Courage to do justice

Published November 3, 2018
The writer is a lawyer.
The writer is a lawyer.

“Cowards die many times before their deaths; The valiant never taste of death but once.” — Julius Caesar

AT one level, the recent Supreme Court judgement in the Aasia Bibi case is simply about the acquittal of Aasia Bibi in an alleged blasphemy case.

But at another level, it is a historic judgement setting the legal and judicial tone for a much larger existential issue facing the country ie whether Pakistan is actually becoming a theocratic state in which vigilantism prevails and religious minorities live in perpetual fear, or whether the judgement is a watershed moment for Pakistan, which could now embark on the road to becoming both an Islamic and a modern constitutional state, with full protection to the religious rights of minorities.

Chief Justice Saqib Nisar’s caution and clarity:

For a case which has brought this country to the point of grave public unrest, the facts of the Aasia Bibi case are chillingly simple. Aasia Bibi, a Christian woman, got into a verbal quarrel with three Muslim women when working in the fields. Aasia Bibi allegedly uttered derogatory remarks against the Holy Prophet (PBUH) and the Holy Quran. This led to the initiation of a criminal case for alleged blasphemy under Section 295-C, Pakistan Penal Code, 1860. The case was lodged by a third party, Qari Muhammad Salaam.

The leading judgement is written by Chief Justice Nisar, who given the sensitivity of this case, has written some 15 paragraphs, spread over 14 pages, to clarify and explain certain preliminary misconceptions and basic legal aspects underlying cases of blasphemy.

Only great judges have the courage to accept the injustices of their own judicial system.

Firstly, the chief justice is at pains to emphasise that blasphemous or disrespectful comments against the Holy Prophet are not permissible at all, both under the law and according to Islamic injunctions. In short, there is zero tolerance for blasphemy.

Secondly, this case does not involve any challenge to the validity of the blasphemy law itself (Section 295-C, PPC, 1860) — meaning that the blasphemy law is here to stay.

Thirdly, the misuse of such blasphemy allegations is also undeniable because since 1990, 62 people have been murdered as a result of mere allegations without a concluded judicial process.

Fourthly, in order to stop such misuse, it is the legal duty of only the state to stop such incidents and no one except the state can punish persons accused of blasphemy.

Fifthly, every accused person even in such serious allegations of blasphemy is innocent until proven guilty through a fair trial.

In short, blasphemy can only be stopped if the proven guilty are punished and not the innocent.

Death sentence on unreliable evidence?:

Given the hype surrounding this case and the fact that both the trial court and high court upheld the death sentence against Aasia Bibi, it would come across as surprising that Chief Justice Nisar’s and Justice Asif Khosa’s indepth and comprehensive assessment of the evidence shows that the conviction and sentence for blasphemy lacks any evidential basis, being based on inconsistent or contradictory evidence, an inadmissible and unproven confession and a mala fide motive to implicate Aasia Bibi because of religious discrimination against her.

Firstly, how can the death sentence be imposed if the witnesses gave testimony which was self-contradictory ie their own pretrial statements before the police repeatedly contradicted their statements during the trial.

Secondly, how can the death sentence be imposed if there are “material contradictions and inconsistent statements of the witnesses” regarding the same facts and incident, ie seven witnesses repeatedly contradicting each other over the same facts.

Thirdly, how can the death penalty be imposed on the basis of a confession, which has neither been proved nor is legally admissible in evidence.

Therefore, the chief justice reached the only conclusion possible that “suspicion howsoever grave or strong can never be a proper substitute for the standard of proof required in a criminal case ie beyond reasonable doubt” and acquitted her.

Feast of falsehood:

Compared to Justice Khosa, Chief Justice Nisar’s dismantling of the prosecution case is gentle.

Justice Khosa, confronted with an extremely doubtful prosecution case, has not engaged in any diplomatic conversation.

For example, about key witnesses he holds that they “had no regard for the truth and they were capable of deposing falsely”.

About the so-called confession of Aasia Bibi at a public gathering, he holds that “was not only an afterthought but was nothing short of concoction and incarnate … replete with glaring contradictions exposing complete falsity of the said part of the prosecution story”.

Resultantly, Justice Khosa goes on to conclude that “even if there was some grain of truth in the allegations levelled in this case against the appellant still the glaring contradictions in the evidence of the prosecution highlighted above clearly show that the truth in this case has been mixed with a lot which was untrue”.

No judge with any sense of law and justice could impose a death sentence on such a “feast of falsehood”.

Judicial regrets:

Justice Khosa’s razor-sharp critique of the prosecution case is combined with remarkable judicial prose, when he appears to regret the imprisonment of Aasia Bibi by holding that “Blasphemy is a serious offence but the insult of the appellant’s [Aasia Bibi’s] religion and religious sensibilities by the complainant party and then mixing truth with falsehood … was also not short of being blasphemous … in the circumstances of the present case she appears to be a person, in the words of Shakespeare’s King Lear, ‘more sinned against than sinning’” [bracket added].

Only great judges with an intense sense of justice have the courage to accept the injustices of their own judicial system.

Despite the potential threat to themselves and the threat of public unrest, Chief Justice Saqib Nisar, Justice Khosa and Justice Mazhar Miankhel have shown unparalleled courage to do justice in this case, and are perhaps the bravest judges this country has seen.

But with this nuclear state, with a huge military establishment, and a cowardly silent majority acting completely helpless against religious extremism despite treasonous and murderous threats against the judges, army and politicians by such extremists, one is forced to painfully consider whether such judicial courage is really of any use.

The writer is a lawyer.

Published in Dawn, November 3rd, 2018


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