The Pakistan Supreme Court will shortly rule on whether 47 year old Asia Bibi must hang for blasphemy. If she loses her appeal, she is likely to become the first person to be executed under Pakistan’s extraordinarily harsh blasphemy laws.
To read the judgments of the Pakistan courts is, for an English lawyer, to enter a world which seems strangely familiar and yet utterly alien.
The language of the judges bears a close relationship to the language of the English courts: there are “Honourable Judges” (though usually abbreviated to “Hon’ble”) the senior judges are called “Mr (or very rarely “Mrs” or “Miss”) Justice,” all counsel are “learned” and many of the laws enforced still date from the days of the British Empire. The Penal Code, for example, still contains reference to [the admittedly repealed] Section 58, with its Dickensian “Offenders sentenced to transportation, how dealt with until transported,” and Section 56 which deals with “Sentence of Europeans and Americans to penal servitude” (in the days of the Raj, European prisoners were accommodated in a special “European only” prison, or repatriated to serve their sentences in a cooler climate). Still very much in force, however, is a death penalty, carried out just as the British liked it, with an old fashioned noose, gallows and long drop.
Another legacy of Empire is S.295 of the Indian Penal Code, which imposes a punishment of up to two years’ imprisonment for damaging or defiling places of worship belonging to any religion.
In 1927 S.295-A was added to make the intentional “outraging of religious feelings” criminal, no doubt with a view to controlling inter-communal violence. It remains part of the penal code, and does not provide any special protection to any religion.
This changed under the military rule of General Zia Ul Haq when in 1982 and 1986 two further sections were added to protect the sensibilities of Muslims.
Defiling, etc., of Holy Qur’an :
Whoever wilfully defiles, damages or desecrates a copy of the Holy Qur’an or of an extract therefrom or uses it in any derogatory manner or for any unlawful purpose shall be punishable with imprisonment for life.
Use of derogatory remarks, etc., in respect of the Holy Prophet
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 Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.
S.295C is, in fact even more severe than it appears. Although it apparently gives the court the option of imposing life imprisonment for blasphemy, the Federal Shariat Court decided otherwise in 1990, holding that “the alternate punishment of life imprisonment is repugnant to the injunctions of Islam as given in the holy Qu’ran and Sunnah ….” The result is that an offence against S.295C now carries a mandatory death sentence.
The incident that has led to Asia Bibi (also known as Asia Noreen) spending nearly 9 years on death row for an offence against S.295C would have been regarded as almost laughably trivial in most countries.
In June 2009 Asia, one of the 2% minority of Pakistani Christians, was at work picking falso berries on a Punjab farm.
The prosecution case, as related by sisters Mafia and Asma Bibi, was that while they were at work, Asia said to them that a month before his death the Prophet Muhammed fell ill and insects hatched from his mouth and ear. The sisters also claimed that Asia had said that The Prophet had only married his first wife Khadija “in order to loot her money.” She was also alleged to have breached S.295B by saying that the Koran was written by Muslims and was not a holy book.
The sisters did not at first report these blasphemies to the police. Instead they spoke to a man called Qari Muhammad Salaam, their teacher’s husband. A few days later (accounts differ as to how many) a public meeting was held, at which Asia, it was claimed by two other prosecution witnesses, admitted her guilt. (It should be noted that Asia’s subsequent account of the “public meeting” sounded more like a near lynching). Qari Salaam then reported the matter to the police. Although he had not himself seen or heard the original “blasphemous” incident or indeed the alleged “extra-judicial confession,” he became the complainant in the case.
Asia’s account to the police was very different. She said that a dispute had started because she offered the sisters water. They refused, saying that they would “never drink from the hand of a Christian.” There was then a quarrel during which, according to the report of the Lahore High Court which heard and dismissed her first appeal, “some hot words were exchanged.” She denied that she had said any “derogatory or shameful remarks against the Holy Prophet and the Holy Quran.” She did not, however, give evidence at the trial, and (again according to the Lahore High Court), nor did her lawyer call any evidence in her defence. This had allowed the trial judge to follow this rather odd chain of reasoning:
“So, the question arises, what type or nature of hot words would be there in between Christian and Muslim ladies when the quarrel started from the refusal of drinking water by the Muslim ladies from the hands of a Christian lady. So, the phenomenon was ultimately switched into a religious matter and ‘hot words’ could not have been anything other than the blasphemy.”
The Lahore High Court made a stinging criticism of how the defence handled Mafia’s evidence:
“The minute perusal of cross-examination upon this eye witness reveals an astonishing fact that she has not been cross-examined by the defence qua the … pivotal part of her incriminating statement about the appellant.”
Similarly, as far as Asma’s account was concerned:
“A perusal of cross-examination by the defence upon this witness, reflects the same casual attitude as her statement has not been challenged by putting necessary questions necessary to dig out the truth. … It transpires that the defence has not defended its case with the required seriousness as the most relevant aspect of the prosecution case remained unrebutted.”
Asia’s lawyers argued on appeal that the Court had not applied Tazkiyah-al-shuhood, a principle of Islamic law in cases involving a mandatory penalty, under which the Court should rigorously test the honesty, piety and previous good standing of witnesses before acting on their evidence. The judgment is not – to me at least – particularly clear but the judges appeared to take the view that because the defence had not explicitly cross-examined the witnesses the truthfulness of their accounts should be taken as admitted, so that tazkiyah-al-shuhood was not necessary. That is a principle taken from English rather than from Islamic law: if you do not explicitly challenge important evidence the court is sometimes entitled to assume that the evidence is not in dispute. With a strange irony, a principle of the English law of evidence was relied upon to trump Islamic law in order to uphold a conviction for blaspheming Islam.
