Blasphemy and Human rights

CHAPTER ONE

INTRODUCTION

A. BACKGROUND OF STUDY

Nowadays so many international rules developed and

established to realize the enforcement of human rights,

especially the right to freedom of expression and

opinion. Human rights are the most complicated issue

and challenge it’s doctrine is now also so powerful.

The modern concept of human rights is essentially come

from Western culture and it’s modernity from

seventeenth century.

Natural law theory was later expanded in scope

until the agreement on the principle of man’s natural

rights. When document such as the 1968 English Bill of

Rights provide freedom of speech and debate within the

parliament.1Also, encouraged the birth of human rights,1 ?Patrick Thornberry ‘The UN Declaration on the Rights ofPersons Belonging to National or Ethnic, Religious and LinguisticMinorities: Background, Analysis, Observations, An Update in Alan

1

2

among others by the French Revolution. It was later

expanded gradually by the United States Bill of Rights

(added to the constitution in 1791) and the French

declaration of the rights of man and the Citizen

(1789).2

Those Human Rights was being such of protection

for any freedoms in this today’s world. Such as,

freedom of expression, freedom of religion, and freedom

of opinion as well. The right to freedom of expression

is recognized as a human right under Article 19 of the

Universal Declaration of Human Right3 and recognized in

International Human Rights Law in the International

Covenant on Civil and Political Rights (ICCPR).

Phillips and Allan Rosas (eds.) Universal Minority Rights (1995)p. 18.

2 ?Ibid, p. 394.

3 ?Article 19 of the ICCPR states that "Everyone shall havethe right to hold opinions without interference" and "everyoneshall have the right to freedom of expression; this right shallinclude freedom to seek, receive and impart information and ideasof all kinds, regardless of frontiers, either orally, in writingor in print, in the form of art, or through any other media of hischoice"

3

By way of contrast, some people in the name of the

freedom commit sacrilege against religion; it was

religious blasphemy and blasphemous libel4. There are

many people argue, that blasphemy is a part of freedom,

either expression or speech. While, the status of

religious blasphemy in human rights is also a hotly

debated issue, it is an important part of human rights

protection because it is inseparable from issue of

religious discrimination, hatred and intolerance. 5

Blasphemy is the act of insulting or showing

contempt or lack or reverence for a religious deity or

the irreverence towards religious or holy person or

things.6 So, any actions that consist of any offence of

speaking sacrilegiously about God or sacred things are

regarded as blasphemy.

4 ? For convenience, the term ‘blasphemy’ is used here after to refer both

5Syamsul Arifin, Attitudes to Human Rights and Freedom of Religion orBelief in Indonesia, edited and rendered into English by Nelly vanDoorn-Harder, tore lindholm and Nicole colbran. Published by:Kanisius, Yogyakarta, p. 41

6 ? Mohammad Hashim Kamali, revised edition, Cambridge, UnitedKingdom. 1997, p. 271

4

A frequent argument against the continued vitality

of the law of blasphemy is an outmoded imposition on

the freedom of speech, as can be seen in the public

framing of the two most notorious modern cases: Gay

News, which concerned the publication of a poem by

James Kirkup,7and Choudhury, concerning Salman Rushdie’s

Satanic Verses,8 and as was done some time ago in the form

of a film titled Innocence of Muslim. In this two-hour

movie, the Holy Prophet personally insulted in such a

manner and he is described as a man who smeared with

sin. And the most recent, Danish newspaper that

published some cartoons, inclosing one depicting the

prophet Muhammad.

From a legal perspective, the religious blasphemy

7The poem by James Kirkup (who died in May 2009) describedacts of fellatio and sodomy committed on Christ’s body immediatelyafter his death. It also suggested that Jesus had committedpromiscuous homosexual acts with his disciples and other men.

8 The fictional novel tells the story of two men: one ofwhom is divided between his attraction to life in the East and hisattraction to life in the West; the other is divided between hisdesire to believe in God and his inability to believe in God. Thefirst man survives by returning to the East; the second is unableto return to his religious beliefs and finally kills himself. Thenovel includes disparaging references to God, Abraham, Muhammadand the teachings of Islam.

5

concept is also problematic since individuals (and not

religions, ideologies, or beliefs) are the holders of

human rights and are protected by the law. The concept

of defamation of religions seeks to convey the idea

that a religion itself can be a subject of protection

under human rights law.9

Blasphemy has a long and vicious history in all

canonical religions, in Islam, Christianity, Buddhist,

Sikh,10 and also in Hinduism. In Christianity, the

crime of blasphemy was an example of how the law

reflected Christian morality. In more than one way,

Islam emphatically redefined the sacred in relation to

an individual and society and placed it in correct

metaphysical and eschatological perspective. That’s9 K. Boyle, "Religious Intolerance and the Incitement of Hatred" in S.

Coliver, “ Striking a Balance: Hate Speech, Freedom of Expressionand Non-discrimination”, (Article 19, International Center AgainstCensorship, Human Rights Center, University of Essex 1992) p. 61

10 ? A group of Sikh protestors about production of “Behzti”(meaning Dishonour), a contemporary play by Sikh playwrightGurpreet Bhatti which explored issues of sexual abuse,manipulation and relationships inside a Gurdwara, a Sikh place ofworship. The protest became violent and the windows of the theatrewere broken. Threats were made against the director and actors.The play was immediately withdrawn from production and no criminalcharges were brought

6

why, blasphemy and sacrilege in modern societies cannot

be considered as relics of the middle ages. Neither is

the topics only of interest in relation to religious

fundamentalism.11

Blasphemy in Islam is any irreverent behavior

toward holy personage, religious artifacts, customs,

and beliefs that Muslim revere.12 The Quran and Hadith

do not speak about blasphemy intensify,13but jurist

created the offence, and they made it part of

Shari’ah.14 Where shari’ah pertains, the penalties for

blasphemy can include fines, imprisonment, flogging

11 ?Riaz Hassan, Expressions of Religiosity and Blasphemy in Modern Societies,published by ANU Press, (The Australian National University,2006,Canberra, Australia) p. 67

12 ?Saeed, Abdullah Hassan, Freedom of Religion, Apostasy and Islam.Burlington, Ashtage Publishing Company, 2004, p. 38-39

13 ? “The punishment of those who fight against God and HisProphet or create disorder in territory is that they be executedin an exemplary manner or be crucified or have their hands andfeet cut off from opposite sides or be banished. This disgrace istheirs in the world, and in the Hereafter a severe retributionshall they have, except those who repent before you overpowerthem. So (do not exceed in severity with them and) know well thatAllah is Oft-Forgiving, Ever-Merciful (Al-Maidah: 33-34)

14 ?Abu ‘Abdullah Muhammad ibn Abi Bakar ibn Qoyyim, Zad al-Maadfi Hadyi Khayr al ‘Ibad.1st edition, vol. 4, (Beirut: Dar al-kutubal’ilmiyyah) p. 379

7

amputation, hanging, or beheading.

This research provides an overview of the key

issues relating to restrictions on freedom of

expression and speech. Describing how international and

in some cases national courts have approached them. It

also highlights some problem areas or issues which

remain unclear or which lack sufficient elaboration.

B. PROBLEM FORMULATION

Based on the explanation above, the writer

tries to formulate the problem of this study as

follow:

1. What is the limit of freedom in Universal

Declaration of Human rights?

2. What is the relation between Universal

Declaration of Human rights and religious

blasphemy?

3. What is the Islamic viewpoint in religious

blasphemy?

C. PURPOSE OF STUDY

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This purpose of study, which based from problem

formulation above

1. To know the limit of freedom in universal

declaration of human Rights.

2. To know the relation between universal

declaration of human rights and religious

blasphemy.

3. To understand about Islamic viewpoint in

religious blasphemy.

D. SIGNIFICANCE OF STUDY

This study is requested to give valuable

contribution to the researchers and expected to

extend the knowledge especially for the following

purpose theoretically and practically:

a. As the scientific inventory is the framework

concept of science in Faculty of Islamic

Theology especially the department of

comparative religion and to be the stepping

stone for next researchers which has relation

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to this study and also as the matter of

discussion of the scientific information.

b. To give broad knowledge for the writer in

particular about religious blasphemy

according to human rights and Islam.

c. As critic of evaluation to classic and

contemporary thoughts which developed in

wrong discourses.

E. LITERATURE REVIEW

The work has been inspired by the work of the

previous scholars who have written extensively on

the rights to the freedom of expression, Human

Rights, and Religious blasphemy as discussed below:

Analisis Undang-Undang Nomor 1/Pnps/ Tahun 1965 Tentang

Pencegahan Penyalahgunaan dan atau penodaan Agama dalam

perspektif Hak Asasi Manusia, written by Yasser Arafat,

thesis for the degree of licentiate in Law Faculty,

submitted to the Faculty of Law, Universitas Sebelas

Maret, Surakarta, 2010. In this thesis, the writer

10

elaborates Human Rights from law perspective.

However, this thesis mainly helps the writer to find

such useful information for knowing Human rights.

Perlindungan Konstitusional terhadap Kebebasan Beragama

dalam kaitannya dengan keberadaan Jamaah Ahmadiyah Indonesia.

Written by Bagus Indah WahyuUtomo, a thesis for the

degree of licentiate in Law faculty, submitted to

the Faculty of Law, Universitas Tanjungpura,

Pontianak, 2012. Here, the writer of the thesis

research about freedom of religion with related by

Ahmadiyyah community. The writing did not tell much

like the writer wish, but it’s really enriched her

information to write about freedoms.

Freedom Of Expression and Democratic Process: An Analysis of

Laws and Policies relating to the Right of Freedom of Expression in

Zanzibar, written by Khalfa, Omar Sururu, and Submitted

in Partial Fulfillment of the Requirements for the

Degree of Master of Philosophy in the Theory and

Practice of Human Rights, Norwegian Centre for Human

11

Rights, Faculty of Law, University of Oslo, 2010.

This thesis deals with the freedom of expression and

democratic process. It analyzes the laws and

policies relating to freedom of expression, but only

in case of Zanzibar country. This thesis is really

helpful to the writer, to understand more about

objectivities of freedom of expression.

The Satanic Verses and the debate over Great Britain’s blasphemy

laws: How a fictional novel caused a Western society to-re-evaluate its

identify, written by Christine Victoria Brown, submitted

to the faculty of the department of History of

Vanderbilt University in partial fulfillment of the

requirements for honors I History, 2009. This thesis

told about a fictional novel The Satanic Verses in

1988, which created worldwide Muslim protest and

petitions. She believed that Salman Rushdie

intentionally blasphemed the Islamic faith. This

thesis also argues that novel conceded to Muslim

demands for equality under the law.

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F. METHOD OF STUDY

The research is literary research, and it will

focus on study about religious blasphemy according

to human rights and look from Islamic perspective.

1. The Sources of Data

In this study the writer uses some books

which very beneficial and importance to get the

good result. The sources of data in this research

are classified into primary and secondary.

a. The Primary Sources

To comprehend religious blasphemy in

Islamic perspective intently and

comprehensively, the writer uses the main

sources based on literature source on

blasphemy and human rights. And the books

are:

Freedom of Expression in Islam. Written by

Mohammad Hashim Kamali, revised edition,

Cambridge, United Kingdom. 1997. This book

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became important book for the writer. In the

preliminary part of this book is devoted to

the definition, scope and objectivities of

freedom of expression highlighted in this

section are the vindication of truth and

protection of Human dignity. And also

addresses the issue of recognition or

otherwise, the rights in the Shari’ah. The

rest of this book concerned in two principal

themes, namely, affirmative evidence in

support of freedom of expression, and the

limitations, whether moral or legal, which

Islam imposes on the exercise of this

freedom. The book also tells certain concept

that relate to freedom of expression.

Human Rights in Islam and Refutation of the

Misconceived Allegation Associated with These Rights.

Written by Sulaieman Abdul Rahman Al-Hageel,

Ph.D. A professor of Education in Imam

Muhammad Bin Saud Islamic University.

14

Published by Dar Eshbelia, Riyadh. The book

present in six chapters with efficiency and

enthusiasm. Here, the book explained the

concept of Human Rights in history, in Islam

and Secular law. The book also addressed the

implementation of the Islamic criminal

system, the pros of such application and the

cons of the suspension and impairment of the

Shari’ah. At the end the book also repudiated

the most important critiques raised by the

enemies of Islam in this domain.

Treason Against God: A History of the Offense of

Blasphemy. Written by Levy, Leonard W. Schocken

Books, New York, 1981. The book tells about

history of blasphemy in Christianity, and He

also writes that blasphemy was very special

crime to Jews. Throughout the book there are

errors of fact and interpretation. The book

also written with both compassion and

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conviction. This book really enriches the

writer about religious blasphemy in the past.

