Robert C. Blitt on Tunisia: Springtime for Defamation of Religion

Robert C, Blit is an Associate Professor at the University of Tennessee College of Law and before that he served as International Law Specialist for the U.S. Commission on International Religious Freedom (USCIRF), an independent, bi-partisan agency created by Congress to monitor the status of freedom of thought, conscience, and religion or belief abroad. 

(Professor Blitt)

Professor Blitt has written a valuable opinion essay in which he recent efforts to criminalize blasphemy in Tunisia in the wake of their version of "Arab Spring" should be a cause for concern   that the US and other countries should contest in an effort to protect international human rights norms  Robert C. Blitt, Tunisia: Springtime for Defamation of Religion, JURIST - Forum, Aug. 13, 2012, http://jurist.org/forum/2012/08/robert-blitt-tunisia-defamation.php.  This post includes that essay and some thoughts that it provoked.

Tunisia: Springtime for Defamation of Religion

JURIST --FORUM Aug. 13, 2012

The US Department of State and numerous human rights organizations have prematurely heralded the end of attempts to entrench an international norm prohibiting blasphemy at the UN. In 2011, Human Rights Watch (HRW) celebrated what it labeled the implicit rejection of defamation of religion and US Ambassador-at-Large for International Religious Freedom Suzan Johnson Cook touted as "historic" the UN Human Rights Council's (UNHRC) decision to forgo — for the first time in over a decade — a resolution addressing defamation of religion.

