Tuesday May 21, 2024

The blasphemy laws

By Peter Jacob
February 06, 2016

Maulana Muhammad Khan Sherani, the chairperson of the Council of Islamic Ideology, has offered to look into the possible doctrinal inconsistencies in the blasphemy laws, “should the government refer” this matter to advisory jurisdiction of the council.

The maulana’s posture affirms the position Justice Asif Saeed Khosa took in November 2015 that ruled out that discussion on the law amounted to blasphemy. Justice Khosa also emphasised the “manmade” nature of the law during the hearing on the Mumtaz Qadri case.

A day before Maulana Sherani’s statement, Justice Ibadurehman Lodhi of the Lahore High Court passed an acquittal order for Ghulam Ali Asghar, who had been incarcerated for four years under the blasphemy law. In his order, the honourable justice quoted two previous judgements that cautioned the executive branch about registering blasphemy cases based on flimsy allegations and unfair trials.

Among the judgements quoted was Justice Ali Nawaz Chowhan’s, who heads the National Commission on Human Rights now; he had even provided guidelines for the police to deal with blasphemy charges. The judgement was passed in 2002, largely unimplemented to date.

Moreover, the two judicial enquiries conducted after the mass violence cases of Shantinagar (1997) and Gojra (2009) entailed incredibly practical recommendations by Justice Tanvir Ahmad Khan and Justice Iqbal Hameed Uddin, respectively. These inquiry reports had recommended introducing legislative review and amendments, educational activities as well as institutional reforms to address the abuse of blasphemy laws.

The higher and superior judiciaries, despite their limitations, have been consistently trying to remedy the injustices of prejudiced prosecution under blasphemy charges. Rimsha Masih, Shama and Shahzad and Dr Younis Shaikh are a few examples. Hence the verdicts in individual cases and those of collective responsibility provide a sufficient basis for action on the part of the executive and legislature if they wanted to resolve the issue of abuse of law and religion.

A research carried out recently by the Legal Aid Society Karachi showed that: “The majority of blasphemy cases were based on false accusations stemming from property issues or other personal or family vendettas rather than genuine instances of blasphemy and they inevitably lead to mob violence against the entire community” .

Another research by the International Commission of Jurists in November 2015 showed that 15 out of 25 acquittals under Section 295-C, were because the high court found the charges to be: “fabricated complaints, malice or personal vendettas”, nine were acquitted because of procedural flaws in prosecution and investigation, and two on grounds of insanity.

Unfortunately these judicial pronouncements cannot prevent Mohammad Anwar’s hand being chopped off or Salmaan Taseer from being murdered. The life and liberty of thousands of citizens has been ruined and properties worth billions have been burnt. Mere allegations can trigger mob violence.

These fissures in governance are largely formed by the existence and use of blasphemy laws. Any jurist worth his/her training would be able to tell that the consequences of introducing these laws were predetermined, if not premeditated.

Sections 295- B and C, and 298-A, inducted in the Pakistan Penal Code between 1980 and 1986, presuppose that religious insult is already defined. Hence criminalisation of certain acts, without defining the limits of religion-specific insult, translates into presumption of guilt. Mere use of the law entails miscarriage of justice, because the said laws merely speak of means or forms of a possible insult but do not determine its boundaries.

Moreover, the law is blind to the universal exceptions for fixing criminal liability on grounds of maturity, and comprehension of the consequences of an action, mental condition, existence of provocation and having a different belief, which turns the law into a wide net for victimising the innocent.

The fundamental principle of fixing penalty, proportional to the extent of injury caused, is grossly overlooked. Conversely, lofty punishments intensify the abuse of law.

Therefore, Maulana Sherani should be thanked for his goodwill. However, the issue of blasphemy has become a legal rather than a religious issue and is, thus, beyond the council’s jurisdiction. Religious arguments may be useful to enlighten the public, for which religious scholars such as Javed Ghamdi, Dr Khalid Zaheer and Dr Khalid Masood have taken a strong position. Scholarly research by Arafat Mazhar provides ample insights about how the concept of blasphemy has been manipulated in the past – to the disadvantage of Muslim societies.

Parliament needs to take this issue seriously. The fight against hate speech becomes unwinnable in the wake of technically flawed blasphemy laws.

An obvious way forward lies in implementing the recommendations of the Gojra judicial inquiry by a cross-section implementation committee. Implementing these measures, without conjecture, is a legal responsibility of the government.

The government will do this country a great service if they can commission an objective study of the abuse of the blasphemy laws, and make it public as soon as possible.