Comparing Freedom of Expression in the Statutory Law and the Sharia Law Essay

Getting in touch with media law during the first semester of my Masters gave me a sense of the importance of law in general because it consists of acts and articles which organise most issues in the human’s life in a way that protects ethics and morals. Regardless of the hypocrisy and double-standards of the countries which raise high the slogan of Human Rights, I liked the Human Rights Conventions that were laid down by these countries. Therefore, I decided to research some points in these conventions that are related to my study in order to nurture my knowledge in this great field of the human sciences. Then, I thought deliberately about the benefit of exerting much effort to get such knowledge since it is existed, well-explained and well-organised, in handy books. But after looking by historical and religious study as far back as some centuries ago, I found that my own culture, Islam, had plenty of law provisions that helped its people not only to protect their ethics and morals, but also to spread them all over the world. Through deliberate and objective study, I found that many of the social reformers, whose thoughts led to the emergence of the modern criteria of human rights, were originally affected by the roots of the Islamic ulture. I also found a lot of those old and even modern reformers who praised the old provisions of the Sharia Law and they also praised the prosperity which was an outcome of implementing it. The Western writer Patricia Crone (2005: p. 218-219) said referring to how those old provisions of law were true bases of a moral society: â€Å"Medieval Muslims d id not write utopias in the sense of imaginary travel accounts or other descriptions of ideal societies which do not exist, †¦ they were not given to seeking ideals outside their own civilisation at all. But they did place a golden age right at the beginning of their own history, and their numerous accounts of this age add up to a detailed utopia of great emotive power†¦ It was a time when the Muslims had all the virtues of tribesmen and none of their vices, for thanks to Islam there was no feuding, no factionalism, and no disorder, just austerity, solidarity, and total devotion to the truth. Therefore, I decided to look for the provisions of that old law which are related to my study and compare them with their counterparts in the modern human rights’ conventions. In order to limit my research, I decided to take the articles related to my study, media law, in the Human Rights Act 1998 (HRA) of the British Law to represent the leading international human rights conventions. Part one: Preface Main Argument In this dissertation I am going to explain how both the HRA and the Sharia Law deal with the concept of freedom of expression. As long as such argument is new and uncommon because of the lack of references that studied it, which resulted in an ambiguous perception in the minds of people towards the Sharia Law and its sources, there must be a kind of primary definition of the Sharia Law, its sources and how the Sharia scholars (Sharia Jurists) deal with these sources to regulate law items. Sharia Law This expression is going to be referred to as a theological-historical concept since the Sharia was revealed through a prophet, this makes it a theological subject matter, and it is 15 centuries old, this gives it a historical background. Sharia (sari? ah) is all religious rituals that Allah (SWT) has imposed on Muslims, via his Prophet Mohammad (PBUH) regarding beliefs, rules and day-to-day life among Muslims themselves, and between Muslims and non-Muslims. It is â€Å"designed to govern the relations of Muslims with non-Muslims, whether inside or outside the territory of Islam. † Mahmoud Kamali says that Sharia is â€Å"the Islamic law as contained in the divine guidance of the Qur’an and the Sunnah. Yet, the expression Sharia Law is modern if compared with the word Fiqh, which historically used to mean â€Å"the awareness of Islamic rules from its sources by true inference. † Kamali defined the word Fiqh: â€Å"Islamic law as developed by Muslim Jurists. The term is often used synonymously with Sharia. † Therefore, like other contemporary researchers of similar topics, I am going to use the expression Sharia Law to mean the old word: Fiqh. Sources of the Sharia Law There is no difference between any of the Muslim scholars that the main sources of all information, not only about the details of the life of mankind, but also about the details of the whole universe are the Holy Qur’an, then, the Holy Sunnah. In addition, it is a matter of a universal belief among Muslims and many of non-Muslims that the Holy Qur’an in the hands of people is the real book revealed by Allah (SWT) to his Prophet Mohammad (PBUH) fourteen centuries ago. The same is the 100% authenticity of certain books of Hadith, i. e. Saheeh Al-Bukhari and Saheeh Muslim. These references are not considered comprehensive works; however, I feel that they could draw raw guidelines for me in my research in two ways: * They give me hints about how this issue is being taken by researchers who are not specialists in Sharia studies, but they are lawyers or journalists; like me. * They draw raw guidelines of the comparative methodology of research between articles of the Sharia Law and those of the statutory law. Throughout this dissertation, I am going to take articles of the British Media Law and compare them with the related provisions of the Sharia Law, giving enough examples in order to be able to make clear-cut conclusions about the main question of this dissertation which is: (The question of the dissertation) Can the modern Islamic