Assharim al Maslul ‘ala Syatimir Rosul. Written by

Ibn Taimiyah, Darul Hadist, Cairo, 2003. This

book written a lot about kind of blasphemous

acts in era of Muhammad (PBUH) and tells more

about those punishments. This book helps the

writer to categorize sort of blasphemy.

b. The Secondary Sources

The writer also relied on available

literature and documentations such as

textbooks, International and Regional

Conventions, Constitutions and other acts of

house of representative (Parliament),

International and National courts Decission,

works written by others that discussed the

matter concerning Religious blasphemy,

defamation laws, and human rights. At least,

some books that relate to this chapter, some

articles from Law and Theology journals,

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Articles, magazines, newspaper, and some

other kind of publications relating to the

subject.

2. Technique of Data Collection

Method is needed to appropriate the title of

study. The characteristic of this work is critical

study hence the writer considers it as library

research: Beginning in collecting sources of

library literature and others,15 then later

compares one data to another’s such as cases and

phenomena in today’s world and cover it by Islamic

view.

3. Method of Data Analysis

This study is based on some methods:

descriptive, analytic and critical method.

Descriptive method to observe the status of human

society or a set condition of object, system of or

a class phenomenon in this era. Its purpose to

make description, illustration or depiction15 KoencoroNingrat, Metode-Metode Penelitian Masyarakat, (Jakarta:

Gramedia, 1974), p. 80.

17

systematic, factual and accurate toward the facts,

the characteristics, and the connection of

researched phenomenon.16

Then, to analyze whole problems on blasphemy

and human right the writer will use analytical

method. At the last, the writer will use critical

method that will critique contemporary problem,

which has relation with a chapter and critics

between them to get conclusion a truth.17

G. THEORETICAL FRAMEWORK

Theoretical framework is an approach used to

see a problem and conclude a research, which can

be made from any sight of fields of knowledge,18

and it could be used in every study until the

16 Moh Nazir, Metode Penelitian, (Jakarta: Ghalia, 1988), p.63.See also Deden Riswan and Maman, Metodologi Penelitian Agama, (Jakarta:PT.RajaGrafindoPersada, 2006), p. 29.

17Burhan Bungin, Ibid, p.13. See also Winarno Surakhmad,Pengantar Penelitian Alamiyah: Dasar, Metode dan Teknik, (Bandung: Tarsito,1990), p. 39.

18Nasrullah ZM, at al. Pedoman Penulisan Skripsi. First Edition.BiroPenelitian dan kajian Ilmiah Institut Studi Islam Darussalam.(Gontor: Trimurti Press, 2005), p. 20.

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abstract can be measured as the religious

phenomenon.

Theology is known as the basic teachings of

religion. Everyone wants to get deep religious

insight, which needs to learn that there is a

theology in the religion. Learning theology will

provide confidences that are based on strong

foundations, which are not easy to be oscillated

by circulation of the time19

Therefore, in this research, the writer uses

theological approach because theology is a science

discusses on God and His relationship with the

universe, but often extended the entire field of

religious cover. Thus, theology has a broad

understanding and knowledge and identical with the

religion itself. Beside theology approach the

writer should use sociological approach to see and

to find out many cases, which has relation to

19Harun Nasution, Teologi Islam Aliran –AliranSejarahAnalisaPerbandingan,(Jakarta: Universitas Indonesia Press, 1986), p. ix.

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blasphemy. Sociological approch begins with an

experience or condition. Because sociology are not

limited to historical frames of linear time. It is

offers a qualitative method of inquiry that can be

applied to myriad of experiences.20

H. SYSTEM OF STUDY

This study is divided into four chapters,

they are:

Chapter one: An introduction. In this chapter the

writer formulates the background of study, problem

formulation, the writer’s purpose in this study, the

importance of study, some literatures speaking about

it, theoretical framework, methodology of the

research which used, and last, system of study.

Chapter two: An overview of religious blasphemy

and human rights. The writer divided this chapter

into three points. The first point was the history

of liberalism in the west, here the writer will

describe about liberalism, and freedom historically,20 ? Campbell, J. Introduction to Methods of Qualitative Research: Video series.Ft. Lauderdale, Florida, U.S.A

20

so that the writer can concludes its relation with

religious blasphemy in today’s world. And the second

point is the concept of human rights. Here the

writer will describe about definition of human

rights as prescribed by secular legislation, and

then the history of human rights, and after that the

writer will mention some of the International

protection of human rights, and at next point was

human rights and religious blasphemy.

Chapter three: Religious blasphemy and Islam.

Here, the writer comes to the main point of this

study. The writer delineates about freedom according

to human rights in Islam, and the next is the

concept of freedom in Islam, then she will analyze

human rights according to Islam, scope of human

rights in Islam, limitations of freedoms and

religious blasphemy according to Islam.

Chapter four: This chapter consists of conclusion,

suggestion as the result of this writing about

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religious blasphemy according to human rights in

Islam, so continued by the closing of writing.

CHAPTER TWO

A BRIEF OVERVIEW OF RELIGIOUS BLASPHEMY AND HUMAN

RIGHTS

A. The History of Liberalism in The West

History has handed a fact that before the late

15th century in Europe, religion has raised to a most

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shameful era in the history of mankind, religion has

become a symbol of oppression of the rights and dignity

of mankind. Its called by historians as the Dark

Ages21. In this age, the power of religion (the

authority of the church) has been used as an instrument

that force people to submit everything to the power of

church. Anyone who refused against the teachings of

religion, they would soon be severely punished in the

name of God.

Dark Ages ended, an enlighment raised. It movement

ultimately changes human civilization to the era of

rationalism, where the mankind became the main subject

in the entity of human being in this earth. This era of

revival named as Renaissance,included humanism, which

is much better known as individualist. Which

considered man as a person was need to be considered,

and has a freedom to do something and embrace certain

21 Hamid Fahmy Zarkasyi, Liberalisasi Pemikiran Islam; (Gerakanbersama Missionaris, Orientalis dan Kolonialis), Center forIslamic and Occidential Studies, CIOS-ISID - Gontor, Ponorogo,2008, p. 5

23

belief. 22

In other word, a religion which previously

forbidden to be criticized and rejected, became a free

arena which able to be criticized, dismantled, and even

blasphemed. For example: Feubarch said that God is

nothing but more than fantasy created by man, Karl Marx

said that God is nothing but the product of class

society and an expression of the interest of high

class,23 and there are still many major philoshopers

such as Jhon Locke,24Voltaire, Nietzche,25 Sartre,

22 ? Brinkley, Alan. Liberalism and its discontents.Harvard Univ. 1998; seealso, John. The two faces of Liberalism, New York P; 2000; Kloppenberg, JamesT.The virtue of Liberalism. Oxford, 1998

23 ? For detail see Nancy Love, Marx, Nietzsche, and modernity, (NewYork, Columbia University Press, 1986) In 1st chapter, p. 1-7, and4th chapter p. 113-114

24 ? A pivotal figure in the development of liberal philosophyas a distinct ideology and taught that everyone was born by theirnatural rights, and in his influential book “two treatises”(1960), the foundational text of liberalism argues as follow: Thusthat which begins and actually constitutes any political society is nothing but the consentof any number of freeman capable of a majority to unite and incorporate into suchsociety. And this is that, and that only, which did or could give beginning to any lawfulgovernment in the world”

25 ? Which said about dissolution of value, in his book “Willto power” he explained about nihilism as a situation where peoplerotating from center to X point, it meant the high valueexperienced devaluation by it’s self, See: Nietzche, Friederich,The Will To Power, Translated by. Walter Kaufmann and R.J Hollingdale,

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Russel and many others strongly to criticize religion.

However, the Idea of modernity makes science,

rather than God, central to society and at best

relagates religious belief to the inner realm of

private life.26 The application of the way of this

rasional thinking to the whole aspects of life, at the

end has assumed to be a wider idea, creating rational

society. This critism has spawned a renaissance era of

freedom of thought under the framework of the ideology

of secularism, an idealogy that forces neutral religion

should withdraw from public of law and quite on public

of society.

Besides, secularism has created an ideology that

provides protection and full freedom for mankind to

believe and stop fighting in the name of religion.

According to James E. Crimmins, progress of

edited by. Walter Kaufmann, (New York, Vintage Books, 1968) p. 8-9

26 ? Alain Tourane, Critique of Modernity, (Blackwell, Oxford, UK,1995) p. 9-10

25

disenchantment is deliberately purposed against

religion or pictured as main agent to replace and move

traditional religion.27So it is true, that liberalism

in social and political fields in western civilization

has marginalized religion from the social and political

affairs slowly. Religion had no place on the social and

economic interests. Eventually, they prefer the concept

that God is taken out of the human mind, even worse

interpreted religious freedom fully meaningful not only

religious freedom but also freedom from religion as

well, meaning that freedom of religion and free for

non-religious.

From the explanation above, the writer certainly

know that liberal ideology is born in the western

period, and derived from the philosophy of humanism,

when the church began to question authority at the time

of the renaissance. The view that human beings have

rights that is free from any authority to be such of

27 ? David Harvey, The Condition of Post modernity, (Cambridge,Blackwell, 1991) p. 12-13

26

background from human right, freedom, as well as on

blasphemy.

B. The Concept of Human Rights

When talking about human rights in Islam and in

man-made laws, the writer needs to define the terms of

human rights according to the Islamic poin of view and

the Secular respective. But, in this chapter the writer

will describe the concept of human rights which

happened in the west. At last, the writer will make a

comparison with Islamic view.

1. Definition of Human Rights as prescribed by

Secular Legislation

The history of liberalism and that of human rights

up to now are the same. All liberals, whether it’s left

or right leaning, agree that the individual’s freedom

is the starting point for the policies they adopt and

in this moment the activist of human rights would

agree. Indeed, one of the definitions of freedom most

27

commonly used as demonstrates the inherent link

between freedom and rights.

Actually, there are different definitions of human

rights as defined by various schools of thought. The

proponents of European school assert that the concept

of “human rights” is a new notion that covers what has

been known now as common entitlements of rights and

freedoms.28 The entitlement can be freely and willingly

practiced by the people without fear, deception,

coercion or threat.29

Human rights are specific entitlements of

different types and spectrum that are enacted by the

legislature under certain conditions of thought, so as

to be practiced by secular arrangement. 30 This means,

that position given to the individual that it will

allow everyone not to be prevented by the public28 ? Mahir Abdul Hadi, Huququl Insan (Human Rights), (Saudi, DarAl Nahdha Al Arabia, 1984)p. 17

29 ? Michael L-Gharieb, Al-Hurriyat Al Ama (Common Freedoms),Beirut, p. 28

30 ? Naiem Attiyah, Contribution in the study of the General Theory ofFreedoms, (Cairo, Al Dar Al Ghowmiyah) p. 161

28

authority to practice certain act, include speech,

thought, etc.

In addition, freedom can also be interpreted as

the free acknwoledgment of the individual without being

subjected to any external pressure or manipulation to

determine his conduct by himself.31 Based on that

definitions, the writer can determine the distinctive

characteristic of human rights as common freedoms in

view of the notions proposed by those scholars.

According to this concept, human rights are

related to the concept of freedom. This freedom is the

capability to do something or the ability to refrain

from doing something. That is to say, the individual is

not subjected to act in accordance with ceratain

authoritative imperatives of the state. This is why

freedoms are said to be public not because they are

practiced by all people, but because they are practiced

by vis-a-vis the state.

31 ? Ta’iema Al Jarf, The Theory of The State, Dar Al Nahdha AlArabiya, p. 258

29

Human rights are derived from the concept of

“right” which is much wider than freedom as it includes

freedom, there are certain rights, which can not be

said or interpreted as freedoms. For example: right for

insurance, and another freedom for doing something.

Based on foregoing premises, human rights can be

defined as rights that are to be recognized to the

interest of individual for the simple fact of being

human being.32 They are different from secular rights

in the sense that they do not require legal protection

so that they can be claimed for.33

It is true, that the concept of human rights in

the western thought is subject to different schools of

interpretations which so far have not reached a

consensus for a comprehensive definition of human

rights.

2. The History of Human Rights

32 ?Human rights is the fundamental rights that humans have bythe fact of being human being, and that are neither created norcan be abrogated by any government.

33 ?Mahir,Op. Cit, p. 24-33

30

Historiacally, the concept of human rights in

ancient societies was based on the notion that right

was for the might and force. Whoever is powerful used

to enjoin all the rights, while the weak were deprived

of all rights in most of times. There was no protection

for the individual rights. Personal freedom or other

freedoms were neither known nor established. Slavery

like the writer told above was commonly practiced and

socially acceptable. Freedom to work was restricted and

social stratum system was the basis for social

structure. The people were enslaved, women were

degraded, and most of the rights were not recognized.

By secular human rights instruments, protection

under human rights started since 1215, when the English

document, Magna Charta was first declared,34 this

34 ?First declared following the Baron’s rebellion during KingJohn’s reign. The essence of his document is that the king shouldnot encroach on the properties or the personal freedom of hissubjects. The Magna Charta or “Great Charter” was arguably themost significant early influence on the extensive historicalprocess that led to the rule of constitutional law today in theEnglish-speaking world Widely viewed as one of the most importantlegal documents in the development of modern democracy, the MagnaCharta was a crucial turning point in the struggle to establishfreedom.

