In most functioning legal systems in the world there would be little doubt that one person murdering another in broad daylight was going to be convicted. But where religion is involved matters are not so simple in Pakistan.
There is a debilitating air of fear that surrounds this topic of blasphemy in our discourse — and there is a long list of individuals who have either lost their lives or been forced to run from this country only because they raised issues with injustices stemming from the application of this law.
The Honourable Supreme Court of Pakistan’s decision that confirmed Mumtaz Qadri’s conviction and death sentence is a momentous event in our violent and difficult history of dealing with the law as well as discourse surrounding blasphemy. Without getting into the specifics of the ruling, it is important to remember that Qadri’s act of vigilante violence was also condemned by the Honourable Islamabad High Court. Seen as a pure issue of applying the law, the conclusions reached in the appeals filed by Qadri do not break any new ground. However, being so simplistic would be missing the point and magnitude of what happened. In remarks made from the bench, in both tiers of appeals, our courts made it clear that criticism of a law is not blasphemy itself. Furthermore, only the state has the power to act when an alleged offence has been committed. Vigilante violence, therefore, stands condemned.
Judiciaries, throughout the world, are of course responsible for setting out the law of the land —but they are equally involved in shaping discourse regarding the law. They act as a mediator between the state and its subjects, shaping in enormously significant ways the way a law is perceived and received. Vigilante violence in the name of religion is a serious problem in Pakistan. Even our judges and lawyers have faced violence from religious extremists — as far back as the 1980s. No one should expect the judiciary in any country to be the main architects of a legal system. That is the job of the legislators. Furthermore, where a state cannot ensure physical security of its judges it is particularly unfair to expect judges to give radically reformative rulings on contentious subjects.
But judges, as well as lawyers, of course directly deal with the consequences of laws as well as practices of citizens. Violence stemming from distortions of religious teachings in Pakistan has caused many to question whether the judiciary has the courage to put its foot down against vigilante violence. Qadri’s cases (before the Islamabad High Court as well as the Supreme Court) answer that question: the judiciary is sending a clear message that while it is not its job to re-write the law, it will guard against the abuse of the law, even and especially if in the name of religion.
In a country plagued with violence regarding the subject of blasphemy this is no small feat.
Also remember that, from a security perspective, judges hearing cases where violent emotions run high are easily singled out — as opposed to legislators acting or omitting to act among hundreds.
Therefore, no one should doubt the courage displayed by the judiciary.
Of course this does not mean that things and attitudes will fundamentally change. But at least we have made a start. Granted that there are a large number of cases related to vigilante violence but let us not forget the importance of symbolism here. The judiciary’s refusal to buckle down before societal pressure in a case as important as Salmaan Taseer’s is of immense significance and augurs well for the future. Critics might say that this case is just one example but even one example of a major ruling matters immensely. Symbolism affects citizens and the state. It speaks to them about what to expect in the future. And the latest rulings send out the right message.
The law has been applied and, as per law, Qadri’s sentence has been determined to be death. But there is also a debate beyond the law here regarding the desirability of the death penalty. Of course, no one should expect judges to re-write the law on death penalty — that is again a decision for the legislators. Judges’ personal notions of what is ‘fair’ cannot trump the law. In fact one could even argue that, in cases where a crime punishable by mandatory death sentence is established by the prosecution, a judge’s refusal (based on his conscience) to apply the law would be unfair.
But that is the law. Our society must debate the virtues, or lack thereof, of the death penalty independent of individual cases. Those who oppose the death penalty, if they do so, must make it clear that they oppose it on principle, without making convenient and selective exceptions. The opposition to death penalty is not simply rooted in a fear of mistakes regarding the true facts of a case, or killing an innocent. You cannot be ‘anti-death penalty’ only in cases of the innocent — that means you are against miscarriages of justice, not against the death penalty. And that position is perfectly defensible but it is important to remain aware of the distinction. The opposition to the death penalty as a state practice is rooted in a fundamental belief that the death penalty violates human dignity, that it does not behove the state to kill, in its own name or that of citizens, because a convicted citizen committed a particular crime. The principled argument against death penalty rejects violence as a solution to violence. And, of course, there is a strong case based on empirical evidence that the death penalty does not work as the deterrent which many believe it to be.
There are those who claim that they are uncertain about the desirability of the death penalty — yet I find it surprising that uncertainty (which is understandable) can allow someone to condone taking away of a life. How does uncertainty about whether someone should be killed by the state not result in opposition to such killing? It is uncertainty about the taking away of a human life we are talking about. Whoever is uncertain about the efficacy or desirability of the death penalty should have no qualms opposing it.
For my part, I think the Islamabad High Court and the Supreme Court acted courageously. They applied the law and we should all derive hope from this conviction. Those who disagree with the sentence should remember that the courts applied the sentence as per law. They got the law right. But it is open to the citizens to oppose on principle the state’s policy of awarding the death penalty and take up that issue with the legislators. No one should expect the courts to answer this question.