Eliminating the misuse of blasphemy laws

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Is Pakistan willing?

 

 

When the Governor of Punjab Salman Taseer and the Minister of Minorities Affairs Shahbaz Bhatti were assassinated in 2011 in connection with blasphemy laws, certain Pakistani religious circles gave the impression that these laws were perfect, not man-made and amending them construed to interfering with the divine ordinances. But recent developments have reignited a debate on them and have raised serious doubts about this presumption. The objective of this article is to address the misuse of these laws.

Deciding on Asia Bibi’s appeal against her death sentence, the two Lahore High Court (LHC) judges have identified a procedural loophole in Section 295-C (Use of derogatory remarks, etc, in respect of the Holy Prophet [peace be upon him]) of Pakistan Penal Code (PPC). Not just this, the judges have actually sought an amendment to remove this loophole.

The glitch involves a legal principle found in Islamic law called tazkiyah al-shuhood (an Islamic method to ascertain if witnesses meet the strict piety standard). The Federal Shariat Court (FSC) in its 1990 judgment held that Section 295-C of PPC was an Islamic hadd offence.

Whoever… 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

Only those who meet the tazkiyah al-shuhood standard can bring a charge that falls under the hadd offence. Section 295-C is a hadd offence (after FSC’s 1990 decision) but it does not require meeting the strict Islamic piety standard for witnesses. The two LHC justices asked the ministry of law, justice and human rights “for taking necessary steps in this regard.”

A Christian man, Sawan Masih, accused of committing blasphemy in the Joseph Colony incident, can best illustrate how tazkiyah al shuhood can save people from unnecessary accusations.

An argument broke out between Masih and his Muslim neighbour Shahid Iqbal when they were drinking liquor in March 2013. The argument followed an arson attack on the colony. Two cases were registered: one against Masih under Section 295-C of PPC and the other against the mob that ransacked and burned houses of the Christians.

In the following days, all suspects of the attack were released on bail while Masih has been in jail since then, and was handed death sentence in April 2014. If tazkiyah al-shuhood standard had been applied to Iqbal then he could not have been able to file a hadd offence against Masih. Firstly, because it is difficult to ascertain what was being discussed while drinking; and, secondly, because of drinking liquor he fell short of the Islamic piety standard.

The second aspect is the “bad intention” of those who are suspected of committing blasphemy. Sections 295-A and 295-C of PPC were invoked in cases against Junaid Jamshed, Veena Malik and Shaista Lodhi. Through social media they affirmed that they had no intention to commit blasphemy. But Section 295-C of PPC doesn’t require bad intention to establish the offence:

Whoever … 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.

The glitch involves a legal principle found in Islamic law called tazkiya al shuhood (an Islamic method to ascertain if witnesses meet the strict piety standard)

All over the world, a criminal act consists of at least two elements – the act (actus reus) and the bad intention (mens rea). It is the bad intention that makes any act a criminal one. Hence, the act alone is not sufficient and proof of bad intention is also required to establish a crime, which Section 295-C does not meet.

The FSC in its 1990 judgment noted that “bad intention” was a necessary element to establish any offence under Section 295-C:

An intention thus is the purpose or design with which an act is done … An unintentional act is one lacking such purpose or design … Shariah recognises an offence liable to hadd only if it is accompanied by an express intention. Shariah also waives the penalty of hadd if any doubt occurs therein. It is also based on a Tradition of the Holy Prophet (Peace be Upon Him) that doubts dispel sentences of hadd.

Thirdly, advocate Ismail Qureshi, the chief architect of blasphemy laws, in his book Namoos-e-Risalat aur Qanoon-e-Toheen-e-Risalat notes that apology is not an option available to the suspects in these cases. Writing for the daily Dawn, Arafat Mazhar in his article The Untold Story of Pakistan’s Blasphemy Laws notes that “Yes, blasphemy is a pardonable offense” within the Hanfi school of thought which is the dominant one in Pakistan. Mazhar has identified the textual misreading on the part of Qureshi. Mazhar claims that Qureshi, in a meeting with him, accepted this mistake.

Keeping in view these three aspects, is Pakistan willing to introduce these Shariah based elements in the blasphemy laws to eliminate or at least minimise their misuse?