By Naeem Shakir
7th October 2016
A CHRISTIAN mother of five, Aasia Bibi, who was sentenced to death under Pakistan’s infamous blasphemy law will have her final hearing on Thursday (13 October).
Bibi’s case has become a focus of debate all over the Muslim and non-Muslims worlds.
Muslims are watching to see how Pakistan treats blasphemy cases and its interpretation of the rules of evidence brought by ‘good Muslims’, and whether to expect reform or repeal.
The West is dumbfounded over the freedom issues surrounding the case.
Aasia Bibi, a field labourer in a remote part of Punjab province, took water from a well used by Muslims and offered some to the woman standing next to her.
For this, she was reviled, her faith was attacked, male labourers then beat her all the way home. The family has been in hiding ever since.
The case went global after the Governor of the Punjab, Salman Taseer was slain on 4 January 2011 by his religiously motivated bodyguard Mumtaz Qadri.
Taseer had criticized the law and publically sympathized with Bibi while visiting her in jail.
The Governor’s assassin was sentenced to death, and his appeal before the Supreme Court was dismissed with some bold observations that have had a salutary effect on Pakistan.
Pakistan’s blasphemy law has been in the spotlight ever since its promulgation in 1982 and 1986.
Dozens were killed and neighbourhoods torched on the basis of nothing more than hearsay.
The law has been ruthlessly abused for settling personal scores, professional rivalry, land-grabbing and religious persecution.
The court hearings of this high profile case have always been a sensitive security issue for the media, lawyers, and judges, with the religious lobby ready to back up its threats of street power with violence if the law was changed.
Bibi, beaten, incarcerated and separated from her children, has been the victim of mob rule, in jail for seven years, since June 2009.
The atmosphere in the High Court when appeal judges upheld the death sentence jeopardized the safe administration of justice with dozens of bearded clerics present, and religious extremists reciting verses of the Qu’ran a few feet away from the two Muslim judges.
The same points of law at stake at the appeal hearing are being addressed again before the Supreme Court of Pakistan but in a different atmosphere.
The Supreme Court is the highest judicial forum in the land, and its discipline and decorum are strictly maintained.
The forthcoming hearing before the Supreme Court will be under its decorum rules.
The apex court, though under acute pressure from the religious lobby, upheld the death sentence against Mumtaz Qadri who killed Governor Taseer under a religious edict or fatwa.
This judgment recorded that ‘citizens have a right to contend, debate or maintain that a law has not been correctly framed by the State in terms of the mischief sought to be suppressed or that the law promulgated by the State ought to contain adequate safeguards against its misapplication or misuse by motivated persons.'
It further stated that ‘seeking improvement of a manmade law in respect of a religious matter for better or proper enforcement of such law does not ipso facto amount to criticizing the religious aspect of such law.’
It further held that, ‘If the asserted religious motivation of the appellant for the murder committed by him by taking the law in his own hands is to be accepted as a valid mitigating circumstance in this case, then a door shall become open for religious vigilantism which may deal a mortal blow to the rule of law in this country where divergent religious interpretations abound and tolerance stands depleted to an alarming level’.
The cases of vigilante justice that wreaked havoc on society in general and religious minorities in particular have significantly decreased after these rulings.
Yet, alarmingly, blasphemy cases against religious minorities have increased.
The High Court judgment removed much of the debris surrounding the case, with testimonies including that of the complainant – the Imam Masjid – being brushed aside as hearsay.
Bibi’s alleged confession before the village assembly, ‘lacked legal requirements’ according to the judges, and was based on contradictory statements.
The High Court instead relied on the testimony of two sisters who had quarrelled with Bibi for using the cup at the well to drink with, despite being a Christian and therefore ‘unclean’.
Bibi believed, she said, that both felt ‘disgraced’ and had set out to teach her a lesson by framing a case against her under blasphemy law.
She absolutely denied the allegation of having uttered blasphemous words against the Prophet.
Apart from a fatal delay of five days in reporting the alleged occurrence to the police, an important point that was raised before the High Court remains to be resolved by the Supreme Court.
The defence side urged that since the offence of blasphemy against the Prophet carried the ‘Hadd’ – Islamic corporal penalty requirement - (and the only offence to carry a mandatory death sentence) the principles of Islamic jurisprudence required of witnesses a particularly high standard of Islamic probity.
The court was under an obligation to conduct an inquiry into the Islamic status of the witnesses.
It was held to be an incurable omission by the trial court not to hold a mandatory inquiry to determine the Islamic character of the witnesses, so vitiating the trial and thus the conviction.
The High Court judges, however, instead of deciding this point of Islamic justice instead referred the matter to the Federal Government to re-frame legal procedure in blasphemy cases carrying ‘Hadd’ penalties.
It is unclear whether any official memorandum was issued to the Federal Government and if so what action was taken.
Naeem Shakir is a Supreme Court Attorney and was defence counsel for Aasia Bibi in the High Court