Blasphemous distortion of Islamic law – by S Iftikhar Murshed
The death sentence handed down on Aasia Bibi over allegations of blasphemy has brought shame to Pakistan and been roundly condemned worldwide. It has also distorted the teachings of Islam. Punjab governor Salmaan Taseer, despite his murky track record in politics, did the right thing for once by visiting the hapless woman and holding out the promise of a presidential pardon. This prompted obscurantist clerics to stage demonstrations in several cities of the province. On Nov 24 the Alami Jamaat-e-Ahl-e-Sunnat issued a fatwa (decree) which declared him an apostate.
Blasphemy laws have existed in British India since 1860. In 1927, Article 295 was added to the Penal Code under which “deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religious belief” became a culpable offence. The law was non-discriminatory and conviction under its provisions depended exclusively on conclusive evidence, as a consequence of which there were only ten blasphemy cases in the 58 years between 1927 and 1985. Since that year the number of blasphemy cases has soared to more than 4,000.
In 1982, Gen Ziaul Haq introduced Section 295-B in the Penal Code of Pakistan, under which “defiling the Holy Quran” became punishable by life imprisonment. In 1986, Section 295-C was added, mandating capital punishment for “use of derogatory remarks in respect of the Holy Prophet”. Even the law minister at the time did not support the bill when it was introduced in the National Assembly “on the ground that the Quran did not prescribe a penalty for this offence”.
The enactment of Ziaul Haq’s blasphemy laws unleashed a reign of terror in which the impoverished Christian community suffered the most. The violence will continue till these draconian laws are repealed. This is unlikely, however, because the present law minister, Babar Awan, was quoted by the print media on Nov 26 as saying that “no one can change the blasphemy laws.” Thus, so-called liberal politicians have been just as responsible as semi-educated clerics for the distortion of the laws of Islam in pursuit of their respective political agendas.
This distortion becomes apparent from the following analysis of Islamic jurisprudence.
If one accepts the dictum that the Quran is Islam, then the obvious implication is that whatever the scripture does not ordain or prohibit cannot be incorporated into the relatively limited corpus of its ordinances. However, this has not dissuaded several prominent Muslim jurists, scholars and commentators from overlaying Quranic teachings with their own interpretations of its laws. Of the Quran’s 6,247 verses, only 70 deal with civil laws and 30 with penal laws; 70 discuss personal laws, 100 pertain to ritual practices and 20 with jurisprudence, including testimony.
The reason for only a limited number of laws is not to impose too great a burden on believers. This is clearly stated in the Quranic passage: “O you who have attained to faith! Do not ask about matters which, if they were to be made manifest to you (in terms of law), might cause you hardship; for, if you should ask about them while the Quran is being revealed, they might (indeed) be made manifest to you (as laws). God has absolved (you from any obligation) in this respect: for God is much-forgiving, forbearing. People before your time have indeed asked such questions – and in result thereof have come to deny the truth.”
The obvious implication is that believers should not try to deduce additional laws from the injunctions clearly spelt out in the Quran and by Prophet Muhammad (PBUH), as that “might cause you hardship”. However, this is precisely what has happened through the centuries, as a consequence of which burdens have been imposed on the believers far beyond the actual stipulations of the Quran or the authentic pronouncements of the Prophet.
It is from this verse that some of the greatest Muslim scholars have concluded that, to quote one text, “Islamic Law, in its entirety, consists of no more than the clear-cut injunctions forthcoming from the self-evident (zahir) wording of the Quran and the Prophet’s commandments, and that, consequently, it is not permissible to extend the scope of such self-evident ordinances by means of subjective methods of deduction. This, of course, does not prevent the Muslim community from evolving, whenever necessary, any amount of additional, temporal legislation in accordance with the spirit of the Quran and the teachings of the Prophet: but it must be clearly understood that such additional legislation cannot be regarded as forming part of Islamic Law (the Shariah), as such.”
Thus, contrary to perceptions, modernity and Islam are not mutually exclusive, as the Quran does not place any impediments in the way of Muslim societies to adopt laws in accordance with the requirements of their times.
Based on the Quranic passage cited above, Ibn Hazm (994-1064), a theologian of Arab-Persian descent born in Cordova, observed: “It circumscribes all the principles of religious law (ahkam ad-din) from the first to the last – namely: what the Prophet has left unspoken – neither ordering nor prohibiting it – is allowed (mubah), that it is, neither forbidden nor obligatory; whatever he ordered is obligatory (fard), and whatever he forbade is unlawful (haram); and whatever he ordered us to do is binding on us to the extent of our ability alone.” Ibn Hazm, a staunch opponent of the Asharites, subscribed to the Zahiri (exoteric) school of law and believed that the only level of meaning in the Quran was the explicit, and, therefore, all attempts to find hidden connotations were inadmissible.
