samia_alagbry

Legal brief on Freedom of Expression in Human Rights Work

Legal brief on freedom of expression in human rights work

The cases of the Yemeni human rights defender Samia Al-Agbry and the Sudanese activist, Jalila Khamis, give rise to questions regarding the recognition of specific rights of the individual within the Islamic legal framework.

Samia Al-Agrbry

Samia Al-Agrbry is a victim of a campaign of defamation and threat which culminated in a judicial complaint filed against her, accusing her of insulting Islam in Yemen.

Jalila Khamis

Jalila Khamil, a human rights activist, has been kept in detention on the basis of having undermined the constitutional system of Sudan. Depending on the outcomes, she may face an execution.

The breaches of fundamental rights that are involved in both cases concern the right to a fair trial, presumption of innocence, freedom from arbitrary detention, and freedom of expression. Other than being part of the international human rights scheme, it is essential to bear in mind that these rights find recognition under Shari’ah, which through the Qu’ran and Ahadith, supports these rights. We are issuing this brief on the basis of the recognition of Islamic Law as a source of law in Yemen and Sudan.

  • Art 65 of the Sudan Constitution states that: Islamic law and the consensus of the nation, by referendum, Constitution and custom shall be the sources of legislation; and no legislation in contravention with these fundamentals shall be made; however, the legislation shall be guided by the nation’s public opinion, the learned opinion of scholars and thinkers, and then by the decision of those in charge of public affairs.

  • Article 3 of the Yemen Constitution states that: Islamic Shari’ah is the source of all legislation.

Freedom of expression in Islam

The two cases raise the important question of freedom of expression in Islam. Under Islamic law freedom of speech finds wide support in several sources of the Qu’ran and fiqh. Quran 55:1-4 states: “God […] created Man (and) taught him eloquent speech”). Although freedom of speech appears indissolubly linked with freedom of religion and its limits, it should also be born in mind that liberty of expression in Islam encompasses the principle of hisbah (commanding the good and forbidding the evil), freedom to express an opinion, and freedom to criticise. According to hisbah, citizens are entitled to speak and to act in pursuance of what in their judgement is good, or they can forbid, in words, the commission of wrongful acts. Hisbah does not constitute a positive legal norm, as its violation carries no legal sanctions, but it is rather a normative principle and a guideline for the individual.

The Qur’an also gives examples which validate personal opinions (Quran 4:59; 4:83) and it invites people to investigate and explore the world around them drawing rational conclusions.

Freedom to criticize is recognised in the Qur’an to the extent to which citizens are allowed to monitor the government activity by means of advice and constructive criticism. It also includes the refusal to obey the government if it is guilty of violating the law.1 It is therefore a corollary principle of hisbah, commanding the good and forbidding the evil. It is also reported in one hadith that the first Caliph said: “ Oh people, I have been entrusted with the authority over you, but I am not the best of you. Help me if I am right and correct me when I am wrong”. Freedom to criticise should not be seen as a mean for disunity, treason or confusion, but rather as a mean of self-evaluation for the entire society.

In Jamila’s case, “the victim’s arrest and detention form part of a larger pattern of a systematic and targeted campaign of harassment of human rights defenders working on South Kordofan and the Nuba Mountains. (REDRESS)”

In Samia’s case, the Gulf Center for Human Rights categorized her detention as “part of an ongoing trend of harassment of human rights defenders working in Yemen to stop them from continuing their work in defense of human rights.”

The broader political context in the persecution of these women is critical in the assessment of the legality of the state’s actions with respect to their detention. The Quran reminds believers: “Do not let your hatred of a people incite you to aggression” (Quran 5:3). This serves as an appeal to the state that differences in opinion and political criticism are not valid grounds for citing vague criminal provisions for punishment.

The Qu’ran reads the concept of justice along with the idea of equality and fairness. Quran 4:58 affirms: “…and when you judge between people judge with equity, certainly God counsels you excellently, and God hears and sees

Hisbah and freedom to criticise prove the legality of Samia and Jalila’s work within the Islamic framework, leading us to question and doubt the legitimization of the Yemeni and Sudanese Governments’ actions toward human rights defenders from an Islamic perspective.

Written by

Alice Ollino

Natasha Latiff

1 See Kamali M.A., Freedom of Expression in Islam, 1997, Cambridge Islamic Text Society.

 

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