by Liaquat Ali Khan and Jasmine Abou-Kassem
Aasia Bibi, a 45-year old Pakistani Christian woman, and mother of five, has been sentenced to death, under Section 295-C of the Pakistan Penal Code, for allegedly “defiling” the Prophet Muhammad. Section 295 with various provisions is the blasphemy statute that enjoys popular support in Muslim Pakistan. Though Bibi is the first woman to be convicted for blasphemy, Christians, Hindus, and hundreds of Muslims have been charged under the statute. Section 295 is a convenient legal tool to settle petty personal scores, intimidate rival families, and practice ill-informed versions of Islam, particularly in small towns and villages, like the one where Bibi lived.
Local judges come under pressure to convict persons charged under the statute with the strident approval of local elders. Over the years, attempts to repeal the statute have provoked stiff opposition from Muslim jurists and invited threats of violence from militant groups. Even Pervez Musharraf, a secular military dictator, could not, for fear of imminent and severe reprisals, repeal the statute. For the same reasons, major political parties are disinclined to correct the overbite of the blasphemy statute.
Recognizing political difficulties of repealing the blasphemy statute or declaring it unconstitutional through judicial review, this legal commentary explores a different option. We ask that Pakistan’s high courts build safety measures around the inherent faults of the blasphemy statute, particularly Section 295-C, which carries the death penalty. More specifically, we argue that Section 295-C violates the due process clause of the Pakistan Constitution and is repugnant to the Basic Code (the Qur’an and the Prophet’s Sunnah), which, according to Article 227 of the Constitution, is the supreme law of the land. In each case, including that of Bibi, the high courts must interpret and apply the blasphemy statute in ways consistent with the Constitution and the Basic Code.
Due Process Violations
In 2010, Article 10 of the Pakistan Constitution was amended to introduce the due process clause into the criminal justice system. The amendment reads: “For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.” This due process clause applies to the blasphemy statute as well, securing a fair trial and the protection of civil rights in criminal charges filed under Section 295-C. The protections now available under the due process clause mandate more scrupulous applications of the blasphemy statute.
The over-broad language of Section 295-C punishes with death or life imprisonment any person who “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 Muhammad.” While the punitive part of the statute is lucid, the definition of blasphemy is vague and wide open. And the punishment of the death penalty for engaging in prohibited speech is inherently disproportionate, if not cruel and unusual under contemporary standards of human rights.
A universal understanding of due process requires that criminal laws be drafted in a language clear enough for the average person to understand and to put the public on notice of the prohibited acts. The due process clause of Article 10 of the Constitution requires a clear notice of criminality. This precision is even more crucial when a crime, such as the one listed in Section 295-C, encroaches upon the right to free speech and the right to profess and practice religion, the two civil rights that the Pakistan Constitution specifically protects for persons of all faith. The sweeping language of 295-C muddles protected speech with criminal speech.
Take Bibi’s conviction under 295-C. Bibi was convicted for allegedly professing that Muhammad is not a prophet as are Abraham, Moses, and Jesus. As a Christian, Bibi believes that Abraham, Moses, and Jesus are prophets. And as a Christian, she does not believe that Muhammad is God’s Prophet. So what Bibi professed was consistent with her core beliefs and essential part of her faith. A cautious Bibi living in an intolerant town would have refrained from saying anything about the Prophet of Islam. In expressing her Christian beliefs, however, she has committed no crime. No high court can ignore due process and read the statute to confirm the death penalty of a Christian woman professing her faith. The courts should note that the blasphemy statute does not punish Muslims for professing that Jesus is not the Son of God, a belief of Islam that could be highly offensive to Christians.
Furthermore, high courts cannot apply the blasphemy statute shorn of the constitutional protections of due process and civil rights. By failing to give a legally adequate notice of prohibited speech and action and by carrying the death penalty, 295-C becomes an unwary trap for persons such as Bibi and an unbridled source of power to those charged with enforcing its open-ended mandate. Simply put, 295-C violates fundamental due process rights of life, liberty, and freedom of religion protected under the Pakistan Constitution. The courts must apply the blasphemy statute consistent with safeguarding the defendant’s fundamental rights.
Islamic Law Violations
Most importantly, the blasphemy statute is incompatible with Islamic law. Article 227 of the Pakistan Constitution states: “All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah (Basic Code). . . and no law shall be enacted which is repugnant to such Injunctions.” We submit that Section 295-C should be interpreted and applied in a manner not repugnant to the Injunctions of Islam found in the Basic Code. Religious minorities living in a Muslim state, such as Pakistan, enjoy certain immutable rights under the Basic Code, which no positive law can take away.
First, religious minorities are free to practice religion even if their beliefs contradict the basics of Islam. The Qur’an reaffirms the principle that “there is no compulsion in matters of religion (2:256).” An Islamic state’s statute cannot dictate what non-Muslims should or should not believe, nor can it rely on capital punishment to silence other faiths.
Second, Pakistan as a Muslim state is obligated to protect the life, liberty, property, and dignity of religious minorities. When an ill-informed group foments persecution of non-Muslims, the burden is placed on the state to provide protection and security. The Prophet prohibited harming non-Muslims in strong and unambiguous words. “He who harms non-Muslims harms me,” said the Prophet.
In his own life, the Prophet was verbally abused and physically disrespected. Only in rare cases where the named individuals had substantially harmed Muslims did the Prophet prescribe the death penalty. In most cases, the Prophet was forgiving and merciful. According to the Qur’an, “God accepts the repentance of those who commit wrongs in ignorance and repent soon afterwards; to them will God turn in mercy: For God is full of knowledge and wisdom (4:17).” Of course, we are not suggesting that Pakistan as a Muslim state should freely allow the defiling of the Prophet of Islam or, for that matter, any other prophet. Consistent with the Basic Code, we submit that Section 295-C must be reserved only for malicious attacks on the Prophet and even in such cases, the courts should know that the Basic Code, as a matter of principle, prefers repentance and forgiveness over punishment.
Ali Khan is professor of law at Washburn University in Topeka, Kansas, and the author of Contemporary Ijtihad: Limits and Controversies (Edinburgh University Press, 2011).
Jasmine Abou-Kassem is an attorney with the law firm of Polsinelli Shughart, P.C. in Kansas City, Missouri.
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