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Understanding due process

AASIA Bibi, a 45-year old Christian woman, has been sentenced to death, under Section 295-C of the Pakistan Penal Code, for allegedly 'defiling' the Prophet (PBUH). Though Aasia is the first woman to be convicted for blasphemy, Christians, Hindus and hundreds of Muslims have been charged under the statute.

Section 295 is a convenient legal tool to settle petty personal scores, intimidate rival families and practise ill-informed versions of Islam, particularly in small towns and villages. Local judges come under pressure to convict persons charged under the statute with the strident approval of local elders. Over the years, attempts to repeal the statute have provoked stiff opposition from Muslim jurists and invited threats of violence from militant groups. Even Pervez Musharraf, a secular military dictator, could not, for fear of imminent and severe reprisals, repeal the statute. For the same reasons, major political parties are disinclined to correct the blasphemy statute.

Recognising the political difficulties of repealing the blasphemy statute or declaring it unconstitutional through judicial review, this legal commentary explores a different option. We ask that Pakistan's high courts build safety measures around the inherent faults of the blasphemy statute, particularly Section 295-C, which carries the death penalty.

More specifically, we argue that 295-C violates the due process clause of the Pakistan constitution and is repugnant to the Basic Code (the Quran and Sunnah), which, according to Article 227 of the constitution, is the supreme law of the land. In each case, including that of Aasia Bibi, the high courts must interpret and apply the blasphemy statute in ways consistent with the constitution and the Basic Code.

In 2010, Article 10 of the constitution was amended to introduce the due process clause into the criminal justice system. The amendment provides that a person charged with crime is entitled to due process. This due process clause applies to the blasphemy statute as well, securing civil rights in charges filed under 295-C. These protections now mandate more scrupulous applications of the blasphemy statute.

The over-broad language of 295-C punishes with death or life imprisonment any person who “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.” While the punitive part of the statute is lucid, the definition of blasphemy is vague and wide open. And the death penalty for prohibited speech is disproportionate, if not cruel and unusual.

A universal understanding of due process requires that criminal laws be drafted in a clear language for the average person to understand. The due process clause requires a clear and fair notice of criminality. This precision is even more crucial when a crime encroaches upon the right to free speech and to profess religion. The sweeping language of 295-C muddles protected speech with criminal speech.

Aasia Bibi was convicted for allegedly professing that Muhammad is not a prophet as are Abraham, Moses and Jesus. As a Christian, she believes that Abraham, Moses and Jesus are prophets. And as a Christian, she does not believe that Muhammad is God's Prophet. So what she professed was consistent with her core beliefs. No high court can ignore due process and confirm the death penalty of a Christian woman professing her faith. The blasphemy statute does not punish Muslims for denying that Jesus is son of God, a belief of Islam that could be offensive to Christians.

Pakistani high courts cannot apply the blasphemy statute shorn of due process and civil rights. Otherwise, 295-C is an unwary trap for persons such as Aasiya and an unbridled source of power to those charged with enforcing its open-ended mandate. Simply put, 295-C violates fundamental due process rights of life, liberty and freedom of religion protected under the constitution. The courts must apply the blasphemy statute in ways consistent with defendants' fundamental rights.

Most importantly, the blasphemy statute is incompatible with Islamic law. Article 227 states: “All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah [Basic Code].” We submit that 295-C should be interpreted and applied in a manner not repugnant to the Basic Code. Religious minorities enjoy certain immutable rights under the Basic Code, which no positive law can take away.

First, religious minorities are free to practise religion even if their beliefs contradict the basics of Islam. The Quran reaffirms the principle that “there is no compulsion in matters of religion”. An Islamic state's statute cannot dictate what non-Muslims should or should not believe, nor can it rely on capital punishment to silence other faiths.

Second, Pakistan as a Muslim state is obligated to protect the life, liberty, property and dignity of religious minorities. When groups foment persecution of non-Muslims, the state must provide protection and security.

In his own life, the Prophet was verbally and physically abused. In most cases, he appeared forgiving and merciful. Of course, we are not suggesting that Pakistan should allow the defiling of the Prophet. Consistent with the Basic Code, we submit that Section 295-C must be reserved only for malicious attacks on the Prophet and even in such cases, the courts should know that the Basic Code prefers repentance and forgiveness over punishment.

Liaquat Ali Khan is professor of law at Washburn University in Kansas. Jasmine Abou-Kassem is an attorney in Kansas City.


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