Divided before the law
A barrister tells a cautionary tale from Australia, on the dangers of creating a crime of incitement to religious hatred.
‘Do you believe that Muslims and Christians pray to the same God?’ would normally be regarded as a theological rather than a legal question. Yet it is one of the questions put to a witness in a recent trial in Australia – and which demonstrates the inherent dangers of UK home secretary David Blunkett’s proposals to create a crime of incitement to religious hatred.
The Australian case involves an allegation of religious vilification brought by the Islamic Council of Victoria (ICV) against the Christian group Catch the Fire Ministries (CTFM) and two of its pastors, Daniel Scot and Daniel Nalliah, and relates to a seminar that they presented in March 2002. The daylong seminar dealt with the Muslim concept of jihad, the history of Islam, the future of Islam in Australia and whether the practice of Islam was compatible with Western concepts of democracy. It involved quotations from the Koran and references to the life of Mohammed and the Hadith (traditions) of the prophet, which together form the basis of Islamic Sharia law.
Various parts of the seminar were attended by three Australian converts to Islam, who reported back to the ICV, which subsequently brought the case against CTFM under section eight of the Victoria ‘Racial and Religious Toleration Act 2001’ that had come into effect in 2002. That section says:
(1) A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
The claim asked for damages and also that the defendants be ordered to acknowledge that remarks at the seminar were inaccurate, retract the statements, sincerely apologise for the offence caused and be prohibited from ‘further publication or distribution, directly or indirectly of any material containing statements, suggestions and implications to the same or similar effect’. If such an order was made any breach would be a contempt of court punishable with imprisonment.
CTFM not surprisingly argued that the seminar accurately reflected Islamic teaching and history, and that it was an exercise in free speech, and reflected their personal religious beliefs. During the trial it became apparent that the Muslim converts had been deliberately sent to the seminar by ICV with a view to bringing a case.
Both pastors were known to have strong views about Islam and Sharia. Scot is a Christian from Pakistan who had gone to Australia to escape persecution, while Nalliah had worked in Saudi Arabia where the practice of Christianity is a criminal offence. Much of the case revolved around interpretations of the Koran and incidents in the life of Mohammed. At one point Scot was asked whether he believed that Muslims and Christians prayed to the same God, a question that was allowed by the judge.
The trial took place in the Victorian Civil and Administrative Tribunal and was originally scheduled to last for three days. It actually extended over seven months and the judgement is still awaited. Meanwhile, another case has been launched by a witch who claims that her religious beliefs have been vilified by the Christian mayor of her town. Relationships between Muslim and Christian groups in Australia have been damaged. If the two pastors are cleared, Muslim groups will claim that the law is not protecting them; if they are convicted they will be regarded as martyrs on the altar of political correctness.
Whatever the ultimate decision in the Australian case, it demonstrates the problems with creating laws against the incitement to religious hatred. David Blunkett’s proposals are based on the existing offences relating to racial hatred – the argument often used is that Jews and Sikhs are protected by the law, so why not Muslims or Christians? This argument ignores the fact that Jews are protected not because of their religion but because of their race. Jews can convert to other religions or become atheists but they still remain Jews. Sister Teresa Benedicta (Edith Stein) was a Jewish Carmelite who had converted to Christianity: like many other Christian and atheist Jews she was gassed at Auschwitz, not because of her religion but because of her race.
Race is something you are and cannot change; religion is something you choose and which you can change. Religion is belief in an idea and in particular historical figures, whether Mohammed, Christ, Joseph Smith or Kim il Moon. The life of historical figures and the religion they established must be open to examination, question, debate and indeed ridicule. To say that ‘All men are created equal’ is idealistic, but to say that ‘All ideas are created equal’ is idiotic. That, however, seems to be what Blunkett is saying.
It may be argued that the purpose of the new legislation is simply to provide protection from violence and threats. But everyone is already protected by the ordinary criminal law. If I threaten to harm someone or I incite someone else to harm them, then I am committing a criminal offence. It does not matter whether I threaten them because they are black, Muslim, gay, fat or ugly; it is a crime regardless of my motivation. If I set fire to a mosque, a church or a supermarket, I commit the crime of arson. There is no need for special legislation to protect either mosques, churches or supermarkets. The law protects everyone equally.
The danger with creating special categories of offence is that they stimulate feelings of divisiveness and lead to special pleading. In addition, such laws create ‘thought crimes’ and self-censorship. Instead of people being punished for what they do, they are punished for what they believe and what they say. If we can’t say things that offend others, it becomes impossible to argue about religion or the history of religion in any meaningful way.
I am a practising Catholic, but I accept that anyone looking at the Catholic Church is entitled to point out the often dubious history of the papacy, the Borgias and the Inquisition, and to question whether any institution that took part in such activities can truly claim to be the church established by Christ. Similarly, any analysis of Islam must be able to look at the life of Mohammed and question whether this man who executed the 800 Jews of the Beni Qurayzah tribe in cold blood was truly a prophet of God. These questions will undoubtedly cause offence to many believing Catholics or Muslims, but that does not mean that that they should not be asked. If an idea is wrong or offensive it should be challenged, not suppressed by law.
In the Australian newspaper The Age on 4 June 2004, Amir Butler, executive director of the Australian Muslim Public Affairs Committee, wrote:
‘The problem is that as long as religions articulate a sense of what is right, they cannot avoid also defining – whether explicitly or implicitly – what is wrong. If we love God, then it requires us to hate idolatry. If we believe there is such a thing as goodness, then we must also recognise the presence of evil. If we believe our religion is the only way to Heaven, then we must also affirm that all other paths lead to Hell. If we believe our religion is true, then it requires us to believe others are false. Yet, this is exactly what this law serves to outlaw and curtail…
‘All these anti-vilification laws have achieved is to provide a legalistic weapon by which religious groups can silence their ideological opponents, rather than engaging in debate and discussion. In doing so, people who otherwise might have been ignored as on the fringes of reality will be made martyrs, and their ideas given an airing far beyond anything they might have hoped for. And at the same time as extremist ideas are strengthened and given legitimacy by attempts to silence them, the position in our society of the religions themselves is weakened and undermined.
‘Who, after all, would give credence to a religion that appears so fragile it can only exist if protected by a bodyguard of lawyers?’
These special types of religious offences stimulate divisions, and lead to showtrials where courts make decisions in areas where historians and philosophers have been unable to agree for centuries. If the law makes it impossible to argue about religion, then only the extremists on either side of a debate will benefit.
Neil Addison is a barrister in New Bailey Chambers at Liverpool and Preston, England. He is also author of Harassment Law and Practice, published by Blackstone Press, and creator of the websites Religion Law and Harassment Law.
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