Is The Pakistani Law On Blasphemy An Affront To The Islamic And Pakistani Justice System?
Blasphemy
Blasphemy is to say something that is impious about Allah, Prophet Muhammad or any other thing that is held as sacred in Islam.[1] Under the Hanafi law the punishment for blasphemy is threefold. The punishment varies according to the degree of the blasphemy committed. It can be flogging, imprisonment or death.[2] Similar punishments are handed out to Christian blasphemers with blasphemy being considered as an ‘eternal sin’.[3]Punishments in Christianity include the hanging or stoning of the blasphemer according to Leviticus 24:13-16[4] and the punishments in Judaism also include the penalty of death.[5] There is evidence for the argument that perhaps the punishment in Islam was based on the preceding Abraham religions and their rules pertaining to blasphemy.[6]
A person who is accused of blasphemy can also recant his or her blasphemy. However, if a Muslim male refuses to recant his punishment he will be executed for the offence. A female’s punishment as a blasphemer varies with the correct Islamic punishment, which is to beat the offender till she repents and accepts Islam again.[7] The reasoning behind such a punishment, according to most experts, is that a blasphemer essentially wages war on Islam and since a women is not capable of waging war, she cannot be killed. [8]The Hanbali and Maliki schools prescribe the death penalty for a blasphemer regardless of the gender of the offender. The Shafi school prescribes either death or amputation, according to the degree of the gravity of the crime.[9]
Speaking from an Islamic point of view, some scholars argue that, “Neither the Quran and nor the Sunnah declare the existence of an offence called, “Blasphemy’, or a specific punishment for it.”[10]Even the textual authority for this offence is not set out in clear words in the Quran. Various verses have been taken as implicit support for the punishment of blasphemers.[11]A single tradition of the Holy Prophet has proven to be one of the most influential texts in supporting the punishment of death for blasphemy.[12]
The Prophet said:
“Who is ready to kill Ka’b bin Ashraf (i.e. a Jew).”
Muhammad bin Maslama replied: “Would you like me to kill him?”
The Prophet replied in the affirmative.
Muhammad bin Maslama said, “Then allow me to say what I like.”
The Prophet replied, “I do (i.e. allow you).”[13]
Indeed, some believe that in this instance, the Holy Prophet ordered the person to be killed because he was waging a war against Islam. This leaves us with the idea that where Islam is not being threatened or under attack, a person who blasphemes should not be punished at all.
Apostasy
Hadd al Ridda or apostasy[14] is also an offense that carries the death penalty.[15] However, it should be noted that unlike other hadd punishments, there are in fact no Quranic details, whatsoever, of any sort of earthly punishment being prescribed for apostasy.[16]
The almost unanimous consensus amongst the mujtahidin on the existence of an earthly punishment for Apostasy is based on a tradition of the Prophet, which states:
“If somebody (a Muslim) discards his religion, kill him.”[17]
It is contentious, whether, even in the context of this Hadith, the use of the death penalty was ordained for all apostates or only for those apostates who had been a part of ‘treasonous situations’.[18] This confusion is a result of the fact that whenever The Holy Prophet ordered an apostate to be killed, the apostate had actually become a threat to the stability of the Muslim community.[19] To further weaken the case for a hadd punishment for apostasy, there is evidence to suggest that in some cases The Holy Prophet himself did not order any penalty against individuals who became apostates after accepting Islam.[20]
An example is an incident where a person accused of apostasy was brought to the Holy Prophet. He was witnessed as throwing his spear in the sky whilst screaming that he wanted to kill Allah. On being questioned by the Prophet, he stated that he wanted to kill Allah as he had taken his beloved from him. The Holy Prophet did not prosecute him stating that, “Is it enough for you that he acknowledges Allah by wanting to kill him in his grief?” [21]
This is a remarkable case of leniency shown in the context of hadd crimes by The Prophet. It should also be considered that even though hadd punishments are thought as compulsory and mandatory on the committing of a hadd crime, The Holy Prophet did not seem to think so in the case of hadd ul ridda. It would hence be prudent here to question the hadd status of the crime of apostasy. Indeed, Majid Khadduri, a Muslim jurist argues that the tradition of killing all apostates, has its origin in the wars of rebellion that started during the time of the Caliphs.[22]If this is, in actuality the case, the death penalty would not have been prescribed as a hadd penalty but rather, a ta’zir or discretionary practice which a ruler can and should stop at will, since ta’zir crimes are not expected to carry such harsh punishments.
Another renown jurist, S.A. Rahman, argued that all instances of apostasy mentioned in the Quran and the traditions of The Holy Prophet were in fact related to retaliation and rebellion, meaning that such penalties are actually meted out for another hadd crime of rebellion called hadd al baghy. He further goes on to say that there is a strong belief in Islam that when a person changes his or her belief, their convictions and faith are actually a matter for Allah to judge and not by a person.[23]
Additionally, if we observe the sentencing for apostasy, for the Hanafi school especially, we are provided with further support for the view that apostasy is not a separate crime but rather, an offshoot of the crime of rebellion. In times of war, in pre-Islamic Arabia, infidel women were not to be killed because it was thought that they cannot wage war against Islam. And so goes for the woman accused of being an apostate. She is to be imprisoned until she has been convinced to recant, which is exactly the same type of punishment as handed out for blasphemy.[24]
An important point that should be focused on is that a Muslim who has committed Blasphemy is prosecuted as an apostate.[25]
In light of these important disagreements regarding the categorization of Apostasy and Blasphemy as crimes, and indeed hadd crimes, a Muslim community is under a duty (via the concept of Siyasah al Sharriyah) to disallow the conviction of its subjects under such laws. Sadly, this is not the case and instead, such laws have only gained more currency in recent years.[26]
Blasphemy In Pakistan
Section 295-C of the Pakistan Penal Code sets out the crime of blasphemy in the following words:
The 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.”
According to the Federal Shariat Court in a judgment dated October 30, 1990 Blasphemy is a hadd punishment.[27]Although, section 295-C sets out the death penalty to be one of the few available punishments, it makes the death penalty, a ta’zir crime, by giving the judge the power to choose a punishment. The Federal Shariat Court of Pakistan has imposed the death penalty as the proper mandatory punishment.[28] This means that the law of the Hanafi school of thought, which is generally followed in Pakistan, has been ignored as it states that Blasphemy is only a ta’zir crime.[29]
In case of blasphemy committed by a Muslim, it is equated with apostasy and tried under the laws of blasphemy. The reason given for such a practice is that, “Blasphemy is evidence of apostasy”[30]. This substitution avoids the extended chances given to the apostate to recant his confession. It would have been better if a separate law on Apostasy based on the Islamic principles had been introduced for Muslims.
Most of the cases concerning Blasphemy are concluded in the trial courts and these courts have unusually high conviction rates. It is estimated that, whereas between 1927 and 1984, a total of 14 cases on blasphemy were registered between 1986 and 2010, this number rose dramatically to 1274.[31] This may be a result of a lax attitude towards the standards of proof required for blasphemy and the widening of the blasphemy laws as well as the inclusion of harsher punishments for this crime. A large proportion of those people who have been wrongly convicted are still in prison, awaiting trial leading them to be victims of a special form of torture: the death row phenomenon.[32] This type of violation of a person’s rights is an inherently un-Islamic practice, so it is submitted that the government must be galvanized into action at once.
The trial courts have proven to be extremely accepting of circumstantial evidence in cases of blasphemy. This only leads to a costly appeals process whereby the case is struck down in the higher courts.[33]This was the case for Gul Masih, amongst others, who spent two years in jail before his case was overturned by the Lahore High Court.[34]
The law of blasphemy in Pakistan, is hence ,thought to be inherently unjust and discriminatory against minorities.[35] Time and again, it has proven to be unfair to the mentally challenged because of the lack of control over the types of evidence that will be accepted by the courts to convict a person.[36] It has also been used by people in Pakistan for their personal agendas and to help them vindicate themselves in their feuds.[37]
Section 295-C also contains no requirement to prove mens rea which has led to a great number of cases, which have absolutely no judicial virtue, continuing on to appellate courts through lengthy and costly trials only to be struck down by the appellate courts.[38] Pakistan has witnessed its incompetent laws on blasphemy being hijacked time and again by Islamist forces to further their political interests in Pakistan making cases on blasphemy a focus of vigilantes.[39].
As a result, almost 51 defendants accused of Blasphemy have been murdered by the public, either after they have been accused to be a blasphemer or before their trial had even begun, with no investigations into these murders being initiated by the government.[40]
Analysis
In my opinion, it seems clear that there is no Islamic basis for the modern law on blasphemy and apostasy that is in action in Pakistan. Additionally, the fact that it furthers an atmosphere of injustice in the society shows that such a law has no place in any community, be it a Sharia based community or not. The government would be well within its powers under Siyasah ul Shariyyah to repeal or amend this law in order to ensure that justice prevails within the society.
[1]Juan Eduardo Campo, Encyclopedia Of Islam (Facts On File 2008)109, Some have also included the companions of the Prophet as well. See Also, ʻAbd Allāh Aḥmad Naʻīm, Islam And The Secular State (Harvard University Press 2008)121
[2] Robert Postawko, ‘Towards an Islamic critique of capital punishment’(2002),1UCLA J.Islamic & Near E.L 262,314
[3] Biblehub.com, ‘Mark 3:29 But Whoever Blasphemes Against The Holy Spirit Will Never Be Forgiven; They Are Guilty Of An Eternal Sin.”‘ (2015) <http://biblehub.com/mark/3-29.htm> accessed 5 September 2015.
[4] Bible Gateway, ‘Bible Gateway Passage: Leviticus 24:13-16 – New International Version’ (2015) <https://www.biblegateway.com/passage/?search=Leviticus+24:13-16> accessed 5 September 2015.
[5] Bible Gateway, ‘Bible Gateway Passage: Leviticus 24:16 – New King James Version’ (2015) <https://www.biblegateway.com/passage/?search=Leviticus+24%3A16&version=NKJV> accessed 5 September 2015. However for Judaism the blasphemer must have blasphemed the ‘Ineffable Name’ to be liable for the death penalty.
[6] Kamran Hashemi, Religious Legal Traditions, International Human Rights Law And Muslim States (Martinus Nijhoff Publishers 2008) 36.
[7] Robert Postawko, ‘Towards an Islamic critique of capital punishment’(2002),1UCLA J.Islamic & Near E.L 262,314
[8] Robert Postawko, ‘Towards an Islamic critique of capital punishment’(2002),1UCLA J.Islamic & Near E.L 262,314
[9]Robert Postawko, ‘Towards an Islamic critique of capital punishment’(2002),1UCLA J.Islamic & Near E.L 262,314
[10] ʻAbd Allāh Aḥmad Naʻīm, Islam And The Secular State (Harvard University Press 2008) 121
[11] See Quran.com, ‘Surat Al-‘Ahzab – The Noble Qur’an – القرآن الكريم’ (2015) <http://quran.com/33> accessed 29 April 2015.33:57 to 33:61
[12] Usc.edu, ‘Center For Muslim-Jewish Engagement’ (2015) <http://www.usc.edu/org/cmje/religious-texts/hadith/bukhari/052-sbt.php> accessed 29 April 2015.Sahih al Bukhari, Volume 4, Book 52, Number 2
[13] Ka’b bin Ashraf composed poems that were blasphemous and it is thought that he was put to death because of this.
[14] According to Al-Shafi Apostasy requires that there should be a clear declaration by words, acts or thoughts that the apostate either does not believe in Allah or His Apostles (including the Holy Prophet) , or that what is forbidden is lawful or what is lawful is forbidden or that the apostate intends to change his religion and has doubts about Islam. Samuel M. Zwemer, The Law of Apostasy, (1924)14 Muslim World 373, 387-388
[15] Hanbali, Shafi’i and Maliki schools treat apostasy as a hudd crime. See Rudolph Peters, Crime And Punishment In Islamic Law, Theory And Practice From The Sixteenth To Twenty First Century (Cambridge University Press 2006) 64-65 Which states that Shia and Hanafi schools present it as a ta’zir crime.
[16] Mohamed S.El Awa,‘Punishment in Islamic Law’ (American trust Publications 1982)50.The verses in the Holy Quran referring to apostasy only mention that the apostate will be punished in the hereafter. 2:217, 3:90-91, 5:54
[17] Sunnah.com, ‘Hadith – Book Of Fighting For The Cause Of Allah (Jihaad) – Sahih Al-Bukhari – Sunnah.Com – Sayings And Teachings Of Prophet Muhammad (صلى الله عليه و سلم)’ (2015) <http://sunnah.com/bukhari/56/226> accessed 29 April 2015. Indeed even in this fairly straightforward Ahadith some scholars, notably S A Rahman, have found weakness because of its chain of transmission.See S. A Rahman, Punishment Of Apostasy In Islam (Institute of Islamic Culture 1972).
[18] These are those situations where the apostate has made an attack on the Islamic community.David A Jordon ‘The Dark Ages Of Islam; Ijtihad, Apostasy And Human Rights In Contemporary Islamic Jurisprudence’ (2003) 9 Wash & Lee Race & Ethnic Anc L.J. vol 9 55,61
[19] Mohamed S.El Awa,‘Punishment in Islamic Law’ (American trust Publications 1982)51-53
[20] M. Hashim Kamali, ‘Freedom Of Religion In Islamic Law’ (1992) 21 Capital University Law Rev 63,74.
[21] Also see Bassiouni, ‘Crimes And The Criminal Process’ (1997) 12 Arab Law Quarterly 269,227
[22] Majid Khadduri,’The Islamic Conception of Justice’ (1978)
[23] S. A. Rahman, ‘The Punishment of Apostasy in Islam’ (1972) 9-86
[24] 2 The Hedya 228 (Charles Hamilton trans 1791)
[25] Maurits Berger, ‘Apostasy And Public Policy In Contemporary Egypt: An Evaluation Of Recent Cases From Egypt’s Highest Courts’ (2003) 25 Human Rights Quarterly 720, 723
[26] The United Arab Emirates, Saudia Arabia, Qatar, Sudan, Yemen and Iran are only a few countries which have taken to a high frequency of prosecutions under this law. Forte, ‘Apostasy and Blasphemy in Pakistan’ 10 Connecticut Journal of International Law 28, 50-51
[27] Osama Siddique and Zahra Haya, Interview with Advocate Abid Hassan Minto, ‘Unholy Speech And Holy Laws: Blasphemy Laws In Pakistan- Controversial Origins, Design Defects, And Free Speech Implications’ (2007).
[28] David F Forte, Studies In Islamic Law (Austin & Winfield 1999) 41. This was a result of a petition filed before the Federal Shariat Court which demanded that the punishment of life imprisonment should be declared contrary to Article 227 Part IX of the Constitution of Pakistan 1973.The petition was accepted by the FSC and because all the decisions by FSC are binding it is believed that the punishment for blasphemy is a mandatory death punishment.See Muhammad Ismail Qureshi V Pakistan (1991) 43 P.L.D 10 (Fed. Shariat Ct.)(Pak)
[29] Robert Postawko, ‘Towards an Islamic critique of capital punishment’(2002),1UCLA J.Islamic & Near E.L 262, 314
[30] Robert Postawko, ‘Towards an Islamic critique of capital punishment’(2002),1UCLA J.Islamic & Near E.L 262,316
[31] Siddiqui T. ‘Timeline: accused under the blasphemy law’ Dawn News 2012
[32] Scu.edu, ‘Santa Clara University News And Information – SCU In The News’ (2015) <http://www.scu.edu/news/rossdeathpenalty.cfm> accessed 5 September 2015.
[33] Osama Siddique and Zahra Hayat, ‘Unholy speech and Holy Laws: Blasphemy Laws in Pakistan- Controversial Origins, Design Defects, and Free Speech Implications’ 17 Minnesota Journal of International Law 303,343
[34] Bob Harvey, ‘Free Speech, Islamic Faith Meet Head-On in Pakistan’, Ottawa Citizen (1993)
[35] See Hina Jilani, Human Rights And Democratic Development In Pakistan (Human Rights Commission of Pakistan 1998). Also see for an illustration of how Pakistan has equated personal status of Ahmadis with blasphemy; Yvonne Yazbeck Haddad and Jane I Smith, Mission To America (University Press of Florida 1993) and M.Nadeem Ahmad Siddiq, ‘Enforced Apostasy: Zaheeruddin v State & the official Persecution of the Ahmadiyya Community in Pakistan’, 14 Law & INEQ, J 275
See,Osama Siddique and Zahra Hayat, ‘Unholy speech and Holy Laws: Blasphemy Laws in Pakistan- Controversial Origins, Design Defects, and Free Speech Implications’ 17 Minnesota Journal of International Law 303,324 which shows that of the 41 cases that were charged with Blasphemy in 2007 50% of the accused were non Muslims. This is a large proportion because of the fact that 96.4% of the population is Muslim according to The CIA Factbook.
[36] Saifullah Khan v State (2006), The Rimsha Masih case.
[37] Bob Crilly, ‘Rimsha Masih: Blasphemy charges dropped against Christian girl’ Telegraph 20 November 2012
[38] Osama Siddique and Zahra Hayat, ‘Unholy speech and Holy Laws: Blasphemy Laws in Pakistan- Controversial Origins, Design Defects, and Free Speech Implications’ 17 Minnesota Journal of International Law 303,343. For an example see the case of Dr Younas Sheikh August 18 2001 whose “blasphemous” words were actually answers to a student’s question. Rory McCarthy, ‘Blasphemy Doctor Faces Death’ (the Guardian, 2001) <http://www.theguardian.com/world/2001/aug/20/rorymccarthy> accessed 30 April 2015.
[39] Matt Hoffman, ‘Mordern Blasphemy Laws In Pakistan And The Rimsha Masih Case: What Effect-If Any- The Case Will Have On Future Reform’ (2014) 13 Washington University Global studies Law Review 371, 371
[40] See Siddiqui T. ‘Timeline: accussed under the Blasphemy Law’ Dawn News 2012
