In this first part, Virak leads us through a detailed discussion of the state of civil-political freedoms in Cambodia today.

Interviewer: James Tager, J.D. ‘13

Can you start by telling us a bit about the state of freedom of the press in Cambodia today?

Right now, the Ministry of Information has total control over the licensings of all media. This means all newspapers, all television, all radio. The only thing that hasn’t fallen under the purview of the Ministry of Information is the Internet. As one result of this, for example, television is fully controlled by the government. You will never be licensed if you are not pro-CPP [Cambodian People’s Party], or if you promise to be pro-CPP. Even then, you have to have a track record of supporting the government. You cannot come out of the blue and promise never to attack the government; they simply will refuse to believe you. And the government does censor; they monitor TV programs all the time.

An example comes to mind when a certain program started to veer off a bit. The program stared to invite NGOs, not even opposition parties but non-governmental organizations. At first the government seemed to accept this, but after the program’s segments became popular, the Ministry shut down the program.

Licenses are also under yearly review by the Ministry. Of course, there are often no problems at this stage, because normally if you want to run a TV program you pay your dues to the Ministry. By this, I’m not referring to official fees. And not just to one Ministry, either.

Radio is another interesting space; it’s the most listened-to source for news within Cambodia. There’s a lot of space now in radio, and most of the radio stations do not get shut down. Many of the more independent stations got their permission for their frequency and their licensing during the “two-head” government, when there were two Prime Ministers in government. That is why we have more radio stations that are more independent of the CPP.

Of course, radio has its issues as well, although I believe there has been progress. There used to be only one radio station that was willing to air the voice of the opposition; they would sell airtime to the opposition parties. The head of that particular station was often in trouble; in fact, I believe he was jailed twice. But that radio station was the only one to sell airtime to NGOs, and my organization was the first to buy radio time and produce a radio program as an NGO.

We started buying radio time in 2003, and we bought eight hours per day of that station’s airtime. They didn’t have much programming, so after we bought airtime the opposition parties started buying airtime, as well. But it was our NGO programming that was responsible for the popularity of that station. So that one station was a pioneer in the early 2000s, but now there are a few more radio stations that are independent.

And are more NGOs using radio today?

Well, back then, not only were radio stations in general unwilling to sell airtime to NGOs, but I think also that not many NGOs thought of using radio as a medium for advocacy. So it was our organization which pioneered that approach on the part of the NGOs, and now many more NGOs are buying airtime.

So on both sides, the trend is growing. CCHR, for example, now buys airtime on seven different radio stations throughout the country. That could not have been the case in 2003-2004. Even up to 2006-2007, that could not have been the case. Radio airspace is opening up, so in that regard, you can say that there have been positive developments.

Is there a similar situation for print media in Cambodia?

Print media is growing in Cambodia, but it’s growing slowly. Print media is interesting: it’s free to print, except for if you get arrested. What I mean by that is, the government will arrest journalists, but they don’t control the licensing. So there are hundreds of licensed newspapers. But many, in fact most, of these newspapers do not print regularly. Many newspapers will simply run two or four pages worth of print. Others will have front pages that are simply taken up by photos with captions, papers that contain maybe two or three articles. Papers may come out every two months, or even more irregularly, depending on when they have the resources to print.

Journalism as a profession has not been a terribly rewarding one in Cambodia, because of a lack of financing. Journalism in Cambodia is a low-pay, high-risk, crazy-hours job. Because of that, not many people who have other opportunities will go into journalism.

Where were people with these opportunities going?

Generally, in the past, if you were more able and had the connections, you went into NGOS; that was the industry that paid the highest, or used to pay the highest. I’m speaking more specifically about international NGOs, and the UN system, and the Embassies, which paid by far the highest.

The gap between that particular market and the local market is incredible. It’s five-fold. If you look at two drivers with the same qualifications, a driver for an Embassy might make $400-$500 a month, while a driver for a local operation might make $70 a month. That’s a huge gap.

This clearly has an effect on the job market in Cambodia. And this effect touches upon the world of journalism?

No one is really making similar commitments to other fields, particularly with journalism. So journalism as a career is problematic. Publishers will not provide good pay. In many cases, there are truly shoestring budgets.

Right now, newspapers fall into three camps. You have pro-government newspapers, which are both financially assisted and protected by the government, as well as by some of the business interests. Then you have the official opposition party newspapers. And then you have the independent newspaper in the middle, attempting to flourish despite all the problems I’ve just described. Except for the English-language papers, which can be seen as an exception.

Opposition papers will have some financial backing by the opposition to write articles about political campaigns, and to attack the government as much as it can. You previously saw opposition papers calling [Cambodian Prime Minister] Hun Sen a ‘one-eyed man, crazy and deranged, born to evil.’ We don’t have that same kind of rhetoric any more, the language has changed. Instead, you’ll see the opposition papers talking about ‘His Excellency Sam Rainsy and that guy, Hun Sen.’ Now, a similar tone is taken by pro-government newspapers. However, those papers are much more able to pay the staff, so you see a different quality in the journalism.

Financing newspapers is tough for the opposition. If you are a pro-government newspaper, you are probably going to get businesses willing to advertise and to appear as sponsors. This is because, from the perspective of a business owner, if you know that government officials are going to be reading this paper, you want to be seen as sponsoring the newspaper. If you are a business tycoon, you will want to be seen as supporting any efforts to strengthen the rule of the government. And so sponsorship of pro-government press, whether it be in newspaper, radio, or TV, is an effective medium for that.

Tell us a bit about the state of the law regarding freedom of expression in Cambodia today.

Looking at the state of the law regarding freedom of expression, you’ll find that the Cambodian Constitution is actually almost perfect in that regard. We also have a recently passed law on demonstrations that needs a few amendments, but it is by no means a draconian law. It’s simply an issue that some of the vague language within the law will be abused.

Actually, the CCHR is reviewing existing law, and we use a color coding system: red, yellow, and green. We’ve ranked the demonstration law as a yellow, simply because the law needs to be further clarified, but it’s not a bad law. The Cambodian Constitution is a green. The criminal code, we’ve ranked as a yellow; the current criminal code is certainly better than the UNTAC [United Nations Transitional Authority on Cambodia, established in 1991] Penal Code. This is because the UNTAC penal code has too few articles, so that most crimes are not actually stated or listed within the code. Today, the new criminal code has somewhere around three to four hundred articles. This provides for a more extensive stating of the law, and for more detail. And that’s what’s needed. That said, some of the articles related to freedom of expression in the Criminal Code need to be amended. It should be no surprise that this is our position: we are freedom of expression advocates. We want to decriminalize “defamation,” even “incitement.” Defamation, at the least, should be decriminalized. This helps explain why we rank the current Criminal Code as a yellow.

Actually, Hun Sen promised to decriminalize disinformation, and because of that, there is actually no disinformation in the current Criminal Code, although it was a criminal offense under the UNTAC penal code. So, technically, “disinformation” has been decriminalized. But, then they introduced “false information” into the new penal code, which functions exactly the same way. So this is an issue that needs to be addressed and appropriately amended.

Now, to go back to media issues, I want to point out that, while there is a Press Law in Cambodia, there’s no Media Law. There is no law governing broadcasting and publications, nothing governing print media and the radio and the Internet and TV. What this means is that the Ministry of Information has free reign in regulating these media outlets, essentially operating as the final decision-maker over the actions of these outlets. The Ministry’s procedures and their decisions are their own; they don’t share these things with the public. So if you are rejected in applying for a broadcasting permit, you are being rejected without being given proper reasons, without a proper citation of existing law. The Ministry of Information has shut down radio stations before, without even due process. And these are not decisions that they publish.

As for the Press Law, however, the law itself is a good one. Of course, that doesn’t necessarily translate into effective implementation; we definitely have a problem with how the Press Law is actually implemented.

And what about laws that affect other civil society groups? NGOs? Labor unions?

The up-and-coming NGO law will be a threat to civil society and to the work of NGOs. Larger NGOs like ours can probably fulfill all the requirements of the law, but not smaller civil society-based NGOs; this will have major, major implications for those groups. The law will also serve as a major threat to freedom of expression; this becomes obvious when one thinks about the NGOs whose work involves speaking out and and providing an organized forum or a microphone to small villages in order to air their concerns.

There’s now a draft law on labor issues, and this draft law will affect the labor unions in many ways. The only thing that can threaten the government’s grip on power is the unions, the garment factor workers. Because the members of these groups number in the tens of thousands, and these groups have demonstrated many times, and they are the only group that ever really takes to the street in large numbers. So controlling these groups, that’s the goal of the government.