It was on the basis of Ibn Hazm’s principles of jurisprudence that the reformer Muhammad Rashid Rida (1865-1935) further explains: “Many of our jurists (fuqaha) have, by their subjective deductions, unduly widened the range of man’s religious obligations (takalif), thus giving rise to the very difficulties and complications which the clear wording (of the Quran) had put an end to; and this led to the abandonment, by many individual Muslims, as well as by their government, of Islamic Law in its entirety.”
The blasphemy laws of Pakistan which impose harsh penalties in the name of religion, including capital punishment, were never authorised either by the Quran or by the authentic Traditions of the Prophet. They are certainly not sacrosanct and can be rescinded or drastically modified despite Law Minister Babar Awan’s categoric assertion about their immutability.
The writer is the publisher of Criterion quarterly. Email: iftimurshed@ gmail.com
Source: The News, November 28, 2010
Our intolerant ways
Saturday, November 20, 2010
Babar Sattar
The writer is a lawyer based in Islamabad.
The biggest challenge for Pakistan is curing the disease of intolerance afflicting our state and society. It is intolerance toward the choices of other individuals, groups and identities and a violent exhibition of such intolerance that lies at the heart of most of our fault-lines and conflicts. The death sentence slapped on Aasia Bibi – the 45-year old Christian farm worker from Nankana Sahib – under Pakistan’s unconscionable blasphemy law is only the latest manifestation of our intolerant ways. The immoral and unjustifiable laws forming part of our statute books, the discriminatory manner in which laws are applied by state institutions, and the bigoted cultural ethic prevalent in the society that encourages the state to institutionalise intolerance in the name of religion, honour or order, together create a vicious cycle that dismembers the foundational promise of our Constitution i.e. all citizens are to be treated as equals.
Aasia Bibi’s tale provides the textbook example of a bad law that needs to be struck off not only because it is not amenable to application without abuse but also as it is discriminatory in substance. A woman gets into a quarrel with coworkers on a farm when they put religious prejudice into practice and treat her as an untouchable for being Christian. Offended by her audacity to confront an invidious bias practiced unabashedly by the majority community, the Muslim women decide to hold back no punches. They tell the local mullah that the Christian woman was calling Prophet Muhammad (PBUH) names. The police intervene and take her into protective custody. But unable to sustain the pressure mounted by the local virtue brigade, the custodians of law and order record an FIR against the woman under Section 295-C of the Pakistan Penal Code.
Once this critical threshold is crossed, the law and the beards speak the same bigoted language. A person charged under Section 295-C of PPC stands condemned as a blasphemer and has neither any chance of getting a fair trial before a court of law nor the benefit of the principle that a person is deemed to be innocent until proven guilty. The intimidation tactics of the frothing mullahs that succeed in getting the FIR registered by the police also limit the ability of the district judiciary from approaching the matter with an open mind. The bigoted legal framework and cultural ethic creates a conflict of interest for the judge. If he subjects the merits of the case to proper scrutiny and finds the accused innocent he will attract the wrath of the beards and could jeopardise his physical safety. A guilty verdict on the contrary satiates the appetite of the local bigoted brigade.
Years later when the High Court hears the appeal against the verdict, it is no longer a social or religious issue, but a purely legal one. There are no bearded mobs outside the courthouse. The appellate court will throw out the guilty verdict. The victim’s family will breathe a sigh of relief and probably relocate to a different locality/community (if it hasn’t already been chased out). No life will be lost and the apologists for our blasphemy law will continue to highlight the fact that no one has ever been hung in Pakistan under Section 295-B or C of the PPC. Meanwhile the victim will have lost half a decade of her life locked up behind bars, her children will have been deprived of valuable years of nurturing, the state will have reiterated its role as a malevolent force disinterested in justice or fair play and the sordidly intolerant societal ethic will have gotten strengthened.
Laws are generally formed to civilise the collective existence of human beings and to control their base emotions and reactions to things they find disagreeable. After millennia of evolving consciousness humankind has reached a stage where equality is deemed to be an established human right. But this is the ideal that constitutionalism and rule of law aim to realise. There was a time when keeping slaves was a legitimate concept, even within the Islamic tradition. There was a time when ‘separate but equal’ was considered to satisfy the right to equality in the US and so black and white kids were sent to different schools. There was a time when women did not have a right to vote. But our collective conscience kept evolving and things changed. Slavery stood abolished, women got franchise, and the caste system and concept of being ‘untouchable’ was formally eradicated.
