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Why Pakistan’s blasphemy legislation has no basis in law or religion

🔴 Faizan Mustafa writes: Killing of Sri Lankan national in Pakistan highlights once again how the country's law must be reformed

Police officers stand guard at the site where a Sri Lankan citizen was lynched by Muslim mob outside a factory in Sialkot, Pakistan (AP)

A Sri Lankan manager was brutally beaten and burnt alive by a mob of religious fanatics in Sialkot recently. Prime Minister Imran Khan promptly termed the incident a “horrific, vigilante attack” and “a day of shame for Pakistan”. Within hours, as many as a hundred arrests were made. But if Imran Khan is really interested in meaningful reform, he must muster the courage to initiate a fair debate on the country’s controversial blasphemy law. Pakistan’s blasphemy laws have doubtful legitimacy, both in terms of Islam as well as modern notions of criminal justice.

Blasphemy was punishable in ancient Greece — speaking ill of the gods, disturbing the peace and dishonouring the principle of government. Monotheism greatly contributed to the notion since the Biblical state of Israel considered blasphemy as the cornerstone of Jewish identity. The Council of Nicea in 325 AD invented heresy for the Christian world and, for centuries, Christian society behaved like a “persecuting society”. By the 13th century, blasphemy evolved as a crime separate from heresy. Soon, the challenge to the supremacy of God was theorised as damaging all secular authorities. British Chief Justice Sir Mathew Hale in 1675, while pronouncing punishment on John Taylor, held that attacks upon religions were attacks upon the law. In 1699, two young members of the Swedish Royal Navy were executed for having substituted the words “I have the devil in my heart” for “I have Jesus in my heart” whilst singing hymns. After the Enlightenment, due to the recognition of individual rights, the state started retreating from blasphemy. Yet, today, 71 countries, including India, have blasphemy laws even though these have a chilling effect on free speech and, ideally, should be replaced with hate speech laws.

The blasphemy laws are not a creation of Pakistan’s legislature. Sections 295 and 295A of the Pakistan Penal Code are legacies of British rule. Identical provisions exist in the Indian Penal Code. From 1980 to 1986, the Pakistan penal code was amended to include punishments for blasphemy or insulting the feelings of Muslims. Section 295-B made the willful defiling or damaging of a copy of the Holy Quran punishable with imprisonment for life. The most regressive is Section 295-C, which was inserted in 1986. It laid down that “whoever by words… or by visible representation, or by an imputation, innuendo, or insinuation directly or indirectly defiles the sacred name of the Holy Prophet Muhammad (PBUH) shall be punished with death or imprisonment for life, and shall also be liable to fine.” In 1990, the Federal Shariat Court ruled that for the offence described in this section, the punishment prescribed in Islam was death despite the Quran not mentioning blasphemy as a capital offence. Thus, the words “or imprisonment for life” were deleted.

Between 1927 (when the British introduced section 295-A) and 1986, there were only seven reported cases of blasphemy. From 1986 onwards, as many as 4,000 cases have been reported. From 1987 to 2018, 776 Muslims, 505 Ahmadiyas, 229 Christians and 30 Hindus were accused of blasphemy. These cases suggest that there are three types of blasphemy cases: Cases that are mere accusations and are lodged to settle personal scores; those based on expressing one’s faith, and cases in which the accused are known to be suffering from some kind of unsoundness of mind. A majority of the cases fall into the first type. More than 75 people have been murdered for alleged blasphemy, though no one has been executed for such murders.

What does Islam say on blasphemy? The Quran tells us that since ancient times, God has sent prophets in succession to every community. There are more than 200 verses in the Quran that reveal that the contemporaries of all the prophets repeatedly indulged in blasphemy. Prophets, down the ages, have been mocked and abused by their contemporaries (Q.36:30); epithets cited in the Quran include “a liar” (Q.40:24), “possessed” (Q.15:6), “a fabricator” (Q.16:101), “a foolish man” (Q.7:66). Despite such abuse, nowhere does the Quran prescribe the punishment of lashes, death, or any other physical punishment.

The general principle of religious freedom consistent with modern human rights law is mentioned in Q. 2:256 — “there is no compulsion in religion”. Thus, the Quran says that it is not for human beings to control fellow human beings’ beliefs. It explicitly states that God had sent the Prophet to teach people God’s message. The Prophet of Islam is not supposed to coerce or compel people or punish them for their beliefs. It clearly says in Q. 88:22-24 that “thou art not one to manage (men’s affairs), but if they turn away and reject Allah, Allah will punish him with a mighty punishment.” Thus, the Prophet is prohibited from compelling anyone to believe in Islam. The Quran does not encourage Muslims to attack non-Muslims for just their beliefs. Aggression is permissible only in cases of hostility, physical attacks, persecution and in self-defence. Even Pakistan’s former Chief Justice opined that the death penalty cannot be given for blasphemy. Given Quranic verse 16:106, even for apostasy, many scholars like El-Awa, al-Qurtubi, al-Tahawi believe that punishment would be in the hereafter, though apostasy in early Islam was identical to high treason. Similarly, there is no unanimity among jurists on the question of making the death penalty mandatory for blasphemy.

In 2014, The Nation — a Pakistani English-language newspaper — conducted a poll of its readers that showed 68 per cent believe the blasphemy law should be repealed. Of the 55 Muslim countries, only five have capital punishment for blasphemy.

There is an urgent need to reform the law. It does not require any proof of intent, thus making an unintentional mistake punishable with a mandatory death sentence. The law must ensure that there was no spot-trial and mob judgement. No FIR should be registered without investigations by the senior officers. The trial should always be conducted in-camera. Finally, the person who levels false charges of blasphemy should be punished with a minimum sentence of 10 years imprisonment.

This column first appeared in the print edition on December 7, 2021 under the title ‘Illegal and un-Islamic’. The writer is vice-chancellor, NALSAR University of Law, Hyderabad. Views are personal

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