The classic inspiration of western model of freedom of expression is derived from John Mill’s essay “On Liberty,” published in 1859. It is based on the claim that freedom of thought and expression is fundamental to seeking truth by challenging and criticizing the established beliefs. However, at the same time, he put forward “the harm principle” as a justification when freedoms could be restricted.
The Holy Qur’an had already referred to this so-called “harm principle” as “God loves not the public utterance of evil/hurtful speech except by one who has been wronged if you disclose good or keep it hidden, or forgive evil, verily God is Forgiving, All-Powerful. (4:148).
This clearly shows that the principle of freedom of expression as envisaged in Islam and later even in western discourse is subject to limitations and to be exercised with responsibility to “avoid harm to others,” and respect their right of privacy and personal dignity.
On studying the relevant articles of International law i.e. Articles 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR), we find that while freedom of opinion is unlimited as it rightly belongs to one’s inner thoughts and conception of various beliefs, the freedom of expression has a number of limitations, which are duly prescribed in Art 19(3). The very first restriction, namely, the respect of the rights or reputation of others is indeed a guarantee for using this freedom in a manner that promotes mutual respect and societal cohesion.
Article 20 of ICCPR is another set of restrictions on the freedom of expression. However, specific instances of expression mentioned in Article 20 are those that clearly fall into the category of abuse of freedom of expression, hence must be prohibited by law.
Undoubtedly, the application of restrictions must also conform to certain criterion. The Rabat Plan of Action prepared by the Office of the High Commissioner for Human Rights prescribes a six-part test for use by prosecutors and judiciary for identifying the serious forms of incitement that warrant sanctions. While still falling short of defining clear threshold between freedom of expression and hate speech, this plan of action is a step forward in this divisive debate.
Many people advocate soft measures such as positive speech, public denouncement of hate speech and interfaith and intercultural dialogue as alternative to restrictions. While all these measures are important and must be used, these may or may not be applicable in all sociocultural contexts.
Globalization has changed the sociocultural makeup of our countries and societies. It has also caused challenges of maintaining sociocultural and religious diversity in our societies. In addition, with the advent of communication revolution, impact of incitement to hatred or hate speech is no longer confined to the targeted people or area but equally and instantly affects the broader international community, peace and security.
Being able to “respect differences” and foster mutual understanding, is a key feature for sustainable progress of a multicultural global regime. Hate crimes motivated by racism, xenophobia and intolerance, coupled with impunity for perpetrators create a climate of fear and social exclusion of the targeted persons.
Precisely to cater for these concerns the OIC embarked on the initiative of HRC Resolution 16/18 that suggests a comprehensive Action Plan, which includes substantive, administrative, political and legislative actions at the national and international levels to combat incitement to religious hatred and discrimination. The hallmark of this resolution is its consensus nature as it is firmly grounded in International Human Rights Law. However, progress on the implementation of this resolution is rather slow.
During the 5th Meeting of Istanbul Process, a unique follow up mechanism for the implementation of this resolution, held in Jeddah, all participants reiterated the importance of its full and effective implementation. The meeting also emphasized that while deliberations to find bounds of hate speech continue, we need to take stock of existing legislation on criminalizing hate speech and incitement and share and replicate best practices to ensure equal protection to all targeted groups and individuals as well as to effectively combat hate speech. There is a need for an intellectual and ethical strategy in both the West and in the Muslim world to bridge the gulf of misunderstanding or “clash of ignorance.”
The international community has to adopt a unified stance to isolate extremist acts from both the Muslim and western sides. While legal response involving affirmative punitive action is of key importance, a “multilayered approach,” which promotes human rights and tolerance, encourages dialogue and understanding among different groups and builds the capacity of national authorities, security officials and media is also of vital significance.
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The writer is an official at OIC Independent Permanent Human Rights Commission (IPHRC).
