Saturday, February 23, 2019
Comparing Freedom of Expression in the Statutory Law and the Sharia Law Essay
Getting in touch with media truth during the first base semester of my Masters gave me a sense of the importance of law in prevalent beca employment it consists of make outs and articles which organise intimately issues in the valet de chambres flavour in a way that protects ethics and goods. Regardless of the hypocrisy and double-standards of the countries which raise extravagantly the slogan of Human Rights, I homogeneousd the Human Rights Conventions that were laid mint by these countries. Therefore, I decided to research some points in these conventions that ar related to my study in order to nurture my knowledge in this gr feed in field of the human sciences.Then, I thought deliberately roughly the benefit of exerting overmuch effort to get such knowledge since it is existed, well-explained and well-organised, in handy books. but after looking by historical and spectral study as far back as some centuries ago, I found that my own culture, Islam, had plenty of la w victual that helped its sight non completely to protect their ethics and morals, but also to spread them on the whole everywhere the world. Through deliberate and objective study, I found that more of the social reformers, whose thoughts led to the emergence of the ripe criteria of human advanceds, were originally affect by the roots of the Islamic ulture. I also found a lot of those old and even innovative reformers who praised the old provisions of the shariah law lawfulness and they also praised the prosperity which was an outcome of go foring it. The Western writer Patricia cr unrivaled (2005 p. 218-219) said referring to how those old provisions of law were true bases of a moral society Medieval Islamics did not write utopias in the sense of ideational travel accounts or other descriptions of ideal societies which do not exist, they were not springtimen to come everywhereking ideals out nerve their own civilisation at all.But they did place a golden age ri ght at the graduation of their own history, and their numerous accounts of this age add up to a flesh out utopia of great emotive power It was a time when the Moslems had all the virtues of tribesmen and no(prenominal) of their vices, for thanks to Islam there was no feuding, no factionalism, and no disorder, just austerity, solidarity, and conglomeration devotion to the truth. Therefore, I decided to look for the provisions of that old law which atomic number 18 related to my study and comp ar them with their counterparts in the modern human rights conventions. In order to limit my research, I decided to reconcile the articles related to my study, media law, in the Human Rights Act 1998 (HRA) of the British legality to represent the leaders international human rights conventions. Part unmatched Preface Main bloodline In this dissertation I am going to explain how some(prenominal) the HRA and the sharia fair play deal with the conceit of immunity of flavor.As prospi cient as such argument is new and uncommon because of the lack of references that examine it, which resulted in an ambiguous perception in the minds of pile towards the shariah rightfulness and its sources, there must be a kind of primary comment of the shariah Law, its sources and how the sharia law scholars (Sharia Jurists) deal with these sources to regulate law items. Sharia Law This expression is going to be referred to as a theological-historical concept since the Sharia was revealed finished a prophet, this makes it a theological subject depend, and it is 15 centuries old, this gives it a historical background.Sharia (sari? ah) is all religious rituals that Allah (SWT) has claver on Muslims, via his seer Mohammad (PBUH) regarding beliefs, rules and day-to-day lifetime among Muslims themselves, and surrounded by Muslims and non-Muslims. It is designed to govern the relations of Muslims with non-Muslims, whether in spite of appearance or outside the territory of I slam. Mahmoud Kamali says that Sharia is the Islamic law as contained in the divine guidance of the Quran and the hadith. Yet, the expression Sharia Law is modern if compargond with the word Fiqh, which historically utilize to mean the awareness of Islamic rules from its sources by true inference. Kamali defined the word Fiqh Islamic law as original by Muslim Jurists. The term is often utilise synonymously with Sharia. Therefore, deal other contemporary researchers of similar topics, I am going to use the expression Sharia Law to mean the old word Fiqh. Sources of the Sharia LawThere is no difference between any(prenominal) of the Muslim scholars that the main sources of all information, not only close the details of the life of mankind, but also about the details of the whole universe are the Holy Quran, then, the Holy Sunnah. In addition, it is a matter of a habitual belief among Muslims and many of non-Muslims that the Holy Quran in the hands of wad is the real book r evealed by Allah (SWT) to his Prophet Mohammad (PBUH) fourteen centuries ago. The same is the 100% authenticity of certain books of Hadith, i. e. Saheeh Al-Bukhari and Saheeh Muslim.These references are not considered comprehensive works however, I rule that they could draw raw guidelines for me in my research in two ways * They give me hints about how this issue is being taken by researchers who are not specialists in Sharia studies, but they are lawyers or journalists like me. * They draw raw guidelines of the comparative methodology of research between articles of the Sharia Law and those of the statutory law.Throughout this dissertation, I am going to take articles of the British Media Law and compare them with the related provisions of the