In November last year, Islamabad in particular and the
rest of Pakistan in general were in thrall of a sit-in at Faizabad, just where
the federal capital meets Rawalpindi. The protest was occasioned by a
modification in an oath election candidates must take while filing their
nomination papers. The change was made through the hastily passed Election
Reforms Amendment Bill 2017. The act, pushed through the federal legislature in
late September, was initially controversial for clauses seen as a means for allowing
Nawaz Sharif to regain his position as the head of the ruling Pakistan Muslim
League-Nawaz (PMLN) after he had become ineligible to hold the post due to his
disqualification by the Supreme Court.
Within days of the act’s passage, some opposition legislators
noticed that the wording in one of the electoral forms, where candidates are
required to affirm the finality of the Prophethood, had changed. Facing
accusations and intense criticism that they had compromised on the issue of the
finality of the Prophethood, the government’s representatives immediately
retracted, ascribing the change to a clerical error and restoring the original
text. In the public debate that ensued, Interior Minister Ahsan Iqbal warned
clerics to desist from issuing fatwas of kufr (apostasy) and
blasphemy against those they thought responsible for the alteration, as it
would lead to chaos. But this plea did not prevent an irate former prime
minister, Zafarullah Khan Jamali, from taking exception to the new text and
wishing death upon Parliament for approving it. A few days later, Captain
Muhammad Safdar, Sharif’s son-in-law, unleashed a tirade against the Ahmadi
community which, he argued, was an existential threat to Pakistan. Allegations
against (now former) federal law minister Zahid Hamid, that he had committed
blasphemy and that he was an Ahmadi, soon began to be aired by clerics and on
social media.
Within weeks, hundreds of men, armed with batons and led
by Khadim Hussain Rizvi who heads a previously little-known organisation, Tehreek-e-Labbaik
Ya Rasool Allah, began their sit-in at Faizabad, blocking traffic to Islamabad.
They set up camp on a main highway, attacking and intimidating citizens and
often clashing with law enforcement personnel. When, after a lot of
prevarication, the Islamabad administration tried to disperse them on November
25, it resulted in demonstrations that disrupted daily life in many areas
across the country and led to the death of five protesters and one policeman.
Hundreds of others were wounded. Joined by other religious
groups such as Tehreek-e-Khatm-e-Nabuwat and Sunni Tehreek, the protesters also
attacked the houses of sitting and former ministers and many PMLN
representatives in various towns and cities. They agreed to end their protest
only after Hamid resigned and the government signed an agreement with their
leaders, promising to punish those who had changed the text in nomination forms
besides making many other concessions.
It remains unclear why they went ahead with their protest
in the first place given that the government had already reversed course. What
is clear is the close connection between anti-blasphemy laws and Ahmadism and
how this connection has been highlighted by the relationship between the
finality of the Prophethood, parliamentary legislation and subsequent violence
in this particular instance. While accusations of blasphemy outside of the
political arena can lead to myriad consequences, within the political sphere,
such allegations and, indeed, sympathy for the Ahmadi community, serve to
delegitimise a person’s Muslimness and, as a corollary, a person’s morality —
so intricately entwined are the two concepts in Pakistan.
When Jamali invoked ruin and death on the legislature, his
comments echoed those made by Nisar Fatima in the summer of 1986 when she
warned that the National Assembly invited wrath on itself if it did not pass a
law immediately to protect the honour of the Prophet (may peace be upon him).
Faced with agitated emotions, the government of the day soon conceded. The then
minister of state for justice and parliamentary affairs, Mir Nawaz Khan Marwat,
accepted the ulema’s contention that the death penalty be added to the proposed
anti-blasphemy law, Section 295-C of the Pakistan Penal Code (PPC). He
declared: “In my opinion with this [amendment] adequate sentence has been made
for blasphemers and in future no one will dare to commit blasphemy of the Holy
Prophet.”
Yet 30 years later, the reverse seems to be true. If
Section 295-C was a law designed to end blasphemy, the evidence indicates it
has failed. Over the last few decades, it has produced numerous accusations,
countless cases, instances of assassination and lynching, widespread
intimidation and censorship. Khadim Hussain Rizvi has had many predecessors who
have appropriated to themselves the defence of the Prophet (may peace be upon
him). Blasphemy allegations have impaired our politics and infiltrated our
everyday life. Routinely expressed regrets about the “misuse” of blasphemy laws
are as routinely forgotten. Mashal Khan’s lynching by his fellow students
inside a university over blasphemy allegations in April last year is already a
fading memory.
Yet, one has to ask how it is that a law designed to
defend the Prophet’s honour has had such unforeseen and tragic consequences.
Perhaps it is time to reassess Section 295-C by revisiting the forces that
occasioned it, the incident that triggered it and the parliamentary debates
that justified it. Classically trained muftis, after giving their reasoned
opinion (fatwa), would always conclude by writing “wa Allah a’lam” (but
God knows best) in acknowledgment that human reasoning, even when exercised to
the best of human ability, remains fallible. It is an expression of humility
that we all, our legislators included, would do well to remember. After all,
Section 295-C is a man-made law and if Islam, above all, is a religion centered
on justice, then a review and reassessment of this law is incumbent upon us. As
a starting point, we must revisit the mundane politics and social tensions of
1986.
Zia
and Islamisation
After eight years of martial law, General Ziaul Haq had
finally conceded to hold elections in 1985. Fearing the Pakistan Peoples Party
(PPP) might stage a comeback through the polls, he insisted that candidates
stand independent of party affiliation, that is, we were to have non-party
based elections. Benazir Bhutto and her PPP decided not to contest, thus
allowing the Pakistan Muslim League to win a majority as independents. Zia
selected Muhammad Khan Junejo, a little-known Sindhi politician, as prime minister,
someone who, Zia reasoned, might be more palatable to the PPP’s supporters than
a Punjabi politician would be. With hindsight, the PPP’s non-involvement in the
election was a mistake, as it allowed forces allied with Zia to further
propagate and consolidate their agenda.
