4
SINCE the public movement, some years ago, to reinstate former Chief Justice Iftikhar Chaudhry, there has been much talk about judicial independence in Pakistan. The Supreme Court too has often emphasised the importance of an independent judiciary. In a 2012 judgement, it held: “…there could be no democracy without basic human rights and fundamental freedoms as its foundation, and there could be no protection and enforcement of human rights and fundamental freedoms without the existence of an independent judiciary.”
The right to an independent judiciary, however, is often reduced to rhetoric in cases where the accused is alleged to have committed blasphemy. In such cases, not only are doubts expressed about the independence of courts, but the impartiality of individual judges also, at times, is questioned.
In Pakistan, independence of the judiciary is often understood narrowly to only mean absence of political interference. But international standards provide a much broader meaning: judicial independence also encompasses protection of judges, in law and in practice, from threats, harassment, reprisals or attacks, both from state and non-state actors.
Judges who hear blasphemy cases are often harassed.
Judges who hear blasphemy cases are often harassed and threatened to convict the suspects. Some judges have reported receiving letters and phone calls warning them of attacks against themselves and their families if defendants in blasphemy cases are acquitted. Where hearings are public, courtrooms are often packed with hostile crowds, chanting slogans against the accused. Often, these crowds are linked to organised Islamist groups.
Following her visit to Pakistan in 2012, the UN special rapporteur on the independence of the judiciary also expressed concern that judicial independence was under threat in blasphemy cases as judges were “coerced or pressured to decide against the accused”, and had grown “very afraid of public sentiment...”
Recently, Justice Pervez Ali Shah, who presided over the trial in which Mumtaz Qadri was convicted for the murder of Punjab governor, Salmaan Taseer, was forced to leave the country after getting death threats. Mumtaz Qadri confessed he killed Taseer as he believed the governor had defamed the Prophet (PBUH). In 1997, death threats against Justice Arif Iqbal Bhatti were realised: he was killed, two years after he had presided over the trial which resulted in the acquittal of two accused persons in a blasphemy case.
Another fundamental aspect of the right to a fair trial that is often ignored in Pakistan, but is particularly relevant in proceedings involving blasphemy allegations, is the right to trial before an impartial tribunal/judge.
The impartiality of a judge can be defined as the absence of bias, animosity or sympathy towards either of the parties. Under international standards, courts must be impartial, and also appear to be impartial. Thus, judges have a duty to step down from cases in which there are sufficient grounds to question their impartiality.
The vague and overbroad wording of Section 295 (c) of the PPC, which criminalises direct or indirect defiling of “the sacred name of the Holy Prophet”, has, some observers have noted, allowed religious leanings and personal predilections to be reflected at times in judgements, calling into question the impartiality of some judges.
Defence lawyers in blasphemy cases report that judges, particularly in trial courts, can appear to act more like aggrieved parties instead of neutral arbiters. According to them, such judges do not attempt to conceal their sympathy towards the complainant and their disapproval of the defendant, frequently expressing their horror at the alleged blasphemous comments made by the accused.
This bias, at times, is also perceived as being manifested in judgements. In one case, for example, the presiding judge refused to reproduce the alleged blasphemous remarks in his judgement, claiming that doing so would offend the Prophet’s honour.
Another issue of concern is reliance on the religiosity of the parties and witnesses to form an opinion about their testimony. In one case, a judge reasoned that a man with a beard, who seemed to be a “good Muslim”, would not lie. In another case, the testimony of the complainant was rejected on the grounds that he must be lying as “no sane Muslim” could hear blasphemous comments without acting violently. (Here, the complainant had ‘only’ reported the alleged blasphemous conduct to the police.)
The right to a fair trial is a fundamental human right; it is all the more necessary when the accused faces an oppressive law and a hostile social environment, as is the case with Pakistan’s much-abused blasphemy law. The failure of the government, as well as the judicial branch, to provide safeguards to ensure that those accused of blasphemy are given a fair trial before an “independent, impartial and competent tribunal” is an indictment of their commitment to human rights, and their pledge to safeguard the lives and liberty of the people of Pakistan.
The writer is a legal adviser for the International Commission of Jurists.
Twitter: reema_omer
Published in Dawn, April 26th, 2015
On a mobile phone? Get the Dawn Mobile App: Apple Store | Google Play
