Zainal Abidin Bagir
Gajah Mada University, Jogyakarta – Indonesia
A. Introduction
In 2011 the UN Human Rights Council adopted Resolution 16/18 on “Combating Intolerance, Negative Stereotyping and Stigmatization of, and Discrimination, Incitement to Violence, and Violence against Persons Based on Religion or Belief”. The resolution was then adopted by the UN General Assembly later that year and repeated in the following years (2012, 2013). This resolution was initially proposed by member countries of the Organization of Islamic Cooperation (OIC, previously Organization of Islamic Conference), an inter-governmental organization which has 57 members. The resolution intended to, among other things, provide protection for minority Muslims in non-Muslim countries. However, for 12 years before that, since 1999, a series of OIC-initiated resolutions for that purpose had been quite controversial. The resolutions first titled “Defamation of Islam”, then changed to “Defamation of Religions” were approved by almost all OIC members in the UN Human Rights Council (UNHRC) and UN, but gradually lost supports from others, especially Western countries, until it was abandoned in 2011.
While the new resolution on combating intolerance avoids most important weaknesses present in versions of defamation of religion resolutions, many authors and activists still suspect the new version. For some, it is simply not good enough, since any limitation to free speech, including in the form of vilification or insult is not acceptable, beyond what is already in the UDHR and ICCPR. There is no need to add or even underline the limitations. As such the OIC attempts, grounded initially on some ideas of “defamation of religion”, immediately become suspect. Even with the new resolution, the suspicion remains that the Muslim countries have not abandoned the defamation agenda for good, but that the change was simply a temporary strategic step.
The purpose of this paper is not mostly to address that debate between OIC countries and others, especially Western countries, but will look at the 15-year evolution of the resolution from a different angle and for a different purpose. From an international perspective, juxtaposing it with controversies such as the Danish cartoons which were regarded as insulting Muslims though their disrespectful depictions on the Prophet Muhammad, the resolutions were suspected to attempt to limit freedom of speech and criminalizes criticism of Islam. From the OIC’s standpoint, the resolutions were about fighting Islamophobia, and defending Muslim minorities in majority non-Muslim countries.
However, its latest, more inclusive, form the resolution may also be looked at from the viewpoint that, if implemented, it also speaks to Muslim majority states with non-Muslim minority populations. Such a resolution may be conceived as an alternative to domestic religious defamation or blasphemy laws existing in certain Muslim countries, i.e. by shifting the target away from the victimized minority non-conformist religious groups, which have become the victims of intolerance through religious defamation laws, to actors intolerant of the groups. This could be the case with, to take an example, the Indonesian defamation of religion law, an old law which has been surprisingly revitalized in the last decade and became a convenient medium of expression of religious intolerance toward groups such as the Ahmadiyya, the Shi’a, a number of mystical groups, and other non-conformist groups. What I am interested to show in this paper is the significance of the shift from defamation to combating intolerance as a resource to contribute to the evaluation of existing domestic defamation of religion or blasphemy laws, especially those still effective in Muslim countries and, further, the possibilities of revising such laws. My main example will be the Indonesian defamation of religion law. If this move is considered feasible, it would be a very significant progress in improving the situation of religious freedom in countries where such a law is still effective. Defamation of religion or blasphemy constitutes one of two major issues related to religious freedom in these countries, the other being the inter-related issues of proselytism and conversion.
B. Opposition to The Defamation of Religion Resolutions
The resolutions related to defamation of religion constitute one of the most important engagement of Muslim countries with the international human rights regime. The story started in 1999 when Pakistan, on behalf of OIC, proposed a draft resolution titled “Defamation of Islam” under the racism agenda to the UN Commission on Human Rights (UNCHR). The drafters were alarmed at the negative stereotyping of Islam and the tendency to associate human rights violations and terrorism with Islam; the international media portray Islam “as a religion hostile to human rights, threatening to the Western world and [it is] associated with terrorism and violence, whereas, with the Quran, Islam had given the world its first human rights charter…That defamation campaign was reflected in growing intolerance towards Muslims.” They called upon the Special Rapporteur on religious intolerance “to continue to devote attention to attacks against Islam and attempts to defame it.” Upon objections by some European states, Canada and India, the title was changed into “Defamation of Religions”. In the revised resolution, Islam is still singled out, yet the resolution passed without a vote and still bearing the title of “defamation”. The EU, however, has put a reservation on the meaning of “defamation”, which it does not understand as a legal term.
