By Aleema Jamal
The Asia Bibi case is one of the recent manifestations of the blasphemy laws in Pakistan. The Applicant, Asia Bibi, a Christian woman, was sentenced to death by the trial court after allegedly uttering blasphemous statements against the Prophet Mohamed to fellow Muslim field workers. Despite serious questions regarding the quality of her defense and the truthfulness of the allegations against her, the appeal to the Lahore High Court was dismissed. Subsequently, the Pakistani Supreme Court agreed to hear Asia Bibi’s case, but the hearing was postponed after one of the Justices recused himself. It has not yet been rescheduled. This case is significant because it highlights the interaction between the judicial system, the legislature, and public opinion. I argue that Pakistan’s blasphemy laws and the public opinion that surrounds them creates a situation that makes it very difficult for those facing accusations to have a just legal proceeding.
The Asia Bibi case garnered significant international attention because a Pakistani court sentenced a Christian woman to death for violating Pakistan’s anti-blasphemy laws in contravention of well-established international human rights laws.[1] This case exemplifies the way in which public opinion may alter the outcomes of the judicial system, which is largely unconstrained by Pakistan’s Constitution in matters relating to Islamic law. In addition, public opinion also features in the deliberations of legislative bodies through their elected representatives. This fact raises the broader question of how the law, judiciary, and legislature can best interact in religious societies to protect religious minorities from oscillating popular opinion.
The trifecta of public opinion, executive and legislative power, and the judicial system have all contributed to the harsh treatment of blasphemy cases in Pakistan. The codification of blasphemy in Pakistan’s Penal Code was the result of a conscious decision by President Zia-ul-Haq to build political support with Pakistan’s right wing in the 1980s.[2] However, Pakistan’s state-led discrimination against religious minorities began as early as the 1950s with a concerted effort in the 1970s to pass legislation targeting religious minorities during the time of President Zulfikar Bhutto.[3] Since then, multiple sectors of Pakistani society have contributed to enforcing these regulations stringently. In 1990, the federal Shariat Court, Pakistan’s Islamic court, issued a ruling that the only appropriate penalty for blasphemy against the Prophet is death.[4] In the face of silence from the Government, the law was codified, backed by Article 203(D) of Pakistan’s Constitution,[5] which states that “if any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam, such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect.”[6] These complex developments shaped the outcome of Asia Bibi’s case and other blasphemy cases like hers.
The Asia Bibi appellate opinion highlights the “he said, she said” nature of blasphemy offenses. Two witnesses constituted the entirety of the prosecution’s case. Both claimed that Asia Bibi stated that the Prophet Muhammad “fell ill on the bed one month prior to his death and … the insects were developed/created in his mouth and ear.”[7] These witnesses further accused Asia Bibi of declaring that Muhammad married Khadija (his first wife) “in order to loot her wealth.”[8]
The broader circumstances surrounding the blasphemy accusations should have prompted more scrutiny by the court. First, the alleged blasphemous statements were made after an altercation between the women over fetching water. When Asia Bibi offered to fetch water, heated words were exchanged when the women stated that “they never took water from the hand of a Christian.”[9] In Asia’s opinion, the plaintiffs falsely created the blasphemous statements in anger.[10] Asia further claimed in her sworn statement that “I offered my oath to police on the Bible that I had never passed such derogatory and shameful remarks against the Holy Prophet (PBUH) and the Holy Quran,” and further that “I am Christian in the village, so, being ignorant of any Islamic thought, how can I use such clumsy and derogatory remarks against the beloved Prophet (PBUH)…?”[11] Without corroborating evidence, the picture of events was murky at best.
Ultimately, the court convicted Asia because her defense team did not mount a proper defense. They did not cross-examine the witnesses, and instead presumed that their statements were true.[12] In addition, the Court found that the witness statements were “consistent and straightforward…regarding the actual occurrence,” which led them to accept the testimony at face value.[13] Despite the Court’s recognition that “the defence ha[d] not defended its case with the required seriousness,”[14] it still affirmed the death penalty imposed by the trial court.
Upon first glance, it appears that the judicial process was rigged against Asia Bibi from the outset. Regardless of whether Asia’s statements actually constituted blasphemy, this case demonstrates that uncorroborated testimony is enough to sentence an individual to death.