Sharia Law, talent enough instances in order to be able to make decipherable conclusions about the main question of this dissertation which is (The question of the dissertation) Can the modern Islamic movements, who are apparently going to rule the Arab countries after the Arab Spring, implement the Sharia Law and achieve the absolute justice which they raise as a slogan for their innovations and electoral campaigns?Or would they worsen the already change state postal service of media law? Of course, regarding the other part of this dissertation, which is the statutory law, libraries are extensive of texts of law articles starting from the Declaration of the Rights of Man and of the Citizen in 1789, passing with the UN Universal Declaration of Human Rights, ending with daily huge volumes of books, journals and articles studying new amendments and proposing new laws regarding recent details of the life of people in general and the work of media specifically. TerminologyIn order to pick up a good understanding for the real meaning and connotation of the Sharia Law concepts and cases, they have to be denoted by their names. Therefore, it is necessary here to have a list of the original names of the Sharia concep ts and their definitions. The Holy Quran defined previously. Surah one complete chapter from the Holy Quran. Sowar the plural of Surah. Sowar are different in length. few are 1/3 a page and others exceed 40 pages. Aya one verse from the Holy Quran. Ayat a plural of aya. The Holy Sunnah defined previously.Hadith a verified saying for the Prophet Mohammed (PBUH). Ahadith a plural of Hadith. Tafseer the interpretation of the Holy Quran and the Holy Sunnah by maestro credible Muslim scholars. Fatwa a certain judgement on a certain case by a Sahaba, Tabeeen or confident Muslim scholars in a certain time or place. Plural is Fatawa. Ibada the act of worshiping Allah (SWT) whether by heart or body. Any act of heart or body needs to start with intention of solely worship for Allah in order to be a true Ibada. Dawah the flow of activities Muslims do in illuminating the t apieceings of Islam.Dhimmi the name of a non-Muslim citizen in the Islamic State. Ahludhimmah or Dhimmiyeen plural of Dhi mmi. Jezyah the name of the religious tax for non-Muslims in the Islamic State. It is uniform to the religious tax taken from Muslims, but Jezyah is a lesser keep down of money that has many exceptions. Part Two The Situation of Freedom of tone Historical Background It is very important, beforehand starting writing about the situation of granting immunity of expression in the statutory and the Sharia Law, to explore the general historical climates which preceded the emergence of both laws.That will give a kind of understanding of how much the improvements on the situation of unaffectionatedom of expression both laws have achieved. * A Glimpse on Freedom of demeanor in the West before the Renaissance The period which preceded what is known in Europe as the Renaissance was full of conflicts among the different castes of the European communities in general. That conflict took several forms. A prime one was the conflict between the perform and scientists and that between auth ority and people.Howard Turner describes a side of such conflicts The Middle Ages in Europe had long been dominated by an interminable conflict between Church article of faith and a kind of humanitarian and individual quest for intellectual liberation. Church and authority apply to be allies and each institution worked for the protection of the other at the depreciate of peoples lives. They used to impose restriction on license of expression and there used to be no wish for peoples privacy. There was also a kind of blackout on external knowledge, fearing that it might undermine their power or alliance.The Thirteenth coulomb was an age in which kings and barons reacted to an insult by lopping off the offending tongue- or head The crime of s whoremongerdalum magnatum expressly protected the great men of the terra firma from any statements that might arouse the people against them. In France, for example, the king used to say I am the state and gave no space for people to ha ve control in running their own or surreptitious life. The Church used to control science. Therefore, knowledge it saw as right, used to be spread, and that it saw as wrong, used to be damaged.A occlusion was imposed on scientists and thinkers. In 1614, Galileo was accused of unorthodoxyby the Church for his scientific theories. Eighteen years later, in 1632, he was sentenced to life fetter which was reduced to permanent house arrest after he had been have to withdraw his theories before the public by the Church. That time was the worst for womens license. Women were inferior to men, troubled with Eves sin. They were subject to the authority of their fathers or their husbands. Violence in marriage did occur and was even encouraged. The dark life of that age pushed people to seek a kind of salvation through knowledge, especially, after the appearance of new thinkers affected by the Muslims civilisation. According to Turner, the Christian West inherited the scientific legacy fr om Islam. Thanks to increasing cultural traffic with Muslim lands via the busy Spanish and Sicilian gateways, the thriving routes of Mediterranean and overland commerce, and the contacts left(a) over from the Crusades. People sought to reinforce the principles of emancipation and justice, which was clear in the slogan of the French revolution which was liberty, equality and fraternity. The revolution in real license of expression has been from the Renaissance until today. However, there are still some issues which emerge from time to time that necessitate amendments of the active