Blasphemy laws owe their expansion to the interpretation of the statutes by the courts
1. The Federal Shariat Court on the application in Muhammad Ismail Qureshi vs Pakistan, through Secretary, Law and Parliamentary Affaris sought a direction to cancel the option of life imprisonment and to make death sentence mandatory under the offence of offering insult to Prophet Muhammad (peace be upon him) under Section 295 C, PPC.
Maulana Saeeddudin Sherkoti, Maulana Salauddin Yousaf, Maulana Abdul Shakoor, Maulana Fazle Hadi, Maulana Abdul Falah, Maulana Subhan Mahmood, Mufti Ghulam Sarwar Qadri, Maulana Gohar Aman and Maulana Riazul Hassan Noori, were called to assist the court with the interpretation of the Islamic Fiqh on this issue. The learned juris-consults did not agree on a singular answer to the question. However, relying on a minority opinion, the court accepted the application and directed the federal government to amend the Pakistan Penal Code to make the death sentence the mandatory punishment through an act of parliament. The conclusive order stated; “In case, this is not done by 30th April, 1991 the words “or imprisonment for life” in Section 295-C, PPC shall cease to have effect on that date.” (PLD 1991 Federal Shariat Court, decided on October 30, 1990).
It is well known that the law in question has been a source of despicable crimes in the country and a huge embarrassment internationally. It has impacted the quality of life, liberty and wellbeing of religious minorities immensely and beyond their proportion in population. Yet, it did not cross anyone’s mind that religious minorities by virtue of their belief are different and cannot be subjected to the requirements of respect similar to believers of the faith. The court also ignored the fact that the point of view of the religious minorities was not even taken into account.
It goes without saying that the Federal Shariat Court (FSC) is a thoroughly discriminatory system that does not manifest a minimal equality for non-Muslim litigants. For instance, a non-Muslim lawyer is not allowed to represent a party in the FSC (Article 203 E (4), Constitution of Pakistan) while the verdicts of the FSC impact the minorities alike.
2. The court verdicts discussed here offer various jurisprudence and shades of negative and positive influences. However, the outcome of Zaheer-ud-din vs The State (1993 SCMR 1718) was perhaps the most regrettable and most consequential.
In this case, the Supreme Court turned down a petition against criminalisation of the use of Islamic terminology and epithets by the members of the Ahmadi community. It also vindicated the imposition of restriction on propagation of Ahmadi faith. On one hand the verdict validated the induction of new laws, Section 298 B and 298 C, in the PPC through Martial Law Ordinance XX of 1984 and on the other, it narrowed the scope of religious freedom and rights in the country over the following years. Its effect extended to all citizens, particularly the religious minorities.
The judgment held that the courts in Pakistan were allowed to determine what constitutes a particular “religion”. Moreover, that the state of Pakistan had a responsibility to protect Islam. The court also tried to find relevance of the aforementioned inductions in the law with property rights, or intellectual property for that matter. The judgment stated:
“For example, the Coca Cola Company will not permit anyone to sell, even a few ounces of his own product in his own bottles or other receptacle, marked Coca Cola, [...].“The principles involved are: do not deceive and do not violate the property rights of others”. (1993 SCMR 1718, p.1754).
The Supreme Court passed acquittal for Aasia Bibi’s case in October 2018 with remarks that the commission of the offence beyond reasonable doubt was not proven. Justice Khosa, in his note, said: “Blasphemy is a serious offence but the insult of the appellant’s religion and religious sensibilities by the complainant party and then mixing truth with falsehood in the name of the Holy Prophet Muhammad (peace be upon him) was also not short of being blasphemous.”
Although justice was upheld as far as the individual(s) concerned in this case, the verdict did not help create a better understanding of the lacuna in the content of the law itself, nor did it help deter the later abuse of the law.
1. In 1992, Chief Justice Afzal Zullah gave another historical judgment in Inayat Bibi vs Issac Nazir Ullah case (PLD 1992 SC 385) interpreting the Succession Act of 1925. He set aside the scope of customary practices by holding that Christian female heirs had the right to a share equal to male heirs.
2. On June 19, 2017, Justice Mansoor Ali Shah, then chief justice of Lahore High Court, issued a judgment on a matter related to the grounds for dissolution of marriage (divorce) in Christian marriage, which were part of the original enactment though annulled in 1981 during Gen Zia ul Haq’s rule. The court held elaborate hearings involving Christian legislators, church and civil society leaders. Finally, the court expanded on the enactment and jurisprudence in different countries and restored the grounds under Section 7 of the Divorce Act of 1869 governing Christian marriages.
3. A Supreme Court bench headed by Chief Justice Saqib Nisar provided relief in a long-standing issue which worried the Christian community throughout Pakistan.
Since the Christian family laws predated Pakistan those did not have inbuilt intersections with the new procedures and mechanisms with regards to registration of marriages, certification of marriages, etc.
The chief justice on a complaint regarding non-registration of Christian Marriages (Human Rights Case N. 32642 of 2018) held that the appointees of the churches governed by respective canon laws do not require a licence from the Ministry of Human Rights and Minorities Affairs. The court issued specific order to National Database and Registration Authority (NADRA) and the Union Councils throughout Pakistan to register Christian marriages and issue certificates in accordance with the law.
Among the best examples the verdicts in Darshan Masih vs State and Inayat Bibi’s cases were best practice of judicial interpretation of rights in the context. These verdicts broke away from tradition of treating the rights of minorities in the light of states’ preference of majority faith in part of the constitution.
Pakistan was not a party to many human rights treaties in 1992 therefore the judgment heavily relied on the fundamental rights regarding safeguards from slavery and inhuman treatment (Article 11) and right to dignity of human person (Article 14) in the constitution.
Nevertheless, in this stratum, the Supreme Court verdict of June 19, 2014 is a stand-alone example in the midst of a mixed trend. It took the concept of public interest litigation further to hard core fundamental rights: freedom of religion and belief. This was the only suo motu proceedings initiated by Chief Justice Tassaduq Hussain Jillani and left a mark on the subsequent judgments related to minorities’ rights.
The beauty of the judgment is that it provides an agenda for structural and systemic reforms not merely to the benefit of minorities but Pakistan as a whole. Perhaps that is the reason why structural hurdles have not allowed implementation on the judge. According to the Centre for Social Justice’s policy analysis the compliance on paper did not exceed 24 percent though six-and-a-half years have passed.
The writer is a researcher in human rights, public policy and law and a freelance columnist. He can be reached at [email protected]