By Jiou Park
Among the many countries with blasphemy laws currently in force, Pakistan has perhaps received the most attention from the international community for their particular harshness.[1] In particular, Pakistan’s blasphemy laws have been criticized as a tool of repression against religious minorities, including the minority Shī’īs as well as Christians and Aḥmadīs. It has also been criticized as a being particularly problematic in regard to its application to the mentally ill.[2]
In contradiction to this strong association of Pakistan’s blasphemy laws with (extremist) Islamism and religious intolerance, the legal structure of the blasphemy laws and their use are of rather shaky theological grounding. Instead, these laws have especially colonial origins. The so-called blasphemy laws of Pakistan generally refer to provisions 295 to 298 of the Pakistani Penal Code, which is grounded in the 1860 Indian Penal Code established by the British colonial government. In 1927, the British authorities enacted the following Section 295(a), which aimed to prevent religious tensions between the Muslims and Hindus at the time.[3]
295-A.Deliberate and malicious acts intended to outrage religious feelings of any class by insulting Its religion or religious beliefs:
Whoever, with deliberate and malicious intention of outraging the ‘religious feelings of any class of the citizens of Pakistan, by words, either spoken or written, or by visible representations insults the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.[4]
Upon partition of India into Pakistan, the 1860 code was largely incorporated into the Pakistani legal system with minor changes.[5]
The provision remained sparsely used until a series of amendments in the 1980s that introduced more specific crimes as well as harsher punishments. That only reported cases of blasphemy of blasphemy were between 1927 and 1980, whereas more than 4000 cases have been reported since 1980, starkly illustrates this point.[6]
The amendments of the 1980s were part of the military government of General Zia-ul Haq, who pushed an agenda of “Islamicization” in order to garner support from the religious and the middle class. In 1980, his government introduced Section 298(a), which stated that:
298-A.Use of derogatory remarks, etc., in respect of holy personages:
Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo or insinuation, directly or indirectly, defiles the sacred name of any wife (Ummul Mumineen), or members of the family (Ahle-bait), of the Holy Prophet (peace be upon him), or any of the righteous Caliphs (Khulafa-e-Rashideen) or companions (Sahaaba) of the Holy Prophet (peace be upon him) shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.[7]
The 1980 amendment was understood as aiming for the repression of the Shī’ī minority of Pakistan, who comprise about 10% of its population, and signaling the regime’s intention to take over the control what constitutes Islamic orthodoxy.
In 1982, the government further amended the law to include Section 295(b), which stated that:
“295-B. Defiling, etc., of Holy Qur’an: Whoever willfully defiles, damages or desecrates a copy of the Holy Qur’an or of an extract therefrom or uses it in any derogatory manner or for any unlawful purpose shall be punishable with imprisonment for life.”[8]
The particularly harsh punishment of life imprisonment signaled a departure from the relatively minor penalties of previously enacted provisions, which only provided imprisonment of up to three years.
Finally, in 1986, the government enacted Section 295(c), adding the death penalty as a possible punishment for the crime of blasphemy. Although Section 295(c) has been used to condemn several people to the death penalty, executions under Section 295(c) are yet to be carried out due to a moratorium on the death penalty.[9]
295-C. Use of derogatory remarks, etc., in respect of the Holy Prophet:
Whoever by words, 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.[10]
Pakistan’s constitution, although declaring, in Article 1, that Pakistan’s official name as the “Islamic Republic of Pakistan,”[11] and in Article 2 that “Islam shall the State religion of Pakistan,”[12] does not explicitly adopt sharī‘a as a legislative source, in contrast to countries such as Egypt and Iran.[13] Thus, unlike the clear constitutional status of Islam in Pakistan, the constitutional status of sharia in the Pakistani legal system remain limited to a repugnancy clause in Article 227 of the Constitution:
- PROVISIONS RELATING TO THE HOLY QURAN AND SUNNAH
- All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.
Explanation.- In the application of this clause to the personal law of any Muslim sect, the expression “Quran and Sunnah” shall mean the Quran and Sunnah as interpreted by the sect.
- Effect shall be given to the provisions of clause (1) only in the manner provided in this Part.
- Nothing in this Part shall affect the personal laws of non-Muslim citizens or their status as citizens.[14]
Thus, the current constitutionality of the blasphemy laws rests not on the status of sharia in the Pakistani legal system, but rather on the following constitutional provisions mandating that the Islamic way of life be encouraged:
- ISLAMIC WAY OF LIFE
- Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah.
