Religion, freedom of speech and vilification

I recently read an article in the paper about Hizb ut-Tahrir, a radical Muslim group which is calling for a global extension of the caliphate to all parts of the world. According to the organisation’s own website, establishing the caliphate involves creating Dar al-Islam, a land where Islamic Shari’ah Law is implemented, even if its citizens are non-Muslims. According to this group, there is an obligation on all Muslims in the world to work towards establishing the Caliphate across the globe.

Apparently Australian members of Hizb ut-Tahrir are proposing to hold a seminar later this month in Sydney. A YouTube video of the advertisement for the seminar is available on the web (via the Herald Sun). According to the website of the organisers, Bankstown City Council has withdrawn the use of Bankstown Town Hall for the seminar.

It put me in mind of the recent case of Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284. The case involved seminars and publications by members of the Assembly of God church, an evangelical and radical Christian group. Two of the pastors, Daniel Scot and Daniel Nalliah, had made various statements about Islam. The Islamic Council of Victoria alleged these statements contravened s 8 of the Racial and Religious Tolerance Act 2001 (Vic), in that they were likely to incite hatred against Muslims.

The Vice President of VCAT had concluded that the statements were likely to incite hatred or ridicule of Islam. The Victorian Court of Appeal overturned the decision of VCAT. If you have time, Nettle JA’s judgment is worth a read. He goes through a very thorough rebuttal of various aspects of the VCAT judgment. He draws a pivotal distinction at [32] – [34]:

The second difficulty, as I see it, is that…it [the Tribunal] did not give a great deal of consideration to the distinction between hatred of the religious beliefs of Muslims and hatred of Muslims because of their religious beliefs. The Tribunal appears to me to have assumed that the two conceptions are identical or at least that hatred or other relevant emotion of or towards the religious beliefs of Muslims must invariably result in hatred or other relevant emotion of or towards Muslims. In my view, that is not so.I do not overlook that Muslims are defined by their religious beliefs – as persons who profess Islam – and therefore that to incite hatred or other relevant emotion of or towards the religious beliefs of a Muslim may result in hatred or other relevant emotion of or towards the Muslim. But it is surely not to be assumed that it must do so. Muslims are not the only class of persons who are defined by their religious beliefs. So are adherents to other faiths, including Judaism and Christianity. And there are any number of persons who may despise each other’s faiths and yet bear each other no ill will. I dare say, for example, that there would be a large number of people who would despise Pastor Scot’s perception of Christianity and yet not dream of hating him or be inclined to any of the other stipulated emotions.

No doubt the purpose of the Act is to promote religious tolerance. But the Act cannot and does not purport to mandate religious tolerance. People are free to follow the religion of their choice, even if it is averse to other codes. One need only think of the doctrinal differences which separate the several Christian denominations or the Muslim sects in order to see the point. Equally, people are free to attempt to persuade other people to adopt their point of view. Street corner evangelists are a commonplace example. Rightly or wrongly, that is the nature of religion, or at least it is the nature of some religions as they are understood, and in this country it is tolerated. Accordingly, s.8 goes no further in restricting freedom to criticise the religious beliefs of others than to prohibit criticism so extreme as to incite hatred or other relevant emotion of or towards those others. It is essential to keep the distinction between the hatred of beliefs and the hatred of their adherents steadily in view.

I think His Honour is correct. Many religions and sects purport to be the true or best path. A person cannot be said to incite hatred merely because he or she tries to convince others who may be of a different faith that his or her faith is better. Personally, I find evangelism annoying, and because I am contrasuggestible, it tends to turn me off the religion or doctrine which is being promoted. But I also believe that open dialogue and debate about religion and moral questions is a very good thing. I am really glad that I studied a subject at university which involved looking at Judaism, Christianity and Islam.

