Defending The Indefensible

Defending The Indefensible 

A few days back, I co-authored a set of proposals in these pages for making the National Action Plan (NAP) effective. For the first time, a framework has been constructed by the civil-military leadership to check extremism that went above and beyond the usual lip service. The NAP, despite its many flaws, is a clear acknowledgement of there being a wrong that needs to be righted.

This wrong that manifests itself in the growing extremism in the society, finds its roots in the 2^nd Amendment to the Pakistani Constitution in 1974 that excommunicated the Ahmedi community. This, being the first instance of state’s interference in matters of faith to appease certain puritanical quarters. This overt policy of appeasement continued unabated vis-a- vis the Hudood Ordinance and section 295-C Pakistan Penal Code (PPC) i.e. the blasphemy laws stipulating mandatory death penalty for both muslims and non-muslims.

More recently the appeasement and tolerance shown by the state towards the puritans can be gauged from the fact that Mumtaz Qadri did not deny killing Governor Taseer, in fact, he openly admitted to the crime. Yet here we are, closing on five years since the murder, and murderer remains convicted, yet not punished.

It took the courts of the country, in place of the executive, to put its foot down on the metaphorical tail of the snake to prevent it from slithering away and fatally poisoning more innocent lives. Yet, more essential than executing Qadri the man, is the elimination of “Qadri the ideology”. This calls for revisiting the very laws that led the hate monger to wear the executioner’s cloak.

Judicial Development of the Mumtaz Qadri Case

Mumtaz Qadri, a former commando of Punjab Police’s Elite Force, confessed to shooting the Governor in Islamabad on 4^th January, 2011 over Shaheed Taseer’s vocal opposition to blasphemy laws of the country.

(SC in its historic ruling recently stated that criticizing the blasphemy law is not the same as committing blasphemy)

It was the country’s darkest hour when the assassin was hailed as a ‘warrior of Islam’ by the very custodians of law and justice. Those who had lined up to defend the indefensible included a former chief justice and a judge of the high court.

Despite it being an open and shut case, the judge of the Anti-Terrorism Court (ATC) who convicted Qadri on 1^st October, 2011 faced death threats at the hands of the religious fanatics and reportedly fled the country with his family, as the state could not guarantee their security.

Qadri’s counsels then challenged the ATC’s decision vis-a-vis two applications. The first called for quashing Qadri’s death sentence while the second asked for Section 7 of the ATA (declaring Qadri’s act as constituting terrorism) to be dropped from the sentencing.

 Islamabad High Court Judgment 

The Islamabad High Court judgment upheld Qadri’s murder conviction, but in setting aside the Section 7 anti-terror conviction exemplified the rot that has set in our society.

The Punjab governor was murdered to try and suppress for all times any debate about the controversial applications of the country’s blasphemy laws. In assassinating the governor, Qadri attempted to intimidate and silence the country itself.

Had the so-called ‘Qadri exception’ that the Islamabad High Court endorsed been allowed to stand, defence teams around the country would have invoked them in the case of sectarian attacks and the murder of non-Muslims.

The IHC’s perplexing verdict blatantly contradicted the Anti-Terrorism Act (ATA) Article 6 2(i), which clearly highlights creation of “a serious risk to safety of [the] public or a section of the public, or… (frightening) the general public,” as an act of terrorism. More critically though, Article 6 1(c) also includes in terrorism’s definition, “the use or threat of action where the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause.”

What act could be more intended towards “advancing a religious cause” and “frightening sections of the public” than killing someone and then touting the act as “a lesson for all the apostates, as they finally have to meet the same fate” – as Qadri exclaimed after Taseer’s murder?

Not only did this arbitrary absolution of terrorism charge create a window for Qadri’s counsel to settle the case through blood money – which isn’t possible for convicted terrorists – in the bigger scheme of things, the IHC’s verdict would’ve meant that attacks designed to target Shia, Ahmadis and non-Muslim minorities would’ve been peddled by the zealous supporters as not being acts of terrorism. That would’ve been as close as it is judicially possible to legalise terrorism.

