Late last year, Aasia Bibi became the first Christian woman to be sentenced to death under Pakistan’s blasphemy law. The events that have unfolded since then – the tragic assassinations of Salmaan Taseer and Shahbaz Bhatti, the escalated street protests – highlight not only how sensitive this issue has become, but also how polarized. Many people, particularly minorities, have been persecuted under these laws, and while it would now be unproductive to get rid of the law completely, a proper dialogue and potential reform must occur. Below, Sahar Khan, a doctoral student in political science at University of California-Irvine, delves into a discussion on the law and how it’s been misused over the years:
According to the 2010 Freedom House Policing Belief on Pakistan, 695 people have been charged with blasphemy from 1986 till April 2006, while Dawn reported that 964 people have been charged with blasphemy out of the 5000 cases that have been registered from 1984 to 2004. The Human Rights Commission of Pakistan, that documents blasphemy cases, reports that majority of the cases involve Muslims, followed by Ahmadis. Yet, according to legal scholars, from 1960–2007, 41 cases have fallen under Section 295-C. Out of these, the religious profile was as follows: Ahmadis: 15; Christians: 5; Muslims: 20. This indicates that a little less than 50 percent of the cases involved Muslim violators of the law but when considering the minute size of the Ahmadi and Christian communities, the 15 and 5 cases represent a huge proportion.
Religious minorities have called on the judiciary to protect their constitutional rights—rights that they have been stripped off—but have mostly failed. In 1985, in Mujibur Rahman v. Government of Pakistan, the Federal Shariat Court upheld the constitutionality and validity of Ordinance XX [barring Ahmadis from associating themselves with Islam] and stated that the Parliament had acted wholly within its authority when declaring Ahmadis as non-Muslim.
The Supreme Court of Pakistan made a similar decision in Zaheeruddin v. State, and stated that restricting the religious practices of Ahmadis was constitutional for two reasons: 1) by declaring themselves as Muslims and simultaneously not believing Mohammad to be the last prophet essentially means they are committing fraud and are misrepresenting themselves while aggravating the majority Sunni population, and 2) by publically using Islamic epithets as non-Muslims, they would potentially be violating company and trademark laws, and so they should try to “coin their own epithets.” By doing so, the Supreme Court created a legal parallel between trade and religion despite obvious differences between the two. The decision was not only self-serving and dishonest but showed the judiciary surrendering before the ascendant forces of religious reaction and abdicating judicial protection of religious minorities.
In addition to judicial reluctance to overturn the laws, they suffer from four major design flaws. First, they are designed to only protect Islam and no other religion, which is clearly discriminatory. There have been calls to increase the scope of Section 295-C to include other prophets but theoretically it would only protect Abrahamic religions, and not others like Buddhism or Hinduism. Realistically, it is more likely to increase the potential for further persecution of minorities. Second, the requirement of a deliberate or malicious intent is missing from Section 295-C and except for a few exceptions in which the courts say that intention is absent and have granted bail, they mostly remain silent, which basically results in the laws being interpreted like strict liability offenses. Also, the lack of specificity of Section 295-C, and the explicit targeting of Ahmadis in Section 298-C makes their scope and applicability virtually limitless. Third, there are no exceptions for any person who is charged with blasphemy. Hence, the mentally ill and imbalanced can be charged and jailed for years.
In 1996, Zaibunnisa, a woman declared mentally ill, was charged and jailed for 14 years after being wrongly charged with blasphemy. Cases like these highlight the abuse that follows from a lack of intent requirement but also the insensitivity of the courts—especially the lower courts that deal with these cases more—regarding sick individuals. And finally, even though Section 295-C calls for punishment by death, hard evidence is not required to successfully indict someone. This is mainly due to the fact that lawyers and judges—and on occasion even their families— who demand hard evidence are often harassed, threatened, and even killed.
The laws also violate numerous international conventions. First, they are in conflict with Articles 7 (on equality before the law and protection against discrimination), 18 (freedom of thought, conscience, and religion), and 19 (freedom of expression) of the UN Declaration of Human Rights (UDHR). This is sad and ironic, considering Pakistan was a staunch advocate of UDHR during its early years and is a signatory. Second, even though Pakistan is not a signatory, it is important to note that the laws violate Articles 18, 19, 20, and 27 of the International Covenant on Civil and Political Rights (ICCPR) because Pakistani jurists consider the ICCPR as an affirmed international norm that Pakistan should follow and have used it in judicial opinions. Third, they violate Articles 2, 3, 4, 6, and 7 of the 1981 UN Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion and Belief. Fourth, they violate Articles 2 and 4 of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. And finally, the death penalty for blasphemy violates the first clause of the UN Economic and Social Council that has provided safeguards for the rights of those facing capital punishment and states that: “capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes, with lethal or other extremely grave consequences.” Pakistan is one of the few remaining countries to retain it along with China, Iran, and the United States.
Judicial reform is not only important but necessary. The laws are usually misused at the lower court level because the local judges fear reprisal. While some decisions have gotten overturned at the appeals level, majority of the cases do not get reported, and of those that do, very few actually make it to the appeals stage. Furthermore, even if they do and the accused are acquitted, religious mobs drive them out of their homes and/or villages and even on occasion the country itself. As more are charged under the blasphemy laws, the clearer it becomes that the judiciary has actually endorsed these laws and increased their legitimacy. Parliament also needs to make amends and reform or eliminate the laws. Strong and vocal voices of Salman Taseer and Shahbaz Bhatti unfortunately have been silenced. But instead of being afraid, legislators should use their assassinations as a calling for reform that cannot wait any longer. Sherry Rahman is such a voice—others should and must join her in her quest to reform or even eliminate the laws. Reforming or eliminating discriminatory laws will not magically reduce the violence within Pakistan but it will eliminate a tool that has been used too often to target minorities.
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