One of the themes that seems to be emerging from your critique is the prevalence of a disconnect between the black letter law and its implementation.

The biggest concern is still the lack of proper implementation, the poor application of . . . let’s use the example of laws governing demonstrations. If the law is applied properly, it’s actually not bad. People do have the right to demonstrate under this law, and the requirements are not over-burdensome. The elements of defamation and incitement are still present, but with the proper court, people would know their limits and still be able to express their opinions. There are a lot of other countries that criminalize defamation and that do not have significant repression of freedom of expression.

So, for us, the court system is the biggest problem: it’s an issue of how these laws will be applied, and whether they will be applied across the board for everybody or arbitrarily as a result of political motivations. And the court system in Cambodia is very corrupt. We all know the court system is corrupt. This is not hidden from the international community; in the U.S. embassy’s cables, they say this.

Because of this corruption, the court system will bend over backwards to please the politicians. Politicians can get whatever they want from the court. I mean, even things that make no legal sense: There have been cases where they change the charges in the middle of the case. They change the charges the day they announce the verdict. So the claim that there’s consistency in the legal system today is laughable. The corruption of the court system is ultimately the biggest problem for human rights in the country today. And for democracy as well, because the institutions that are supposed to guarantee a certain process, and to allow for competition and pluralism, are not doing their job.

The next section of HHRJ’s interview with Ou Virak will deal with the Khmer Rouge Tribunals.  The complete interview series will be available HERE.  For more information on the Cambodian Center for Human Rights, visit their website at http://www.cchrcambodia.org/.

Part II of the interview is available HERE.

Interviewer: James Tager, J.D. ‘13

In Guatemala, there are two functioning legal systems currently in place. There is an official legal system operated by the Guatemalan government, and there is an indigenous legal system operated by Mayan judicial practitioners.  How do these two systems interact? How are they supposed to interact?

This is one of the biggest challenges for the Guatemalan justice system, and it directly relates back the legacy of the conflict. The historical lack of judicial oversight or even of a functioning state justice system in the Mayan highlands helped produce support for the insurgencies of the conflict. Since then, the Government of Guatemala has ratified International Labour Organization Convention 169, which recognizes Mayan indigenous justice practices. Traditional Mayan conceptions of justice can be employed, hopefully increasing local ownership of and satisfaction with justice processes.

I think most Mayan communities do not feel vested in the historic official Constitutional system, and there are good reasons for that. If your experience of the Constitutional system has been that it is largely absent, as has been the case in the highlands of Guatemala, it’s hard to believe in that system. And if your only real experience of the system is that it has been used to justify removal of ownership over your lands, then that makes you even less amenable.

Mayans do have traditional justice conceptions and practices that are focused on restorative justice that is community based. Our own American legal system could benefit from adopting some of these and has worked to incorporate concepts like community service. The indigenous system, however, is not without problems, including abuse of authority, gender equity, arbitrary detentions and violence by local communities frustrated with impunity. Mayan communities were targeted for violence and Mayan justice practitioners were largely eliminated during the many assassinations of the conflict, producing a void or a break in the historical continuity of Mayan justice practices. That means that the Mayan legal system is, in a sense, being reconstructed. Some of the more violent practices learned in the conflict, like lynchings, are even being portrayed as Mayan justice.

During the armed conflict, both the army and the guerrillas would arrive in Mayan villages, convene the inhabitants and allege ‘you’ve been collaborating with the other side, hand over your co-collaborators’ and villagers would hand over people because they knew that everyone would be worse off if they didn’t cooperate. The ‘collaborators’ were usually summarily tried and executed in front of the village as a demonstration killing. I think the current epidemic of lynchings is very much a legacy of that type of terror tactic for social control. They are not really Mayan justice practices. But because the idea of a “Mayan justice system” has become common and these lynchings tend to happen, though not exclusively, in Mayan communities, then they get depicted as a Mayan justice practice. Curiously, this representation of savagery goes back to the historical fears of Mayan majority domination mentioned earlier.

So how do you see the interaction between these two judicial systems evolving?

The official Constitutional system unfortunately continues to be weak and will require years of intensive reform efforts. The news is not all bad however. Guatemalan prosecutors, now led for the first time by a female human and women’s rights advocate, Claudia Paz y Paz, have begun to make progress on the impunity for historic war crimes that underpins much of Guatemala’s current justice challenges. In June a former general, Hector Lopez Fuentes, was detained as the architect of crimes of genocide and forced disappearances in the early 1980s and, in August, members of the Guatemalan Army brigade most associated with the scorched earth policy that left hundreds of thousands of dead and more than 600 villages razed were sentenced by a Guatemalan court in one of the first such convictions.

Continued oversight of local Mayan practices will also be necessary. Our small project in Quiché, which is funded by the U.S. State Department, has convened almost 50 Mayan leaders to review justice practices and address some of these challenges. But it’s worth pointing out that we’re comparing apples and oranges. There are two very disparate functioning systems which are being simultaneously practiced in Guatemala.  But analysts have tended to compare Mayan practice with Western standards of rights. Instead, it’s important to compare practice with practice – and both systems of practice exhibit deficiencies that require a great deal of work. Our project in Quiché follows a legal empowerment concept: in polarized societies where justice agencies have not really functioned, legal reforms and trainings are not sufficient. The justice system literally has to be rebuilt with ownership from the ground up. Building relationships between Mayan communities and Constitutional justice agencies, and exploring the possibility of Mayan justice practice as a way to lessen the burden on the official agencies, is a truly historic opportunity in Quiché that would have been inconceivable fifteen years ago.

The cultural relativist/universalist controversy is one of the great debates in international law and in human rights work. But your example of Mayan lynchings brings up the point that sometimes a ‘cultural’ practice may not be cultural at all.

I think a good question to ask is “who is that person telling you about cultural relativism and do they really represent the culture?” I was in Bosnia for three-and-a-half years, and the leaders of ethno-religious strife in Bosnia weren’t necessarily the leaders of the religious community they claimed to represent. My thesis on that is, and which is documented in the book called “Yugoslavia: The Death of a Nation” by Laura Silber, the conflict wasn’t really a clash of civilization between Muslims, Orthodox, and Catholics. It was very much a result of Communist Party officials realizing what was happening to their colleagues in neighboring governments where they were being voted out by the democratic transitions across Eastern Europe, knowing that their days were numbered, and going for the lowest common denominator to stay in power. That lowest common denominator was the identity politics of ethnicity.

There were historic ethno-religious grievances and a record of conflict, no doubt about it. But the political elites revived and intensified it for their own interest. I tend to follow Amartya Sen’s line, presented in “Identity in Violence”, that so much of what we may be told is a ‘clash of civilizations’ and other types of cultural strife is actually the result of shabby politics. By ‘shabby politics’ I mean the manipulation of identity politics that produces human rights violations. If we return to the previous example, I think lynchings are an example of these pseudo-cultural legacies. People were not lynched in Mayan communities before the civil war. People learned this theater of summary executions and death, and now they have replicated it, and it is misrepresented as cultural.

But even with all that, I do think there is a legitimate issue within the cultural relativist/universalist debate in its application to Mayans and the justice system. I referred earlier to gender equity issues. Another issue is the ritual whipping known as xicay. Guatemalan judges in Quiché rightly protest that they simply cannot allow whippings of people in public. As for Mayan practitioners, there’s a big debate about this. Some Mayans say, “yes, the whippings were done historically, but they were symbolic. You would be symbolically punished in front of the community and you would then be returned to the community. These were not intended as brutalizing punishments.” There are other Mayan practitioners who say, “no, you really have to whip them.”

These are problems that have to be worked out, and the absence of the conflict allows for that to be possible. Over the past fifteen years of my involvement in these issues, I have witnessed Mayan communities evolve to a point where there is much more reflection about what constitutes authentic Mayan justice practice. Many Mayans now will say that they don’t agree with the practice of whipping.

This returns us to the continuing and real need to think about local practices versus international standards. One of the strengths of Mayan justice practice is that it is very local. Trying to create and enforce universal standards may in fact be detrimental to that practice but there are certain issues that have to be worked out in terms of compatibility to make sure that the two Guatemalan judicial systems, the Constitutional system and the Mayan system, can at least function with a certain level of confidence that they’re not grossly violating the standards of the other.

In your writings and research, you mention the pitfalls of other-imposed, top-down plans to reform the justice system, and how these plans can be sub-optimally implemented or even unproductive when they come up against the realities of local conditions. How do you avoid these pitfalls? What has your experience in Guatemala taught you regarding this?