31

document is followed by the bills of rights in 1628 by

the English parlement and sent to Charles I as a

statement of civil liberties.35

In 1776 the American independence was granted

which included in its principles the human rights such

as the right of the individual to equality, freedom,

life, and happiness.36 It was also declared that all

people are born equal. Also human rights in respect of

equality, freedom, life, and dignity were emphasized.

Philosopically, the Declaration stressed two themes:

Individual rights and the right of revolution. These

ideas became widely held by Americans and spread

internationally as well, influencing the French

Revolution.

The first ten amendements to the constitution,

known as Bill of Rights came into effect on December35 ? The petition of Right was based upon earlier statutes andcharters and asserted four principles: (1) No taxes may be leviedwithout consent of parliament, (2) No subject may be imprisonedwithout cause shown, (3) No soldiers may be quartered upon thecitizenry, and (4) Martial law may not be used in time of peace.

36 ? Abdul Aziz Al Khayiat, Human Rights and racial discrimination,(Cairo, Dar as-Salam, 1409.) p. 179

32

14, 1791, limiting the powers of the federal

governments of the United States and protecting the

rights of all citizen, residents and visitors in

American territory.37

In France, the law of human rights and citizen

rights was enacted in 178938, it was followed by the

constitution of 1791 presdicribed that people are born

free and have equal rights and that the purpose of each

state is to maintain tha natural human rights that can

not be ignored. These rights included freedom,

property, security, opposition of repression, and that

people are the source of power, its also provided for

the explanation of freedom of thought and expression,

freedom of private property, as well as the prohibition37 ? The Bill of Rights protects freedom of speech, freedom ofreligion, the right to keep and bear arms, the freedom of assemblyand the freedom of petition. It also prohibits unreasonable searchand seizure, cruel and unusual punishment and compelled self-incrimination

38 ?In 1789 the people of France overthrew their monarchy andestablished the first French Republic. Just six week after thestorming of the Bastille, and barely three weeks after theabolition of feudalism, the declaration of the rights of Man andof the citizen was adopetd by the National constituent Assembly asthe first step forward writing a constituation for the Republic ofFrance.

33

of confiscation of private property except for public

necessity and against for compensation in advance.

It is worth mentioning that because the French

declaration recognized the principle of sovereignity of

each state on its territory, it had no direct legal

effect on other countries except countries that adopted

the same principles and embedded them in their

constitutions. The Principles of the French declaration

were mostly adopted and incorporated in the

constitutiond of the western European countries during

nineteenth century and the beginning of the twentieth

century, such as Italy, and Germany.39In 1864 declared

The First Geneva Convention .40

In addition to the concern of the state about

human rights, international organization also declared

39 ? Abbas Musa Mustafa, Human Rights between the assertions of the westand the legitimacy of Islam, (Diplomatic Studies Journal). Issue No.31406, p. 179

40 ? The main principles laid down in the convention andmaintained by the later Geneva Conventions provided for theobligation to extend care without discrimination to wounded andsick military personnel and respect for and marking of medicalpersonnel transport and equipment with the distinctive sign of thered cross on a white background.

34

human rights. At this time, the concern developed from

the local level to the international level. The concern

developed from the local level to the international

level. The most significant development in the domain

of human rights was the adoption of the United Nations

to human rights, which became the objectives of the

United Nations after the declaration and destruction

that followed the second world war when the United

Nations was established in 1945.41

In addition to this declaration, the United

Nations has declared a number of international

conventions relating to different aspects of human

rights. There are some of the conventions adopted by

the United Nations.42 In addition to these conventions,

there are numerous covenants and regional or national

instruments relating to human rights.

41 ? Mohammad Al Hussein Al Musayhili, Human Rights between IslamicShari’a and International Law (Researches and Studies), (Cairo. Dar AlNahdha Al Arabiya. 1988) p. 16-17

42 ? Mohammad Hashim Kamali, Op. Cit, p. 93

35

The Universal Declaration Human Rights (UDHR)

consisted of 30 articles which explained about whole of

human rights, But in this case, to avoid tautological

statement the writer will restrict her self only to the

main principles therein. The main problem from articles

on UDHR was situated on article 18, 26, also 29:

Everyone has the rights for freedom of thought, conscienceand religion; this right includes freedom to change his religionor belief, and freedom to manifest his religion or belief inteaching, practice, worship and observance, either alone or incongregation, privately or in public.

The Provisions of article (18) as Moslem knew do

not comply with the Islamic teachings, as it indicates

that man is free to change his religion. Islam

prohibits a Moslem to change his religion because this

is regarded as apostasy where a hadd punishment has

been prescribed for this offense.

On article 26, verse 2:

Education shall be directed to the full development of thehuman personality and the strengthening of respect for humanrights and fundamental freedoms. It shall promote understanding,tolerance and friendship among all nations, racial or religiousgroups, and shall further the activities of the United Nations forthe maintenance of peace.

On article 29, verse 1, 2, and 3:

36

1. Everyone has duties to the community in which thefree and full development of his personality ispossible.

2. In the exercise of these rights and freedoms,everyone shall be subject only as determined by law.This is solely for the purpose of securing duerecognition and respect for the rights and freedomsof others and to meet the just requirements ofmorality, public order and the general welfare in ademocratic society

3. These rights and freedoms may in no case be exersisedcontrary to the purposes and principles of the UnitedNation.

There are many different views about the bindings

of the UDHR , the notion of adopting a declaration of

human rights emerged immedeitely after the end of World

War II and during the signature and ratification of the

charter establshing the United Nation Organization in

San Fransisco conference in 1945.43

By view from these statement above, the writer

knows that the agreement of Universal Declaration of

Human Rights by United Nation is so much different with

another Human Rights declaration by another states,

such as; France, English, or America or even so far

different with formulation by religions 44

43 ? Ibid, p. 30

44 ? W. Cole Lindholm, w. Cole Durham, Jr and Bahia G. TahziebLie (eds) Kebebasan beragama atau berkeyakinan: Seberapa Jauh?: Sebuah referensi

37

But in Islam, its has has established human rights

some fouten centiuries ago. While the world was roaming

in ignorance and darkness, ruled by force and hegemony,

lacking logic and justice, the message of Islam was

revealed to synthesize the worldly matters of man and

to organize his relation with his Lord and his mates.

It also establises the principles of the political,

social, cultural and civil rights of man. Islam has

honored man by granting him freedom of thought, freedom

of religion, as well as freedom of expression. Also,

Islam has established some rights that have not been

recognized so far by the twientieth century

legislatures. The principles laid down by Islam for the

protectiuon of human dignity, and his human rights are

still beyond the reach of human reason.

When the writer make a comparison between what has

been established by Islam and what was reached by

secularism and human reason, the writer realize that

tentang prinsip-prinsip pokok dan praktek. (Yogyakarta, Kanisius, 2010) p.56

38

the Islamic principles in the domain of human rights

are superior by virtue of being just and righteous.

They established some rights that are unique and not

available in other system, and likewise, they maintened

the dignity and humanity of man.45

As Muhammad Al Ghazali puits it, “ the final

principles laid down by mankind for the protection and

maintenance of the dignity of man has been the primary

concern of Islam. The Universal declaration is just

reiteration of the subtle teachings received by Muslims

from the great human and fnal messenger the Holy

prophet, Muhammad.46

Within the same contesxt, Islam has enacted in

depth and magnitude human rights since fourteen hundred

ago. It safeguards these rights through sufficient and

effective protective measures. It reforms the societyin

accordance with principles and bases that engrain these45 Azhar, Majm’a Al Buhouth Al Islamiya (Islamic Research

Complex). Human Rights in Islam and its protection of human values and virtues, 1391, p. 35.

46 Muhammad Al-Ghamdi, Human Rights in Islam between Islamic tenets and the Declaration of UN, 1984, p. 9

39

rights have been stipulated in Quran and Sunnah before

they were documented in the International covenants

some fourteen years ago.

Islam has transferred man from partisanship and

bigotory of tribalism, clan, faction, race, and color

to much wider parameters of humanity that attributed to

one origin. These difference are not supposed to drive

people for separation, antagonism, and hostility.

Rather, they should make them cooperate and know each

other. Islam does not lay out abstract theories, but

Islamic history reported that these doctrines were

precisely implemented during the Prophet epoch and era

of the rightly guided caliphs, as well as other

luminous Islamic eras.

3. The International Protection of Human Rights

The International law of human rights has largely

developed since the mid-20th century. International

human rights standards as set out in declaration and

40

treaties embody civil, here the writer will describe a

bit about the human rights in some convenents:

1) Human Rights in Europe

Under article 10 of the European Convention for

the protection of human rights, the situation which a

restriction may be justified include the need to

protect public interest, such as national security,

territorial integrity, freedom from crime and disorder,

protection from iindividual rights, such as right to

privacy or reputation. However, when a contracting

party imposes restrictions upon the exercise of freedom

of expression, the right must not be rendered

meaningless.47

It has began at 1949 after Europen country joined

the council of Europe. And in 1949, Committe of

Minister and parliament asembly in London was succesed

for ordering convenent of human rights, named by

“Convention for the protection of Human Rights and

47 ?Onder Bakircioglu, The Application of the Margin of Appreciation Doctrinein Freedom of Expression and Public Morality Cases, in German Law Journal, Vol.08, no.07.

41

fundamental freedom” in 1950.48The convention entered

into force on 3 September 1953. All council of Europe

member states are party to the Convention and new

members are expected to ratify the convention at the

earliest opportunity.49

From the preface above, the writer can describe

that basis matter and understanding of Human Rights in

Europe not too far different from declaration of Human

Rights by United nations. Because of that, motive of

initiation of Human rights in Europe is purposed to

support of Human rights by United Nations. Europe

Assembly has a set of law instrument, as mentioned

below:

1. Convention for the protection of Human Rights

and fundamental freedom (1950): “public order,

public safety and protection of human rights

48 ? Prof. A. Masyhur Effendi, and Taufani Sukmana Evandri,HAM dalam dimensi/ dinamika yuridis, sosial, politik. Dan prosespenyususnan / aplikasi HA-KHAM (Hukum Hak Asasi Manusia) DalamMasyarakat, ( Ghallia Indonesia, Bogor.) p. 112-113

49 ? Resolution 1031 (1994) on the honoring of commitmentsentered into by member states when joining the Council of Europe

42

and freedom of others are prescribed by law and

necessary in a democratic society.”

For the purpose of protection of the rights under

the European convention establishes the European

court of Human Rights which came into operation on 1

November 1998, and function on a permanent basis.50

Fifteen protocols to the Convention have been

opened for signature. These can be divided into two

main groups: those amending the framework of the

convention system, and those expanding the rights

that can be protected. The former require unanimous

ratification by member states before coming into

force, while the latter require a certain number of

states to sign before coming into force.

1 First protocol to the convention, contents about

whole explanation and confirmation from every

rights in every subject of law, until every

50 ?Article 19 of European Convention for the Protection ofHuman Rights and Fundamental Freedoms as amended by Protocol No.11. See Handy side case, 24 European court of Human rights, 1976.

43

citizen not only knew about the principal, but

also its specification.

2 Second Protocol, contents about methods of The

European court of Human Rights to give such of

advices or law idea to the case that assumptioned.

3 Third Protocol, contents about methods also

mechanism in the European Commision of Human

Rights.

4 Fourth Protocol, contents of rights and freedom of

mankind beside what explained on the convention

and the first protocol

5 Fifth protocol, there an explanation about comitte

office of Human rights in Europe.

2) Human Rights in America

The protection of fundamental human rights was a

foundation stone in the establishment of the United

States over 200 years ago. Since then, a central goal

of U.S. foreign policy has been the promotion of

respect for human rights, as embodied in the UDHR.

Because the promotion of human rights is an important

44

national interest, the United States seeks to promote

greater respect for human rights, including freedom

from torture, freedom of expression, press freedom,

women's rights, children's rights, and the protection

of minorities.51United States of America since 1948 has

composed Organization of American States through

agreement of Charter Bogota (1948). Then came after

that Santiago Declaration, Chili (1959) when it forces

again that America Will put UDHR in their Constitution.

And in 1948 American Declaration the rights and Duties

of Man was declared.

The detailed proprovision on freedom of expression

is found in Article 13 of American Convention of Human

Rights which read as: “Everyone has the right to

freedom of thought and expression. It includes freedom

to seek, receive, and impart information and ideas of

all kinds, regardless of frontiers, either orally, in

51 ? U.S. Department of State, Diplomacy in Action,http://www.state.gov/j/drl/hr/, Accessed: Sunday, 21 July 2013,10:51 am.

45

writing, in print, in the form of art, or through any

other medium of one's choice.”

In the exercise of the right provided shall not be

subject to prior censorship but shall be subject to

subsequent imposition of liability, which shall be

expressly established by law to the extent necessary to

ensure:

(a) Respect for the rights or reputations of others; or

(b) the protection of national security, public order, or

public health or morals.52

Nevertheless, human rights in American have become a

protection as well to any rights, included of rights to

free speech and even hateful speech.

3) Human Rights in Africa

52 ? See full text, Article 13 of American Convention on HumanRights. Adopted at San José, Costa Rica, 22. November 1969, O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force 18July 1978.

