Muhammad, Free Speech and the European Court of Human Right.

Just recently, a EUROPEAN court has ruled insulting religion is a criminal offence after a woman who is identified as called Mrs S, called the Prophet of Islam, Mohammed a paedophile had her conviction upheld.

The European Court of Human Rights (ECHR) ruled that Mrs S, was convicted by a lower court in Vienna for disparaging religious doctrines and was ordered to pay a 480 euros, that is about $546 as fine plus legal fees. Even though she appealed, her case was thrown out by the Court of Appeal in the Austrian capital as well as the country’s Supreme Court. The rulings can be read and download here.

Mrs S, who is actually 47-year-old from Vienna was reported to have held seminars where she made the comments while debating the marriage between Mohammed and Aisha, a six-year-old girl. Aisha according to Islamic history is one and the favourite of the Prophet’s wives, she was 6 year old when Muhammad married her.

Mrs S in one of her seminars was reported to have said: “A 56-year-old and a six-year-old? What do we call it, if it is not paedophilia?” She was also quoted to have said Muhammed “liked to do it with children”. She was actually convicted for insulting Muhammad in February 2011 by the Vienna Regional Criminal Court and the ECHR recently upheld their decision.

Even though Mrs S argued that her right to freedom of speech had been infringed, but the ECHR ruled the lower courts had not violated that right, which is laid out in Article 10 of the European Convention on Human Rights.

Quoting from the Press Release of the ECHR, here are the detail of the offence of Mrs S as dated and documented;

In October and November 2009, Mrs S. held two seminars entitled “Basic Information on Islam”, in which she discussed the marriage between the Prophet Muhammad and a six-year old girl, Aisha, which allegedly was consummated when she was nine. Inter alia, the applicant stated that Muhammad “liked to do it with children” and “… A 56-year-old and a six-year-old? … What do we call it, if it is not paedophilia?”.

On 15 February 2011 the Vienna Regional Criminal Court found that these statements implied that Muhammad had had paedophilic tendencies, and convicted Mrs S. for disparaging religious doctrines. She was ordered to pay a fine of 480 euros and the costs of the proceedings. Mrs S. appealed but the Vienna Court of Appeal upheld the decision in December 2011, confirming in essence the lower court’s findings. A request for the renewal of the proceedings was dismissed by the Supreme Court on 11 December 2013.

In a statement, the European Court of Human Right said on why her statement is considered abusive:

“The Court found in particular that the domestic courts comprehensively assessed the wider context of the applicant’s statements and carefully balanced her right to freedom of expression with the right of others to have their religious feelings protected, and served the legitimate aim of preserving religious peace in Austria.

“It held that by considering the impugned statements as going beyond the permissible limits of an objective debate, and by classifying them as an abusive attack on the Prophet of Islam which could stir up prejudice and threaten religious peace, the domestic courts put forward relevant and sufficient reasons.”

Analyzing the Judgement.

Having gone through the reason(s) for considering what Mrs S said or uttered to be blasphemous or had gone beyond the confine of freedom of expression, we shall examine these statements in the light of Islamic doctrines and history to see if there is any justification fining her.

Lets examine the judgement and conclusion of the court again;

The Court found in particular that the domestic courts comprehensively assessed the wider context of the applicant’s statements and carefully balanced her right to freedom of expression with the right of others to have their religious feelings protected, and served the legitimate aim of preserving religious peace in Austria. It held that by considering the impugned statements as going beyond the permissible limits of an objective debate, and by classifying them as an abusive attack on the Prophet of Islam which could stir up prejudice and threaten religious peace, the domestic courts put forward relevant and sufficient reasons. (bold emphasis ours)

Without doing much analysis, by just observing the bold words, we could understand one of the reasons if not the underlying reason for her statement to be considered an attack, and therefore charged for the same. We see that this is all about protecting the religious feelings of others (obviously the Muslims), consequently they claim that her statement could stir up and threaten the religious peace as well. These statement going through Islamic history and teachings are weak and unfounded.