I always say that we have a lot to learn in the peace and justice field and that we learn it from the people in conflict. One of my experiences helped me understand this in the context of our work in Guatemala: from 2001-2004, I managed a U.S. Agency for International Development-funded human rights project where we used a grassroots strategy for targeted projects with small civil society groups in the five Guatemala highland departments. These organizations were fragile groups that didn’t have a tremendous amount of capacity and we didn’t want to overwhelm them with funding—that’s perhaps the worst thing you can do to a lot of mission-driven local organizations—so instead conducted human rights advocacy, training, and education at the local level, along with enhancing their connection with justice agencies. And what we discovered over time was, just by facilitating that relationship we were catalyzing justice outcomes.

How we learned this was through the monitoring component of our project which trained Mayans in local languages to go out to the local villages, off the grid, to see how our training was being disseminated in local communities. This was an important step because most projects are designed with a boilerplate – there’s almost a faddish component to it. One year it’s women and development, the next year it switches to another theme. Our project was intended to get past that and to ensure that we were plugged into local conceptions and changes on the ground. What we saw over a two-year period was that by building that relationship between justice interlocutors and civil-society groups our project had triggered a process where cases were being solved.

Guatemala is a country where you have only a handful of people in jail for the deaths of 200,000 people (despite the recent progress I mentioned earlier). Earlier in the decade there was virtually no judicial process on most of the human rights violations, and suddenly our project monitoring was reporting that dozens, and eventually hundreds, of local cases and conflicts were being solved.

My first reaction as a project manager was to suspect that this wasn’t true. We consulted our monitors and examined the results more closely, which held up to scrutiny. It was only later that I learned more about the academic literature on the legal empowerment alternative.

[For more on the legal empowerment alternative,  Line recommends the work of Stephen Golub, of the Boalt School of Law at University of California at Berkeley.]

This has important implications for legal reform efforts, which usually have focused on reforming codes and training attorneys. In Guatemala, U.S. assistance has invested $30-40 million over the past decades on justice reform projects that focus on restructuring civil and criminal procedure, instituting oral  adversarial systems, and training. This is not necessarily bad, but it is insufficient in reforming a largely unaccountable justice system that has historically operated in a limited fashion and distant from the social realities of Guatemala. To do that, I think you have to start from the grassroots and have civil society placed in a position where it can advocate for and oversee transformation of the system.

Has there been any indication that the Guatemalan justice system can incorporate such social capital into their system?

Recently the justice system of Guatemala has established alternative conflict resolution centers which have become a great vehicle for managing many of the cases that can be resolved through local mediation. Because the courts are slow and generally inefficient, the opportunity to solve problems under legal auspices that ensure a certain level of standards and guarantees of accountability and justice is more attractive than having your case sit in court for years and never get finalized. So that has been an indication of progress from the institutional side, and an encouraging sign for judicial issues in the country more generally. Much depends on whether people like Attorney General Claudia Paz are able to continue working to make the justice system operative for the first time in Guatemalan history. This is an important time to follow recent events in Guatemala: The change in presidential administrations following the 6 November 2011 elections may lead to the Attorney General’s removal, though the US Ambassador, to his credit, has publicly stated his support for her continued efforts and Secretary of State Hillary Clinton will award her the International Crisis Group’s In Pursuit of Peace Award on 16 December 2011. It has yet to be seen how the recent presidential elections will affect the justice system within the country.

This concludes HHRJ’s interview with Milburn Line. For more information about the work of the Joan B. Kroc Institute for Peace and Justice, visit their website. The complete interview series is available HERE.

 Part I of the interview is available HERE.

Interviewer: James Tager, J.D. ‘13

It sounds like you have serious concerns regarding American policy in Latin America. Does that affect your work on the ground?

From 2007 to 2009, I ran a human rights project in Colombia with U.S. government funding. Our project was a $40 million, five-year effort that worked with Colombian government agencies charged with the protection of human rights, the national police,  and sixty civil society organizations all over Colombia doing human rights advocacy and local work. I thought we ran a great project, and I was pleased with that but became increasingly frustrated with U.S. policy. If your government is spending $450 million a year to support the Colombian military and not exercising due scrutiny over issues of human rights, then you’re swimming against a larger policy stream that is basically eviscerating your efforts at the local level.

[For more of the Joan B. Kroc Institute’s analysis of American policy in Colombia, see their February 2011 Policy Brief, “Retooling U.S. Policy for Peace in Colombia”.]

Plan Colombia has been a disaster in human rights terms. The Colombian military is now accused of 2,547 cases of extrajudicial killings within the Colombian court system. One example which comes to mind occurred in August ’08, when the press announced that the military had recruited 11 young men from a marginal neighborhood of Bogotá called Soacha, put them on military transports, transported them to the other side of Colombia where the conflict was raging, murdered them, dressed them up and announced them as combat kills. The current 2,547 cases may not have all those same elements but are cases of civilians allegedly being murdered and passed off as combat kills by the military.

U.S. legislation regarding aid to the Colombia military contains language for the U.S. State Department to certify progress on respect for human rights. Recruiting, transporting, murdering, and announcing as combat kills all seem to meet a definition of systematic violations of human rights. But Colombian progress on human rights has continued to be certified despite these extrajudicial killings.

There are five million displaced people in Colombia, more than any country in the world now, including Sudan and Iraq, which is quite hard to imagine. For a decade Colombia has led the world in the murder of trade unionists. There are as many as 51,000 forced disappearances in Colombia; such figures put Colombia in the range of the most egregious cases in the hemisphere, along with Guatemala at 40,000 forced disappearances and Argentina at 30,000 forced disappearances. So we have a looming human rights/humanitarian disaster in Colombia that, if you recall Secretary Gates’s visit there in 2009, we are being told is a “success story.”

 Our banner policy issues in Colombia over the last few years have been free trade and expanding American military presence on Colombian bases -  instead of an effective foreign policy that projects our democratic values and asks our allies to do the same. Colombia has been an ally of the United States since the Korean War, so I think we have the rapport with the Colombian government to be able to insist on some human rights accountability, if we choose to.

In your policy brief on Colombia, you have called for a foundational document to help catalyze a peace agenda, and you offer the Comprehensive Agreement for Human Rights in Guatemala as a model. What about this Agreement was effective, and why does it provide a good blueprint for Colombia?

I was alternately impressed and distressed with the way the UN managed the peace process in Guatemala.  By the early 1990s, people were frustrated trying to end latent cold war battles going on in places like El Salvador and Guatemala. The El Salvador mission was the first international peace process in the regional transition, and the UN was simultaneously trying to bring the parties to the negotiating table in Guatemala.

By that point, the Guatemalan army had basically won the war by any military standard. Guatemala was a “low-intensity conflict” at that point, but “low-intensity” depends on where you sit in the world. It’s an easy phrase to employ from the analyst’s chair if you are counting deaths in combat but not so apparent if you are still trapped in the middle of violent conflict. The predominant social reality within Guatemala was still an environment of fear, a fear instilled through massive human rights violations, and that was evident throughout and beyond the peace process.

The UN’s first step was to try and establish a timetable of key agreements that would lead towards an eventual peace accord, and one of these agreements was the Comprehensive Agreement on Human Rights, where the Guatemalan army and the URNG [Unidad Revolucionaria Nacional Guatemalteca] insurgency agreed to a series of human rights standards that would be monitored by the UN and other international groups under multinational auspices. That was a real breakthrough in a sense as it was the first time the Guatemalan army and insurgency agreed on standards amenable to the international community.

This arrangement allowed for a UN monitoring mission to go in on the ground and separate the parties and document human rights violations. That presence ended up being a strong deterrent for further violations. When the guerillas blew up electrical towers in Huehuetanango in December 1994, we were there to document and object. When the military massacred a group of returned refugees in Xaman in October 1995, the UN mission was able to condemn immediately. Public visibility and official, international criticism helped further reduce human rights violations. And that’s why I argue that something similar could be done in Colombia under multilateral auspices. Unfortunately, the Colombian government is not interested in international monitoring at present and the guerrillas continue to conduct their insurgency in ways that make it hard to justify negotiations , including attacks on civilians, kidnappings and the recent murder of four Colombian officers who they had held as hostages for more than a decade. But negotiating with one consolidated insurgency may ultimately be more prudent than trying to control dozens of fragmented groups if the FARC splinters into smaller criminal groups. I think that the U.S. Government has the historical relationship and rapport with the Colombian government to be speaking about the policy benefits of peace and wish we were doing so.

