Harvard Human Rights Journal continues its conversation with Pakistani legal scholar Osama Siddique. This week, Professor Siddique discusses the role of mala fides in Pakistani blasphemy cases, and share his thoughts on the broader societal debate regarding the blasphemy laws.
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.