Osama Siddique Interview, Part I

Osama Siddique Interview, Part I

The Harvard Human Rights Journal is pleased to launch its interview-based initiative, featuring conversations with human rights academics and practitioners concerning a diverse set of human rights issues. Our first featured interview is with Osama Siddique, an Associate Professor at Lahore University of Management Sciences, recent S.J.D. graduate from Harvard Law, and Pakistani legal scholar.

 In an interview conducted over the summer, HHRJ spoke with Professor Siddique about his recent scholarship dealing with Pakistan’s anti-blasphemy laws. Our editors have divided the interview into five parts, which will be released at regular one-week intervals.  In this first section, Professor Siddique provides the historical background for the anti-blasphemy laws and discusses some of the most serious flaws with how the laws are formulated.

 Interviewer: James Tager, J.D. ‘13

Can you start by explaining to us what, exactly, we mean when we refer to “the blasphemy laws,” and how these laws came about?

Pakistan’s blasphemy laws are a series of laws that are actually based, in many important ways, on colonial antecedents. Several anti-hate speech laws were introduced in the mid-19th and the early 20th century in what was then undivided India. These laws were essentially put in place to proscribe adherents of various sects and religions in India from engaging in any speech or action that may lead to mayhem or violence.

As to the underlying imperatives at the time of the passage of these laws, there was a lot of colonial guinea-pigging and legal experimentation going on in mid-19th century India, before the final development of the grand colonial legal codes. The latter include India’s civil, criminal and penal codes. This guinea-pigging was performed by many colonial administrators strongly inspired by utilitarian influences from the works of Jeremy Bentham and John Stuart Mill in the 19th century and quite upset or dissatisfied with the then prevalent laws in England. In many ways, these administrators were trying to come up with what they thought were better laws for eventual introduction in England.

The other imperative, of course, was that India was and remains a heterogeneous society and these administrators wanted to establish a certain kind of stringent rule of law to underpin colonial governance – which has been described by certain historians as “a despotism of law.” They did not want to see what they called “law and order situations” such as civil disobedience, mayhem, or any provocative or violent behavior in turn leading to any seditious anti-colonial activity by the natives. Those inherited colonial laws largely remain on the law books of both India and Pakistan.

How did these laws change after the colonial period?

As I said, most of these laws are still intact. An important development, however, took place in the 1980s, while Pakistan was being ruled by a military adventurer General Zia-ul-Haq, who received tremendous impetus and support from Western powers for his undemocratic regime because of his pivotal role in the war against the invading Soviets in Afghanistan. In fact, he was a key U.S. and Western ally throughout his eleven-year regime. Zia disingenuously and routinely employed Islamic rhetoric to justify, legitimize, and perpetuate his rule. Being a coup-maker and clearly in violation of the country’s Constitution, Zia felt that he needed a kind of pseudo-legal legitimacy for his usurpation of political power and he based such contrived legitimacy on a counter-narrative and a counter-normative framework in order to supersede the extant Constitution. There’s a wealth of critical academic and journalistic literature on Zia’s misuse of Islamic rhetoric for regime legitimization and perpetuation.

Partially to build a new edifice around his shallow justificatory framework, and partially because he actually adhered to a particularly narrow and parochial reading of Islamic texts, periodically, Zia introduced certain controversial laws and legal mechanisms which remain highly contentious to date. Examples include the parallel legal apparatus of the Federal Shariat court, the Shariat Appellate Bench of the Supreme Court, and various laws regulating personal behavior and proscribing citizen choices on the basis of state dictated notions of morality. The blasphemy laws in question were also introduced by Zia during the same period of personal preservation motivated law-making under the veneer of pseudo-Islamization.

More specifically, five particular provisions were introduced during this era to Chapter 15 of the Pakistan Penal Code that are collectively referred to as the blasphemy laws and which I shall hereinafter call Zia’s blasphemy laws. These provisions essentially proscribe any behavior that amounts to a desecration of the Holy Quran or can be deemed as derogatory towards the Holy Prophet of Islam and other holy personages. Some of these provisions are particularly directed towards a minority sect called the Ahmadis or Qadianis and their freedom to worship. Of these five provisions, Section 295 (c) of the Code is the most significant and controversial one due to its textual flaws and the resulting injustices associated with its actual operation and misuse; and also given the fact that it alone amongst all these provisions carries the death penalty. So when one speaks of Pakistan’s blasphemy laws, more often than not it is this particular provision that is being referred to. Since its introduction it has been the object of regular media and human rights groups’ attention. Section 295 (c) specifically talks about punishing any direct or indirect speech or action that in any way defiles the sacred name of the Holy Prophet of Islam. While the text of the law provides for the punishment of death or imprisonment for life, a Federal Shariat Court Judgment reported in 1991, declared the latter possibility void, thus making the death penalty mandatory for those convicted under this law.