Many of the new members of the National Assembly (MNAs)
had earlier worked as members of Zia’s handpicked Majlis-e-Shoora (a powerless
consultative council that existed between 1981 and 1984) and supported demands
for Islamisation and the enforcement of sharia. In 1985-86, senators Samiul Haq
and Qazi Abdul Latif of Jamiat Ulema-e-Islam (JUI) pushed the first iteration
of a sharia bill, forcing Junejo’s government to promise legislation towards
further Islamisation in the shape of the ninth constitutional amendment. This
amendment was passed by the Senate but lapsed when Parliament was dissolved and
Junejo’s government dismissed by Zia in 1988.
Before Junejo came to power, Zia’s Islamisation had
consisted of establishing the Federal Shariat Court, widening the mandate of
the Council of Islamic Ideology (CII) and promulgating the Hudood Ordinances in
February 1979. The last move introduced punishments for theft and
robbery, zina (extramarital sex), false allegations (qazf)
and consumption of alcohol. Subsequently, the Majlis-e-Shoora proposed the
Qanun-e-Shahadat Order and the Qisas and Diyat Ordinance. The former was
enacted through decree in 1984, replacing the 1872 Evidence Act. While much of
it was a translation of the British-era act into Islamic terminology, it did
reduce the weight of women’s evidence in financial matters. As far as the qisas and diyat law
is concerned, a version of it was enacted in 1990 through executive decree
before it became a parliamentary act in 1997.
The zina provisions of the Hudood
Ordinances and the Qanun-e-Shahadat Order diminished women’s evidential
capacity and equality before the law. Repeated calls to further diminish
women’s rights by repealing the Muslim Family Laws Ordinance of 1961 and the rhetoric
of “chador and char diwari” – that is, attempts to regulate women’s
dress and curtail their public activities – meant that much of the symbolic,
legal and rhetorical weight of Islamisation fell on women. From being at least
formally equal citizens, if not necessarily so in practice, their legal status
was increasingly eroded. This was a remarkable shift from the public discourses
of the 1960s and early 1970s, when the national development agenda included
commitments to tackling gender discrimination. Unsurprisingly, Zia’s actions –
supported by a wide array of patriarchal forces, both religious and secular –
led to resistance from women’s groups.
At the forefront of this resistance was the Women’s Action
Forum (WAF), with Asma Jahangir as one of its leading activists. Asma and WAF
were portrayed in the conservative nationalist press as anti-national foreign
agents and the enemies of Islamisation. These “nasty women”, to use Donald
Trump’s characterisation of another forceful articulate woman, refused to be
socially subordinated and legally discriminated by prevalent forms of
patriarchy. They took to the streets of Lahore, demonstrating on The Mall in
February 1983. It was the moment when symbolic violence transmuted into
physical violence.
Regarded as ‘loose’, ‘elitist’ and ‘immoral’ and accused
of acting outside social norms, these ‘unruly’ citizens were physically
assaulted by the police. This state attack on women occasioned much public
shock. It shouldn’t have. There is often only a small step separating legally
sanctioned discrimination and rhetoric from physical violence and public
vigilantism. Witness the Trump-inspired actions against Muslims in the United
States today. It almost goes without saying that the same thing is happening in
Modi’s India.
Sectarianism
and offences against religion
Islamisation, however, had multiple fronts and manifold
effects beyond the women question. It unleashed all kinds of dreams and
aspirations and also antagonisms. Islamisation policies quickly demonstrated
that, despite the rhetoric of Muslim unity, there were, in fact, many
differences within the Muslim community. These policies provoked the question
of which or whose Islam. The provisions introduced for the official deduction
of zakat (in 1980), for example, were opposed by Shias who would not accept the
state’s role in this regard. This opposition and a Sunni version of Zia’s
Islamisation were instrumental in the formation of the first specifically Shia
party in Pakistan, Tehreek Nafaz-e-Fiqh-e-Jafaria, that subsequently became
Tehreek-e-Jafaria Pakistan. This only encouraged the formation of their
sectarian rivals such as Anjuman Sipah-e-Sahaba that subsequently became
Sipah-e-Sahaba Pakistan and has been lately renamed Ahle Sunnat Wal Jamaat.
Zia sought to cultivate support for himself by co-opting
various religious groups and, to that end, organised ulema and mashaikh conferences
in quick succession in August and September of 1980. At the first conference,
the ulema made a number of radical demands that would have opened up state
offices to their direct employment and influence in education, judiciary and
administration as they sought to manage and implement Islamisation. In his
concluding speech, Zia agreed to some of their demands but for the most part he
did not follow through. One notable exception was the demand for a law to
protect the dignity of holy Muslim personages.
Less than a month later and days before the start of
the mashaikh conference, the government added Section 298-A to
the PPC. The new law stated: “Whoever by words, either spoken or written, or by
visible representations, or by any imputation, innuendo or insinuation,
directly or indirectly, defiles the sacred name of any wife [Ummul Mumineen],
or members of the family [Ahle-bait], of the Holy Prophet [Peace be upon him]
or any of the righteous Caliphs [Khulafa-e-Raashideen] or companions [Sahaaba]
of the Holy Prophet [Peace be upon him] shall be punished with imprisonment of
either description for a term which may extend to three years, or with fine or
with both.”
This was the first post-independence addition to the
criminal laws regulating ‘offences against religion’, which had remained
unchanged (barring one addition in 1927) since the institution of the Indian
Penal Code in 1860. The original laws protected places of worship and sacred
objects from damage and defilement (Section 295), religious assemblies from
disturbance (Section 296), funeral remains and burial sites from malicious
trespass (Section 297) and religious feelings of any person from deliberate
insult (Section 298). Although designed to regulate religious conflict, these
laws seem to have had a role in fostering and furthering it. They were used by
religious reform movements and groups who encountered each other through
vernacular print publications and in expanding urban centers.
Punjab in the early 1920s was a hotbed of religious strife
with active Hindu, Sikh, Muslim and Christian movements. These antagonisms
heightened as religion under British colonial rule increasingly became the
basis of political identities. One especially active and disruptive Hindu
reformist sect, Arya Samaj, was provocative towards both orthodox Hindus and Muslims
alike. One of its members wrote an offensive and sacrilegious tract against the
Prophet (may peace be upon him). The British authorities discovered they were
unable to prosecute him under Section 298, which only criminalised spoken – but
not written – language.
