November Issue 2015

Between 1947 and 1986, seven cases pertaining to blasphemy charges were reported, with 14 people charged. Over the next 29 years, both the cases and the number of people charged have increased over a hundredfold. It was in 1986 that Section 295-C was added to the Pakistan Penal Code (PPC). Even though no one has been judicially executed on blasphemy charges, over 50 accused have been murdered before the completion of their trials.

While PPC’s sections 295 and 295-A are secular in nature, in that they apply equally to all religions, sections 295-B (added in 1982) and 295-C criminalise the desecration of Islamic scriptures and disrespect of Islamic figures, with no corresponding clauses to safeguard other religions or religious personalities.

Section 295-B of the PPC reads: “Whoever wilfully defiles, damages or desecrates a copy of the Holy Quran or an extract therefrom or uses it in any derogatory manner or for any unlawful purpose, shall be punishable with imprisonment for life.”

Meanwhile, according to Section 295-C, “Whoever by words, either spoken or written, or by visible representation or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him), shall be punished with death, or imprisonment for life, and shall also be liable to fine.”

The option of life imprisonment was replaced with a mandatory death penalty in the year 1990, as punishment for breaching PPC’s Section 295-C.

Around 647 people were charged with blasphemy from 1986 to 2005. Almost the same number (630) of people were charged in the next five years alone, as religious extremism in Pakistan precipitously accelerated in synchrony with the Taliban insurgency. The year 2011 proved to be the turning point, as the blasphemy law’s extrajudicial abuse reached its nadir.

In November 2010, Asia Noreen — popularly known as Asia Bibi — a Christian mother of five, was sentenced to death over blasphemy. She was the first woman to be convicted for blasphemy in Pakistan, after a court in Punjab’s Nankana district gave the verdict against her. Asia Bibi was accused of ‘blasphemous remarks’ in June 2009, as a disagreement over her touching a bowl of drinking water, “despite being a Christian,” evolved into a heated exchange, with a group of Muslim women labourers going to a local cleric who filed a case against her.

In January 2011, the then governor of Punjab Salmaan Taseer was murdered by his security guard. Taseer had publically supported Asia Bibi, claiming that she had been falsely accused of blasphemy. Taseer had also criticised the blasphemy law in its existing form, claiming that its verbiage left it open to abuse. Taseer’s bodyguard Mumtaz Qadri, then a Punjab Police Elite Force commando, fired 27 bullets inside the governor’s chest as he got into his car at Islamabad’s Kohsar Market.

On October 1, 2011 an anti-terrorism court (ATC) issued Qadri two death sentences, one each for murder and terrorism, under the PPC Section 302 and the Anti-Terrorism Act’s (ATA) Section 7 respectively. Following the APS massacre on December 16, 2014 and the ensuing lifting of the moratorium on the death penalty by the federal government, Qadri’s defence counsel — which often outnumbers police presence in courtrooms and includes a former chief justice and high court judges — decided to appeal against the ATC’s verdict.

In March this year, the Islamabad High Court (IHC) upheld Qadri’s death penalty under PPC Section 302, over murder, but overturned the terrorism charges. This was despite ATA’s
Article 6 including in terrorism’s definition “the use or threat of action where the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause,” and  “(creating) a serious risk to safety of [the] public or a section of the public…”

Qadri has maintained that he killed Taseer over his criticism of the blasphemy law, and that it was a “warning” for others who might want to consider reforming it. This meant that IHC’s overturning of the terrorism charge blatantly contradicted the ATA. The federal government decided to challenge the IHC’s verdict against terrorism charges in the Supreme Court (SC), while Qadri’s defence counsel appealed against IHC upholding the death penalty over charges of murder.

Last month the SC upheld Qadri’s death penalty and reinstated the charges of terrorism. The verdict on terrorism was crucial, not only because it ensures that Qadri’s defence counsel doesn’t seek a way out by paying blood money, but also because  the Pakistan Protection Ordinance (PPO) criminalises the glorification of terrorists. Furthermore, the terrorism charge ensures that any attacks on minority faiths committed as religious duty, would be legally considered acts of terrorism.

The SC’s three-member bench, spearheaded by Justice Asif Saeed Khosa, which also included Justice Dost Muhammad Khan and Justice Mushir Alam, not only issued a historic verdict, which should bolster the federal government’s ongoing National Action Plan (NAP), it could also herald the dawn of a much needed reform in Pakistan’s blasphemy law. Among the many pivotal statements by the SC bench, arguably the most crucial one was Justics Khosa’s assertion that “criticising a law does not amount to blasphemy.”

With the apex court reiterating the obvious, that critique of the blasphemy law isn’t a sacrilegious offence, reconsidering and reforming PPC’s blasphemy clauses becomes a distinct possibility. Not only is critique the foundation of any reform, legislative overhaul pertaining to a law that’s deemed synonymous with ‘Islam’s sanctity’ needs verdicts maintaining that any potential modification in Section 295 isn’t an ‘attack on Islam.’

