BLASPHEMY LAWS - THE PAKISTANI LANDSCAPE

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.

Pakistan Criminal Code Article 295-C

Restrictive laws and extreme penalties, which as applied today are contrary to current human rights norms, are on the books in far too many Muslim nations when it comes to a number of offences, including

blasphemy.^[718] Of all Muslim nations, the Pakistani blasphemy laws have attracted the most attention both within the country and outside. Titled Of Offences Relating to Religion, Chapter XV of the Pakistan Penal Code provides the basis for much of the abuse and religious persecution taking place in the country. The provisions are a legacy of colonial rule.^[719] Indeed, the existing blasphemy laws date back to 1860 British laws against insulting religion.^[720] These laws were ‘inherited’ by Pakistan in the 1947 partition.^[721] Though arguably blasphemy laws were originally conceived to uphold religious orthodoxy, modern formulations shifted the focus to ‘preventing offence to religious believers and sympathizers and to maintaining public order’.^[722]

It can be argued, given its secular orientation, that the British drafted Indian Penal Code had the goal of maintaining law and order and social cohesion.^[723] The need for such legislation was obvious given the multi­religious and religiously sensitive nature of Indian society. Indeed, this focus on maintenance of public order (at least in the context of religious insults) may partly explain the minimal use of the laws in the days immediately before and after partition. In fact, according to the Center for Research and Security Studies (CRSS), an independent think tank based in Islamabad, ‘when the British ruled this region and the hatred between the Muslims and Hindus was at its peak, there were only seven blasphemy-related incidents’ from 1851 to 1947, while from 1953 to July 2012, there were 434.^[724]

A number of factors may have impacted on the increase in prosecution under the blasphemy provisions after partition.

According to Osama Siddique and Zahra Hayat, in addition to creating procedural inadequacies, General Zia’s changes to the inherited laws involved eliminating ‘any requirement of intent, deliberate or malicious’, from various sections despite the fact that proof of intention on the part of the accused to ‘insult[] the religion of any class of persons’ was a prerequisite to the application of the blasphemy sections.^[729] Indeed, as Siddique and Hayat sum up nicely:

A new brand of Islamic obscurantism and, to many, a facile, opportunistic use of religion to legitimize realpolitik, brought about the introduction of flawed and highly controversial personal morality and blasphemy laws, the empow­erment of courts to declare any law un-Islamic, and the concurrent curtailment of courts’ jurisdiction in matters concerning fundamental rights and civil liberties. These steps caused jurisdictional and doctrinal confusions in many areas of law.^[730]

The change in focus from a general law to maintain social and religious order to one privileging Islam and maintaining religious purity (whatever that may mean) created a multitude of other issues.

The abuse of blasphemy laws in Pakistan gives credence to this assertion. Pakistan has witnessed a proliferation of death, destruction, mayhem and abuse arising from these blasphemy laws over the years.^[732] There appears to be a direct correlation with drives to ‘Islamize’ and return to orthodoxy. According to the 2013 CRSS report, in contrast to the seven cases from 1851 to 1947, during General Zia’s rule from 1977 to 1988, 80 such cases were filed.^[733] Consistent with the return to orthodoxy thesis, the numbers grew to a phenomenal 247 from 1987 to 2012.^[734]

The Human Rights Commission of Pakistan reports that 34 people were charged with blasphemy in 2013, while 27 were charged in 2012. Nineteen people are now on death row for blasphemy, while another 20 are serving life sentences.^[735] Moreover, dozens have died as a result of riots, extra-judicial killings and mob ‘justice’. The CRSS, for instance, documents more than 52 people killed extra-judicially since 1990 while awaiting trial for the charge.^[736]

The list of victims not only includes alleged blasphemers, but their supporters, journalists, lawyers representing accused, and even politicians calling for amendments to the law.^[737] That last category includes former Punjab Governor Salman Taseer^[738] and former Federal Minister Shahbaz Bhatti,^[739] who were both killed for their opposition to blasphemy laws. In 2014 alone this has resulted in two accused blasphemers murdered by vigilantes, and three Christians - a couple and another unrelated man - being sentenced to death and fined.^[740] A paralysed church school worker, Shafqat Masih, and his wife, Shagufta, were also sentenced for sending text messages against the Holy Prophet,^[741] while Sawan Masih, a road sweeper from Lahore, was condemned to death after a friend accused him of making blasphemous remarks during an argument.^[742] Human rights activists are counting on a de facto death penalty moratorium in place since 2008 to keep them from the hangman’s noose,^[743] though Prime Minister Nawaz Sharif has attempted to lift the moratorium.