Consequently, they tried the publisher, Rajpal, under
Section 153-A, which criminalised incitement of hatred and causing enmity
against religious, racial or caste groups. He was convicted by a trial court
but the verdict was overturned on appeal in May 1927 by Justice Dalip Singh of
the Lahore High Court. While the judge accepted that the publication was a
“scurrilous satire”, he held that Section 153-A did not apply to deceased
religious personalities and suggested the government consider enacting another
provision to address the loophole.
Section
295-A
The colonial authorities were surprised when Chief Justice
of the Lahore High Court, Sir Shadi Lal, chose Singh, who was a Christian
convert from Hinduism, to hear the case. They were even more surprised at
Rajpal’s acquittal and Singh’s reasoning for it. They moved swiftly to do
damage control by trying to ensure an authoritative judgment in a similar case
involving Arya Samaj. They hoped the judgement, in what was known as the Risala-e-Vartman case,
would supersede Singh’s judgment. Ultimately, however, they decided that the
Vartman judgment was insufficient and a new law was required.
This new section was designed specifically to criminalise
insults to religion but these had to be intentional, deliberate and also result
in “outrage”. These stipulations, it was thought, would prevent frivolous
allegations. As an additional safeguard, the charges could only be brought by
the government. Throughout the process of the law’s drafting and passage, there
was considerable concern that it should not be too wide in scope so that it did
not infringe upon reasonable criticism.
After internal debate and consultations, the colonial
government presented the draft law to the Central Legislative Assembly in Delhi.
Muslim members of the assembly, such as Sir Abdul Haye and Mian Sir Muhammad
Shah Nawaz, while recognising the necessity for a new law, thought the draft
law was too wide. Jinnah, while reserving his suggestions for the select
committee stage, nonetheless commented:
“I thoroughly endorse the principle, that while this
measure should aim at those undesirable persons who indulge in wanton
vilification or attacks upon religion of any particular class or upon the
founder and prophets of a religion, we must also secure this very important and
fundamental principle that those who are engaged in the ascertainment of truth
and those who are engaged in bona fide and honest criticism of a religion shall
be protected.”
While the ulema in the Imperial Legislative Council
supported the bill, a few of them also voiced some reservations about its
scope. Maulvi Mohammed Yakub thought the law should be limited to attacks on
the prophets and founders of great and recognised religions. A Muslim member, T
A K Sherwani, made one of the most interesting comments. He acknowledged that
the law had been necessitated due to communal strife between Hindus and Muslims
but raised the possibility that it might contribute to discord within the
Muslim community, among Shias, Sunnis and Ahmadis.
Ilm-ud-din
and Rajpal
After revision in a select committee, the new law gave
colonial authorities a means to clamp down on the vitriolic polemics by some of
the highly communalised vernacular newspapers and journals. But Rajpal’s trial,
and his eventual acquittal, had already stoked communal acrimony. In April 1929,
two years after his acquittal, he was attacked by a 20-year-old Muslim,
Ilm-ud-din. The colonial home department correspondence reports the incident:
“Around 2.30 on 6th of April last he was sitting in his
shop situated about 100 yards down a side street … when he was stabbed by one
Ilmud Din with a knife. Death was apparently instantaneous … the murderer was
pursued and caught.”
After Ilm-ud-din was convicted and sentenced to death, his
trial lawyer requested Jinnah to represent him during the hearing of his appeal
before the Lahore High Court. Jinnah’s strategy was to attack the prosecution
evidence produced before the trial court as insufficient. He also challenged
the death penalty as being too harsh a punishment given the defendant’s age.
But these arguments were rejected and the sentence was affirmed. Ilm-ud-din was
executed and buried on October 31, 1929 in Mianwali jail. Shortly thereafter,
at the request of leading members of the Muslim community, including Allama
Muhammad Iqbal, the colonial authorities allowed him to be reburied in Lahore
on November 14.
Ilm-ud-din’s example has become a hagiographical staple
among some religious groups who routinely cite his action as an appropriate and
natural response to blasphemous insults. However, it ought to be remembered
that Rajpal’s assassination occurred some six years after the offensive
publication. It happened amid some of the worst communal tension in Punjab’s
history — exceeded only by the violence around Partition. In other words,
Ilm-ud-din’s action was an exception rather than the norm, produced by
inflammatory discourses on all sides.
That highly polarised times produce such viscerally
motivated murders is not uncommon — witness, for example, the murder of British
MP Jo Cox in June 2016, by a xenophobic nationalist, Thomas Mair, during the
British referendum on exiting the membership of the European Union. Mair
regarded Cox as a “traitor” to the white race. Yet the discourse around the
Brexit referendum pales in comparison to the level of animosity and active
antagonisms that existed among extremist communal groups in Punjab of the
1920s. Ilm-ud-din’s vigilante action was the end result of a series of
unfortunate and unique events. It cannot be taken out of its historical context
and naturalised as the norm. For if it is the norm, then its logical corollary
is that anyone who is perceived as blaspheming is liable to be killed. Mashal
Khan was a victim of such a presumption — one that has been encouraged by some
of the more extreme religious groups.
In the case of slain Punjab governor Salman Taseer, this
went even further in that he did not commit blasphemy but was defending the
legal rights of a woman convicted on blasphemy charges. Ironies abound. One of
the pall-bearers at Ilm-ud-din’s reburial was Salman Taseer’s father, Muhammad
Dir Taseer. Among Muslim movements at the forefront of the campaign against
Rajpal and Arya Samaj were Ahmadis.
In a more recent case, a mere reprimand led to accusations
of blasphemy and consequently to a murder. Faheem Ashraf, a student at New
Islamia College in Charsadda, had not attended classes in order to participate
in Faizabad protests. On January 22 this year, he killed Sareer Ahmed, a
college principal, who had rebuked him for being absent. “I have been taught …
to kill …to not be afraid. Don’t be afraid of disrespecting the one who commits
blasphemy,” he is reported to have told the officer who arrested him.
The
Islamisation of offences against religion
Zia’s Islamisation had inadvertently renewed and
revitalised the undercurrents of sectarianism. The demand at the ulema
conference of 1980 for the protection of sacred Islamic personages – which
Section 298-A provided for – was probably a result of sectarian controversies
between Sunnis and Shias, Deobandis and Barelvis, and Ahle Hadith and everyone
else at the time. Section 298-A, however, was an exception to the structure of
the penal code in two crucial ways.
