OVER A COFFEE : Blasphemy law and fundamental rights — II — Dr Haider Shah
It is often argued that people will take the law into their own hands if blasphemy offences do not carry death or life imprisonment penalties. This is an outrageously irrational argument
In the previous part published last week, the premise of this analysis was developed. It was shown that the original chapter 15 of the Pakistan Penal Code dated back to the Indian Penal Code of 1860 and was non-discriminatory towards the religious sensitivities of all communities that lived in Pakistan. The Fundamental Rights in our Constitution also follow the principle of non-discrimination and equality. However, new sections added to the original sections during Ziaul Haq’s period changed the situation completely. Let us examine the effect of these insertions.
Section 295 declares defilement of ‘any object’ and section 295A declares outraging religious feelings as offences. Important to note is that these original sections use the words ‘any class of citizens’. The original code prescribed two years of imprisonment for both offences, which is understandable as the offence is nothing more than hurting the personal feelings of individuals, which in turn can become a potential threat to public order. In Pakistan’s penal code the first irrational change was increasing the imprisonment term to 10 years under section 295A, thus bringing it at the level of offences that involve grievous bodily harm. Section 295B however changed the whole scheme of non-discrimination by naming one particular object, i.e. the holy book of one religious community, i.e. Muslims, and prescribing the penalty of life imprisonment. This subsection reminds me of the novel Animal Farm where the animals wage a freedom movement under seven commandments, which include ‘All animals are equal.’ Once the revolution is successful, Napoleon, the leader, replaces the seven commandments with a single maxim, ‘All animals are equal, but some animals are more equal than others.’ While section 295 declares that the sensitivities of all religious communities are equal, section 295B makes it clear that Muslims are more equal as defilement of their religious object will result in life imprisonment while a similar offence against other communities will result in two years imprisonment. Similarly, under section 295C, blasphemy in the case of the Prophet (PBUH) of Muslims would result in the penalty of death or life imprisonment while similar offence with regards to the holy personalities of other religious communities would result in the maximum penalty of 10 years under section 295A.
Section 298 and 298A further exacerbate the incidence of discrimination. While the original 298 section prescribes one year imprisonment for uttering words to wound the religious feelings of ‘any person’ (i.e. without discrimination), the new section 298A prescribes three-year imprisonment if the offence is in case of holy personalities of Muslims.
There can be two possible arguments offered by advocates of discriminatory provisions in the law. First, since the constitution has declared Islam to be the state religion, the operation of fundamental rights is subject to the injunctions of the Quran and Sunnah. My personal views notwithstanding, since the Constitution of Pakistan places this limitation, we have to honour the law as it stands today. But these advocates need to tell us which verses of the Quran prescribe the penalties of sections 295B, 295C and 298A. A video discussion between a spokesperson of Tehrik-e-Taliban and a common Pakistani is available on YouTube where the spokesperson quotes many citations from scripture and religious discourse to support all acts of extremism. Linking law making with unverifiable traditions of the past is therefore fraught with danger. While we have dispensed with the fundamental right of non-discrimination to impose a law that has no Quranic foundation, there are clearer injunctions of the Quran, e.g. prohibition of ‘riba’ (interest), which we have chosen not to enforce.
The second argument is that the law satisfies the emotional attachment of a section of Muslims. It is often argued that people will take the law into their own hands if blasphemy offences do not carry death or life imprisonment penalties. This is an outrageously irrational argument. In many parts of the country, especially in Khyber Pakhtunkhwa and Balochistan, honour killing is considered a part of local tribal norms. Often persons accused of committing honour-related offences are gunned down by rivals in the premises of courts. Does this mean that a person who is charged with an honour-related offence by a rival should be awarded the death penalty by the courts as he or she is often killed by such lunatics? Those who kill innocent citizens over enraged religious feelings are no different from those who practice honour killing. In both cases, there is a shared sense of loss of honour that instigates the commission of the crime against the body and property of others. If in the case of honour killing, the state has declared its policy of zero tolerance; why should it not show the same resolve in the case of those who take the law into their own hands over matters of religion?
No doubt, the law alone can never ensure eradication of a social problem, but the law is also a declaration of the intent of the state. For instance, if a law against domestic violence on women or children is passed, it will not end violence overnight. It will however, clearly establish what matters of priority for the state are. The leaders of parliament have been claiming that parliament is supreme and sovereign while the judiciary tells us that it is independent and is a custodian of the constitution. Would parliament show its sovereignty by repealing blatantly discriminatory sections of chapter 15 of the Pakistan Penal Code and would the judiciary perform its custodial role by restoring the essence of equality in the criminal law of Pakistan? Hope I am not told that all are equal, but some are more equal.
The writer teaches public policy in the UK and is the founding member of the Rationalist Society of Pakistan. He can be reached at firstname.lastname@example.org