Lawmaker Sherry Rehman understands the need for a complete repeal of the Blasphemy law -- a complete riddance of this abhorrent and discriminatory law that is used to target usually poor religious minorities (Ahmedis and Christians) on baseless grounds -- Asiya's trial and death sentence is the latest in this macabre parade -- Sherry Rehman's Bill, submitted late November, proposes amendments. She believes these are politically pragmatic and achievable. Demands for a complete repeal will linger in parliament for years, and ultimately be forgotten. While a complete dismantling of this parallel criminal justice system is not exactly around the corner, idealists and radicals must hold their self righteous breaths.
Some of the pertinent changes are as follows.
High Court instead of sessions to try cases, and sessions to investigate and not rush to charges
This change calls for the Sessions Courts to take cognizance of the blasphemy complaint. Legally, cognizance means that sessions judge can take judicial notice of the complaint. The amendment in particular asks that process set forth in Section 202 of the Pakistan Code of Criminal Procedure be followed. S. 202 gives the judge a choice to call for an investigation of the complaint before formally initiating proceedings against the accused. Postponement may be a good thing; it buys times; it may settle emotions -- but it is discretionary. And riled up emotions are not necessarily allayed by judicial delay. Moreover, if the sessions judge does decide, in his or her discretion, to delay process, he/she may then be relying on an already (in some cases) compromised police force or justices of peace to further probe the matter.
The High Court with its increased protections and high profile judiciary would be the arbiters in a blasphemy case rather than (lower court) sessions judges who are more susceptible to threats and coercions. Now a high court does not usually try cases and it is primarily an appeals court. And in this case, it would they be examining evidence and hearing from witnesses as a court of first instance.
Reduction in sentences on blasphemy charges; No more death for derogatory remarks
In the Bill, the sentence for outraging peoples's religious sentiments (Section 295A) is knocked down from ten to two years. The Bill asks that death penalty be removed for derogatory remarks against the Prophet and replaced by a maximum of ten years imprisonment. (S. 295C) And life imprisonment under S. 295B for defiling the Quran is reduced to a maximum of five years. (295 B and C are the contentious blasphemy sections added during Zia's regime)
All noble amendments. Defendant friendly, indigent minded, compassionate. However, all offences are still punishable as crimes though. This is where band aid treatment will not help -- without systemic change, in trial process, jail reform and public consciousness.
These changes do not alter the reality of a prisoner's heightened vulnerability in jail and outside. Most people in jails in Pakistan are under trial and have served more than their charges's maximum. Reports indicate that many accused of blasphemy are mistreated and killed in prison despite the facade of state protection. So it won't help those who languish in jail pre-conviction beyond statutory maximums -- and are subject to hostile prisoners or those outside at the mercy of irate, vigilante mobs.
The Lahore High Court, for example, issued an order to release Zaibunissa, in July 2010 after fourteen years. It makes little difference whether it is two versus ten years or five versus life if cases are going to drag on beyond terrible, irreparable harm to the accused. Two Christian brothers, pastors in Faisalabad who were accused of signing pamphlets with supposed derogatory statements, were killed on the way to the district court. In 2009 incident, mobs meted out out collective vengeance against a Christian community in Gojra for someone allegedly desecrating the Quran. And then the chilling case of Samuel Masih accused of spitting on a mosque wall -- on 24 May 2004, a police constable used a hammer to kill him while he was at a hospital being treated for tuberculosis that he contracted in jail.
Note that (cheerily and in bookish fairness), some older (pre 1986) specific sections (295, 295A, 298) provide equal protection of the law. Christians can file blasphemy charges against those who insult Jesus; Zoroastrians can go to court against people who call them fire worshipers; and Hindus can prosecute for insults too. And fantastically, Ahmadis too (keeping other laws aside) could proclaim that their religious sentiments are hurt when they are labelled non Muslims. Slim chance, though. One study show almost 50% of people charged are not Muslims in a predominantly Muslim country. And the major blasphemy sections are for the protection of a powerful religious majority. Hardly what a modern state with religiously diverse people should be doing if it adhered to its own constitution.