Firstly, it specifically protected only key Islamic
personages. Secondly, the delineation of particulars – in this case, specifying
the holy personages – was counter to the philosophy underlying the original
penal code that enunciates general principles and eschews particulars, because
if one were to specify particulars there would be no end to it. The
specification of particulars always leads to discoveries of omissions and,
hence, to demands that the laws be extended. Imagine, for example, if one began
to list all the persons, objects and places deemed sacred in a multireligious
society.
The list would be extensive, running into hundreds if not
thousands of names, and would potentially never be complete as more and more
religious groups seek the inclusion and protection of who and what they
consider sacred. Keeping them out of the purview of the law would lead to
protests over perceived legal discrimination. Thus, the general language of the
code had the advantage of protecting all religions and could be applied
wherever thought necessary. Legally speaking, then, Section 298-A is redundant
as sections 298 and 295-A are more than adequate to prosecute insults to sacred
personages. One is forced to conclude that Section 298-A was a symbolic gesture
by the Zia regime to burnish its Islamic credentials — a gesture comparatively
easy to make.
The section differed from the colonial laws in another –
and important – respect. It dispensed with the criterion of “intent” that
hitherto was a key feature in determining the commission of an offence. The
addition of the phrase “… or by any imputation, innuendo or insinuation,
directly or indirectly” suggested that the interpretation by those who
heard the words rather than the intent of the speaker in saying the words became
the foremost criterion. This emphasis on the effect of words rather than the
speaker’s intent was a radical and fundamental change.
Once Section 298-A was introduced, the demand for
including additional particulars in it, by logic of extension, started arising.
Today, few argue that we should return to the original provisions. Many,
however, ask for the laws to be extended to include sacred personages of
Christianity, Sikhism, Hinduism as well as all the 124,000 prophets recognised
in Islam.
As a legal template, Section 298-A changed everything.
Somewhat surprisingly, however, it omitted the Prophet (may peace be upon him)
while specifying his wives, family, companions and early caliphs. Two years
later, in 1982, another section, 295-B, was added through an ordinance. It
criminalised the defiling of the Quran and seems to have been induced by a
media-led moral panic. Urdu newspapers began to report instances where the
Quran was apparently defiled.
In many of these reported incidents, Quranic text, whether
as part of newspapers, primers, pamphlets or the Quran itself, was being
discovered from rubbish heaps and sewage. That the vast majority of cleaners
and sewage workers were illiterate Christians who may well have been unaware of
what they were disposing does not seem to have been taken into account.
Another contributory factor was the use of the Quranic
texts in taveez (amulets) and by aamils,
practitioners of black magic. Both of these practices were subjects of
controversy and fear as well as the grist for the mills of inter-sectarian and
inter-religious disputes. The incidents of Quranic desecration were seen as but
another example of the activities of dark forces aligned against Islam,
Islamisation and the Muslim polity. Once again, Zia’s government displayed its
Islamic credentials by adding this additional provision to the penal code. Once
again, it was unnecessary, because the offences specified in 295-B were already
adequately covered in principle by Section 295. If the punishment given in the
original section was deemed insufficient, it could have easily been increased.
Both of the new sections, 298-A and 295-B, are technically
discriminatory. They privilege one religion, Islam, through specification of
particular sacred persons and books, and imply that other religions are
secondary. This is not by any means peculiar to Pakistan. In the United
Kingdom, for example, the Queen’s designation as ‘Defender of the Faith’ has
its origin in the British sovereign’s historical association with Christianity,
but has led many, including Prince Charles, to argue that it should be
pluralised to “Defender of the Faiths” to reflect a non-discriminatory
approach to the multicultural and religiously pluralistic society that Britain
has become.
More pertinently, when Muslims in Britain mobilised to
protest against Salman Rushdie’s book, The Satanic Verses, they
discovered that their country’s blasphemy laws only protected Christianity.
This led to demands for the extension of these laws to other faiths (by the
logic of extension), something that was seriously considered until a House of
Lords Select Committee recommended in 2008 that the best solution was to repeal
blasphemy laws and prosecute offensive speech under hate speech laws instead.
This abolition has effectively ended calls for blasphemy prosecutions by
activist groups and is indicative of the power of laws to shape public
discourse.
The next Zia-era addition – an ordinance that introduced
two new sections, 298-B and 298-C – was even more explicitly discriminatory.
Its very title, The Anti-Islamic Activities of Qadiani Group, Lahori Group and
Ahmadis (Prohibition and Punishment) Ordinance of 1984, made no bones about it.
Commonly known as ‘the anti-Ahmadi ordinance’ or Ordinance XX, the edict was a
long-standing demand of groups such as Tehreek-e-Khatm-e-Nabuwat that had been
at the forefront of anti-Ahmadi agitation in 1953 and again in 1974 when it
succeeded in forcing a reluctant Zulfikar Ali Bhutto to bring the question of
Mirza Ghulam Ahmad’s alleged claim to prophecy before the National Assembly.
Parliament found the argument to be against Ahmadis and
declared them “non-Muslims” through the second constitutional amendment. Having
been forced to a decision he initially resisted, Bhutto was not above making
political capital from it. He, however, was not prepared to further infringe
upon Ahmadis’ citizenship right by criminalising their religious expression.
But, in 1984, Zia did not put up much resistance. Responding to renewed
anti-Ahmadi agitation, he soon succumbed to the protesters’ demands.
The new sections criminalised Ahmadi engagement with
Islam. Section 298-B criminalises the use of various Islamic terms by Ahmadis
whereas 298-C is so unlimited in its scope that it basically criminalises
anything Ahmadis may say or do in relation to Islam. Not surprisingly,
thousands of Ahmadis have since been charged with a bewildering array of
offences. The two sections are highly discriminatory laws, designed against one
particular community with the singular purpose of forcing its members to desist
from using terms and signs that are considered the sole preserve of Muslims. In
short, the aim of the laws is to prevent Ahmadis from displaying signs of
Muslimness — or, to use the wording employed in the sections, to prevent them
from “posing” as Muslims. These laws have Orwellian forebodings and say to the
Ahmadis: we are watching you.