However, this case is not an anomaly in the Pakistani context. Scholars on blasphemy have noted that it only takes one witness to secure a conviction and there was no requirement to prove intent.[15] The Pakistan Penal Code §295-C describes the blasphemy offense using broad language that leaves little room for combating false accusations.[16] Any sort of “derogatory remark,” carried out in a variety of ways, including “by imputation, innuendo…,” creates an offense.[17] Gender also plays a role. The testimony of a non-Muslim female carries less weight than that of a Muslim male under the Islamic court system in Pakistan. In fact, sources discuss varying weights of women’s testimony based on the type of crime, which can vary from one-half to one-fourths the testimony of a man, or be discarded all together.[18]
The Pakistani courts’ approach to blasphemy appears to follow widespread public opinion. Pakistan has the highest level of social hostilities centered around religion,[19] with over 75% of Pakistani Muslims viewing blasphemy laws as necessary to protect Islam in their country.[20] Moreover, even though blasphemy offenses are filed against Muslim citizens, these laws disproportionately target non-Muslims (over 50% of such cases[21] even though non-Muslims account for less than 4% of Pakistan’s population[22]). The U.S. Commission on International Religious Freedom reports that the laws “are often used to intimidate reform-minded Muslims, religious minorities, or to settle personal scores.”[23]
Public support for these blasphemy laws is also reflected in extrajudicial and vigilante violence. Although no one has been officially executed under the blasphemy laws since the 1980s, fueled by the laws and vice-versa, many have been killed by mobs and public targeting, “some only minutes after being acquitted.”[24] Since 1990, over 62 people have reportedly been murdered extra-judicially as a result of accusations of blasphemy.[25] Asia and her family were threatened directly, including by the Imam of her own village, who is reported to have said that he would kill her if she returns to her village.[26]
This mob-like attitude to blasphemy is extensive. It applies even to those who defend someone charged with blasphemy. In Asia Bibi’s case, one of her biggest advocates, Salman Taseer, the Governor of Punjab, was murdered.[27] Lawyers who defend accused blasphemers are likewise targeted,[28] and police fail to protect their homes and businesses.[29] In 2000, a Lahore High Court Judge, Nazir Akhtar, publicly stated that “Muslims have a religious obligation to kill anyone accused of blasphemy on the spot, with no need for legal proceedings.”[30] Accordingly, even lawyers who want to mount a rigorous defense of their clients often refrain from doing so out of fear for their personal safety. Pakistan’s blasphemy laws and the public opinion that surrounds them creates a situation in which it is very difficult for those facing accusations to obtain a just legal proceeding.
Ultimately, Asia Bibi’s case traveled all the way up to the Supreme Court of Pakistan. Issues to be heard by the Supreme Court appeared to be primarily procedural. For example, it took the prosecution five days to file a case against Asia after the alleged blasphemous incident. This delay created the appearance of impropriety on the prosecution’s side and could be enough to overturn her conviction.[31] Similarly, the failure of the defense to cross-examine the witnesses was another grounds for appeal.[32] However, much commentary points to the fact that the real reason why the Supreme Court agreed to hear her case had to do with the high levels of international pressure and media coverage.[33] The Supreme Court, however, delayed the appeal after one of its Justices recused himself due to a conflict of interest.[34] The hearing has not yet been rescheduled.[35]
Asia Bibi’s case demonstrates how the confluence of public opinion, the judicial system, and law in Pakistan have created a harsh regime of blasphemy cases. These cases have all “nurtured a culture of intolerance and extremism and [have] resulted in serious violations of the rights of religious minorities.”[36] Public opinion is enough in contemporary Pakistani society not only to influence the rigorousness of a legal defense for blasphemy, but also to create a high parallel probability for injury through extrajudicial punishment. The ultimate question is how in turn, to create the conditions for a legal system that can operate independently from public opinion to provide justice for those that come under its jurisdiction.
[1] See Javaid Rehman, Accommodating Religious Identities in an Islamic State: International Law, Freedom of Religion and the Rights of Religious Minorities, 7 Int’l. J. on Minority & Group Rts. 139, 143-44 (2000).
[2] See Riaz Hassan, Expressions of Religiosity and Blasphemy in Modern Societies, 35 Asian J. of Soc. Sci. 111, 115 (2007); see also Amalendu Misra, Life in Brackets, Minority Christians and Hegemonic Violence in Pakistan, 22 Int’l. J. on Minority & Group Rts. 157, 160 (2015).; see also Rehman, supra note 1, at 139, 156.
[3] See Misra, supra note 2, at 157, 160.
[4] See Hassan, supra note 2, at 111, 116.
[5] See Pakistan Const. art. 203(d), cl. 3(b); see also id.
[6] Pakistan Const. art. 203(d), cl. 3(b).
[7] Mst. Asia Bibi v. the State & another, (2010) HCJD/C-21 (Lahore High Court) (Pak.), at ¶12.
