PAKISTAN: The Blasphemy Law in Pakistan and its Impact
Naeem Shakir
(Ed note: Naeem Shakir have been involved as a defence lawyer in high profile cases about blasphemy. Human Rights SOLIDARITY will carry his analysis of the blasphemy law in two issues. The first part of the article deals with the origin and consequence of the law from the legal point of view.)
Religious Fundamentalism Grown Beyond Proportions
The minorities in Pakistan are caught up in a grave situation, with gory incidents occurring. A wild wave of sectarianism has engulfed the society, which has resulted in unethical sentiments of religious prejudices. The armed religious extremists are playing havoc in the society. A situation of religious intolerance has spread suffocation in our lives. The doors of dialogue are being closed. Religious fundamentalism has grown beyond proportions. Muslim clerics are demanding complete imposition of Islamic Shariah in Pakistan, making it applicable also to the non-Muslim citizens.
The minorities in Pakistan have already suffered seriously on account of sectarian legislation which has thrown non-Muslim citizens out of the mainstream of national life. They are no more part of the mainstream activities of the state and are being discriminated against in all fields of life. The claim of the minorities as equal and respectable citizens is at stake. The life and property of people in minority community is no longer safe. A sense of insecurity is growing fast among the minorities.
The Christians are being roped in false cases under the blasphemy law. They are being murdered by zealots to win heavens for themselves. They take the law in their hands and do not even wait for the judicial verdict. The judgements of the superior courts have proved that this law on blasphemy is being ruthlessly abused for settling personal scores and, of course, for religious persecution. This law is proving to be a sword hanging on the heads of non-Muslims and the secular-minded people.
Bishop John Joseph, Roman Catholic Bishop of Faizalabad, who was an ardent spokesman for peace and inter-religious dialogue, had waged a struggle on war footing against fundamentalism, religious intolerance, and discriminatory laws, particularly against the amended provisions of the law about blasphemy. And in order to give an impetus to the struggle and focus world attention on this crucial issue, he sacrificed his life for the just cause on May 5, 1998. He shot himself right in front of the iron gate of the Sessions Court of Sahiwal, which convicted Ayub Masih a charge of blasphemy and sentenced him to death vide its judgement passed on April 27, 1998. This death sentence has once again raised fear and panic amongst the minority communities in Pakistan as the law of blasphemy casts the net wide open to rope in anyone - Christians and Ahmedias more easily, maybe due to personal malice or religious prejudice.
The death of Bishop John Joseph excited a wave of anger among the Christians. They spontaneously came on the roads to publicly mourn the death of their leader and demonstrate their will to continue the struggle against oppression and discriminatory laws, including the law on blasphemy. The peaceful processions were brutally suppressed by the police and the state apparatus.
In order to underplay the impact of the self-sacrifice of Bishop John Samuel, the Muslim clerics treacherously launched a move to field a counter version that the Bishop was murdered by a Catholic Father due to some rivalry. The print media was fully used by the clerics in a malicious way so as to diffuse the zealous spirit among the Christians. However, they have miserably failed in their nefarious designs.
Collaboration of Dictatorship and Fundamentalism
In order to get a clear picture about the law on blasphemy it would be better to discuss the issue in a broader perspective which will enable us to have a better understanding about the whole situation.
Pakistan came into being in 1947. It was earlier part of united India. The united struggle of people of India for independence was meant to overthrow the yoke of British colonial rule which prolonged for more than a century. On August 14, 1947 when people won independence, simultaneously the partition of India took place and thus a new state of Pakistan emerged. Though Islam was used as a catchword during the movement for Pakistan, the great leader and founder of this new nation, Mr. Mohammed Ali Jinnah, had categorically made it clear that the country will not be a theocratic state. In his presidential address to the first Constituent Assembly of Pakistan at Karachi, on September 11, 1947, he said, "We are starting with this fundamental principle that we all are citizens and equal citizens of one state. You may belong to any religion or caste or creed that has nothing to do with the business of the state." It is however, most unfortunate that since the death of the Father of the Nation in September 1948, politics based on religious sectarianism has been in vogue in Pakistan. Politicians tried to take mileage on the basis of religion. This approach in politics has not only negated the fundamental principle (referred to above) but has also generated the baneful sentiment of religious prejudice among the people at large. Therefore, soon after his demise this infant nation was thrown out of the cradle of democracy. The country went into the hands of opportunists, fundamentalists and colonial agents.
