Somewhere, somehow, the public discussion on the law on vilification of religion has gone wrong. It’s still largely blurring the really fundamental issues.
I mainly blame the people arguing for the removal of the law from the criminal code, those wannabe Jedi knights anxious for a battle against the evil galactic empire – you know, religion – while invoking a phantom menace. Responding to some of their fantasies about the history of the current law, and what it means, is important but also a distraction.
Perhaps, however, it’s also not easy for legal experts – like Giovanni Bonello,a retired judge on the European Court of Human Rights, and Kevin Aquilina,the dean of the Faculty of Laws at the University of Malta, and Tonio Borg, one of the longest-serving ministers for home affairs – to spell out what needs spelling out slowly. The issues are too obvious for them.
They take so much for granted that they think it is enough to enunciate the principles, the distinction between incitement to hatred and vilification, the existence of an anti-vilification law on other European countries’ law books (not just Latin countries but also, for example, the Netherlands, Germany and Denmark), and the case law of the European Court of Human Rights (ECHR).
But there’s more that needs to be spelled out and more than one confusion to be cleared up. The questions that our Jedi are raising are legitimate concerns. If the religious vilification law could be used to prevent the pursuit of debate on issues of legitimate public concern, or, if it gave some social groups the right to claim special status against others, then we should really consider removing it.
But it’s not what the law does. Far from curtailing some of the liberal freedoms of the public sphere, it’s there to protect them. To see why, it’s important to address three confusions.
Defenders of the law have so far focused mainly on one of them: the fact that this law is concerned with protecting not religious privileges but public order. Two other clarifications need to be made, however, about what is meant by public order.
First, we are talking about public order as public safety and security. Suppose I stand up in a crowded cinema and shout “Fire!” when there is none. Would you not want me to be held accountable for such an act of wanton irresponsibility? At least, to face a judge who can decide if I was in a position to know better?
Now, let’s get to real-world cases. A short while ago, a Christian fundamentalist pastor in Texas decided, very publicly – the film was uploaded on YouTube – to burn copies of the Koran. The US authorities pleaded with him to desist from his publicised intention, since his action threatened to provoke deadly action against US servicemen abroad and to aid terrorist recruitment in the US and Europe.
That’s all the authorities could do because the US has no law that could prevent the pastor from doing that. But he went ahead, repeatedly, starting in 2010 and several times since.
No one’s saying that, if terrorists had struck at US servicemen or cities in retaliation, that they would have been justified. It would still have been right to bring the terrorists to justice. But don’t you think that – in addition to holding the terrorists responsible – the publicity-seeking pastor (he was listed as a US presidential candidate in 2012 and is so listed for 2016 as well) also has a case to answer for?
Anti-vilification laws protect public order because they help uphold international conventions on the right to freedom of religion
Well, that’s one of the things that the current Maltese law helps us do. Let’s not be distracted by details of wording. If the current punishment for vilification of Catholicism is more severe than it is for other religions, it is because, in the 1930s, when the law was passed, vilifying Catholicism was a bigger threat to public order than vilifying (say) Islam. The penalty for shouting “Fire!” in a crowded cinema should be harsher than for shouting “Water!”.
And let’s not trip up in the use of the term ‘cult’ for other religions: in 1933, it did not have the derogatory sense it has today; it had the now old-fashioned sense of referring to acts of religious worship.
We could tweak the wording and remove the difference between penalties. The real issue is whether we want to have a legal way to hold people who jeopardise public safety responsible for their actions.
Those of you who agree with that (as I do) risk being accused of pandering to religious bigots and giving religious sentiments a protection they ought not have. This accusation, however, is the fruit of a second confusion.
The second sense of public order, at issue here, is the defence of individual rights. It is not the protection of all and any religious beliefs and tenets from disrespect. In the wake of the Danish cartoon controversy, ten years ago, there was indeed an effort – initially pushed by several Muslim-majority nations – to obtain international agreement on a law prohibiting ‘the defamation of religions’, meaning disrespect of creeds.
Fortunately, that piece of authoritarian nonsense – which would have curtailed existing human rights to freedom of expression – fell through.
Anti-vilification laws are different, however. They protect public order because they help uphold (even if they pre-date) international conventions on the right to freedom of religion. Basically, ECHR case law holds that some kinds of offence (vilification or defamation) to religious belief might be so harsh and gratuitous that they inhibit individuals from exercising their human right (Article 9) to hold and express those beliefs.
In other words, the idea that the vilification law is protecting religion, not individuals, is mistaken. Human rights case law has upheld such laws precisely because they defend individual rights. You read that right: the ECHR has upheld the law on liberal, human rights grounds.
Who decides what’s so offensive as to threaten fundamental rights? The ECHR has defined gratuitous offence as something that contributes nothing to further public debate ‘capable of furthering progress in human affairs’. Because of European diversity of contexts, the court allows states a wide margin in determining for themselves what constitutes the public interest.
All those people who are interested in the Danish cartoon controversy should know that the Danish prosecution service did consider whether the cartoons violated Denmark’s own anti-vilification law (section 140 of the criminal code), not just the law against hate speech. The prosecutor decided that some public interest was served by the cartoons and so dropped the case.
Notice that there is no uproar in Denmark about the anti-vilification law itself. Although it hasn’t been used in decades, a liberal think-tank to its chagrin found that, in a 2012 survey of 1000 persons, 66 per cent were in favour of retaining the law.
Removing the anti-vilification law in Malta won’t serve the cause of freedom. On the contrary, the removal might weaken it. You can be a humanist, consider religious worship per se to be infantile, and still be in favour of such a law in principle.