There is virtue in stating the obvious sometimes, so let us begin there. The Supreme Court of Pakistan’s ruling in the Aasia Bibi case was an act of significant courage. The composition of the bench also sent out a message that the court fully grasped the sensitivity of the issue and its leadership stood as one; the incumbent as well as the next-in-line chief justice of Pakistan sat together and signed off on the verdict. Both of them authored rulings — Chief Justice Saqib Nisar wrote for the court while Justice Asif Saeed Khosa penned his widely celebrated additional note.
Now, we all know that one courageous decision does not make a system just or cure its entrenched flaws. You can be critical of the judicial branch (including for the delay in this case) while still appreciating, and acknowledging, acts of courage in individual cases. Nuance, and reasoned discourse, demand that.
Apart from the larger message(s) sent out, the reasoning in the ruling is solid and firmly rooted in the law. Both opinions – the court’s as well as Justice Khosa’s – lay bare fundamental flaws in the prosecution’s narrative. These included, but were not limited to, the highly suspect delay in filing of the First Information Report (FIR), prosecution witnesses contradicting each other – as well as their earlier statements to police – about when and before whom Aasia Bibi made her alleged confession, the date and details of a ‘public meeting’ where this supposed confession was made as well as the suppression of material evidence about the facts and circumstances leading up to the alleged blasphemous utterances. The chief justice noted, in no uncertain terms, the “material contradiction[s]” in the case of the prosecution. Justice Khosa called these contradictions “glaring” and lamented the “feast of falsehood” concocted to convict an innocent woman.
The gossamer veil of stability that our state habitually wears came apart in the aftermath of the ruling. It is almost impossible to overstate the significance of what happened. Tehreek-e-Labbaik Pakistan (TLP) leaders made speeches that directly threatened the security of the Supreme Court judges. There were frightening calls for their security detail and staff to emulate Mumtaz Qadri who killed Punjab’s governor Salman Taseer while serving as his bodyguard in 2011. Chief of the army staff was vilified and soldiers were exhorted to carry out a coup against the military leadership.
This happened in relation to a case that has already seen the assassinations of Taseer as well as a former federal minister, Shahbaz Bhatti. This happened in a country where lawyers (the late Rashid Rehman) and high court judges (the late Justice Arif Iqbal Bhatti of Lahore High Court) have been killed for representing, or acquitting, the accused in cases involving allegations of blasphemy.
The TLP leadership’s incendiary speeches were not the incoherent ramblings of those leading an angry mob. Their words were graphic and grounded in history.
In some ways, the scenes of lawlessness after the verdict represented part of the ultimate nightmare about Pakistan: mobs taking over our streets and highways while the state is paralysed. We may be confident that Pakistan’s civil and military forces are much stronger than the threat of raging mobs but the message we sent out to the world did not inspire faith.
I am not saying we should sing a dirge for the state but the state did not do itself any favours by legitimising the tactics, ideology and people involved as worthy of deference from the state. There is a serious symbolic value, and a strategic concession, in the act of putting ink to paper with those who rip apart public order. This also undermines our apex court. It sends the message that the executive can buckle, despite an authoritative pronouncement by the highest court in the land.
The fact that our ministers expressed frustration at Twitter for not blocking TLP chief Khadim Hussain Rizvi’s account was rather shocking. The most incendiary material was clearly not in TLP’s tweets. And the dangers inherent in civil society activists urging the blocking of Twitter accounts deserve a separate piece.
To understand that, we do not look far away from the apex court.
Another bench of the Supreme Court, comprising of Justice Mushir Alam and Justice Qazi Faez Isa, has been looking into the Faizabad sit-in organised by the TLP late last year. During the hearings, the apex court has shown annoyance as well as dissatisfaction over the lack of information, and answers, being made available about how the TLP came to be registered and financed as a political party. Newspaper reports about the hearing also reveal that the apex court is irked at how no state institution is willing to accept the responsibility for allowing a mob to hold life hostage in the federal capital for days.
In recent days, the senior leadership and many foot soldiers of the TLP have been detained. This has, reportedly, been done under the Maintenance of Public Order Ordinance 1960 (MPO). Make no mistake; this is not a punishment in any way for acts already committed. The MPO is used to prevent future action. Individuals are detained under this law when their planned or anticipated actions threaten to prejudice public safety or maintenance of public order. This is not a prosecution under the Pakistan Penal Code yet many others who never went as far as the TLP did are being prosecuted.
Latest reports suggest that Rizvi may now be tried under treason and terrorism charges. This may give his supporters another cause to mobilise for: that he is being excessively persecuted for raising a sensitive issue. A clear cut case of vandalism, unlawful assembly and disturbing public order, made strongly, could have worked better.
In America’s Federalist Paper No. 78, Alexander Hamilton called the judiciary the “least dangerous” branch of the government. He reasoned that the judiciary “has no influence over either the sword or the purse … [i]t may truly be said to have … merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
In the American context, this became painfully clear in the aftermath of Brown vs Board of Education cases, the famous Supreme Court ruling that declared race-based segregation in public schools as unconstitutional. There was significant pushback, including violence, especially in the Southern states. Many states and districts tried to block de-segregation orders. After a crisis in Little Rock, Arkansas, President Eisenhower in 1957 nationalised the state militia and went so far as to send in the 101st Airborne Division to ensure that the might of the executive supported the implementation of the Supreme Court ruling.
The “least dangerous branch”, especially when it acts with courage, needs the state to stand with it. Hamilton’s colleague, Madison, expected courts to enforce rights to protect ordinary citizens against the “tyranny of the majority”. Can we promise our vulnerable citizens such protection if courts feel the state will buckle?
For the public, or different sections of it, such cases are about confirming pre-conceived conclusions and biases; not what application of the law should lead to. People bracket themselves (and others) as progressive or extremists, corrupt or clean, supporters of innocence or guilt by deciding in advance the outcomes they want. There are lessons here for the legal profession. We must explore ways in which we can ensure that the processes, rulings and promises of our Constitution are accessible and emotionally felt. And just so we are clear, this is not to suggest that judges should abandon fidelity to due process.
One can only hope that the present times do not make actors in Pakistan’s legal system increasingly reluctant to take a stand for our religious minorities or other unpopular causes. But do not hold your breath.
The writer is a practising lawyer. He is a graduate of the University of London and Harvard Law School.
This article was published in the Herald's December 2018 issue. To read more subscribe to the Herald in print.