None of this means that individual prejudices have extinguished and civilised countries and societies have rid themselves of biases. But what they have done is incorporate laws so that social inequality does not translate into legal inequality, and they have built institutional structures and social traditions that prohibit and discourage the exhibition of religious, ethnic, sectarian and caste prejudices. Other than incorporating laws and structures meant to protect substantive rights of individuals, progressive societies insist on due process of law to outlaw vigilante justice and violence in the name of ‘honour’. These substantive and procedural guarantees enable the state to function as a neutral arbiter in regulating the relationship between individuals and groups. While there remain ‘us’ and ‘them’ identities at the social level, such distinctions are formally delegitimised by the state to uphold the guarantee of equality.
In Pakistan we have unfortunately opted for the retrogressive path. Instead of identifying our social, cultural and religious biases and drafting laws to curtail them, we have incorporated laws to endorse and reflect our bigotry. Our greatest folly as a nation has been that we have erased the distinction between crime and sin, and endowed the state with the obligation to implement religion and piety. We are probably the only country in the world that insists that the state has (or can have) a religion. Once a state claims to have a religion (as opposed to its citizens in their individual capacities) how can it ever function as a neutral arbiter towards individuals or groups professing a different faith? Such a state can be benevolent and can patronise individuals who believe in a different religion, but can it ever deliver on its guarantee of equality?
If we are serious about creating a state that treats all citizens equally, we need to do away with Article 2 of the Constitution. Most of those horrified by the existence of the abusive blasphemy laws also share the belief that the state must have no business poking into the religious convictions of its citizenry. But they desist from making this larger argument and instead criticise blasphemy laws or the maltreatment of the Ahmadi community on functional or ethical grounds to avoid locking horns with our bigoted virtue brigade. We will be unable to fix the problem of religious intolerance and violence so long as we continue to advocate the rights of religious minorities on grounds of mercy and compassion. Law has no business dividing up our society into majority and minority communities on the basis of religion, or endorsing the religious biases of the most intolerant sections of the majority community.
If we wish to be a society where individuals are legally equal and (to borrow from Martin Luther King) judged by the content of their character and not the label of religion that attaches to them due to their incidence of birth, we must take the state out of religion. So long as the state actively interferes with the lives of citizens to implement religious diktat as opposed to providing a framework where everyone is facilitated in practicing his/her religion without interference from anyone else, our fellow Pakistanis who associate with Christianity, Hinduism, Sikhism and other religions will remain lesser citizens. Let us start by seeking the abolition of the blasphemy law, but on the basis of principle and not as apologists seeking charity for others.
Email: sattar@post.harvard.edu
http://www.thenews.com.pk/20-11-2010/opinion/16342.htm
Aasia Bibi and the Blasphemy Law
By Huma Imtiaz
Aasia Bibi, a mother of five, has been sentenced to death under the Blasphemy Law by a court in the Nankana Sahib district of Punjab. She has been languishing in jail for one year. Aasia, a labourer and a resident of the Ittanwalai village, is reportedly the first woman to be sentenced to death for allegedly uttering blasphemous words against the Prophet Muhammad (PBUH) after a dispute with Muslim women labourers. However, an investigation by the National Commission on the Status of Women has pointed to the fact that the case was filed under pressure from local influential people, and is based on settling personal scores. Aasia’s family has said that they will file an appeal against the sentencing (Dawn, Express Tribune).
President Zardari has asked the Ministry for Minority Affairs to conduct a probe in the Aasia Bibi case and submit a report within three days (Dawn, Express Tribune).
Leading Deobandi and Barelvi clerics have urged President Zardari not to pardon Aasia Bibi, saying that such a decision will lead to “untoward repercussions”. The clerics include Qari Hanif Jallundari from the Deobandi sect, and Sahibzada Karim, who hails from the Barelvi sect (Express Tribune).
Shahbaz Bhatti, the Federal Minister for Minorities, has said that the Government of Pakistan will not repeal the Blasphemy Law as it may fuel militancy. However, Mr. Bhatti has said that the government may amend the law to prevent its abuse (Dawn).
Aasia Bibi has submitted a mercy petition under Article 45 to President Zardari through Salmaan Taseer, the Governor of Punjab, who met her in Sheikhupura district jail. In her mercy petition, Aasia Bibi has said that the “judge had awarded her punishment by ignoring the law and the facts under “pressure of some religious extremists”.” Salmaan Taseer has said that Aasia Bibi was wrongly accused of the crime and dragged in the streets and gang raped. (Dawn, Express Tribune).
The Federal Government has asked the Punjab Government to ensure Aasia Bibi’s protection in jail and for her family members. Shahbaz Bhatti has “urged the provincial government to provide all possible chances to Aasia Bibi to plead her case on merit” (Dawn). Mr. Bhatti has also asked the Punjab government to reinvestigate the case and to provide Aasia with security in jail. Aasia Bibi’s husband and lawyer say that they have yet to be contacted by the government (AFP).
