Blasphemy Law, in its theocratic formulation, is often based on century-old theocratic norms/laws that seek to prohibit acts of insult, contempt or lack of reverence for God. 1 This legal regime often exists in states where religious power still subsists in local government and the judicial branches. Blasphemy laws are hard to define as the over-politicisation of the term has made the term itself the subject of much deliberation. Blasphemy laws seem to be based on moral and ethical social responsibilities that are pursuant to social harmony and public order, based on religious principles and the protection of religious sentiments.2 However, this legal regime is often indeterminate and relative in its application.3 This poses practical, philosophical and ethical problems in codifying and legally implementing this category of law. Fundamentally, the laws regulating acts of blasphemy conflict with the basic right to freedom of expression and opinion and the right to freedom of religion and belief itself as codified in both international and regional legal instruments.4

Blasphemy Law and its applicative intent

The modern push for the coexistence of groups, norms and principles to function within societal and governmental structures, has led to the continuous severance of religious power from political, administrative and judicial authority.5 Subsequently, this has led to the need to protect theocratic social and political order to be increasingly inessential to the general functioning of modern-day societies.6 However, due to the existence of theocratic grundnorms that persist within an ever-secularising world, the need to protect the honour of an ethereal higher power/authority still exists in many modern-day legal orders.

Blasphemy laws criminalise and prohibit actions and/or speech that is characterised by derision or denigration against abstract agents of divinity, sources of divine authority or physical representations of deities that are perceived as inviolable.7 Perpetrators of these crimes, or blasphemers, face a variety of judicial sanctions within states whose laws contain such theocratic offences. These crimes of contempt are expressly codified and prohibited in at least 71 countries worldwide.8 In 39 of those countries, such crimes carry the penalty of imprisonment, with up to 18 of those 39 countries including the penalty of death for crimes of blasphemy.9 Despite the controversies that exist surrounding blasphemy laws, it is important to understand the intended purposes of the laws themselves. When a particular religion or faith-based ideology governs the behaviours and actions of those who operate within its theological boundaries on a state level, there seems to exist a necessity to protect the dignity of such a system. This concept is not new, as secular states have the same obligations. However, they are primarily based on political ideologies (E.g. Democracy), which commonly operate according to the evolving empirical morals of the society it governs.

However, in the case of theocratic rule, the obligation is not to protect the ever-changing mores of society, which determines governmental responsibility. The obligation is to protect the religious authority that determines societal responsibility, rendering religion a constitutive element to the functioning of that society. Therefore, any acts of contempt expressed against that religious authority are met with sanction.10 The substantive issues with such laws are primarily demonstrated by blasphemy laws that directly seek to protect religion itself, and not mere religious feelings or the fundamental rights of various religious communities.

Blasphemy Laws protecting religion itself

Blasphemy laws that aim to protect religion and/or the divine figure of authority that represents its source of legitimacy, are one of the oldest forms of Blasphemy Law and can mostly be found in Islamic nations.11 Substantively, these laws seek to protect and preserve the honour of divine authority, its scriptures and practices. On a procedural and practical level, however, it aims to preserve the theological structure that governs and solidifies the social and political order that exists within a nation’s social hierarchy.12 However, the adverse effects on minorities, both theistic and atheistic, are what renders this form of Blasphemy Law the most problematic.

The most cited and most controversial of these nations is Pakistan. Pakistan is regarded as an anti-secular country with Islam constitutionally allocated as its state religion. Its stringent theocratic blasphemy laws tend to adversely affect and target religious minorities, dissenting Muslims and people with atheistic worldviews.13

In Pakistan, it is a constitutional requirement that the president or prime minister subscribe to the religion of Islam. Additionally, having atheistic stances concerning personal identity and family life is not an option afforded to citizens.13 Freedom of Speech is codified and afforded to citizens under Pakistan’s constitution. However, with limitations and restrictions that include, but are not limited to, the “glory of Islam”.14 The Pakistan Penal Code assigns the punishment of death to any defilement of the name of the Prophet Muhammad, and any wilful defilement of the Holy Quran is punishable with life imprisonment.15,16

In Saudi Arabia, where God’s command and interpretations of Sharia Law govern the country, the crime of apostasy and any dissent directed at the Saudi monarchy is punishable by death.17 Additionally, non-Muslim public places of worship are prohibited, and atheistic thought or dissent directed at the principles of Islam is regarded as terrorism.13 In the Islamic Republic of Iran, non-Muslims are legislatively barred from participating in the nation’s civil processes and discourses. Insults directed at the Islamic sanctities or imams are punishable by death or imprisonment, and media cannot violate Islamic principles (E.g. Publishing atheistic articles or written pieces).18

This form of Blasphemy Law often highlights key issues with the implementation of theocratic laws in general. The primary issue one can deduce is that it often times directly discriminates against religious minorities.19 Theocratic blasphemy laws often cater to the ideological convictions and suppositions of the religious majority within a state. This bestows power, privilege and preference to the majority religion, over the theistic and atheistic worldviews that also exist within that state. In doing so, it can create a set of circumstances where the very subjective religious or non-religious worldviews of people can inherently conflict with the laws and norms of the country. Whether it concerns the religious or non-religious principles themselves, or the expressions of the lifestyles that accompany them. This is often aggravated by public outrage.

