When Pakistan’s Supreme Court acquitted Asia Bibi of blasphemy, the three-member bench made their legal decision by appealing to Islam rather than the Constitution. Amber Darr (UCL) looks at why such a ruling, which is being hailed around the world as a landmark judgement, furthers the cause of the religious right and risks shifting sovereignty in Pakistan from a careful balance between the will of the people and the will of God to God alone.
On 31st October 2018 a three-member bench of the Supreme Court of Pakistan announced the long-awaited decision in an appeal filed by Asia Bibi acquitting her of blasphemy and setting aside her death sentence. The now 47 year old Asia (pronounced Aa-see-aa), a Christian woman from rural Punjab, had been living under the shadow of death since 2010 when the trial court at Nankana Sahib had first ordered her execution. She had appealed this decision to the Lahore High Court, only to have the court confirm it in 2014. The appeal before the Supreme Court was her final recourse.
Asia faced a uniquely uphill battle before the Supreme Court: she not only had to establish errors in the reasoning of the two successive courts that had decided against her, but also had to do so against a backdrop of heightened emotions that had become increasingly charged since her conviction. Indeed, by the time the case reached the Supreme Court there was a cacophony of voices, both Pakistani and international, demanding either Asia’s instant release or baying for her blood.
My reading of the judgement of the Chief Justice of Pakistan Mr. Saqib Nisar and the separate, concurring note of the Senior Puisne Judge, Mr. Asif Saeed Khan Khosa suggests that in arriving at its decision, the Supreme Court aimed to strike a balance between the exigencies of the law and the inflamed religious sentiments in the country. However, in seeking such a balance it revealed its complex and contradictory attitude towards blasphemy, and affected not only the notion of Constitutional rule but also that of Islam in Pakistan.
Before examining the Supreme Court’s decision, it is important to understand what exactly Asia was accused of. According to the court record, on 14th June 2009, Asia had a quarrel with several Muslim women from her village, in which, according to the prosecution, Asia had insulted the Prophet Muhammad. Asia, however, categorically denied making any derogatory remarks and claimed that a quarrel that had started over the fetching of water, had escalated into a heated exchange where both parties had hurled insults at each other.
The record further suggests that the women who quarrelled with Asia had reported the incident to the village cleric and according to the prosecution, Asia had confessed to making the derogatory remarks before him. On 19th June 2009, the cleric had lodged a police complaint, on the basis of which the police had charged Asia for blasphemy under section 295-C of the Pakistan Penal Code 1860 whereby any person who defiles ‘the sacred name of the Holy Prophet’ is punishable by death or imprisonment for life and is also liable to a fine. Asia was, therefore, arrested and produced before the trial court at Nankana Sahib.
The pronounced judgement on 8th November 2010 sentenced Asia to death and imposed a fine of Rs.100,000.00. The case was then referred to the Lahore High Court. The Lahore High Court, however, agreed with the trial court and dismissed Asia’s appeal. Asia’s next stop was the Supreme Court, which admitted her appeal on 22nd July 2015. Throughout this time, Asia continued to languish in jail and as the Supreme Court delayed the hearing of her appeal, fears mounted that its decision would go the way of the courts subordinate to it.
The Supreme Court’s Balancing Act
In arriving at its decision to acquit Asia, the Supreme Court attempted to balance evidentiary, jurisprudential and religious considerations. With respect to evidence, the mandate of the Supreme Court was limited to whatever material was already on record. Interestingly, however, even in the exercise of this narrow remit the Supreme Court identified significant gaps in the evidence that are all the more shocking for having been missed by both the trial court at Nankana Sahib and by the Lahore High Court.
For instance, the Supreme Court noted that the delay of 5 days between the quarrel and the filing of complaint cast a shadow on the ‘truthfulness of the [prosecution’s] story’. It also noted that the complaint had lost ‘its evidentiary value’ because it was filed after the police inquiry rather than before it. Similarly, the Supreme Court found that Asia’s extra-judicial confession was of limited evidentiary value and the extent of the trial court’s reliance on it was unwarranted.
The Supreme Court further observed that at the trial, the prosecution failed to establish Asia’s guilt beyond reasonable doubt. Although the prosecution claimed that Asia had made the blasphemous statements in front of 25 or 30 women, it was only able to produce two statements and even these were inconsistent. It was also odd that although according to the inquiry, Asia had made the derogatory remarks only after her accusers had insulted her religion, this fact was omitted from the police complaint and the testimonies of the witnesses. Similarly, the story of Asia’s public confession appeared to have been inflated as an afterthought.
In evaluating the evidence, the Supreme Court refers to Article 4 of the Constitution of Pakistan which states that it is the ‘inalienable right’ of every Pakistani to enjoy the protection of law and to be treated in accordance with the law.
Interestingly, however, when it comes to discussing fundamental rights of citizens, the Supreme Court refers to the Charter of Madina rather than to the Constitution and draws support from verses of the Quran rather than from articles of the Constitution. For instance, the Supreme Court refers to the ‘fundamental freedom of thought, conscience and belief’ as guaranteed by Islam rather than by Article 9; or it relies on Surah Al-Baqarah for explaining freedom of religion and omits an express reference to Article 20 and cites Surah Al-Maidah rather than Article 10A for establishing the importance of a fair trial.
The reference to Islamic provisions and history is also evident in the Supreme Court’s discussion of blasphemy. Even though it is not asked for its views on blasphemy it begins the judgement by the Kalima-e-Shahadat. It declares that venerating the ‘name of the prophet’ is a ‘foundational principle of the religion’ and cites Allama Iqbal and Hadith in support of this claim. Even Justice Khosa, in making the seemingly secular proposition that all religions must be respected, draws upon verses of Surah Al-Anam rather than from the Constitution or jurisprudence, whether Constitutional or Islamic.
