PUBLIC (DIS)ORDER AND PUBLIC (IM)MORALITY: AN INTRODUCTION TO THE SPRING 2015 ISSUE

In June of 2013, I co-convened with Haris Tarin a working group at the US-Islamic World Forum in Doha, Qatar. The working group, titled, “Rethinking the ‘Red Line’: The Intersection of Free Speech, Religious Freedom, and Social Change,” explored core questions facing lawmakers, politicians, and the Muslim community today, both in the West and in Muslim-majority countries. These questions include the following: What are the various standards for free speech under international law, the laws of Muslim-majority countries, and in the Islamic theological and legal framework? What are the critical differences among these standards? What are the sources for those differences? What type of underlying concerns does each standard respond to? How do varying standards impact their respective societies? Do some standards work better than others in achieving social peace and stability? What is the potential for abuse, and is it greater for some than others?

The idea was to work with our diverse participants to find common ground. Among its many areas of discussion, the group considered the adverse effects of criminalizing speech, and broke down familiar rationales for speech-restrictive laws; for example, these laws are often justified on the basis of “public order,” when in fact they exacerbate public disorder.

This special issue of The Review of Faith & International Affairs serves as a follow-up to this latter component of the Doha working group discussions. It looks at not just the “public order” (ordre public) exception but also the “public morality” exception to free speech and religious freedom protections. In one form or another, such exceptions have long been part of human rights declarations and law, both at the national and at the international level.

In the 1948 Universal Declaration of Human Rights (UDHR), for instance, Article 29(2) states:

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others, and of meeting the just requirements of morality, public order, and the general welfare in a democratic society. (emphasis added)

Similarly, the International Covenant on Civil and Political Rights, Articles 18–19 on religious freedom and free speech, include the exception. Article 18 holds that: “[f]reedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, … or morals.” And Article 19 limits the exercise of free speech rights when required “[f]or the protection of … public order (ordre public), or of public … morals.

As the essays in this issue demonstrate, despite shared, international language on the need to limit rights to maintain public order and public morals, the public order and public morality exceptions are interpreted in sharply divergent ways in the United States, Canada, European countries, Muslim-majority countries, and at the international level. In fact, the scope of these exceptions lies at the heart of the disagreement on what constitutes a legitimate limit on speech and/or religion. And these disagreements affect the efficacy of advocacy efforts. This issue of The Review of Faith & International Affairs is thus produced with a very clear goal in mind: Fostering scholarship on these varying interpretations in order to produce more effective free speech and religious freedom reform, including legal challenges under international law.

Consider, for example, the case of Indonesia.¹ Indonesia is a signatory to the ICCPR and the UDHR and has further outlined its commitment to these international instruments in its Human Rights Act of 1999 (HRA), the preamble of which states,

As a member of the United Nations, the nation of Indonesia has a moral and legal responsibility to respect, execute, and uphold the [UDHR] promulgated by the United Nations, and several other international instruments concerning human rights ratified by Indonesia.²

The HRA goes on to acknowledge that these instruments are “legally binding in Indonesia.”³ Indonesia ratified the ICCPR in 2006 without reservations and, in doing so, pledged to protect the complementary freedoms of expression, association, and equal protection, for both religious majorities and minorities.⁴

And indeed, when the Indonesian Constitutional Court upheld the Indonesian Blasphemy Act in response to a 2010 legal challenge, it indicated that it was respecting identities and protecting human rights. More specifically, the court sought to demonstrate the legitimacy of the Blasphemy Act within the framework of international law. It invoked the ICCPR, Articles 18–19, and in particular, the public order exceptions in each of those provisions.

However, the court also made clear that it defines human rights differently from the West. For example, it held that the rights in question are not the rights to choose or change one's religion or freely to express oneself in the public square. Rather, the language of human rights (more specifically, the public order exception) is used in this context to delineate a supposed right not be offended or insulted in one's religious sensibilities, as if they were a kind of property the law protects against trespass. To define human rights in this way means criminalizing not only the intentional mocking or ridiculing of religion but also genuine doctrinal disagreement. In the case of Indonesia, to be a member of the Ahmadiyya, a minority sect of Islam, is to violate the rights of the majority, regardless of how respectfully one expresses one's views. To express Ahmadi beliefs, in other words, is to violate human rights. By describing the Blasphemy Act as within human rights norms, the Indonesian court thus used the language of human rights to put severe limits on the freedoms of religion and expression.