Line’s interview will continue with a discussion of the Mayan indigenous legal system, and its relationship with the Constitutional legal system in Guatemala, in part III available HERE. The complete interview series is available HERE.

 HHRJ spoke with Line about peace and justice concerns in Guatemala: the current health of Guatemala’s justice system, historical legacies of conflict, and the incorporation of Mayan justice practices. Our editors have divided this interview into three parts, to be run at regular intervals. In this first section,  Line discusses how the historical legacies of conflict have affected Guatemala’s development in the realms of peace and justice.

 Interviewer: James Tager, J.D. ‘13

In your work, you consistently argue that many of Guatemala’s current social and judicial problems can be at least partially understood as legacies of Guatemala’s civil war. Can you tell us about that?

Fifteen years after the peace accords, you might think that the historical legacies have faded, but I think it’s still very important. Guatemala just elected a new president, a former general who during the Civil War led Guatemala’s shock troops – the kaibiles – in areas on northern Quiché where the UN later found genocide to have taken place. As President, he has recently announced he will deploy the kaibiles to combat drug trafficking. So the legacies of the conflict are very much present in Guatemala right now.

Beyond the elections, many of the current social and judicial challenges, especially in Guatemala but all the way down the isthmus, are also the legacy of historical inadequacies in the justice systems, along with the social polarization and exclusion that has manifested itself in a lot of different ways. In Guatemala the 36-year civil war, which occurred between 1960 and 1996, is kind of the ‘elephant in the room’ which shapes a lot of the injustice and human rights violations up to the present.

An illustration of this can be found in the Institute’s recent work in Quiché. Looking back in history, the Spanish administrators thought of the K’iche and Ixil indigenous peoples in Quiché as being an especially difficult-to-manage population, and they created this stereotype which perpetuated itself throughout the years and was replicated by the Guatemalan army. Within the 646 villages that were identified as razed villages during the Civil War by the country’s Truth Commission, approximately half of them were in Quiché, and the largest concentration was in the various smaller municipalities of the Ixil area around Nebaj .

This legacy, that the Ixiles are difficult to manage, plays into the historical racist attitude of Guatemalan mestizos, Ladinos who fear that someday the Indigenous are going to take over (somewhat like the fears of white supremacists in South Africa several decades ago). That is a deep-seeded fear, and it is a fear that is played on politically to maintain the government’s own power base. So that fear was exacerbated and was used as a justification for violence inflicted on these little towns during the civil war – even though the Guatemalan Army knew the insurgency was not really a strategic threat – and has evolved into public insecurity issues today.

You mentioned other legacies of the conflict. Can you elaborate?

Currently, there’s a large and multi-layered drug scenario in Guatemala. Part of this is the conflict legacy, and part of it is the ongoing drug situation in Mexico. The legacy aspect of it began when President Carter cut off assistance to the Guatemalan military because of their human rights violations. When the Guatemalan army was cut off from US funding, which had been for them a significant and historical base of support, the army went into business for itself. When I got to Guatemala in the early ‘90s, the Guatemalan army was an entrepreneurial investor that had major holdings across Guatemala, including a television company and the national telephone company. Incidentally, it was actually quite useful for the army to own the telephone company for the purpose of spying on people internally. They could simply listen in on the phone lines that they owned. Because elements of the Guatemalan army had become quite business-like in their ventures, they quickly caught on to a much more lucrative model: drug trafficking. They began by using their military logistics capacity for moving drugs coming up from Colombia. Then they realized that it is much more lucrative to become a competitive part of the cartel system. The director of a leading newspaper in Guatemala, Jose Ruben Zamora of El Periódico, who has been recognized by the Committee to Protect Journalists and the International Press Institute, did much of the investigative work on how this developed over a period of decades.

Carter cut off assistance to the Guatemalan military on human rights grounds, and yet this decision seems to have triggered the Guatemalan military’s involvement in the drug trade. What’s the take-away from that?

I think that part of the problem with the Carter policy was that it was short-lived. Reagan subverted it immediately upon election to office. In 1982, despite U.S. State Department and CIA cables recognizing that Guatemalan security forces were not distinguishing between the insurgents and civilian populations, President Reagan told the press that military dictator Rios Montt was “totally dedicated to democracy” and that his de facto government had been “getting a bum rap.” This type of Cold War support for de facto governments enriched their uniformed members and did nothing to build capable governments and societies. It has produced a Guatemala where violence prevails, 98% of murder cases go unsolved, and education, health and nutrition standards are more comparable to African countries than the rest of the region.

As for the consequences of Carter’s policy, the Guatemalan military might have been less entrepreneurial if it weren’t for Carter’s decision, but they were already involved in large-scale thievery at that point, including seizures of Indigenous land for personal use – some of which was returned after the war. So the Guatemalan military probably would have eventually realized the lucrative model of drug trafficking anyway, as have other military personnel across the region.

So this, for you, is not necessarily a cautionary tale of value-based diplomacy.

I am a big advocate of the idea that the U.S. historic development of a human rights-oriented Constitution, and even our struggle to fulfill standards of equality as seen in the Civil Rights and women’s rights movements, resonates with the people of other countries. So we should have a strong human rights policy line because it reflects who we are. There may be some unintended negative consequences, such as when the bad buys go into business for themselves because they can no longer rely on your support. But we do have to be true to our values. And recent research—see The Justice Cascade by Kathryn Sikkink—indicates that international prosecutions of officials for human rights violations are changing their behavior and making them less likely to commit human rights violations.

I think that we’ve made huge foreign policy mistakes, largely around human rights issues, because instead of being a forceful advocate for human rights and for our constitutional values in other countries, we have let political expediency dilute these values overseas. In Latin America, U.S. policy has been driven by anti-communism and free trade – not respect for human rights. And I think the world perceives us as such. Certainly Hugo Chavez and Castro and others in Latin America have latched on to this line of the U.S. as an imperialist hegemon, and it encounters a receptive audience because of some of these mistakes.

I’m referring to historical mistakes like the coup in Guatemala in 1954. This was a CIA-led coup that toppled a democratically elected government which was not a Communist but rather a socially progressive government that attempted to reform land tenancy. This coup led to 32 years of de facto military governments which were gross human rights violators and which were generally—with the exception of Carter—very closely aligned with the United States.

I remember how, when I got to Guatemala in 1994 with the first human rights observer mission, we heard the story of Diana Ortiz, a nun who was an American citizen. Ortiz was tortured, and testified to hearing an American voice, speaking English with a distinctly American accent, in the room with her. [Former New Jersey Senator Robert] Toricelli, who at that point was a representative, started an investigation in Congress which uncovered that the CIA was still involved in covert activities in Guatemala as late as in 1989. Torture was, and continues to be inimical to U.S. values and counter-productive to any sensible foreign policy objectives.

Line’s interview will continue with a discussion of American and international policy in Latin America, and its effects on the ground, in Part II available HERE. The complete interview series is available HERE.

Part IV is available HERE.

 Interviewer: James Tager, J.D. ‘13

In your work, you mention your concern over the possibility of a “chilling effect” of these laws, that this may halt debate and discussion over the appropriate limits of free speech within Pakistan society. Can you elaborate on this aspect?

One of the things that I set out to do in my research was to try and explore a potential linkage between the blasphemy laws and the larger global free speech debate, because obviously one dimension of this entire analysis involves looking at the concept of blasphemy as a distinct kind of hate speech. I tried to place Pakistan within that broader analysis by looking at various international free speech regimes as well as what they caveat as hate speech. In doing so, I was firstly able to confirm that the spectrum of free speech, as recognized in different countries, is quite broad and irregular. Thus, Pakistan is not unique in terms of having several caveats to permissible free speech. However, the primary difference, for instance, between the First Amendment in the United States (and that particular approach to protecting free speech) and free speech regimes in India and Pakistan is that the legal exceptions to permissible free speech in the latter countries are part and parcel of the actual constitutional provisions for free speech.

Being mindful of that, one of the arguments I explored in my research was that since in the Pakistani constitutional context the notion of permissible free speech (unlike the First Amendment jurisprudence where certain kinds of speech has been incrementally proscribed over the years through court decisions) is textually limited by certain very broadly stated policy imperatives and justifications, the Pakistani constitutional design inherently provides adequate protections against hate speech – thus precluding the need for any special blasphemy laws. If anything, one can actually persuasively argue that the existing constitutional caveats for restricting free speech in Pakistan are over-broad and, therefore, susceptible to stifling even legitimate speech. Furthermore, if anything, over the years the Pakistani courts have frequently endeavored to carve out spaces for legitimate free speech where they thought that the constitutional caveats were being used to crowd out the same – especially considering that the country has often faced military coups and autocratic regimes.