Equilibrium or Epistemological Schizophrenia?
The Supreme Court’s extensive reliance on Islamic verses in this judgement could be dismissed as merely what may be expected in the Pakistani legal context: an attempt to appease outraged extremists or affirmation of the personal faith of the judges. I believe however, that the extent of the Supreme Court’s engagement with religion is not only a reflection of its underlying views about the place of Islam in the legal system of the country but also its understanding of its institutional boundaries and role.
Interestingly, despite holding itself out as a theocratic Islamic state, the relationship between the Constitution and Islam has not always been clear. Although the present Constitution, as initially drafted, was the result of ‘some heavy compromises’ between the religious right and the ‘extreme leftists of the Pakistan People’s Party’, it did not entirely distance itself from secular values and terminology. For instance, Article 227 of the Constitution states that no law shall be enacted which is ‘repugnant to the injunctions of Islam’ but stops short of stating that all laws of the country will flow positively from Islam.
By 1980, as the Islamic right gained momentum, the Constitution was amended to establish the Federal Shariat Court, a specialist institution with the mandate to decide whether or not a law was ‘repugnant to the provisions of Islam’. Whilst the establishment of the Shariat Court created a specialised space for Islamic legal questions, it also created a separation between these and the mainstream legal system which continued to develop according to the social and economic exigencies of the country. Even after 1985, when the Objectives Resolution was made a substantive part of the Constitution, the Constitution simultaneously maintained an Islamic and regular, secular legal system with the Supreme Court at the apex, to hear appeals from both.
Despite the separation in theory between the Islamic and the regular, secular legal system, in practice the lines between the two systems were not always clear. Therefore, whilst the specialised role of the Shariat Court is evident in the judgment of the Supreme Court in the Riba Case when it remanded the case to the Shariat Court with the direction to decide it after ‘.. research and comparative study of financial systems…in the Muslim World’, it is absent from others, such as its judgment in the Ahmadiyya Case. It may be that when a case (such as the Riba Case) arrived at the Supreme Court via the Shariat Court, the Supreme Court deferred to the Shariat Court, whereas when a case (such as the Ahmadiyya Case) arrived via the secular criminal route, but had a religious element, the Supreme Court chose to address religious issues also.
Over time, however, even this distinction gave way and the Supreme Court started referring to Islam more liberally regardless of the context. Therefore, at times references to Islamic history appeared in cases which did not explicitly raise Islamic questions, such as the Anita Turab Case in which the Supreme Court referred to the teachings of Hazrat Ali in discussing good governance. At others, these references appeared in cases, such as the Supreme Court’s 2014 judgment affirming the right of minorities to practice their religion freely which while may be deemed to have an Islamic angle, could easily have been decided by reference to the Constitution alone. In most of these cases, however, the Supreme Court utilised religious arguments to amplify and explain Constitutional principles rather than to supplant them.
In Asia’s case, the Supreme Court goes further. It does not attempt to reconcile Constitutional and Islamic principles and relies almost exclusively upon religious analysis even though the matter had come before it through the criminal/secular route and required the Supreme Court to rule on the fairness rather than the Islamic-ness of Asia’s trial. The appeal certainly did not require the Supreme Court to endorse blasphemy as a crime. However, even if it is accepted that it was necessary for the Supreme Court to address Islamic questions, the manner in which the Supreme Court does so, raises questions regarding its institutional boundaries with respect to the Shariat Court, the extent to which the determination of the Islamic-ness of laws is a mainstream rather than a specialised process; and whether Supreme Court judges, with no specialist training in Islamic law, are appropriately qualified to rule on Islamic issues?
‘Islam is in Danger’
Regardless of how these questions may be answered, they have significant implications for the legal and social concept of blasphemy, the notion of sovereignty in Pakistan, and for the future of Islam itself. With respect to blasphemy, Supreme Court judges may find it difficult to act at once as guardians of the rule of law and ‘lovers of the prophet’. The fact that in Asia’s case the Supreme Court’s attempts to reconcile the two—proclaiming rule of law while extolling Ilm Din—a man who had killed an alleged blasphemer in British India and had been punished for it—as a ‘Ghazi’ and ‘a great lover of the prophet’—renders its pronouncements not only counter-intuitive but also reminiscent of the veneration of Salman Taseer’s murderer Mumtaz Qadri in the wake of the confirmation of his death sentence.
In substituting religious for Constitutional reasoning, the Supreme Court will set a trend of ignoring Constitutional provisions for Islamic verses, close the gap between secular and Islamic provisions of the Constitution, and thereby further the cause of the religious right of shifting sovereignty in Pakistan from the careful Constitutional balance between the will of people and God, to God alone. Whilst it is difficult to foretell the precise repercussions of this shift, it is certain that these will be immense. More worryingly however, is the fact that Islamic parameters will be set according to the personal beliefs of judges rather than by the reasoning of scholars. This will only propagate a populist, emotional version of Islam rather than one based on research and comparative study. Whilst doing so may allow the Supreme Court to pacify extremists, it will keep the country and indeed Islam, in the stranglehold of a formal and moribund version of itself rather than a living and progressive intellectual force envisioned by the founders of the country.
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Amber Darr holds a PhD in Law from University College London (UCL) and is a Senior Research Fellow at the UCL Centre for Law, Economics and Society. She is also a Barrister of Lincoln’s Inn and an Advocate as the Supreme Court of Pakistan. She tweets @AmberMDarr