While I understand that there is a need for a country to protect her country from religious wars and uproar, the reasons stated above fails to wrong. According to the Islamic traditions, a man as old as Muhammed, the prophet of Islam could marry a Child that has not even started her menstruation in the first place, this is not hate speech, this is actually recorded in Islam’s holy text.

And those of your women as have passed the age of monthly courses, for them the ‘Iddah (prescribed period), if you have doubts (about their periods), is three months, and for those who have no courses [(i.e. they are still immature) their ‘Iddah (prescribed period) is three months likewise, except in case of death]. And for those who are pregnant (whether they are divorced or their husbands are dead), their ‘Iddah (prescribed period) is until they deliver (their burdens), and whosoever fears Allah and keeps his duty to Him, He will make his matter easy for him.

Quran 65:4, Noble Quran by Mushin Khan

Please note the part “and for those who have no courses”, it clearly talks about little girls who have not starting their monthly courses because they are immature,  how clearer an this be? This is coming from the Islamic text itself. This verse is a justification for the prophet of Islam, and by extension by all Muslims to marry little girl, even though they have not started their monthly course, how can you divorce someone you have not married in the first place?

Just before I get attacked for taking the text out of context, here is a tafsir (an explanation and commentary) on the verse from the Islamic leaders themselves, Tafsir Al Jalalayn;

And as for those of your women who read allā’ī or allā’i in both instances no longer expect to menstruate if you have any doubts about their waiting period their prescribed waiting period shall be three months and also for those who have not yet menstruated because of their young age their period shall also be three months — both cases apply to other than those whose spouses have died; for these latter their period is prescribed in the verse they shall wait by themselves for four months and ten days Q. 2234. And those who are pregnant their term the conclusion of their prescribed waiting period if divorced or if their spouses be dead shall be when they deliver. And whoever fears God He will make matters ease for him in this world and in the Hereafter.

Clearly again, the tafsir made it clear when the commentator state that the girls in questions are “those who have not yet menstruated because of their young age” is this is not considered an attack on the prophet of Islam by the Muslims leaders and Scholars, why should Mrs S be told to pay a fine for merely stating what the Islamic Sources says?

That is not all, Ibn Kathir, another famous Muslim commentator said the same in his commentary of Quran 65:4, we read;

“The `Iddah is made up of cleanliness and the menstrual period.” So he divorces her while it is clear that she is pregnant, or he does not due to having sex, or since he does not know if she is pregnant or not. This is why the scholars said that there are two types of divorce, one that conforms to the Sunnah and another innovated. The divorce that conforms to the Sunnah is one where the husband pronounces one divorce to his wife when she is not having her menses and without having had sexual intercourse with her after the menses ended. One could divorce his wife when it is clear that she is pregnant. As for the innovated divorce, it occurs when one divorces his wife when she is having her menses, or after the menses ends, has sexual intercourse with her and then divorces her, even though he does not know if she became pregnant or not. There is a third type of divorce, which is neither a Sunnah nor an innovation where one divorces a young wife who has not begun to have menses, the wife who is beyond the age of having menses, and divorcing one’s wife before the marriage was consummated.

We see the very same in the Tafsir of Ibn Abass as well;

(And for such of your women as despair of menstruation) because of old age, (if ye doubt) about their waiting period, (their period (of waiting) shall be three months) upon which another man asked: “O Messenger of Allah! What about the waiting period of those who do not have menstruation because they are too young?” (along with those who have it not) because of young age, their waiting period is three months. Another man asked: “what is the waiting period for those women who are pregnant?” (And for those with child) i.e. those who are pregnant, (their period) their waiting period (shall be till they bring forth their burden) their child. (And whosoever keepeth his duty to Allah) and whoever fears Allah regarding what he commands him, (He maketh his course easy for him) He makes his matter easy; and it is also said this means: He will help him to worship Him well.

These narrations and interpretations from the Islamic sources themselves shows that the prophet of Islam claim to have the privilege of marrying, having sexual relations and also divorcing girls who have not even started their monthly courses!

 The ECHR continued in their statement as contained in the press release on why they think Mrs S words were an attack;

The national courts found that Mrs S. had subjectively labelled Muhammad with paedophilia as his general sexual preference, and that she failed to neutrally inform her audience of the historical background, which consequently did not allow for a serious debate on that issue. Hence, the Court saw no reason to depart from the domestic courts’ qualification of the impugned statements as value judgments which they had based on a detailed analysis of the statements made.