In 2000, the resolution passed without a vote again. Starting 2001 votes were taken, but until 2005 the resolutions passed. While speaking about defamation of religions, the language of the resolution, in the words of the representative of Guatemala in 2005, lacks balance since it gives more weight to Islam. The resolutions did put an emphasis on Islam and Muslims, especially Muslim minorities in non-Muslim countries, noting especially the repercussions following the 11 September 2001 events.
After getting more support for the resolution in 2006 and 2007, the objections to it strengthened further from 2008 to 2010. In a move to avoid the objections, the resolutions were made more pluralistic. For example, when mentioning instances of intolerance, discrimination and acts of violence, it adds with “including cases motivated by Islamophobia, Judeophobia and Christianophobia”. It also replaced “defamation” with “vilification”, although the title remained the same. But these moves apparently did not succeed.What happened in the UNCHR/ UNHRC was mirrored in the General Assembly (GA). The resolution was first introduced in the GA in 2005 by Yemen on behalf of the OIC. Subsequent resolutions were adopted until 2010, although the supports weakened.
There were several main arguments against the resolutions which were formulated with increasing clarity throughout the years by the opposing states, international NGOs, as well as academics.First, there was an objection on the analogy used between race and religion in these resolutions (the resolution itself was at some points tabled under the agenda of racism). This was seen as shielding religion, especially Islam, against criticism. Second, it was also seen as trying to protect religion, rather than individual believers – an approach which does not accord with the approach of human rights regime in general. Third, “defamation of religion” is an ambiguous concept, and as such attempts to restrict it may hinder free speech excessively. It may end up in states regulating what is considered the “correct Islam” against legitimate, well-intentioned criticism or internal Muslim reformist attempts. In general, it may put too much restrictions on free speech. When the United States, which does not even approve the limitation of speech allowed in ICCPR, became more active in the debate in 2008, it advanced this limitation on speech as its main argument.
A further criticism of the resolutions is directed against the majority Muslim countries themselves which have versions of defamation of religion/blasphemy laws. There is a justified concern that endorsement of the notion of “defamation of religion” at the level of UN would embolden the domestic laws in those countries. Another related argument is directed toward the attempt to connect defamation of religion and the violence that it causes, i.e. that defamation of religion must be stopped because it disturbs the public order –this connection is made stronger in the case of Danish cartoon affair. The fact is, the opponents of the resolutions argued, rather than maintaining harmony, such laws in many Muslim-majority countries have emboldened conservative groups and states to marginalize minority religious groups (mostly, although not exclusively, within the same religion) in the name of guarding what they regard as “orthodoxy”. So while there may be some relation between defamation and violence, it may go not in the direction argued by the proponents of the resolutions, but in the reverse.
C. From Combating Defamation of Religion to Combating Intolerance
2010 was the last year the defamation of religion resolutions was discussed in both the UNHRC and the GA. In March 2011, a radical (although not abrupt) change took place at the UNHRC. Instead of defamation of religion, the OIC proposed a resolution titled “Combating Intolerance, Negative Stereotyping and Stigmatization of, and Discrimination, Incitement to Violence, and Violence against Persons Based on Religion or Belief”. This time the resolution passed without vote and repeated in the following years. At the GA, the combating intolerance resolution also passed in December 2011, and repeated in 2012 and 2013 – all without vote.
The 2011 HRC resolution actually repeats the main concerns in previous defamation resolutions. It notes “the instances of intolerance, discrimination and acts of violence in many parts of the world, including cases motivated by discrimination against persons belonging to religious minorities, in addition to the negative projection of the followers of religions and the enforcement of measures that specifically discriminate against persons on the basis of religion or belief.” It encourages member states to address and combat “any advocacy of religious hatred against individuals that constitutes incitement or discrimination, hostility or violence.” But other than that, there was now no more specific reference to Islam, Islamophobia or Muslims. Also, the focus had now shifted from protection of religions to protection of persons.
Another important point concerns the use of legal or non-legal means. In general, rather than suggesting legal ways to combat defamation of religions, another important feature of the resolution is its emphasis on non-legal ways to combat intolerance. Legal means is still suggested but limited: “Adopting measures to criminalize incitement to imminent violence based on religion or belief” (italics added). But it recognizes that “working together to enhance implementation of existing legal regimes that protect individuals against discrimination and hate crimes, increase interfaith and intercultural efforts, and to expand human rights education are important first steps in combating incidents of intolerance, discrimination and violence against individuals on the basis of religion or belief.” It also suggested “open public debate of ideas, as well as interfaith and intercultural dialogues at the local, national and international levels” as a way to protect against intolerance. The means to foster a domestic environment of religious tolerance, peace and respect include “creation of collaborative networks to build mutual understanding, promoting dialogue and inspiring constructive action towards shared policy goals and the pursuit of tangible outcomes, such as servicing projects in the fields of education, health, conflict prevention, employment, integration and media education.”
The new resolution was followed up more enthusiastically by states as well as international NGOs. The most significant follow-up has been the Istanbul Process, a series of meetings launched in Istanbul as early as July 2011 by the US Secretary of State Hillary Clinton, the OIC Secretary General Ekmelledin Ihsanoglu and EU High Representative for Foreign Affairs and Security Policy Catherine Ashton. Since then, there have been four other meetings. However, Kayaoglu and Petersen question whether the meetings could bridge the old divides between the West and the Muslim world, or simply repeat old animosities apparent in the previous defamation of religion debates. At the third meeting in Geneva, while there were discussions about inter-faith dialogue as a non-legal means of combating intolerance, there was also a contentious issue of criminalization of hate speech, “invoking old fault lines between the Muslim world and the West and raising questions about the future of the resolution”.
Indeed, outside the meetings, there has been a worry that in the implementation process of the new resolution, OIC countries still entertained the idea of criminalizing defamation of religion and might have not fully abandoned the idea of defamation of religion. For example, Marshall and Shea maintain that “Blasphemy prohibitions are now being universalized at the UN through a back door. Traditionally narrow limits on free expression are being interpreted expansively to accommodate prohibitions against ‘religious hate speech’, which, in turn, is explicitly interpreted by the OIC as a ban on ‘defamation of religions’.” In an opinion article Shea sees that the Istanbul Process “offered a transnational venue for the OIC to reintroduce its anti-defamation push, just as the issue had been laid to rest at the United Nations.” Elizabeth Kendall, an Australian religious liberty advocate, goes even further, saying that actually the combating intolerance resolution is more dangerous than the combating defamation resoution. Quoting OIC sources, she shows that the intention of OIC with the follow-up meetings is actually to formulate “international laws preventing inciting hatred resulting from the continued defamation of religions.”For her, it is clear that the move from defamation to incitement is “not only totally consistent with OIC strategy since early 2009, but it actually advances the OIC’s primary goal: the criminalisation of criticism of Islam.”
The OIC was certainly aware of this suspicion. On October 2012, the Secretary General of the OIC said that the organization would not try again to table defamation of religion, but appealed for states to apply hate-speech laws concerning Islam.More positive comments were given recently (March 2014) in a joint statement by three NGOs, i.e. article 19, Human Rights First and Freedom House. The organizations opposed the earlier resolutions on combating defamation of religions, but welcomed the later resolution on combating intolerance. They called on states to implement the combating intolerance resolution. As one of guidance in implementation, it also specifically mentioned the Rabat Plan of Action. It is another initiative running parallel with the Istanbul Process, starting with four intensive meetings in 2011 and culminated in 2012 in Rabat.
D. The Shift from Defamation to Intolerance: The Future of Domestic Religious Defamation Laws?
While in the international forums OIC member states attempt to fight Islamophobia in places where Muslims constitute a minority, domestically a related but different problem is the prevalence of versions of blasphemy or defamation of religion laws in those countries, which are still effective (in some places, these laws are used more frequently in recent years. In this regard, the shift from defamation to intolerance and incitement may turn out to be helpful seen from the point of view of better protection of religious freedom in Muslim countries. While the attempt to criminalize defamation at the international level mostly targets Western countries with increasing number of Muslims, the debates around the idea and the eventual admission of OIC to shift the issue from defamation to intolerance could be a valuable resource to influence the domestic situation in OIC member countries.
According to Pew Research Center, in many countries blasphemy/defamation laws exist and are fully enforced. In others they still exist but are very rarely enforced or have not been enforced for a long time. As of mid-2009, 30% of 198 countries have regulations forbidding blasphemy, apostasy or defamation and they are still enforced in 44 of those countries. The highest percentage (80%) of countries with such regulations are in the Middle East or Northern Africa, followed by Europe with 38%, Asia-Pacific 30%, Sub-Saharan Africa 17% and the Americas 12%. The regulations are still enforced in many countries (14 countries in Europe, 12 in the Middle East, 12 in Asia-Pacific, three in Sub-Saharan Africa and three in the Americas).Recent developments in Pakistan and Indonesia show that such laws have been used more frequently recently.
With regard to Indonesia, the existing defamation of religion law has in the past few years become the object of scrutiny. The law was first enacted in 1965, partly to accommodate the interest of certain Muslim groups against the syncretic spiritual movements known as aliran kebatinan/kepercayaan (lit. streams of spiritual beliefs). In its vague wording, the law prohibits every individual from “intentionally, and in public, conveying, endorsing, or soliciting public support for an interpretation of a certain religion embraced by Indonesian people or undertaking religious activities that resemble the religious activities of the religion, where such interpretation and activities deviate from the basic tenets of the religion”. It is clear that the objective of this law is to guard certain claims to orthodoxy and fight syncretic movements.
In the first 35 years of its career, the law was used very rarely. Paradoxically, however, after the democratization that started in 1998 the law has been used much more frequently – from only 10 cases in 35 years (1965-2000) to around 40 cases since 2000. Not less importantly, the target of the law has become wider, now to include non-conformist or non-mainstream religious, mostly Islamic, groups. Not only the small groups that may be categorized as new religious movements, it also targets larger group such as the Ahmadiyah and, more recently, even the Shi’a, which is acknowledged as a legitimate Islamic sect by international Islamic organizations. In these latter cases, the law has become a means to guard narrow (and increasingly narrower) understanding of Islamic “orthodoxy”. Similar to the case of other blasphemy/ defamation laws, the vague wording of the law makes it prone to be used for a variety of different cases by either the more powerful religious groups or the state. The Indonesian law does not distinguish intentional defamation (and also “defamation” of teachings, house of worship or religious figures), deviation (from the mainstream understanding of the religion), or simply difference (in interpretations).
The recent increase in the use of the law is a paradox since immediately following the 1998 democratisation movement, human rights in general had actually found a much better grounding in the Indonesian state. Besides enactment of a new law on human rights and ratification of more human rights conventions, the second of the four Constitutional Amendments (2000-2002) managed to insert a wide-ranging article on human rights. Considering a few other developments, it can be said that the defamation of religion law has been revitalised.
Responding to this revitalisation, advocacy for religious freedom had developed from responding to specific court cases to bringing certain laws, including the defamation of religion law, to the Constitutional Court, a new independent body established in 2003 as another consequence of democratisation. The law was actually brought to the court twice (2009-2010 and 2013), and in both occasions the court decided to retain the law. The main argument of the petitioners concerns the discrepancy between the 1965 law and the Constitution, especially after its amendments, which has similar clause of restriction of freedom as in the ICCPR. The Ministries of Religion and Domestic Affairs defended the law as a way to protect religious communities from defamation of their religions. The argument runs as follows: defamation of religion may offend the sensitivities of certain religious groups, which then may incite violence; to prevent that and maintain public order, defamation of religion should be prevented, and as such there is a legitimate basis to restrict the freedom, to “defame religion”. The problem is that non-mainstream, unorthodox or non-conformist groups, which may have different interpretations from the mainstream groups within a religion, can be accused of defaming a religion. This is the case with the Ahmadiyya and the Shi’a.
While acknowledging the discriminatory potential of the law, the court agrees with that argument. With regard to evidence of discrimination, it faults not the law itself, but its implementation. That was part of the reason the court mentioned the need for revision, i.e. to make sure that the law, which is needed to maintain social order, does not go against Indonesian pluralism and become discriminatory.