However, coming back to the original point, my argument was that the existing constitutional language for regulating speech ought to be adequate for curbing several kinds of hate speech – including blasphemy, if we were to define it as such. The related contention is whether blasphemy ought not be purely classified as a kind of hate speech, which it really is, rather than allow it to be treated as a kind of crime that adopts certain other worldly or extra terrestrial dimensions which then allow the proponents of the current laws to advocate that the crime is not just punishable by terrestrial laws but that such is its character and heinousness that any ‘right-thinking’ individual is entitled to take the law into his own hands and act as accuser, judge, jury and executioner – the creation thereby of several individualistic normative frameworks that are in direct conflict with the law of the land. This is one important dimension of my analysis. The other separate argument that I tried to make in my research and that also related to the larger free speech domain is of course whether the blasphemy laws, as they exist, have the potential to stifle legitimate and socially useful/desirable religious discourse and debate. Some of the reported blasphemy cases demonstrate how this can be a legitimate concern.

One such case is that of a certain Dr. Yunus, who taught at a private college. During one class some students asked him certain questions about the early years of Islam and whether certain sacred historical personages from the Holy Prophet’s family –who had passed on before the message of Islam was spread – were technically Muslim. He made some careful and reasoned responses. Objectively speaking there was nothing blasphemous or offensive about them. However, it seems that they were at odds with what the questioners adhered to or were expecting and some of them misinterpreted them as blasphemous and accused Dr. Yunus. A long-drawn case and much harassment later, Dr. Yunus had to go into exile to save his life.

This particular and other similar episodes immediately raise the question in my mind about the potential for misconstruing even a respectful and well-reasoned academic discussion as blasphemous, either because of a low tolerance for divergent views or a propensity on part of some to mischievously use the flawed law to get someone into trouble or to settle scores. Theoretically speaking, such is the potential for the misuse of Zia’s blasphemy law that my own careful academic work on this theme can be questioned by some zealot as inappropriate and hence amenable to legal action or private intimidation. And I have made it very clear in my academic article, as well as my responses here, that I am not qualified to, nor I am engaging in, a theological discussion on the larger concept of blasphemy or even a broad normative debate on Islamic jurisprudence—which, however, are discussions that I strongly believe ought to take place in Pakistan—but that my well-circumscribed ambit of review is a legal, public policy and sociological analysis of a man-made law from the 1980s So Zia’s blasphemy law has a definite ‘chilling effect’ on useful and necessary public and academic debate and discussion. 

Needless to say, the assassination of Governor Taseer—who did indeed engage in a legitimate public discussion about this particular law and its adverse impact on certain sections of society, thereby advocating legislative review of the same—has made such discourse riskier. At the time of his assassination a Private Member’s Bill had already been prepared to this end and it also had support from sections of the treasury benches. That Private Member’s Bill has now been shelved and those in the Government supportive of it (some of them also received threats) have meekly withdrawn into their shells – thus a great opportunity has been lost. Such was the Government’s and the ruling political party’s alarm at the prospect of being embroiled in a controversy that they essentially caved in to the pressure exerted by relatively small sections of zealot support for the murder and did not even assist the family of the deceased in arranging an effective lawyer – the state eventually provided one. It is apparent that the general rule of thumb continues to be to ‘let the dust settle down.’ As a result of this tyranny of the largely silent majority, the suffocating phantom of dogmatic zeal and vigilante justice grows stronger. The room for free and informed speech is increasingly encroached by self-styled custodians of morality and acceptable behavior.

I had actually forewarned in my 2007 article that if we don’t arrest the growing and misconceived conflation of theological matters and a patently man-made law by a self-serving dictator, we may as yet witness more violent demonstrations of the growing lawlessness stemming from and around this law. It seems like a prescient observation as the events from earlier this year have shown. The assassination of Governor Taseer was a brutal and shocking event. Given that it is the only episode to date that involves the killing of a prominent public figure due to his/her views on Zia’s blasphemy laws, one can be tempted to perceive it as a freak occurrence. However, in my view it would be self-deceptive to think that way.  To my mind, the murder actually demonstrates not just how the tide may be turning in Pakistan in the larger battle between tolerance and intolerance, and between pluralism and parochialism, but also how easily certain vocal and violent sections of the population can intimidate a government and a people into silent submission. Others with similar coercive ambitions are watching closely I am sure.

The ‘chilling effect’ extends to not just debating these laws and discussing the possibility of more just, equitable and socially useful alternatives, but even to other larger and highly socially desirable public and academic discussions on several issues of public life and governance with overlaps with equally significant popular and academic discussions stemming from the analytical constructs of Islamic theology, Islamic law, Islamic history  and Islamic political, economic and social thinking. More likely than ever is the possibility of someone crying foul, appointing himself as the only true interpreter of the faith, and provoking, instigating or wreaking mayhem and violence.

But I still choose to look for that proverbial ray of light. I recall that some months ago when I was a participant here at Harvard on an academic panel discussing the Pakistani blasphemy laws—a very engaging discussion in which I was joined by an Islamic historian and an anthropologist who has done extensive work in this area—on that very day, there was a seminar on the same topic taking place at LUMS – my university back in Lahore. I actually did not anticipate that people would be willing to speak openly on this issue so soon after the Governor’s assassination and I was much heartened that they were. I also remember with a degree of solace how, after the initial few days of shocked incredulity in the wake of the assassination, many social commentators as well as religious scholars and clerics came out in the Pakistani electronic media and condemned the action, while making a clear distinction between the positivist dimensions of Zia’s blasphemy law and the larger theological discussion on the concept of blasphemy. However, much more needs to be done to educate the masses, to thwart the violent radicals, and to pressure the Government and various political parties towards taking long overdue and decisive legislative steps.

We’ve touched on a variety of issues relating to the blasphemy laws. Do you have any final thoughts?

I would like to underscore how important I think it is for those outside Pakistan to understand, appreciate and meaningfully support the various attempts within Pakistan, both in the judiciary and in the society at large, to mitigate the coercive potential of this law. This is important if we want to move beyond facile and sensationalist coverage of certain events and towards a meaningful support of those facing an increasingly tough battle ahead. Having said that, the growing societal polarization and hardening of attitudes on this issue within Pakistan can only be tackled through an informed, robust, uninhibited, sustained and widely disseminated domestic debate that unravels and exposes the false sacredness and unassailability that has been disingenuously ascribed by some quarters to a very problematic law.  Without informing and educating popular opinion on the law and simultaneously pressurizing the State to unflinchingly adhere to its duty of protecting the lives of its citizens, regardless of whether it is politically expedient or not, the champions for dialogue and reform will likely dwindle in number and strength.  

Furthermore, when it comes to how this law is popularly perceived by an increasingly embroiled, divided and politico-economically skewed Pakistani society that faces myriad domestic challenges and is also highly distrustful of the new ‘Great Game’ being played within and in areas neighboring its borders, it is evident that the issue cannot be looked at in isolation. Popular reactions and attitudes towards those who advocate its reform also formulate public views on whether reform is desirable. Thus, the resented local educated upper class, NGOs and human rights groups and their western allies in governments or in the world of international human rights, have eroding credibility with the common man – and this is often for fairly understandable reasons. Without greater and deeper democratization of Pakistani society and its progression towards a more pluralist and tolerant ethos as well as distributive justice – a transformation that requires both concerted domestic efforts and a consistent and honest international commitment to the future of Pakistan’s democracy as well as abiding respect for its sovereignty –  I think that these issues that essentially display growing intolerance and lawlessness are not going to go away any time soon. I emphasize in particular a positive perception of the international commitment to democracy and sovereignty as overwhelmingly large sections of Pakistani society are oblivious of the Universal Declaration of Human Rights and the notion of a just International Law, but graphically reminded everyday of illegitimate wars all over the world and the succession of drone attacks on their own territory. The credibility of anything that the West says, rightly or wrongly, is at an all time low and ‘human rights’ is something which is to many, rightly or wrongly, what the West says.

Finally, if we are committed to reforming these laws, there has to be a larger commitment to understanding the broader, structural issues of the Pakistani justice system, as indeed of other post-colonial justice systems. This requires closer examination of the various issues of the alienation and disenfranchisement of ordinary people from the formal legal and court systems, as well as the perennial violations of due process, inadequate substantive justice, and rarely heard of distributive justice. Isolated attention to the issue of the blasphemy laws, whether from a domestic lens or an international lens, without comprehension of the larger Pakistani socio-legal context, will not get us far.

