Perspective Forum

Live discussion with Osama Siddique

Published Mar 27, 2015 02:06pm

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Dr Osama Siddique is a professor of law at the Lahore University of Management Sciences (LUMS). His research interests include legal empowerment of minorities and vulnerable citizens, the state of fundamental rights and civil liberties in Pakistan and miscarriage of justice and violent vigilantism stemming from laws such as those concerning blasphemy. Siddique is also an experienced practicing lawyer.

On September 24, Dr Osama Siddique conducted a live online discussion about the Rimsha Masih case as well as other issues related to blasphemy laws. The discussion has been edited for space, clarity and grammar.

Photo courtesy LUMS
Photo courtesy LUMS

Q. Can you please explain the difference between the blasphemy law for Muslims and non-Muslims in Pakistan? Or is the same law applicable to both? – Ashfaq

OS. When we refer to the blasphemy laws in the current context, we more or less specifically refer to Section 295 (c) of the PPC which is about any blasphemy committed against the Holy Prophet. So while both Muslims and non-Muslims come under its ambit it is obviously a law that pertains to Muslim sensibilities. Sections 295-A and 298 of the PPC (which predate independence) protect the religious sensibilities of all faiths and prohibit the insult of any religion. These are the colonial anti-hate speech laws. Section 295 (c) was introduced despite the presence of these laws in our penal code.

When the case was first launched, did you think Rimsha would be awarded pre-trial bail, given that it has never happened before and that it is a non-bailable offence? – Imran

OS. No unfortunately I was not confident that Rimsha would be granted bail. And I say that in view of past cases where the policy lodged an F.I.R in similar fashion due to pressure from certain segments even though a fair investigation would have revealed that there was no merit to the allegation. What is unique in the Rimsha case is the revelation about the falseness of the allegation from another quarter and that too from Muslims. That is what finally provoked a reaction from the otherwise silent majority and the media and built some pressure to not just steam-roll this case like others and completely give in to the mob pressure. If this had not happened I am quite sure that Rimsha would not have been bailed. She is still far from being free

Q. Do you think the Rimsha Masih case is going to be used as a benchmark for future blasphemy cases? – Shahana

OS. I sincerely hope so. And the reason is that for the first time after a while we see some open questioning of Section 295 (c) as a mode for coercion, personal score settling and vigilantism. The fact that she is under-aged, possibly suffering from Downs’ syndrome and that the person behind it all has now been blamed by other Muslims, highlights how personal religious turf management or other political economy factors can motivate people to misuse this law. This is a tremendous opportunity to re-open the debate on this highly flawed law which we have to capitalize on

Q. Do you think it is possible to alter or repeal the blasphemy law over time? How can public sentiment be won? – R K Khan

OS. The politicians, civil society, academics and ulema have a cardinal role in this — one that they have acutely neglected in the past. We need to rapidly raise awareness that this is a man-made law by a dictator who was using Islam for political mileage. We need to highlight that there is no precedent of such a law in Islamic history or in other contemporary Islamic nations. We need to highlight aspects of humanity and forgiveness in the Prophet’s life and use religion to counter this distortion. We may have to move in a step-by-step fashion and first introduce some vital security nets in the law to save innocent people and deter those who misuse these laws. An outright repeal is unlikely and may not even be necessary

Q. How do you see an amendment to the blasphemy provisions of the PPC playing out after the 18th amendment, given that by virtue of Article 142(b) both the provincial assemblies and national assembly have jurisdiction in the area. Is the national assembly empowered to overrule a provincial assembly’s act to amend the Section 295? Or does 142(b) require a unanimous consent of the parliament and the provincial assembly? – Mustafa Ahmed

OS. That does create an obstacle and there is some ambiguity on that. Which is why there has to be a concerted effort to build a national consensus on thus by involving ulema from all sects and regions and thus bringing about identical changes to the law in the provinces. Whether we get the provinces to sign off on this or whether there is a federal legislation that ultimately drives the law everywhere in the same direction is a legal issue that can be remedied in more ways than one. But that is not the real issue. The real issue is how to procure the political will which in turn requires informing and changing the mood of the average citizen who is ill-informed, misguided and emotional

Q. Is it possible to pinpoint when the blasphemy law began to be used to marginalize non-Muslims? – Mustafa Ahmed

OS. My research clearly shows that it was only after Zia introduced Section 295 (c) that there was an escalation of complaints about blasphemy. This was not really the case before even though as I have mentioned earlier, there were colonial era laws that allowed for legal action for insulting one’s religious sentiments or insulting a religion. The primary reason for this is not just the ‘Islamization’ era politics and indoctrination but that Section 295 (c) is both very vaguely worded and hence allows for any direct or indirect imputation, innuendo and insinuation to be misread or falsely categorized as blasphemy. Furthermore, unlike the aforementioned laws it has no requirement of deliberate and malicious intent that required the police and court to ensure that nothing was taken seriously unless it had malicious deliberate intent motivating it. Add to this the growing misuse of Islam for a kind of obscurantist politics and you have an alchemy that creates the ideal milieu for misusing the law

