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It was the best of times. Religion, at last, returned triumphant to godless Europe. As the highest court on the continent granted the returning religion patronage, protection, and power, the victorious religion marched through the streets of Strasbourg with blowing of trumpets and beating of drums, like the conquering hero of Handel’s Judas Maccabeus.

It was the worst of times. The religion was foreign, not European; backward, not progressive; Islam, not Christianity. On a historic day in October 2018, Anno Domini, the European Court of Human Rights (ECHR) turned into a Shariah Court enforcing Islamic blasphemy law on a continent that had been Christian for over a thousand years.

The ECHR gavel morphed into a sledgehammer and pulverized the West’s most unique and cherished freedom – free speech – descending with the lethal force of lawfare on a liberty that Europeans had taken for granted for a little over 800 years with the Magna Carta (1215) and the British Bill of Rights (1689). Ominously, the very next day, Wiltshire police arrested a man for trying to steal the original Magna Carta from Salisbury Cathedral.

The EHCR ruling transcended the Kafkaesque. The judges were responding to a plea from a 47-year-old female Austrian national who was convicted by the Vienna Regional Criminal Court in February 2011 for the crime of “belittling religious doctrines” (Herabwürdigung religiöser Lehren). In a Mephistophelian misuse of language, the term Herabwürdigung (to disparage) is used more and more in tandem with Diskriminierung (to discriminate) in German-speaking countries.

Ms. E.S. complained that the Austrian ruling had violated her right to freedom of expression under Article 10 of the European Convention on Human Rights. The Austrian court had found her guilty of “publicly disparaging an object of veneration of a domestic church or religious society, namely Muhammad, the Prophet of Islam, in a manner capable of arousing justified indignation” (geeignet, berechtigtes Ärgernis zu erregen).

Where did Ms. E.S. make these disparaging remarks? From January 2008, E.S. held several public seminars entitled “Basic Information on Islam” (Grundlagen des Islams) at the Freedom Party Education Institute (Bildungsinstitut der Freiheitlichen Partei Österreichs). An undercover journalist present at two seminars in 2009 blew the whistle on E.S.

What did Ms. E.S. actually say which the court found offensive? First, she noted the Islamic doctrine that reveres Muhammad as the human par excellence to be imitated by all Muslims. Second, she pointed out that he was a warlord, had many women, and “liked to do it with children” (hatte nun mal gerne mit Kindern ein bisschen was). Third, she drew attention to the primary source for her claim for the 56-year-old Muhammad’s marriage to six-year-old Aisha—the canonical hadith of Sahih Al-Bukhari, in which “the thing with Aisha child sex is written” (das geschrieben mit der Aisha und dem Kindersex...). Fourth, Ms. E.S. put the incendiary “P” word in a dialogue with her sister, saying to her: “What do we call it, if it is not pedophilia?” (Wie nennen wir das, wenn’s nicht Pädophilie ist?)

The Austrian Regional Court’s judges turned from jurists into Islamic theologians and Koranic scholars, concluding that one could not justifiably call Muhammad a pedophile on the basis of the textual evidence. They drew a distinction between “child marriage” and “pedophilia” and found that E.S. “had intended to wrongfully accuse Muhammad of having paedophilic tendencies” in order to “degrade Muhammad” and resulted in “arousing justified indignation”. It was fine to criticize religion, but “insults or mockery of a religious belief or person of worship” would not be tolerated, the court ruled.

In upholding the above ruling, the ECHR’s observations are chilling. First, it essentially trampled like a herd of elephants on free speech. If such speech is “likely to incite religious intolerance” or is an “improper or even abusive attack on an object of religious veneration, a State may legitimately consider them to be incompatible with respect for the freedom of thought, conscience, and religion and take proportionate restrictive measures.”

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Second, it made scientific objectivity a canon for public discussion on religion! So even if a commentator is making a value judgment, he has to substantiate it on the basis of fact, “since even a value judgment without any factual basis to support it may be excessive”.

So who decides what is abusive? The Christian doctrine of the Holy Trinity is the highest form of blasphemous insult against the Islamic teaching of Tawhid—the indivisible concept of monotheism in Islam. “Lo! Whoso ascribeth partners unto Allah, for him Allah hath forbidden Paradise. His abode is the Fire…” says the Koran (Sura V 72-73), condemning Christians to hell for believing in the Trinity.

Further, to make factual substantiation a sine qua non of free speech is a travesty of the freedom of expression and confuses “free speech” with “correct speech”. One of the ancient Greek Nereids, daughters of the mythical Nereus, was called Euagore—“good speech”. Free speech is not Euagore. It may include good speech, but it must cover every dialect of cockamamie and Jabberwocky. If E.S. were submitting an academic paper for publication in a peer-reviewed journal, the standard of the Austrian courts and the ECHR would apply to her.