Expressing views about a religion which may be offensive to members of that religion must be distinguished from inciting racial hatred. When I was reading the Catch the Fire judgment, my mind went to some anti-Semitic statements I have seen in material by the Citizen’s Electoral Council. In comparison, the statements by the Pastors were tame. And, as Nettle JA notes, at least the Pastors repeatedly told the audience that they should love Muslims and not hate them.

I can understand that reasonable Muslims might feel irritated by stereotypes which do not distinguish between the great variety of practices and the variation in tradition depending on ethnicity. I was invited to an Eid al-Adha party a few weeks ago by a friend of mine. During discussions at afternoon tea, some of the guests said they were worried that some Australians might think all Muslims were religious fanatics and terrorists. As I was saying to the guests, I certainly don’t feel that way, although as we agreed, a minority of Muslims are religious fanatics or terrorists.

I don’t think suing the Pastors and the Assembly of God is the answer to countering those who have a negative perception of Islam. I think the best answer is to do exactly what my Muslim friend did: invite me (a non-Muslim) to her party to celebrate with her, her family and her family friends. I’ve never been much of a fan of racial and religious vilification laws, despite my strong hatred of racial and religious vilification. Suing someone doesn’t change what is in a person’s head. I think the best answer is to be vocal against conduct which is perceived as vilification, to rebut factual inaccuracies and to try to get people to withdraw incorrect statements, and to try to change societal perceptions of such conduct.

I move full circle now back to Hizb ut-Tahrir. Attorney-General Philip Ruddock said that Hizb ut-Tahrir could not be banned as a terrorist organisation under present laws:

“It doesn’t mean that we agree with what it’s saying, but there are strict criteria for banning organisations and when those enquiries were undertaken we didn’t have sufficient evidence.”

Hizb ut-Tahrir states on its website that it wishes to convert nations peacefully rather than by force, and that terrorism and killing innocent people is against Islam.

Obviously I don’t want Hizb ut-Tahrir to succeed in its goal of establishing a Shari’ah law regime in Australia. The group’s video is somewhat scary, and its aims are highly distasteful to me. However, as long as Hizb ut-Tahrir wishes to discuss such a notion peacefully, I support its right to do so, no matter how repugnant I find its view. I’m not a fan of evangelical Christianity, either, but I support the right of Catch the Fire and its pastors to discuss Islam and its perceived shortcomings from a Christian perspective (as long as the pastors are not suggesting all Muslims should be lynched or something like that). As I have said in my post on freedom of speech, sometimes it involves allowing people to do things or to discuss notions which are totally repugnant to the majority of people. Drawing that line can be very difficult, but it’s worth allowing discussion and debate.

The ironic thing is that often groups which need freedom of speech to discuss their ideas would severely limit freedom of speech if they ever came to power. I doubt freedom of speech is part of Hizb ut-Tahrir’s proposed global Shari’ah law. It’s all rather funny really.


I recommend Irfan Yusuf’s recent post on this issue. He puts Hizb ut-Tahrir in perspective without denying the deeply unsavoury nature of the group.



Filed under christianity, freedom of speech, islam, religion

15 responses to “Religion, freedom of speech and vilification

  1. skepticlawyer

    It’s interesting that the YouTube vid is meant to be a promotional piece. I think they need to hire a better advertising agency, frankly.

  2. Legal Eagle

    I guess if you are a religious fanatic, you think everyone else is (or should be) on the same wavelength as you are. All a bit scary from my point of view, but as long as they keep it peaceful, I’ll sit back and let them advertise whatever crack-brained idea they want.

  3. Law Student

    Nice post. The Hizbos are seriously lost. Imposing Islam, let alone the Sharia, on non Muslims is strictly against the teachings of the Koran itself.

    Another thing; common use of the term ‘Shariah’…

    Sharia literally means something which has been explained. However, the media always but always translates Sharia as amputating the limb of a theif, or beheading one convicted of murder. This is a minute part of Sharia.

