Keane on South Park, Islam and Hate Speech: A European Perspective

We are delighted to welcome this guest post from Dr. David Keane. Dr. David Keane is a Lecturer in Law, Middlesex University, United Kingdom.  David researches and publishes on issues relating to human rights, minority rights, freedom of expression, racial discrimination and regional human rights systems. A full list of David’s publications can be accessed here. This is David’s response to my previous post South Park: ‘Religious Defamation’, Freedom of Expression & Human Rights

I hadn’t seen South Park in many years, but coincidentally happened to be watching last Wednesday when Episode 200 was shown. I realised that the portrayal of Mohammad dressed in a bear costume (although it turns out not to be him – see here) was going to re-ignite questions of religious defamation and freedom of expression, and wasn’t surprised to see the Guardian, for example, run with the story for the past three days. Liam Thornton’s interesting analysis on this blog has firmly supported freedom of expression and underlines South Park’s irreverent approach as an ‘equal opportunities offender’. As a human rights academic and a firm believer in freedom of expression, and indeed cartoons as an art form, I am always surprised to find myself often arguing against the cartoonists who are behind the series of recent controversies. I sometimes wonder whether it may be related to the fact that every time I read an article about the Danish cartoons or other such incidents, I detect a certain triumph in the portrayal of Muslims as intolerant of freedom of expression. They’re only cartoons! seems to be the central message.

Liam Thornton’s piece makes reference to an article of mine, and I’d like to go back to the central idea I had in writing it in order to explain my position. In much of the analysis on the ‘Danish cartoons’ controversy, there was an implicit understanding that cartoons are for children. How could people be offended by something which is essentially harmless juvenile fun? Yet the history of cartoon satire tells otherwise; cartooning has had a long political history, according to one study beginning as far back as 1360 BC with an unflattering portrait of King Tutankhamen’s father. This noble tradition of political dissidence, or the cartoon as social protest, spread from 17th century Holland, and morphed into the editorial cartoon we have today.

South Park: ‘Religious Defamation’, Freedom of Expression & Human Rights

*Spoiler Alert:  This post contains some  spoilers to the South Park episodes “200” and “201”. In Ireland and the United Kingdom South Park airs on Comedy Central. Comedy Central has not aired the episode “201” in Ireland or the United Kingdom. The episode “201” has been uploaded (illegally) onto a variety of sites.

HRiI has discussed extensively  the issue of criminal blasphemy in Ireland, over the last few months, see, here, here, here, here, here and here. Contributors to these posts noted Ireland’s hypocrisy on the issue, and the threats which this legislation posed to freedom of expression. The popular Comedy Central show South Park celebrated its 200th episode recently. In typical South Park fashion it dealt with a number of pressing (and not so pressing) issues. A central focus of both the 200th and 201st episodes (as it was in the episodes Cartoon Wars: Part I and Cartoon Wars: Part II) revolved around the religious prophet Muhammad and the controversy regarding depicting him in human form. A number of groups who did not want to be ridiculed (celebrities and persons with red hair),  sought Muhammad’s ‘goo’ which they believed would  make them impervious from public ridicule or criticism.  In the South Park Universe, Muhammad is part of the Super Best Friends, a group of religious figures (plus one) who help those in need. The group consists of Jesus Christ, Buddha, Muhammad, Krishna, Joseph Smith, Lao Tzu, Moses and a character called Sea Man. The Super Best Friends were introduced to the South Park Universe in 2001, and as the picture to the side shows, there was no controversy for depicting an image of Muhammad (to the right of Jesus). However, with the publication of the Danish Cartoons and the resulting violence (see here, here, here, and to view the controversial cartoons see here), Comedy Central refused to air the image of Muhammad. It had initially been thought that the 200th episode depicted Muhammad dressed up in an oversize bear outfit, harking park to the Sudanese controversy. However, in the 201st episode it was revealed that Muhammad was not in the bear costume. For the whole of the 201st episode, images of Muhammad were censored and Muhammad’s name was bleeped from the dialogue. In addition, large portions of the show were bleeped when a number of the characters tried to suggest what could be learned from the problems the characters faced in the episode. The creators of South Park, Trey Parker and Matt Stone, had their addresses published on extremist website forums and suggested they would face a similar fate to Theo van Gogh (see here, here, here, here and here).

Is such gratuitous mocking of religion permitted under human rights law? Do human rights protections extend to those who wish not to have deeply held beliefs ridiculed in a crass (or any other) manner?