Blasphemy, most accurately defined with reference to Christian teach­ings as making a mockery of God, has no exact equivalent in Islamic tradition, though a number of terms come quite close. Aslam Abdullah and others have argued: ‘The idea of blasphemy is foreign to Islam. It was justified by many medieval Muslim scholars on the basis of their understanding of Christian and Jewish texts supporting laws against those who blaspheme and vilify their religions.’^[745] Indeed, the Qur’an and many teachings of the Prophet characterized irreverence to God and religious symbols as hatred, provocation and acts of ignorance.^[746] The closest Qur’anic phrase to blasphemy would be Kalimat-al-kufr (‘word of disbelief’).^[747] The most common Arabic verbs for blasphemy are sabba (to abuse, insult) and shatama (to abuse, vilify), with the subject being God, Prophet Muhammad, or any part of divine revelation.^[748] The concept evolved to become associated with denying the truth, insulting the divine and even inventing falsehoods.^[749] Shatama does not occur in the Qur’an, and sabba appears only as part of a commandment to Muslims not to insult the idols of polytheists (Q6.108): ‘Do not abuse those to whom they pray, apart from God, or they will abuse God in revenge without knowledge.’ Additional teachings around this issue revolve around takdhib (giving the lie, denial), and iftira’ (invention).^[750] All of this suggests that in theological terms, this concept of blasphemy overlapped with the deliberate rejection of God and his revelation through his messengers (kufr), the idea of heresy (zandaqah), and irreverence and insulting language to God, his messengers and religious symbols.^[751]

The Qur’an, seerah (biographies of the Prophet) and hadith (reports of the teachings, sayings and tacit approvals and disapprovals of the Prophet) literature are replete with verses and stories describing blas­phemous utterances by hypocrites and disbelievers against the Prophet.

Then We sent Our messengers in succession. Every time there came to a nation its messenger, they denied him, so We made them follow one another [to destruction], and We made them narrations. So away with a people who do not believe.^[752]

How regretful for the servants. There did not come to them any messenger except that they used to ridicule him.^[753]

According to the Qur’an, blasphemous speech was even uttered against Jesus and his mother Mary, who was called unchaste.^[754] Prophet Muham­mad himself was repeatedly mocked by the unbelievers. The Qur’an points out that his opponents claimed he was a madman,^[755] and that ‘in him is madness’.^[756] Indeed, many of the disbelievers claimed that he was merely a magician^[757] and treated him as a liar. Furthermore, he was labelled a fabricator by the disbelievers.^[758]

The attacks and insults did not stop with the messengers but extended to the Qur’an itself, which was called a book of ‘Legends of the former peoples’.^[759]

Yet despite the fact that the Qur’an confirms that all prophets have been subject to attacks by others, there is no unequivocal evidence that any of the offenders were ever ordered to be punished. Early Islam is replete with stories about insults to the Prophet, God, and Islamic symbols, with the rare instances of any worldly punishment.^[760] This view is reinforced and consistent with the Qur’anic teachings. The Qur’an not only documents instances of insult, ridicule and attacks on Islamic icons and personages, but appears to provide guidance on how one should behave when faced with such conduct. Instead of mandating any physical worldly punishment, believers are directed to leave their company:

And it has already come down to you in the Book that when you hear the verses of Allah [recited], they are denied [by them] and ridiculed; so do not sit with them until they enter into another conversation.

Indeed, those who abuse Allah and His Messenger - Allah has cursed them in this world and the Hereafter and prepared for them a humiliating punishment. And those who harm believing men and believing women for [something] other than what they have earned have certainly born upon themselves a slander and manifest sin.^[762]

A literal reading of this verse suggests that the ‘humiliating punishment’ for blaspheming God and his Messenger rests with God alone, and it is up to him whether he punishes such persons in this world or in the hereafter. Moreover, despite the ill-treatment, disrespect and sometimes even physical interference with his person and Islamic symbols, God instructed the Prophet not to retaliate, because, says God: ‘Indeed, We are sufficient for you against the mockers.’^[763] In other words, God himself is sufficient to deal with those who commit blasphemy against him, the Prophet and religious icons. This view is reinforced when the Prophet is counselled by God: ‘And do not obey the disbelievers and the hypocrites but do not harm them, and rely upon Allah. And sufficient is Allah as Disposer of affairs.’^[764] These verses appear to foreclose any worldly physical punishment in this regard. Yet such conduct is clearly a sin and punishable by God in the next, and possibly even in this, world, but there is no directive to human beings to carry out any punishment. There is certainly no clear instruction to put someone to death.

So on what authority do iterations of Islamic law - and many Muslim nations - impose such stringent penalties for insults to Islam, its icons and personages?

The answer lies in the fact that Islamic law is derived not only from the Qur’an but also from the sunnah (prophetic practices), as well as the secondary sources and methodology of Islamic jurisprudence.^[765] Tradi­tionally jurists mined the seerah and examine hadith literature to deduce prophetic practices.