Here, I would like to mention a crucial point: later on, a complete departure from the earlier spelt-out state structure was made. The net result was that the religion (Islam) was introduced in the socio-political corpus through an Objectives Resolution, which has served as a preamble to all the three Constitutions of 1956, 1962 and 1973. This resolution, while speaking for Islam, however, in a sixth paragraph, provided that "an adequate provision shall be made for the minorities freely to profess and practise their religion and develop their culture". During the military rule of 1977-1987 the Objectives Resolution which was serving as a preamble to the 1973 Constitution was through a Presidential Order made substantive part of the Constitution by incorporation of Article 2-A:
While doing so the word "freely" was deliberately deleted from the text. Now it reads as "an adequate provision shall be made for the minorities to profess and practise their religion and develop their culture." It was a deliberate and dishonest act on the part of the military ruler to delete the word "freely". Earlier in the preamble of the Constitution of Pakistan, the word freely was present whereas in the new Article 2-A the word freely was missing. I think this is a singular example of reading history through prejudice. This deliberate deletion later had serious repercussions in our socio-political set-up. It introduced an element of religious extremism in our society. And from that point of time the treatment meted out to the non-Muslims citizens has been very harsh.
In order to remain in the seat of power General Ziaul-Herq, the military dictator collaborated with the religious fundamentalists. Those who were never voted for the Assemblies were brought to the corridors of power through administrative measures. The army general took upon himself the task of Islamising the society. In that process of Islamisation, sectarian legislation was promulgated.
First of all, he amended the Penal Code and introduced Islamic punishments in the form of Hudood laws. You may call it an Islamic version of criminal law. The Offences Against Property (Enforcement of Hudood) Ordinance 1979 related to theft cases. "Hadd" means "punishment ordained by the Holy Quran or Sunnah". The punishment for theft liable to Hadd for the person committing the offence first time is amputation of his right hand from the joint of the wrist. And if such a person commits the offence a second time, he shall be punished with amputation of his left foot up to the ankle. The proof of theft liable to Hadd shall be the evidence of "at least two Muslim adult male witnesses who are supposed to be truthful persons who abstain from major sins". Section 25 of this ordinance says that the Presiding Officer of the court by which a case is tried, or an appeal is heard, under this ordinance shall be a Muslim.
The second ordinance was called the "Offence of Zina" (Enforcement of Hudood) Ordinance of 1979. Zina was defined thus: "a man and a woman are said to commit Zina if they wilfully have sexual intercourse without being validly married to each other". The punishment provided includes stoning to death at a public place; or one hundred lashes with the whip at a public place.
The proof of Zina shall require the evidence of at least four Muslim adult male witnesses about whom the court is satisfied that they are truthful and abstain from major sins. The Presiding Officer of the court is required to be a Muslim.
Both these Ordinances are applicable to non-Muslims as well. The next law was Prohibition (Enforcement of Hadd) Order 1979. It prohibited the use of liquor and other intoxicants. The Christians may use liquor for religious ceremonies provided they are issued liquor permits by the government. The punishment provided for offences under this Order includes life imprisonment or imprisonment of not less than two years along with thirty lashes with the whip. For purposes of enforcing Hadd punishment the evidence of at least two Muslim adult male witnesses is required. As in other Hudood laws the Presiding Officer is to be a Muslim. The other Hudood laws relating to Qazaf (perjury) and "Execution of the Punishment of Whipping" were promulgated in 1979.
The Evidence Act was also Islamised thereby the credibility of a non-Muslim witness was brought down to a secondary position. The witness is supposed to be truthful who abstains from major sins as defined in holy Quran and Sunnah.
