Problemas de operatividad frente a la ausencia de una audiencia de un control

The fact that many laws have even circumvented the shar’ia in order to maintain the supremacy of the velayat-e faqih indicates that the operation of the system is driven by political calculations than Islamic principles and seems to reflect a drive to control political behaviour and ideas rather than protect Islamic traditions.379This is particularly evident in Iran’s legal framework provided for the right to freedom of expression.

Common arguments put forward to justify free speech consider the importance of discovering truth, which as an autonomous and fundamental good is necessary for the development and progress of society. Another major theory, which sees freedom of speech as the ultimate manifestation of a person’s opinion, claims it to be an integral aspect of each individual’s right to self-development. A third theory advocating freedom of expression argues that it is indispensable for the discovery and spread of political truth and thus is crucial to the working of a democratic constitution. Whilst these arguments largely constitute positive theories of freedom of speech another argues that there are strong reasons to be suspicious of states and churches and highlights the evils of regulations and suppression of such freedoms.380It is this aspect, which interests us here. Freedom of speech and expressions are liberties against the state, yet ultimately bear a logical connection to an obligation not to harm others or incite hatred in society and as such have always faced restrictions imposed by state and church. In fact, the drafters of the two most fundamental documents on civil and political liberties appreciated that freedom of expression may be used as a dangerous tool, and thus Article 19 of the UDHR and ICCPR state respectively:

UDHR Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to […] impart information and ideas through any media and regardless of frontiers.

379_{seeAnn Elizabeth Mayer, “Islamic Rights or Human Rights – An Iranian Dilemma”, Iranian Studies,}

Vol. 29, No. 3&4, (1996), pp. 284-289

380_{seeEric Barendt, Freedom of Speech, (Oxford, Oxford University Press, 2005), pp.6-23. [Barendt uses}

ICCPR Article 19: 2. Everyone shall have the right to freedom of expression; this right shall include freedom to […] impart information of all kinds, regardless of frontiers.

3. The exercise of the right provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be as such are provided by law and are necessary: (a) for the respect of the rights of others (b) for the protection of national security or public order, or of public health and morals.381

The charge of blasphemy in particular had always cast a long shadow on the freedom of speech. Blasphemy can be many things, but essentially constitutes an offence against the sacred. It may involve the abuse of God’s name or irreverence to highly respected religious figures or sacred objects and is always perceived to be an expression that is beyond the pale. 382The significance of the fatwa against a British citizen on charges of blasphemy against Islam is that both British and Islamic law consider blasphemy a common law offence and thus bear limitations to the freedom of speech. We shall briefly depict limits of the right to free speech in the Islamic legal system. The common law in England and Wales is discussed in Chapter V, which will help to understand the pressure the British government was subject to as well as the frustration felt by opponents of the novel.

According to Khamenei’s account, Islam entitles man to think any way he wishes and knows no limitations for his thoughts and opinions; yet law invalidates ill-founded thoughts bound to hurt or destroy society and disturb the general order. Art. 22 of the Cairo Declaration of Human Rights in Islam, entitles man to the enjoyment of freedom of thought and opinion, however, these freedoms are banned when they disturb the general order or hurt the public opinion.383 Kamali’s notion on limitations of freedom classifies

381_{Henry J. Steiner and Philip Alston, International Human Rights in Context – Law, Politics, Morals,}

(Oxford, Oxford University Press, 2000), p. 750; see alsoKofi Anan, “Freedom of speech is a right to be fought for”, UN Press Release SG/SM/6978 PI/1128 30 April 1999

382_{seeJames Piscatori, “The Rushdie Affair and the Politics of Ambiguity”, International Affairs, Vol.66,}

No.4 (Oct.,1990),p. 769,also seeDavid Lawton, Blasphemy, (Philadelphia, University of Pennsylvania Press, 1993), pp.2-13

383

Sayyid Muhammad Khamini, “Individual Rights in Islam”, in Organization for Islamic Culture and Communications, Directorate of Research and Education Centre for Cultural-International Studies, Islamic Views on Human Rights- Viewpoints of Iranian Scholars, p.57

them into “moral restraints” and “legal restraints”. Moral restraints are essentially “addressed to the conscience of the believer and include offences such as defamation, lying, derision, and acrimonious disputation.” The legal restraints, which are backed by specific sanctions include inter alia “public utterances of evil or hurtful speech, slanderous accusation, libel, insult, cursing, seditious speech, and blasphemy.” 384Whilst it should be noted that the Cairo Declaration does not openly confront the issue of blasphemy 385, under Islamic law blasphemy is commonly referred to as “Sabb Allah aw Sabb al-Rasul”, meaning “reviling God or reviling the Messenger”. 386 In fact, Muslim born Rushdie’s deed amounted to blasphemy as well as apostasy, which according to classical jurists carries the death penalty under the shari’a.387 However, Kamali stated that the Qu’ranhas made no reference to the death penalty for blasphemy, neither does the text warrant the conclusion that it is aQu’ranicobligation or a prescribed punishment or a mandate. On the contrary, Kamali argues that “we should submit that the general language of the Qu’ran can only sustain the broad conclusion that the perpetrator of blasphemy disgraces himself and invokes the curse of God upon himself”. He further commented that “it is a criminal offence which carries no prescribed mandatory punishment, and, as such, automatically falls under the category ofta’ziroffences, whose punishment may be determined by the head of State or competent judicial authorities.”388 It is evident that the prohibition of blasphemy in Islamic law as a limitation of expression serves to protect the sensibilities of believers and as Mawdudi argues, therefore, does not prohibit intellectual and religious discourse but rather forbids speech that encroaches upon the beliefs of others.389

384

cited in Mashood A. Baderin, International Human Rights and Islamic Law, (Oxford, Oxford University Press, 2003), p.127

385_{seeKaterina Delacoura, Islam, Liberalism and Human Rights, pp.50-51}

386_{Mashood A. Baderin, International Human Rights and Islamic Law, p. 128; An alternative to this}

definition is given by Shariati, who did not apply blasphemy to “those who deny the existence of God and soul, but to those who are unwilling to take concrete and objective action for the casue.” Assef Bayat, “Shariati and Marx” A Critique of an “Islamic” Critique of Marxism”, in Alif: Journal of Comparative Poetics, No.10, Marxism and the Critical Discourse (1990), p.23

387_{In 2004, an Iranian court imposed a death sentence against liberal academic Hashem Aghajari for saying}

that Muslims should not blindly follow religious leaders. (seepp.304-309). This ruling demonstrates that the death penalty for charges of blasphemy may still to be employed in Islamic law.

388_ibid