What was ignored during the self-congratulatory period that followed is the stark reality that the Organization for Islamic Cooperation (OIC) — the primary backer of the ban on defamation of religion — in no way considers the concept implicitly rejected or, for that matter, a relic of history. On the contrary, Pakistan's ambassador to the UNHRC, while representing the view of the 56 OIC member states, affirmed that a new consensus resolution addressing the need to combat intolerance did not replace "earlier resolutions on combating defamation of religions which...continue to remain valid." Several months later, to underscore the point, the OIC renewed [PDF] its standing resolution reaffirming the existence of an international norm outlawing defamation of religion. It also lent defamation of religion preeminent status as a core issue in its annual Final Communiqué — outweighing consideration of nuclear disarmament and the conflicts in Afghanistan, Syria, and Iraq combined. Confronted with these telling indicators, the administration of US President Barack Obama opted for silence as a policy response at every turn. And now, the US government stands poised to be the bankroller for a new crop of legislative efforts to prohibit blasphemy in states transitioning to a post-Arab Spring era of democratically elected governments.
Evidence of this phenomenon is embodied in a national assembly bill introduced last week by Tunisia's ruling Islamist Ennahda (Renaissance) party. The new law proposes to criminalize any blasphemy of the Abrahamic faiths, whether by statement, act, or image, regardless of whether the expression was intended as a mere insult or an effort at irony or sarcasm. As punishment for such expression, the law would mete out prison sentences ranging from two years to four years for repeat offenders. Similar restrictive laws have existed for decades in states such as Egypt, Pakistan, Saudi Arabia and Indonesia, but have no place in a genuinely free and democratic Tunisia.
This blasphemy tipping point comes on the heels of Ennahda's ninth congress, wherein the movement promoted itself as a moderate and centrist Islamic political party. The legislative bill also appears to contradict assurances made by Ennahda's secretary general — the newly elected Prime Minister Hamadi Jebali — that a post-Ben Ali Tunisia would remain neutral towards religion, neither encouraging nor interdicting manifestations of religion. In some respects, Ennahda's definition of moderate and centrist was already on the proverbial fence. By inviting Hamas leader Khaled Mashaal to its historic congress, Ennahda provided a high-profile platform to an Islamic movement that has put off democratic elections while fostering a climate of fear in Gaza where so-called honor killings are condoned, morality police enforce orthodox Islamic customs and non-Hamas-affiliated Muslims and Christians suffer harassment and attacks that go unpunished. Despite Jebali's claim that the state would remain neutral towards religion, In an interview with Le Monde, he asserted — without bothering to seek further clarification or elaboration — that any publication of images of God or Islam's prophets would be "more a provocation than a matter of freedom of expression."
Ennahda's decision to prioritize anti-blasphemy legislation in the face of the country's ongoing and profound economic and social crises is deeply troubling for a number of reasons. First it validates recent judicial travesties in Tunisia resulting in convictions ranging from a fine for disturbing public order and threatening proper morals for screening the film Persepolis to a seven-year jail term for posting pictures of the Prophet Mohammed on Facebook. Second, the move lends succor to Tunisia's Salafists who continue to lash out violently across the country demanding the establishment of a strictly Islamic state, apparently motivated by the slightest perceived provocation — including artwork deemed insulting to Islam.
More generally, the course being mapped by Ennahda fails to comport with Tunisia's international human rights commitments, which obligate the state to safeguard the rights of freedom of expression and freedom of religion or belief. Simply put, criminalizing lack of respect for a religion is incompatible with the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Equally concerning, Ennahda's approach reveals an underlying formulation of religion premised on discrimination and chauvinism, whereby the state protects the religious sentiment of certain select faiths while laying the groundwork for free incitement against others, including Muslim dissenters, secularists, atheists and other non-recognized religious minorities. This approach is also fundamentally at odds with international human rights law, which prohibits discrimination in favor of or against select religions.
The US and other governments that have supported democratic transition in Tunisia thus far can and must take a clear and credible stand against any effort to unduly limit freedom of expression and freedom of religion or belief. In May 2012, the US government made a $100 million cash transfer to the Tunisian government intended to provide the country with short-term fiscal relief. In addition, only last month the US pledged its full faith and credit for the repayment of loans taken out by Tunisia on the international market. Rather than remain silent — as was the case last February when confronted with Malaysia's outrageous decision to deport 23-year-old Hamza Kashgari to Saudi Arabia for the 140-character crime of tweeting about the Prophet Mohammed — it behooves Obama to put Ennahda's vision of democracy to a simple litmus test. If the new leadership in Tunisia insists on curtailing the protections afforded under the "international bill of rights," our political and financial backing of Tunisia's transition must necessarily be halted. If Secretary of State Hillary Clinton is correct, and the world is in fact "sliding backwards" when it comes to guaranteeing religious freedom, there can be no justification for the US underwriting that backslide with its full faith and credit.
Robert C. Blitt is an Associate Professor of Law at the University of Tennessee, Knoxville College of Law, where he teaches international law, human rights, and European Union law. His published scholarship on defamation of religion and other issues is available on SSRN.
Suggested citation: Robert C. Blitt, Tunisia: Springtime for Defamation of Religion, JURIST - Forum, Aug. 13, 2012, http://jurist.org/forum/2012/08/robert-blitt-tunisia-defamation.php.

(Pix (c) Larry Catá Backer 2012)

Bravo. Professor Blitt nicely points to a point of divergence between the development of consensus at the international level of an appropriate relationship between a state and religion,  on the one hand, and the equally powerful development of a quite distinct consensus on that point within the domestic legal orders of states. The international community has been fairly strong in advancing its views among the members of its community--but it has been much more timid in exporting its consensus from the halls of Geneva to the street of many states where the international consensus might be understood as abomination. More interesting is the way in which, within domestic legal orders worried about human dignity, the ideals of preservation of personal autonomy as a bundle of negative rights ("to be protected against") has morphed into a set of positive obligations ("the right to prevent others from acting").  That morphing necessarily privileges the object of positive obligation against the values that may be curtailed as a consequence of that protection (expression, belief, conduct, and ironically dignity).  The international community, and the West especially, is conflicted about the appropriate space for religion within political communities, especially plural communities.   (e.g., The Veil--Torn Between Religion and Law in Spain;  Religion, Social Norms, and the State--The 2012 Letter of the Sacerdotes Mayores de Ifá of Cuba;  Religion in the Service of the State: Schools of "Soft Islam" in Britain;  Fides et Ratio: Religion and Law in Legal Orders Suffused by Faith; and Offending Religion.