Q. Can you tell us a brief detail about Rimsha’s legal proceedings? What is the next step for her? – Kamran F

OS. Well the latest development I believe is that the police investigation has revealed that the cleric involved in the case made false investigations. Also, that there is no evidence of blasphemy against Rimsha. If this is confirmed and constitutes the final investigative findings then there is really no case against her and the FIR ought o be withdrawn/quashed. And the cleric should be proceeded against. Let’s just hope there are no further twists

Q. Given that the task of procuring political will to amend the blasphemy law is likely to take time to culminate, do you think it is possible for there to be changes in criminal procedure to make it harder for cases like Rimsha Masih to occur? – S Quamber

OS. You have a point. Indeed in the past some administrative steps were taken to ensure that the initial police investigation is at a sufficiently high level and added attention and scrutiny ought to be extended to ensure no baseless FIRS are registered. It has not quite worked though. The mob pressure is simply too strong and the silent majority way too silent. So far it has only been the appellate courts that have saved various falsely implicated people in the past but then by that time there has been displacement, harassment and even loss of life through murders. The problem is that as drafted the law is simply too vague, all-encompassing and open to abuse and hence the necessary solution is to tweak it to make it just and fair and to require malicious intent. One other alternative is for the courts to consistently and as a matter of rigorous routine require intent and malice and to look for misuse. Many judges have done so in the past but there can be variations and we have also had zealous judges who were not only careless but even biased. And I am not sure the current judicial leadership is really sensitive to this issue. So legal amendment is the first and foremost option and if not that then some clear judicial understanding to expedite such cases and carefully expose any misuse.

Q. Given the Rimsha is underage, if her case had proceeded forward, under the blasphemy law, what punishment would she have been given? — Rani

OS. The age factor would surely have been a huge consideration and I don’t at all think that she would have been sentenced to death. By the way, as a matter of record, no one has been hanged for a blasphemy conviction in Pakistan to date. People have either been set free or have languished behind bars or have been killed on the way to court/in jail or have sought and gotten amnesty abroad. Also, we ought to remember that making death penalty mandatory was only a subsequent Shariat Court ruling and I could also foresee the current court possibly revisiting it. So in a nutshell if Rimsha were found guilty at the highest levels of the court (which I think would have been very, very unlikely given her age and the spuriousness of the case) she would have possibly received some kind of reduced jail term

Q. We generally hear about the blasphemy law being used against minority communities. Yet analysts say that in terms of actual conviction, more Muslims have been affected by this than any other community in Pakistan. Would you care to comment on that? – Curious Pakistani

OS. Well here are the stats based on an analysis of blasphemy cases from 1960 to 2007. Roughly 35 % of the total reported cases (reported in law journals as they were cleared by appellate judges to be fit for reporting as they entailed an important legal point) pertained to Christians and Ahmedis. So while more Muslims were implicated, that is quite a high per centage of non-Muslims (as defined by the Constitution) given the much, much smaller size of their population. So minorities do get implicated much more on a proportional basis. Having said that, the motivations behind implicating someone is such a case can be other than religious. Will, marital, property or political disputes are also recorded to have misused this law and hence the cases against so many Muslims.

Q. In your opinion, do you think there was any local media pressure or international media pressure on the government? Is that why she was released on bail? Or was it simply because of her age? – Lydia

OS. Like anywhere in the world, governments and courts have an ear out for public opinion and gauge the mood of different more empowered groups in society. The expose of the cleric who was the major factor behind her implication and the fact that this expose was discussed and the said person castigated by the media, many ulema and religious parties, important journalists and opinion-makers as well as politicians had a major impact in drawing attention to the laws’ misuse. I guess for many this was the first time that they seriously thought about the issue. Much as he is unpopular amongst many, the President of the country is one politician who has consistently spoken about this and other exploitative laws but this time others with far greater leanings towards the right were also forced to do so. The international media always picks up on such issues and that has some impact. But I think that domestic pressure played a greater part as it always ought to but seldom does.

Q. The Akhtar Hameed Khan case is one tragic example of victimization under the blasphemy law. Do you think it resulted from a certain carelessness of language on the part of the poet/writer A. H Khan or were there political reasons for bringing charges against him? Even when a person is acquitted, as he was, was the accuser who brought the charges against him ever made to pay for making an elderly man go through the travails of ‘court kutchery’ during his illness? – Khasta

OS. I am strongly of the considered view that the highly flawed and vague language of the law makes it an ideal tool for mischief and abuse. Akhtar hameed Khan’s tragic case was no different. So problematic is the way in which the law has been drafted that one can’t even conceivably have a perfectly respectful and academic discussion on religious themes without the apprehension that someone cannot twist one’s words and accuse one of blasphemy. So it is also a great impediment to free and academic speech. By the time an innocent person presents a defense, the flawed law and weak police and court systems ensure that you have already suffered a lot of harassment and possibly even greater harm

OS. Thank you everyone for your very considered and meaningful questions. I hope I was able to address them adequately. If you need more clarifications please search on the internet for research that I have done in this area and you will be able to easily find it. And please keep raising your voices against this highly problematic law.