The complete interview series is available HERE.

Part III is available HERE.

Interviewer: James Tager J.D. ‘13

You’ve mentioned how enforcement of, along with perceptions of, the blasphemy laws is an evolving dynamic. Can you elaborate on how this debate has been evolving recently?

Events over the last several months have really polarized this already contentious debate because certain obscurantist elements have decided to scale up their efforts to use Section 295 (c) as a rallying cry for their narrow political agendas. The assassination earlier this year of the Governor of Punjab, Salman Taseer, is a tragic outcome of this regressive trend. However, looking back over the last decade or so, there were several phases and points of relative sanity and thoughtfulness where I think we were moving towards very meaningful legislation to essentially take away the exploitative sting of this law, and to iron out its various issues in order to bring it in line with existing anti-hate speech laws in the larger corpus of Pakistani law. The goal of such intended legislation was to address existing lacunae in the text of the law and also to provide additional procedural guarantees to preclude the possibility of admission of weak or false evidence. Certain such procedural guarantees and administrative reforms were indeed introduced over these years to ensure that the police investigation of blasphemy accusations took place at a sufficiently higher level and that the evidence and background factors were subjected to stricter judicial review.

At the same time, greater critical media scrutiny was extended to the miscarriage of justice potential of the existing law and there was greater impetus behind state and non-state endeavors towards public awareness and information. However, vital momentum was lost as certain differences emerged over the extent and precise ambit of the textual reform. At the same time, motivated by political expedience and anxious to avoid controversy, important sections of the legislature adopted a lukewarm approach and did not extend requisite support to the courageous attempt at reform by key legislators. Consequently, the anti-reform elements capitalized on the opportunity to stall this much needed initiative.

The recent assassination of the Governor of Punjab has once again highlighted how a misled vigilante can take the law into his own hand, while visualizing himself as a self-styled defender of the honor of the Holy Prophet of Islam. He has claimed that the late Governor had been guilty of committing blasphemy, whereas a careful and dispassionate review of the late Governor’s statements shows beyond doubt that he was merely criticizing the exploitative potential of Section 295 (c) in the context of a recent implication of a Christian woman in a blasphemy case under that provision. The assassination of the Governor by his own security guard (who admitted being influenced by the sermons of certain minor clerics who were critical of the Governor’s stance and had been preaching the merit of such an action, but had been allowed to continue unchecked by the religiously conservative rival political party currently in power in Punjab, even though such sermons squarely amounted to instigation to murder under Pakistan’s penal code) shocked the nation. But there were also certain very vocal radical elements that hailed it as a commendable act and declared the assassin as a hero. This in turn also generated a strong reaction from many others who were devastated to see how the space for rational debate on this problematic law was usurped by violence and also the very high cost that a legitimate critic may have to pay. Importantly, it also caused various others who have been historically lukewarm about the prospect of reform, or have been blindly opposed to it without exerting any effort to carefully consider the issue and what is at stake, to finally think.

So the said law has been brought to the forefront of a larger tussle between moderate and radical elements in Pakistan. The debate is more polarized than ever. As a matter of fact, at one level, it is hard to describe it as a debate anymore as one side to it has clearly shown that it prefers to shoot first and ask questions later. An additional disturbing aspect of this episode is the fact that amongst those who have hailed the assassination of the Governor, are certain conservative sections of the lawyer community. This in turn has taken some of the gloss off the historical lawyers’ movement in Pakistan over the past few years for the restoration of the illegally removed judges by the dictator General Musharraf and a revival of constitutional democracy. Many ordinary citizens now ask: how can those who are supposed to be the custodians of the law and the Constitution openly condone and praise a blatantly illegal act — and an act of cold-blooded murder, at that? An Anti-Terrorist court has recently found the assassin — who committed the murder in broad daylight in front of many witnesses and also made a full confession — guilty and sentenced him to death. The verdict has been challenged and admitted on appeal by the Islamabad High Court which has stayed the execution. The appeal hearings are currently being awaited. At the same time, a recently retired Chief Justice of the Lahore High Court — a person of very dogmatic leanings and with strong ties with right wing politics — has been reported to have offered to defend the assassin. On the other hand, such has been the environment of open intimidation spread by the supporters of the assassin that the family of the deceased finds it very hard to date to secure a high profile lawyer and has had to rely on a state designee.

Overall, the larger lay public seems confused and divided due to the historical paucity of open debate and information dissemination on the problematic aspects of this law. All this displays an ever-widening chasm between the various shades of parochial right wing politics in Pakistan that silently or openly condone various actions of radicals such as Governor Taseer’s assassin, and the various other shades of more moderate and pluralistic, religious as well as secular, politics in the country. At the same time, such events have made it more risky than ever to sustain a sane and honest debate on the issue without being branded as a blasphemer and threatened with dire consequences. So in many ways, events over the past year have made things much harder for the exponents of considered thought, dialogue, debate and reform. 

However, the multiple dire consequences of the unprincipled politics being played around this issue are not completely lost to many citizens in what is essentially a highly diverse society when it comes to the various sects of Islam. Of late there have been certain very commendable community attempts to preclude religious ideologues or mischievous elements in society from abusing the potentially volatile situations that emerge in the wake of a blasphemy accusation. These positives, however, are inadequately reported by the local and international media.

One recent such episode is from a couple of months ago, where there was some commercial dispute between certain individuals in a small Punjabi town. The disputants in this case happened to be Christian and Muslim. Apparently, heated words were exchanged, including some disparaging ones for both religions and their adherents. Due to the provocation and instigation of some rabble rousers the dispute soon degenerated into a potentially violent altercation with religious overtones. News started coming in that a blasphemy had been committed and Section 295 (c) was soon likely to come into play. However, the religious clerics from that particular community exercised great judgment and entered the fray in order to calm both sides down, initiate a reconciliatory dialogue and successfully resolve the matter before it got out of hand. An accord was duly signed that laid out a mutually acceptable code of behavior and guarantees for abiding by it. By their timely and brave intervention the clerics from both sides as well as various local elders and respected figures ensured that a commercial dispute was not allowed to morph into something much more sinister. They thus precluded any radical elements or sensationalist media from blowing the matter out of proportion; the latter by blocking their access to the disputants. This presents a very welcome and commendable precedent for communities all over the country.

I would like to think that quite apart from displaying the humanity and good judgment of a set of decent citizens this episode may also denote a wider wake up call for communities that they will have to act swiftly before such situations are misused by manipulators to wreak violence and mayhem in their neighborhoods. The happy outcome was that within a day or so of when this development was first reported by the media, it was already over. The media vans that rushed to the town in order to cover unfolding events found a community at peace with itself, rather than an unfolding mini-crusade between Islam and Christianity, as some may have hoped.  But since courageous and statesman-like community control of the coercive potential of this law does not make as good a news as rampant violence and the reenaction of a medieval battle scene, relatively few people know about this and certain other similar recent events with happy endings.

In spite of the various difficulties noted above, I feel that the opposition to the current law will remain. And this is not only because of its coercive and exploitative potential but also due to its larger symbolism. For the vast majority of us Pakistanis who are staunchly pro-democracy and who have valiantly opposed every internationally supported military dictatorship in the country, the very fact that this law was introduced during the dictator Zia-ul-Haq’s time, makes it undesirable. At the same time, as a close observer of and commentator on the Pakistani legal system I feel that the blasphemy law debate, while getting its more than due attention, ought not to be allowed to overwhelm the larger justice sector reform debate in the country. In other words, there is an acute need for the reformers, the academics, the civil society groups and the media to also commit sustained focus on a whole host of other structural and substantive issues which not only exacerbate the situation when it comes to blasphemy cases, but directly contribute at a much larger scale to citizen legal disempowerment and rights violations. I talk here of course for the acute need for reform of the various aspects of the procedural laws, the court system, the alternatives to formal legal adjudication, and the training and accountability of judges and lawyers. Once again, for the 104 reported blasphemy cases that I have spoken about there are hundreds of thousands of rights denials and violations that are directly attributable to these much less discussed unreformed aspects.

Professor Siddique’s interview will conclude, with a discussion of the debate over the blasphemy laws and their place within a larger framework of free speech, in Part V available HERE. The complete series is  available HERE.

Part II is available HERE.

 Interviewer: James Tager, J.D. ‘13

It seems that appellate review is often operating as a check on the blasphemy laws being abused at the trial court level. Is appellate review an effective enough check, or does more need to change to restrict potential abuse of these laws?