laws or constituting new ones. * Freedom of aspect in Arabia before the Sharia Law In Arabia, there used to be kind of freedom of expression, but there was no justice.For example, men used to sit with each other and think about issues related to their tribes. But that right to give an idea or express an opinion was only for masters. Societies there used to consist of three castes masters, subjects or alliances and slaves. In addition, that right among the masters was only for men. Women used to be curb and were not allowed to share opinions either in public affairs or even in family affairs. Women were used in the same way as goods. There used to be a motley of religions. Arabia included pagans, Jews and Christians.But the most common was paganism. Surely, that kind of diversity hints at a kind of freedom of religion, but the opposite was the norm. Paganism, be in worshiping idols, was the religion of the mainstream Arabs in Arabia and they used to keep an eye on those who converted to other religions. If they were young, they used to be fought if they were old, they used to be left free since they could not affect others. Of course, chiefs and masters of tribes used to be gifted with that kind of life because it helped them keep strong control over their subjects.However, suppressed castes needed any kind of powerful justice to liberate them from the bondage of the diffe rent forms of slavery. From amongst that darkness, the message of the Sharia was revealed to the Prophet Mohammed (PBUH) to spread the justice and freedom among people. It is widely known among historians that a reasonable number of the people who articulation the Dawah at the early stages were from the ordinary people or alliances and slaves. virtually of the masters asked the Prophet (PBUH) to dismiss them from around him if he wanted them, the masters, to join the Dawah.Of course, ordinary people always lead reforms. A gathering of Muslim emigrants fled the persecution of their relatives in Mecca to Abyssinia and there was a short dialogue in the court of Abyssinias king, who was a true Christian. Their representative set forth the situation of Arabs before the Sharia and what the Sharia came with O king We were plunged in the deepness of ignorance and barbarism we adored idols we lived in unchastity we ate dead animals, and we spoke abomination. We treat every feeling of humanity, and the duties of hospitality and neighbourhood. We knew no law but that of the strong.At that time, divinity raised from among us a man of whose birth, truthfulness, honesty and worth we were aware, and he called us to the Unity of God and taught us not to beau anything with Him. He forbade us to worship idols and enjoined us to speak the truth, to be nigh to our trusts, to be merciful, and to regard the rights of neighbours. He forbade us to speak ill of women and to eat the substance of orphans. He ordered us to flee from vices, to abstain from evil, to tin prayers, to render alms, and to observe the fast. Constituted Rights to Freedom of Expression * Freedom of Expression in British Media LawAs I have mentioned from the beginning, I am going to take the British law as an model to represent the statutory law in this research. Therefore I see that I have to propose an overall look at the British law and to see the situation of freedom of expression through it. Bri tish Law Unlike other countries, Britain does not have a compose constitution. Referring to Britain, Tom Baistow says This country is the only one in the EEC without a written constitution and the only one without the press laws that form one of the most important guarantees of freedom of expression. However, it has a good record regarding the respect of freedom of expression. It got this reputation throughout historical fights of the British nation to achieve freedom and meet democracy. And as an ideal example of the fight to go through this situation, journalism in Britain went through a brave battle against native restrictions on publishing in the 19th century and could extract the right to comment and publish. Freedom of expression became one of the most respected freedoms as a kind of a social norm among the British people.It is believed in Britain that free saving is a significant pillar of a free democracy. The Royal Commission on the Press in 1977 defined freedom of e xpression as that degree of freedom from restraint which is essential to modify proprietors, editors and journalists to advance the public interest by publishing the facts and opinions without which a pop electorate cannot make responsible judgement. This definition shows how the British believe in the bouncy role that freedom of expression plays in educating the public to be able to take right findings in elections.It means that it is the main guarantor of a free democracy which is the main principle of a free State. Therefore, Solaiman Saleh described the situation of freedom of expression in Britain, despite the lack of a written constitution, saying The principle of a free press is reenforce in the collective conscience of the British. That forms a better protection which outweighs any written constitution. Saleh continued explaining that it became a part of the British understanding of freedom of speech that the government does not have the right to interfere in the wor kflow of mass media.It cannot issue warrants, for example, to close any news platform, have pre-publishing restrictions/instructions or suggest amendments in the administrative systems or column policy. This is how James Curran portrayed the British press after the Second gentleman War The press became fully independent of political parties and hence government. The independency of the press gave it a great deal