movements, who are apparently going to rule the Arab countries after the Arab Spring, implement the Sharia Law and achieve the absolute justice which they raise as a slogan for their revolutions and electoral campaigns? Or would they worsen the already worsened situation of media law? Of course, regarding the other part of this dissertation, which is the statutory law, libraries are full of texts of law articles starting from the Declaration of the Rights of Man and of the Citizen in 1789, passing through the UN Universal Declaration of Human Rights, ending with daily huge volumes of books, journals and articles studying new amendments and proposing new laws regarding recent details of the life of people in general and the work of media specifically. Terminology In order to have a good understanding for the real meaning and connotation of the Sharia Law concepts and cases, they have to be denoted by their names. Therefore, it is necessary here to have a list of the original names of the Sharia concepts and their definitions. The Holy Qur’an: defined previously. Surah: one complete chapter from the Holy Qur’an. Sowar: the plural of Surah. Sowar are different in length. Some are 1/3 a page and others exceed 40 pages. Aya: one verse from the Holy Qur’an. Ayat: a plural of aya. The Holy Sunnah: defined previously. Hadith: a verified saying for the Prophet Mohammed (PBUH). Ahadith: a plural of Hadith. Tafseer: the interpretation of the Holy Qur’an and the Holy Sunnah by professional credible Muslim scholars. Fatwa: a certain judgement on a certain case by a Sahaba, Tabe’een or confident Muslim scholars in a certain time or place. Plural is Fatawa. Ibada: the act of worshiping Allah (SWT) whether by heart or body. Any act of heart or body needs to start with intention of solely worship for Allah in order to be a true Ibada. Da’wah: the flow of activities Muslims do in illuminating the teachings of Islam. Dhimmi: the name of a non-Muslim citizen in the Islamic State. Ahludhimmah or Dhimmiyeen: plural of Dhimmi. Jezyah: the name of the religious tax for non-Muslims in the Islamic State. It is equivalent to the religious tax taken from Muslims, but Jezyah is a lesser amount of money that has many exceptions. Part Two: The Situation of Freedom of Expression Historical Background It is very important, before starting writing about the situation of freedom of expression in the statutory and the Sharia Law, to explore the general historical climates which preceded the emergence of both laws. That will give a kind of understanding of how much the improvements on the situation of freedom of expression both laws have achieved. * A Glimpse on Freedom of Expression in the West before the Renaissance The period which preceded what is known in Europe as the Renaissance was full of conflicts among the different castes of the European communities in general. That conflict took several forms. A prime one was the conflict between the Church and scientists and that between authority and people. Howard Turner describes a side of such conflicts: â€Å"The Middle Ages in Europe had long been dominated by an unending conflict between Church dogma and a kind of humanistic and individual quest for intellectual liberation. † Church and authority used to be allies and each institution worked for the protection of the other at the expense of people’s lives. They used to impose restriction on freedom of expression and there used to be no respect for people’s privacy. There was also a kind of blackout on external knowledge, fearing that it might undermine their power or alliance. The Thirteenth century was an â€Å"age in which kings and barons reacted to an insult by lopping off the offending tongue- or head†¦ The crime of ‘scandalum magnatum’ expressly protected ‘the great men of the realm’ from any statements that might arouse the people against them. † In France, for example, the king used to say â€Å"I am the state† and gave no space for people to have control in running their own or private life. The Church used to control science. Therefore, knowledge it saw as right, used to be spread, and that it saw as wrong, used to be damaged. A blockage was imposed on scientists and thinkers. In 1614, Galileo was accused of heresy  by the Church for his scientific theories. Eighteen years later, in 1632, he was sentenced to life imprisonment which was reduced to permanent house arrest after he had been obliged to withdraw his theories before the public by the Church. That time was the worst for women’s freedom. Women were inferior to men, troubled with Eve’s sin. They were subject to the authority of their fathers or their husbands. Violence in marriage did occur and was even encouraged. † The dark life of that age pushed people to seek a kind of salvation through knowledge, especially, after the appearance of new thinkers affected by the Muslims’ civilisation. According to Turner, the â€Å"Christian West† inherited the â€Å"scientific legacy from Islam. Thanks to increasing cultural traffic with Muslim lands via the busy Spanish and Sicilian gateways, the thriving routes of Mediterr anean and overland commerce, and the contacts left over from the Crusades. People sought to reinforce the principles of freedom and justice, which was clear in the slogan of the French revolution which was: liberty, equality and fraternity. The revolution in real freedom of expression has been from the Renaissance until today. However, there are still some issues which emerge from time to time that necessitate amendments of the existing laws or constituting new ones. * Freedom of Expression in Arabia before the Sharia Law In Arabia, there used to be kind of freedom of expression, but there was no