- The State shall endeavour, as respects the Muslims of Pakistan,-
a.to make the teaching of the Holy Quran and Islamiat compulsory, to encourage and facilitate the learning of Arabic language and to secure correct and exact printing and publishing of the Holy Quran;
b.to promote unity and the observance of the Islamic moral standards; and
c.to secure the proper organisation of zakat ushr, auqaf and mosques.[15]
Despite these rather shaky groundings, both theologically and constitutionally, the blasphemy laws have continued to be used widely even after the fall of the Zia ul-Haq regime. The vagueness of the provisions and the high penalties, combined with the significant political and security pressure that can be imposed by the religious extremist groups, have resulted in deeply problematic applications of the law, both legally and extralegally.
The extralegal dimension of the blasphemy laws can be seen in the number of people who are murdered before or during trial. In fact, although no one has been executed under the blasphemy laws, more than 20 people have been murdered for alleged blasphemy, and lawyers who decide to defend blasphemy cases have fallen victim to violence as well.[16] Politicians who pushed for the reform of the blasphemy law have not remained secure either, as can be seen from the murder of then Punjab governor Salman Taseer, who was shot dead in January 2011 after publicly expressing support to a woman charged with blasphemy, and advocating for the need of reform of the blasphemy laws.[17] Three months following the murder of Taseer, Shahbaz Bhatti, the then Minister for Minorities, who has also publicly supported the reform of blasphemy laws, was also shot dead.[18] In conjunction to the extreme level of violence charges of blasphemy or opposition to blasphemy laws can incite, blasphemy charges are increasingly used to settle property or political dispute due to the low evidentiary requirements.
As it currently exists, the blasphemy laws of Pakistan are an example of how a weak rule of law system, combined with the political willingness to incite and exploit religious sentiments can lead to gross abuses when met with vague criminal provisions with harsh penalties.
Notes:
[1] See, e.g., Freedom House Blasphemy Laws – Policing Belief https://freedomhouse.org/sites/default/files/Policing_Belief_Full.pdf; UN Special Rapporteur on Ahmadis; Human Rights Watch editorial http://www.hrw.org/news/2014/12/15/pakistan-s-blasphemy-law-goes-bollywood; Pakistan’s Tyranny of Blasphemy, http://www.nytimes.com/2014/05/21/opinion/pakistans-tyranny-of-blasphemy.html?_r=0.
[2] See id; see also Muzaffar Huasain, Blasphemy law and mental illness in Pakistan, The Psychiatric Bulletin, 2014 Feb; 38(1): 40-44, accessible at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4067851/.
[3] Dawn, Blasphemy Laws, a Fact Sheet, Apr. 15, 2010, available at http://www.dawn.com/news/845129/blasphemy-laws-a-fact-sheet .
[4] Pakistan Penal Code, art. 295(a).
[5] Id.
[6] http://www.eepa.be/wcm/dmdocuments/EP_Hearing_Pakistan/Blasphemy_law_fact_sheet.pdf
[7] Pakistan Penal Code, Second Amendment Ordinance XLIV of 1980.
[8] Pakistan Penal Code, Amendment Ordinance I of 1982.
[9] Freedom House, Policing Belief at 69, available at https://freedomhouse.org/sites/default/files/Policing_Belief_Full.pdf.
[10] Criminal Law Amendment Act, III of 1985, S. 2.
[11] Constitution of Pakistan, art. 1.
[12] Constitution of Pakistan, art. 2.
[13] The Constitution of Egypt declares, in Article 2, that “the principles of Sharia law are the main source of legislation.” Similarly, the Iranian constitution declares that … Constitution of Egypt, art. 2.
[14] Constitution of Pakistan, art. 227.
[15] Constitution of Pakistan, art. 31.
[16] Dawn, Blasphemy Laws, a Fact Sheet, Apr. 15, 2010, accessible at http://www.dawn.com/news/845129/blasphemy-laws-a-fact-sheet .
[17] http://www.reuters.com/article/2015/03/09/us-pakistan-blasphemy-idUSKBN0M50LT20150309.
[18] http://www.cnn.com/2011/WORLD/asiapcf/03/02/pakistan.minister.shot/.