Qadri’s counsels, emboldened by this brazen shown of support, decided to challenge his death penalty before the Supreme Court.

Supreme Court Ruling

Thankfully, common sense prevailed as the brave justices of Supreme Court led by Justice Asif Saeed Khosa not only turned down the plea against Qadri’s death sentence, it also crucially accepted the government’s appeal against IHC dropping the terrorism charge. Mumtaz Qadri is now officially a terrorist on the verge of being judicially executed.

The verdict is a bittersweet source of relief to Taseer’s widow, Aamna Taseer. Her husband, she says, was a champion of the liberal, tolerant ideals of Pakistan’s founder, Muhammad Ali Jinnah. The Supreme Court ruling, she says, represents a victory for the principles her husband was fighting for.

The landmark ruling has vindicated the late Punjab governor Salman Taseer and other courageous people who lost their lives for calling for reform of the blasphemy law.

Only a presidential clemency can now save Mumtaz Qadri from the gallows. However, the black law that became the source of this senseless violence very much remains part of our justice system.

 The Blasphemy Law

In the aftermath of the Qadri debacle, the question that the judiciary and the legislators need to consider is that about a quarter of the countries around the world have blasphemy laws – including Germany, Canada and Australia – why is it that Pakistan’s law remains open to abuse more so than almost any other country?

It is because Pakistan’s Constitution and Penal Code, simultaneously flirts with theocracy and Western democracy in equipoise proportions. This gives us oxymoronic jurisprudence which simultaneously ‘guarantees’ ‘right to life and liberty’ and ‘freedom to profess religion’, while criminalising crimes of conscience – blasphemy, and by correlation apostasy – with death. The Pakistan Penal Code’s Sections 295-B and 295-C are the final nails in the coffin of pluralism in the country, with the Islam-specific clauses laying the ground for mob justice.

While Section 295, from the Original Indian Penal code of 1860, and 295-A, added in 1927 after the Ilam Din fiasco, are secular in nature – applicable to all religions identically – 295-B and 295-C added by the Zia regime in 1986, make Islamic scriptures and religious figures worthier of esteem. This naturally aggravates Muslim supremacism, leaving moderate Muslims – like Salman Taseer – and non-Muslims – like Aasia Bibi – at the mercy of Islamic fanaticism. It is no coincidence that there were only 14 cases filed for blasphemy between 1947 and 1986, which have increased nearly a 100 times over the past 29 years.

Dawn estimates that from 1986 to 2010, 1,274 people have been charged under the blasphemy law. At least 57 people have been killed in cases linked to blasphemy since 1987.

Most of the victims of blasphemy law are poor. And many are non-Muslims. Often they are killed to settle personal scores. However, the lives of even lawmakers, politicians and human rights activists advocating for reforming the law are threatened.

Two months after Taseer’s murder, the minister for minorities Shahbaz Bhatti, a Christian, was killed for demanding changes to the blasphemy law. Last year, gunmen killed Rashid Rehman, a prominent human rights lawyer for defending a young professor in Multan, Junaid Hafeez, accused of blasphemy. Rehman received death threats from his own community of lawyers in the courtroom in full view of the judge. His killers are still believed to be absconding.

Such had been the fear of reprisal that a media report quoted Gen Kayani, the army chief at the time of Salman Taseer’s murder, telling a group of Western ambassadors that he could not publicly condemn Qadri because too many of his soldiers sympathised with the killer owing to the prevalent narrative.

National Narrative 

The religious narrative in the country holds that blasphemy is an unpardonable offence and our law in letter and in its judicial interpretation prescribes a hudd punishment for a single offense of blasphemy.