According to Pew Research, 22 per cent of global countries and territories have some form of blasphemy laws. These include the likes of Australia, Canada, Denmark, Germany, Italy, Norway, Singapore and many others considered to be a part of the ‘progressive world.’ And yet rarely do we hear about killings (judicial or extrajudicial) over blasphemy charges in the overwhelming majority of the almost quarter of the world where some form of laws pertaining to blasphemy exist.

There are 14 countries in the world where some form of blasphemy, which includes apostasy, is punishable by death. In addition to Pakistan, this list of countries — all of whom are Muslim majority — includes Afghanistan, Iran, Kuwait, Malaysia, the Maldives, Mauritania, Nigeria, Qatar, Saudi Arabia, Somalia, Sudan, United Arab Emirates and Yemen.

Even so, what makes ‘blasphemy’ fatal in these countries isn’t Islam, or the fact that they’re Muslim majority states — many Muslim countries like Bosnia and Albania don’t even consider ‘blasphemy’ a crime. What’s common in these 14 countries, in addition to the capital punishment for blasphemy, is jurisprudence that shields only one religion. In Pakistan and Malaysia, where originally secular blasphemy laws had existed, later modifications elevated the sanctity of one religion over others.

Articles 295-298A of the Malaysian Penal Code criminalise ‘offences against religion’, with penalties ranging from up to three years in jail or a fine of up to $1,000. But the state governments of Kelantan and Terengganu outlawed apostasy from Islam as a capital offense, via laws passed in 1993 and 2002, respectively.

Even so, there’s rarely any news of religiously motivated mobs abusing the blasphemy law to attack people in any of these countries other than Pakistan. This is because unlike totalitarian states like Saudi Arabia, Iran or Qatar, where judicial rulings are completely based on Sharia law, Pakistan oxymoronically vies to incorporate ideals of western democracy and Islamic totalitarianism.

This results in Pakistan’s Constitution simultaneously guarding “freedom of life and liberty… and the right to profess, practice and propagate his religion” while simultaneously excommunicating Ahmadis, and making blasphemy a capital offence. The right to self-identify, which Ahmadis and apostates are denied, with both groups of people equally under the blasphemy gun, is a breach of freedom of life and liberty. Respect for ideas, or lack thereof, similarly comes under freedom of conscience, which the civilised world has long considered a basic human right.

According to Article 18 of the United Nations General Assembly’s Universal Declaration of Human Rights, of which Pakistan is a signatory, “everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

PPC’s Section 295, introduced in 1860 as a part of the Indian Penal Code (IPC), was adopted by Pakistan following Partition. It counters ‘injuring or defiling a place of worship, with intent to insult the religion of any class.’ Section 295-A, which deals with ‘deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs,’ was added in the IPC after Ilam Din murdered Rajpal in 1927, with the British fearing communal riots.

As highlighted above, the reason why sections 295 and 295-A, which to this day exist in identical form in both PPC and IPC, have collectively done limited damage — despite the latter’s loose phrasing leaving it open to curtailing freedom of speech, religion or conscience — is because these sections apply equally to all religions.

Mob violence, more often than not, stems for supremacism which is safeguarded by law, even though the penal code might never explicitly ask anyone to take law in their own hands. The surge of Hindu mobs killing Muslims in Maharashtra and Haryana, the states where beef consumption was banned giving orthodox Hindu sensibilities preference over Muslim human rights, is another pertinent case in point.

Just like the state legislation in Maharashtra and Haryana establishes Hindu supremacism, Pakistan’s Constitution implicitly encourages ‘mob justice’ by encoding Muslim supremacy in the PPC. It is little wonder that Qadri’s counsel repeatedly claimed in its defence that it is the “religious obligation of every Muslim to kill a blasphemer.” These included high court and Supreme Court judges, who not only seemed oblivious to their client’s lack of authority over giving verdicts on ‘blasphemy’ but also claimed that they are performing their ‘religious duty’ by defending Taseer’s murderer.

It’s not only with regard to other religions that the Pakistani Constitution establishes Muslim supremacism, it even distinguishes better Muslims as those who have more theological adherence. This is precisely why 51 per cent of the 647 accused for blasphemy between 1986 and 2005 were Muslims, targeted more often than not, by those claiming to be ‘more Muslim.’

In an ideal world, where the UN’s universal human rights prevail there would be no blasphemy law. But in the real world, Pakistan completely repealing its blasphemy law is both quixotic and unnecessary.

The reform that Pakistan’s blasphemy law needs is the removal of Islam-specific PPC clauses. In the long run Pakistan should endeavour to secularise the Constitution, wherein the state has no say in religious matters, including defining piety, political prowess or ‘Muslim-ness’ through the theological lens. The SC’s verdict against Qadri, and Justice Khosa’s statement on criticism of the blasphemy law, hopefully has initiated the long and ominous march towards legislative equality in Pakistan.

This article was originally published in Newsline’s November 2015 issue.