Thereafter the Islamic Shariah was made the supreme law of the land through Enforcement of Shariah Act 1991. The Shariah under this act has been defined as the "injunctions of Islam as laid in the Holy Quran and Sunnah". Section 4 of this Act says, "While interpreting the statute-law, if more than one interpretation is possible, the one consistent with the Islamic principles and jurisprudence shall be adopted by the court". According to this Act, the education system, the judicial system, the economic system and the media shall be Islamized. The Act, however, lays down in a provision to section 1(4)". "Nothing contained in this Act shall effect the personal laws, religious freedom, traditions, custom and way of life of the non-Muslims".
When every field of life is Islamised, how on earth can the non-Muslims lead their own way of life? There has been a serious invasion against the personal laws of non-Muslims. And the institution of marriage has been rendered as a fragile thing because the laws are interpreted according to the injunctions of Islam. I may inform you that ours is a feudal society. Abduction of non-Muslim women (who belong to the marginalised section of the society) is a common feature. The Muslim abductor forcibly takes away a married Christian woman. In order to avoid the rigours of penal law, he converts the abductee to Islam and undergoes the procedure of Islamic marriage with her. The whole exercise is undertaken in such a mechanical manner that the law is made a sheer mockery. It is practically a preparation of the required papers in this whole exercise. Since Islamic Shariah has become the supreme law, and the statute law is to be interpreted according to the injunctions of Islam, her earlier marriage under the Christian Marriage Act stands dissolved ipso facto. Why, because she has now embraced Islam and thus her personal law shall prevail. Islam does not allow a Muslim woman to get married with a non-Muslim man. Her fist husband being Christian shall cease to hold that marital status with her. This situation has many times created serious problems regarding custody and guardianship of minor children born out Christian wedlock.
Judicial System Shaken
The judicial system was completely disturbed. The Constitution was amended and Federal Shariat Court was constituted to adjudicate appeal of cases under Shariah law. Under Article 230- D of the Constitution, the Federal Shariat Court has been empowered to strike down any statute law which may be deemed repugnant to the injunctions of Islam. The establishment of Shariat Court has introduced a parallel judicial system and has dealt a serious blow to the supremacy of Parliament. It would not be out of place to mention here that although Shariah laws are applicable to non-Muslims but a non-Muslim lawyer is not entitled to appear as a legal practitioner before this Federal Shariat Court.
Non-Muslim Rights Abused
A stunning blow causing serious damage to the socio-political status of non-Muslim citizen was administered through amendments to the electoral law in 1979. This amendment introduced an apartheid mode of separate electorates in the country vide President's Order 14 of 1985. The electoral laws were changed and framed in a manner which divided citizens on the basis of religion. The electoral lists have been separated as Muslim voters and non-Muslim voters. Both cannot vote for each other. At the time of general elections it appears as if two nations are living in this country. The delimitation of constituencies of non-Muslims is rather ridiculous. It's the whole country for National Assembly seats reserved for non-Muslims and likewise the whole of province for the reserved seats in Provincial Assemblies. The non-Muslim citizens stand marginalised under this apartheid mode of separate electorates as they have been thrown out of the mainstream of national life. They are no more part of the business of the state as their right of franchise has been subjected to religious classification. This renders them as second class citizens of the state.
The legislative measures introduced to Islamise the society leave no room for non-Muslims to freely profess and practise their religion. The sectarian legislation based on supremacy of one particular religion, i.e. Islam has promoted a culture of religious intolerance. Religion has played a vital role in human development but wherever and whenever it was used for purposes opposed to its inherent spirit of peace, brotherhood and social justice, it not only lost its relevance in the process of social development but its image was also tarnished in the minds of those who were subjected to oppressive measures adopted in the name of religion.
The law on blasphemy also belongs to this era when the country was under military rule. The subject law is part of the Penal Code of Pakistan. Its Chapter XV deals with offences relating to religion, which contains Sections 295 to 298. The British during their colonial rule framed the Indian Penal Code in 1860. The authors of the Penal Code deemed it proper to provide a preface to Chapter XV dealing with offences relating to religion. And the same is reproduced as under, " The principle on which this chapter has been framed is a principle on which it would be desirable that all Governments should act, but from which the British Government in India cannot depart without risking the dissolution of society : it is this, that every man should be suffered to profess his own religion, and that no man should be suffered to insult the religion of another."
