JURIST Special Guest Columnist Saroop Ijaz, an advocate before the Lahore High Court in Pakistan, says that if Pakistan is to function as a democracy and - equally significantly - to address the threat of extremism both at home and abroad, its blasphemy laws should be repealed...
n June 2009 in the District Nankana in Punjab, Pakistan, Asia Bibi, a mother of five and farm hand, was asked to fetch water. She complied, but some of her fellow Muslim workers refused to drink the water as she - being a Christian - was considered "unclean." Apparently arguments ensued resulting in some coworkers complaining to a cleric that Bibi made derogatory comments about Prophet Muhammad. A mob came to her house, beating her and members of her family before she was rescued by the police. However, the police initiated an investigation about her remarks resulting in her arrest and prosecution under Section 295 C of the Pakistan Penal Code
. She spent more than a year in jail. In November 2010, she was sentenced to death by hanging. The sentence is yet to be carried out, and Bibi is filing an appeal.
The particular Blasphemy Law in question was introduced to the Pakistan Penal Code as Section 295 C in 1986. Under this Section, any person guilty of defiling the name of Holy Prophet Muhammad (PBUH) was made liable to suffer life imprisonment or death. In October 1990, the Federal Shariat Court (FSC) ruled that "the penalty for contempt of the Holy Prophet ... is death and nothing else" and directed the Government of Pakistan to effect the necessary legal changes.
The blasphemy laws can be found in the Pakistan Penal Code (PPC), Section XV, Articles 295-298. They address a number of offenses, including: defiling a place of worship, damaging the Qur'an, and apostasy. Those convicted face possible fines, life imprisonment, and even the death penalty. While several individuals have been sentenced to death for blasphemy, no one has yet been executed for the crime. A significant number, however, have been murdered after the accusation or during imprisonment after the conviction. On August 1, 2009 forty houses and a Church were set ablaze by a mob in the town of Gojra, Punjab. Nine Christians were burnt alive. The attacks were triggered by reports of desecration of the Qur'an. The local police had already registered a case under section 295 of the Pakistan Penal Code against three Christians for blasphemy. Hence a conviction or even an accusation under a blasphemy law provision is often a death sentence in itself.
The text of the blasphemy law is highly discriminatory and is prima facie in conflict with Article 25 of the Constitution of Pakistan, 1973. Article 25 mandates that--with certain exceptions for reasonable classifications--there will be no discrimination. The blasphemy laws are religion-specific and hence cannot be construed as reasonable classification. The blasphemy laws ignore the requirement of mens rea (intention) for the commission of offenses, hence making them strict liability offenses. The construction of these offenses further reveals that they ignore common law exceptions (insanity, minority, etc).
Pakistan formally ratified the International Covenant on Civil and Political Rights (ICCPR) in June 2010. Pakistan's blasphemy laws violate rights enshrined in the ICCPR and the Universal Declaration of Human Rights (UDHR). Blasphemy laws in Pakistan are in conflict with the UDHR to which Pakistan is a signatory, in particular with Article 7 (equality before the law and protection against discrimination), Article 19 (freedom of opinion and expression), and Article 18 (freedom of thought, conscience, and religion). Blasphemy laws in Pakistan are also in violation of Articles 2, 3, and 4 of the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion and Belief, which categorically prohibits religious discrimination. Blasphemy laws violate Articles 2 and 4 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities that seek to protect fundamental freedoms "without any form of discrimination" and the right to freely "profess and practice their own religion."
Article 19 of the Constitution of Pakistan 1973 states that every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press - subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security, or defense of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court or incitement to an offense. The clawback provision is unnecessarily elaborate and vague. There is a dearth of jurisprudence defining the concept of "glory of Islam," hence the fundamental freedom of speech can often be reduced to nullity with such sweeping clawback provisions. Article 20 lays down the freedom to profess religion and to manage religious institutions subject to law, public order, and morality.
The blasphemy provisions were an important component of a social engineering campaign devised and implemented by General Zia-ul-Haq during the Soviet invasion of Afghanistan during the 1980's. The ostensible objective was to Islamize the Pakistani state. Equally imperative was to tailor the social and legal system of the country to make the Mujahideen (loosely contemporary Taliban) appear to be indigenous freedom fighters. Along with blasphemy laws, the infamous discriminatory Hudood ordinance was promulgated, which sought to punish women - for fornication -who were raped and were unable to bring forth four male pious Muslims who were witnesses to the rape. The Sharia was sought to be implemented by undemocratically amending the Constitution. Under Article 203 D of the Constitution, the Federal Shariat Court was empowered to strike down any statutory law which may be deemed repugnant to the injunctions of Islam. The school curriculum was modified to be more Islamic. Female television anchors were ordained to cover their heads. Heavy censorship was exercised on both the print and electronic media to safeguard the glory of Islam.
The existence of these laws in Pakistan in practice ensures that there are no freedom of expression or religion safeguards in Pakistan. If Pakistan is to function as a democracy and - equally significantly - to address the threat of extremism both at home and abroad, these laws should be repealed.
Saroop Ijaz is an advocate practicing at the Lahore High Court (LHC) and can be reached at firstname.lastname@example.org.
Suggested citation: Saroop Ijaz, No Space for Democracy and Rule of Law: Blasphemy Laws in Pakistan, JURIST - Forum, Nov. 29, 2010, http://jurist.org/forum/2010/11/no-space-for-democracy-and-rule-of-law-blasphemy-laws-in-pakistan.php.