Religious Freedom versus Free Speech: Sweden’s Legal Tightrope

by | Oct 17, 2023

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About Snigdha Dash and Shaswat Kashyap

Snigdha Dash is a third year law student from National Law University of Odisha. She is interested in Public International Law, Arbitration and Constitutional Law.
Shaswat Kashyap is a third year law student at Gujarat National Law University. His interests lie in Constitutional Law and Human Rights Law.

The United Nations Human Rights Council has passed a resolution aimed at combating religious hatred and blasphemy in Sweden following two distressing incidents in which the Qur’an, the holy text of the Islamic faith, was burned. The first occurrence took place in June when an Iraqi activist, Rasmus Paludan, burned the holy book of Muslims in front of Turkey’s Embassy in Stockholm, inciting severe mob violence. More recently, Salwan Mimoki replicated this act in the same place, further fuelling tensions. The perceived leniency of Swedish authorities towards such demonstrations and the absence of any blasphemy law in the country have become a point of concern. These incidents have also been branded a political stunt, prompted by negotiations for NATO membership between Sweden and Turkey. More broadly, the cases have emphasised the delicate balance between the right to free speech and the right to religious freedom, where stifling free speech in any manner is seen as an attack on democracy, while an absolute right to religious freedom is perceived as favouring only a particular subset of people.

In 1949, Sweden removed the prohibition on blasphemy from its penal code, and in 1970 the ‘Peace of Faith’ statute was repealed which indicated a shift in dealing with religious offenses. This marked a departure from the traditional practice of criminalising actions or expressions that were deemed offensive or disrespectful towards religious beliefs and institutions. The shift in dealing with religious offenses in Sweden in the late 1970s occurred within the broader context of secularisation in the country. However, challenges persist: in 2018, the United Nations’ Committee on the Elimination of Racial Discrimination (CERD) criticised the notable increase in anti-Muslim attacks in Sweden, yet little progress has been made since.

Rather, in response to the recent incidents involving the burning of the Qur’an, the Administrative Court of Sweden (Administrative Appeals Court Cases Nos. 2079-23 & 2080-23) overturned the police charge of hate crime, holding that ‘individuals are free to profess their right to free speech and expression’ as secured by the Sweden Constitution. The court found that there were insufficient reasons to suspect a threat to national security, which would justify limiting the freedom to demonstrate and to gather in public. It was also noted that there are no explicit punitive charges for the burning of religious texts in the Swedish Constitution or under Swedish law. The court’s judgement demonstrates the latent Islamophobia within Sweden’s public institutions, which must be understood in conjunction with a broader diminishing of liberal democracy across Europe (as evidenced in the rise of far-right political parties in countries such as France and Germany).

The right to freedom of speech and expression is premised on liberal democratic values which have their foundation in eighteenth century philosophical ideals. Thinkers such as John Stuart Mill have argued that individuals are entitled to communicate their inner thoughts, beliefs, and convictions – the so-called forum internum – so long as this exercise does not deprive others of the same liberty. The Swedish Constitution guarantees its citizens this right to freedom of speech and expression (Chapter 2, Article 1). However, there exist limitations on the right: while the Constitution specifically states that there should be no restrictions on freedom of expression based solely on religious, political, cultural, or other opinions (Chapter 2, Article 21), it could be argued that Sweden has not upheld its democratic values (Chapter 2, Article 21) with regards to imposing restrictions to protect national security, religious sentiment, and the right to religious freedom.

The 1976 Constitutional Amendment seemingly grants religious liberty as an absolute right in principle, but in practice religious actions cannot be challenged solely on religious, cultural, or social grounds. The limitations referred to in Article 20 should be imposed only if there is a legitimate and acceptable reason in a democratic society, and even in such cases, they should be necessary and proportionate to achieve their intended purpose. Sweden is also a party to the International Covenant on Civil and Political Rights (ICCPR), which in Article 9  guarantees the right to freely profess and practice one’s religion, and in Article 14 advocates against discrimination based on various grounds, including religion and opinion. The burning of a sacred religious text not only hampers the practice of Islam but also fosters an atmosphere of intolerance and animosity toward those of Muslim faith.

The lack of legal condemnation of the incidents of Qur’an burning in Sweden also effaces Article 1 and Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), given that Islam is largely followed by minority ethnic groups within Sweden. ICERD calls on state parties to  condemn any form of racial or ethnic intolerance, as well as the promotion of racial hatred or discrimination. Such discriminatory acts undermine human dignity and contradict the principles of the UN Charter.

Sweden is struggling to balance freedom of speech and religious freedom in the face of anti-Muslim incidents that challenge the principles of fundamental human rights. These incidents strike at the very heart of liberal democratic ideals, emphasising that religious tolerance must not be compromised by the unchecked exercise of free speech. The situation brings into question Sweden’s dedication to upholding the ICCPR and ICERD, necessitating a response which guarantees the safeguarding of religious freedom and the censure of discrimination rooted in religious motives.

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