reinforces the stereotype of Jews as powerful, merciless and conspiratorial". Voltaire and Mill wrote for a small elite. The situation is different now. "All that decent people can do is agree to reasonable limits or what can be said and set down legal markers in an attempt to preserve a democratic civilised and tolerant society."

This is precisely what Muslims have been clamouring for since the Rushdie controversy erupted in 1988-89. Their case did not need building an argument on an argument. This is why the Secretary-General of the Arab League, Amr Mousa, asked whether this was not another case of double standards. "When Islam is insulted certain powers raise the issue of freedom of expression."

In this writer's opinion, if history is written intentionally perversely and in language calculated to hurt religious feelings, it can fall within the reach of the law. But this is a far cry from banning serious works on historical figures simply because they offend regional sentiment or descendants of a historical figure, born centuries after his death (vide "Menace to free speech", Frontline, December 30, 2005).

Not very many in the West realise the gravity of the wrong the Danish cartoons inflicted. They find justification instead from the rampages in the East. There is however, "a diversity of the rage". What Prof. Olivier Roy, one of the foremost authorities on political Islam, said is relevant. H.D.S. Greenway reports: "I asked Olivier Roy, the French writer, why he thought the bomb in the turban had caused so much anger in the Muslim world beyond Europe four months after the cartoon was originally published. He said to look closely at some of the areas where the worst demonstrations were taking place. Gaza, Iran, Beirut, Damascus, Pakistan and Afghanistan. Each, Roy said, had a reason to punish Europe" (International Herald Tribune, February 15).

James Carroll makes the same point: "Mobs throw stones through the windows of European Consulate offices, and the legion of CNN watchers recoils with horror. Meanwhile, unmanned drones fly across stretches of desert to drop loads of fire on the heads of subsistence farmers in their villages, children die, but CNN is not there.

"Billions of dollars are being poured each month into the project of imposing an American solution on an Arab problem, and increasingly the solution looks, from the other side, like annihilation" (International Herald Tribune, February 18).

Reaction in India reflected, both, a deep religious hurt and a deep political malaise. The politician who feeds on the grievances of Indian Muslims and exploits such incidents heedless of the harm he inflicts. It was done in Rushdie's case in 1988-89 and became part of the "Shah Bano-Babri Masjid" syndrome where Muslims were painted as fanatics.

Rushdie now stands exposed by every scholar of note, as he was even in 1989. Lord Shawcross accused him of attempt to "sensationalise a novel in the hope of securing its better sale". Robert Dahl called him "a dangerous opportunist" (The Times, March 3 and February 28, 1989). Jimmy Carter called his book a "direct insult to Muslims". In 1990, Rushdie became a Muslim: "I am able now to say I am a Muslim." But he changed his mind, once again. "Rushdie's decision to portray the Prophet negatively may suggest an a priori animosity towards Islam," Prof. Clinton Bennett concludes (In Search of Muhammad; Cassell, 1998; page 221).

That he was feted by L.K. Advani, when he was in power, revealed a lot of both. He returned to the sport on March 1 in a giveaway statement - all bore Muslim names; none believed in Islam; one of them even wrote a book Why I am not Muslim; and all wrote in a clime in which Muslims were being attacked. On the other hand, once again, some Muslim politicians in India have instigated and organised violent demonstrations and hurled threats which reflect, not devotion to Prophet Muhammad, but a sordid concern for advancing their fortunes in politics.

The malaise in the West is deeper still; part of the Orientalism which Edward Said exposed mercilessly. Reasons of state prompted the Danish government to offer belated amends. On February 23, Jyllands-Posten won a Danish journalism award, the Victor Prize, for "having opened everyone's eyes by showing how easy it is to introduce cracks in freedom of expression and how so-called political correctness is infiltrating what we believe to be inalienable rights," said Hans Engell, editor of the tabloid Ekstra Bladet, which awarded the prize.

The prize was handed to Jyllands-Posten's editor Carsten Juste "for its adamant defence, for months, of freedom of expression, which is under threat". Juste remarked "how facile freedom of expression is" as he accepted the award. There was not a trace of regret; only justification.

The contrast with justified intolerance of anti-Semitism is glaring. It will be long before we see the end of the West's double standards on Islam - if ever.

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