 It sounds like Zia took the original rationale of the blasphemy laws, to prevent division within a heterogeneous society, and turned this rationale on its head when he applied it to Pakistani society, which is far more homogenous religiously.

That’s true to a certain extent, and one aspect of the critique of Zia’s blasphemy laws is indeed that they only apply to Islam and to Muslims. To that extent you might very validly ask: where is the protection for other sacred and revered personages or texts, and why is the law just restricted to Islam? Well, there is protection. As I mentioned before, the colonial anti-hate speech laws that aimed to prevent religious strife in undivided India, are still part of the Pakistan Penal Code and apply to all religions. But at the same time, considering that though predominantly a Muslim country, Pakistan’s fundamental ethos and the dynamic and humanitarian vision of its founding father Muhammad Ali Jinnah was to provide an exemplary set of rights for its religious minorities, and further that the Pakistani Constitution does indeed extend several citizenship and equal opportunity rights to its religious minorities, Zia’s blasphemy laws are indeed a glaring anomaly. But then I have endeavored to briefly explain his political imperatives for formulating them so.

Let me further say that in my view the fundamental point of concern pertaining to these laws, however, is not merely their narrow religious focus but their overall vulnerability to abuse and misuse because of the way they are drafted and they operate. The fact that they don’t exclusively target the country’s minorities is evidenced by the reality that those implicated under them have not just been non-Muslims but also Muslims. As a matter of fact it is primarily the latter. In the 104 reported blasphemy cases between 1960 and 1997, 65 % of those implicated were mainstream Muslims whereas the rest of the 35 % were Christians or belonged to the Qadiani sect. However, it ought to be conceded that a disproportionately higher percentage of the latter two categories have been implicated in such cases given that they constitute a very small percentage of the overall population. But at the same time, these numbers show that the negative fallouts of these laws are by no means solely directed at non-Muslims, as is sometimes misleadingly projected by the international press.

In your scholarship on the blasphemy laws, you consistently point out that the laws have a lack of a mens rea requirement. Why is this so problematic?

This is a very important point. I will talk here specifically about Section 295 (c), as my scholarship has primarily focused on this particular provision. If one compares Section 295(c) with the aforementioned colonial era anti-hate speech laws, one can clearly see that the latter mandate that in order to be punishable, any impugned speech or action must be deliberate and malicious. So, in other words, if the speech or action is accidental or a mistake and thus does not involve any deliberate malicious intent, these anti-hate speech laws rule out culpability and penalization. The language of Section 295(c), on the other hand, is not only very broad—because it also talks about and embraces any imputations, insinuations, innuendo, and direct or indirect speech—but it does not appear to caveat that if any of this takes place accidentally or by mistake, and thus without deliberate intent and malice, then that should fall outside the punitive ambit of the law.

Now given this overbroad language, if we consider the fact that because of a whole host of factors, such as external pressures from religious zealots, or that the overworked and inadequately trained trial court judges are at times unable to fully apply their minds to all the background and contextual aspects of the blasphemy cases stemming under this provision, or that on occasion some of them may even harbor a personal religious prejudice against those implicated, it’s almost taken as a given that if someone is accused of committing blasphemy under Section 295 (c) and implicated in such a case, the trial courts are more likely to find them guilty of some mischievous or malicious intent. In other words, such cases, more often than not, proceed in the trial courts with a judicial presumption of guilt rather than that of innocence. Furthermore, the relevant case law reveals inadequate judicial interpretative attempts to read the requirement of mens rea into this provision—even if the text is silent on that score—and thus any genuine attempt to find actual malicious intent. So both the letter as well as the trial court treatment of this provision, remain at complete odds with other Pakistani anti-hate speech laws because of the exclusion of the requirements of intent and malice.

 You have also pointed out that some courts are more hesitant than others to apply the blasphemy laws in the absence of a showing of intent, while other courts actually infer intent even though there is no need for intent under the letter of the law. Is the lack of a mens rea requirement in these blasphemy laws settled within the courts, or are there still varying opinions on how to interpret this law?

