Glass half full?

Legal eye

The writer is a lawyer based in
Islamabad.

A large chunk of our public opinion had sympathy for what Mumtaz Qadri did: the brazen murder of Salmaan Taseer, the governor of Punjab with a liberal lifestyle, over his reasoned critique of our blasphemy law.

While few were willing to show up for Taseer’s funeral even with his party in power, Qadris’ was one of the largest funerals Pakistan saw even as he was convicted for murder and terrorism and executed. Is there reason for optimism just because he was hanged by a state otherwise accused of being complicit in nurturing bigotry?

How does one make sense of the contradictions that bedevil us? Qadri was awarded the death penalty by an anti-terror court. But the judge had to leave the country in the interest of his safety. Hordes of Qadri supporters would show up and chant slogans outside the courts when his appeals were being heard. While the high court held that the charge of terror was unjustified, it maintained the death penalty for murder. The Supreme Court through a lucid and compelling judgement held that he was liable to be executed for murder and terror.

Before the civilian appellate courts took up the Qadri murder case, the majority opinion was that the matter would linger for years and not be heard. While it was being heard few thought that judges would dare to uphold the death sentence given how polarising and emotive the issue was. When the high court upheld the death sentence without creating wriggle room for Qadri, many thought the Taseer family might be unable to withstand the pressure to accept blood money (especially with Shahbaz Taseer abducted) and pardon Qadri.

With creation of military courts backed by the argument that civilian judges are too timid to pass bold sentences in terror cases, cynics wondered what might become of the SC appeal. The apex court plainly held that a guard on duty killing someone under his watch is not just murder (and in this case terrorism) but also treachery. Many then thought that the PML-N and the president might succumb to rightwing pressure to pardon Qadri. That didn’t happen either. The state did the right thing. But society’s response then showed who we have become. And it is scary.

‘Dushman maray te khushi na kariyay, sajna ve mar jaana ai’, Mian Muhammad Bakhsh had said (Don’t rejoice over the enemy’s death, the beloved shall die too). And Qadri was no enemy. He epitomised the tortured produce of an obscurantist and intolerant society wherein bigotry and extremism has been cultivated by deliberate state policies. He was the manifestation of a mindset that lionises killing of others in the name of faith, tradition and honour. He projected the face of a society so consumed by regressive values that it can no longer tell right from wrong.

The polarisation over the Qadri case is a reflection of genuine disagreement over a host of issues: (i) the role of religion in our state and society and whether religion ought to facilitated or enforced; (ii) the right of some within society to force their views on matters of faith on others and the resulting balance between individual and collective rights; and (iii) the desirable role of our state as a cooperative member of global community within the existing nation state system or as a revisionist power conquering others and spreading religion by force.

The Qadri case also highlights the extent and limits of state power. The fact that Qadri was executed despite staunchly-held opinion by large sections of our society convinced of his sainthood reflects the extent of state power to get things done when it so wishes. The outburst of anger and grief amongst his supporters who travelled from far and wide to participate in his last rites exposes the limits of deterrence created by threat of the death penalty in dealing with ideologically motivated human weapons.

There has been some discussion about the hypocrisy of liberals who oppose death penalty but are extolling Qadri’s execution. Liberal thought isn’t conflicted in theory. Those opposed to the death penalty primarily do so for they believe the state has no right to take life as punishment no matter what the crime, that even the best penal systems make mistakes and death once inflicted can’t be undone, and that there is no empirical basis to argue that death penalty is an effective deterrent against violent crime.

The other liberal value is fairness of rule of law – ie like cases must be treated alike. It is perfectly logical to hold that the state must abolish death penalty for all crimes, including terror, rape and honour killings. But so long as it doesn’t, it can’t pick and choose between who to hang and who not to in view of public opinion. So long as death remains a punishment and neither the process that produces the conviction nor the conviction itself are infirm, the state must not capitulate and let a murderer off the hook for fear of backlash.

We helped Raymond Davis go scot-free after payment of blood money to the victims’ heirs. That exposed the lack of integrity that mars our criminal justice system. But the Davis example is an argument in favour of closing loopholes that allow the powerful to get away with murder as opposed to employing the same in case of Qadri. Two wrongs don’t make a right. The other legal comparison being made by Qadri supporters with the Aasia Bibi case is equally misconceived.

Qadri proudly admitted that he killed Governor Taseer in cold blood. His defence wasn’t denial of his act or absence of intent to kill. But that he believed he was under a religious and moral duty to kill Taseer who, he believed, had committed blasphemy, and thus his act was not punishable. Justice Khosa stated the obvious in the SC judgement rejecting Qadri’s appeal: “The law of the land does not permit an individual to arrogate unto himself the roles of complainant, prosecutor, judge and executioner.”

The sympathy and support for Qadri is rooted in an emotional argument: anyone who proves that his loyalty to the Prophet (pbuh) is such that he is even willing to claim another life motivated by such loyalty in disregard for consequences for his own must not be punished in a Muslim country. A subset of this argument is that anyone seeking an amendment in the blasphemy law (as framed by the state and included in the Pakistan Penal Code), on the basis that the law is liable to be abused, is by necessary implication committing blasphemy.

Aasia Bibi’s case isn’t that she committed blasphemy and we should be ok with it. Her case is that the charges of blasphemy brought against her, to settle scores in a local spat, are false. The concern over her conviction springs from the history of persecution of minorities in Pakistan and abuse of blasphemy law for such purpose. How do you afford fair trial to those actually accused of blasphemy in a society where anyone demanding fair trial for those accused of blasphemy or even seeking review of the law to prevent its abuse is called a blasphemer?

The SC acknowledged this problem in the Qadri appeal: “It is an unfortunate fact which cannot be disputed that in many cases registered in respect of the offence of blasphemy, false allegations are levelled for extraneous purposes and in the absence of adequate safeguards against misapplication or misuse of such law by motivated persons, persons falsely accused of commission of that offense suffer beyond proportion or repair…Commission of blasphemy is abhorrent and immoral besides being a manifestation of intolerance but false allegation…is equally detestable…”

We have created an ugly society where bigotry consumes the public space essential for reason, tolerance and peaceful coexistence. The battle now is between those who wish to preserve and entrench this ugliness and those who seek change. If the state wishes change-mongers to persevere against the odds, it will need to act unambiguously against factories of ideological hate without further delay.

Email: sattar@post.harvard.edu