46

The idea of drafting a document establishing a

human rights protection mechanism in Africa was first

conceived in the early 1960’s. At the first congressof

African jurist, held in Lagos, Nigeria in 1961, the

congress adopted a declaration otherwise referred to as

the ‘laws of Lagos’ calling on African governments

toadopt an African convention on human rights with a

court and a commission. However, at the time African

governments did not make serious efforts to promote

this concept.

African union is less developed as compared with

other regional development by having very weak

formulation of freedom of expression.53 Political

intolerance. The right to freedom of expression is

explained under article 9 of the ACHPR which read as:

Every individual shall have the right to receive

53 ? Claude E. Welch, Protecting Human Rights in Africa: Roles and Strategiesof Non-Governmental Organizations (Philadelphia: University ofPennsylvania Press) p. 112-113

47

information as well as the right to disseminate opinion

within law.54

The African comission which established this

charter has given little attention to the freedom of

expression. As consequence of serious violations of the

rights of freedom of expression in Africa, it adopts

the Declaration of Expression in Africa (2002) which

come up with several principles for the purpose of

improvement of this freedom and is regarded as an

authorative elaboration of the guaranee of freedom of

expression. The freedom of expression is an individual

human right and a cornerstone of democracy as well as a

means of ensuring respect for all human rights and

freedoms.

As well as America, Africa has founded the

Organization of Africa Unity (OAU). The Africans have

made Conference I in 15-22 of April 1958 at Ghana. This

conference produced the result as below:

Article 9

54Article 9 of the ACHPR

48

1. Every individual shall have the right to receive information2. Every individual shall have the right to express and

disseminate his opinion within the law

C. Human Rights and Religious Blasphemy

In recent years, acts and artefacts that were

perceived as blasphemous by numerous believers received

much attention in public debate as well as in scholarly

literature. This concerns the various aspects and

interests which motivated public statementns and

demonstrations for or against such acts and artefacts.

It also applies to normative questions such as wheter

or not blasphemous acts are unjust or direspectful,

whether they should be placed outside the protection of

freedom of expression or rather the opposite wheter

they are praise worthy from a moral, political, or a

religious point of view.55

There is a broad range of meanings that is given

to the notion of blasphemy in specific historical

contexts in different religion. But, in very broad

55 ? Anthony Fisher & Hayden Ramsay, “Of Art and Blasphemy,”Ethical Theory and Moral Practice 3.2 (2000), p: 137–167

49

sense, blasphemy is concerned with insults to god(s)

and the sacred, more specifically it constitutes, the

use or abuse of language, or behavioural acts, that

scorn the existence, nature or power of sacred beings,

items, or texts56 And in Islamic tradition, insult to

(sabb) and vilification of (Shatm) God, the prophet

Muhammad or to venerated persons are considered as

crimes “ fully comparible to blasphemy.”57

Accordingly, not only god, but also other sacred

beings and things can be object of blasphemy, for

example the Virgin Mary or the prophet Muhammad, as

crufix, or Holy scriptures. According to Oxford

56 ? David Nash, “Analyzing the History of Religious Crime: Models of ‘Passive’and ‘Active’ Blasphemy since the Medieval Period” Journal of Social History 41.1(2007), 5–29, here David Nash’s work concerns primarily, but notexclusively, blasphemy in the context of what he calls “theChristian world,” especially Europe. Concerning Judaism, Daniel J.Lasker points out “there is no one standard Hebrew term forblasphemy, indicating that blasphemy is not recognized as adistinct, prohibited category of speech in traditional Judaism.”See Daniel J. Lasker, “Blasphemy: Jewish Concept” in: Lindsay Jones(ed.), Encyclopedia of Religion, vol. 2, 2nd ed. (Farmington Hills,Mich: Thomson Gale, 2005), p: 968–971

57 ? Carl W. Ernst, “Blasphemy: Islamic Concept” in: Lindsay Jones(ed.), Encyclopedia of Religion, vol. 2, 2nd ed. (Farmington Hills,Mich.: Thomson Gale, 2005), p: 974–977, here p: 975. Blasphemy wasintroduced in Islamic law in chapters on apostasy (riddah).

50

dictionary, Blasphemy derived from old french, via

ecclesiastical latin from Greek blasphēmia ‘slander,

blasphemy’, which means irreligious or the action or

offence of speaking sacrilegiously about God or sacred

things, by all means : Profane talk.

Another definition, the word blasphemy derives

from the Greek word blasphemia, meaning offensive speech

concerning religion.58The idea of reprimanding people

for blasphemy dates back to Ancient Greek civilization

when people were punished because their words were

blasphemous against the prevailing religion. The state

punished many notable intellectuals due to their

blasphemous opinions about religion, including

classical Greek philosopher Socrates who was sentenced

to death in 399 BC.59

Accordingly, religious blasphemy is not only a

religious or theological problem, but also an affront

58 ? Nicolas Walter, Blasphemy: Ancient & Modern (London:Rationalist Press Association: 1990), p. 8

59 ? Ibid, p. 9

51

to order and the social community, and hence a social

and political problem.60 Blasphemous acts as threats to

the social community because they provoke the wrathful

punishment of God. At first glance, blasphemy and

violence seem to be merely indirectly related to each

other, because blasphemy does not in itself inflict

some kind of injury to somebody.

The writer also can summarize that blasphemy is

very similar with the concept of ‘anti-religious’ and

more specifically ‘anti–Muslim-Jewish-Christian racism’

that denotes processes where the ‘otherness’ that is

ascribed to certain people and even the ‘groupness’

under which they are subsumed is construed by reference

to their religion.61

60 ? David Nash, Blasphemy in the Christian World: A History (Oxford:Oxford University Press, 2007), p. 82.

61 ? This process does not exclusively apply to Muslims, ofcourse. Rather, the writer points out similarities between what hecalls the current racialization of Muslims and the older, butstill effective racialization of Jews and the corresponding shiftfrom Judeo-phobia to anti-Semitism

52

Many international documents on human rights has

called on religious freedom. Nowadays, Religious

blasphemy became an international issue. The

international community has split into at least two

groups related issue of blasphemy. Some groups of

people say that the statement of religious blasphemy is

part of freedom. They argue that it should be banned,

is not blasphemy. But of course, it is not true. To

know how the religious blasphemy, the writer will

mention some of the blasphemy cases in this world:

1. The Cases of Religious Blasphemy

Blasphemy prosecutions are somewhat often. There

are many cases, which were reported, even in Indonesia

and the other side of this world. Parts of them were

widely published in the media.

In December 1991 a blasphemy prosecution also took

place in Egypt, the blasphemy consisted of a

fictionalized satire about the Prophet Muhammad. The

case Copies of Sine´’s Massacre, a french cartoonist’s

53

book of anti-clerical cartoons (some of which had a

sexual theme) were burned permission was refused to

make a film entitled The Many Faces of Jesus concerning

Jesus’s sex life; and Mary Whitehouse led a campaign

against Monty Python’s Life of Brian.62A similar moral panic led

to the Gay News case itself in 1979, the first

succesful prosecution for almost sixty years, in which

Mary Whitehouse brought a private prosecution alleging

that the publication of the poem ‘The Love that Dares

to speak Its Name’ was blasphemous.63

Blasphemy not only affected with Christian, in

1991 public order disturbances following the

publication of Salman Rushdie’s The Satanic Verses 64led to a

62 ? Richard Hewison, Monty Phyton: The Case Against Religion, Eyre NMeutheun Ltd, 1981, p. 66-67

63 ? The Poem by James Kirkup (Who died in May 2009) describedacts of fellatio and sodomy committed on Christ’s body immediatelyafter his death. It also suggested that Jesus had committedpromiscuous homosexual acts with his disciples and other men.

64 ? The fictional novel tells the story of two men: one ofwhom is divided between his attraction to life in the East and hisattraction to life in the West: the other is divided between hisdesire to believe in God and his inability to believe in God. Thefirst man survives by returning to the East; the second is unableto return to his religious beliefs and finally kills himself. Thenovel disparaging references to God, Abraham, Muhammad and theteaching of Islam

54

judical review in the high court of the decision not to

issue a criminal summons. Satanic Verses as a novel

about ambivalent religion, doubt and moral

deliberation. The novel was seen by some as serious

investigation of moral and religious issues but was

felt to be deeply offensive by others.

The outcome of Rushdie’s literary project soon

proved to be highly dramatic, both for Rushdie himself

and for his transators and publishers. Because of the

novel’s frivolous play with sacred elements of Islamic

history, such as the whoreas mecca being given the

names of prophet’s wives to boost bussiness before

Muhammad’s final takeover, it was seen by many Muslims

as an apostate’s deliberate defamation of Islam.65

For over decade, Human rights has documented over

one hundred recent cases which demonstrate the gross

abuse of national laws that criminalize the defamation

65 ? At a deeper level, the novel’s retelling of thetraditional story about ‘the satanic verses’ implies that Muhammadmore than once might have listened to his own ambitions instead ofharkening to God-and perhaps without being corrected by the angelof revelation (Gabriel)

55

of religions and enable governments to target

individuals for the peaceful expression of political or

religious views. The writer sees that some of these

cases involve speech and acts that may be characterized

as offensive. Nonetheless, much can and should be done

to confront problems of intolerance, discrimination,

and violence without restricting speech.66

Here, the write should like to elaborate some of the

recent ases which has relation to Religious blasphemy:

Saudi Arabia: In February 2012, 23- year-old

journalist HamzaKashgari was accused of blasphemy after

he posted a string of Twitter messages in which he

imagined himself speaking with the Prophet Muhammad.

Kashgari wrote, “On your birthday, I will say that I

have loved the rebel in you, that you’ve always been a

source of inspiration to me, and that I do not like the

halos of divinity around you. I shall not pray for

you.” Within hours of his postings, more than 30,000

people responded to his tweets, many calling for him to66 ? Human Rights First, “Confronting hatred While RespectingFreedom of Expression” Fact Sheet, March 2010, p. 45

56

be punished. On Facebook, more than 12,000 people

called for his execution. Kashgari deleted the Twitter

messages and issued an apology but to no avail.67

Pakistan: On May 30, 2011, a group of politicians

and clerics urged the Supreme Court of Pakistan to

declare passages in the Bible as blasphemous. They

claimed that Islamic prophets are characterized as

flawed in certain Biblical passages. If the court does

not comply, efforts will be made to formally ban the

Bible.68

Indonesia: The recent one, which happened in

Indonesia, when five Indonesian teens have been accused

of blasphemy, because they filmed themselves dancing to

another Maroon 5 song during a prayer seassion. The

twelfth graders appered in a five-minute cell phone

video where they alterned between performing shalat, or

67 ? Ellen Knickmeyer, “Saudi Twitter is Arrested in Malaysia,”The Wall Street Journal, February 10, 2012.

68 ? Patrick Goodenough, “Pakistani Muslim Clerics: Ban theBible,” cnsnews.com, accessed: June 1, 2013,http://www.cnsnews.com/news/article/latest-target- pakistani-radicals-ban-bib.

57

prayer, and dancing like tenageers to Maroon 5’s single

“One More Night”. The girls were allegedly looking for

a fun way to spend a few hours between classes on the

afternoon of March 9, 2013. There is plenty of head

bobbing, hair flipping, and a little bit of gyrating.

The girls were allegedly inspired by the popular Harlem

Shake Youtube videos.

As the writer pointed before, that blasphemy was

one of the ways to insult religions and other sacred

things, its mean,blasphemy became such of weapon to

irritate religion and relate to violence. In the case

of the Muhammad cartoons controversy the alleged

susceptibility of Muslims to religious offense was

interpreted as evidence that Muslims take their

religion ‘too seriously’ and are not able to keep a

critical distance to their religious commitments.69 In

that sense, the problem was seen as resulting from an

69 ?Christian F. Rostbøll, “Autonomy, Respect and Arrogance inthe Danish Cartoon Controversy,” Political Theory 37.5 (2009), 623–648,626.

58

improper reading practice on the side of believers.70

Moreover, the cartoon controversy was construed as a

conflict between an enlightened, modern, liberal, and

secular ‘West’ and a backward, fundamentalist Muslim

‘other.’71

Analyses of the media treatment of the cartoon

controversy in various European countries show that

Muslims, who publicly voiced that they experienced the

Muhammad cartoons as an assault on their religion, were

not only construed as hyper-susceptible to offense and

in need of a ‘modern’ and ‘enlightened’ reconstruction

of their (religious) identity. Rather, they were taken

as insufficiently integrated into liberal democratic

societies, or even fiercely opposing liberal democracy

and its normative foundations including freedom of

expression, but in any case not as competent democratic

70 ?Mahmood, Op.Cit, “Religious Reason,” p. 74.

71 ?FraukeMiera& Valerie Sala Pala, “The Construction of Islamas a Public Issue in Western European Countries Through the Prismof the Muhammad Cartoons Controversy,” Ethnicities 9.3 (2009), p. 383–408, 393.