    Sharia covers everything which affects society. From murder and theft, to banking and financial transactions, property rights, divorce and marriage, wills and inheritance etc…

    Before Common Law came across the concept of a Duty of Care involving road users, driver/passenger, teacher/pupil, occupier/invitee, master/servant etc… these were all elaborated in Sharia texts 1200 years ago.

  4. Legal Eagle

    My understanding is that Sharia law is very similar to the body of law contained in the Jewish Talmud (the halakah) ie, a collection of interpretations by eminent scholars of the rules stated in Qu’ran and hadith.

    So it deals with everything (rules with respect to worship, commerce, family, criminal law, sexuality etc). As you say, it’s not just about stoning adulterers, although laws of Zina (adultery) are a part of the body of Sharia law.

    In terms of Jewish law, there is a Beth Din in Australia (court of Rabbis) which applies the halakah to those people who choose to accept them as binding (covering marriage, divorce, conversion and the like).

    In a similar vein, if some Australian Muslims want to follow the precepts of sharia law (insofar as they do not clash with the precepts of Australian law) I’ve got no problem with them chosing to do so. I guess the problem is that Sharia law purports to cover all aspects of life, and is inconsistent with Australian law in various respects.

    The thing that really gets my goat is when groups such as Hizb ut-Tahrir infer that I should have Sharia law imposed upon me. I am not Muslim and it is not part of my culture.

  5. Law Student

    You correctly point out that the Sharia is “a collection of interpretations by eminent scholars of the rules stated in Qu’ran and hadith.”

    It should be noted that the Quran and Hadith are the cornerstone for the Sharia.

    Life today is very different when compared to life 1400 years ago. So when new situations arise (which the Muslims didnt encounter 1400 years ago) then the scholars make the rules as long as they dont contradict the primary sources, that is the Quran and Hadith.

    The Quran/Hadith doesn’t dictate on every possible situation one might encounter during their life time. Thus the large portion of the Sharia is man made.

    Also, unlike Common Law, the ruling verdicts of the Islamic judiciary doesn’t set a precedent. There isn’t a doctrine of precedent, and judges don’t rule similar to their predecessors and superiors when facing similar situations. Each situation is dealt with differently.

    People should also be aware that the only time, first and last, where Sharia was implemented as a whole was probably in the time of Mohammed himself. Saudi Arabia and Iran are very far from it.

  6. Law Student

    “I guess the problem is that Sharia law purports to cover all aspects of life, and is inconsistent with Australian law in various respects.”

    There is an example that comes to mind. The Quran prohibits anal intercourse. This is part of Sharia. Abiding by the teaching is entirely up to the individuals. If the individuals envolved engage in anal intercourse, the state wont punish that. Or for men shaving their beards, although the Prophet said let your beards grow, men who dont wont recieve a punishment.

    “The thing that really gets my goat is when groups such as Hizb ut-Tahrir infer that I should have Sharia law imposed upon me. I am not Muslim and it is not part of my culture.”

    It is insane isn’t it? As humans people should be allowed to follow whaterver they want.

  7. Legal Eagle

    Law Student, you raise something which I was wondering about. Hizb ut-Tahrir is mourning the demise of the Caliphate at the turn of last century, but did that truly implement Sharia law? For the reasons you outline, I suspect it did not. As you say, probably the only time Sharia law was ever truly implemented was at the time of Mohammed.

  8. Law Student

    “did that truly implement Sharia law?”

    The Ottoman Caliphate, like the great majority preceeding it, did not implement the Sharia as a perfect whole.

    There is a saying of Mohammed which goes: The best of my community (Ummah in Arabic) will be in my life time.

    So if we take Mohammeds reign as the ideal, each one succeeding it will be so much more in error than the previous. However, the four caliphs following Mohammed are also widely viewed as being ideal.

    Moving on to Hizb ut-Tahrir…
    There was a time when Islam and Muslims made many advancements in many areas including military technology, medicine, music, finance, greek philosophy, postal systems etc…This is widely labelled as Islam’s Golden Age, which was then passed into Europe and resulted in the Renaisance (spelling??). Hizb ut-Tahrir want’s to get there again and thinks the avenue to do so is via the Sharia.