Yes, I think the appellate review system has so far prevented injustice at the upper levels. That’s very much present. But, as I said earlier, the nature of the beast is such that when someone gets implicated in a blasphemy case, the real danger lies in whether that person becomes a victim of vigilantism. This is especially an issue in a society with escalating tendencies of intolerance. Such growing intolerance is of course a function of a whole host of political, economic and social factors. So very unfortunately, a certain number of the accused in blasphemy cases have been extra-judicially killed on their way to the court. There have also been a few instances of the murder in prison of those convicted in such cases by religiously zealot fellow prisoners seeking some imagined merit in the afterworld for their actions. Thus, there is always the potential that before the law takes its course and the courts reach a verdict, some radical and bigoted elements may assume the role of self-appointed court, jury and executioner. The normative framework that they may be operating under would thus be very different from the law of the land and they would justify their actions by extolling the superiority of that framework over the law, while their supporters would praise them as martyrs for a higher cause. This is nothing unique. Human history and indeed the history of Western civilization are full of the use of religion not just for individual murders but entire pogroms and reigns of inquisitions.  The problem, therefore, is obviously not just the law itself, but also, in various instances, the wide gaps between the formal law of a post-colonial state and the multiple and at times radically divergent normative frameworks and notions of popular justice held by certain sections of society. Geo-political regional stability; robust, pluralistic and uninterrupted democracy; deeper economic empowerment; wider political opportunities; greater distributive justice; meaningful social reform; and massive investment in quality education are the only reliable sources of sustainable, long-term solutions to not just the current challenges around the blasphemy question but also the various additional dimensions of lawlessness being confronted by Pakistan.

In particular, the formal system of justice operates so laboriously that available data on violence demonstrates that some people are increasingly inclined to lose their patience and take the law into their own hands — and here I refer to a whole host of criminal and civil disputes in Pakistani society. The upshot is that while the appellate courts may eventually decide to further forcefully exert themselves in order to ensure that there are no false or malicious implications, those accused in blasphemy cases will continue to have to face various risks and challenges before their day in the appellate court — in their neighborhoods, in the trial courts, while commuting for their hearings, in police or judicial lockups, and even in prison. So while the appellate courts can surely further fine-tune the law to address its shortcomings, and establish very clear precedents and directions for the trial courts in order to minimize miscarriage of justice, the truly meaningful and effective solution lies in greater informed dialogue, awareness generation, tolerance building, consensus creation and decisive legislation. That, I am quite sure, is a sine qua non if we are to realistically curb the coercive and exploitative potential of this law.

Is the distinction between how the appellate courts and the district courts differ in dealing with these laws adequately appreciated within international news reports on the issue?

I would simply say ‘No!’ And this is quite remarkable considering that this particular issue has received a lot of international press. However, there is very little out there which actually tries to look at this phenomenon holistically; which tries to understand the various and often conflicting social and legal factors in play. There is insufficient acknowledgement of the fact that over the years there has been a lot of resistance to Zia’s blasphemy law and not only in terms of the more well-known Pakistani activists, civil society groups and human rights organizations that are working for its reform, but also in terms of the institutional resistance to this law, or at least to its potential misuse, from within the judiciary.  This is clearly evidenced by several judgments of the Pakistani appellate courts. Though not adequately captured by the international media glare, this institutional reaction is very much present, is part of the public record, and I’ve tried to capture its important facets in my article. Having said that, I too have been critical of the strength and consistency of this judicial reaction to arrest potential miscarriages of justice because of this law, because I believe that much more could have been done. Nevertheless, there is no denying that since the introduction of this law there has been a recognizable attempt by various judges to try and minimize its abusive and coercive potential.

At the same time, we have to remember that judges in Pakistan, like judges anywhere else in the world, are not a homogenous group of people. They also have their own independent inclinations, tendencies and perspectives and, therefore, disagreements. However, by and large, I would say that over the years we have had, for want of a better phrase, some fairly human rights-sensitive judges in Pakistan who have been quick to recognize the mischief possible under this law and have also demonstrated courage and alacrity in preventing such mischief.

This, however, is distinct from the general state of affairs at the district court level. At that level, various contributory factors such as the generally inadequate levels of competence and training, stifling workloads, personal prejudices, and in many cases, tremendous public pressure and intimidation by certain radical quarters and an emotionally stirred public, have caused certain judges to make mistakes and hand out convictions even though there was scarce or flawed evidence, investigative mistakes, and/or mala fide intent behind the accusations. A case in point of the kind of open harassment and public threats such judges may face is that of the Anti-Terrorist Court judge who very recently convicted the assassin of the Governor of Punjab, Salman Taseem, who was killed for his criticism of the blasphemy laws. This was a brazen, cold-blooded act committed in front of several eye-witnesses and an act to which the accused confessed. There was a series of public rallies and demonstrations extolling his act, galvanized by certain radical religious parties and supported by certain sections of the undiscerning public that are convenient prey to rabble rousers. These demonstrators demanded that the killer be set free as he had undertaken the highly praiseworthy act of taking to task a blasphemer.

One must also remember that when judges are threatened in such situations there is generally scant actual provision of and negligible public faith in the security provided by the state. In this particular high profile case, news has now emerged that the Government has packed off the concerned judge and his family to Saudi Arabia for an indefinite period in order to protect them against constant harassment and possible harm. So the personal cost of exposing the abuse of the blasphemy law can be very high for a district court or similarly placed judge. According to my recollection, a judge of the High Court was murdered many years ago, allegedly by someone who took offence at one of his decisions acquitting a person accused in a blasphemy case, and also his general approach to extend bold and painstaking scrutiny to such accusations. Though to date this is not confirmed for a fact as one also hears that the motivation behind the murder was actually personal enmity and it was only disguised as motivated by religious fervor – but even in that case the exploitative potential of the law through private cooption is clear.  Thus, district court judges operate in an invariably insecure environment that makes them vulnerable to various kinds of pressures and intimidations from the mobs outside their courts, or more discreet ways of communicating grievous threats. Despite that we cannot simply generalize and say that a blasphemy case landing up in such courts always translates into convictions. In spite of the relative lack of facilities, training, incentives and personal security extended to district judges as compared to the appellate judges, there are always judges who do whatever it takes to ensure a fair trial. However, this is increasingly becoming very difficult and risky.

Professor Siddique’s interview will continue, with a discussion of recent developments in the societal debate over the blasphemy laws, in Part IV available HERE. The complete series is available HERE.

Part I of the interview is available HERE.

Interviewer: James Tager, J.D. ‘13

Tell us a bit more about what role bad faith claims, or mala fides, against a defendant can play in this whole process.

First of all, let me reiterate that the blasphemy cases in Pakistan are obviously a phenomenon that has captured global attention. That is understandable as it’s a rather unique situation, because blasphemy laws have more or less withered away in most other jurisdictions. There are very few places left where this is not the case. However, as I have explained the Muslim sensitivity to the issue of intentional and malicious disrespect towards the Holy Prophet of Islam should not be underestimated or undervalued on the rubric of a personal set of liberal paradigms. Furthermore, since Pakistan is also currently in the limelight for a whole host of additional reasons, and not necessarily positive ones at that, reporting on such cases, infrequent as they may be, fits within the larger poplar international narrative about Pakistan. This is a narrative that on the whole, in my view, inaccurately and irresponsibly paints Pakistan as a basket case or a medieval milieu worthy of contempt. Such reporting makes good newspaper copy but is ultimately unnuanced and misleading.

As I said before, I have closely examined all the reported Pakistani case law on blasphemy from 1960-2007, which is the period that I reviewed when I wrote my detailed article on these laws that appeared in the Summer 2008 issue of the Minnesota Journal of International Law. As I mentioned, there are only 104 reported blasphemy law cases in all of Pakistan’s High Courts and the Supreme Court. Now, let’s assume that there were actually quite a few more cases which were actually registered with the police, and further that they even made it to the trial courts, but that they never made it to the appellate courts and, therefore, they are not reported cases. Let’s additionally assume that there were actually four times as many cases than the ones reported in judgments. In the larger scheme of things and given Pakistan’s population and the many thousands of legal cases that are initiated in its courts every year, that’s still a very small number. In many important ways, there are other, more significant issues pertaining to the civil and criminal justice system — issues which have palpable human rights implications and which adversely affect the average citizen on a daily basis, but which get relatively scant media attention. In this context, I feel that the blasphemy cases are highly over-reported.

