Thou shalt not blaspheme… time to revise national laws?

The Charlie Hebdo massacre reaffirmed European support for freedom of expression but Malta still threatens prison over the exact same ‘offence’. Has the time come to revise national blasphemy laws?

The January 11 terrorist attack that left 12 dead in the Paris offices of ‘Charlie Hebdo’ – a satirical publication with a penchant for insulting major world religions – understandably shocked Europe to its foundations, and elicited a worldwide reaffirmation of the sanctity of freedom of expression in the face of violent intolerance.

But while many were quick to unite under the resonant ‘Je Suis Charlie’ slogan, it remains an inconvenient truth that the values represented by the magazine under attack are by no means universally shared, either in Malta or indeed the rest of Europe. 

Nor did it pass unnoticed that this public declaration of solidarity with Charlie Hebdo seems to directly contradict an existing state of affairs, whereby the exact same issue is directly threatened by Malta’s own current legislation.  

Malta is one of eight European Union member states – including Germany, Denmark, The Netherlands, Italy and Greece – to still retain laws against blasphemy. And unlike most other European countries, our anti-blasphemy laws are regularly enforced. 

A recent US State department report revealed that 99 individuals were convicted for public blasphemy in 2012, when compared to the 119 convictions carried out from January to July of the previous year. 

Significantly, there are also laws against ‘vilification of religion’: a term which can very easily be used to describe every edition of ‘Charlie Hebdo’ to have ever mocked and vilified world religions such as Catholicism, Islam and Judaism. And in 2013, as a show of support for same-sex marriage, Charlie Hebdo’s cover depicted the Three Persons of the Holy Trinity – God, Jesus Christ and the Holy Spirit – engaged in a (very explicit) orgy of gay sex. 

In a country where a play was banned from local theatres altogether (The Abridged Bible by the Reduced Shakespeare Company) because it poked far more gentle fun at the Resurrection of Christ, this contrast between our public reactions to ‘Charlie Hebdo’ today, and our traditional disregard for the same principle underpinning the ‘Je Suis Charlie motif’, becomes simply too conspicuous to ignore.

To put things bluntly, if Charlie Hebdo were published in Malta in 2014, its editor would almost certainly face criminal action in court. In fact, people have been prosecuted in this country for far less.

Thou shalt not blaspheme

Blasphemy is a crime in Malta under Article 342 of the Criminal Code, which stipulates a minimum punishment of an €11.65 fine, and a maximum of three months’ imprisonment. 

‘Vilification of religion’ is prohibited under Articles 163-165, which hold that “public vilification or offence of Catholicism and the vilification of its believers, ministers or objects of worship through words, gestures, written matter (printed or not), pictures or visible means” is a criminal offence entailing a prison sentence of between one and six months. 

Article 164 extends the previous article to other “cults tolerated by law”… but with a maximum prison term of only three months.

Yet even though the Charlie Hebdo killings were (on the face of things, at any rate) broadly a manifestation of the same underlying tendency to consider religion as beyond criticism or satire, there has been no talk of revisiting Malta’s own legislation to reflect its newfound concern with freedom of expression.

So has the public outcry following the terrorist attack already run into an impasse? Will Malta condemn the violent ‘censorship’ of French critics of religion, while turning a blind eye to (admittedly less severe) censorship of its own citizens over the same issue? 

The right to offend

One difference the Charlie Hebdo case may have made to this debate is that it is now harder to find people willing to speak out in defence of Malta’s laws protecting religion from ‘vilification’… even though few voices are heard calling for their repeal, either.

This marks a stark contrast with the situation until a few years ago, when controversies – very minor ones, compared to the Charlie Hebdo issue – regularly arose regarding whether freedom of expression also involves the freedom to offend or ridicule. 

In 2010, former archbishop Paul Cremona came out in defence of both the laws against blasphemy, and also the ‘privileged position’ of the Catholic Church: which translates into higher penalties for offending Catholic sentiment than any other ‘cult’.

“Apart from being an act against religion, blasphemy is an act against civil values. As such it needs to be discouraged and that is the reason behind it being a criminal offence,” he told this newspaper. 

