Dr. Haider Shah

Opinion is the medium between knowledge and ignorance (Plato).

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OVER A COFFEE: Of courts and miscarriage of justice, The Daily Times, November 01, 2014

In Ziaul Haq’s era, insertions were made in chapter 15 of the penal code, categorising offences relating to religion. The non-discriminatory nature of the chapter was changed as the sensitivities of one religious community were valued much more than those of all other minorities

Dr Haider Shah

Recently, the issue of fresh elections came up before the Supreme Court (SC). Proving the pundits of doom wrong, the court trashed all petitions against the election results of 2013 and has hence shut the door for those who wanted to use the judiciary to engineer fresh elections. As the mightiest of Pakistan had a stake in this case, it attracted massive attention. There is another case that no one cares to talk much about as it does not concern any important player in the power game. It, however, threatens the life of an insignificant citizen of the country, a poor illiterate rural woman, Aasia Bibi. She is condemned to death as she was accused of blasphemy by a local maulvi after she picked a fight with bigoted women in her village over some petty water fetching issue. The Lahore High Court (LHC) recently confirmed her death penalty that had been awarded by the trial court on the basis of hearsay evidence. Her appeal now will be considered by the judges of the SC.

Miscarriage of justice is a major concern in societies where the rule of law is considered to be the foundation of their criminal justice system. Bias or fear in the minds of judges are the two main reasons that contribute towards miscarriage of justice. For instance, when the US was suffering from the slavery issue, racism was often cited by independent analysts as a cause behind biased judgements. Pakistan’s judiciary is tainted with judgments passed under the doctrine of necessity. After the restoration of Chief Justice (CJ) Iftikhar Chaudhry, we saw that the superior judiciary began rewriting its role in the public affairs of the country with many bold judgments. However, bias does not enter the judicial system through a single door. Religious faith can undermine the impartiality of a judge and fear of militants can also have a devastating effect.

There are videos available on YouTube where lawyers can be seen garlanding the killer of Salmaan Taseer. Included among those was a lawyer who was later made a judge of the High Court. In a civilised country this would have been unthinkable. How can a person accused of blasphemy ever get justice if presented before judges with such credentials? Browsing the internet once I accidentally stumbled upon a video where Justice (retd) Wajihuddin was addressing a seminar and accusing a fellow judge of being an Ahmedi. If judges carry such strong religious biases, the chances of miscarriage of justice become stronger. It is hoped that the judges in the SC will prove their independence and fearlessness beyond any doubt in cases where the defendant is powerless and a child of lesser gods.

Cases go to the SC on points of law. The Aasia Bibi case raises many such questions and the lawyers must use this opportunity to establish that the blasphemy law in its present shape contravenes our constitution. The Constitution of Pakistan, in its Article 8, declares all laws and usages in Pakistan void if they violate the fundamental rights spelt out by Articles 9-28 of the Constitution. Sometime back I had written a detailed piece on this issue. I will summarise some of the points I had earlier raised in my analysis. Our constitution derives its inspiration from the internationally recognised notion of equality of all citizens before the law. Besides guaranteeing fundamental rights like fair trial, freedom of speech and due process of law, Articles 20-22 guarantee all religious minorities of Pakistan equal rights of professing religion, running religious institutions and no discrimination in taxation matters. The upshot of specific fundamental rights is in Article 25 where all citizens have been declared equal before the law and entitled to equal protection of the law. It is therefore not difficult to conclude that our fundamental rights are based on the principal notion of equality of all citizens and even a hint of discrimination in valuing the life, liberty and dignity of any citizen would make any law, custom or usage void as per our constitution.

After the partition of India in 1947, both India and Pakistan adopted the same criminal code as one of the primary pillars of their legal systems. The chapter on religion-related offences was in line with the fundamental rights enshrined in the constitutions of both countries. Sections 295-298 of the penal codes made no distinction on the basis of religious faith and applied equally to all religious communities. They, therefore, reflected the spirit of non-discrimination guaranteed by the constitutions of the two countries. When Bangladesh came into being it also adopted this penal code and retained the same non-discriminatory provisions about religion-related offences. In Ziaul Haq’s era, insertions were made in chapter 15 of the penal code, categorising offences relating to religion. The non-discriminatory nature of the chapter was changed as the sensitivities of one religious community were valued much more than those of all other minorities. The rational scheme of one to three years of imprisonment also got lost by introduction of harsh punishments like death and life imprisonment.

Aasia’s lawyers’ prayer should ask for a declaration that the blasphemy law in its current shape is discriminatory and hence unconstitutional. The law should revert to its original shape.