justice. For example, men used to sit with each other and think about issues related to their tribes. But that right to give an idea or express an opinion was only for masters. Societies there used to consist of three castes: masters, subjects or alliances and slaves. In addition, that right among the masters was only for men. Women used to be suppressed and were not allowed to share opinions either in public affairs or even in family affairs. Women were used in the same way as goods. There used to be a diversity of religions. Arabia included pagans, Jews and Christians. But the most common was paganism. Surely, that kind of diversity hints at a kind of freedom of religion, but the opposite was the norm. Paganism, represented in worshiping idols, was the religion of the mainstream Arabs in Arabia and they used to keep an eye on those who converted to other religions. If they were young, they used to be fought; if they were old, they used to be left free since they could not affect others. Of course, chiefs and masters of tribes used to be happy with that kind of life because it helped them keep strong control over their subjects. However, suppressed castes needed any kind of powerful justice to liberate them from the chains of the different forms of slavery. From amongst that darkness, the message of the Sharia was revealed to the Prophet Mohammed (PBUH) to spread the justice and freedom among people. It is widely known among historians that a reasonable number of the people who joined the Da’wah at the early stages were from the ordinary people or alliances and slaves. Some of the masters asked the Prophet (PBUH) to dismiss them from around him if he wanted them, the masters, to join the Da’wah. Of course, ordinary people always lead reforms. A group of Muslim emigrants fled the persecution of their relatives in Mecca to Abyssinia and there was a short dialogue in the court of Abyssinia’s king, who was a true Christian. Their representative described the situation of Arabs before the Sharia and what the Sharia came with: â€Å"O king! We were plunged in the depth of ignorance and barbarism; we adored idols; we lived in unchastity; we ate dead animals, and we spoke abomination. We disregarded every feeling of humanity, and the duties of hospitality and neighbourhood. We knew no law but that of the strong. At that time, God raised from among us a man of whose birth, truthfulness, honesty and purity we were aware, and he called us to the Unity of God and taught us not to associate anything with Him. He forbade us to worship idols and enjoined us to speak the truth, to be faithful to our trusts, to be merciful, and to regard the rights of neighbours. He forbade us to speak ill of women and to eat the substance of orphans. He ordered us to flee from vices, to abstain from evil, to offer prayers, to render alms, and to observe the fast. † Constituted Rights to Freedom of Expression * Freedom of Expression in British Media Law As I have mentioned from the beginning, I am going to take the British law as an exemplar to represent the statutory law in this research. Therefore; I see that I have to propose an overall look at the British law and to see the situation of freedom of expression through it. British Law Unlike other countries, Britain does not have a written constitution. Referring to Britain, Tom Baistow says: â€Å"This country is the only one in the EEC without a written constitution and the only one without the press laws that form one of the most important guarantees of freedom of expression. However, it has a good record regarding the respect of freedom of expression. It got this reputation throughout historical fights of the British nation to attain freedom and adopt democracy. And as an ideal example of the fight to reach this situation, journalism in Britain â€Å"went through a brave battle against constitutional restrictions on publishing in the 19th century and could extract the right t o comment and publish. † Freedom of expression became one of the most respected freedoms as a kind of a social norm among the British people. It is believed in Britain that free speech is a significant pillar of a free democracy. The Royal Commission on the Press in 1977 defined freedom of expression â€Å"as that degree of freedom from restraint which is essential to enable proprietors, editors and journalists to advance the public interest by publishing the facts and opinions without which a democratic electorate cannot make responsible judgement. † This definition shows how the British believe in the vital role that freedom of expression plays in educating the public to be able to take right decisions in elections. It means that it is the main guarantor of a free democracy which is the main principle of a free State. Therefore, Solaiman Saleh described the situation of freedom of expression in Britain, despite the lack of a written constitution, saying: â€Å"The principle of a free press is reinforced in the collective conscience of the British. That forms a better protection which outweighs any written constitution. † Saleh continued explaining that it became a part of the British understanding of freedom of speech that the government does not have the right to interfere in the workflow of mass media. It cannot issue warrants, for example, to close any news platform, have pre-publishing restrictions/instructions or suggest amendments in the administrative systems or editorial policy. This is how James Curran portrayed the British press after the Second World War: â€Å"The press became fully independent of political parties and hence government. † The independence of the press gave it a great deal of space for free speech as well as unlimited power