New heights of blasphemy law in Pakistan
02 December, 2010
By Amjad Malik
Asia Bibi‚Äôs sentence by Additional sessions court, Nankana, and various statements of leaders, Governor of Punjab, and NGO‚Äôs following that, disputing the findings of facts. hence cause to seek a probe into the whole affair as the said award of a death sentence on disputed facts is a challenge to state apparatus to review the case and the effects of the legislation, in particular the procedure to register a compliant, and the possibility of abuse of position and miscarriage of justice with the minority community.
Pakistan Penal Code (PPC) of 1860 dates from the British colonial period (British Raj : Sections 295 to 298 of the PPC dealing with religious offences dates back to that period and were intended to prevent and curb religious violence. The offences were introduced to curb religious hatred amending then s.153 of British India Act which did not include Islam and Raj Pal in 1929 could not be prosecuted for writing ‚ÄėA colourful Prophet‚Äô which hurt scores of Muslims and the High Court was not able to provide relief and riots erupted post the writer‚Äôs murder in United India. However UK laws were never amended to grant protection to Muslims. In particular S. 295-C of the Pakistan Penal Code says, ‚Äúwhoever by words either spoken or written or by visible representations or in any manner whatsoever, or by any imputation, innuendo or institution, directly or indirectly defiles the sacred name of the holy Prophet Muhammad (PBUH) shall be punished with death or imprisonment for life and shall also be liable to fine.‚ÄĚ However these offences have little value to the West who take freedom of expression as a superior force to all other political and religious compulsions. Their Blasphemy law though covers Christianity but does not cover Islam. Article 10 of European Convention of Human Rights 1950 which is similar to Article 19 of the Constitution of Pakistan 1973 says as follows: ‚Äú1.
Everyone has the right to freedom of expression. This right shall include freedom to hold opinion and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the Licensing of broadcasting, television or cinema enterprises.‚ÄĚ During the Salman Rushdie affair in the 1980‚Äôs after writing a book ‚ÄėSatanic Verses‚Äô Britain never prosecuted Salman Rushdie under the Blasphemy Laws of Britain for defiling the Prophet of Islam as British laws only covers Christianity. Under Ex Parte Choudhary  1 All ER 306, private prosecution was not allowed either by British Courts due to lack of legal provisions. Britain since has introduced the Racial and Religious Hatred Act 2006 which intends to curb preaching religious violence, however it still does not address the core and causes of igniting religious hatred albeit blasphemy. However in the west denial of holocaust as to whether or not Jews were oppressed by Hitler‚Äôs Nazi regime is a criminal offence in most parts of Europe. Holocaust denial is illegal in a number of European countries: In Austria (article 3h Verbotsgesetz 1947) punishable from 6 months to 20 years, Belgium (Belgian Holocaust denial law) punishable from Fine to 1 year imprisonment, the Czech Republic under section 261 punishable from 6 months to 3 years, France (Loi Gayssot) punishable from Fine or 1 month to 2 years, Germany (¬ß 130 (3) of the penal code) also the Auschwitzl√ľge law section 185 punishable from Fine or 1 month to 5 years, Lithuania, The Netherlands under articles 137c and 137e punishable from Fine or 2 years to 10 years, Poland, Romania, Slovakia,and Switzerland (article 261bis of the Penal Code) punishable from 6 months to 3-5 years. In addition, under Law 5710-1950 it is also illegal in Israel and punishable from 1 year to 5 years. Italy enacted a law against racial and sexual discrimination on January 25, 2007 punishable from 3 years to 4 years.
Now we see no Islamic countries in this list which outlaws holocaust denial as, if you wish to enact the law in those countries you have to scratch their backs and amend western countries blasphemy laws to include respect for Islam and its Prophet. Now looking at this tendency the way the West is displaying insensitivity to the Muslim World‚Äôs feelings, It will be quite illogical for Islamic countries angry with the behavior of the west to start awarding notorious leaders the highest awards of bravery or who accommodate and promote writers that challenge the myth of the ‚Äėholocaust‚Äô. These sentiments though exist which call for serious consideration by OIC and the West to sit together and find a solution to this hugely charged issue as the common man of each society calls for peace and harmony between ancient civilizations. The irony is that East and West are grappling with the situation where each other‚Äôs criminals are seeking refugee. Salman Rushdie‚Äôs gets a knighthood for Satanic Verses and Tasleema Nasreen protection but there is no law at all to protect the long and strongly held belief of Muslims in the West.