Having said that and very importantly, the case law shows that in a fair number of blasphemy cases the judges have uncovered that the actual mala fide motivations behind accusations of blasphemy were personal vendettas, on-going adversarial litigation, property or commercial disputes, political or professional rivalries, marital disagreements, prior religious or sectarian tensions. Once a person was accused of blasphemy, however, such cases found further fuel from zealots, vigilantes and self-styled custodians of religion. As a result, any objective judicial and public perspective on the case was invariably jeopardized and the accused was stamped with the stigma of presumed guilt. In as many as 29 % of the 104 reported blasphemy cases between 1960 and 2007, one or more of the above background factors have been noted and discussed by the judges, and in many, recognized as the real dishonest motivation behind the litigation. Additionally, some of the most high profile and widely reported blasphemy cases were inevitably investigated by journalists, who invariably uncovered some kind of personal agenda on part of the accuser.

The reason why Section 295 (c) in particular is vulnerable to this kind of abuse is the aforementioned fact [See Part I of the Interview] that it does not have a specific, malicious, mens rea requirement, along with its general lack of definitional specificity. Add to this the additional egregious factors such as several lacunae in the general procedural law, weaknesses in the police investigation process, and shortcomings in the training of trial court judges. Furthermore, consider how often such cases are sensationally blown out of proportion by the popular press, with the net result that regardless of whether someone is wrongly or rightly accused, an on-going media trial and public inquisition puts the police and the judge under tremendous pressure. The situation is often further exacerbated by vocal and at times violent demonstrations outside the courtroom by religious zealots. Think of a combination of the media coverage of the O. J. Simpson trial and the Salem witch-hunts. Popular sentiment is routinely provoked and religious sensitivities blatantly exploited. Consequently, even if the accused eventually turns out to be falsely or erroneously implicated, he or she has to undergo tremendous harassment and mental torture in the long months and years till the case is eventually decided.

A lot of this also has to do with the generic slow pace and cumbersomeness of almost all post-colonial legal and court systems and thus can be the lot of anyone embroiled in a meandering legal case. However, because of the special sensitivities surrounding as well as the politics associated with the Pakistani blasphemy laws, such cases pose multiple additional difficulties to an accused party wanting to prove his or her innocence. And the ordeal is not just restricted to the courts. Over the years, a few of the accused have lost their lives to vigilantes while their cases were still sub judice. In other instances, some of them had to seek asylum in other countries even after the appellate courts declared them innocent. While as it is, getting embroiled in a court case is a long and physically and financially draining exercise, those accused of blasphemy face the additional challenge of finding a good lawyer who is also willing to defend them — though one must mention here some senior lawyers of the Pakistani bar who have consistently provided highly able, courageous and pro bono assistance to the accused in such cases.

So while anyone falsely or erroneously implicating someone in a blasphemy case does not face any adverse legal ramifications or noticeable social censure, those once accused may find it very difficult to resume a normal and secure life again. This is either because they are genuinely apprehensive that though exonerated by the court, purveyors of private justice may still be out to get them due to their religious prejudice, or in case the entire matter stemmed from some other underlying dispute, they legitimately fear that their rivals may find other ingenious ways to harass them. Asylum, therefore, seems at times like a more acceptable option. Thus, while it is comparatively very easy to falsely implicate someone in such a case, the cost for the accused is invariably very high, regardless of whether he or she is ultimately proven to be innocent.

But there are some positives to be noted as well. In some ways, I think there’s growing public recognition of this abusive potential of Section 295 (c) for personal score settling. I think that this is something which is increasingly being highlighted by certain mature sections of the Pakistani press, and also by many activists and organizations which have consistently advocated against this law since its introduction and fought a long, hard and risky battle for its amendment.

So the focus of these anti-blasphemy law advocates is on reforming the blasphemy laws, not on abolishing them. Can you explain a bit more about that?

It has to be recognized that to the overwhelming majority of Pakistanis any derogatory speech pertaining to the Holy Prophet of Islam cannot be taken lightly and it is considered deserving of curtailment and punishment. Given the acute public sensitivity to this issue, it would be highly unrealistic and even unfair to expect that since blasphemy against sacred personalities is no longer deemed a crime in the West, that ought to be the situation in Pakistan as well. Such a view would be diametrically opposed to the faith system, customary practices, and underlying aspirations of a society which is very different from Western societies in significant ways. One could argue that such blasphemous speech was and could always be proscribed and punished under the existing anti-hate speech laws prior to the introduction of Section 295 (c) and that is a very valid observation. However, the practical reality is that now that there is a specific law pertaining to this kind of a situation, doing completely away with it is next to politically impossible. Therefore, radical amendment and consequent improvement of the substantive text of Section 295 (c) in order to neutralize its exploitative potential, and introduction of strong procedural safeguards to minimize miscarriages of justice, is what the vast majority of pro-reform activists are and have been striving for. However, the idea of the reform of Section 295 (c) is an increasingly contested one as it is erroneously or mischievously equated by certain parochial quarters or ideologues with a condonation of blasphemy. Such misconstruction is often meant to stir popular sentiments on the issue and fuel a certain brand of parasitic politics.

So for instance when you talk about the current law to ordinary people in Pakistan, their first reaction is a very emotional one. They say, ‘how can you talk about not having the law which protects the honor of the Prophet?’ But if you create the opportunity to have a patient and detailed discussion and manage to explain that: ‘We are not talking about the larger concept of blasphemy. Instead we are talking about a man-made law from the ‘80’s. This is a highly problematic law, and there is ample documentation of the many injustices which have taken place because of this law. Having such a law is against the very spirit of Islam as it violates its message of fairness and justice.’ I can tell you from personal experience that the vast majority of those I have spoken to, are willing to listen and capable of making this important distinction between the particular law and the larger concept of blasphemy.

There is thus much ignorance and lack of clarity on this issue and an acute need for greater informed debate about the theological antecedents of the concept of blasphemy in Islam that is made accessible to the ordinary public. The various Islamic religious scholars whom I’ve spoken to, clearly indicate that there is no precedence of there being a law similar to Section 295 (c) in the Muslim world or in Islamic history. They point out several examples from the Holy Prophet’s life. These are examples demonstrating great personal fortitude, perseverance and forgiveness when it came to anyone maligning his name, and in the face of egregious personal persecution. There’s a very well known hadith, or a documentation of an episode of the life of the Holy Prophet, from the time when he was initially spreading his message in Mecca. The Holy Prophet used to take a certain route to his place of contemplation, and there was an old woman who always used to throw garbage on his head from the upper floor window of her house when he passed underneath. This was one of many instances of the various trials, hardships and personal affronts faced by the Holy Prophet in the early years of Islam at the hands of those who disagreed with his message, or opposed it as they felt that it would destabilize the theological and political status-quo which was very much to their advantage.  His response, however, was stoic, deeply generous and always forgiving. One day the Holy Prophet passed through his route, and the old woman did not appear in her window to habitually defile him by throwing garbage. Upon noticing her absence, and this is very well recorded by authentic hadith scholars, the Holy Prophet made inquiries about the welfare of the old woman. As it turned out, she was unwell. And so he went to ask after her health. This and many other well recorded instances are cited by the scholars whom I have spoken to in order to underline the Holy Prophet’s consistent forbearing and forgiving approach towards those who physically or verbally assaulted him as he spread his message. These episodes, however, should be distinguished from certain other kinds of episodes in early Islamic history, when certain political schisms emerged in the new polity; some individuals made false claims to prophethood and also maligned the Holy Prophet’s name in a certain political way in order to undermine his message and to create fissures and turmoil. In some instances, military expeditions were launched against such elements. This kind of maligning is, however, clearly distinguished by Muslim scholars due to its specific and special historical and socio-political context and also its larger negative societal ramifications. So, as is evident from this brief description, there is much room even for an open and informed theological debate on this matter, over and above the one that is continuing on the particular issues of Section 295 (c).

Professor Siddique’s interview will continue, with a discussion of the difference between appellate and district courts in interpretation of the blasphemy laws, in Part III available HERE. The complete series is available HERE.

 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.

Various groups, including April 6 Youth Movement, We Are All Khaled Said, National Association for Change, and Kefaya led a coordinated effort using social media platforms, including Facebook and Twitter, to spread a revolutionary message.8 Prior to the first day of protest, 85,000 Egyptians pledged on Facebook to attend “Revolution Day.” Similarly, April 6 Movement had over 90,000 members during the protests,10 and We Are Khaled Said had over 40,000 Facebook fans.11 In the two weeks leading up to and including the first few days of the protest, Egyptians created 32,000 Facebook groups and 14,000 Facebook pages.12 It is likely that a substantial number of the five million Facebook users in Egypt13 were in some way encouraged to attend the protests.

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