59

citizens.72

The writer have sought to show that blasphemy can

be construed as violence in three different forms, and

the writer also identified conditions that bring about

certain instances of blasphemy that take effect as

specific forms of violence. The understanding of

blasphemy as physical violence has proven to be

dependent on very specific religious assumptions, and

also blasphemy functions as a tool to produce and

enforce negative stereotypes of followers of a

particular religion. Because of this, blasphemy takes

effect as indirect inter-subjective violence almost

exclusively for members of religious groups that are

already in a socially weak and marginalized position.

72 ? The tendency to construe opposition against the cartoonsas evidence of an ostensible clash of civilizations and afundamental incompatibility of liberal democracy and Islam wasidentified in an analysis of the media treatment of the debateabout the cartoons in Denmark and France that was carried out bysocial scientists Carolina Boe and Peter Hervik (Carolina Boe&Peter Hervik, “Integration through Insult?,” in: Elisabeth Eide,RistoKunelius, & Angela Phillips (eds.), Transnational Media Events: TheMohammed Cartoons and the Imagined Clash of Civilizations (Gothenburg:Nordicom, 2008), p. 213–234

60

What is of major importance for the understanding

of blasphemy as psychological violence is the status

that religion has in the personal identity of

believers. That believers cannot only be annoyed, but

also profoundly offended by blasphemy can be understood

if religion is taken as something that is incorporated

in the believers themselves. In that sense, nothing is

peculiar, ‘un-enlightened,’ or even fundamentalist

about being profoundly offended by certain instances of

blasphemy. Rather, it is a matter of what is really

important to somebody, and of what a person whole-

heartedly cares about.

CHAPTER THREE

RELIGIOUS BLASPHEMY AND ISLAM

Based on examination of human rights in Islam in

the previous chapter, it is known that human rights

derived from the Quran and Sunna, the writer can

establish that human rights Islam enjoin certain

characteristics and qualifies that include that human

61

rights in Islam are derived from the Islamic faith and

also divine gratuities, therefore they are not gifts

donated from man to another man, which can be donated

or deprived according to human will. But instead, they

are provided by Allah the Almighty.

Human rights in Islam are not absolute but

restricted to conformity with the objects of the

Islamic shari’a, and consequently to protect the rights

and interest of the community in which the individual

is a member. In order that the restriction, of human

rights in Islam may not be misunderstood, the writer

will quote here some examples for types of rights that

require certain restriction and protection:

A. Freedom According to Human Rights in Islam

All human beings are born free and should be

treated equal in dignity.73 It’s meant that all human

beings have rights. Perhaps, one of the most

controversial categories of rights is the right to

religious freedom, and yet freedom of speech and

73 ? Universal Declaration of Human Rights: Article 1

62

expression as well. In addition, the discourse of human

rights, which focused on the issue of freedom of

religion, always has an appeal considering the

development of Islam, both as a phenomenon of religion

as well as social and political phenomenon.

Furthermore, Islam has honored man by granting him

freedom of thought, freedom of religion, as well as

political freedom.74 The freedom in Islam is like the

authority, which implies responsibility and

accountability. Despite that, human rights in Islam are

divine gratuities. Therefore, they are not gifts

donated from man to another man, which can be donated

according to human will. But instead, they are provided

by Allah the Almighty.

On the other hand, provided that discussions on

religion are of an objective nature and not a pretext

of abuse and ridicule. This is stated in the following

Quran verse:

74 ?Sulaiman Abdul Rahman Al-Hageel, Ph.D., Human rights in Islamand refutation of the misconceived allegations associated with these rights,( DarEshbelia, Riyadh), p. 28

63

“Invite (all mankind) to the way of your Lord with wisdom and fairpreaching, and argue with them in a way that is better”75

Even that Islam grants those freedom to mankind,

but there are limits to those freedoms, either

expression or thought. And that one of these, is the

denigration of religion and through that the insulting

of the community of religious people. And so there is a

question, if freedom of expression does have

limits, just how can these limits be defined? And how

can one identify the boundaries of what might

legitimately be considered offensive?

In article 18 Universal Declaration of Human

rights:

Everyone has the right of freedom of thought, conscience andreligion; this right includes freedom to change his religion orbelief, and freedom, either alone or in community with others andin public or private, to manifest his religion or belief inteaching, practice, worship and observance.

Two important things about article 18 are, that

the first of all, a right of freedom of thought and

75 ? The noble Quran, sura16: 125

64

conscience that include religion. Second, in protecting

a right to change religion or believe it also protects

the right to persuade others to change their religion,

by protecting public manifestations of religion or

belief. Unfortunately, article 18 does not protect

beliefs, as such, from negative comment (though respect

for human dignity could protect individuals from

negative comment on their own beliefs) as can the

writer says, from religious blasphemy.

Actually, the individual right of expression as a

minor and innocuous right, but at the same time, and

for its power is also common. The writer suggested,

that the use of freedom of expression could reasonably

be limited if it caused harm to others. The idea is

usually illustrated by saying that it would be a

harmful use of freedom of expression to shout ‘Fire!’

in a crowded theatre.76

The attraction of the use of harm as a guiding76 ?Hamid Fahmy Zarkasyi, Misykat: Refleksi tentang Islam, Westernisasi &Liberalisasi, Jakarta, INSIST, 2012, p. 226

65

principle is that harm can quite often be measured: it

might involve financial loss or personal injury.

However, in this context it is generally taken to mean

harm to the rights of others and as such it requires

more or less the kind of calculation of proportionality

suggested above.

The right to express and to be informed should,

therefore, be secured by all who respect humanity and

are grateful to God. Indeed, if one allowed thinking

and believing, but not to communicate with others

views, one’s freedom of thought and belief is actually

restricted.

Despite that freedom of thought defines the

freedom of speech and they both are now universally

recognized as a basic right of an individual. Islam

encourages basic freedoms for all humans, but teaches

us that an individual’s freedom is nothing without the

sense of responsibility and commitment.77

77 ? Mohammed Ahmed, Comparative Study on the UDHR and the Provisions of the International Convention on Economical, Social and Cultural Rights, and the Islam Stance, (Beirut, Ar Risalah , 1406, p. 142)

66

In universal declaration of Human rights

especially in article 9 (1): Protects the rights of

individual, for holding a belief may be intrinsically

bound up with manifesting it, for example through

worship, teaching others, the wearing of symbols or of

special clothes.

In studying the Universal Declaration of Human

rights from Islamic point of view, the writer remember

that while Islam lays down broad values and standards,

which clearly endorse the spirit and purpose of the

declaration, it does not pronounce verbatim on all the

specific provisions of the declaration.78 There are

Islamic teachings, which can be used as reference to

reconcile Islam and human rights, including freedom of

religion or belief. Undoubtedly, the issue of human

rights challenges the Muslim world, a fact that

everyone will never reject.

78 ? Ibid, p. 150

67

B. The Concept of Freedom In Islam

Allah gave Adam liberty of free choice between

right and wrong. It is in the same reference that Allah

almighty says in the Holy Quran:

We have honored the son of Adam: provided them with transport and

sea, given them for substance things and pure, and conferred on

them special favors, above the great part of our creation.79

This verse reflects that freedom is equally a

shared goal of mankind, wherewith no one violates

freedom of other individuals. The Satanic approach to

freedom is to deprive others from their right to

freedom while the angelic obedience is a model of peace

loving. Pharaoh misused his right to freedom and

enslaved the Israelites. Moses (peace be upon him)

79 Noble Quran: Sura: 17: 70

68

stood against him using his same right to freedom as a

common goal and shared value. This is the clear message

of Islam to whole mankind on earth and under the sun:

On that day of dominion will be that of Allah, He will judge

between them: so those who believe and work righteous deeds will

be in Gardens of Delight 80

Never did the Holy Prophet (peace be upon him)

denied any human being his right to have freedom of

expression. Both the believers of Islam and non-

believers could freely speak their minds in front of

him. He gave full liberty of thought even to the Jews

despite of their dirty politics.

Having established that in Islam there is no

freedom without justice and these two values freedom

and justice has been the inspiration and motivator of

the great revolutions in the world, be they political,

80 ?Noble Quran sura 22: 56

69

economic or social. According to some writers, there

seems to have been a little trace of freedom in the

Muslim collective consciousness and that is because of

two reasons – epistemological and political.81

Nevertheless, there is no mention of the term

“freedom”. In fact, some Hadith, such as that of

Huzaiyfah bin al-Yamani, clearly opposes the value of

freedom that is not integrated to society’s peace, well

being and loyalty for the Islamic government to avoid

any wrong and harm to the unity of Muslim nation and

activities of treason. The other pinching matter is the

case of turning against the rule of law or challenges

the write of Islamic government.

C. The Concept of Human Right in Islam

Discussion on the relation between Islam and human

rights is actually not a new subject. However, this

topic remains an interesting subject because the81 ?Liebesny, Majid&, and Herbert J. (Editors) Khadduri. Originand Development of Islamic Law, Washington D.C.: The Middle EastInstitute, 1955. Volume I, p. 259

70

development of Islam, either as a religious phenomenon

or as social and political phenomena, is constantly

connected to the issue of human rights.

For the majority, Islam is involved in human

rights discourse needs to be viewed as a natural thing

as it also occurs in the majority group in other

countries. Islam secures the human rights even for

those who may violate the human rights of others, since

two wrongs do not make one right. A violation should be

stopped instantly, but the rights of the violator as a

human being should be secured. Based on faith in God,

the Islamic perspective on human rights is

comprehensive.

The common term used to express human rights in

Islamic legal discourse is huququ al-Insan which

derivative of huquq (rights)- the plural of haqq

(right)82. Thus, Human Rights in Islam as a concept are

82 ?Mashood A. Baderin. "Establishing Areas of Common Groundbetween Islamic Law and International HumanRights."International Journal of Human Rights, Vol. 5, No.2.2001, p. 85.

71

generally referred to as huqiiq. lt83Scholars have relied

on its literal meanings: Reality, truth, proof of

values, reward, benefit, punishment, and powers among

others.84It is from this premise that rights have also

been classified into different groups.85Of these

groups, the most important and relevant to the authors

is the division of rights into rights of Allah (huquq

Allah) and rights of individual (huqiiq al-nas or al-ibad).86

The word ‘haqq’ occurs frequently in the Quran, and

is often used to simply the certainty of values,

83 ?Haqq technically denotes different things in Shari'ah,however, it has been referred to literally as right. See A. Al-Khali f, The Rights and Duty, (Cairo:p: 1979).Also, MuhammedHashim Kamali, "Fundamental Rights of the Individual: AnAnalysis of Haqq (rights) in Islamic Law" Am. J. Islamic SocialScience Vol. 10, (1993), p. 342

84 ? A. Al-Khallf, ibid. See also M. R. Uthman, Rights andDudes in Islam (Reirul: Dar al~lqra'a, 1982) al, 13; MuharnmedHashim Kamali, freedom of Expression in Islam (Kuala Lumpur:llrniah Publishers Sdo. Bhd 1998), p.17.

85 ? AMB Mahhubul Islam, Freedom of Religion in Shari'ah: A ComparativeAnalysis (Kuala Lumpur: A. S. Noordeen, 2002) at' 21;Wahabuddin Ra'ees, "In Quest for a Theory of Human Rights in the IntellectualLegacy of Classical Muslim Scholars and Jurists: General Observations" Journalof Islam in Asia Vol. 2, No. 1, (2005) Ibid, Muhammed HashimKamali, An Analysis of Haqq, p. 350.

86 ? See Abd al-Razzaq Sanhooh. The Sources of Rights inShari'ah Vol. 1 (Cairo: Dar al-Kitab)

72

rewards, promises and punishments. In the language of

the Quran, haqqinterchangeable with duty (wajib).

Although instances can be found where haqq means ‘a

right’ as opposed to ‘an obligation’- such as the

passage, which entitles ‘the beggar and the indigent,

these are the ultimate values, which are intended

wherever mention word of haqqin the Quran87.

Finally, haqq is sometimes used without conveying

an emphatic obligation, but as a way of encouraging a

specific type of behavior. To avoid enganging in

technicalities, the writer shall quote only one

definition; in it haqq described as ‘an exclusive

appropriation of or power over something, or a demand

addressed to another party which the Sharia’ah has

validated in order to realize a certain benefit.88

Despite, it is not exaggeration to say that what

is needed is a serious rethinking of the inherited

87 ? Al-Bahl, al-islam fi hall Mashakil, p: 68

88 ? Al- Darini, Al-Haqqwamada Sultan al-Dawlah fi Taqyidh, p.193

73

categories of Islamic theology. Nonetheless, what is

needed is not a human-centered theology, but rethinking

of the meaning and implications of divinity, and a

reimagining of the nature of the relationship between

God and creation. It is certainly true that in Quranic

discourse God is beyond benefit or harm, and therefore

all divine commands are designed to benefit human

beings alone and not God.89

As to the term (insan), which means mankind, man

and person. And the plural form of insan is also ins as

opposed to jinns.90Although the Quran does not define the

constituent elements of justice and in fact seems to

treat it as intuitively recognizable, it emphasizes the

ability to achieve justice as a unique human charge and

necessity91

89 ?Marsot, “The Ulama of Cairo in the Eighteen and nineteenthcentury”, p. 149

90 ?Sulaiman Abdul rahman Al Hageel, Op. Cit, p. 24

91 ? On the obligation of justice in the Qur’an, see Izutsu,The Structureof Ethical Terms in the Qur’an, pp. 205-61; Rahman, Major Themes ofthe Qur’an, pp. 42-3. On the various Muslim theories of justice, seeKhadduri, The Islamic Conception of Justice.