One should not necessarily be too hard on Asia’s trial lawyers. Even to take on the defence in a blasphemy case is to invite ostracism and death threats. S. K. Chaudry, Asia’s trial lawyer, explained to the Lahore High Court why he did not challenge the sisters’ evidence in more detail: had he done so, he might himself have been accused of blasphemy.
Whatever the reasons, one might have thought that if, in a capital case, an appeal court took the view that the defence had approached the case with “a casual attitude” and had not defended Asia “with the required seriousness” that might itself give rise to findamental doubts about the fairness of the trial. The High Court judges, however, either thought otherwise or were too frightened to express them. Given their apparent doubts about the fairness of the trial, their refusal to allow the appeal might be thought to demonstrate a casual attitude towards the rights of the appellant.
Unfortunately death threats in Pakistan blasphemy cases are anything but empty, as the repercussions from Asia’s own case have demonstrated. At the time of her original conviction the governor of Punjab, Salman Taseer, had repeatedly and publicly criticised the blasphemy laws, making the point that they were used to punish “the poor and defenceless,” and especially the Christian minority. He visited Asia in prison. He said that she should be pardoned. In doing so he wrote his own death warrant. One of his bodyguards, Mumtaz Qadri, decided that because of his support for Asia and his opposition to the blasphemy laws, it was his religious duty to kill him. As Taseer was walking from a restaurant to his official car Qadri shot him dead, using 28 bullets just to make sure.
Two months after Taseer’s death, Shahbaz Bhatti, the only Christian member of the cabinet and another outspoken opponent of the laws, was also assassinated. His killers left a note saying that anyone trying to change the blasphemy laws would be killed. They have not been found.
There could be no doubt about Taseer’s killer. Mumtaz Qadri was convicted of murder in October 2011, and sentenced to death. (The judge who convicted him was then subjected to death threats and had to leave Pakistan, whilst the lawyer who prosecuted him – many others refused to do so – required police protection).
His defence had been two-fold:
First, he said he was provoked by Taseer. According to Qadri, his death followed a brief exchange of words in which Taseer said to him “not only is the blasphemy law a black law, it is my shit.”
Secondly, he argued that Taseer deserved to die anyway because he had, by supporting Asia and by criticising the blasphemy laws, himself committed blasphemy. He even relied on the fact that Taseer had been reported as someone who lived with a Sikh woman, “drank Scotch every evening, never fasted or prayed and even ate pork.” Taseer’s killing was, he said, “a lesson for all apostates as finally they have to met the same fate.” This extraordinary argument was taken seriously enough for the Islamabad High Court to frame a question for the Supreme Court:
“If the Petitioner entertained an impression that the deceased had committed blasphemy then did the petitioner acting in his private capacity have any legal justification to kill the deceased without having recourse to the law?”
The Supreme Court refused his appeal, primarily on the ground that he had been unable to provide sufficient evidence that Taseer was in fact guilty of blasphemy. Furthermore, even if he had criticised the blasphemy laws that did not, in itself amount to blasphemy, pointing out that Qadri’s own lawyer had argued that the laws were insufficiently strict.
Qadri was hanged in February 2016. Many days of rioting followed.
Asia’s final appeal was heard by the Supreme Court earlier this month. After a 2 hour hearing judgment was reserved. The complainant was represented by Ghulam Mustafa, who had represented Taseer’s killer, Mumtaz Qadri, at his unsuccessful appeal. In a wide ranging address he accused Asia of being a “preacher” (a seemingly new allegation unsupported by any of the evidence at the trial). He relied upon events in medieval Spain where:
“A priest gathered Christian youths in Spain and taught them that they could not enter the paradise until they disrespect Prophet Muhammad. After this, each day one Christian youth came out who spole disrespectful words against the Prophet and was beheaded. … Asia Bibi has spoken exactly the same disrespectful wording.”
He was warned by one of the judges to “stick to the evidence in the case.”
Justice Khosa seemed to put his finger on the crucial point:
“Can a person be hanged [just because] his lawyer failed to cross-examine on the occurrence of the incident?”
“In our religion,” said Khosa, “strict level of evidence is required and giving truthful evidence is a prerogative of a Muslim, as the Holy Quran says:
‘Oh you who believe! Stand out firmly for justice, as witnesses to Allah, even though it be against yourselves, or your parents, or your kin.’”
In an atmosphere where lawyers, judges and politicians all face extraordinary intimidation over the retention and implementation of the blasphemy laws there may be at least some hope that the Supreme Court will do justice. Despite the intimidation, the political campaigning and social media where hashtags such as #HangAsia and #DefendS295C regularly trend, it remains the case that no-one has in fact yet been executed for blasphemy. It is even possible that the judges will decide that her conviction should be quashed because the trial judge failed to apply the correct Islamic rules of evidence.
If, on the other hand, the conviction is upheld, Asia’s last remaining hope will be that the new Prime Minister, Imran Khan, will recommend a reprieve. But that seems very unlikely. During the recent election campaign, no doubt courting the religious vote, Khan spoke strongly in support of retaining S.295C.