Cremona also defended the disparity between penalties for offending different religions. “It is a fact that the predominant religion of the country can have a privileged position in this regard, and this exists in many countries across the world...”

More recently, Pope Francis captured the dilemma many Catholics feel when it comes to this issue. In response to the Charlie Hebdo attack, the Pope condemned the violence, and in the same breath also urged the public to treat religions with respect.

“One cannot offend, make war, kill in the name of one’s own religion – that is, in the name of God,” he said. “To kill in the name of God is an aberration.”

But the Pope also intimated that there are limits to freedom of expression: “If [someone] says a curse word against my mother, he can expect a punch… It’s normal. You cannot provoke. You cannot insult the faith of others. You cannot make fun of the faith of others.”

From a legal perspective, the issue is more complex. There is no such thing as a ‘fundamental human right to offend’, but international human rights case law indicates that such a right indirectly exists.

In Handyside versus the UK (1972), the European Court of Human Rights ruled that “Freedom of expression... is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.”

And in Joseph Burstyn, Inc v. Wilson (1952), the US Supreme Court ruled that “It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches or motion pictures.”

Theoretically, any law that runs counter to the first of those rulings can be challenged in the Constitutional Court. This in turn indicates that there may be a discrepancy between Malta’s blasphemy laws and its obligations under human rights treaties. 

Handle with care

As Malta’s Commissioner of Laws, the task of identifying and removing out-dated or otherwise troublesome legislation falls to lawyer and former MP Franco Debono. 

However, he told MaltaToday that no discussion has to date taken place over whether to repeal or revise Articles 163-5. 

“This is a sensitive subject to be handled with great care,” he commented. “In a world where religious dogmas are ever more being assailed by scientific enquiries and discoveries, indifference, the open-mindedness of spirituality, as well as the growing appreciation of religious tolerance – and considering that freedom of expression lies at the very foundations of Western society as we know it, which is thus by far the general rule – there is nothing wrong with having another look at our 1933 laws regarding blasphemy.”

But Debono argues that, “as the Pope has pointed out”, there are certain exceptional limitations to freedom of speech. “Any exceptional limitations to this fundamental right must always be extremely well founded and absolutely necessary to be justified.”

Debono desists from stating whether or not Malta’s ban of blasphemy is either ‘well-founded’ or ‘necessary’. But he admits that the law in its present form may be problematic.

“With regard to ‘Crimes against the Religious Sentiment; under our Criminal Code, one cannot fail to notice that the law distinguishes between the Catholic religion and ‘other cults’ as regards the applicable term of imprisonment for infringement. This should also be seen in the context of the urgent need to abolish criminal libel from our statute book (a call I have made in Parliament as far back as 2011 and even before), and one must always strive to strike a balance.”

Nonetheless, the Law Commissioner refrains from making a similar demand in the case of blasphemy laws. “While I consider the abolition of criminal libel as a very urgent matter, the resolution of these dilemmas concerning blasphemy arising from the intersection between law, morality and religion is always very sensitive and never easy.”

Instead, he argues that it is in religion’s own interest to become tolerant of criticism.

“One could argue that in the religious domain, freedom of expression should apply with even more rigour than in secular matters. No opportunity is more formidable for any religion to practise what it preaches about respect towards others, tolerance, compassion, loving kindness, and forgiveness, than when someone seeks to strongly disagree with it!”

Religion ‘no different’ 

Elsewhere, Prof. Joe Friggieri, head of the Philosophy Department at the University of Malta, was likewise reluctant to commit directly to a position on Malta’s blasphemy laws. But in comments to this newspaper, he argued that the law should make no special distinction in the case of religion.

“I think religion should be treated in exactly the same way as any other system of thought. There is no need for any distinction. This means that religion, just like any other philosophy or opinion, should be subject to the same rights and obligations as everyone else. This includes the right to criticise, to argue, to express different opinions, and to opt in or out. If people exercise those rights and other people take offence… tough luck. It doesn’t mean we have to stop criticising.”

More in National