74

Put differently, even if Islam has not known a

human rights tradition similar to that developed in the

West, it is possible, with the requisite amount of

intellectual determination, analytical rigor, and

social commitment, to demand and eventually construct

such tradition92

Importantly, in the case of the Muslim world, the

human rights movement has, so to speak, won indigenous

converts, and as result, it is not unusual to observe

the language of human rights being used as a medium for

expressing dissent, and making demands on local

governments. 93

Consequently, there has been much ambiguity

surrounding what may be called as human rights92 ? For the argument that some of what are believed to be

ancient traditions are in reality recently crafted constructs, seethe introduction and concluding chapter written by Hobsbawm inHobsbawm and Ranger, The Invention of Tradition, p. 1-14, 263-307.

93 ? For instance, see Black, Islam and Justice; Cotran and Yamani,The Rule of Law in the Middle East and the Islamic World; Dwyer, Arab Voices;Waltz, Human Rights and Reform, pp. 14-34, 216-30. On the impact ofthe international human rights discourse on Egypt, see Boyle,‘Human Rights in Egypt’, pp. 87-114. For a more generalassessment, but which also focuses on Algeria, see Monshipouri,Democratization, Liberalization, and Human Rights in the Third World. Dalacoura,Islam, Liberalism and Human Rights offer a particularly insightfulanalysis.

75

commitments emerges from a convictional paradigm: Human

rights is a moral and normative belief about the basic

worth and standard of existence that ought to be

guaranteed for any human being.94

Whether the legal argument is valid or not, the

universal human rights schemes have the unmistakable

characteristic of an ideology that, very much like a

religious faith, believes that human beings ought to be

treated in a certain way because, quite simply, as a

matter of conviction it is what is right and good. Once

a claim of right is objectified, unless it goes through

a process of deconstruction and de-objectification, as

a matter of commitment and belief, it becomes binding

to all. It also becomes a measure by which to judge the

behavior of violators95

94 ? For an overview of the Islamic response to internationalhuman rights, see Brems, Human Rights, p. 183-293; Mayer, ‘TheDilemmas of Islamic Identity’. p. 94-110

95 This is well exemplified by the unfortunate practice ofretaliatory ‘political’ rapes that exist in some countries. Once awoman’s right to be free of sexual molestation is recognized,political rapes become indefensible regardless of theapplicability of the legal argument. Whether rape is mentioned inan international declaration or treaty, and whether a particularcountry is a signatory to a particular covenant or not, is treated

76

Human rights in Islam are derivable from either rights

of Allah or rights of man.96 The thin line of

demarcation between rights of Allah and that of man is

that rights of Allah comprise injunctions and

provisions which men have no choice but to adhere to

and observe. Whereas, rights of man entail provisions

regulating conducts and behaviors of man to man and

man's duties towards other human being.97

The shari'ah conceives human life in its totality

and as such it gives guidance in all aspects of human

endeavors so as to enhance worship.98Therefore,

as irrelevant to assessing the moral wrong of retaliatory rapes.On retaliatory rapes, see Haeri, ‘The Politics of Dishonor’, p.161-74.

96 ? Z. IhnNujaym, AI Tiahr al-Raiq: SharhKanz al-Daqa'iq(13 11 AH/ 1894 AD) as cited by Mashuod A. Baderin, n. 25,"Establishing Areas of Common Ground", p. 88.

97 ?WahabuddinRa'ees, "In Quest for a Theory of Human Rights inthe Intellectual Legacy of Classical Muslim Scholars andJurists: General Observations" Journal of Islam in Asia Vol. 2,No. 1, (2005) ic, l al 166; Muhammed Hashim Kamali, An Analysisof Haqq, n. 26, p. 350

98 ? M. H. A. Reisman, "Some Reflection on Human Rights andClerical Claims to Political Power" Vol. 19.(1994), p. 5

77

shari'ah is more of a code of religious duties in every

public and private field which guaranteed its authority

and the unity of Muslims despite their great diversity,

it is from the shari'ah that Human Rights emanate and

are identified by scholars. From legal and religious

point of view, shari'ah recognizes and deals with the

concept of rights in both public and private human

activities. It further elaborates on boundaries of

rights to the extent of responsibilities and duties of

believers. It does also categorize rights according to

who possesses them. This ultimately leads to types of

rights available in Islam, which is the theme of the

next segment.

1. Source of Human Rights in Islam

In Islam, the only basic reality is that there is

the shari’ah under which the government must rule and

the faithful must live. Sharia literally means the way

to follow99. Shari’ah, as a legal system, developed as

99 ?Maimul Absan Khan Human Rights in the Muslim World:Fundamentalism communication and International Politics(Durham. North Carolina: Carolina Academic Press, 2003) at 144;

78

a universal system of law and ethics in the second and

third centuries of Islam.

Its general principles and concepts were

constructed by Prophet (PBUH) himself first in Mecca

and then later in Medina100as determined by sequence of

revelation of the Qur'an. Its purpose was to direct

Muslims, in their daily lives, to live in accordance

with God's law as it is revealed in the Qur'an101and

Sunnah, and to believe that to Allah belongs the

sovereignty. The primary sources of the Shari'ah are

see also Muhammad Mustafa Azami. The History of the QuranicText: From Revelation to Compilation a Comparative Study withthe Old and New Testament, United Kingdom: Islamic Academy,2003

100 ? Robert Gleave&Evgenia Kermeli, (eds.) Islamic Law: Theoryand Practice (London: I. R. Tauris, 1997) at 19; HashimMohammad Kamali, "How We Neglected the Sharia-Law Doctrine ofMaslahah" 1988, Islamic Studies Vol. 27, No. 4, 1988

101 ?Isba Khan "Islamic Human Rights: Islamic Law andInternational Human Rights Standards" Appeal, Vol. 5, (1999) 74at 3.

79

the Qur'an, Sunna,102ljma103and Qiyas.104Other supplementary

sources, which have been widely used, are

istihasan(juritic preference), dharura (necessity),

maslhahmursulah (public interest) and urf (customs).105

1) The Holy Quran

The first principal source of which all other

sources were derived and ramified. The holy Quran

addresses the following:

1) Eradication of the unreasonable traditions in

102 ? Those art sayings and practices of the Prophet Muhammed.(s.a.w.). it has been used interchangeably with Hadith in manytexts. For a classical meaning of Sunna, See al- Tibi, al-Khaliasah fiUsus al-Hadith (Baghdad: Riasat Diwan al-Awqaf, 1971) p. 30.

103 ? This refers to consensus of Muslim scholars. See M. CherifBassiouni, "Sources of Islamic Law and the Protection of HumanRights in the Islamic Criminal Justice System" in The IslamicCriminal Justice System M. C. Bassiouni, (ed.) (New York:Ocean, 1982) at 153; Noel Tames Coulson, A History of IslamicLaw (Edinburgh: Edinburgh University Press, 1964) at 40.

104 ? This refers to conclusion based on analogical deduction.See al-Basr, Kitab al- Mu'tamadfiUsul al-Fiqh (Damascus: FrenchInstitute. 1964) Vol. 1, at 422.

105 ? See Abula'la Maududi, Islamic Law and Constitution,transited and edited by Khurshid Ahmed (Lahore: IslamicPublication, I960), p 79.

80

all walks of human life

2) Through reformation of the society in terms of

religious faith, societal relations, including

religious obligations, human and ethical

obligations, as well as legal obligations.

Based on statement above, the writer found some

objects are guided by one sublime spirit that aim to

achieve some of principles, the call for purified

humane life without any discrimination in duties and

rights or discrimination for race or ethic origin,

for goodness and the containment of evil, the

command of good prescribed and dictated by the

Islamic shari’ah, and the prohibition of evil that

is denounced and condemned by shari’ah.

Since the Holy Quran is the primary and first

source of sharia and human rights, it ordains general

provisions, which are immutable, and invar. These

provisions would be the base for judgment and reasoning

whether on unanimous or individualist basis. These

81

general provisions include:

1. People are equally dignified in the view of

shari’ah

2. Fundamental human rights such as personal

freedom and inviolability of houses, property,

self, right to life and dignity and right to

work are accordingly protected.

3. Freedom of religion without any compulsion.

4. Fair trial to everybody including hostile

people and enemies.

2) Prophetic Tradition (Sunna)

The second source for human right after Holy Quran

is Prophetic Tradition106. As it is known, Sunna is

verbal, practical, and implicit judgment and approvals

of the prophet as interpretation of the Quran. Sunna,

however, means to the scholars of legal sources,

everything that is attributed to the prophet except106 ? According to tradition scholars, sunna means every thingthat is attributed to the Prophet including verbal statements,practical judgments, Approvals, and physical quality whetherbefore or after prophet hood.

82

physical matters.

Sunna is considered as the second source of

Islamic legislation, because sunna is the teachings of

the Prophet. And also regarded as valid justification

if it is proven to be authentic and correct. The

Following verses give evidence for the authenticity of

the sunna. Muslims are totally bound to comply with the

provisions of the sunna since they are guided by the

Quran that ordains Muslim to grasp and abide by the

teachings of the prophet. This is why sunna is

considered as valid justification if it is proven to be

authentic and correct. The following verses give

evidence for the authenticity of the sunna.

Allah says:

83

O ye who believe! Obey Allah and obey Allah the Messenger and

those charged with authority107

Allah also says:

“…so believe in Allah and his messenger, the unlettered

prophet who believeth in Allah and his words, follow

him that ye may be guided”108

The Messenger of Allah has been reported to have

said: “I am afraid that a man while sitting on his sofa

to be told by tradition of mine, then he would say, it

is only the Quran that I follow in the permissible and

prohibited affairs. Let it be known that whatever the

apostle has proclaimed prohibited is in the same grade

107 Noble Quran sura:4: 59108 Noble Quran, Sura: 7 :158

84

of that has been prohibited by Allah.109

Simply, Sunna is general is consistent with the

Quran and it is an interpretation thereof. And as

described in the Quran, Sunna is a mandatory

legislation that must be followed. As Allah has

completed the obedience to the Prophet with Allah’s

obedience and disobedience.

3) Consensus (Ijma’)

The third source of Sharia and Human Rights, comes

along after Quran and Prophetic Sunna is Consensus110.

Consensus can be defined as the unanimous opinion or

judgement proclaimed by the shari’a scholars at a given

time based on the light of the general rules of the

Quran and Sunna and their detailed implementation.111

109 Narrated by Bukhori and Imam Ahmad and Abu dawud and Al Hakim

110 ? Consensus defined as unanimous opinion or judgmentproclaimed by the shari’ah scholars at a given time based on thelight or the general rules of the Quran and Sunna and theirdetailed Implementations.

111 Symposium between eminent Saudi Muslim scholars andWestern European jurist about Islamic shari’a and human rights,7.2. 1392, Beirut, Dar al Kitab al lubnani, 1793. p. 63

85

For the example, if there are an issues that has not

been provided either in Quran or In Sunna, then that

issue will be settled by consensus of the learned

scholars. Quran made it obligatory for every Muslim to

abide by the consensus of the nation which will not

make a wrong judgment unanimously. Some Muslim scholars

pointed out that consensus can be done in four ways. 112

1. Unanimous opinion.

2. unanimous transaction

3. The judgment made by some scholars and

concurred by researchers who had access to

such judgment.

4. Transaction made by some scholars and

concurred by other scholars.

4) Analogy (Qiyas)

The fourth source of Shariah and human Rights, it

is individual judgment proclaimed by Muslim scholars at

112 Ibid

86

different places and times based on the light of the

general rules of the Quran and Sunna, as well as

consensus including the details provided therein. Qiyas

(analogy) is a method of reasoning that entails the

extension of a precedent to an essentially similar

situation, one of the four principal sources of law

among Sunni Muslims, qiyas was the last to gain explicit

recognition, and then only after a fierce controversy

that has left its mark on the history of Islam.

If there is an issue that has not been provided

for in Quran, Sunna, or Consensus, a qiyascan be

established on such issue. Actually, this source

sometimes is called by analogy, or opinion. However, it

must be noted that such reasoning must be derived from

the general objectivities of Quran and Sunna.

2. Scope of Human Rights in Islam

Unlike Western conception of human rights, human

rights in Islamic jurisprudence have to lie classified

into: (i) basic rights given to all human being

87

regardless of their status, color, race or religion;

and (ii) special rights which Islam gives to different

classes of people in accordance with their peculiar

situations, status and position.

The following below brief discussion are some of

the main and fundamental rights from Islamic

perspective, and the focus of this research is limited

to rights of speech, expression, and opinion, which

related to religion.

