Colonial Blasphemy Laws Must be Abolished
Albrecht Mendelssohn Bartholdy Graduate School of Law, Uni. of Hamburg
Author: Indian Capital Market: Legal regime
Let me first break the good news before I explain that why is it that the decision of the Supreme Court of Pakistan’s in Asia Bibi is not heartening news. The good news and bad news both are related and conjoined topic, therefore, it must be presented together.
Good News: Ireland asked it’s people to vote on a question regarding the repeal of Art.40(6) of Irish Constitution and S.36 of Defamation Act, 2009 of Ireland. The Irish Constitution provided that “The publication or utterance of the blasphemous, seditious, or indecent matter is an offense which shall be punishable in accordance with law”. Defamation Act specified the general clause of the constitution and laid down the rule as to what constitutes blasphemy and its punishment therein. There are two interesting provision in S.36 of Irish defamation law first on the account of conviction the punishment was the imposition of a fine which may go as high as 25,000 Euro but not beyond that, and secondly, it provided what does not constitute a religion. Yes, it does not provide even incarcerations leave aside the death penalty. The Irish referendum saw 65 percent people saying yes to the removal of blasphemous law from its constitution. The referendum witnessed some 44 percent people queuing up for the vote in October 2018. This is what modern society aims to achieve by creating a progressive society.
Asia Bibi Case: The judgment runs into fifty-six page with three judges bench headed by Chief Justice of Pakistan, Saquib Nisar. Justice Khosa who was part of the bench wrote a separate yet concurring decision. Facts of the cases are very simple and as follows: Asia Bibi, a Christian lady, was prosecuted and sentence for capital punishment along with Rs 100000 fine, on the ground that she had uttered blasphemous words against the Prophet of Islam. Asia Bibi was plucking falsa (a berry found in the Indian subcontinent) and a brawl broke out regarding the fetching of water. The female eyewitnesses refused to accept the water from the hand of a Christian woman which Aisa volunteered. The conviction took place under S.295C of Pakistan Penal Code (PPC). Chapter XV of present-day PPC provides for the offense relating to religion, of which S.295B deals with defiling of Quran and 295C deals with derogatory remarks against Prophet of Islam, Muhammad. The conviction was premised on the account two eyewitnesses and confession of the Asia Bibi before the panchayat, extrajudicial as the CJP called it.
Constitutional society, rule of law and Asia Bibi: What is a constitutional society? It is a society where lawmaking is prerogative of elected representatives and where no law is absolute especially if it is inherently discriminatory or open to misuse or abuse. An example is the introduction of divorce to Hindu law or 2005 amendment in the inheritance and succession law granting women the right to inherit on par with men. It also empowers the judiciary to strike down a law, which does not conform to constitutional principles of freedom and liberty. Religious laws are vanishing point of criminal law especially in a constitutional democratic society.
Regressive Judgment: The judgment starts with various clauses of Quran which lays down the principle that blasphemy is indeed a criminal act which needs death punishment. Few provisions of Quran invoked for justifying it are Al-Anfal (8:12), Al-Anfal 8:13) , Al-Hashar (59:3) and Al-Hashar (59:4) which justifies killing and reprisal and instilling the fear in heart of blasphemous people. The judgment went on to mention a case of pre-independence India in which one Mr. Rampal had published something blasphemous and was killed by one Ilm-ud-din ( judgment showered him with the words Ghazi and Shahid). Mr. Ilm-ud-din was convicted by the court and hanged. This case gave birth to the introduction of S. 295 A in 1927 in the Pakistan Penal Code. Yes, the Hon’ble CJP writes Pakistan Penal Code, 1927.
The glorification and justification by the court of the killing of individual on account of blasphemy are beyond comprehension. The judgment gives the Asia bibi benefit of the doubt, it did not say it was an injustice that was meted out to her given the draconian nature of law. Now, let’s analyze the contradiction that the judgment has created.
1) She had confessed of her ‘crime’ before an open public congregation. If the law is correct, as has been mentioned in the judgment too, then all those who are asking for implementation are justified in their demand. The court also praises and showers eulogies on those who killed blasphemous people in the past. What is justified from the ramparts of the court, cannot be rejected from the boundaries of society. Court and society have the same rationale in this case, they conform to each other. The court was indeed in favor of death penalty for disrespecting Muhammad. The killing of Rampal on the ground of blasphemy is institutionalized in the form of a state if Ilm-ud-din was hero and need special mention in the decision, the social demand of killing her is justified too.
2) None of the witnesses turned hostile, they stuck to their stories with court’s observation that there is some deviation in their original story and deposition before the court, which is sufficient to create a doubt, hence acquittal. Not a word on abuse of procedure or on the nature of law being invoked. They were not lambasted for saying that they would not accept water from a lady of a different faith.
3) Bemusing for me was the fact that learned Judge mentions Pakistan Penal Code to be inexistent while narrating the story what led to the introduction of S.295A in the then Indian Penal Code. However, S.295C was added in PPC in 1986 by Criminal Law Amendment Act of Pakistan. The aversion to state a fact is not just an innocent omission. In fact Hon’ble CJP once refused to utter the word Hindu while delivering a speech in public for his disgust of them, he quipped while explaining the two nations theory, “musalman aur ek digar kaum jiska nam bhi main nahi lena chahta.
Ireland has shown the way which needs to emulation by Pakistan. However, to constitute such society you need to go a long way. The beginning perhaps would be to quote correct facts in your judicial discourse irrespective of the fact how much you despise that fact. I wish to see a really new Pakistan, perhaps new Pakistan would be more reconciled to its ancient identity of Harappa and Mohan Jodaro. Your ancient identity does not compromise your ethnic and national identity after all Muslims are converts. Arabs take pride in their identity, so is Turks and Afghans. They all are Muslims why not Pakistan reconciles with its historical facts? Cannot you acknowledge that you are proud Indian Muslims?