Given the close association between the anti-Ahmadi
movement and the anti-blasphemy movement, demands were raised again in 1984 for
a law specifically to protect the honour of the Prophet (may peace be upon
him). The Federal Shariat Court had been petitioned on the matter but its
decision was still pending, whereas the Council of Islamic Ideology had already
recommended the enactment of such a law. Zia, however, did not take any
immediate action as he was preoccupied with the political pressure on him to
share power and gain legitimacy by holding elections.
“The addition of
Section 295-C to the penal code was passed and became law after presidential
approval on October 5, 1986. Hamza was the only member who opposed the bill in
the National Assembly.
This, then, was the legal, political and social background
to the introduction of Section 295-C in 1986: a set of new laws that gave
particular Islamic personages and texts protection and ring-fenced Islam from
Ahmadis; a political scenario where many figures from the erstwhile
Majlis-e-Shoora continued to push for Islamisation as members of the National
Assembly along with religious parties, and without any meaningful resistance
given PPP’s absence from the political field; and a socially conservative and patriarchal
public discourse that sought to circumscribe women in social and political life
and threatened to further erode their rights.
With demands for the implementation of sharia and the
government’s willingness to make further concessions to religious groups,
entities such as the Women’s Action Forum (WAF) continued to mobilise against
what they considered a patriarchal, clerical and retrogressive implementation
of Islam.
This was the context in which Asma Jahangir made a speech
at a WAF seminar in Islamabad on May 17, 1986 and sought to challenge the
ulema’s role. She questioned the need for a clerical class with specialist
knowledge to mediate the scriptural message.
To make her point on the direct, unmediated relation
between the revelation and the individual, she used the example of the Prophet
(may peace be upon him) and said that an “ummi” had been chosen for
receiving the divine word. What she meant was that one does not require
specialist knowledge to understand the divine message. The Herald of
July 1986 reports on the controversy:
At a WAF seminar in Islamabad, Asma had stated that since
Islam was revealed to an ummi(unlettered person), it was a clear
indicator ‘that there was no wall of priesthood between a believer and Allah.’
This being so, she asked why should the ulema of the Council of Islamic
Ideology monopolise Islam.
It was the choice of this term – ummi –
that unleashed a chain of events that eventually led to the introduction of
Section 295-C. Asma’s remark, however, did not seem to have occasioned much
protest in the seminar itself except that one or two lawyers in the audience
apparently took umbrage. Neither of the English or Urdu newspapers of
record, Dawn and Jang respectively, made any
mention in their immediately subsequent editions of either the seminar or of
any untoward comments during it.
In traditional Muslim scholarship, ummi had
been understood as “unlettered” or “untaught”, which is often summed up as
“illiterate”. For classical scholars, however, this was not an aspersion or in
any way pejorative. Rather, it signified that the Prophet (may peace be upon
him) was untouched and unsullied by human knowledge and as such was the perfect
person to be the messenger of direct revelation from God.
In short, ‘illiteracy’ for classical Muslim scholars was a
sign and proof of the genuineness and nobility of his Prophethood and the
inimitability of his revelation, the Quran. More recent scholarship suggests
that the term “al-Nabi al-Ummi” can also be understood as a prophet sent
to a people (ummah) without a scripture. Whatever connotation or inflection the
term may have, it is not pejorative in classical Islamic discourse. In
contemporary Pakistan, however, with the country’s emphasis on education as
indicative of development, progress and civility, ‘illiteracy’ has come to
signify low status and backwardness. The social context of interpreting “ummi”
has thus radically changed.
To her detractors, Asma was a rich, elitist, westernised
woman who represented a class that flaunted its cultural status and presumed
superiority through the use of the English language and western education.
Challenging the ulema’s scholarly credentials and their interpretations was
like suggesting that they were backward and ill-educated — as the popular genre
of ‘mullah jokes’ indicates. Her remark was interpreted within this class
context and crystallised generations of subordination and resentment that resulted
from class inequality.
Class dimension is an important and understandable element
of the conflicts and resentments that contribute to religious politics. As
Jamaat-e-Islami’s Liaqat Baloch once explained to me, he and other leaders of
his party from the middle and lower-middle classes had encountered liberal
elites and socialist ideologues on college campuses in the 1960s and 1970s.
These secularists, infatuated with notions of progress and
prone to ridiculing religion and tradition as backward, irrational and
superstitious, were dismissive of religious attachments and sentiments. In
fact, many of them regarded religion as an anachronism that was bound to fade
or disappear with the advent of development, education and modernity. They
exhibited an arrogance of power, a confidence that the future was theirs. In
Baloch’s opinion, these attitudes led them to exhibit disrespect towards
religion which, on occasion, he argued, included disrespecting Islam and the
Prophet of Islam (may peace be upon him).
Jamaatis like him interpreted Asma’s comment in this
context — as yet another instance of elite arrogance. But times had changed.
Ideas of progress, secularisation and development had stalled and the turn to
Islam was on the ascendant. With Islamisation, Jamaat leaders hoped the future
could become theirs, though seemingly it was still in the balance as Benazir
Bhutto had made a triumphant return from exile only months before and the
spectre of her PPP reversing the gains of Islamisation could not be discounted.
It was one of Baloch’s Jamaat colleagues, Nisar Fatima,
who took the initiative against Asma. Like Baloch, she too was a member of the
recently reconvened National Assembly and shared the Jamaat’s antagonism
towards liberal-secularists — an antagonism sharpened by her completely
different gender politics from that of WAF. She first attempted to move a
privilege motion in the National Assembly on June 4, 1986, directing its
attention to the WAF seminar, seeking a ban on WAF and asking for action to be
taken against Asma for making allegedly derogatory remarks. She was backed by
her fellow party members, Baloch and Maulana Gohar Rehman, who alleged that
this “blasphemy” was not an isolated incident and accused WAF of speaking
against sharia.
Speaker Hamid Nasir Chattha, who had replaced Syed Fakhar
Imam a week before, ruled the privilege motion out of order but pointed out
that if a crime had been committed then criminal charges could be filed. He was
correct in indicating that the criminal law rather than the National Assembly
was the way to proceed. If Asma had made an insulting comment then criminal
laws already existed, namely Section 295-A and Section 298, under which she
could be charged. Why go to the National Assembly when the criminal law
provided redress?
