Is personal courage enough?

Legal eye
The writer is a lawyer based in Islamabad.
In a state that has nurtured bigotry and vigilantism and a society that has lost its ability to distinguish right from wrong, murderers like Mumtaz Qadri are painted as heroes. In such state and society anyone who elects to criticise those inciting faith-inspired terror and calls for doling out justice to killers such as Qadri has to look over his shoulder continuously. So wide is our disconnect with reason, tolerance and humanity that a big segment of our society wants killing on the mere allegation of blasphemy to be complete justification for murder.
It is in this environment that the Supreme Court verdict in the Qadri case is not just sensible but heroic. The trial court judge who awarded death to Qadri (who had confessed to the premeditated killing of former governor Salmaan Taseer in full public view) had to leave Pakistan to stay alive. So palpable was the sense of fear in the Islamabad High Court when Qadri’s appeal was being heard that lawyers around the courtroom would speak in hushed tones with religious groups frothing with anger and chanting slogans in Qadri’s favour a stone’s throw away.
The SC’s verdict and observations of Justice Asif Saeed Khosa during the hearing are epochal not because they lay down new law but because they help wrestle back public space to discuss our flawed blasphemy law over which our bigoted brigade has established complete dominion. The verdict and the observations are groundbreaking because they manifest the ability of individual leaders within our state institutions to build an effective counter narrative against extremism raging within our society.
By declaring that Qadri is indeed a murderer and terrorist and by refusing to condone bigotry in Islam’s name or due to fear of personal safety, the SC has upheld the majesty of law and put to shame false arguments in favour of military courts and those claiming that terrorists go Scott-free because judges are timid. The SC’s verdict and observations are remarkable as they offer a welcome contrast to the deafening silence within the legislature and the executive over the issue of terrorising and killing fellow citizens on grounds of blasphemy.
While the detailed judgement (especially if authored by the erudite Justice Khosa) will expound the SC’s view on faith inspired honour killings, the limits of freedom to practice of one’s faith under our constitution and the crisscross between law and morality and the limits of each, there are a few important things that have been said in the observations from the bench reported by the media.
The first point made by the court is that criticising the law of blasphemy is not blasphemy. Such is the state of our intellectual decadence that the obvious now needs to be stated.
The right to speak freely doesn’t protect hate speech. Blasphemy falls within the category of hate speech. The basic argument against our blasphemy law then is not that blasphemous speech or actions ought to be decriminalised. But that the manner in which blasphemy law is drafted and the procedure set to prosecute the offense is susceptible to abuse – and is in fact abused. These loopholes must be plugged to disable bigots and vested interests from inciting violence in the name of blasphemy, to settle personal scores and persecute minorities.
But such has been the sway of bigots within our society that making the argument that Sections 295B and C of the Pakistan Penal Code (which are no divine text but manmade provisions) need to be reviewed to prevent their abuse is projected as blasphemy. The SC has stated the obvious: that criticising a law and the manner in which it is used is no blasphemy. But the court has made the point at a time when, notwithstanding Operation Zarb-e-Azb and NAP, no other state institution or leader still wishes to address the problem of abuse of blasphemy law.
The second point the court seems to have made is that it is not the subjective intent of a criminal that determines whether or not a crime falls within the category of terror, but whether the objective effect of crime is one of causing fear and panic within society.
Under our anti-terror law causing death for the purpose of advancing a religious, sectarian or ethnic cause is defined as terrorism. Does the TTP not claim to be pursuing divine commandments and killing our soldiers, citizens and children in the name of religion? Is Isis not claiming to wage jihad and fight states and citizens who have drifted from the true path prescribed by Islam as perceived or understood by it? Do all faith-inspired terror groups not claim the right to impose their view and understanding of religion on others by force?
How then are Qadri and others glorifying him and claiming the right to incite hate and violence in the name of religion distinguishable from those whom our state has finally come around to brand as terrorists? The current state of our society re Qadri-style terrorists and their patrons and apologists is no different from our erstwhile state re the TTP and its patrons and apologists. Immediately prior to the launch of Operation Zarb-e-Azb TTP (our misguided brethren, remember?) patrons and apologists dominated debates in media and the parliament.
The media thought it dangerous to run programmes without including the TTP’s viewpoint. We would hear TTP spokesmen, Lal Masjid’s Maulvi Abdul Aziz and leaders of other proscribed organisations lecture the state and citizens on religion, law and morality. And then a few men in khaki said enough. Suddenly the debate in the media was transformed. Political leaders opposed to terror found their voices. The apologists went back into their holes. And speaking up against terror in public was no longer the suicidal act it was in early 2014.
The point is that within our society the playing field between patrons of faith-inspired bigotry, terror and violence and those opposed to these vices is not levelled. It takes tremendous personal courage for individuals to take on our bigoted brigades whose existence depends on their ability to disable and usurp the right of citizens to ‘profess, practise and propagate’ their religion without fear. How can there be a level playing field so long as the response to expression of critical ideas against abuse of religion is threat of use of physical violence?
There will be no levelling of the field until the state takes a firm position against bigotry. The field became unlevelled in the first place because the state, under pressure from bigots, agreed to fetter the right of citizens to freedom to profess and practice their religion as they deem fit. It was due to the promulgation of flawed laws and the state’s criminal silence and inaction in the face of mobs led by bigots persecuting and terrorising fellow citizens that the scale within our society got tipped in favour of instigators of faith-based violence.
It is thus for the state to fix this imbalance, to amend the misguided laws and abusive procedures and unambiguously establish through its narrative and its actions that there will be no tolerance for those inciting or defending crime and violence in the name of religion. Without such comprehensive state policy and response, acts of individual courage will continue to be reduced to acts of personal sacrifice.
And the third important point the court seemed to be making was that judges sitting in courts of law are obliged to enforce the law and not their personal morality. This is a point that not just judges but all state institutions need to appreciate. Without an institutional culture wherein individual morality of state officials does not trump allegiance to the law, rule of men and their personal preferences will continue to masquerade as rule of law, and our state will remain engaged in the misconceived business of enforcing religion as opposed to facilitating it.
Email: sattar@post.harvard.edu