Forced Marriage in the Republic of Ireland

I was asked yesterday to give a sense of the extent to which situations like that of G and D – the Northern Irish case of two young girls who were at risk of being forced by their parents into marriage in Pakistan which we wrote about here– are of relevance in the Republic.

I am not aware of any ‘G and D’ type cases which have come before our courts. As yet, forced marriage does not seem to be seen as a mainstream ‘family law’ or ‘women’s law’ issue in the way that it is in the UK and Northern Ireland. In 2007, the Minister for Health and Children stated in the Dail that she was satisfied ‘that all reasonable measures are in place to prevent forced marriages and to provide a remedy where full, free and informed consent is absent’. She referred to the law of nullity which allows a marriage to be set aside where it was contracted in the face of fear, duress, intimidation or undue influence. She noted that the criminal law provided several bases upon which violence used in the context of forcing another into marriage can be prosecuted.

The Female Genital Mutilation Act 2010?

Today, Senator Ivana Bacik of Labour (pictured left) will be introducing a Bill to prohibit Female Genital Mutilation in the Seanad during the Labour Party’s private members’ time.  The Bill and its Explanatory Memorandum are available here. The Minister for Health and Children has welcomed the Bill, indicating that it will be read a second time in a year or so. Labour’s press release notes that FGM Bills were introduced by Labour TDs Liz McManus (see Bill here) and Jan O’Sullivan (see Bill here) in the Dail in 2009 and 2001. Senator Bacik has said:

We urgently need a law specifically criminalising this barbaric practice which has destroyed the lives of so many girls and women world-wide. I welcome the Minister’s commitment to address this issue, but there has already been a great deal of work done on developing a legal framework, and delaying the introduction of this legislation by another year is unacceptable.

Senator Bacik’s Bill would:

• Introduce an offence of performing female genital mutilation on a woman or girl (note the gender-specific nature of the offence), the penalty for which shall be a fine or a term of imprisonment up to 14 years or both.
• Have extra-territorial effect so that an Irish citizen or resident who performs FGM outside of Ireland still falls within the terms of the Act.
• Rule out any defence of parental consent in the case of a minor.
• Allow a medical defence where the procedure was performed by a registered medical practitioner who ‘honestly believed, on reasonable grounds, that the operation was necessary to safeguard the life or health of the woman or girl concerned or to correct a genital abnormality or malformation’.

The Bill appears, to some extent, to take its cue from the UK Female Genital Mutilation Act 2003. In that jurisdiction, the legislation has fallen at the prosecution hurdle, and thus appears to have largely symbolic and perhaps deterrant value. For open-access articles which critique the UK legislation see this study by Sadiya Mohammad on the legislation’s efficacy and this article by Moira Dustin and Anne Phillips which considers the legislation in the broader context of UK law-making in the general area of women + gender + culture.

G and D: The Forced Marriage (Civil Protection) Act 2007 in Northern Ireland

In November of last year the Ministry for Justice reported that some 86 forced marriage protection orders were made in the first year of operation of the Forced Marriage (Civil Protection) Act 2007 (see the Guardian on the shortcomings of the order scheme here).

Last month, in the case of G and D (Risk of Forced Marriage: Forced Marriage Protection Order) [2010] NIFam 6 (26 March 2010),  Stephens J. examined these orders in what appears to be Northern Ireland’s first major case under the Act. The judgment is available on BAILII and the Belfast Telegraph reports here. G and D are sisters of Pakistani Muslim descent living in Northern Ireland. They are aged 12 and 14 and have 4 older brothers. When the girls were aged 10 and 11, a Trust, as the judgment has it:

brought wardship proceedings on the basis that the parents had arranged for G and D to travel to and remain for a number of years in Pakistan so that they could be educated in that country. The Trust alleged that this was a pretext, that no arrangements had been made for their education [The relevant facts are set out at [42]-[57]] and in reality, based in part on the previous experience of the forced marriages of their brothers S and T [now in their 20s] in 2005, [the High Court had determined in the course of wardship proceedings brought in respect of T in 2006 that he had indeed been forced to marry. The circumstances of his religious marriage ceremony are described at [31]-[41]] that once in Pakistan they were to be isolated, attended to and prepared so that they also could be forced  to marry… . The Trust also contend[ed] that the parents either chose to ignore the distinction between a forced and an arranged marriage or have no insight into the emotional and physical pressures that they have applied in the past and for instance still apply in a different context in relation to [their son] U [who had been excluded from the family home for refusing to obey rules established by the mother]. [Their sons U and V had visited Pakistan without being forced to marry].