Having stated the above, it is important to note that the exact interpretation of Section 295 (c) is by no means settled. One very good indication of this is my finding that the Pakistani appellate courts have invariably looked at this law in a very different manner from the trial courts. Amongst other things, this is evident from the fact that, to date, not a single conviction with an award of the death penalty by the trial courts has ever been upheld by an appellate court in Pakistan. In many of these cases the penalty has been reduced to imprisonment and in many others the convictions have actually been overturned at the appellate stage and the accused set free. So either at the High Court level, which is administratively the apex court at the provincial level, or at the Supreme Court level, which is the apex court of the country, ultimately all those accused under Section 295 (c) and convicted by the trial courts, have either been acquitted or their penalty reduced to a prison term. No one has ever actually been sent to the gallows.  Furthermore, despite the limitations of the trial courts pointed out earlier, not all blasphemy cases have resulted in a conviction even at the trial court level and many accused have also been found innocent at the trial stage.

Furthermore, while we still await a definitive judicial interpretation of Section 295 (c) that mandates the existence of malicious intent, if you examine the case law you discover that over the years there have been several indirect attempts by various appellate judges to curb the coercive and exploitative potential of this law. Quite a few of them have boldly questioned the current form and operation of this law by using procedural and substantive justice as well as fundamental rights-based arguments from the Constitution, as well as principles propounding tolerance, forbearance and forgiveness from Islamic jurisprudence. However, they have stopped short of actually striking it down or radically minimizing its ambit. This is both because of the religious sensitivity on the matter and the prevalent popular ignorance about the underlying issues, as well as their judgment that such a step ought to be taken by the legislature after creating due awareness and consensus.  Yet other judges in the past have extended some brilliant arguments that have, in practice, diluted the law’s potential mischief. One such line of judicial reasoning leads up to denying the very possibility that a Muslim can ever be capable of committing blasphemy as that goes against the very notion of being a Muslim. However, that helpful reasoning does little for non-Muslims.  The case law also reveals other indirect ways employed by certain judges to rescue those who they thought were clearly innocent from available evidence, without taking a shot at the problematic law itself.

In this context, one of the additional aspects that I’ve highlighted in my research on this theme is the commendable alacrity of various trial and appellate judges to at times painstakingly excavate the real underlying causes and motivations for the initiation of blasphemy cases. Such scrutiny has often led them to point out the existence of some personal or professional enmity or other on-going contestation between the accuser and the accused, or the self-serving social, economic and political gains of public vigilantism on part of those pressing for a blasphemy conviction. At the same time, in various other cases the appellate judges have found in favor of the accused while criticizing incompetent police investigations, errors on part of trial judges, and lack of credible or persuasive evidence. So the appellate judges have routinely employed close procedural and substantive scrutiny in order to weed out blasphemy convictions that fell short of being competent and meritorious. To give you an idea, of the 104 reported blasphemy cases from 1960 to 2007, the appellate courts found that as many as 67 % suffered from evidentiary lacunae, trial court errors, and/or flawed police investigations. In other words, over the years several judges have endeavored to pin down the mala fides behind certain accusations of blasphemy and/or exposed weak evidence, flawed trials and/or poor police investigations in order to eventually find in favor of the accused. This is apart from the earlier mentioned indirect judicial attempts to question the very justification and soundness of Section 295 (c) as it currently stands.

The larger public debate on the fate of this law is still active. However, in recent years the forces of bigotry, unquestioning zealotry and the disingenuous politics that thrive on exploiting ordinary citizens’ religious sentiments, have made it increasingly difficult to sustain a cogent and dispassionate discourse on the future of what is essentially a highly flawed piece of legislation. Only when an uninhibited and informed debate is made possible once again can one meaningfully broach the additional and important question of what ought to happen if someone deliberately and maliciously commits blasphemy.  We are still at a level where we continue to discover how even more than thirty years after a dictator took a mere few days to unilaterally introduce a highly flawed piece of legislation with vast potential to hurt many innocent people, how hard it is to undo such an action through consensus-based democratic processes. Deeply resilient bad laws, it is obvious, are yet another evil dispensation of long dictatorships. Once spawned, they take on lives of their own as they find concerted support from small but highly organized vested interest groups, as opposed to little opposition from disorganized and often threatened critics operating in a general atmosphere of apathy and lack of awareness.

Professor Siddique’s interview continues, with a discussion of the role of mala fides in Pakistan’s blasphemy laws, in Part II available HERE. The complete series is available HERE.

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