The British authors were conscious of the religious feelings of the people of the multi- ethnic and multi-religious Indian culture. And it was perhaps for this reason that the authors provided the afore-mentioned preface.
Section 295 provided: "Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both."
It may be mentioned here that these provisions still exist on the statute book as framed in 1860. During the independence movement in early twentieth century in India, religious decrees were also used to accelerate the pace of struggle. In those days different religious groups fanned religious sentiments of the people. However, the process of polemics continued in the society in an atmosphere of religious tolerance.
The British, however, were obliged to add a new section as 295-A because a Hindu writer (Raj Pal) published a book on Prophet Mohammed about which the Indian Muslims took serious exception as some objectionable material amounting to insult to the Prophet was observed. Agitation by the Muslims continued for some time. The writer was later murdered by a Muslim zealot (Illam Din). Resultantly the following section was introduced in 1927: " Whoever with deliberate and malicious intention of outraging the religious feelings of any class of His Majesty's subjects, by words, either spoken or written, or by visible representation, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both."
As adapted in the Pakistan Penal Code the words "His Majesty's subjects", were deleted and "the citizens of Pakistan" were incorporated. At the same time a punishment of "ten years" was substituted in place of "two years" in the original. The change was effected through the Criminal Law (Third Amendment) Ordinance XXI of 1991.
A new Section 295-B was introduced vide Ordinance 1 of 1982 to deal with defiling of the Holy Quran. This section reads as follows: "Whoever wilfully defiles, damages or desecrates a copy of the Holy Quran or of an extract therefrom or uses it in any derogatory manner or for any unlawful purpose shall be punishable with imprisonment for life".
As days passed, religious extremism grew. Religion was used in politics to steal a march over rivals. Gen. Zia formed a Parliament on the Islamic pattern, called Majlis-e-Shoora. Through this Assembly of chosen 'representatives' Section 295-C was added. It is reproduced as below: "295-C: Whoever by word, 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".
Gen. Zia, through a constitutional amendment, constituted the Federal Shariat Court which under the new Article 203-D had the following powers and jurisdiction.
"203-D (1). The Court may (either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government) examine and decide the question whether or not any law or provisions of law is repugnant to the injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet hereinafter referred to as the injunctions of Islam".
The story does not end here. A petition was moved before the Federal Shariat Court for declaring the punishment provided in Section 295-C, null and void, as the same was repugnant to Quran and Sunnah. The plea was made that the injunctions of Islam provide punishment in the form of Hadd only, and not otherwise, and that too in mandatory form - meaning thereby that the punishment of life imprisonment was void and thus be deleted and mandatory punishment of death be retained. The Shariat Court accepted the petition. The relevant part of the judgement of October 30, 1990, is reproduced below:
"In view of the above discussion we are of the view that the alternate punishment of life imprisonment as provided in Section 295-C PPC is repugnant to the Injunctions of Islam as given in Holy Quran and Sunnah and therefore, the said words be deleted therefrom".
"A copy of this Order shall be sent to the President of Pakistan under Article 203-D (3) of the Constitution to take steps to amend the law so as to bring the same in conformity with the injunctions of Islam. In case, this is not done by April 30 1991 the words" or imprisonment for life" in Section 295-C, PPC shall cease to have effect on that date. Therefore, now there is only one punishment provided in section 295-C and that is the death penalty.
The rest of the amendment in this chapter particularly relates to Ahmadies in the form of 298-A, 298-B and 298-C. I will not discuss them now due to time constraints.
It would not be out of place to mention here that till the pronouncement of this judgement, by the Federal Shariat Court, which provide mandatory death penalty, no case of blasphemy was reported to have been registered under Section 295-B or 295-C PPC. The amended sections are so wide in their connotation, including 'innuendo' or 'insinuation', that to allege blasphemy against any one has been made so easy. The import of these provisions is quite vague in nature. These provisions are discriminatory as supposedly these are meant to Islamise the criminal law whereas these are applicable to non-Muslims as well. A non-Muslim is supposed to adhere to his own belief. And if a non-Muslim professes his belief publicly that would amount to blasphemy according to the amended provisions. Thus, these amendments in the Pakistan Penal Code relating religion have cast the net wide open to rope in anyone on mere allegation of blasphemy. And once someone is charged with this offence, he is doomed as the offence is non-bailable, the death penalty is mandatory in law, justice is being subjected to sectarian affiliation and because religious frenzy is being promoted in the society by the vested interests and the religious fundamentalists.