1) Freedom of Expression

Freedom of expression is a right granted to

citizens by Islam. It constitutes all means by which

individuals or group of individuals can express their

views and communicate it to one another, as well as

their public officials as memorandum. Freedom of

expression is basic requirement in Islam 113

113 ?Mashood A. Baderiu, "The Role of Islam in Human Rights andDevelopment in Muslim Slates" in Javid Rehman& Susan C. Breau(ed), Religion, Human Rights and International Law (Leiden:Maitinus Nijhoff Publishers, 2.007), p 399.

88

The prophet Muhammad (PBUH) during his lifetime gave

the people full freedom of expression and trained them

to express their dissent without any hesitation.

However, it should be stressed that the freedom of

expression grained by Islam is not without limitation.

The limitation is that the expression should not be

used to propagate and spread evil and wickedness. They

are actually two related rights: the freedom of

personal expression, and the freedom of public

expression. The distinction is important. The two

aspects of expression have different levels of effect

and tend to be justified in rather different ways.

Philosophers have sometimes justified the individual

right of expression as a minor and innocuous right, but

at the same time claims for its power are also common,

such different views are not surprising if the

difference between a personal statement made impromptu

in the presence of only a few (basic freedom of

speech), with a carefully calculated statement put out

before a substantial audience or using the media

89

(freedom of the press). The power of the word to bring

about, or contribute to, change is presumably

indisputable. It is this power that leads to calls for

freedom of expression to be used responsibly.

Although the Qur’an does not explicitly state,

“thou shalt have freedom of expression”, it does place

obligations on Muslims, which presuppose this, right.

According to the Qur’an, the ultimate goal of all

speech is to promote the discovery of truth and to

uphold human dignity. One of God’s attributes is Al-

Haqq (True and Right One), and all Muslims must attempt

to emulate this attribute by forwarding the

The writer argued that the freedom of expression

might need to be controlled and restricted, the danger

of the call for ‘responsible’ use of freedom of

expression when applied to the ordinary citizen is that

it can amount to a pressure for self-censorship.

Indeed, in systems of government where authority

actually requires ‘responsible’ use, this is

90

essentially a basis for a system of formal censorship.

For this reason the fear that there will be calls for

responsible use of freedom of expression is a natural

one.

In Islam, freedom of expression is restrained only

where the failure to do so would result in harming the

cause of truth. According to many Muslim scholars, the

primary offence, which justifies such a curtailment of

free expression, is blasphemy. However, as the

discussion below will demonstrate, even this type of

speech is not curtailed in Islam.

Conversely, Freedom of expression does not allow

the subjection of believers to corrupt views and

influences that violate Islamic principles. Such

offensive speech and conduct may be penalized.114

2) Freedom to Express an Opinion

114 ? Mohammad H. Kamali, “ Freedom of Expression in Islam: An Analysis ofFitnah” in The American Journal of Islamic Social Sciences, volume10, number 2, The association of Muslim Social Scientist and TheInternational Institute of Islamic Thought. Summer 1993, p. 180

91

Islam has provided for the freedom of thought and

expression from an Islamic point of view. Freedom of

thought and expression means that a person can have

completes freedom. Although Islam is very keen to

ensure freedom of thought as well freedom to express an

opinion, but it also keen to pro-certain safeguards to

direct it to the benefit of the community and the

satisfactions of Allah and also protect this right from

abuse.

Freedom of thought and expression in Islam must be

practiced through a peaceful approach without resorting

to violence or unlawful coercion.

al-Quran Said:

“Invite (all) to the way of thy Lord with wisdom and beautiful preaching; and argue them in ways that are best and most gracious:

92

For thy Lord knows best who have strayed from His path and who

receive guidance115

In order to protect the Individual in the Islamic

Community, the freedom of thought and expression must

be controlled so as to protect people from being

harassed and harmed. The purpose of freedom must not be

directed to defamation and disclosure of

confidentiality and degrading people.

The kind of this attitude has prohibited by the holy

Quran in Numerous verses:

“ Allah loveth not the shouting of evil words I Public speech,

except by one who has wronged, for Allah is He who hearth and

knoweth all things.116

The freedom of thought and speech must not embark

on Islam and Muslims, because it as protection of the

115 ?Noble Quran Sura: 16:125

116 ? Noble Quran Sura :4:148

93

Islamic community as a whole and the protection of the

religion from being attacked.

3) Freedom of Religion

One of the manifestations of personal liberty is

the freedom of the individual to profess the religion

of his or her choice without compulsion. Everyone must

also have the freedom to observe and to practice their

faith without fear of, or interference from, others.

Freedom of religion in its Islamic context implies that

non-Muslims are not compelled to convert to Islam, nor

are they hindered from practicing their own religious

rites. Both Muslims and non-Muslims are entitled to

propagate the religion of their following, as well as

to defend it against attack or seditious provocation

(fitnah), regardless as to whether such an action is

launched by their co-religionists or by others.117

117 ?Abu Zahrah, Tanzim al-Islam li'l-Mujtama', p.190; al-'Ili, al-Hurriyyah al-‘Ammah, p. 330

94

Freedom of religion acquires special significance

in the Shari’ah, a system of law which recognized no

clear division between legal and religious norms, since

the creed of Islam lies at thereof many doctrine and

institution of the shari’ah , the freedom of whether or

not to embrace and practice Islam is the most sensitive

and controversial area of all individual liberties118

However, freedom of belief, like all other

freedoms, operates as a safeguard against the possible

menace of oppression from superior sources of power.

This also essentially true of the Islamic concept of

this freedom: as Fathi 'Othman observes, 'No power of

any kind in the Islamic state may be employed to compel

people to embrace Islam. The basic function of the

Islamic state, in this regard, is to monitor and

prevent the forces, which might seek to deny the people

their freedom of belief.119

118 ?Fathi 'Uthman, Huquq al-Insan Bayn al-Shari’ah al-Islamiyyah wa'l-Fikr al-Qanuni al-Gharbi, p. 97

119 ? Ibid, p. 91

95

This freedom has been problematic in all three

Abrahamic traditions: Judaism, Christianity and Islam.

In their formative period, all three traditions saw

renunciation of faith by their followers (apostasy) as

an apocalyptic manifestation of social and religious

disorder.

As the Jewish people, the Church and the ummah

achieved legal and political power, apostasy was

declared a public offense punishable by law.120While

Juda- ism and Christianity have moved away from the

earlier understandings of apostasy, Muslims are still

having a vigorous debate on the relevance of apostasy

laws in the modern period. This Muslim emphasis on the

need to maintain apostasy rules forms one of the most

difficult form of ‘strangeness’ of Muslims as seen by

non-Muslims in the West.

120 ?Mircea Eliade, ed. The Encyclopedia of Religion (New York:Macmillan, 1987), s.v. “Apostasy”, by H.G. Kippenberg.

96

A representative contemporary opinion on the

subject of freedom of religion can be found in the

following excerpt issued by a recent International

Conference on Islamic law, which was held between the

leading scholars of Saudi Arabia and Europe. 'The

individual is free in regard to the creed he wishes to

embrace, and it is unlawful to compel anyone to embrace

a religion.

4) Limitations of Freedoms

Limitations on those freedoms above are made

comparatively explicit in the formal agreement on human

rights drawn up by governments. The European Convention

on Human Rights (1950), for instance takes the wording

of the Universal Declaration almost intact into its

Article 10, but adds important further statements

specifying a number of those limits. European

Convention on Human Rights, Article 10:

Everyone has the right to freedom of expression. This rightshall include freedom to hold opinions and to receive andimpart information and ideas without interference by public

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authority and regardless of frontiers. This article shall notprevent States from requiring the licensing of broadcasting,television or cinema enterprises.

The exercise of these freedoms, since it carries with itduties and responsibilities, may be subject to suchformalities, conditions, restrictions or penalties as areprescribed by law and are necessary in a democratic society, inthe interests of national security, territorial integrity orpublic safety, for the prevention of disorder or crime, for theprotection of health or morals, for the protection of thereputation or rights of others, for preventing the disclosureof information received in confidence, or for maintaining theauthority and impartiality of the judiciary. 121

These are not the only limitations that might be

suggested. They do, however, embody the key areas of

concern that states cite when imposing limits on the

exercise of freedom of expression. It is also worth

noting that national security, territorial integrity

and public safety are also the chief basis on which

those states that particularly fear what their citizens

think and say introduce control of expression, despite

formally signing up to the international declarations

of human rights.

The identification and definition of limitations

to freedom of expression is, as implied above, a

121 ?European Convention on Human Rights, Article 10

98

dangerous business. Yet it is fundamental principle

expressed in article 29 of the Universal Declaration

that such limitations do exist. They are expressed in

terms of ‘duties to the community’ and their scope is

constrained in general terms by considerations that

include respect for the rights of others.

Universal Declaration of Human Rights, Article 29:

1. Everyone has duties to the community in which alone thefreedom and full development of his own personality ispossible.

2. In the exercise of his rights and freedoms, everyone shallbe subject only to such limitations as are determined by lawsolely for the purpose of securing due recognition for therights and freedoms of others and of meeting the justrequirements of morality, public order and the general welfareof a democratic society.

3. These rights and freedoms may in no case be exercisedcontrary to the purposes and principles of the United Nations.

D. Universal Declaration of Human Rights and IslamicViews

The International Bill of Human Rights consists of

the Universal Declaration of Human Rights (UDHR),

1948, 122the international Covenant on Economic,122 ?Brownlie, I. (ed) (1971), Basic on Human Right. Oxford:Clarendon Press, pp. 107-112; Sohn. B. And Buergenthal, T. (1973),Basic Documents on International Protection of Human Rights. New York: The Bobbs- Merrill Co, p. 30-34

99

Social, and Cultural Rights (ICESCR), 1966, and the

International Covenant on Civil and Political Rights

(ICCPR), 1966.

The universal declaration has, since its adoption

by the UN General Assembly, achieved international

recognition as an authoritative statement of the

modern standards of human rights protection and is

the single most influential statement of

International human rights principles.123

On the other hand in 1981, the Islamic Council of

Europe, a private and International, nongovernmental,

London based organization, issued the Universal

Islamic Declaration of Human Rights (UIDHR)124. When

the writer takes a close looking at the Universal

Declaration of Human Rights provisions such as

Articles 1-3 and 17, that the contents of those

123 ? Mayer, A.E (1991), Islam and Human Rights: Traditional and politics.San Francisco: West view press, p. 23

124 ? Ibid, p. 27

100

provisions are in conformity and in line with the

requirements of the Islamic law and its philosophy.

For instance, article 1 says, “ All human beings

are born free and equal in dignity and rights. They

are endowed with reason and conscience and should act

towards one another in a spirit of brotherhood.” This

article is in complete harmony with Islamic teachings

as Islam considers that all human beings came from

the origin, for example: Adam and Hawa. Hence, they

are all brothers. Since they are brothers, they

should be treated equally, with no reasons for

discriminations.

And as for article 3 it says, “Everyone has the

right to life, liberty and security of persons.”

This provision falls within the scope of the general

objective of the Islamic law. i.e. the five

essential values of human beings. The same goes to

article 17, which purports that everyone has the

right to own property alone as well as in

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association with others.

It seems that since the drafters of those

documents came from the Western traditions based on

the Abrahamic religions, Judaism and Christian

thoughts, where at certain points, it meets with the

basic teachings of Islam, so the central ideas of

human rights as perceived by those three Abrahamic

religions are not at variance, but some extent, the

basic biblical concepts and teachings are in harmony

rather than discord. This, perhaps, may help to

explain as to why many of the UDHR documents are in

line with the Islamic concept of Human rights.125

On the other hand, many of western scholars and

researchers, as it appears in their writings, tend

to look, explain, analyze, and judge, on Islam and

its affairs, in accordance with their own

perspective and standards, whereas every nation and

people has its own value things. As a result, they125 ? Ibid, p. 29

102

(Western Scholars) fail to see and evaluate the

subject objectively. Some even try to put the flavor

in accordance with their own tastes. Some even force

others to follow their own standards and would wish

others to “become like them”.

Finally, for the purpose of comparison between

UDHR and Islamic human rights (IHR) concepts126, there

are several factors, which should be observed:

1.Source: The source of IHR is divine in nature

and its scope whereas UDHR is from the human mind

and experiences.

2.Validity: The IHR is good for all times and

places, it remains immutable and can not be

altered by human mind. On the other hand, UDHR is

probably good for certain time, it may be changed

in accordance with the exigency of the time and

human need.

126 ? Mohammad Al Hussein Al Musaylihi, Human Rights between Islamic Shari’a and International Law, Dar Al Nahdha Al Arabiyia, 1988, p. 18

103

3.Freedom: In IHR freedom is not absolute and

always restricted by the principles of Islamic

law, which is divine. In the case of UDHR, the

idea of freedom is changing in accordance with the

need or the will of majority, such as the issue of

abortion, adultery, and lately marriage between

the same sexes is legal in some western countries.