Asma, for her part, argued her words had been
misinterpreted and welcomed a full inquiry. A former chief justice of the
Federal Shariat Court, Justice Sheikh Aftab Hussain, who had also given a
presentation at the WAF seminar, issued a statement, saying there was nothing
objectionable in her speech. He went on to olaud the WAF members for their
scholarly engagement with Islam. Neither paper of record, Dawn nor Jang,
report any direct eye witness accounts that corroborated Nisar Fatima’s
accusations and allegations. Legally, they amounted to hearsay in that she
herself had not been present at the seminar. Khalid Ishaq, a renowned Islamist
jurist, one who supported the imposition of sharia and was at the same seminar
as one of the presenters, pointedly commented in a 1986 interview with
the Herald:
There was no point in insisting that sacrilegious words
were uttered, when the complainant never heard the words personally and when
serious, knowledgeable and responsible persons found nothing offensive uttered.
Nisar Fatima and the Jamaat-e-Islami, however, persisted.
Daily Jang’s Lahore edition of June 8, 1986 reported a press
conference that Nisar Fatima held at Model Town’s Ladies Club in Lahore where
she was quoted saying: “Asma [Jahangir] said in her statement why has Justice
Aftab Hussain not objected during her speech … [Another] lawyer, however, took
note.”
Jang further reported Nisar Fatima saying that the use of
the word “unparh” (illiterate) for the Holy Prophet (may peace be upon
him) was blasphemy, that she was resolved to go to court if the government
failed to take notice of the incident and that she was consulting lawyers for
this purpose. In a linked report, Jang noted that representatives of various
women’s organisations at the Ladies Club expressed resentment against the
growing activities of WAF and ladeen (irreligious) elements
and demanded that due punishment be given to Asma and other women who had
committed blasphemy.
As the Jang report makes clear, Asma’s
use of “ummi” had been interpreted by groups associated with
Jamaat-e-Islami as “unparh” and she, therefore, was accused of
committing an insult. The references to courts and trials notwithstanding,
Nisar Fatima apparently did not pursue the option of filing criminal charges.
The most obvious conclusion is that she did not have a case under the laws that
existed at the time.
However, on June 16, 1986, Jamaat-e-Islami accused the
minister of state for justice and parliamentary affairs, Mir Nawaz Khan Marwat,
of having earlier misled the National Assembly by stating that there were
“specific” legal provisions protecting the Prophet (may peace be upon him). Two
privilege motions were admitted by the National Assembly to allow debate the
following day, June 17, in which Marwat denied misleading the house and
articulated the government’s position that sections 295-A and 298 covered
blasphemy against the Prophet (may peace be upon him). But Shah Baleeghuddin, a
religious scholar elected to the National Assembly from Karachi and a member of
the government benches, was quick to point out these provisions were not specific.
He also argued that if Section 298-A existed to protect
other important figures in Islam, how could there not be a law to protect the
very foundation of Islam? The logic of extension, once in place, was
unassailable. Since the laws had already shifted from general principles to
particulars, there was no real response to his question. No one pointed out
that all these particular laws were legally unnecessary and contrary to the
principles of the penal code. Shah Baleeghuddin went on to express astonishment
and outrage that the existing punishment under Section 295-A was less than the
three-year imprisonment for desecrating the Pakistani flag (punishment under
Section 295-A was later increased to 10 years in 1991).
Other ulema such as Maulana Gohar Rehman supported his
position and argued that the appropriate punishment for blasphemy against the
Prophet (may peace be upon him) in Islamic jurisprudence was the death penalty.
Without a law to protect the Prophet (may peace be upon him), he insisted, it
was inevitable that there would only be more incidents of blasphemy. He then
signalled the enemy – alluding to WAF and other “westernised” women as the ‘one
per cent’ who were outside the norms of the nation and Islam – as opposing
these measures. Rehman’s intervention put the women question at the forefront
of the debate. Some women members of the National Assembly, such as Begum Sher
Ali Khan Pataudi, walked out in protest against these remarks but other women
members were provoked to defend their own Muslimness.
They sought to distance themselves from the heavily
criticised, supposedly “anti-national”, “westernised women” and attempted to
firmly locate themselves within the social norms of the nation. Begum Kalsoom
Saifullah Khan, for example, was so eager to disassociate herself from the ‘one
per cent’ that she sought the guidance of superior male wisdom, asking the
Maulana not to scold but to gently guide “us women” to the right way.
The tone of the debate, it is fair to say, was already
quite emotional when Nisar Fatima, already instrumental in the whole episode,
rose to speak. She demanded the law be passed that very day. Otherwise, she
warned, the lawmakers risked divine displeasure and the National Assembly might
not survive. Other members – such as Malik Muhammad Aslam Katcheela, a treasury
representative from Sargodha, and Maulana Moeenud Din Lakhvi, an Ahle Hadith
stalwart from Kasur – supported her demands. Speaker Chattha ended up making a
crucial concession by agreeing that the existing sections were inadequate and
that a bill should be introduced.
He agreed to the contention that if the Prophet’s family,
companions and the caliphs could be protected then the omission of the Prophet
(may peace be upon him) from protection was especially glaring and galling.
Following the speaker’s lead, Marwat promised that the government would
introduce a bill soon, but members of religious parties such as Liaqat Baloch
continued to press the urgency of the matter. Chaudhry Amir Hussain, a treasury
member elected from Sialkot who would become the National Assembly speaker in
2002-07, suggested that anyone who opposed such a bill would have their
Muslimness questioned.
A few others – such as Khan Muhammad Arif Khan, elected
from Jhang, and Hamza, then elected from Toba Tek Singh and now a sitting PMLN
senator – suggested the need for patience as drafting laws required time,
consideration and review. They were quickly drowned out by the upwelling of
emotion. Begum Qamarun Nisa Qamar, a female member, echoed Nisar Fatima in
demanding an immediate passing of the law that very same day while Begum Bilqis
Nasar Minalla implicitly endorsed extrajudicial violence, saying that had she
been present at the WAF seminar she would have taken the matter into her own
hands.
