Writ in tatters

Pakistan has shut down, amid flames of bigotry and hate spreading far and wide. Why? Because our Supreme Court has found that there is no evidence to hang a poor Christian women for the offence of blasphemy (for which she was tried and convicted by a trial court and has already spent nine years in prison).

Rational minds might call this madness. But it makes perfect sense in Pakistan. Aasia Bibi was booked and convicted for blasphemy only because the lower tiers of the state couldn’t withstand the coercion now weighing down the highest echelons.

To an ordinary logical mind, the question of punishment for breach of law would only arise once facts establish that the act that attracts the penalty did transpire. In this particular case, the SC judgment (and especially Justice Asif Khosa’s note) lays bare the infirmities in the investigation and misreading of evidence by the trial court and high court: award of death penalty on the basis of testimony of unreliable witnesses presenting contradictory accounts, failure of investigators to determine the veracity of events narrated and efforts to dress up concocted facts.

There is nothing new in any of this. The abuse of the blasphemy law to settle scores (especially against minorities) and pursue nefarious agendas (such as land grabbing etc) is as old as this law, which was introduced by Ziaul Haq. It is inexplicable that in a state comprising over 95 percent Muslims (and religious minorities living in fear of the majority), blasphemy should become rampant. Belief in the Prophet Muhammad (pbuh) and the message he unveiled is the basis of the Muslim faith. How can Muslims or others in an overtly religious society be irreverent toward the Prophet (pbuh)?

The blasphemy law has become a source of power and a tool for persecution, which falls within clerics’ exclusive control. In all stories of abuse of the blasphemy law, the local cleric who rules on the fate of a fellow citizen and decides whether or not blasphemy charges are to be levelled emerges as the central figure. Anyone defending someone charged with blasphemy becomes a blasphemer himself and so does one who seeks proof or refuses to punish the accused. Once the allegation sticks it becomes a self-executing verdict to be implemented by a vigilante if not the state.

In this tragic story of persecution, that keeps repeating itself, everyone kicks the can down the road. When the cleric is riling up anger within the community, sensible folk don’t wish to be seen as complicit with the alleged blasphemer. The police readily register a case to ward off pressure and cool tempers without any effort to delve into facts and decipher the truth. The trial court surrenders to the transient emotion of the day in the hope that the high court will fix the error. The high court usually does, except where the matter stays in public eye.

The ill-fated Aasia Bibi is nothing more than collateral damage in this game of snakes and ladders. Those protesting the release of Aasia Bibi are not interested in unveiling the truth or in a fair determination of whether or not she is guilty of an offence under Section 295-C. They just don’t wish to share with court the power to sit in judgment over anyone charged with blasphemy. The boundaries of hate have continued to expand in Pakistan without any push back from state or society. Clerics see this verdict as state interference in their exclusive domain.

Previously there was a sense that a sub-inspector couldn’t withstand pressure from clerics and so an SP should investigate blasphemy charge. That trial courts can’t withstand coercion but high courts can – and so decisions rendered for extraneous reasons get corrected during appeal (even if the accused languishes in jail for years). But now the zone of coercion has expanded. Here we have the highest court releasing an accused due to absence of evidence of wrongdoing and the result is Pakistan being shut down by clerics who seek to hang someone to assert their power.

The prime minister has had to address the nation and reveal that the TLP has hurled death threats at SC judges and called for a coup against the army chief. By doing so, the TLP has crossed a red line. IK (who while in opposition had piggybacked on the TLP’s bigotry when it had last locked down Faizabad and used accusations of blasphemy against the PML-N to gain political support) thankfully stood up as PM, defended the SC and its right to decide judicial matters and expressed the state’s resolve to assert its writ against hooliganism and violence.

The three major fault-lines that hold our polity down have been constant: civil-military, extremist-moderate, and centre-province. As a historical matter, our civil-military imbalance has empowered unelected institutions at the expense of the elected. In such a situation, elected governments have found themselves cut to size by emboldened extremists. The Faizabad dharna was the latest such episode. The surrender deed the PML-N government was made to sign animated the TLP, whose showing during Election 2018 cost the PML-N many seats and helped a PTI victory.

All this we know. But we are at a crossroads again. The writ of the state is in tatters, notwithstanding the elected government, the judiciary and the military being on the same page. In order for a body politic to run, there needs to be a code that is known to all and habitually followed. That in Pakistan such code is different from the code prescribed by the constitution is a separate matter that can be addressed later. Pakistan runs on a de-facto system that has defined hierarchy between competing power elites. The TLP is shaking up that system.

The use of the contempt law has been on the rise recently. We have had members of parliament disqualified for speeches our worthy judges found disenchanting. Most of the contempt literature in Pakistan relates to scandalising courts when its focus ought to be on obstruction of justice. During the Faizabad dharna, the TLP was spewing expletives at the SC, but no one took cognizance. After the Aasia Bibi verdict, the TLP leadership has declared SC judges liable to be killed, just like local clerics issue fatwas against those whimsically judged as blasphemers.

No justice system can survive such brazen threats. This is what obstruction of justice looks like. If the senior-most judges of our highest court aren’t immune to intimidation and threats by bigots, which trial court will dare release a blasphemy accused? We have had PMs disqualified and removed from office by orders issued by the SC. The orders have been criticised but never disregarded. In the power hierarchy within our de-facto system, the judiciary has remained above the executive and religious elites below the executive. The TLP has just challenged that scheme.

We have had elected governments shunned for interfering in affairs the real power structure expects them to keep away from . We have two former PMs facing proceedings, accusing them of treason for giving interviews that allegedly threatened national security. We have had a high court judge removed from office for making allegations against a security institution. As a rule of law proponent, one can be critical of our notion of national security and our civil-military imbalance. But under the existing de-facto order there has been no confusion over redlines not to be crossed. The TLP has just challenged that scheme.

Thus, the TLP leadership isn’t just guilty of contempt, of calling for sedition against the government and instigating mutiny within the army. It has also challenged the unwritten de-facto system of power that is habitually followed. The last time this happened was when the TTP challenged the state’s monopoly over violence. After much procrastination, dithering and peace accords followed by military ops and finally the devastating APS, the military decided that it was time to liquidate the TTP. The delay cost us dearly.

When the Faizabad surrender deed was forced upon the PML-N government, many had cautioned that emboldening non-state actors in the heart of Pakistan to achieve political ends was a mistake. The belief that purveyors of hate can be nurtured and controlled for use is fundamentally flawed and has already blown up in our faces. The TLP is now claiming its two pounds of flesh. Our de-jure system we can worry about tomorrow. It is the de facto being challenged today.

Endnote: It takes serious moral courage and conviction to do the right thing at the risk of one’s life and personal safety. One is in awe of the SC judges and of Aasia Bibi’s lawyer, Saif-ul-Malook, for making the choices they have. The state must not let them down or place others in a similar conundrum.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu