Blasphemy and the rule of law: Asia Bibi’s case

History

A barrister by trade Mr Jinnah shared with the profession its militant passion for espousing very precisely advocated arguments and it is not by chance that six decades after his death we can still hear his principles echo. In his first speech to the Constituent Assembly of Pakistan Mr Jinnah provided his people with clues for future action. He described the evils which threatened Pakistan’s interests and suggested remedies which would aid its inhabitants in achieving the secular dream that he had dreamt for the newborn state.

Mr Jinnah

In his first address to the Constituent Assembly Mr Jinnah very famously declared that in Pakistan there could be “no discrimination, no distinction between one community and another, no discrimination between one caste or creed and another”. He also reassured Pakistan’s citizens by his declaration that:

“You are free; you are free to go to your temples, you are free to go to your mosques or to any other place or worship in this State of Pakistan. You may belong to any religion or caste or creed that has nothing to do with the business of the State.”

Clearly Mr Jinnah’s Pakistan was very much about an impartial state which did not treat its minorities poorly and one which did not persecute them.

In his speech Mr Jinnah also reiterated his fears for the future. Pakistan, argued Mr Jinnah, would have to fight diseases such as “bribery, corruption, jobbery, nepotism and black marketing” and in order to win against such evils the post-colonial state would have to grant all its citizens equality and constitutional “human” rights.

Equally, even the later Objectives Resolution (considered to be the touchstone of the “Islamic” influence on Pakistan’s constitution) – which was passed in March 1949 under the aegis of Nawabzada Liaqat Ali Khan – clearly made provisions for the protection of the rights of minorities. Keeping with Mr Jinnah Nawabzada envisaged a nation:

1. Wherein adequate provision shall be made for the minorities to freely profess and practice their religions and develop their cultures;

2. Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;  and

3. Wherein adequate provisions shall be made to safeguard the legitimate interests of minorities and backward and depressed classes

When the tyrant, despot and murderer General Zia amended the constitution by virtue of his perverse 8th Amendment and through his P.O (Presidential Order) No.14 of 1985, (in force from March 2, 1985 which “revived” the constitution) he removed the word “freely” from the text. Subsequent to the amendment, the Objectives Resolution was imported into the constitution as Article 2(A) in its perverted form, i.e. the word “freely” was wilfully omitted by the obscene person who drafted the said variations. However, this has not gone unnoticed by Pakistanis and in any event even after all the perverse dictatorial redactions to the constitution the rights enumerated in articles 9-28 continue to afford minority people some protection from persecution by state and non-state actors.

More specifically, introductory article 8 of chapter 1 of the constitution expressly establishes that:

8. Laws inconsistent with or in derogation of fundamental rights to be void.

(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.
(3) The provisions of this Article shall not apply to :-

(a) any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or
(b) any of the

(i) laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule;
(ii) other laws specified in Part I of the First Schedule;

and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter.

(4) Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two years from the commencing day, the appropriate Legislature shall bring the laws specified in [Part II of the First Schedule] into conformity with the rights conferred by this Chapter:

Provided that the appropriate Legislature may by resolution extend the said period of two years by a period not exceeding six months.

Explanation :- If in respect of any law [Majlis-e-Shoora (Parliament)] is the appropriate Legislature, such resolution shall be a resolution of the National Assembly.

(5) The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution.

Given the constitutional protection set out above and given that the founders of the nation abhorred discrimination and persecution it is inconceivable that minorities’ rights should be routinely stampeded by the majority “Muslim” population in order to enforce their version of the “true” faith. In fact, just as the Prophet Muhammed (PBUH) had predicted, the Muslim faith has splintered so much over the ages because of centuries of religious schisms that if the majority 75% Sunni population was to be considered the “true” version of Islam then given the extreme views of the majority of the adherents of Sunni Islam, persecution of minorities within Islam would become automatic. It is tragic that Muslims should persecute minorities given that the Prophet Muhammed (PBUH) was himself persecuted by his own community in Mecca. But he proved comprehensively that greater resolve and patience will ultimately triumph over the feebleness of persecution. In his victory over the Meccans in 630 AD the Prophet (PBUH) was magnanimous, benevolent and compassionate. Everyone was allowed an amnesty and he let bygones be bygones to set an example for the followers of the Islamic religion.

Articles 19,20, 25, and 28 accord Pakistani citizens further constitutional rights and freedoms. These are freedom of speech (article 19), freedom to profess religion and manage religious institutions (article 20), equality of citizens (article 25) and preservation of language, script and culture (article 28).

Following the true legacy of the Prophet Muhammed (PBUH) and the great religion which he brought to reform the idolatrous Kuffar of the Hijaz it is submitted that tolerance, equality and acceptance of all other faiths must be the overarching principles around which Pakistan’s laws must be constructed. Anything short of the right Islamic procedure set out above is an apostasy. Therefore, under the principles of the Holy Book the killing and persecution of Pakistan’s minorities is a sin for which the sinners will burn eternally in hell.

The law

General Zia’s amendments to Pakistan’s laws in the name of Islam temporarily provided credibility to his regime and to western interests in the country. Yet the treachery of his legacy remains to this day and it is reflected in the suicide bombings and the treatment of women and minorities. He was able to temporarily camouflage the bestiality which his actions – produced by virtue of his perverse amendments to Pakistan’s laws – because of his fawning over American interests in the region during the long Soviet military intervention in Afghanistan’s affairs. Apart from taking the jihad to the Soviets Zia kept a large chunk of it for our own country.

For example we have inherited this law, section 295C of the Pakistan Penal Code 1860, from General Zia’s eight amendment which the Americans promoted to manipulate their interest in the region:

“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.”

It is now a fact of life that this law is currently in force in Pakistan. Since it is the law, well, well it really is. A literal application of it, however, is bound to culminate in disaster. It should be noted that, and the Almighty Allah be praised eternally for this fact, no one has yet been executed for blasphemy in Pakistan but the BBC has reported that ten persons accused of the crime have been murdered before their trials could be completed. However, rightly or wrongly, the blasphemy law is the law and therefore it is enforced by Pakistan’s badly trained police and lower judiciary despite its overwhelmingly adverse consequences for minority communities. But it is very easy to criticise a poor country such as Pakistan. Just to keep things in comparative perspective, in England and Wales, the mother of common law jurisdictions, the Criminal Justice and Immigration Act 2008 only recently abolished the common law offences of blasphemy and blasphemous libel on 8 July 2008.

In the operation of all criminal law proceedings in Pakistan, and prosecutions under section 295C of the PPC 1860 are no exceptions to discharging the criminal standard, the onus is upon the prosecution to establish beyond a reasonable doubt that the accused did in fact commit the offence. The trial process, further, must be one which is freely conducted – it must also be fair.

In a country which saw the trial of its own prime minister end in a judicial murder it is unrealistic to believe that a Christian woman accused of blasphemy has been treated with the procedural fairness and impartiality which Mr Jinnah urged his nation to follow in the  address extracted above. If Maulvi Mushtaq could judicially murder the late Mr Bhutto then one would reckon that Punjabi Christians and Sindhi Hindus are easy prey for Islamists who use the police to persecute these minorities. The problem of procedural fairness and Asia Bibi’s right to a fair trial is also complicated from the stand point of English law by the fact since there is no jury the decision to acquit or convict is by the judge alone. But given the level complexity of the law and the prejudice of the local people against minorities perhaps it is all for the best.

On the structure and of the criminal trial in England and in Pakistan this article has had the benefit of having taken legal advice from one of the legends of the English bar. Mr Sibghat Kadri QC was a great friend of Mr Fatehyab Ali Khan. They went at each other constantly fighting about politics but this was only indicative of their great love and friendship.

Mr Kadri takes the view that owing to the fear of persecution it is impossible for a minority person to insult the Prophet (PBUH) in Pakistan. His expert opinion is that only a mentally ill minority person in Pakistan would insult the Prophet (PBUH). “No sane Christian would insult Islam, Allah, the Prophet (PBUH), his family or the Holy Book in Pakistan” said the QC with four decades of criminal law experience. He concluded his thought by explaining that “in Pakistan all the blasphemy cases are bogus”. Mr Kadri QC explained that the evidence used to convict Asia Bibi  failed the tests of robustness and admissibility to be used in criminal legal proceedings “anywhere”. His expert legal view was that the evidence was not just inadmissible hearsay, it was “double hearsay” because the accusers had reported the matter to the local mullah who then took it up with the police.

Mr Kadri’s recommend law reform in blasphemy cases was to disqualify SHOs from initiating proceedings “since the burden of proof is very high and because SHOs are not very educated, the decision to prosecute must minimally be taken up by the DC.” His comparison of problematic cases, such as assisted suicide, in the English legal system was that since such cases were in the public interest the decision to prosecute was taken by the Director of Public Prosecutions personally who was superintended by the Attorney General. No doubt his friend Mr Fatehyab Ali Khan would most emphatically have agreed with Mr Kadri that since the punishment for blasphemy is death, the worst possible punishment for a human being that there is, the onus must be on the prosecution and the police to discharge their evidential burdens. “Otherwise it is travesty of justice” said the Mr Kadri.

But before applying the laws above to Asia Bibi’s case it should be noted that General Zia was able to murder democracy in a way which makes it almost impossible to restore the balance which might have existed prior to his arrival on the scene. He established the Federal Shariat Court (FSC) which the late Mr Fatehyab Ali Khan, President of the Mazdoor Kissan Party, described as “an all Sunni mullah club who have no legal qualifications and studied in the madrassa system.” The FSC has no women judges, it has no other type of person on its bench apart from the club Mr Khan referred to. By disenfranchising Pakistan’s people from the democratic project by placing the FSC above the Supreme Court of Pakistan the General really will be laughing in his grave and Mr Jinnah must be turning in his. But the saving grace here is that the FSC cannot award the death penalty to a criminal defendant whereas the Supreme Court can.

The facts

Asia Bibi might become the first woman to be executed under the blasphemy law. Her husband Ashiq Masih says that her conviction was based on “false accusations”.

A court in the town of Nankana in Punjab province convicted 45 year old Asia Bibi. She was sentenced to death on Monday 8 November 2010. Oddly enough there was an altercation over water (Karbala remembered of course) which lead to the charges being placed against Asia Bibi. Her husband Ashiq Masi who works as a labourer, said: “we have never ever insulted the Prophet Muhammad or Islamic scripture, and we will contest the charges in the higher courts.” According to him Asia Bibi was accused of blasphemy after she got into an argument last year with other women when Asia was sent by the wife of a village chief to fetch water from the well.

Ashiq Masi said that the women told his wife that since she was a Christian it was sacrilegious for her to be at the well. Taking offence Bibi asked “are we not humans?”  An altercation followed and Mr Masih claimed that “the actual complaint was lodged five days later, when local clerics raised the issue with the police.” Subsequently Asia Bibi was arrested and charged with insulting the Prophet Muhammad contrary to section 295C of the PPC 1860. According to the BBC “the trial judge ruled out the possibility that she was falsely accused and said there were no mitigating circumstances.”

Asia Bibi

How to save Pakistan from a disgrace

If Asia Bibi is executed then it will be a disgrace to Pakistan and the state its founding fathers had envisaged. If she is executed then Pakistan has fallen prey to prejudice, corruption, jobbery, partiality, discrimination contrary to what Mr Jinnah had warned its people on the very first day of its creation. In such a desperate situation there is only one way out. Appeal to the High Court of Punjab. And Mr Masih intends to do just this. And if it fails then go to the Supreme Court. However, at the Federal Shariat Court Mr Masih will be stuffed. Unfortunate and sad as this may sound there are other ways to save Asia Bibi’s life and Pakistan’s reputation as a good citizen of the international community.

President Zardari was incarcerated by various people and he maintains his innocence. He must feel for Asia Bibi as she and him have the common experience of being wrongfully detained. She was convicted but just for the record until the present day president Zardari has not been. However, not to lose sight of the principles at stake, it is noteworthy that by article 45 of the Constitution of the Islamic Republic of Pakistan it is possible for the president to save Asia Bibi’s life. Article 45 states that:

“45. President’s power to grant pardon, etc.

The President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.”

It is prayed for the future of the country that he should do just this. Mr Zardari can also show the Chief Justice that he really is the executive boss of the Islamic Republic. He can also show the jihadis – who stole Pakistan’s future for generations to come by murdering Mohtarma Benazir Bhutto – what he makes of their repulsive and vile beliefs.

Alternatively, the legislature could import Mr Jinnah’s speech of 11 August 1947 and make it a part of the constitution. This would be a good solution and the people who are confused of the ideological aspects of the state Mr Jinnah sought to create would better informed about what Pakistan was meant to be rather than what they, the non-secularists have made of the country through their molestations.

The other mechanism which is available to save face and mitigate further damage to Pakistan’s invidious international reputation is for civil society groups and other stakeholders in Pakistan’s society and economy to use the mechanism contained in article 184(3) of the constitution and approach the Supreme Court to consider the matter as it is clearly in the public interest. Article 184(3) states that “if it [the Supreme Court] considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved” the court will “have the power to make an order of the nature mentioned in the said Article” by exercising its original jurisdiction.

However, this remedy will always be second best to what the president can do under Article 45. Lets hope that he can prove Mr Jinnah right; even if it is just this one time.

Finally it really is worthwhile considering what the Prophet Muhammed (PBUH) would himself do to this woman if she abused him or defamed his family. It is fair to say that he would release her unconditionally and he would pardon her for her blasphemy. Why can’t they do that instead and make the Prophet proud?


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