Harvard Human Rights Journal continues its conversation with Pakistani legal scholar Osama Siddique. This week, Professor Siddique elaborates on the difference between the appellate courts and the district courts in interpreting Pakistan’s blasphemy laws.
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.