The statement from the ECHR suggest that Mrs. S did not inform her audience of the historical background of Muhammad sexual relationship with Aisha, we will examine historical context from the Islamic sources and see if what Mrs. S said is historical true or not.

According to the Islamic secondary source, the hadith literature, Muhammad was reported to have seen seen Aisha, the daughter of one of his companion Abubakar in a dream, this was something that transpired before the move to marry the girl at all, we read in Sahih Bukhari Vol. 7, Book 62, Hadith 57.

Narrated `Aisha:Allah’s Messenger (ﷺ) said (to me), “You were shown to me in a dream. An angel brought you to me, wrapped in a piece of silken cloth, and said to me, ‘This is your wife.’ I removed the piece of cloth from your face, and there you were. I said to myself. ‘If it is from Allah, then it will surely be.’ “

Muhammad claim this he was shown in a dream, and years later, Muhammad told the girl Father that he was interested in her, the response of the Father stunning, we read in the Hadith narration again, Sahih Bukhari Vol. 7, Book 62, Hadith 18;

Narrated ‘Urwa: The Prophet (ﷺ) asked Abu Bakr for `Aisha’s hand in marriage. Abu Bakr said “But I am your brother.” The Prophet (ﷺ) said, “You are my brother in Allah’s religion and His Book, but she (Aisha) is lawful for me to marry.”

This is how it all started, after claiming to have seen Aisha in the dream presented to him as his wife, he want ahead to meet the girl’s father, stating his interest in the girl, Abubakar did not expect this, this was clearly seen in his response, but Muhammad won this over by telling him that he has the right to the girl.

Eventually, Muhammad had his way, and Aisha reported that Muhammad married her at the age of 6 and consummated the relationship at the age of 9! How will the ECHR react to this, is this not an historical evidence, and how is this different from what Mrs. S has said so far? We read from Sahih Bukahri Vol. 7, Book 62, Hadith 65

This is not the only narration that reports this, there are several narration in the Hadith literature, here is another one, where the girl Aisha reported the very same again in Sahih Muslim Book 8, Hadith 3310,

Aside the fact that Muhammad has sexual relationship with Aisha at the age of 9, the Islamic literature further shows that Aisha was playing with dolls when Muhammad took her in! This is expressly spelled out in the Hadith narration Sahih Bukhari Vol. 8, Book 73, Hadith 151;

Narrated `Aisha: I used to play with the dolls in the presence of the Prophet, and my girl friends also used to play with me. When Allah’s Messenger (ﷺ) used to enter (my dwelling place) they used to hide themselves, but the Prophet would call them to join and play with me. (The playing with the dolls and similar images is forbidden, but it was allowed for `Aisha at that time, as she was a little girl, not yet reached the age of puberty.) (Fath-ul-Bari page 143, Vol.13)

This plainly shows that Aisha has not reached the age of puberty when she was taken to the prophet of Islam’s house. The playing with dolls according to the Muslims is a sign that she is not reached puberty yet. Considering all the evidences so far, how is what Mrs. S, said been classified as an attack against the prophet of Islam when the Islamic sources itself and its historical settings proved her right?

As we shall see in the next Hadith narration, we can clearly see that even at the age of 9, Aisha has not reached puberty since she was reported playing with her dolls, which we are told is a sign of the fact that she is not matured yet. We read in Sahih Muslim Book 8, Hadith 3311

‘A’isha (Allah be pleased with her) reported that Allah’s Apostle (ﷺ) married her when she was seven years old, and he was taken to his house as a bride when she was nine, and her dolls were with her; and when he (the Holy Prophet) died she was eighteen years old.

Haven seen all these, is the ECHR justified in fining Mrs. S, seeing that her case is historically true and valid? Why is the ECHR trying to change the meaning of freedom of expression just because they are afraid of the reactions of Muslims to evidences likes this?

We hope this provides a balance view, and therefore shows that the ECHR may not have gotten their facts straight before concluding on this matter.