However, according to the research conducted by Engage Pakistan (engagepakistan.com), the punishment for committing blasphemy is not in fact rooted in “hudd” (divinely ordained), but that it is a pardonable offence based on the following sources/landmark deliberations on the matter:

1. Radd al-Muhtar ala ad-Dur al-Mukhtar (Fatawa-e-Shami) by Ibn Abidin,
2. Fatawa-e-Alamgiriyah by Parliament in 1987,
3. Al Shifa by Qazi Iyyaz,
4. Sharh Mukhtasar by Al Tahawi,
5. Mukhtasar Ikhtilaf al Fuqaha by Abu Bakr al-Jassas al-Razi in the determining Federal Shariat Court case 1991.

Texts such as Fatawa e Shami and Fatawa e Alamgiriyah, which are the most widely referenced to settle any matter of Islamic Jurisprudence, also explicitly prohibit the killing of a non-Muslim as punishment for blasphemy.

Moreover, the founder of Hanafi teachings, the most prevalent school of thought in Pakistan, Abu Hanifa has already been established that under Islamic jurisprudence ‘blasphemers who ask for a pardon would be spared the death penalty’.

Nonetheless, the wording of the draconian law introduced by General Zia clause 295-C PPC makes no mention of this permissibility of pardoning a blasphemer.

295-C – Use of derogatory remarks, etc., in respect of the Holy Prophet:

“Whoever by words, either spoken or written, or by visible representation or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine”

 

Not content even with this draconian version of the law, Federal Shariat Court in its 1991 judgment made the option of life imprisonment defunct.

Proposed Legislative Reforms

More than two decades later, the legislators have belatedly sensed the change of mood in the country following the supreme court ruling and it is reported that a three-pronged reform of the blasphemy law is being introduced to help curb abuses like vigilantism.

A draft bill would soon be tabled in the Parliament that proposes to introduce:

1. Harsh penalties for false blasphemy accusations,
2. Require proof of intention to blaspheme (mens rea),
3. Make it clear only the state can carry out punishment.

Recommendations 

However, the amendments proposed with regards to the widespread ‘abuse’ of the current blasphemy law in place, more specifically Section 295-C PPC need to move beyond procedural deliberations and look to the substance and jurisprudence needed to reform the law. Mere efforts made to address the  “implementation” of punishment under 295-C would prove to be redundant in the long run. The explicitly meted out punishment for the offence of blasphemy ‘exclusive to Muslims’ has been erroneously misattributed to apply to non-Muslims as well.  Above all, the Islamic jurisprudence is very clear on the single act of blasphemy being a pardonable offense.

It is, therefore, imperative that debate upon the substance of the law be encouraged, wherein its glaring flaws as per its blanket implementation are addressed. Nonetheless, any debate on religious laws is akin to the ‘Sword of Damocles’ that threatens to fall on the voices of tolerance and pluralism.

Challenges

The metaphorical sword did fall after Malik Ishaq’s killing, when the extremists struck back swiftly, killing Shuja Khanzada, home minister Punjab, with a bomb.

Perhaps the ruling by the Supreme Court will help break that sense of fear and open the way for an enlightened debate on the blasphemy law. The judiciary has resoundingly taken up the gauntlet that the creation of military courts had thrown at it. The judges have done their job of restoring public faith in the law, and now it is up to the government to exorcise the demon.

Taking Qadri’s case to its logical conclusion would signal Pakistan’s clear intent to bid its volatile recent past adieu. Perhaps the next step to recovering the nation could be to revisit the conviction of Aasia Bibi.

Conclusion

This rising religious intolerance and persecution of minorities are the major sources of terrorism tearing apart the social fabric of the country. While hanging Qadri would herald a new dawn for Pakistan’s stance on terrorism, without the eradication of the Islam-specific blasphemy laws, the Islamist tree would keep bearing its jihadist fruits. Treating all religions equally would mean accepting everyone’s right to self-identify wherein the state doesn’t interfere in religious matters and treats all religious communities identically.

Meaningful reforms would include building political consensus for education reforms and creating a public narrative against extremism by ensuring National Education Curriculum is free from biases.

In the end, SC Justice Asif Saeed Khosa while hearing Qadri’s appeal, pithily described all that is wrong with the current blasphemy law:

“If everyone starts punishing others, who have in their opinion committed blasphemy, then this society will disintegrate.”