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European Court of Human Rights legitimises unique speech privilege demanded by Islam

By Laurence Maher - posted Tuesday, 9 July 2019

In October 2018, the European Court of Human Rights (ECHR) in Strasbourg and the Supreme Court of Pakistan (SCP) in Islamabad decided controversies affecting public discussion of the unique politico-religious claims that constitute Islam (encapsulated in the Shahada), namely, that The Koran recites the direct word of The Almighty, and that it is the final, complete and unalterable revealed truth by which the lives of all persons in all societies on Earth are to be governed in preparation for eternal life hereafter.

The institutional contrast between the two courts could not be more glaring. The ECHR is part of the secular democratic framework of the Council of Europe. The SCP is an integral part of the theocratic polity that is the Islamic Republic of Pakistan. The Constitution of Pakistan contains a preamble which commences "Whereas sovereignty over the entire Universe belongs to Allah alone [and]... Whereas the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam, shall be fully observed" (my underlining). The SCP also reminds the world of Islam's fundamental claim that the Prophet possesses the highest rank and status of all creatures of Allah.

The ECHR case, ES v Austria (the final judgment was issued on 18 March 2019) concerned an Austrian citizen who had failed in an appeal in Austria against her conviction on a charge of publicly disparaging an object of veneration of a domestic church or religious society, namely Muhammad, the Prophet of Islam, in a manner capable of arousing justified indignation contrary to Article 188 of the Austrian Code. The ECHR rejected her claim that the conviction infringed her right to freedom of expression under Article 10.1 of the (Rome) Convention for the Protection of Human Rights and Fundamental Freedoms (1950) having determined that the impugned Austrian law was, within the meaning of Article 10.2 of the Convention, a justified restriction on free speech because it safeguards religious peace and protects religious feelings.


In Bibi v State of Pakistan, the SCP allowed an appeal by a Pakistani Christian woman against her 2010 conviction for blasphemy (a crime punishable by death) arising from a dispute between a group of villagers about the refusal to accept water which had been handled by a Christian as a result of which, the court noted, "bitter words were exchanged". The appeal succeeded only because the SCP decided that the evidence relied upon by the prosecution had not proved the charge beyond a reasonable doubt.

Public outrage with the SCP decision led to street disturbances in which protesters demanded that Asia Bibi be put to death. Such is the nature of one form of violent sectarian expression of religious fanaticism nowadays in parts of the globe.

The logic of Islamic blasphemy law as expounded by the SCP is that "Muslims all over the world have immense love, admiration and affection for the Prophet more than their own lives or the lives of their parents and children." It follows from the sanctity of the Prophet that any attack on him merits the death penalty.

Not to put too fine a point on it, those who believe in The Koran, cannot expect that book's politico-religious supremacism to be free of close and critical inquiry in any society which purports to be a democracy.

Despite the inherent incompatibility of theocracy and secular democracy, there is, regrettably, a substantive connection between the two decisions inasmuch as the effect of the ECHR decision is to confer a measure of legitimacy on Islam's unique supremacist demand that its politico-religious ideas are not to be defamed in the nations which are signatories to the Rome Convention.

In Australia, the religious freedom which is given substantial but not complete protection in s 116 of the Commonwealth Constitution extends to the freedom to have no religion and, further, to regard all religion as nonsense on stilts and to say so publicly, no matter how outraged any individual believer or group of believers may feel that their most cherished beliefs have been insulted.


In October and November 2009, ES (of ES v Austria) held two public seminars in Vienna entitled "Basic Information on Islam". The gist of the ECHR's English translation of the offending statements expressed in the German language by ES was as follows: The Prophet of Islam is regarded as the ideal man, the perfect human, and the perfect Muslim, and thus the highest commandment for a male Muslim is to imitate the Prophet, and to live his life. However - so ES said - that produced a conflict with contemporary Austrian social standards and laws because the prophet was a warlord, he had many women, and because he apparently engaged in sexual activities with children which nowadays are described as paedophilia.

One of the seminar participants, an unidentified undercover journalist, felt compelled to report ES to the State Prosecutor's office and that led to her prosecution and conviction in 2011 for inciting hatred contrary to Article 283 of the Austrian Criminal Code, for which crime she was fined 450 Euros.

The reasons for the ECHR's decision do not fully expose the underlying evidentiary basis or reasoning for its interpretation and application of the Rome Convention. The main deficiencies can be summarised as follows:

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Article edited by Margaret-Ann Williams.
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About the Author

L W Maher is a Melbourne barrister with a special interest in defamation and other free speech-related disputes. He has written extensively on Australian Cold War legal history.

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