The Blasphemy Law in Pakistan and its Impact
(Ed. note: In July's issue of Human Rights SOLIDARITY Naeem Shakir has given an in-depth analysis of the origin and the impact of the law. The second part of the article consists of vivid accounts of how Christians are being victimised under such tyrannical law.)
Since I have been involved as a defence lawyer in high profile cases about blasphemy, I have painfully experienced the tyrannical nature of this law. Apart from the accused, the lawyers, and even judges are not safe in this highly vulnerable situation. Before winding up I would like to give a few examples of blasphemy cases against Christians.
" Conversion from Islam to Christianity is in itself a cognisable offence"
Tahir Iqbal was a Christian convert from Islam. He had suffered from paralysis. The lower part of his body had been paralysed rendering him invalid. He could not walk. He could not stand even. He used a wheel chair. He was an engine mechanic in the Pakistan Air Force. His conversion to Christianity had annoyed Muslims. He lived in the southern part of Lahore close to a mosque. The Muslim cleric in charge of that mosque finally decided to teach him a lesson. He got a case of blasphemy registered against him on December 7, 1990, alleging that "when he recites 'Azaan' (call for prayer) early in the morning in the mosque, Tahir Iqbal feels infuriated and starts abusing Prophet Mohammed at the top of his voice, imparts anti-Islamic education to children who come to him for tuition, has defiled Holy Quran by underlining with green marker, and thus has seriously injured our religious feelings."
He was arrested by the police on blasphemy charges and that's all. He was doomed. Despite his physical inability, he was not bailed out. As earlier stated, justice has been subjected to sectarian affiliations. A very crude example may be cited of Tahir Iqbal. The Sessions Judge who dismissed his bail application on July 7, 1991, passed the following order:
"Learned counsel for the petitioner has conceded before me that the petitioner has converted as Christian. With this admission on the part of petitioner's counsel there is no need to probe further into the allegations as contained in the FIR because learned DDA has disclosed that charge has already been framed and the accused is facing trial. Since conversion from Islam to Christianity is in itself a cognisable offence involving serious implication, I do not consider the petitioner entitled to the concession of bail at this stage".
Though it is needless to comment, it may be mentioned that no law in Pakistan has yet been framed which makes conversion from Islam to Christianity a cognisable offence. The case was fixed for recording of prosecution evidence on July 21, 1992, before the Sessions Court. When I as the defense lawyer, appeared in the court I was informed by the State Counsel that the accused had died in the jail the previous night. Tahir Iqbal was poisoned to death in jail under a conspiracy about which he had informed all authorities concerned beforehand. He was killed because he had embraced Christianity.
Innocent People Seek Asylum
Chand Barkat, 28, a bangle stall holder in Mangle Bazar, Karachi was charged with blasphemy by a co-bangle vendor because of professional jealousy. Arif Hussain used to sit beside him for selling bangles in the bazaar. He did not tolerate women going to Chand Barkat, a Christian, for buying bangles. One day Arif warned him to quit that place as otherwise he would teach him a lesson. Chand Barkat did not leave the place. Arif involved Chand Barkat in a case of blasphemy on October 8, 1991, alleging that he used derogatory language against Prophet Muhammad and his mother. He was charged under Section 295-C. Chand Barkat was acquitted by the Sessions Court for want of evidence.