No one in the state of Pakistan has a power to authorize or pardon capital punishment on blasphemous accusations except the court of law as has been stated in case law. If Asia Bibi was suspected of committing a crime, police should have arrested, investigated, challenged and proven beyond a reasonable doubt before a court of first instance that she is guilty as charged then, in order to retain trust on the judicial system, appealing to a higher judiciary is a way forward if any injustice has been found on the facts of the case. Investigation to follow as to why such a case was registered,was not properly investigated, and why the prosecution did not pick it up before trial, the weaknesses in the trial and bring those to account who failed to discharge their duty properly. If Government feels there has been a miscarriage of justice, they must review their position and file appeal to be fair to all in detention.
Asia Bibi‚Äôs case though on the face of it calls to evaluate the effects of legislation and procedure to register complaint, investigate and prosecute, however, retention of some of the legislation is a right step to root out malicious campaigns against the Prophet Muhammad (PBUH) whether in the form of Satanic Verses, Danish Cartoons, or Face book fiasco, or even the Burning Quran issue which cause to hurt billions around the globe. But retention must be a deterrent to avoid malicious campaigns and to avoid communal riots rather than oppression. However, in both conditions it is a duty of a state to ensure due process and fair trial to all accused. In this case an appeal must be filed by prosecutor general/Government of the day if conviction is on false grounds and a fresh enquiry must ensue into the whole matter of facts. Government of Punjab must commission a report through conference and consultation to suggest procedural steps to root out abuse of this legislation so that the state retains the legislation with honour, respect and guarantees that no person is able to register complaints of blasphemy law to settle scores or to unleash vendetta against minority communities. Facts speak otherwise from the case of Ayub Masih to that of Asia Bibi.
The Government of the day has a challenge to meet in order to ensure justice to Asia Bibi her family, and many others who are in the same predicament. Government of the day has a duty and it must ensure justice with them which is seen to be done, and authorize an enquiry to determine the role and an extent police criminally neglected their duty to protect those accused and allowed them to be tried without a due process of law keeping their capacity to defend in mind. If the Government fails in discharging their duties here, the public will get a wrong message and will start slaying ordinary members of the public either on political or religious motivation, backup of corrupt police and or as a result of utter frustration and apathy, that is the fear they must address. People have witnessed such utter violence in the past too in blasphemy accusations, whether true or false, where the public took the law in to their own hands and carried out punishment without a trial. Equality, good treatment, and civil rights as guaranteed by ECHR (European Convention on Human Rights1950 ) which arms the general public against ‚Äútorture or inhuman or degrading treatment or punishment are one of the basic rights in any society and minority community deserves that right too. Death penalty on false accusations amounts to inhuman and degrading treatment in a society where right to defence is next to none due to the meagre economic position of lower middle classes. We can only hope common sense will prevail to settle this issue once for all.
We must all discourage any attempt to use or stir violence on a religious basis, however realizing the nature of situation OIC and the West must consider setting up a forum to adjudicate such matters and give serious thought to the calls of Muslim countries & West for interfaith harmony. Islamic countries jointly must come up with a unanimous unstinted resolution as to where no negotiation is possible and where there is a compromise possible on the name of freedom of thought and expression and or to include protection of Western belief. Any later and things will get out of hand, where people are willing to take law into their own hands when no law or legal forum is available to address their concerns. The decision is simple, one man‚Äôs freedom against 1.5 billion Muslims sensitivities. The Muslim world unanimously banned the film ‚ÄėPassion of Christ‚Äô which fantasized Jesus Christ in a fiction, same reciprocal concession must be offered from the West which does not cost them anything. This way we can save the clash of civilization and nip the evil in the bud in order to save the humanity as one man‚Äôs unnatural death is the death of the whole of humanity.