against governments. This was clear when the best wartime leader, British Prime Minister, Winston Churchill, demanded an immediate closure of the Daily Mirror over its coverage of the conduct of war. That decision was followed by rough debates in the House of Commons and huge popular protests in Trafalgar Square and London’s Central Hall that pushed Churchill’s government to withdraw the decision against the Daily Mirror and, even, lift a ban previously imposed on the Daily Worker. Mass media regulation is only the role of the Parliament and Judiciary. In reply to the argument that the parliamentarian majority which forms the government may adopt any law suggested by it, Saleh argues that people who believe in the concept of freedom of expression will protest against the parliament and oblige it to stop the new law or to dissolve. The incident of the Daily Mirror mentioned above is a very clear example of that. The main pressure was represented by ‘organised protests’ in Trafalgar Square and London’s Central Hall. In addition, Hanna and Banks say in McNae’s Essential Law for Journalists: â€Å"Section 19 of the Human Rights Act created a requirement that a Minister introducing a Bill into Parliament must declare that its provisions are compatible with the European Convention, including thereby a commitment to freedom of expression. † Despite all the facts mentioned about the battles towards the freedom of expression in the English society, a sufficient protection for that freedom, which keeps up with the public-interest journalism, â€Å"from attacks for discomfiting the government or the judiciary or the wealthy private litigants† was not completely guaranteed. It is guaranteed by the adoption of international treaties, in which English writers and lawyers took a big part in constituting them, into the British law. Since then, clear articles of these treaties have become legal codes in the British law that guarantee a better freedom of expression. Throughout these facts, I can come to a conclusion that freedom of expression in Britain has certain principles that are clear. The main three principles could be summed up as following: 1. Government has no power against mass media. Robertson and Nicol explain how a government official does not have any privilege over the public in this regard. They say that if any official wanted to stop a news story, he has to go to the court the same as the public do. It means that government cannot control or suppress the voice of any single person directed to the public via any medium. It is believed that this is a sign of a free democratic State, but not in an arbitrary sense. Therefore, mass media have to be credible, and offenders should not escape punishment. John Whale quoted Sir William Blackstone, the eighteenth-century jurist, saying: The liberty of the press is indeed essential to the nature of a free State; but this consists in laying no previous restraints upon publication, and not in freedom from censure for criminal matter when published. † 2. Mass media are owned by the private sector and, therefore, it represents citizens before the government. However, citizens are stronger than the government in the democratic regimes; it means that mass media can publish any kind of opposite opinions without fearing suppression or oppression of the government. 3. Mass media turn to the public to face censorship. Robertson and Nicol say: â€Å"The best antidote to censorship is publicity. † When the government wishes to practice a kind of censorship, journalists can publicise that practice and the government does not have any power to punish them. The incident of the Daily Mirror mentioned above is a clear example on the three points mentioned. It shows how mass media are stronger than governments, how mass media speak on behalf of the public and how the public exerted pressure through protests that pushed the government to retreat from the closure warrant against the newspaper. Freedom of Expression in the Sharia Law The most prominent characteristic of the Sharia Law is that it is a religious law. It means that it has more emphasis, in all branches, on religious and moral values than other laws. Mohmmad Kamali says: â€Å"This can, perhaps, be clearly seen in reference to the Sharia rules pertaining to blasphemy, heresy and disbelief , where the dominant concern is to defend the dogma and belief-structure of Islam. † Muslim scholars and thinkers believe that this characteristic of the Sharia Law gives it a spiritual power, which is effective to keep stability of societies. Based on his understanding of the Islamic beliefs and to confirm that defending the dogma and belief-structure of Islam achieves social stability, 20th century Muslim thinker and reformer Sayyed Qutb, who interpreted the Holy Qur’an, says: â€Å"Social, economic and religious organisation goes side by side with a true ethical code and dogmatic belief†¦ in a complete, comprehensive, balanced and precise way. † Regarding freedom of expression and to show how much positive effect religion has on it, the Western writer, Patricia Crone, shed light on the way Muslim thinkers understand the relationship between freedom and religion. Patricia Crone reported Al-Ghazali, a famous medieval Muslim philosopher and reformer, explaining freedom in the Sharia as â€Å"no humans had the right to impose obligations on other humans, whether they were rulers, masters, fathers or husbands, or for that matter prophets; only God could do so. † Of course, Al-Ghazali’s understanding of that concept of freedom was based on the Holy Qur’an and the Holy Sunnah. Allah (SWT) asked his Prophet Muhammad (PBUH), in the Holy Qur’an, to tell people that he is a human like them.