E. Religious Blasphemy According to Islam

In Islam there is no exact equivalent of the

Christian notion of blasphemy, but offering insult

to God (Allah), to the prophet Muhammad, or any part

of the divine revelation constitutes as crime under

Islamic religious law. Blasphemy127 in Islam, as in

other faiths, is speech that is insulting to God. In

Muslim history, blasphemy came to be associated

mainly with perceived insults to the prophet of

Islam. The material on blasphemy in the Qur’an

127 ? Blasphemy can take the form of insult to God, the Prophet,or an important aspect of Islam (sabb), vilification of God(shatm), infidelity to God, and rejection of his revelation (kufr),heresy (zandaqah), and, at its worst, apostasy (riddah).

104

includes the concepts of denying the truth,

inventing falsehoods, and insulting the divine. The

most common Arabic verbs for blasphemy are sabba(to

abuse, insult) and shatama (to abuse, vilify).

Shatama does not occur in the Qur’an, and sabba

appears only as part of a commandment to Muslims not

to insult the idols of polytheists (Q6.108): “Do not

abuse those to whom they pray, apart from God, or

they will abuse God in revenge without knowledge.”

Further material relates to the terms takdhib (giving

the lie, denial), and iftira’ (invention). In these

verses blasphemy means denying the truth about God

and spreading falsehood in its place. The greatest

offence of invention is shirk—to associate with God

what is merely human, as in the warning of Luqman to

his son: “Do not associate others with God: to

associate is a mighty wrong” (Q31.13). This, of

course, was the accusation, which Muslims made

105

against the Christian confession of the divinity of

Jesus.128

Traditions in sirah and hadith relate stories of how

Muhammad ordered or condoned the death of people who

mocked him. These sources are not consistent,

however, and also include stories of Muhammad

tolerating insults or leaving the punishment to God.

In any case, these traditions indicate that by the

third Islamic century, speaking against Muhammad had

come to be regarded an intolerable act within the

Muslim empire.

Legal scholars began to discuss blasphemy, whether

against God, the prophet Muhammad, or his

Companions, in the context of apostasy (riddah) and

unbelief (kufr). Islamic Law takes a more severe view

toward reviling Muhammad than it does toward128 ?Wiederhold, Lutz. “Blasphemy Against the Prophet Muhammadand his Companions (sabbal-rasul, sabb al sahabah): The introduction ofthe topic into Shafi‘i legal literature and its relevance forlegal practice under Mamluk rule.” Journal of Semitic Studies 42/1(Spring 1997), p. 39-70.

106

reviling God. In early, of the fourth Islamic

century, a consensus had developed among the

scholars that the one who insults the prophet of

Islam must be put to death.

With reference to blasphemy, the Administration of

Muslim Law Enactment of Selangor, 1952 (amended

1983), which is also applicable in the federal

Territory of Kuala Lumpur, only contains a provision

on ‘contempt of religion’. The provision appears in

part IX of the enactment, which exclusively deals

with offences concerning the religion of Islam, and

the reads as follows:

Whoever by words spoken or written or by visiblerepresentations insults or brings into contempt or attempts toinsult or bring into contempt the Muslim religion or the tenetsof any sect thereof or the teaching of any lawfully authorizedreligious teacher or any fatwa (religious edict) lawfullyissued by the president (of the state Religious Council) orunder the provisions of this Enactment shall be punishable withimprovement for a term not exceeding one thousand dollars.

The terms of this provision are broad enough

to comprise all words and acts of contempt against

Islam, and such, they are not confined to blasphemy

in particular. But blasphemy would still remain the

107

principal concern of this provision. The broad terms

of the law here also extend to ‘attempts to insult

or bring into contempt’ the laws and principles of

Islam.129

Blasphemy in Islam is defined nowadays as

contemptuous hostile statements against either the

fundamentals of Islam, against Allah, the personality

of the Holy Prophet, or any other prophet or anything

sacred in Islam, such statements being made with the

intention to offend the sensibilities of Muslims.

The Arabic word for blasphemy is sabb (insult).

Although blasphemy is considered an offence in Islam,

either committed by a Muslim or a non-Muslim, no

punishment is prescribed for it in the Holy Qur’an.

Rather, the punishment for it is always in the hands of

God alone, to be meted out by Him either in this life

or in the Hereafter.130 Therefore, based on the Qur’anic

references to it, and the Holy Prophet’s reaction to

129 ? Mohammad Hashim Kamali, Op. Cit, p. 293

130 ? Ibid, p. 269

108

it, blasphemy cannot be considered a type of speech for

which legal curtailment is justified. Although it is an

offence according to the Holy Qur’an, it is not an

offence for the purposes of criminal law as it is a

matter for God and God alone, to deal with. The Qur’an

states:

Verily those who annoy Allah and His Messenger – Allah has cursed

them in this world and in the Hereafter, and has prepared for them

an abasing punishment. And those who malign believing men and

believing women for what they have not earned shall bear the guilt

of calumny and a manifest sin.131

To sum up, the Quran has explicitly declared

freedom of religion a norm and principle of Islam. This

declaration:

131 ? Quran: Sura 33, verse 59

109

132

Is consistently endorsed in numerous other verses of

the Holy Book.

1) Religious Blasphemy In the Al-Quran and

Hadith

In sura 6:108 the Qur'an tells Muslims not to

abuse the idols that were venerated by the polytheists.

It states: "abuse not those to whom they pray, apart

from Allah, or they will abuse Allah in retaliation

without knowledge." The Qur'an further advises Muslims

to avoid those engaged in other blasphemous acts like

finding fault with Allah Most High and Exalted:

132 Noble Quran 2:256

110

And to shun those who insult the Prophet Muhammad upon him be

peace and blessings. Especially when he was in Mecca, the enemies

of the Prophet had mocked his claims to be a prophet and accused

him of being possessed, a soothsayer, or a poet. As far as the

Qur'an is concerned, since Allah Most High and Exalted, and His

messages represent the ultimate truth, blasphemy is considered to

be a denial of that truth and the promulgation of falsehood

instead. 133

Other Quranic terms that correspond most closely

to blasphemy are takdhib, (imputing a lie, denial) and

iftiraʾ (concoction). This form of blasphemy brings down

God's curse (11:18). Another genre of blasphemy

mentioned in the Qur'an is that of polytheism: the

attribution of partners to Allah Most High and Exalted,

or the worship of other gods besides Allah, Most High

and Exalted.

Thus, it is correct to state that the Qur'an

enunciates different genres of blasphemy. Blasphemy by

denial (takdhib) is the outright rejection of revealed

133 Noble Quran, sura 4:140

111

religious truths, such as the revelations and warnings

of Allah Most High and Exalted and His messengers, and

the proclamation of the Day of Judgment and the meeting

with Allah Most High and Exalted.134 According to

passages such as Q 5:10, the refusal to recognize

Allah's signs is associated with unbelief and will be

severely punished in the hereafter: “Those who reject

faith and deny our signs will be the denizens of hell-

fire.” Iftiraʾ, on the other hand, is the proclamation of

a false belief that a person forges. It most often

occurs in the statement “to invent a lie against

Allah”. The gravity of this form of blasphemy can be

discerned from the frequently repeated rhetorical

question “who is wicker than one who invents falsehoods

about God?"

Blasphemy is not restricted to the denial of or

forging lies against Allah Most High and Exalted. It

also includes false claims to prophecy or revelation

134 ? Ibid, 299

112

and declaring things lawful or unlawful of one's own

accord135. However, it should be noted that despite its

vehement denunciation of the various forms of

blasphemies, the Qur'an does not impose any temporal

punishment for such acts. In fact, the Qur'an

prescribes earthly punishment in relation only to those

who wage war and mischief in opposition to Allah Most

High and Exalted, and the Prophet Muhammad.

Although the concept does not occur in the Qur'an,

the hadith and other body of Islamic literature extend

blasphemy to the Prophet upon him be peace and

blessings. Some jurists see insulting the Prophet

(PBUH), to be worse than insulting Allah because the

former is not able to avenge the abuse. Hence, they

believe it is the duty of the Muslim community to seek

vengeance on his behalf by imposing the death penalty.

This is because reviling the Prophet upon him be peace

and blessings, is categorized as violating the rights

135 ?Mohammad bin Al Hussaein Al-Fara’a Al Hanbali (Abu Ya’ala).Al Ahkam Al Sultaniyah, Cairo. Mustafa Al Babi Press, p. 38

113

of human beings whereas reviling Allah Most High and

Exalted, is seen as infringing the rights of Allah for

which only He has the right to punish136

If a Muslim insulted the Prophet Muhammad (PBUH),

most jurists considered him as apostate or one who had

renounced his faith. If he refused to repent, he would

be executed. Non-Muslims living in Muslims lands under

a contract of protection ('aqd al-dhimma) were also

subject to execution if they insulted the Prophet.

According to some Muslim scholars, if the dhimmi

insults the Prophet Muhammad upon him be peace and

blessings, he breaches the contract and becomes an

enemy of the state (harbi) who had to be to be fought

and killed The prohibition on insulting or reviling the

Prophet upon him be peace and blessings, in any form

was later embedded within an institutional legal

structure where cases were prosecuted and sentences

136 ?Saeed, Adullah and Hassan. Freedom of Religion, Apostasy and Islam.Burlington: Ashgate, 2005, p. 39

114

enforced accordingly.

Muslims agree that the Qur'an and the practices of

the Prophet (sunna) are the primary sources in the

derivation and formulation of juridical rulings. Given

that the exact definition of the terms that denoted

blasphemy are not specified in the Qur'an and sunna,

sectarian and doctrinal disputes among early Muslims

provided subsequent jurists and theologians the

opportunity to explore the implications of blasphemy

even further.137

Instead, jurists, scholars and ordinary Muslims

who claimed that their own position on Islam was

normative, began to characterize dissenting Muslims as

apostates, blasphemers, hypocrites, or unbelievers.

Thus, a charge of blasphemy and apostasy was often used

to impose or refute certain doctrines or theological

positions. The contemporary definitions of terms

connected to blasphemy are the result of a long process

137 ?Ibn Taimiyah, Al sharim al maslul ‘alasyatimirRosul, Darul hadist, Cairo, 2003, p. 559-561

115

of development and refinement. The legal consequences

of such accusations were very serious.

From the perspective of Islamic law acts of

blasphemy can be defined as any verbal expression that

gives grounds of suspicion of apostasy. Blasphemy also

overlaps with infidelity (kufr), which is the deliberate

rejection of Allah and revelation138. In this sense

expressing religious opinions at variance with standard

Islamic views could easily be looked upon as

blasphemous.139

For this reason, it is exactly clear, that

religious blasphemy in Islamic viewpoint is a negative

act to insult the sacred things in religion. All the

words, expression that humiliate to God, His names,

characters, doctrine, and order, also is also

138 ?Mohammad Hashim kamali, Op. Cit, p.277

139 ? Ernst, C. 1987, “Islamic concept”, in M. Eliade, (ed), TheEncyclopedia of Religion, New York, Macmillan Publishing House; Adams. C.1995, “kufr”, John L. Esposito, (ed), The Oxford Encyclopedia of the ModernIslamic World, New York, Oxford University Press.

116

blasphemy.140 From the description above, it can be said

that Blasphemy has really a wide meaning and can be

applying in various concept. There is no clear border

between blasphemy and that concept, like Riddah,

Zandaqah, and kufr.

CHAPTER FOUR

CLOSING

A. RESULT OF STUDY

From the discussion above, the writer

concludes as follows:

140 ? Op. Cit, Mohammad Hashim Kamali, p. 271

117

1. Blasphemy in Islam, as in other faiths, is

speech that is insulting to God. In Muslim

history, blasphemy came to be associated mainly

with perceived insults to the prophet of Islam.

The material on blasphemy in the Qur’an

includes the concepts of denying the truth,

inventing falsehoods, and insulting the divine.

2. Islam has guaranteed the rights to life,

property, ownership professions, regardless of

religion, gender, or minority groups, except in

some areas related to Muslim faith. All those

guarantees do in fact fall under the domain of

the general objective of Islamic law which

seeks to protect five essential values of human

being, namely: Religion, life, mind, offspring

and property.

3. Islam is involved in human rights discourse

needs to be viewed as a natural thing as it

also occurs in the majority group in other

countries. Islam secures the human rights even

118

for those who may violate the human rights of

others, since two wrongs do not make one right.

A violation should be stopped instantly, but

the rights of the violator as a human being

should be secured. Based on faith in God, the

Islamic perspective on human rights is

comprehensive and deep

B. SUGGESTION

Today’s world Muslim has been object from any

thought, view, and attack which can broke the way of

view of Muslim to their religion. One of those ways is

hegemony and also liberalism. In short opinion, these

hegemony and liberalism impact to present blasphemy

today and many centuries ago. Therefore, every Muslim

have to improve their knowledge intellectually,

theoretically and practically.

119

C. CLOSING

The first and foremost I am very thankful to the

Almighty Allah that the task of completing this

research paper is successfully over. Because of His

Mercy this work entitled “ Religious Blasphemy According to

Human Rights in Islam” done after passed such of hard effort

by the writer. Nevertheless, this work still far from

perfect, there are still some shortcomings that need to

be improved. So that, critics and suggestions from the

readers are expected to improve and make the writing of

this thesis benefit to others.