The Jinnah Institute’s Board of Advisors and its President Sherry Rehman are amongst many who have appealed for a review of the case and a repeal of the Blasphemy Law. The Pope Benedict has also appealed for the release of Aasia Bibi (JI Statement). In his weekly public address, Pope Benedict XVI said that Christians in Pakistan “are often victims of violence and discrimination” (Telegraph, BBC).
As international condemnation of Aasia Bibi’s sentencing continues to pour in, with human rights organization Amnesty International being the latest to ask for her sentence to be commuted along with a review of the Blasphemy Laws (Amnesty), Aasia Bibi has told human rights representatives that she has not had access to a lawyer throughout her trial.
According to a statement from Womens Action Forum member Ayra, who met Aasia Bibi after her sentencing along with Misba Momin, a member of the National Commission on the Status of Women and Nighat Hafeez, a lawyer from Shirkat Gah, Aasia Bibi says “she was forced by her coworkers, all women, to embrace Islam while she was working on a farm on June 8, 2009 that led to a discussion on the religious beliefs of two communities. Following this, a number of hot exchanges took place between herself and the Muslim women. After 8 days the complainant, Qari Muhammad Salim, using three Muslim women as witnesses, lodged an FIR against her, based on which she was arrested.
What should concern human rights activists, among many other lapses of her rights, is the fact that Aasia Bibi has now disclosed that she had no access to any lawyer or counsel during her long ordeal in jail. It is even more shocking that even on the day she heard herself being sentenced to death, she was not accompanied by any lawyer. She further stated that she was asked to put her thumbprint on papers that she knew nothing about in court, while no one was deputed by the court to explain it to her.
Aasia Bibi further stated that during the investigation held by SP Muhammad Amin Bokhari she begged for pardon several times as she had no comprehension of her offence or what actually constitutes blasphemy. She said she has two daughters within the age bracket of 12 to 14 years.”
According to Zia Awan, a noted human rights lawyer, cases that involve capital punishment cannot proceed without the appointment of a lawyer for the accused. Awan says, “If they (Aasia’s family) could not arrange for a lawyer, the court has to appoint a proper lawyer for the accused. Additionally, the accused has to be satisfied with the appointed lawyer, this is very important.” Awan adds that the accused also has the right to cross-examine the witnesses during court proceedings.
The complainant in Aasia Bibi’s case, Qari Salim, told a CNN reporter that “her death sentence was one of the happiest moments of his life. “Tears of joy poured from my eyes,” said Qari Salim (CNN).
The Blasphemy Law was amended in 1982 and 1986 under General Zia’s regime and is made up primarily of Section 295 B and C of the Pakistan Penal Code. Under the law, the sentence for committing blasphemy is imprisonment and a death sentence. In 1982, the Pakistan Penal Code was amended to include the sentence for defiling the Quran with life sentence. Section 295C stipulates that those making derogatory remarks in respect of the Holy Prophet (PBUH) will be awarded the death penalty (Constitution of Pakistan).
Thousands of cases of blasphemy have been reported in Pakistan in the past 15 years, a jump from 9 cases from 1929-1982. Most of these cases are allegedly based on false claims.
However, in many cases, those accused for blasphemy have been killed before their case even reached the sentencing stage, or they were killed in jail. As recently as November 14th, 2010, an accused in a blasphemy case was shot dead in Lahore near his house, after being granted bail in the case (Express Tribune). The Blasphemy Law has been used against non-Muslims as an instrument of persecution, mostly to settle personal vendettas. In some incidents, the accused persons have languished in jail for years before their cases ever went to trial. On July 22nd 2010, the Lahore High Court released a 60-year-old mentally ill woman after 14 years of imprisonment after no evidence was found against her (Express Tribune). On July 30th and August 1st 2009, seven Christians were burnt alive in Gojra, Punjab and dozens injured after riots broke out on the allegation that a Christian girl committed blasphemy against the Holy Quran. A church, nearly a hundred houses were burned and another hundred homes were ransacked (Daily Times). In April 2008, Jagdesh Kumar a Hindu factory worker, was lynched to death by his colleagues, after he was accused of committing blasphemy in Karachi. The autopsy report says the cause of death was acute head injury resulting from hard and blunt objects (HRCP). These are amongst some of the many instances of injustices that have taken place under the charges of committing blasphemy.
The Jinnah Institute reiterates that the Blasphemy Laws must be repealed and urgently reviewed by an act of Parliament and has called on the Lahore High Court to take up the appeal under due process in order to give Aasia Bibi a fair trial.
Sherry Rehman, in her capacity as Member of Parliament, has moved a repeal as well as a review of the Blasphemy Law in two separate bills.
http://www.jinnah-institute.org/issues/secular-space/184-aasia-bibi-and-the-blasphemy-law