The law

Commonly known as the blasphemy law, section 295C of the Pakistan Penal Code 1860 stipulates that any person who ‘by words, either spoken or written, or by visible representations, or by any imputation, innuendo, or insinuation, directly or indirectly’ defiles the name of the Islamic Prophet, Mohammad, is liable for blasphemy. In additional to a fine, he shall be punished with the death sentence or imprisonment for life. 

In 1990, the Federal Shari’at Court ruled that the penalty for blasphemy should be mandatory death sentence, with no right to reprieve or pardon. The decision of the Federal Shari’at Court is binding but the Pakistani Government has so far failed to pass the necessary bill to amend the law.  Hence the current situation is that the clause ‘or life imprisonment’ is void, even though the Pakistani Government has often used this anomaly to defend itself against critics of the death penalty.

At the Convention of Human Rights and Human Dignity in Islamabad on 21^st April 2000, General Musharraf proposed a procedural reform to the controversial blasphemy law.  He suggested that the merits of individual cases should be scrutinised by a Deputy Commissioner prior to an arrest.  The procedures for filing a first information report (FIR) should also be changed to make the process more official and less open to abuse. 

A month later, however, to appease Islamic militant groups who threatened a three-day nationwide strike, the General backtracked on his commitment. He declared at a press conference, “As it was the unanimous demand of the ulema [Islamic clerics] and the people, therefore, I have decided to do away with the procedural change in registration of FIR under the blasphemy law.”

The Flaws

The wording of the blasphemy law is vague and open-ended.  The law does not require proof of the actual state of mind of the accused and disregards the element of intention.   Since its enactment in 1986, this piece of legislation has frequently been misused to intimidate or punish religious minorities and to settle personal scores. Hundreds of innocent people have been imprisoned, forced to flee the country or killed by Islamic extremists under the pretext of punishing blasphemers. Over the years, many moderate Muslims have also fallen victim to the law.

Blasphemy charges are often founded on frivolous or malicious accusations and are arbitrarily brought. It is not uncommon for instigators to be motivated by religious bigotry, personal prejudice, selfish gain or professional rivalry. In many cases complaints are filed at the insistence of local mullahs (Muslim clerics) or members of the Islamic parties.

Prosecutions often rely on the unsubstantiated oral testimony of the complainants where statements made by the accused are twisted out of context. Allegations can be found untenable under even superficial scrutiny.

Anyone can be arrested for blasphemy without a warrant and imprisoned without bail. Ill-treatment in custody and torture are commonplace. Judicial proceedings typically take years, resulting in innocent victims languishing in jails pending trial or appeal. The delay is compounded by the fact that judges are reluctant to try these prisoners.

The mandatory capital punishment accompanying the charge has long been denounced as excessive and disproportionate to the crime. It is a matter of controversy even within the Islamic circles.

The very existence of the blasphemy law encourages hostility towards minorities and has been interpreted by some Muslim fanatics as a licence to take the law into their own hands. In many mosques, Muslims are taught that those who blaspheme deserve to be killed immediately and that protecting a blasphemer is as bad as blaspheming itself.  A Muslim is therefore duty bound by his faith to kill the blasphemer, except when such duty is shifted to the Islamic State.

In 2000, Lahore High Court Judge Mr Justice Nazir Akhtar publicly stated that anyone accused of blasphemy should be killed on the spot by Muslims as a religious obligation (swab).  He further remarked that there was no need for any legal proceedings for a blasphemer.  Although the statement was subsequently retracted, it indicated the extent of judicial bias on the subject.

Customarily, the accusing party packs the courtroom with zealous mullahs in a show of righteous concern. Many of these extremists are supported and protected by Islamic militant groups. On one occasion, fundamentalists built a gallows outside the courtroom to signify that even if the court found the accused not guilty, the crowds would carry out the required punishment themselves. The interference on the judicial process seriously deprives the accused of any chance of having a fair trial. 

In December 2001, the UN Working Group on Arbitrary Detention concluded that the detention of Ayub Masih, a Christian convicted of blasphemy, was arbitrary on the basis that the threats and atmosphere surrounding his trial and appeal denied him any chance of having a fair trial.

Extremists often issue death threats against judges and lawyers. The murder of Justice (R) Arif Ibaql Bhatti in October 1997 after he acquitted Rehmat and Salmat Masih in a previous blasphemy case demonstrates the seriousness of these threats and the obstacles they pose to justice.  Many a times, judges succumb to intimidation and convict the alleged ‘blasphemers’ despite insufficient evidence. Others give impunity to private acts of vengeance by failing to prosecute those who intimidate or incite violence against the minorities.