But Professor Blitt is correct both as to the effect of recent legislative moves in Tunisia.  Left unchecked, these moves privilege religion, an ideal anathema to emerging consensus in international human rights, but a very real concur.  (e.g., Creeping Toward Theocracy Without Constitutionalism in Indonesia: Using the State to Suppress Competitor Religions). He is also right to remind states, like the United States, of their obligations to shape their foreign policy to conform to the international consensus on human rights respecting religion. 

But then I began to consider the enormity of Professor Blitt's quite sensible analysis, and the difficulty of moving in the direction that he suggests.  The United States has been complicit in the development of constitutional orders that privilege religion, and the dominant religion of a polity in particular--that is illustrated in both the Iraqi and Afghani constitutions (though there are any number of our colleagues in the academic and political community who would disagree strongly) as well as some solicitude for the tame Islamic party's efforts to undo the secular state principles in Turkey (e.g.,Of Political States and "Soft" Religion as the Basis for State Organization) (again some of our colleagues would disagree, having a different and from my perspective peculiar vision of the relationship between majority religion and the state). From there I thought, well, if that is the case, then the U.S. is hardly in a position to take a strong position against these laws, having, in my view, been itself a principal agent in fostering regimes in which support for these types of rules would be constitutionally permissible.  This might explain, in part, the U.S. reluctance to take a stance in Tunisia--beyond the usual measure of inattention and confusion that sometimes follows movements of these kinds abroad. 

Then I started speculating.  I thought about why the United States might be less enthusiastic than it should be. That got me thinking about anti-blasphemy laws, discredited within the logic of modern human rights norms as altogether too crude a vehicle for the vindication of religious dignity. Defamation of religion, on the other hand, might work better within the rhetorical tropes of human rights discourse, a state of affairs suggested int he difficulty in rejecting its embrace at the international level. Professor Blitt reminds us that many people see through this.  But I have always thought that the strength of the supporters of this approach has always been underestimated. In the United States, which is where your argument took me (of all places) I started thinking about the move within religion clauses discourse to privilege religion (clearly not everyone agrees but I think I can count maybe 4.5 on the U.S. Supreme Court that might agree) and thought that for at least a faction of those folks, the idea of legal regimes protecting against defamation of religion would be useful, especially if the concept of defamation could be used instrumentally, as it has been in some in Muslim majority states, to discipline minority religions into an effectively subordinate place in the polity. (e.g., Ruminations XXXV: Blaspheming Law). So this move would be viewed as a good thing by people in this country who do not view the exercise of merging religious and secular law as wrong, just that in other states they chose the "wrong" religion. The problem in the U.S. especially, however, is that for the moment there is a sense that one cannot discriminate against any particular religion (or "not religion") so that even if we could move toward a defamation of religion standard it would have to make room for religions traditionally suppressed (like Santería and the Wiccans) something that mainstream religions with political agendas have grudgingly tolerated for the moment, satisfied merely to increase the transaction costs for those religions to vindicate their rights (for example the Wiccans and Arlington cemetery).  

I wonder, then, whether Ennahda in Tunisia is a harbinger of a substantial split in global consensus about the relationship of religion and the state, even in plural societies. Even as the international community refines an elegant system of human rights grounded in the notion of a political state as a space for the peaceful and equal co-existence of a variety of religious and ethnic groups, the volkish aspirations of ethnicity and religion (and a combination of both in places like Malaysia where ethnicity and religion have fused in a distinctive manner) is also being refined and implemented to reinstate religious and ethnic hierarchies using some of the rhetoric of modern human rights discourse to undo its objectives.