The suggestion has not been followed up, but the issue of defamation of religion may be brought up when a planned law on religious harmony is discussed. Despite recommendations by domestic and international human rights organisations, as well as by states during the 2012 Universal Periodic Review of the UNHRC, the prospect of annuling the law is slim. The main consideration, as evident in the proceeding of the 2010 Constitutional Court’s review, is not merely legal; more important is the historical political baggage the law carried. The law constituted one of the landmarks of accommodation of certain Muslim political interests and one that has significantly defined state-religion relation in Indonesia. While completely annulling the law is highly unlikely in the near future, what may be done, following the suggestion of the Constitutional Court, is a revision of it.
The question is how can this law be revised so that it does not go against Indonesia’s commitment to pluralism and religious freedom? Is it even possible to do that? The Constitutional Court does not provide sufficient clues in this regard; it merely outlines, in passing, some broad constraints. It is here that the insights produced by the international debates on defamation of religion can be helpful. A number of ideas derived from the debate as discussed above can be outlined here.
First, shifting from the issue of defamation of religion to intolerance and incitement to hatred or violence means shifting the target of the discourse. The victims in the case of defamation of religion in Indonesia (or other Muslim countries) are usually minorities of religious individuals and groups (in most cases actually they are co-religionists) regarded as “defaming” the religion. They became the object of criminalization. In cases of incitement to hatred the perpetrators are the intolerant groups who, for the sake of maintaining their religious sensitivities, marginalize, criminalize or incite hatred and violence toward the non-conformists.
Second, while the concept of defamation requires, in one way or another, determination of orthodoxy, the concept of intolerance/incitement to violence is more concrete. It does not require orthodoxy but determines the perpetrators by more objective and tangible standards, i.e. the act of inciting violence. Surely, determining what acts constitute incitement to violence is not straightforward, but internationally there are more guidelines and more jurisprudence on this than on “defamation of religion”.Another related point here is the shift from protection of religion or a religious group to individuals.
Kayaoglu sees that those shifts indicate the victory of liberal ideas contra the Muslim standpoint. On a different perspective, however, it is also possible to conceive the shifts not as a move from Muslim to Western liberal ideals but, following Witte and Green, a shift toward pragmatism. Besides, conceiving a too stark contrast between Western liberalism and a more communitarian Muslim standpoint risks freezing or essentializing both. The fact is that within the internal Muslim discourse there has been a huge variety of standpoints, some of which are authoritarian, others democratic, some highly “communitarian”, but there are other equally and traditionally legitimate positions advanced by influential Muslim leaders which move more closely toward a certain type of liberalism. Relevant to this discussion are recent debates on the relation between democracy, secularism, liberalism and multiculturalism which open up the possibility of more positions, and more nuanced ones, on this issue.In short, rather than drawing stark contrasts between Muslim and Western ideals to devalue the shifts taken by countries in international forums, it is more productive in this regard to see both as dynamic, evolving and involved in dialogues. Furthermore, an analysis which looks at the so-called Western-Muslim fault lines could easily exaggerate the lines and as such arrest the attempted dialogues and negotiations at a too philosophical plane.
E. Conclusion
While for Western countries the combating intolerance resolution is suspected to restrict speech, in majority-Muslim countries like Indonesia, it should be seriously considered in the attempt at revising the defamation of religion law. Cases in Indonesia show that part of the reason for violation of the rights of vulnerable religious groups comes from intolerance, which is manifested in hate speech or even incitement to violence. “Combating intolerance” tends to fault the intolerant perpetrators of violation of religious freedom rather than the victims, who are usually members of vulnerable religious groups. It reverses the tendency apparent in the existing defamation of religion law, which is clearly intended to protect the majority or the mainstream religious groups.
Similarly, while the resolutions were initially intended to protect mostly minority Muslims in non-Muslim countries, it is now also expected to protect vulnerable minorities, Muslims or not, in other countries. As such, its main point of reference is protection of minority religious groups – regardless of the religious affiliation of the victims or the perpetrators – from intolerance, stigmatisation and incitement to violence. OIC, as the initiator of this resolution, is naturally demanded to persuade its member countries to protect their own religious minorities, without which calls to protect Muslim minority populations in the Western countries would not be credible.