The blasphemy law
I.A Rehman
November 25, 2010
November 25, 2010
THE worldwide outrage caused by the awarding of the death sentence to Aasia Bibi on a blasphemy charge was bound to happen sooner or later, in view of Pakistan’s inability to scrutinise a law that satisfies neither human rights advocates nor many authentic authorities on Islam. It is time this shortcoming was seriously addressed.The matter has been complicated by two factors. First, the conservative opinion has not taken the reaction in the West, especially the Pope’s plea for mercy, in a proper spirit. Just as the people of Pakistan have a right to protest at violations of the Palestinian people’s human rights, western observers have a right to express concern at what they think amounts to human rights abuse in Pakistan.
Secondly, the idea of presidential intervention is counter-productive. Reprieve for a convict or two will not solve the problem. Future victims of the controversial legislation may have no defender at home or abroad. A critical appraisal of Section 295-C has become imperative, particularly because the Pakistan Penal Code (PPC) provision does not even enjoy the unanimous support of Islamic scholars.
This will become abundantly clear from the history of the addition of Section 295-C to the Penal Code. As the Penal Code did not have any specific provision for blasphemy against the Holy Prophet (PBUH), advocate Ismail Qureshi moved the Federal Shariat Court (FSC) in 1984 that to prescribe the death penalty for blasphemy. The petition did not go unchallenged. One objection raised by the counsel for the federation (under Gen Zia) was that the petition was not maintainable. Another issue was that since legislation fell under the jurisdiction of parliament, could the FSC issue a direction to the federation? The court reserved judgment.
Meanwhile, a bill was moved in the National Assembly seeking the insertion of Section 295-C in the PPC. It provided for the death penalty for blasphemy against the Prophet (PBUH).
According to Mr Ismail Qureshi, the law minister did not support the bill on the ground that the Quran did not prescribe a penalty for this offence. “Besides, an unexpected situation arose,” says Mr Ismail Qureshi, “when many Islamic-minded members of the Assembly did not wholly agree with the bill because they thought imprisonment for life was sufficient punishment for blasphemy.” Anyhow the bill was passed though the law ministry added life imprisonment as an alternative punishment. Discussion on the bill was cut short because its supporters insisted that the issue was not debatable.
Mr Qureshi again moved the FSC, this time for deletion of the alternative punishment from Section 295-C. He admits that “some ulema argued that blasphemy was a forgivable offence and some even said that the ruler could award a lesser punishment than death”.
The FSC ruled in October 1990 that the alternative punishment should be deleted as it was repugnant to Islam. The court further directed the federation to add a provision to the effect that any act of blasphemy upon other prophets should also be punishable with death. The government was told to amend Section 295-C by April 30, 1991. The federation filed an appeal against the FSC verdict but it was withdrawn.
Fears that Section 295-C could be abused were expressed from the very outset, by Mr Ismail Qureshi himself. He wrote: “In my opinion, this Section 295-C needs to be further amended because it is necessary to bring it in accord with Quran and Sunnah (emphasis added). In the present form it could create ambiguity and legal complications.” He then emphasised that proof of intent was necessary to secure conviction (a point also made by the FSC) and that the sentence of death should be based on ‘tazkiat-ul-shahood’ (unimpeachable evidence).
To give effect to a part of the FSC verdict (relating to the deletion of the alternative punishment) the Nawaz Sharif government moved the Criminal Law (Third Amendment) Bill 1991. In its report on the bill the Senate Standing Committee, headed by PML-N leader Senator Zafarul Haq, expressed reservations about the definition of the offence. It said:
“The Standing Committee on Law and Justice after detailed deliberations decided to recommend the proposed deletion of ‘or imprisonment of life’ from Section 295-C of the Pakistan Penal Code. The members, however, observed that there was a need for a more specific definition of the offence under Section 295 PPC which the members were of the considered opinion was in the present form very generalised. The committee suggests that the matter may be referred to the Council of Islamic Ideology for suggesting a more specific definition of the offence falling under Section 295 PPC As well as for its opinion as to whether during the lifetime of the Holy Prophet (PBUH) or during the period of Khulafa-i-Rashideen or afterwards in any of the Muslim countries, what was the punishment awarded to the offenders for committing offence falling under Section 295 PPC” (Gazette Extraordinary, Feb 22, 1992).
It was only during the early days of Benazir Bhutto’s second government that the amendment bill was finally adopted. Again the government was in a hurry to push the bill because the house was about to be prorogued.
The fears of abuse of Section 295-C started coming true soon afterwards. A surge in blasphemy accusations, mostly against Christians and Ahmadis in the beginning, invited the comment that this law had generated offences that previously were rare.
Three unsavoury facts were established: a) in many cases the law was invoked to deal with a business rival, to grab property or to settle a personal score; b) that filing FIRs against vulnerable persons had been adopted as a lucrative business by quite a few clerics; and c) that the conservative elements subjected courts to unbearable strains by laying siege to them. Subsequently it was found that trial courts were generally afraid of acquitting even an illiterate child accused of writing blasphemous notes or a man about whom a certificate of his mental disorder was on record.
Further, it was found that a blasphemy accused was safe neither in prison nor at a police station, nor even outside the Lahore High Court. Those acquitted by high courts could not live in Pakistan and a judge who had acquitted a child was killed after retirement.
Over the last few years the use of Section 295-C has become a weapon in the hands of sectarian warlords. While cases against non-Muslim citizens are still filed, in a good number of cases the accused are Muslims, including prayer leaders. It is not that governments have not been uncomfortable with 295-C. The governments of Benazir Bhutto, Nawaz Sharif and Pervez Musharraf all toyed with the idea of making some procedural changes but to no effect. Any further dilly-dallying will only compound the government’s difficulties.
While the argument for a repeal of the admittedly flawed text of the law is unexceptionable, this may take a long time. What is urgently needed is a serious effort to ensure that only those who deliberately commit an offence are punished and courts are protected against mob threats.
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