The public outrage witnessed after Mashal Khan’s brutal killing and excesses committed on his lifeless body is perhaps unprecedented in such cases. The National Assembly and Senate have called for measures to prevent killings in the name of belief. In a remarkable demonstration of unity of thought, twelve former presidents of the Supreme Court Bar Association have called for an end to vigilante violence.
Does this mean a critical mass of the people has awakened to the need for a fresh discussion on the blasphemy law and procedure? Is it possible to end the regime of silence on this issue?
How this rule of silence has influenced the course of events in the country can be described in a few paragraphs.
When the first bill to add Section 295-C to the Penal Code, prescribing death or life imprisonment for ‘defiling’ the name of the Holy Prophet (PBUH), was being debated in Ziaul Haq’s partyless National Assembly, a religious party member of parliament called for closure of debate. The matter was not open to question, he said, and the house was about to be adjourned. Hence, it was necessary to pass the bill without any delay.
Three objections were raised to the proposed legislation at the very outset. First, it was wrong to use “defiling” for the name of an exalted human being as only inanimate objects could be defiled. Secondly, the bill disregarded the absence of intent that made offences punishable. And, thirdly, there was no unanimity among Islamic scholars on the punishment for blasphemy and the text of Section 295-C. No debate was possible on these questions.
Later on, the religious lobby expressed annoyance with the law ministry, and with law minister Iqbal Ahmad Khan, in particular, for inserting an alternative punishment into the bill while its mover had only called for capital punishment. The matter was taken to the Federal Shariat Court, which held that death was mandatory punishment under Section 295-C.
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There was no unanimity of views on blasphemy and punishment for it among the scholars who appeared before the Shariat Court. A leading lawyer who had been a consultant to the Ministry of Religious Affairs argued that a Muslim who committed blasphemy, deliberately or unintentionally, could be forgiven if he sincerely repented, and that no non-Muslim could be prosecuted for blasphemy. He was not the only one to argue like this.
However, the Federal Shariat Court held that for an offence falling under Section 295-C only death penalty could be awarded, though it conceded the point that establishment of intent to commit blasphemy was necessary to hold anyone guilty. It also proposed that disrespect for heads of other denominations also needed to be criminalised. The court and the petitioners both expressed concern at the possibility of the law being abused. These recommendations and concerns remain unaddressed to this day.
The National Assembly took up the motion to delete the alternative punishment (life imprisonment) from Section 295-C, in compliance with the Shariat Court order — the possibility of an appeal against it was obviously out of the question. The relevant standing committee found the text much too vague and liable to misinterpretation. It also recommended a survey to find out how the various Muslim states dealt with blasphemy-related matters.
This report of the Standing Committee was published in the Gazette under the label ‘Confidential’. In other words, it was not to be discussed. The National Assembly, obviously, took no notice of the committee’s report. Again, the house was going to be adjourned sine die and there was no time to discuss the merits of the extraordinary piece of legislation. The motion to delete the alternative punishment was quickly adopted.
A similar motion was required to be adopted by the Senate. It is not clear that this formality has at all been completed. Such is the fear of touching Section 295-C in any way that governments have been afraid of completing legislative formalities even.
Deletion of the alternative punishment from Section 295-C was, however, a minor formality as the Shariat Court decision had taken effect early in 1991, and the frequency with which cases had begun to be filed under the provision caused much concern among the people.
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The Benazir Bhutto government thought of meeting some of the objections to Section 295-C but was forced by the orthodoxy’s threats to give up the idea. It did, however, tell the administration not to arrest anyone under this section unless a sound case had been made out against him. And the incidence of blasphemy cases did come down.
The Nawaz Sharif government accepted the need for changes in the procedure applicable to 295-C cases though not in the section itself. He backed out at the first volley of thunder from the conservative lobby.
General Musharraf announced his intention to make procedural changes to ensure that innocent people were not harassed and left for Kirgizia. He did not wait for his return flight before denying any such plan.
As a result, a climate of fear has assiduously been created in which the flaws in Sec 295-C and in other Zia-period laws about offences relating to religion cannot be discussed. Attempts made to ensure that arrests for blasphemy can be sanctioned only by senior officers (SP) have had little impact. There is no doubt that these man-made laws are at a lower level of sanctity than other man-made laws that are considered part of the Sharia code and these cannot be raised to the status of divine injunctions.
It seems the ulema themselves, at least most of them, also are afraid of deideologising the issue. Yet one welcomes statements, such as Maulana Fazlur Rahman has made, to the effect that the abuse of the blasphemy law should be checked. Pakistani religious leaders do not go even as far as the Saudi scholar, who was recently touring Pakistan, went when he called for action against the sick people who accused others of blasphemy.
Now that a series of extra-legal killings of citizens on the suspicion of having committed blasphemy, before they are found guilty of the offence, has brought the issue in public domain, the government should seize the opportunity to scrutinise all penal code provisions on offences relating to religion. The exercise may begin with an analysis of superior courts’ judgments that over-ruled the trial courts’ verdicts. This is necessary to test the widely-held view that in many, if not most, of the blasphemy cases the law is invoked to settle personal scores with the accused.
Incidentally, the call for improvements in the blasphemy law and for firmer guarantees against its abuse has been upheld by the Supreme Court in its judgment in the Mumtaz Qadri case.
The issue is not one of tolerating disrespect to the Prophet of Islam (PBUH); respect for him is an article of faith with all Muslims across the globe. But the love of the Prophet (PBUH) also rules out taking anyone’s life on the basis of unsubstantiated accusation or mutilating the victims’ bodies.