Harvard Human Rights Journal continues its conversation with Pakistani legal scholar Osama Siddique. This week, Osama Siddique attempts to place the debate over the Pakistani blasphemy laws within the larger framework of free speech, and provides some concluding thoughts.
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.