Supreme Court on blasphemy

Published November 3, 2015
The writer is a Visiting Fellow at the London School of Economics and Political Science.
The writer is a Visiting Fellow at the London School of Economics and Political Science.

THE killing of Punjab governor Salmaan Taseer by his security guard Mumtaz Qadri, on the allegation of blasphemy and in the name of Islam, was never merely a murder case. It raised fundamental questions regarding the application of the blasphemy law, right to free speech, Islam and violence, and the power of the courts and state in the face of violence committed in the name of religion.

While dismissing Qadri’s appeal against his conviction for Salmaan Taseer’s murder and upholding his death sentence, the Supreme Court, in a judgement authored by Justice Asif Saeed Khosa, deals with the above questions. The judgment is categorical but is characterised by penetrating reasoning; it is concise but clear and courageous and without prejudice.

Findings of the Supreme Court: “The facts of this case are quite simple and straightforward admitting of no ambiguity but the issues posed before us have been made out to appear [emphasis added] existential and of metaphysical proportions involving religious belief and philosophical reflection,” the Supreme Court curiously notes. It is this puzzle which leads to its six principle findings.

Firstly, Mumtaz Qadri doesn’t deny killing Salmaan Taseer but puts up a legal defence to justify the deed. His legal defence is grave provocation (ie Salmaan Taseer allegedly provoked Qadri which led to loss of personal self-control) because of the alleged statements made by Taseer about the blasphemy law in relation to the Asia Bibi case and the alleged conversation between Qadri and Taseer criticising the blasphemy law immediately before Qadri killed him. The court dismissed the factual basis of this legal justification by holding that Qadri had failed to prove these statements as well as the conversation with Taseer, going to the extent of holding that an alleged conversation just before the killing is “nothing but an afterthought”, or in other words, a lie.

The Qadri case is a good example of the civilian justice system’s ability to deal with terrorism cases.

Secondly, the Supreme Court notes that the issue in this case is not about whether or not anyone is allowed to commit blasphemy; in fact, the “real question involved in the present case is as to whether or not a person can be said to be justified in killing another person on his own on the basis of an unverified impression or an unestablished perception that such other person has committed blasphemy”. The answer to this question is provided by the Quranic verses (Surah Al-Hujurat, verse 6; Surah An-Nisa, verse 94; Surah An-Nisa, verse 83), with which the judgement begins. These, according to the Supreme Court, warn against acting on “hearsay without getting his information ascertained, verified”. In other words, Qadri acted on hearsay and acted against Islamic injunctions.

Thirdly, “any call for reform of the law regarding the offence of blasphemy ought not to be understood as a call for doing away with that law and it ought to be understood as a call for introducing adequate safeguards against malicious application or misuse of that law”, is the Supreme Court’s clear answer to the flawed argument that criticising the manmade blasphemy law is blasphemy.

Fourthly, although not a direct question in this case, the Supreme Court also categorically declares that no existing law authorises the killing of someone because he has, or is perceived to have, committed blasphemy. Thus, the doors to justifying extrajudicial killing for blasphemy have been shut.

Fifthly, the court is categorical in its critique against Qadri’s actions, who acted “cruelly and brutally” by pumping 28 bullets causing 32 grievous injuries and acting illegally and against Islamic injunctions by killing a person in his protection as part of his official duty. It is precisely for this reason and to shut the door to “religious vigilantism which may deal a mortal blow to the rule of law”, that the Supreme Court even declined to reduce the death sentence to life imprisonment.

Sixthly, killing people in the name of religion is not simple murder but a terrorist act, the purpose of which is also to terrorise people to prevent the freedom of speech.

Broader implications: Three broad implications follow:

Firstly, debating and changing the blasphemy law to protect against its misuse or misapplication is permissible but the implied message of the Supreme Court is against the repeal of such a law. Thus, the liberals should not misread this judgement.

Secondly, this is not a victory for secularism but the victory of constitutional over militant Islam. This is the broad consensus of the 1973 Constitution, ie enforce Islam but through constitutional and non-violent means. There is no secularism versus Islam divide in Pakistan. Rather the divide is among various interpretations of Islam with or without violence and this case is a major victory for constitutional Islam.

Thirdly, the Qadri case is a good example of the civilian justice system’s ability to deal with terrorism cases involving violence committed in religion’s name — a competent investigation and prosecution, a case which lasted only four years from trial to the last appeal, courageous judgements from the trial court, Islamabad High Court and the Supreme Court, and the accused person given full due process rights with a fair, open and transparent trial and appeal process. Therefore, this case must lay to rest the propaganda in favour of military courts.

Context of courage: While fully recognising the courage shown by judges there is also a strategic context to it. Firstly, to acquit Qadri would mean to encourage disobedience of state authority by state security officials themselves, whose obedience is essential even for judicial action. Thus, the state’s interest in enforcing obedience by state security officials contradicted the requirements of vigilante militant Islam. Secondly, to acquit Qadri would mean to encourage state officials to engage in direct action for enforcing ‘justice claims’. Thus, executive officers inspired by militant Islam were questioning the judiciary’s exclusive authority to do justice, causing the judiciary to strike back.

In essence; though, this case is not about Islam or blasphemy, the Constitution or state authority but rather about the key trends in Pakistan ie settling disputes through violence, loss of state’s monopoly over violence and the judicial fight-back.

The writer is a Visiting Fellow at the London School of Economics and Political Science.

Published in Dawn, November 3rd, 2015

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