As Chattha struggled to stop the emotionally charged
rhetoric from escalating and terminate the debate, Nisar Fatima intervened one
last time to disparage Asma by claiming that she was not even a Muslim as she
had allegedly married into an Ahmadi family. Accusing someone of being an
Ahmadi is a default means of questioning their Muslim identity — as the
recently removed law minister Zahid Hamid and many other prominent people in
the past few decades have discovered. Finally, Chattha was able to prevail,
preventing further comments and promising the tabling of the bill.
Within a week, Liaquat Baloch gave notice that he was
going to introduce a private member’s bill. His proposed draft was as follows:
“Whoever by words, either spoken or written, or by visible
representation, or by any imputation, innuendo or insinuation, directly or
indirectly, defiles the sacred name of the Holy Prophet Muhammed (may peace be
upon him) in any manner shall be punished with death or
imprisonment for life.” (Emphasis added)
This was a copy of the language used in Section 298-A, as
the italicised part shows. The government sought to pre-empt his bill by
tabling its own version which, too, copied the wording of Section 298-A but
omitted the mention of the death penalty. It read:
“Whoever by words, either spoken or written, or by visible
representation, or by any imputation, innuendo, or insinuation, directly or
indirectly, defiles the sacred name of the Holy Prophet Muhammed (may peace be
upon him) shall be punished with imprisonment for life, and shall also
be liable to fine.” (Differences between the two versions are highlighted
in bold.)
The government’s internal correspondence on this matter
does not indicate any considered process of analysis, assessment or comment to
weigh the implications of this wording. On the contrary, an internal memo dated
June 26, 1986, sent by Marwat indicated his haste to introduce the bill and
asked that the requirement for a mandatory cabinet discussion on it to be
waived:
“In view of the urgency of this matter, it is requested
that under the sub-rule 20 of rule 16 of the Rules of Business 1973, the [prime
minister] may be pleased to waive the requirements of this case being submitted
to the Cabinet and approve of the Bill at Annex I for the introduction in the
National Assembly.”
After getting the approval to introduce the bill as the
Criminal Law (Amendment) Act (1986), the minister consulted the Nizam-e-Mustafa
group in the National Assembly a few days before the scheduled debate on July
9, 1986. The ulema members of the assembly impressed upon Marwat that the
omission of the death penalty was unacceptable to them and that there was a
consensus (ijma) among various schools of jurisprudence (fiqh) on
the death sentence being the only punishment for blasphemy towards the Prophet
(may peace be upon him).
Consequently, in his opening remarks while introducing
Section 295-C, Marwat proposed to add to the tabled bill the option of the
death sentence along with life imprisonment. The ulema’s principal concern in
this debate was to ensure that the death penalty was declared the primary
punishment if unquestionable guilt was determined. They would accept life
imprisonment as a secondary punishment insofar as some doubt continued to exist
in a case. The minister, however, sought to keep these as two alternate but
equally available options. He argued that if there was some doubt in a case
then the legal system would acquit the accused as is the judicial norm, which
requires guilt to be proven beyond reasonable doubt. There was clearly some
confusion on whether life imprisonment and the death penalty were equal and
alternative punishments.
Hamza, while conceding that a law may be required, again
felt that the legislation was being passed with undue haste. He argued that
such an important law required greater deliberation, public consultation and
careful review, as the tabled draft seemed to be vague and easy to misuse. In a
country already blighted by sectarian conflict where accusations of kufr and
blasphemy were too easily made, such a law, he suggested, would be misused by
irresponsible people. The legislation required considered reflection, he said,
otherwise it might pass a law that would “make a mockery of ourselves in the
world”.
Hamza’s argument for due process, however, was severely
criticised. Shah Turabul Haq Qadri, a Hyderabad-based religious scholar who
represented Jamiat Ulema-e-Pakistan, a Barelvi party, echoed a common refrain
when he responded that public consultation was unnecessary as “there are no two
opinions in this matter” — consensus among classical jurists that the penalty
for blasphemy was death alone having already settled the debate. Opposition to
the death penalty, he said, would mean there would be a “mob” outside the
assembly. Publicity of and consultation on the bill might cause delay, result
in changes in its draft or may even prevent its passage, he argued. In any
case, as Nisar Fatima reiterated, public debate was completely unnecessary. She
cited the Council of Islamic Ideology’s report of 1984 to support her argument:
“… any person who intentionally says such
words or acts in a manner which directly or indirectly [insults] the status
[glory] of the Holy Prophet, he will be liable to death sentence.” (Emphasis
added)
Perhaps nothing illustrates the salience and relevance of
Hamza’s argument more than this comment. For had Nisar Fatima even momentarily
reflected on the difference between her citation and the bill before her, she
might have realised that the proposed law was missing the crucial element of
“intentionality” — a key criterion in determining culpability in modern
criminal law. The draft law theoretically made even an accidental remark, as
long as it was interpreted as defiling by “imputation, innuendo or
insinuation”, a criminal act potentially punishable by death.
Winding up the session, Marwat put forward the
government’s case for retaining both sentencing options, death or life
imprisonment, and further stipulated that only Muslim judges should preside
over such cases. He rejected one member’s suggestion that punishment for the
complainant be incorporated if the allegation was proved false, commenting:
“Sir, we will have to have some trust in judiciary, where
such a case will go. He will also be a Muslim, he will also interpret law, he
will try the case and fulfil requirements for justice.”
The minister then proceeded to comment that, as a Muslim,
he was against anyone who opposed such legislation. In such an instance, he too
would be one with the “mob”. If the law was in any way inadequate, he
suggested, it could always be amended — deferring the problem and its
resolution to the future.
The addition of Section 295-C to the penal code was passed
and became law after presidential approval on October 5, 1986. Hamza was the
only member who opposed the bill in the National Assembly. Maulana Gohar Rehman
concluded the debate by congratulating the members and commenting that the law
would put to rest any attempt to implement a secular system in Pakistan and
that it would enable the achievement of an Islamic system. Ironies abound —
again. A law designed to protect the Prophet (may peace be upon him) has had
the consequence of empowering allegations and accusations, many of them false
or resulting from misunderstandings, sectarian rivalries and at times, it has
to be said, frivolous personal reasons, which, if anything, have contributed to
besmirching Islam.