Such a reading of human rights is all the more problematic given that after defending the Blasphemy Act on international law and constitutional grounds, the court conceded that it had been applied in problematic ways. The court viewed the abuses endemic to the act, however, as simply incidental, stemming merely from a problematic application of the law, which thus did not necessitate its repeal:

The Court is of the … opinion … that the imperfection of the application of the Law on the Prevention of Religious Blasphemy at the contextual level occurred due to misapplications; therefore it does not necessarily nullify the norms enshrined in the Law on the Prevention of Religious Blasphemy.⁵

The court feared that repealing the act without first enacting a better substitute would lead to “horizontal conflicts, anarchism, and religious misuse in the society.”⁶ This would also leave a legal vacuum, an “absence of general guarantee of protection which raises the concern about vigilante actions because (the) law enforcement apparatus will forfeit their legal basis … to prevent religious misuse and/or blasphemy.”⁷ The irony is that the types of vigilantism and disruptions to public order that the court sought to avoid were already occurring under the guise of the Blasphemy Act it upheld. The Law was more cause than cure of public disorder.

Similar problems are also evident in blasphemy cases in Pakistan, where both the public order and public morality justifications are commonly invoked. Consider the 1993 Pakistani Supreme Court case Zaheeruddin v. State:⁸ The case was brought by a group of Ahmadis appealing their convictions under Pakistani blasphemy laws and Ordinance XX, which criminalized various forms of Ahmadi public worship. The appellants, who had been sentenced to a fine and imprisonment for wearing a badge with the Islamic declaration of faith (“There is no God but God, and Muhammad is the Messenger of God”), challenged the constitutionality of the Ordinance (Siddiq 1995, 288). The court, in a 4 to 1 opinion, held that Ordinance XX did not violate religious freedom and was constitutional.

The court's rationale was based primarily on concerns about public order and public morality. In fact, one of the central tasks for the court became the interpretation of the “law, order, and public morality” exception in Article 20 of the Pakistani Constitution.⁹ The court addressed both by holding that public religious expression by Ahmadis was offensive to Pakistan's orthodox Muslim citizens and could lead these offended citizens to engage in violence (Khan 2011). The court reasoned that, since Ahmadi practices can elicit violent reactions, the Pakistani government had the power to restrict these practices.

The Zaheeruddin court referenced the ICCPR framework as a guidepost even before Pakistan was a signatory or party to the ICCPR, showing that Pakistan had, at some level, accepted it as legitimate (Khan 2003, 233). Pakistani jurists also contributed to Pakistan's opinio juris (an opinion of law) stating that the ICCPR affirms human rights norms; the Chief Justice of Pakistan's Supreme Court, Muhammad Haleem, stated at a judicial colloquium that:

a matter is essentially within the domestic jurisdiction of the state only if it is not regulated by international law … .The international human rights norms are in fact part of the constitutional expression of the liberties guaranteed at the national level (Khan 2003, 232–233).

Despite all of this, the Zaheeruddin court used the public order and public morality exceptions to protect violent responses to Ahmadiyya religious expression in exactly the manner ICCPR Article 18 prohibits. Rather than controlling violence from extremists, the court's decision gave the government carte blanche to bully religious minorities (Uddin 2010).

These cases demonstrate that looking beyond international human rights language is essential. How is the language—in particular, the language concerning exceptions—being interpreted in different cultural and legal contexts? And, how can we achieve consensus on the proper interpretations?¹⁰

The pieces that follow examine the theoretical foundations and the contemporary uses and abuses of the “public order” and “public morality” exceptions to free speech and religious liberty protections (as well as related topics such as legal prohibitions on hate speech and incitement) in different national and international contexts. It is our hope that this special issue of The Review of Faith & International Affairs launches continued and focused examination of these exceptions and suggests new, effective avenues for human rights activism and reform.

Additional information

Asma Uddin is the Founder and Editor-in-Chief of altmuslimah.com, and Legal Counsel at The Becket Fund for Religious Liberty, a non-profit, non-partisan, public interest law firm based in Washington, DC. She is a frequent contributor to popular outlets and to scholarly journals including Rutgers Journal of Law and Religion, St. Thomas University Law Journal, Chicago-Kent Law Review, Washington and Lee Journal of Civil Rights and Social Justice, and the First Amendment Law Review. In June 2013, Asma co-convened a working group on free speech and religious freedom at the Brookings Institution's US-Islamic World Forum in Doha, Qatar.

Notes

1. Parts of the discussion on Indonesia are adapted from Uddin (2014a).

2. Act Concerning Human Rights (Law No. 39/1999), Preamble (d) (Indon.).

3. Ibid., art. 7(2).

4. ICCPR, arts. 19, 21, 26, 27.

5. Opinion of the Court, [3.65].

6. [3.42].

7. [3.41].

8. Parts of the discussion on Pakistan are adapted from Uddin (2014b).

9. Article 20 reads:

Subject to law, public order, and morality: (a) every citizen shall have the right to profess, practice, and propagate his religion; and (b) every religious denomination and every sect thereof shall have the right to establish, maintain, and manage its religious institutions. (emphasis added)

10. There is, of course, the very real possibility that the judges are misinterpreting international law intentionally. For purposes of this legal analysis, however, I am taking the explanations at face value.