    I find that argument incorrect. Why? because sharia implementation during this age was far from being perfect.

    For example, Music was rife and embraced widely, despite having sexual themes. If Sharia were to be implemented, then sexual themed Music should have been banned and the musicians dealt with accordingly.

    Another example is that Muslim scholars interpreted Greek philosophy into Arabic then into the European languages. As a result, they were exposed to Greek theology and simultaneously influenced. There are numerous books written by still-much-praised scholars that tantamount to blasphemy and question the oneness of God. However, they weren’t sanctioned for blasphemy as many people would think required by the Sharia due to widespread encouragement of free independent and creative thinking amongst scholarly circles, and many Muslims who know them still praise them 700 years on today.

    Sorry for the essay.

  9. Legal Eagle

    Seems to me that the best way for a society to advance and grow is to be open to new ideas, and willing to change. If you are always trying to turn things back to the past, you can’t improve.

    I also studied Crusader history – at that time Islamic culture was liberal and open minded in comparison to Frankish culture, from what I read. Perhaps this is what made Islam great, rather than Sharia law? If I were a Muslim today, I’d be pushing for a return to that open mindedness and liberalism rather than a return to Sharia!

  10. Law Student

    Just a reminder about the term Sharia. It is a body of law equivalent to our common law. Its an evolving entity and not limited to one time or space.

    ‘Sharia’, the Quran and Hadith aren’t against the advancement or progression of individuals or society.

    Two saying of Mohammed come to mind.

    1. Attaining knowledge is compulsory upon every male and female.

    2. Seek knowledge even if you have to travel to China.

    The first 5 verses revealed from Gabriel to Mohammed were:

    Read! In the name of thy Lord and Cherisher who created.
    Created man out of a mere clot of congealed blood.
    Read! And thy Lord is Most Bountiful.
    He who taught the use of the pen.
    Taught man that which he knew not.

    Now, the above Quranic verses and Hadith are part of the Shariac foundation. They encourage the seeking of knowledge. These definately played a part in the emancipation of previous Muslims.

    If the Hizb ut-Tahrir want to progress i dont think, as you mentioned, its done by “turning things back to the past.”

    They have to start using their women population as half of societys talent lies with them. They have to allow free enterprises. Freedom of religion should be brough back, political dissent and freedom of speech should be allowed, the traditional Islamic welfare system (Bayt al Maal) should be re introduced. All Royal families should be made powerless and symbolic, father to son presidency should be removed, oil revuneus should be fairly distributed etc…Muslim countries are so much blessed with mineral and resources, yet all their GDP’s combined is less than that of Germany.

    Simply, there is lots of room for change.

  11. Legal Eagle

    I like the way you think!

  12. Regular reader

    Sorry, Legal Eagle, but I don’t agree with you or the Court of Appeal on this one. In the passage of the judgment you have reproduced, the Court ignores that there is an exemption in the Racial and Religious Tolerance Act specifically for good faith religious speech such as evangelical Christians might engage in. This was included at the time the Act was first passed to recognise that otherwise such speech might indeed be caught by the Act.

    I have read what Catch the Fire and the Pastors said, and with all due respect, I think it was pretty bloody offensive and definitely likely to incite seriously negative thoughts about Muslims!! This so-called distinction between inciting hatred towards Muslim beliefs as opposed to towards Muslims is too cute by halves. And in any case, they did say things about Muslims, not just Muslim beliefs. I think when you tell your audience that Muslims are going to breed until they have the numbers to take over Australia, you’re going beyond talking about religious beliefs and vilifying people simply because they are Muslims.