of space for free speech as well as unlimited power against governments.This was clear when the crush wartime leader, British Prime Minister, Winston Churchill, demanded an immediate liquidation of the Daily Mirror over its coverage of the conduct of war. That decision was followed by rough debates in the nursing home of Commons and huge popular protests in Trafalgar Square and capital of the United Kingdoms Central Hall that pushed Churchills government to withdraw the decision against the Daily Mirror and, even, lift a ban previously imposed on the Daily Worker. Mass media regulation is only the role of the sevens and Judiciary.In reply to the argument that the parliamentarian majority which forms the government may adopt any law suggested by it, Saleh argues that people who believe in the concept of freedom of expression will protest against the parliament and oblige it to snatch the new law or to dissolve. The incident of the Daily Mirror mentioned supra is a very clear example of that. The main pressure was represented by organised protests in Trafalgar Square and Londons Central Hall.In addition, Hanna and Banks say in McNaes Essential Law for Journalists Section 19 of the Human Rights Act created a requirement that a Minister introducing a Bill into Parliament must declare that its provisions are compatible with the European Convention, including thereby a commitment to freedom of expression. Despite all the facts mentioned about the battles towards the freedom of expression in the position society, a sufficient protection for that fre edom, which keeps up with the public-interest journalism, from attacks for discomfiting the government or the workbench or the wealthy private litigants was not completely guaranteed.It is guaranteed by the toleration of international treaties, in which English writers and lawyers took a big part in constituting them, into the British law. Since then, clear articles of these treaties have become legal codes in the British law that guarantee a better freedom of expression. Throughout these facts, I can come to a conclusion that freedom of expression in Britain has certain principles that are clear. The main three principles could be summed up as following 1. Government has no power against mass media.Robertson and Nicol explain how a government official does not have any privilege over the public in this regard. They say that if any official wanted to step down a news story, he has to go to the court the same as the public do. It means that government cannot control or suppress th e percentage of any single person directed to the public via any medium. It is believed that this is a sign of a free democratic State, but not in an arbitrary sense. Therefore, mass media have to be credible, and offenders should not escape punishment. lav Whale quoted Sir William Blackstone, the eighteenth-century jurist, saying The liberty of the press is indeed essential to the temper of a free State but this consists in laying no previous restraints upon publication, and not in freedom from censure for criminal matter when published. 2. Mass media are owned by the private sector and, therefore, it represents citizens before the government. However, citizens are stronger than the government in the democratic regimes it means that mass media can publish any kind of opposite opinions without fearing suppression or subjection of the government. 3.Mass media turn to the public to face censorship. Robertson and Nicol say The best antidote to censorship is publicity. When the g overnment wishes to practice a kind of censorship, journalists can send that practice and the government does not have any power to punish them. The incident of the Daily Mirror mentioned above is a clear example on the three points mentioned. It shows how mass media are stronger than governments, how mass media speak on behalf of the public and how the public exerted pressure through protests that pushed the government to retreat from the closure warrant against the newspaper. Freedom of Expression in the Sharia Law The most prominent symptomatic of the Sharia Law is that it is a religious law. It means that it has more emphasis, in all branches, on religious and moral determine than other laws. Mohmmad Kamali says This can, perhaps, be clearly seen in reference to the Sharia rules pertaining to blasphemy, heresy and disbelief, where the dominant concern is to defend the dogma and belief-structure of Islam. Muslim scholars and thinkers believe that this characteristic of the Sh aria Law gives it a spiritual power, which is effective to keep perceptual constancy of societies.Based on his understanding of the Islamic beliefs and to confirm that defending the dogma and belief-structure of Islam achieves social stability, 20th century Muslim thinker and reformer Sayyed Qutb, who see the Holy Quran, says Social, economic and religious organisation goes side by side with a true ethical code and dogmatic belief in a complete, comprehensive, balanced and precise way. Regarding freedom of expression and to show how much positive effect religion has on it, the Western writer, Patricia Crone, shed airy on the way Muslim thinkers understand the relationship between freedom and religion.Patricia Crone reported Al-Ghazali, a famous medieval Muslim philosopher and reformer, explaining freedom in the Sharia as no humans had the right to impose obligations on other humans, whether they were rulers, masters, fathers or husbands, or for that matter prophets only God coul d do so. Of course, Al-Ghazalis understanding of that concept of freedom was based on the Holy Quran and the Holy Sunnah. Allah (SWT) asked his Prophet Muhammad (PBUH), in the Holy Quran, to tell people that he is a human like them.