Gull Masih of Faisalabad was charged under section 295-C for using sacrilegious language about the Prophet and his wives on December 10, 1991. The complainant Sajjad Hussain, had a quarrel with him over repair of a street water tap. Out of this quarrel had emanated the blasphemy case. Gull Masih was tried under the blasphemy law and sentenced to death by the Sessions Court, Sargodha, on November 2, 1992. This death sentence created a commotion. Human rights organisations and the Church agitated against the death sentence. We filed a criminal appeal in the High Court against the judgement of the Sessions Judge. Gull Masih was bailed out neither by the Sessions Court nor by the High Court. I moved an application for early hearing in the High Court but it took two years for the final hearing. The appeal was heard by the Division Bench of the Lahore High Court, which held that it was a case of no evidence and thus set aside the death sentence and acquitted Gull Masih. It became difficult for Gull Masih to come out of jail as religious fundamentalists had warned of dire consequences. He had to be kept under tight security. Later, in order to save his life, arrangements were made for his exit quietly. He is now in Germany on asylum.
Winning Heaven by Killing Blasphemer
Naimat Ahmar 43, a Christian teacher and a poet and writer of Faisalabad, was butchered by Farooq Ahmad, a young member of a militant religious group (ASSP) on the premises of office of the District Education Officer, Faisalabad, at 10 a.m. while on duty. The religious zealot killed him because the deceased had reportedly used highly insulting remarks against Islam and Prophet Mohammed. No case of blasphemy was registered against the deceased. He was not tried by any court. The young religious extremist, as briefed by his organisation, took the law in his own hands and killed the poet, writer and teacher, leaving behind a widow and four children. The killer was charged with murder. He made a confession. He was garlanded in jail by religious clerics. The statement of the killer was published in the press that by killing a blasphemer he had won heaven.
The trial court sentenced him to fourteen years� imprisonment. His appeal to set aside the sentence is pending in the High Court, and I am representing the complainant who is the younger brother of the deceased.
A minor, Salamat Masih, 12 years old, along with Manzoor Masih, 37, and Rehamat Masih, 42, of Gujranwala, were charged with writing derogatory remarks against Prophet Mohammed on the wall of the mosque of the village where they lived. All the three were in fact illiterate and did not know to write. The case of the minor became a high-profile case in the world media.
We got the case transferred to Lahore through the High Court because each time we went to the Sessions Court in Gujranwala, religious extremists would gather in front of the courtroom with banners urging immediate execution of the alleged blasphemers. They used to pose threats to the lawyers coming from Lahore and none of the local lawyers dared to defend the accused. The case was later heard by the Sessions Judge of Lahore. The court, on our request, provided police guards to escort the accused and their lawyer from his office to court and back to his office. On June 5, 1994 the three accused were brought back by the police guards to my office, and after staying for about half an hour they left for their place of hibernation. They had hardly crossed about 500 yards away from my office when they were attacked by armed religious militants with guns. Manzoor Masih died on the spot while the other two accused and their escort, John Joseph, sustained grievous injures. The murder of Manzoor Masih increased the sense of insecurity among Christians. There was countrywide agitation by the Christians demanding repeal of the blasphemy law and security to their lives in the country.
The Sessions Court of Lahore, convicted the remaining two accused and passed death sentence against them. The death sentence against the minor attracted the attention of human rights activists the world over. The High Court, however, while adjudicating their appeal against conviction, acquitted them declaring that it was a case of no evidence. They had to flee the country to save their lives. They are also living in Germany on asylum. One of the senior judges of the Division Bench, which acquitted the two Christians, was murdered by a religious extremist on that very account.
Bantu Masih, 80, and Mukhtar Masih, 50, were arrested on the allegation of committing blasphemy. Both died under police custody. Bantu Masih was stabbed by a fundamentalist in the presence of policemen. He later succumbed to his injuries whereas Mukhtar Masih was tortured to death at the police station. There are many other cases of like nature against Christians, Muslims and Ahmadis. The plight of Ahmadis is much worse. The record shows that such cases were framed maliciously for settling personal scores or for religious persecution. The Christians are demanding repeal of the amended provisions of the law on blasphemy, but the Muslim fundamentalists are threatening that in case the law is repealed or changed they would overthrow the government. They are also using threatening language for the non-Muslim citizens among whom sense of insecurity is growing fast.
I hope that the examples of these cases would help better understanding of the situation we are faced with. We are in difficult times. We need support from around the world from all those who respect human rights, as their strong voice does have an impact on the forces who are responsible for this situation. We, however, know that basically it is through the political struggle launched by secular and progressive forces that we can make our society tolerant and civilised.