Ms. E.S. was technically incorrect in calling Muhammad a pedophile. The Prophet of Islam was following an Arab custom in marrying a girl who had her first menstrual cycle. Ms. E.S. was, however, correct in assuming that, loosely speaking, such behavior in today’s West, would provoke accusations of pedophilia in common parlance. For example, a number of people were outraged when I pointed out that the predatory abuse of US Catholic homosexual priests was not child abuse or pedophilia but “ephebophilia”, an attraction to post-pubescent youths. Nevertheless, almost all the mainstream media referred to the predator clergy as pedophiles.

Interestingly, it is not just Sahih Bukhari’s hadith, but other canonical hadiths by Sahih Muslim (2:3309), Abu Dawud (2:2116), and the historian Tabari who state that Muhammad married Aisha when she was six (or seven) and consummated the marriage when she was nine.

Instead of punishing E.S., she must be lauded for performing a public service, especially to Muslim girls who are grievously impacted by the precedent set by Muhammad in marrying Aisha after she had her menarche (first menses). Because Muhammad is the ideal man and worthy of imitation in every sphere, his marriage to Aisha sets an example.

In fact, the Hanbalï fiqh manual claims consensus (ijma’) of scholars of Islamic Law regarding a father’s ability to compel his prepubescent daughter to marry against her will, provided it is to a suitable match. Ibn Qudämah gives his ruling on the prepubescent virgin (al-bikr al-saghïrah):

“As for the prepubescent virgin, there is no disagreement with regard to this. Ibn al-Mundhir said, ‘All of the scholars from whom we have taken knowledge have reached consensus that a father’s contracting of marriage for his prepubescent virgin daughter is permissible, if he marries her to an equal,’ and he is allowed to contract her marriage even if she protests and forbids it.”

Islamic scholar Carolyn Baugh underlines the significance of the precedence set by Muhammad’s marriage to Aisha:

“Further exploration of the consensus on prepubescent marriage throughout the genre of consensus/disagreement writing finds that rather than being a scholarly-wide legal opinion on child marriage, it is a little more than a validation of the report of Aisha.”

Islamic authority Ibn Hazm (994-1064) insists that the privilege of marrying a prepubescent girl is not reserved exclusively to the Prophet:

“Whosoever claims that [marriage to a prepubescent] was an exclusive prerogative (khusüs) [of the Prophet] is not aware of the word of God Great and Powerful: {You have in the Messenger of God a beautiful example for whosoever seeks God and the Last Day}. Thus we have to follow him in his example unless a text comes along to render it specific only to him.”

The consequences have been calamitous. With the imprimatur of Islam, “child marriage has become one of the most pervasive and enduring forms of sexual exploitation of young girls in the Middle East and North Africa,” concludes a white paper on Child Marriage in the Middle East and North Africa. “Developed nations, including the United Kingdom, Australia, and the United States, are facing increased incidences of child marriage in immigrant communities within their borders,” the report adds.

In Afghanistan, under Shariah, a girl can be married as soon as she reaches adulthood—determined by her menarche. Different sects of Islam set this age somewhere between nine and 17. In Egypt, 30 percent of married children fall victim to violence at the hands of their husbands, and 41 percent report being beaten during pregnancy. In Iran, 4.9 percent of all marriages in 2010 were child marriages. In Yemen, 52 percent of marriages occur before the girl turns 18.

The white paper makes for bloodcurdling reading. If the current trend continues, 140 million girls will become child brides by the year 2020. Of these 140 million girls, 50 million will be under the age of 15. Three days ago a 25-year-old asylum seeker in Sweden was sentenced to six months in jail after being found guilty of having sex with his wife, who was only 13-years-old at the time. Ilham Mahdi al Assi was 13 when her much older husband tied her down, raped her repeatedly, and left her to bleed to death three days after their wedding.

Activists who link this barbaric practice to the life of Muhammad will now think twice lest they face prosecution by the new European Shariah Supreme Court.

There are two monumental ironies in the new blasphemy law that the ECHR has created. First, in 2003, in the case of Refah Partisi (the Welfare Party) and others v. Turkey, the very same court had ruled that Shariah law “is incompatible with the fundamental principles of democracy, as set forth in the Convention”. Now, it has imposed Shariah law on Europe.

Second, exactly one day after the ECHR published its “blasphemy” ruling against Ms. E.S., Ireland overwhelmingly voted (64.85%) in a referendum to remove the offense of blasphemy from its constitution.

Not surprisingly, Somali-born human rights activist and former Muslim Ayaan Hirsi Ali tweeted her outrage at the ECHR ruling:

It is, indeed, the worst of times.

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Jules Gomes

by Jules Gomes

The Rev’d Dr Jules Gomes, BA, BD, MTh, PhD (Cantab) is a journalist and academic.

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