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PAKISTAN ratified the International Covenant on Civil and Political Rights (ICCPR) in 2010. One of the most noteworthy human rights achievements since then has been the introduction of Article 10A — the right to a fair trial — in the fundamental rights chapter of Pakistan’s Constitution.
Even though the text of Article 10A does not expressly enumerate all rights given in the corresponding Article 14 of the ICCPR, the Pakistani state — which includes legislative, executive and judicial branches — is now required even directly under domestic law to ensure all persons accused of a criminal offence are ensured a fair trial that meets established international standards.
Under international law, the right to a fair trial includes, among other guarantees, a number of safeguards relating to an effective defence: all accused persons are entitled to a defence lawyer, even when they have no financial means to procure one. This condition helps to ensure equality of arms, a fundamental principle of a fair trial without which an accused would always be at an unfair disadvantage and could not hope to mount an adequate defence. The defence must also be adequate, which means that it must ensure that the defendant’s case is not prejudiced and the judicial process produces a just result.
In blasphemy trials, lawyers’ conduct falls far short of the required standard to ensure a fair trial.
Independent of any considerations and implications that may arise relating to questions of legality, freedom of expression and freedom of religion, one thing is clear: in blasphemy cases, as in all criminal prosecutions, the right to a fair trial must be fully respected. However, this right is typically violated to such an extent in Pakistan that it makes a mockery of the whole purpose of a trial to adjudicate the truth and ensure justice.
To begin with, accused persons in blasphemy cases are often unable to engage a lawyer for their defence. The primary reason for this is the often well-founded fear of intimidation and attacks by ‘interested’ parties (who are at times members of, or supported by, armed Islamist groups). An illustration of this is the unlawful killing of lawyer Rashid Rehman Khan, who was killed after multiple warnings to withdraw from Junaid Hafeez’s blasphemy case. But even before Rashid Rehman’s killing, attacks against defence lawyers in blasphemy cases were commonplace — Rashid Rehman had himself stated in an interview that defending a blasphemy accused in Pakistan was like “walking into the jaws of death”.
The state’s failure to provide any real protection to lawyers facing threats is a breach of its obligation to ensure a fair trial. Lawyers under threat must be adequately protected not just for their own personal well-being, but also to preserve the integrity and effectiveness of the administration of justice. Without lawyers able and willing to provide services as counsel, fair trials cannot be possible. That is why the UN Basic Principles on the Role of Lawyers provide that states must ensure that lawyers are able to “perform all of their professional functions without intimidation, hindrance, harassment or improper interference”.
Another equally important defence guarantee is the obligation on lawyers to, at all times, act freely and diligently in accordance with the law and recognised standards and ethics of the legal profession and to uphold human rights and fundamental freedoms. In blasphemy trials, however, lawyers’ conduct falls far short of the required standard to ensure a fair trial.
One illustration of an inadequate and flawed defence can be seen in Aasia Bibi’s blasphemy case. Aasia Bibi, a Christian woman, was convicted under Section 295-C of the Pakistan Penal Code and sentenced to death in 2010 for allegedly making statements defaming the Prophet (PBUH). The trial court concluded the testimony of witnesses in the case was satisfactory, even though there were glaring differences in their accounts, which the defence counsel failed to duly highlight. In its appellate judgement, the Lahore High Court observed “the defence has not defended its case with the required seriousness as the most relevant aspect of the prosecution case remained unrebutted”. Yet, despite acknowledging possible violations to the right of a fair trial, the Lahore High Court upheld Aasia Bibi’s conviction and confirmed her death sentence.
The shortcomings in defence are not unique to Aasia Bibi’s case. A survey of jurisprudence on the blasphemy provision shows that to ensure a conviction, the complainant does not have to prove the alleged blasphemous statements were insulting to the Prophet by any objective standard, but only has to establish the defendant’s involvement in the alleged blasphemous conduct.
In actual terms, the law against blasphemy is loosely and vaguely defined and applied arbitrarily. As a consequence, the fear of inadvertently committing blasphemy by reproducing the blasphemous comments or by questioning whether the alleged conduct amounted to blasphemy is so high that not just lawyers, even judges hesitate to venture into this territory.
As a result, defence counsel rest their entire defence on proving either that the alleged blasphemous conduct did not take place, or that the accused lacked the capacity to commit blasphemy because of mental disability or juvenility. The prerogative to question whether the alleged conduct amounted to blasphemy, or whether the accused possessed the requisite criminal intent to cause defamation is, de facto, waived. The result is that defendant is denied the effective assistance of counsel.
In Aasia Bibi’s case, for example, prosecution witnesses claimed the defendant had made three specific statements. During the entire course of the proceedings, there was no debate about which of these statements were blasphemous, or what was the “reasonable person” standard in the interpretation of 295-C to meet the threshold of blasphemy. In other cases, even referring to the alleged blasphemous statements as a record of witness testimony has been considered either too risky or taboo.
Section 295-C now carries a mandatory death penalty under Pakistani law — yet accused persons are being convicted and sentenced to death based on unfair trials. The state continues to turn a blind eye to these gross injustices that are permitted to take place under the guise of religious diktat. It is clear that all state institutions — the executive, parliament, and the judiciary — are responsible for these injustices, and urgent reform at all levels is necessary to address the glaring reality of the blasphemy law which continues to intimidate, persecute and deny its victims any real chance at defending themselves.
The writer is a legal adviser for the International Commission of Jurists.
Twitter:@reema_omer
Published in Dawn, July 4th, 2015
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