Although officially no one has yet been executed under the blasphemy law, at least four Christians have died at the hands of extremists. Bantu Masih died at the hands of armed fanatics in 1991. A post mortem revealed that Tahir Iqbal had been poisoned while in prison.  Nehmat Ahmer, a Christian from Faisalabad, was murdered in 1992. Manzoor Masih, Rehmat and Salamat Masih were shot at outside Lahore High Court in 1995. While Rehmat and Salamat survived the ordeal, Manzoor Masih was killed on the spot.

Once accused, and even if he is subsequently exonerated, the alleged ‘blasphemer’ is in great danger of being pursued and killed by zealots.  His family is also at risk.

According to Ms. Asma Jahangir, former Chairperson of the Human Rights Commission of Pakistan and current UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, “The anti-blasphemy law has tended to be abused. Because of the public sentiment the allegation arouses, the law has also been liable to a miscarriage of justice. Clearly, the incidence of blasphemy was no greater than before the law came in than it is after it.  Thereare certainly more allegations of it now.  The experience points to the need for serious rethinking of the law”.[1]

Conclusion

In his report to the 52th Session Commission on Human Rights[2], Mr Abdulfateh Amor, the then Special Rapporteur of UN Commission on Human Rights on the Elimination of All forms of Religious Intolerance, concluded, inter alia, that ‘the blasphemy law should not be discriminatory and should not give rise to abuse. Nor should it be so vague as to jeopardize human rights, especially those of minorities. If offences against belief are made punishable under ordinary law, then procedural guarantees must be introduced and a balanced attitude must be maintained.’ He is of the opinion that the death penalty for blasphemy appears disproportionate and even unacceptable. He further recommended that the Government of Pakistan make the necessary changes to amend the law on blasphemy and take steps toward becoming a party to the International Covenant on Civil and Political Rights. Sadly, in the last seven years, Pakistan has made little effort in implementing these recommendations.

Recently, President Musharraf has repeatedly pledged to eradicate religious terrorism, militancy and extremism from the country and to pursue moderate and progressive Islam.  The international community should now use this window to encourage the President to take concrete steps to disarm all Islamic militant groups, introduce key legislative and administrative reforms to improve the status of religious minorities and ensure equality for all.  It should also strongly urge him to implement the recommendations of the UN Special Rapporteur in full as a demonstration of his commitment to the respect, protection and promotion of human rights and democratic principles as laid down in the Universal Declaration of Human Rights. 

For more information, please contact Lydia Haines at Lydia@csw.org.uk

Recommendations:

CSW calls on President Musharraf to honour his pledges to review the law and procedures relating to blasphemy, in particular to:

1. Take steps to repeal s.295C of the Pakistan Penal Code and abolish the death penalty;
2. Strengthen its legal and administrative procedures to safeguard against abuses and pressure from extremist groups while pending more substantive constitutional and legislative amendments;
3. Set up an independent investigation body, to formulate and put into practice proper investigation procedures;
4. Prosecute and bring to justice those who register unfounded, frivolous or malicious complaints;
5. Expedite the judicial proceedings and to comply with international standards for due process and fair trial, as well as the treatment of the detainees;
6. Take concrete steps to curb and disarm Islamic militant groups in Pakistan and de-politicise State institutions;
7. Offer effective protection to political and religious organisations and institutions, judges, lawyers and spokesmen of NGOs who advocate a change in the law.

CSW calls on the European Union and Member States to:

1.         Include in the new EU-Pakistan Co-operation Agreement a clause on upholding religious freedom and equality in accordance with the principles of the UN Charter and the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights 1948;

2.         Urge the Pakistan Government to release those detained for their religious beliefs, particularly those imprisoned under the blasphemy law (s.295C Penal Code);

3.         Encourage Pakistan to accede to and ratify the International Covenant on Civil and Political Rights, the International Covenant on Economic, Cultural and Social Rights and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

4.         Make clear to the government of Pakistan that improvement on religious liberty and equality will significantly enhance diplomatic and trade relations, whereas continuous discrimination against religious minorities will dampen those relations;

5.         Explore ways in which the EU can provide assistance where necessary to enable Pakistan to bring its law and practice into line with international standards, in particular to comply in full the recommendations of the UN Special Rapporteur on Religious Freedom in his report to the 52th Session Commission on Human Rights;

6.         Strength Pakistan’s judicial and security structures through sharing of expertise, training and financial assistance;

7.         Urge the Pakistan Government to abolish the death penalty, in particular in relation to the blasphemy law.