[8] Mst. Asia Bibi v. the State & another, at ¶12.
[9] Mst. Asia Bibi v. the State & another, at ¶6.
[10] See Mst. Asia Bibi v. the State & another.
[11] Mst. Asia Bibi v. the State & another, at ¶6.
[12] Mst. Asia Bibi v. the State & another, at ¶12.
[13] Mst. Asia Bibi v. the State & another, at ¶12.
[14] Mst. Asia Bibi v. the State & another, at ¶12.
[15] See Paul Marshall & Nina Shea, Silenced: How Apostasy and Blasphemy Codes are Choking Freedom Worldwide 86 (2011).
[16] Id.
[17] Use of Derogatory Remarks, etc., in Respect of the Holy Prophet §295-C, Pak. Penal Code (XLV of 1860) (Pak.).
[18] See Marshall & Shea, supra note 15, at 86; see also Sangh Mittra & Bachchan Kumar, Encyclopedia of Women in South Asia (Pakistan) 139 (2004); see also Bina Shah, The Fate of Feminism in Pakistan, N.Y. Times (Aug. 20, 2014), https://www.nytimes.com/2014/08/21/opinion/bina-shah-the-fate-of-feminism-in-pakistan.html.
[19] See Amalendu Misra, Life in Brackets, Minority Christians and Hegemonic Violence in Pakistan, 22 Int’l. J. on Minority & Group Rts. 157, 159 (2015).
[20] See Neha Sahgal, In Pakistan, Most Say Ahmadis Are Not Muslim, Pew Research Center (Sep. 10, 2013), http://www.pewresearch.org/fact-tank/2013/09/10/in-pakistan-most-say-ahmadis-are-not-muslim/.
[21] See Marshall & Shea, supra note 15, at 87.
[22] See Pakistan, CIA World Factbook (Sep. 27, 2017), https://www.cia.gov/library/publications/the-world-factbook/geos/pk.html.
[23] U.S. Department of State, International Religious Freedom Report: Pakistan, https://www.state.gov/j/drl/rls/irf/2006/71443.htm (2006).
[24] Marshall & Shea, supra note 15, at 88.
[25] See Blasphemy in Pakistan Bad-Mouthing, Economist (Nov. 27, 2014), https://www.economist.com/news/asia/21635070-pakistans-blasphemy-laws-legitimise-intolerance-bad-mouthing.
[26] See Asia Bibi: Pakistan Supreme Court Adjourns Death Row Appeal, BBC News (Oct. 13, 2016), http://www.bbc.com/news/world-asia-37641354.
[27] See The Guardian View on Blasphemy in Pakistan: A Dark Moment for Religious Freedom Approaches, Guardian (Oct. 12, 2016), https://www.theguardian.com/commentisfree/2016/oct/12/the-guardian-view-on-blasphemy-in-pakistan-a-dark-moment-for-religious-freedom-approaches.
[28] See id.
[29] See Marshall & Shea, supra note 15, at 88.
[30] Id.; see also Petr Topychkanov, Pakistan’s Minorities under the Shadow of Fear, Carnegie Moscow Center (Nov. 11, 2014), http://carnegie.ru/commentary/57210.
[31] See Shaheryar Gill, Christian Mom Asia Bibi’s Final Appeal of Death Sentence for her Faith Set to be Heard in Just Days, Am. Ctr. L. Just. (Oct. 2016), https://aclj.org/persecuted-church/christian-mom-asia-bibis-final-appeal-of-death-sentence-for-her-faith-set-to-be-heard-in-just-days.
[32] See Blasphemy: What you Need to Know about Asia Bibi’s Trial, Dawn (Oct. 13, 2016), https://www.dawn.com/news/1289700.
[33] See Asia Bibi’s Appeal Against Death Penalty – A Test Case for Pakistan, Deutsche Welle (Oct. 12, 2016), http://www.dw.com/en/asia-bibis-appeal-against-death-penalty-a-test-case-for-pakistan/a-36023532; see also Jordan Sekulow, Breaking: Pakistan’s Supreme Court Postpones Christian Mom Asia Bibi’s Appeal Hearing, Am. Ctr. L. Just. (Oct. 2016), https://aclj.org/persecuted-church/breaking-pakistans-supreme-court-postpones-christian-mom-asia-bibis-appeal-hearing.
[34] See Pakistan Delays Asia Bibi Blasphemy Appeal, Al Jazeera (Oct. 13, 2016), http://www.aljazeera.com/news/2016/10/pakistan-delays-asia-bibi-blasphemy-appeal-161013050644760.html.
[35] See id.
[36] Rehman, supra note 1, at 139, 156.