MUSLIM IDENTITY IN EUROPE AND THE PENDULUM OF LAW & POLITICS

Two years ago, in 2018, the European Court of Human Rights (ECtHR) established a

precedent to protect the identity of Muslims living in the European states. The decision in E.S

vs Austria (app. No. 38450/12, Eur. Ct. H.R. 41, 44 2018) was upheld and it was declared that insulting, defaming, disrespecting or abusing a Prophet of Muslims was unlawful,

impermissible, illegal and hence forbidden. In an Islamophobic world, the decision was

welcomed not only by Muslims but every minority who was going through the crises of

identity. Thus, a beacon of hope was lighted which gave not only the Muslims of Europe but

every disadvantaged group a signal that if not anyone, the law will protect their values,

principles, belief and hence identity.

The decision was not easy to reach. On one side, liberal values were underplaying through the doctrine of “freedom of speech and expression”. Hence, relying on article 10 of the European Convention of Human rights, the accused claimed that calling a Prophet of Muslims a “paedophile” falls in the ambit of freedom of expression. Clause 1 of the mentioned article provided “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” One the other side, the issue of rights of Muslims was raised which endangered the sanctity of their identity. Disrespecting a Prophet was considered disrespect of religion and consequently disrespect of the identity of the person who holds that belief.

(Ilustrado por: Taerim Lee)

The court decided blatantly. Clause 2 of the same article was referred and the scope of

freedom of expression was limited as the article provided “freedom of expression may be

subject to such formalities, conditions, restrictions or penalties as are prescribed by law and

are necessary in a democratic society, in the interests of national security, territorial integrity

or public safety, for the prevention of disorder or crime, for the protection of health or morals,

for the protection of the reputation or rights of others, for preventing the disclosure of

information received in confidence, or for maintaining the authority and impartiality of the

judiciary.” Defaming, insulting, or giving remarks such as “paedophile” to a Prophet was

deemed beyond the limits of freedom of expression. Hence, a clear message was given that

Muslims identify with their Prophet and thus protecting the sanctity of the Prophet is protecting

their identity. Moreover, the decision of ECtHR was not merely persuasive. As a matter of law,

the judgement of ECtHR was binding, and all European states were required to follow it. This

is the reason, perhaps, why Muslims of Europe cheered on this recognition.

However, the gameplay of power and politics extinguished the importance of this

decision. Europe was hit by inciteful incidents in 2020 which nourished hatred against

Muslims. A tragic event happened in France, in which a teacher made cartoons against the

Prophet of Muslims. She was murdered by a Muslim student. French authorities took

immediate action and gunned down the criminal. Hence, a mentally unstable student who took

law in his own hands was punished by French authorities. Nevertheless, what followed after it

made the event more tragic. The French government announced full support for defaming the

Prophet and favoured cartoon competition against him. The results were astonishing. Hate

crime rose in almost all European states with street violence and massive boycott of French

goods Internationally. The French government, nonetheless, stood its ground and decided that

being politically dominant, sovereign and powerful, the state will only accept its version of

freedom of expression.

Politics is dirty and the law has been dragged in this dirty play since forever. The

decision of the European Court of Human Rights was clear and the raison d'être for it quite

evident. It was established that freedom of expression cannot trespass the rights of others –

especially when public safety or prevention of disorder/crime is at stake. The law, hence, was

protecting those rights of Muslims which were very important for their identity. The political

turmoil of Europe and the stance of French government was, however, to the contrary – which

eventually resulted in retaliation and violations all over the world. Surprisingly, in the conflict

of law against politics, it was Muslim identity which remained blameworthy. It remained stuck

in a pendulum shift, where law gave them the room to identify with the sanctity of their prophet,

whereas politics denied the same under the guise of freedom of expression of the dominant

ideology.

(Sufi) Shahab E Saqib is a Visiting Lecturer & PhD scholar of Anti-discrimination and Human rights Law at

Dickson Poon school of Law, King’s College London. He works as teaching consultant for Oxford Summer

Courses and is an enrolled Lawyer at Higher Courts of Pakistan.

Email: shahab.saqib@kcl.ac.uk