By Yasser Latif Hamdani
October 27, 2014
With the rejection of Aasia Bibi’s appeal by the Lahore High Court, the debate on the blasphemy law, which has been closed since January 4, 2011, is likely to be reopened. This law, i.e. 295-C of the Pakistan Penal Code, was introduced in 1986 through the National Assembly and seems to have had the backing of the Zia regime. I do not wish to state my view of the law whether on constitutional or religious grounds but as a continuing student of law, both the common law tradition and Islamic jurisprudence, there are several questions that I would like answered by the captains of orthodox opinion in the country so that we can ensure that this law is effectively implemented and no injustice is done to anyone. The first question that needs to be addressed by jurists as well as religious leaders is whether blasphemy is a Hadd offence or a Tazir offence. A Hadd offence is an offence for which the Quran and Sunnah prescribe punishment. A Tazir offence is a misdemeanour for which the government of the time (or in our case the legislature of the country) will fix the punishment. This is an important question because if blasphemy is a Hadd offence, the standard of proof or evidence is very high and any and all witnesses should be subject to the test of Tazkiya al Shahood (the competence and integrity of the witness). This is an extraordinarily high test of character and most, if not all, witnesses are likely to fall foul of it. If, on the other hand, it is to be called a Tazir offence, surely then the grounds for calling blasphemy law a religious obligation become shaky. It must be remembered that capital punishment in Islam is always limited to Hadd offences and Tazir punishments are logically less than Hadd punishments. This question requires a clear answer without delay as I suspect that this issue will come before the Supreme Court (SC) in coming months.
The next question is whether this law is to apply universally or to Muslims alone. If it is a Hadd law, should it not apply to only Muslims? Surely the Hadd law cannot apply to non-Muslims. I am willing to be corrected on this count but logic dictates that Islamic law applies to those who have willingly entered into the creed of Islam. The holy Quran says, “There is no compulsion in religion,” a verse that clearly excludes non-Muslims from the operation of Islamic law. Of course, if blasphemy is a Tazir law then it may apply to Muslims and non-Muslims alike but, in that case, can it still attract capital punishment?
The next question pertains to the pardoning of a blasphemy accused or convict. Here is where it gets complicated. A Muslim who commits blasphemy also technically commits apostasy. The religious cure for apostasy is to renounce apostasy and re-enter the fold of Islam. Should then the offence of blasphemy not be subject to similar renunciation and reversion? Meanwhile, non-Muslims in any event being out of the faith of Islam are allowed to practice their faiths. Therefore, technically, could non-Muslims even commit blasphemy?
Finally, the question is what amounts to blasphemy, and whether there are distinctions between different kinds of blasphemy. How is it possible that a serious offence like blasphemy has no parameters or levels?
These questions merit a serious response. The SC of Pakistan needs to resolve these issues in a full court reference. Opinion on these questions should be elicited from all leading lights of religious opinion, orthodox or liberal, including members of the Council of Islamic Ideology (CII), leading lawyers, amicus curiae (those who are not party to a case) from al Azhar, Medina, Qom, etc, international scholars and anthropologists like Dr Akbar S Ahmad, Dr Noman-ul-Haque, Tariq Ramadan, etc, representatives of women and minorities, civil society and any other interested parties. Once these questions have been answered, the SC should fearlessly decide the issue and smooth out the jagged edges of the law.
This would be a tremendous exercise of judicial Ijtihad (independent reasoning) by the apex court of the leading Muslim democracy in the world. In doing so, Pakistan in no small manner will be fulfilling the dream of Allama Dr Muhammad Iqbal of the reconstruction of religious thought in Islam, his primary motivation behind suggesting a homeland for Muslims in South Asia. What this requires is the fortitude and leadership that our rulers, civil or military, have often lacked. For long we have appeased certain sections of our society or swept these contentious issues under the rug. It is time to address these issues in a civil, legal and constitutional way so that we can finally bring an end to the needless violence and controversy created over the issue.
Let us resolve as a nation to conclude the matter in a manner befitting a civilised people and the faith of Islam. May God give our leaders the courage and foresight to do so.
Yasser Latif Hamdani is a lawyer based in Lahore and the author of the book Mr Jinnah: Myth and Reality.