The government files of 1986 record a letter dated July 28
received from one John Wilkinson, MP for Ruislip-Northwood (United Kingdom). He
said:
“My only anxiety is that this legislation could be invoked
to make life difficult for minorities within Pakistan who have always been an
accepted as a part of the overall community, although Pakistan is an Islamic
state.”
The files also record the government’s response, sent by
an official of the ministry of foreign affairs:
“The undersigned is further directed to state that the law
will apply equally to Muslims and non-Muslims and everybody in Pakistan would
be required to abide by it. There is already in force in Pakistan a law
(section 295A PPC) which was enacted as far back as 1927 and provides for the
punishment of insulting and attempting to insult the religion or religious
beliefs of any class of citizens. There should therefore be no apprehension
that the proposed law when enacted might be used in the manner referred to by
Mr. John Wilkinson, MP.”
The foreign office official, like Marwat, demonstrated the
confidence, unwarranted as it turned out, that nothing much would change. They
both did not consider the fact that the relatively few prosecutions between
1947 and 1986, under the previously existing laws, resulted from judicial
circumspection as well as the safeguards inherent in Section 295-A. But the new
laws changed these and everything changed with them. The poor and hurried
drafting of the new laws has allowed differences of opinion and statements
taken out of context to be interpreted as insult and blasphemy — as was the
case with Nasir Fatima’s accusations against Asma Jahangir.
The ostensible and immediate cause of Section 295-C is
illustrative of the difference between a judiciously designed law and one not
fit for the purpose. Under sections 295-A and 298, a case did not exist against
Asma for the simple reason that there was no evidence to indicate that she had
committed an offence. But perceptions, such as Nisar Fatima’s, came to be privileged
under the newly approved Section 295-C. Is it unsurprising, then, that the new
law encouraged the practice of accusations that has proliferated, multiplied
and intensified over the years? In the new reality created by the law’s use, it
is also unsurprising that the trial court judges, contrary to Marwat’s hopes,
have been unable to follow the dictates of justice, especially because they
have often faced intimidation in blasphemy cases.
In one respect, however, the ministry of foreign affairs
official was right. It is not just non-Muslim Pakistanis who have been at the
receiving end of Section 295-C and other anti-blasphemy laws. Numerically more
Muslims have been charged of committing blasphemy than non-Muslims, though the
latter are still disproportionately tried and punished for religious crimes
given their tiny presence in the country’s population.
These Zia-era additions to the penal code – hastily
conceived as political and symbolic gestures – were barely considered with the
kind of responsibility they deserved. The consequences they have engendered
leave us with little choice but to ask: are we to continue with the law
sponsored by Nisar Fatima and drafted by Liaqat Baloch – one that everyone,
Liaqat Baloch and the ulema included, have conceded is “misused” – or should we
revert to the one, Section 295-A, that, having borne the brunt of Jinnah’s
legal acumen and scrutiny, has the seal of his approval?
A law that recognises the importance of respect for
revered and foundational religious figures but one in which the test is the
intent behind sacrilegious comment and not the interpreted and perceived hurt
of the listener? In short, there is a choice between the Jamaat-e-Islami
version or Muhammad Ali Jinnah’s. It is not that the invocation of Jinnah is
the automatic answer to all that ails Pakistan, but those who support Section
295-C often use his legal representation of Ilm-ud-din as evidence of his
approval for the murder of real and alleged blasphemers. The evidence does not
bear this out. Given that Jinnah was directly involved in the drafting of a
law, one that was widely understood at the time as necessary for the protection
of the honour of the Prophet (may peace be upon him), it is clear that he saw
295-A as maintaining a balance between the rightful protection against
offensive speech and a responsibility towards reasonable expression of
criticism.
A Senate committee is once again reviewing possible
procedural changes to prevent “misuse” of blasphemy laws. Some of the
suggestions being discussed include the possibility of harsher sentences for
those making false accusations. But given the emotive nature of the issue,
people’s attachment to the Prophet (may peace be upon him) and the law’s
capacity to generate and mobilise protests in its defence, few are willing to
consider the case for making any substantive changes to it. Yet, if, as the
Supreme Court observed in the case of Salman Taseer’s murderer, Mumtaz Qadri,
the “majority of blasphemy cases are based on false accusations stemming from property
issues or other personal or family vendettas rather than genuine instances of
blasphemy” then more than just the procedural aspects of the law need to be
reviewed.
If the intention of the legislators who approved Section
295-C back in 1986 was to ensure that, as Mir Nawaz Khan Marwat said, “… in
future no one will dare commit blasphemy of the Holy Prophet”, then the
evidence of three decades is unequivocal. It has failed. If anything, it has
resulted in the multiplication of real and perceived blasphemous content. Every
accusation and allegation, whether a genuine one or a false one resulting from
misperceptions, misunderstandings, socioreligious differences or plain malice,
gets repeated and reproduced in newspapers, judicial documents, digital media and
in individual conversations.
There is a direct causal link between the law and the
incidence of blasphemy. This may seem counter-intuitive but the evidence is
compelling. The available data indicates there were less than ten cases of
alleged blasphemy between 1947 and 1986, before the law was passed, whereas
there have been over 1,500 allegations in the subsequent 30 years. The common
argument by the law’s proponents that without this law people would be free to
blaspheme against the Prophet (may peace be upon him) is mistaken as Section
295-A has adequate provisions for their trial and punishment.
In the passage of both the recently enacted Election
Reforms Amendment Bill and Section 295-C back in 1986, we can see a rush to
legislate without proper democratic debate, reflection and accountability.
While adhering to minimal democratic procedures, these enactments have been
anti-democratic actions that did not allow for a substantive ethic and ethos of
democracy, one that shows respect for difference and due consideration and
reflection to ensure our obligation to justice. The parliamentarians of 30
years ago invoked the spectre of the “mob” to justify their actions, but it is
the law they passed – one that empowered and encouraged cases resulting from perceived
harm to sentiments – that has led directly to Khadim Hussain Rizvi and the
accusations against and attacks on parliamentarians themselves.
Research contribution by Peter Jacob of Centre for Social
Justice, Amal Zaman and Sohail A Warraich
This was originally published in the Herald's February
2018 issue. To read more subscribe to the Herald in print.
No comments:
Post a Comment