An incident from the Prophet’s life, to which many point as supporting the death penalty for blasphemy, involves the assassination of a poet.^[766] Ka’b ibn al-Ashraf was a Jewish Medinan poet from the Tayy tribe.^[767] According to a report appearing in the collection of hadith by Sahih al-Bukhari, he wrote poems satirizing Muhammad, defaming and scan­dalizing Muslim women with obscene songs, and eulogizing Quraish (the enemies of Islam). Ka’b was also reportedly upset with the Muslim victory in the Battle of Badr, in March 624, and at the executions of a number of Meccan notables of the Quraish tribe who had been captured after that battle.^[768] Ibn Hashim records Ka’b as saying that ‘if Muhammad has indeed struck down those people, then it were better to be buried in the earth than to walk upon it!’.^[769]

Ka’b even travelled to Mecca to provoke the Quraish and instigate them to take up arms to regain lost honour. The Seerah records the Prophet as stating: ‘He (Ka’b) has openly assumed enmity to us and speaks evil of us and he has gone over to the polytheists (whom the Muslims were at war with) and has made them gather against us for fighting.’^[770] Some sources also suggest that during this visit to Mecca, Ka’b concluded a treaty with Abu Sufyan, stipulating cooperation between the Quraish and Jews against the Muslims.^[771]

The Prophet was reportedly infuriated and gathered his men and asked if any were prepared to carry out an assassination: ‘Who will kill Ka‘b bin Al-Ashraf? He had maligned Allah, and His Messenger.’ Muhammad ibn Maslamah said: ‘O Messenger of Allah, do you wish that I should kill him?’ The Prophet responded: ‘Yes.’ Maslamah then retorted: ‘Permit me to talk (to him in the way I deem fit).’ The Prophet replied: ‘Talk (as you like).’^[772]

Ka’b was later assassinated by a group that included Muhammad ibn Maslamah, ‘Abbad bin Bishr, Al-Harith bin Aws, Abu ‘Abs bin Hibr and Salkan bin Salamah, Ka’b’s foster brother.^[773] On the surface, this appears to justify the death penalty for speaking against the Prophet and God. However, upon closer examination of the historical, political and social context surrounding the incident, this explanation does not stand up to scrutiny. Blasphemy implies a religious offence. It is quite evident from the facts that Ka’b’s opposition to Muhammad was not exclusively or even primarily religious in nature. There were numerous other factors and considerations that may have played into settling on assassination as the solution. Indeed, it is only natural to assume that the political and social dimensions also influenced the Prophet’s decision. Ka’b was an ardent political opponent of the Muslim community of Medina and had even attempted to assassinate the Prophet. The treacherous speech and conduct clearly makes him an enemy of the state and not just a religious critic.

The social and cultural context of the insult to Muslim women also needs to be considered. In fact, Norman Stillman, a scholar on the intersection of Jewish and Islamic culture and history, suggests that we cannot discount the fact that the Prophet may also have been acting in accordance with the norms of the Arab society of that period that demanded retaliation for a slight to a group’s honour.^[774]

Other accounts that may be relied upon to justify the death penalty in the sunnah would be a number of other prophetic sayings (ahadith). There are various accounts from the prophetic tradition that appear to justify death for those who insult the Prophet and certain religious icons.^[775] Though, as noted earlier, two caveats are in order: (1) the authenticity and reliability of these reports would need to be considered and weighed; and (2) there may be more than one interpretation of the report possible as we highlighted with the discussion on the Ka‘b bin Al-Ashraf incident.

These reports became the legal justification for the death penalty for both apostasy and blasphemy in traditional Islamic law. Jurists built on these reports to develop and elaborate the conditions and nature of a new crime of blasphemy in the loose sense of the word. Speaking against the Prophet had become regarded as an intolerable act within the Muslim empire by the third Islamic century. In fact, certain interpretations of Islamic Law even take a more severe view towards reviling the Prophet than they do towards reviling God, ostensibly because the Prophet is no longer in a position to avenge the abuse.^[776] By the beginning of the fourth Islamic century, a consensus had developed among the scholars that the one who insults the Prophet of Islam must be put to death.^[777]

Two points are worth noting here. First, in addition to the primary sources (Qur’an and sunnah) discussed above, the secondary sources (ijma, qiyas and ijtihad tempered and influenced by other legal maxims and principles) of Islamic jurisprudence also factor into the evolutions and formulation of Islamic law. Given this central role of interpretation, inevitably the various schools of Islamic jurisprudence (be they Sunni or Shi’a) would have differences in terms of definitions, nature and punish­ments for blasphemy, much like they have on every other issue. More­over, it also opens up the possibility that differences can be exaggerated and abused, as Liaqat Takim notes:

Given that the exact definition of the terms that denoted blasphemy are not specified in the Qur’an and sunna, sectarian and doctrinal disputes among early Muslims provided subsequent jurists and theologians the opportunity to explore the implications of blasphemy even further. Jurists, scholars and ordinary Muslims who claimed that their own position on Islam was normative, began to characterize dissenting Muslims as apostates, blas­phemers, hypocrites, or unbelievers. Thus, a charge of blasphemy and apostasy was often used to impose or refute certain doctrines or theological positions.^[778]

The second major point to note for our purposes is that Islamic legal scholarship and debate on the question of blasphemy (whether against the Prophet, his companions, God, or religious symbols and icons) increas­ingly had to rely on the concept of apostasy (riddah) and unbelief (kufr), and active opposition or threat to the Muslim community, because the primary source, the Qur’an, was not very instructive, particularly when it came to worldly punishment for mere disbelief or insult. In fact, for instance, the Hanafi school defined blasphemy as an act of infidelity (kufr) while the Malikis treated it as apostasy. Indeed, there is diversity and tension on this issue between and even within all four major Sunni schools and the Shi’a schools.^[779]

While the Qur’an was silent on worldly punishment for both apostasy and blasphemy, the sunnah projected mixed messages and the consensus of juristic opinion began to move towards backing the death penalty for both those who commit apostasy and those who commit blasphemy, with varying definitions, conditions and justifications. Clearly, apostasy and blasphemy are not the same, though many jurists confused and conflated them. Blasphemy usually implies publicly insulting religion, while apos­tasy can take the form of a purely private renunciation of religion, in which case it would not be blasphemy. However, a Muslim who blasphemes in public may be legally deemed an apostate, and so the one offence can morph into the graver offence of apostasy. Much of the juristic discussion took this for granted and the foundations were laid to perpetuate this confusion.

In fact as we noted at the outset, even the terminology of blasphemy itself was not uniformly accepted by classical jurists, and this is evident from the Islamic legal discourse. As Intisar Rabb explains, with the exception of Hanafi jurists who expanded the Islamic doctrine of defamation to a new crime of blasphemy, jurists from the three other Sunni schools and the leading Shi’a school ‘usually declined to hold even intentional jabs at the Prophet or his family to be criminally blasphe­mous, unless they constituted explicit denials of faith of the type outlined in the apostasy laws that meant departure from the laws and war against the community’.^[780]

Ironically, during the medieval Islamic period, proving blasphemy required meeting the high evidentiary standards of the rest of Islamic criminal law. As Rabb notes:

... the elements required to declare speech to be blasphemy... meant dealing with an internally coherent system of laws and folded in cultural, temporal, and jurisdictional standards of propriety and treasonous intent. The impli­cation is that, for most jurists, the blasphemy laws formulated in classical Islamic legal writings could apply only to a Muslim society of earlier times and particular places of shared moral norms according to a narrow set of justifications.^[781]

The evident disconnect between the Qur’anic message of tolerance and reservation of punishment to God and the juristic extrapolations and deviations from this has enabled contemporary jurists and scholars to question the classical positions on blasphemy. As Aslam Abdullah writes: ‘It is time that Muslim scholars from all over the world revisit issues such as blasphemy and apostasy in the light of the Qur’an and sunna rather than falling victim to positions that cannot be substantiated by the divine writ.’^[782]

Indeed there is now a growing chorus of scholars arguing against the death penalty for blasphemy and apostasy. ‘These blasphemy laws have no justification in Islam. These ulema [council of clerics] are just telling lies to the people,’ argues Javed Ahmad Ghamidi, a Pakistani scholar and popular television preacher who had to flee the country for his own safety for his views on this issue.^[783] A former leader of the Jamat-e-Islami Islamic party, Ghamidi, said that it has no foundation in either the Qur’an or the Hadith - the sayings of the Prophet Muhammad. ‘Nothing in Islam supports this law,’ he told a newspaper.^[784]

This position is echoed by Indian-based scholar Maulana Wahiduddin Khan^[785] and prominent Islamic legal scholar Mohamed Hashim Kamali, among others.^[786] Kamali, as we discuss below, notes that there is an assumption that one who blasphemes the essentials of Islam also becomes an apostate. ‘The offence of blasphemy is therefore subsumed under apostasy,’ he explains.^[787] However, he points out that there is no Qur’anic injunction or hadith that says that blasphemy is subsumed by the offence of apostasy, but jurists made the extrapolations based on their social, political and historical considerations.

With an appreciation of the involvement of human agency in deter­mining the divine will on this question and the significance of the relationship between blasphemy, apostasy and disbelief in the minds of many pre-modern or classical jurists, we can move on to a discussion of apostasy. The discussions below on apostasy and hudud are therefore also relevant to the issue of blasphemy in Islam.

II.