Due to the fact that blasphemous acts often require the intent to create umbrage amongst the public, the implementation of blasphemy laws is often triggered by public outrage. More often than not, the vocal majority gives legal effect to these crimes of dissent. Another key issue is the severity of the sanctions in comparison to the offences committed.19 Relaying or expressing simple criticism/opinions about a religious figure (E.g. Prophet Muhammad or Jesus Christ) can be met with the punishment of death in many states.

There exists a clear imbalance regarding the crime itself with the punishment deployed. This allows states to violate principles of proportionality by imprisoning or executing people for blasphemous acts. This form also seems to violate the right to freedom of religion and belief itself, by restricting religious expression, thought and conscience, in favour of the sentiments of the religious majority.20 In consideration of the above, this form of Blasphemy Law is evidently the most problematic and the least defensible in the modern era.

Blasphemy Law’s relation to international human rights law

In terms of international human rights law (IHRL), no international state agent is mandated or encouraged to include crimes of blasphemy into its legislative framework.21 The problems that blasphemy laws often pose, from a human rights perspective, have been increasingly recognisable in recent years. This has led to some consensus on its incompatibility with present-day rights-based principles and norms. This consensus is centred on the rights to freedom of religion or belief and the freedom of expression and opinion, as codified in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), and its incongruous relationships with blasphemy laws. However, blasphemy laws have exhibited some potential to mingle with prohibitions against incitement of hatred and the freedom of religion. This potential has seemingly afforded theocratic countries a legal foot to stand on, in justifying their employment of laws sanctioning blasphemy in those respective jurisdictions. Therefore, states utilising such laws have made cases for the necessity of blasphemy laws restricting expression and opinion for the sake of communal harmony and the freedom of religion and belief.22

For example, the Organisation of Islamic Cooperation (OIC) introduced the concept of defamation of religion to the IHRL framework in 1999. Since then, resolutions that seek to further cement the concept of defamation of religion have been put forward numerous times. The United Nations Human Rights Council have passed anti-defamation resolutions, introduced by the OIC, which effectively sought to create a legal nexus between defamation of religion, and a State’s obligations to combat incitement of hatred under Article 20 (2) of the ICCPR.23 The rationale behind this link is that defaming religion results in injury to human dignity, restricts freedom of religion, and leads to incitement of religious violence and resentment.22 The act of defaming religion includes objectionable depictions of a particular religion in media, religious profiling in anti-terrorism laws and stereotyping religious figures and/or adherents with negative caricatures which could impede on the dignity of individuals or of the religion as a whole.24 However, this push to prevent defamation of religion has been met with criticism regarding its motives and arbitrary human rights implications.

It has been asserted that the inherently vague formulation of such laws renders them open to abuse.25 Oftentimes, blasphemy laws attempt to exhibit themselves as “anti-incitement” laws, but in fact, they inversely facilitate hatred and violence based on religion and belief. This is due to the fact that blasphemy laws are primarily concerned with the intensity of offence or outrage caused by expressions or speech, rather than the extent to which expressions or speech impairs the welfare and equality of religious adherents.26 Therefore, there has been a call for states to prioritise the repeal of blasphemy laws that suppress healthy public dialogue and the enjoyment of freedom of religion and belief.27

According to the Human Rights Committee, there is no protection afforded to religions or belief systems in IHRL. Laws that inherently favour one religion or religious group over another are impermissible and there can be no sanctioning of critiques or commentary on religious leaders or doctrines.28 In addition, the use of the right to freedom of religion and belief as a justification for implementing these laws has been deemed inappropriate. Owing to the fact that the right itself does not include the right for a religion or belief system to be free of criticism or ridicule.29 It seems that states must adopt a restrained approach, which equally recognises both rights to freedom of religion or belief and freedom of expression. An approach that recognises a person’s ability to shock, offend and disturb, providing it does not advocate for discrimination or violence.30 Such an approach should take public intent into account, rather than adversely limiting the nature and content of the right to freedom of expression and opinion itself.31

Conclusion

The controversies surrounding theocratic blasphemy laws stem from their incompatibility with modern rights-based principles. Implementing such laws should align with human rights systems, without favouring majority religious perspectives. However, the concern lies in their tendency to restrict speech and expression without demonstrating tangible harm. Understanding the underlying motivations and assessing the necessity of these laws is crucial. Perhaps, going as far as to mandate states to repeal laws governing acts of blasphemy that conflict with IHRL.32

To restrict speech based on abstract subjective beliefs and passive states of mind in the absence of any direct causal link of harm that is tangible is a slippery slope in application. However, only time will tell if the international legal order has the necessary conviction to act in upholding the fundamental value of the human rights in question, and actively encourage states to take positive action in balancing the need to protect the integrity of religious dictum with contemporary rights-based jurisprudence.

References

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