The blasphemy law, as enacted in Pakistan in 1986, militates first and foremost against the Islamic principles of justice and here is why: if it is conceived as an Islamic law, is it subject to hadd?
Source/Credit: Daily Times | Pakistan
By Yasser Latif Hamdani | January 4, 2016
Five years ago today, Salmaan Taseer, the owner and proprietor of this newspaper, the sitting governor of Punjab and perhaps the most courageous man in Pakistan, was martyred for criticising the blasphemy law. It has taken our legal system five years to finally decide the fate of his assassin. In doing so, the Supreme Court (SC) very succinctly laid down that criticising the blasphemy law, which is a man-made law and not the word of God, is not equivalent to blasphemy. It is also laid down that even if blasphemy is committed, no one has the right to take the law into his/her own hands. This is a welcome development because it promises to undo a historic injustice that has been committed in the name of religion.
The second casualty of the events of January 4, 2011 was the healthy debate that had started on the issue. The assassination of Salmaan Taseer silenced that debate. However, that debate needs to happen in this country for sanity to prevail. The blasphemy law, and Section 295-C of the Pakistan Penal Code (PPC) in particular, must be examined to determine whether it is consistent with the principles of natural justice and the requirements of the rule of law. Another thing that must be determined is whether the said law fulfills the requirements laid down by Islam. This determination is important because the argument martialed in its favour is almost always that it is not just a man-made law but the divine will of God.
In my opinion, the blasphemy law, as enacted in Pakistan in 1986, militates first and foremost against the Islamic principles of justice and here is why: if it is conceived as an Islamic law, is it subject to hadd? If it is, then the requirement for tazkia-tul-shahood (the standard of evidence under Islamic jurisprudence) is extremely stringent. Admittedly, that standard of evidence is not followed under Section 295-C. If it is not a hadd offence, it follows that it is subject to tazir. It is important to appreciate the clear difference between the two under Islamic jurisprudence. A hadd offence is subject to strict Islamic punishments and, as mentioned earlier, a higher standard of evidence. The punishment for a tazir offence is left to the judge or the state.
If we say that Section 295-C is a hadd offence, then in addition to the question of a higher form of evidence i.e. testimony of unimpeachable persons of integrity who may have witnessed an offence being committed and not relied on hearsay, we would also have to provide for an equal punishment for those who trivially accuse others of blasphemy. That means anyone accusing another person of blasphemy, who then fails to produce the requisite witnesses for the offence, is liable to be punished under the same law. Obviously, under Islamic law, blasphemy has never been designated a hadd offence but always a tazir. The rulings of the great Islamic jurist Imam Abu Hanifa are absolutely clear on this point.
Now, if Section 295-C is a tazir offence, the most likely case, it changes the scenario altogether. To begin with, it is the discretion of the state to determine the punishment. The question of whether a person convicted of blasphemy is to undergo imprisonment for some time or whether he has to be executed is to be determined solely by the state. It is here that the on ground conditions become vitally important to such a determination. Pakistan is signatory to the International Convention on Civil and Political Rights, which it has ratified. It is bound by its own fundamental rights chapter, which provide for freedom of religion and freedom of expression. If the state, therefore, bound by its international and constitutional obligations, decides to forego the death penalty envisaged under the said provision, it would not violate any tenet of Islam because it is perfectly empowered to do so under Islamic jurisprudence. There is ample precedence for this in Islamic history. Imam Abu Hanifa, for example, exempts non-Muslims from offence of blasphemy altogether. Under Hanafi Islamic jurisprudence only Muslims can be tried for blasphemy and, if they repent, they can be acquitted. Capital punishment, reserved exclusively for Muslim offenders, comes into play only in those rarest of circumstances where a Muslim accused of blasphemy refuses to repent. A non-Muslim on the other hand can only be tried for creating mischief if deemed necessary and the prescribed punishment is imprisonment for a duration. This is the position under the dominant Sunni school of thought in Islamic jurisprudence.
It must also be remembered that no one in Pakistan has been punished under Section 295-C to date. Many, however, have lost their lives simply because they were accused under this law. This points to the impunity that has become rampant in society in the name of the blasphemy law. This is enough reason for us as Pakistanis to coolly look at the facts and re-examine Section 295-C and to improve the law so that it fulfills both the requirements of Islamic jurisprudence and Pakistan’s international and constitutional obligations. This is a problem that needs to be resolved because it has brought disrepute to Pakistan and to the great faith of Islam as well.
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Yasser Latif Hamdani is a lawyer based in Lahore and the author of the book Mr Jinnah: Myth and Reality. He can be contacted via twitter @therealylh and through his email address yasser.hamdani@gmail.com
Read original post here: Pakistan: The blasphemy law, Islam and the state | Yasser Latif Hamdani
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