Life of Brian & the Defamation Act

Today at 4:30pm the Rio Cinema in Hackney, East London will show the classic Monty Python satire, The Life of Brian. Released in 1979, The Life of Brian is enjoying its thirtieth Easter. The well from which a thousand popular culture references can be drawn, the film was banned in Ireland for eight years (from its release in 1979 until 1987). An old family anecdote has my uncle sneaking a copy of it into the house without my grandmother’s knowledge – the same grandmother asked to borrow the DVD last year to see, at long last, what all the fuss was about. Twenty-three years after the lifting of the ban on Brian it might now fall foul of the Defamation Act 2009 on grounds of criminal blasphemy (see previous posts here and here). Section 36 of the Act makes it an offence to intentionally publish or utter “matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion”. It’s worth wondering if the Life of Brian still has the ability to cause outrage in modern Ireland, but if it did, then a cinema screening it might be caught by the section. However, the Director of Public Prosecutions may enjoy his day off: my quick search of internet listings found no Irish cinema showing the film today. Anyone that may be screening the movie can take comfort that it is a defence to “prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates”. After thirty years, the Pythons’ reasonableness is surely beyond doubt. All of us here at HRinI hope you enjoy your Bank Holiday weekend – whatever you’re celebrating.

We Want to See Your Face: The Burqa in France, Belgium and Quebec

Poster for Montreal film-maker Natasha Ivisic's documentary 'I wear the Veil'

 

On International Women’s Day, the EU Commissioner for Human Rights, Thomas Hammarberg released a viewpoint which argued against restrictions on women’s religious dress. He stated that: 

Those who have argued for a general ban of the burqa and the niqab have not managed to show that these garments in any way undermine democracy, public safety, order or morals. The fact that a very small number of women wear such clothing has made proposals in such a direction even less convincing.  Nor has it been possible to prove that these women in general are victims of more gender repression than others. Those who have been interviewed in the media have presented a diversity of religious, political and personal arguments for their decision to dress themselves as they do. There may of course be cases where they are under undue pressure – but it is not shown that a ban would be welcomed by these women. 

Hammarberg seems to be in something of an unfashionable minority.In the past fortnight, three significant stories have broken about the regulation, in France, Belgium and Quebec, of the niqab and burqa worn by some Muslim women.  

Conseil d’État rejects proposed prohibition of burqa, niqab

The French Conseil d’État, in its capacity as advisory body rather than as administrative court of final appeal, yesterday issued a lengthy report, on the request of the Prime Minister, on the “legal possibilities surrounding the prohibition of the full veil.” This follows controversy and debate in France in recent months surrounding the wearing of the burqa in particular, the publication of the Gerin parliamentary report in January, and the report today that Belgium appears likely to become the first European state to legislate on this issue. In a measured, comprehensive and nuanced report, the Conseil concluded, somewhat predictably, that an outright prohibition on the wearing of the full Islamic veil would like contravene a number of provisions of the French Constitution as well as the European Convention on Human Rights (the report is published online here and the very useful summary here; it is unlikely, however, that either will receive an official translation into English).

Cardinal Brady and the Civil Action Taken by alleged victim of Brendan Smyth

The Irish Times reports that Cardinal Seán Brady, the besieged leader of the Catholic Church in Ireland, has said today that he wants a “just resolution” to a civil case taken against him by an alleged victim of the convicted child abuser Father Brendan Smyth. The man is suing Cardinal Brady in his capacity as Archbishop of Armagh and as the Catholic Church’s representative in Ireland. The action was initially taken some 13 years ago, in 2007. The Cardinal has asked his lawyers to engage with the complainant’s solicitor “with a view to progressing the case”.

The man claims he was repeatedly sexually abused by Brendan Smyth in Dundalk in the early 1970s. According to the Irish Times, the man is alleging that the Catholic Church called an ecclesiastical court to deal with the allegations and assured the man that Smyth would never be placed in a siutation where he could abuse children.

Call for Papers: Postgraduate and ECR Workshop with Professor Lois McNay

‘Subjects Before the Law: Membership, Recognition and the Religious Dimensions of Women’s Citizenship.’

We invite PhD students and Early Career Researchers (no more than 3 years post-doc) from any discipline to apply to participate in a workshop, to take place on Thursday, September 9, 2010. The workshop is hosted by the Centre for Criminal Justice and Human Rights and the Institute for Social Science in the 21st Century, University College Cork, Ireland. The workshop is organised as part of an IRCHSS Thematic Project on Gender Equality, Religious Diversity and Multiculturalism in Contemporary Ireland.

The workshop organisers are Eoin Daly and Máiréad Enright.