Court should find that the blasphemer blasphemed with a guilty mind
Sherry's Bill seeks to add a certain level of mens rea or guilty mind. Under current law on defamation of the Holy Prophet or a member of his family, prosecution need not prove a guilty mind. (S. 295C) In other words, if the sheer act of blasphemy is proved, it is irrelevant whether the accused did it knowingly or unwittingly. (And remember the accused can be sent to a life in prison or to the death chambers under this current section.) It does not matter that the act or utterance was an accident or inadvertent. By adding the words “maliciously, deliberately and intentionally,” the new law would require that in order to find someone guilty of blasphemy, the court must confirm (beyond reasonable doubt) that the accused acted with intent. It must be the person's aim and objective to defame, and if not, then they were pretty certain their act would be derogatory.
Now changes such as this would excite a criminal law teacher -- inserting a "guilty mind" requirement makes the law less prejudicial to a criminal defendant facing the powerful machinery of justice, and is in line with human rights guarantees of a fair trial especially for a section with draconian penalties. But practically, only a study of cases over the next year after passage can show whether conviction rates would fall as a result of this mens rea injection to the offence, or whether it is simply a nicety of the law.
Person making frivolous complaints may be punished.
This amendment calls for punishing people who bring false or frivolous charges of blasphemy. The severity of their punishment will match the sentences listed for the offence they accuse the innocent person of.
It is not stated at what judicial stage these proceedings would be allowed. If it is after acquittal, considerable time would have elapsed, and would there still be judicial inclination for another arduous trial against the accuser? There is religious zeal that backs a blasphemy case - will there be an equivalent level of informed civil society outrage to bolster a similar prosecution against fraudulent accusers?
It is not stated at what judicial stage these proceedings would be allowed. If it is after acquittal, considerable time would have elapsed, and would there still be judicial inclination for another arduous trial against the accuser? There is religious zeal that backs a blasphemy case - will there be an equivalent level of informed civil society outrage to bolster a similar prosecution against fraudulent accusers?
Inciters - for e.g., the cleric who incited murder of Asiya by offering a reward of Rs. 5 lakhs -- could be punished for up to seven years under the Bill. Good, but arguably the current Pakistani law on incitement already provides recourse against right winged inciters. Nevertheless, it would be a good idea to render this section of the Bill retrospective - i.e., applicable to the offending maulana -- and to incidents preceding the Bill's passage date.
But better still could we add enhanced evidential requirements to file a blasphemy complaint -- increased state protection for the accused.
Ultimately though, what we need is to change hearts and minds -- change the hatefully persecutorial stance of the state that has legally sanctified witch hunts and class and caste based hatred against mostly religious minorities. And to change hearts and minds, the debate must go viral with a strong progressive message - on tv, in law schools (that are already liberal), and in the Urdu press.
But better still could we add enhanced evidential requirements to file a blasphemy complaint -- increased state protection for the accused.
Ultimately though, what we need is to change hearts and minds -- change the hatefully persecutorial stance of the state that has legally sanctified witch hunts and class and caste based hatred against mostly religious minorities. And to change hearts and minds, the debate must go viral with a strong progressive message - on tv, in law schools (that are already liberal), and in the Urdu press.
Kudos to Sherry Rehman for starting the process for change. For this she is inspirational. But Sherry's Law is not perfect. Supporting it simply means we abhor blasphemy law, it does not mean we do not retain the right to critique it and demand complete repeal or more radical changes.
Sadly, Sherry's law will not help Asiya Bibi. The Bill is not explicitly stated as being retrospective. If it were retrospective it would apply to cases even before the act's passage. That would mean that if it passed through parliament, the death penalty would be struck out, and inapplicable in her case as well. She could, however, still get ten years.
Notes:
1. Proposed Amendments: http://marvisirmed.com/?p=1294&utm_source=feedburner&utm_medium=twitter&utm_campaign=Feed:+Marvisirmedcom+(MarviSirmed.Com)
2. The Pakistan Penal Code, http://www.pakistani.org/pakistan/legislation/1860/actXLVof1860.html
3. Pakistan: Code of Criminal Procedure, http://www.oecd.org/dataoecd/53/15/39849781.pdf?contentId=39849782
4. Fact Sheet: http://www.paktalibanisation.com/?p=3570
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