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ON July 22, the Supreme Court admitted Aasia Bibi’s appeal against her conviction and death sentence for blasphemy under Section 295-C of the Pakistan Penal Code. The court’s decision to hear the case is welcome; even more welcome would be a hearing, scheduled as soon as possible.
Even if the SC now goes on to acquit Aasia Bibi, she has already spent six years (and counting) in prison (four years on death row); Salmaan Taseer and Shahbaz Bhatti have lost their lives for advocating for her release; and her family has been subjected to continuous threats and harassment, only because of their relationship with someone accused of blasphemy.
This is the truth of how the blasphemy law operates in Pakistan: the accused have to suffer prolonged periods of pretrial detention as they wait for their case to be heard, which in some instances is followed by years in death row cells before their appeals are decided. Delays in trial are common for a variety of offences across the criminal justice system; however, since blasphemy allegations come with a very real danger of extrajudicial killings and attacks in and outside of prison, the anguish of blasphemy accused is further enhanced because of the fear for their lives and their family’s safety. Additionally, since more than 95pc of blasphemy accused are eventually acquitted, the prolonged periods of detention mean innocent people are deprived of their liberty for many years.
Most blasphemy accused are acquitted, but the flawed justice system violates their right to a fair trial.
Even leaving aside the inherent wrongness of these blasphemy prosecutions for violating freedom of expression, freedom of religion, and equal protection of the law, such delays violate the right to a fair trial, which is now recognised as a fundamental right in the Constitution.
Interpreting the right to a fair trial, the SC has held that the intention of the legislature was to “give it the same meaning as is broadly universally recognised and embedded in our own jurisprudence”. A fundamental prerequisite of a fair trial, acknowledged in Pakistani law as well as Articles 9 and 14 of the International Covenant on Civil and Political Rights (ICCPR), a key international human rights treaty ratified by Pakistan, is that trial must be held within a reasonable time.
The right to trial within a reasonable time encapsulates the globally recognised notion that ‘justice delayed is justice denied’. It helps ensure that the presumption of innocence is respected, and the accused is not deprived of his or her liberty without getting a chance at defending him or herself. It also aims to limit the uncertainty faced by an accused person and reduce the likelihood of any stigma attached to the accusation.
The UN Human Rights Committee, established under the ICCPR, has stated that the right to be tried without undue delay relates not only to the time by which a trial should commence, but also the time by which it ends and the final judgment is rendered; all stages, including appeals, must take place within a reasonable time. What constitutes ‘reasonable time’ may vary from case to case, taking into account the complexity of the facts, requirements of investigation, and other external factors such as the conduct of the accused person. If the accused is detained pending trial, the obligation on the state to expedite the trial is even more pressing, since less delay is considered reasonable.
Aasia Bibi was arrested in June 2009 on charges of blasphemy. She was held in pretrial detention for over 16 months before a sessions court found her guilty in November 2010 and sentenced her to death. She appealed to the Lahore High Court (LHC), and it took nearly another four years for her appeal to be decided. In November 2014, Aasia Bibi appealed to the SC, and it took a further eight months for the SC just to admit her case for hearing. By any standard, this period of detention violates her right to be tried within a reasonable time.
Aasia Bibi’s case is not alone. The average time between arrest and trial in blasphemy cases is nearly two years. In many cases, the accused is not granted bail since blasphemy is a non-bailable offence under Pakistani law (where bail is granted at the discretion of the court and cannot be claimed as a matter of right).
In some blasphemy cases, the period of pretrial detention is even longer. Mohammad Sharif, for example, was arrested in 2001, and was convicted for blasphemy by a sessions court in 2005. He was finally acquitted by the LHC in 2007, after spending over six years in prison for a crime he never committed. Another blasphemy accused, Mohammad Arshad, was arrested on charges of blasphemy in 1989 and was convicted by a sessions court in 1993. When the LHC set him free in 1994, an innocent man had already spent nearly six years in detention.
The time taken by high courts to decide appeals is even longer, another three to four years on average. Again, the delay in proceedings has in some cases been even longer: Niaz Ahmed, Maulvi Tahir Aasim, and Mohammad Idrees Rabbani, all waited for nearly six years on death row before their appeals were decided by the LHC and they were all acquitted.
Proponents of the blasphemy law argue that since the judicial process eventually acquits blasphemy accused in a large majority of cases, there is no need for amending the blasphemy law to introduce greater safeguards for accused persons. They forget to take into account the long periods of time blasphemy accused spend in detention, in some cases with the threat of execution hanging over their heads, and the impact this has on their lives, their families, their professions, and their mental and physical well-being. One hopes the SC is mindful of this grim reality, and follows Aasia Bibi’s admission of appeal with a speedy hearing. The blasphemy law in Pakistan is grossly misused, and the prolonged agony of the process facing the accused is yet another aspect of the basic injustice of this law.
The writer is a legal adviser for the International Commission of Jurists.
Twitter:@reema_omer
Published in Dawn, August 15th, 2015
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