    I am, unlike you, a supporter of anti-vilification legislation. I agree with you that suing someone for what they said it not always the best way to deal with vilification or bigotry, but then again, legal action is not a great solution to a whole lot of problems. But anti-vilification legislation does send an important signal to the community that such conduct is not considered acceptable, and over time this can change people’s attitudes to such conduct – effect what’s in their heads, as you put it. For example, there was a huge outcry about anti-sexual harassment legislation when it was first introduced, with many arguing that we should work to eliminate such harassment but not try to legislate against it. But I would argue that the legislation has been extremely effective in helping to change attitudes to what was once considered normal conduct – it is not considered ok anymore (which unfortunately doesn’t mean it no longer happens, but that can be said of all crimes and legislatively sanctioned conduct, really). Also, sometimes legal action can be very useful (which having the legislation enables), as it not only helps an aggrieved person in serious cases, it also allows test cases to be run which raise public awareness of the issues and further communicate that the conduct is not acceptable.

    Freedom of speech is important, but it has simply never been an unfettered freedom. Defamation and perjury are longstanding examples of limits on freedom of speech that our society has accepted. I personally think that preventing extremely harmful and offensive speech is a reasonable limit on freedom of speech. In fact, I am hopeful that at some point in time we can have further anti-vilification legislation, as I can imagine it would be nice to be able to walk down the street with my partner and not worry about being abused – governments sending a message that homophobia and homosexual vilification are not acceptable would be wonderful!!

  13. Legal Eagle

    Disagreement is the spice of blogging life!

    I still think there’s a subtle distinction to be drawn between being offensive (which the Pastors certainly were) and inciting hatred. If the Pastors had been telling their congregations that all Muslims should be disliked, shunned, violently attacked, made to wear yellow crescents, thrown out of Australia, put into detention, or anything like that, I would have thought there was no question that the offence of inciting hatred would be made out.

    It is a difficult line to draw, though. It is true that the Holocaust, the Rwandan genocide and the like were able to be committed because people had been persuaded that one particular race or religion was inferior. In an earlier post, I have said in comments that my heart tends towards banning any offensive material of the sort promulgated by the Pastors, but my head tends to think that it should be allowed.

    Do you think that the legal action has made the Pastors, their congregations, or indeed, any member of the public feel any differently about Islam? I suspect not.

    I, too, would love it if you could walk down the street with your partner, and not be abused. It makes me feel very angry to think of you having to put up with that. But I’m just not sure vilification legislation would achieve that (without introducing some kind of discrimination police – which opens a whole can of worms). The only thing which will achieve it is societal change, and I don’t think vilification law can change society – all it can do is respond.

    I think education and an increased openness to difference is the future. Certainly, I will be bringing my daughter up to be accepting of every race, religion and sexuality – as long as someone is a nice person, they’re okay by me!

  14. I am an Athiest and do not believe!
    I either know! Or I don’t know!
    To believe is to say you know without proof!
    That is why believers need blind faith to support their beliefs,.. and to overcome doubt!
    You don’t know, and you don’t understand, but you don’t have to know, and you don’t have to understand, because you have FAITH!… BLIND FAITH of what is real and true!
    To doubt is to question, and the act of questioning means that you are lacking in faith!
    You must accept without questioning to be a true believer!

    That is why people with strong beliefs are opposed to our modern society and modern science! Modern science tells us that when you try to discover if something is true or false that you have to gather evidence and approach that evidence with an open mind and not pre-judge the outcome until you have enough evidence to say that within the laws of probability that what you are trying to discover is true under certain specific conditions and as long as those specific conditions that are known remain somewhat the same the outcome will be somewhat the same!

    I do not live in fear that I will be judged by a higher power that will cause me to burn in hell for an eternity, because I don’t worship him and kiss his feet!
    That kind of an egotistical god can kiss my ass!

    I respect all life! All living things! As far as I know, this is it! There is no life after death!…So it becomes my passion to respect and love all living things because we are all here together at this moment in time and when that moment is over we will all become dust and we all will in time be forgotten!
    Unless science can prove otherwise!
    Richard Walters

  15. Pingback: Rethinking vilification « The Legal Soapbox

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