When Ahmedias will have the brain to read understand or write a intellectuakl article like that then they will understand .
before that i wont entertain foolish question over & over again
Blasphemy Law: An Academic Investigation
Table of Contents
1.0 Synopsis
1.1 Brief History
1.2 The Law
1.3 Procedure of Analysis
2.0 THE RATIONALE IN FAVOR OF BLASPHEMY LAW
2.1 Argument # 1: The Precedence
2.2 Argument # 2: Estehsan i.e. The Logical Equivalence
2.3 Argument # 3: Philosophical Base I: Reverence of Prophet (pbuh) is an Essential Part of Faith (Qura’n)
2.4 Argument # 4: Philosophical Base II: Disrespect of Prophet Equals Repudiation of Faith (Qura’n)
2.5 Argument # 5: Validity of Law through Ahadith (Traditions)
2.6 Argument # 6: Validity of Law for Non-Muslims
2.7 Argument # 7: The Argument Based on Secular Jurisprudence
2.8 Argument # 8: Recognition of Sanctity of Human Dignity is a Universally Accepted Value
3.0 THE RATIONALE OPPOSING THE BLASPHEMY LAW
3.1 Counter-argument # 1: Qura’n Does Not Specify Blasphemy as a Penal Offence
3.2 Counter-argument # 2: Qura’n Does not Prescribe Capital Punishment for Blasphemy
3.3 Counter-argument # 4: Blasphemy Law Violates the UN’s Universal Declaration of Human Rights
3.4 Counter-argument # 4: The Penalty under Blasphemy Law is Excessive
3.5 Counter-argument # 5: The Procedural and Social Aspects of the Current Law
4.0 REFERENCES & FOOTNOTES
1.0 Synopsis
The objective of this thesis is to explore various aspects of Section 295C of Pakistan Penal Code, which is popularly (or notoriously) known as Blasphemy Law, through a (student) jurist’s perspective. It is not author’s intention to make a political statement rather it is an effort to give an impetus to the readers for a debate. The law will be examined in the light of Qura’n and Sunnah and various principles of Islamic law as well as universally accepted rules of jurisprudence. This discussion encompasses, both, the argument in favor and the counter argument. The thesis is in three parts; first part covers, a brief history of the law, the statement of the Law, and a note on procedure of analysis that we will follow. In the second part we will analyze the synthesis of this law through both canonical as well as secular argument and the third part covers the counter-argument. The arguments in the thesis refer to the footnotes and references that are provided at the end.
1.1 Brief History:
In the subcontinent, the laws on the offences of blasphemy and apostasy had been in practice during the Moghul era as confirmed by the edicts in the Fatawa-e-Alamgiri and various books prior to that. The British repealed the laws in 1860 to facilitate the work of Christian missionaries who came along with them. [Ref: 1]
In Pakistan, the need to re-enact this law arose in 1982-83 when a lawyer named Mushtaq Raj authored a book titled Heavenly Communism, in Lahore and distributed it free of cost at a large scale. This book contained insulting remarks about, Allah, the Holy Prophet (pbuh), other messengers, religious scholars and several religions; which infuriated the Muslims and they took to streets. The World Association of Pakistan Muslims Jurists called an emergency meeting and adopted a resolution against the book and its author. A meeting of the Lahore High Court Bar Association, which was attended by more than five hundred members, unanimously scrapped the membership of Mushtaq Raj. A report with the Anarkali police was registered against Raj on the charge of humiliating religion. [Ref: 1]
The police registered a case under section 295-A, Pakistan Penal Code. At the time there was no punishment in the penal code against a heinous crime like blasphemy. Then religious and political leaders belonging to all schools of thought moved the Federal Shariat Court on July 18, 1983. The court admitted the petition for hearing and issued notices to the attorney general of Pakistan and advocate generals of all the provinces. Religious scholars hailing from all schools of thought appeared before the full bench of the court and produced their oral as well as written arguments before it. After hearing the federal government and the citizens, the court reserved its decision on the petition. [Ref: 1]
In the meantime, another prominent lawyer and human rights activist, Asma Jahangir, uttered insulting remarks for the Prophet (pbuh) at a seminar in Islamabad. The audiences protested and demanded that the advocate withdraw her words and apologize. Asma’s rejection of demands resulted in a pandemonium. When the national Press published the news the next day it provoked the people to come on roads and protest over the incident. The people started demanding enforcement of Hadd (punishment) for blasphemy. The late MNA Mohtarma Nisar Fatima presented a bill in the National Assembly suggesting death for blasphemy against prophet-hood. After long arguments the bill was unanimously adopted by the Parliament on October 2, 1986, and clause 295-C was added to the Pakistan Penal Code. The 1986 version of law prescribed the punishment of death with life term as its alternative. Lawyers and religious scholars again launched a movement and argued that for blasphemy accused deserved only death sentence in Islam (see Counter-Argument #5). After three years of deliberation, the Federal Shari’at Court announced its verdict on October 30, 1990, which stipulates only death penalty for the offence of blasphemy. [Ref: 1]
1.2 The Law:
The Penal Code’s section 295C, reads: “Whoever 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 Mohammed?Peace be upon him?shall be punished with death and shall also be liable to a fine.”
1.3 Procedure of Analysis
A penal offence, by definition, is one, which is prosecutable by state; as compared to civil law in which state acts only as a mediator between two litigants. The statement of any penal law has two components to it:
(i) The statement of offence
(ii) The statement of penalty.
In order to examine a penal law and validate it against certain principles of jurisprudence we come across three possibilities:
a. The statement of offence is valid AND the statement of penalty is also valid.
b. The statement of offence is valid BUT the statement of penalty is NOT valid.
c. The statement of offence is NOT valid.
In the third case, if we prove that the statement of offence is not valid then we do not have to prove the validity of penalty because there cannot be a penalty in case of an invalid or non-existent law.
2.0 THE RATIONALE IN FAVOR OF BLASPHEMY LAW
2.1 Argument# 1: The Precedence
It is a universally accepted principle of jurisprudence that a law enacted by a person or entity of authority can only be repealed or changed by a person or entity that has equivalent or higher powers than that of the person who enacted the law in the first place. This principle is applicable everywhere in our daily lives. For example a disciplinary instruction given by a professor in his class to his students can only be over-ruled by a vice chancellor of the university or an entity that has authority equal to or greater than that of the professor. But a student or a lecturer cannot change it. Similarly, in the matters of governance the legislature or the President have the authority to change an executive order issued by President. This principle of jurisprudence applies equally to the canonical laws as well and has far reaching effects. Hence an order given by God can only be changed by God Himself and not by any other entity. Similarly a Prophet may enact a law on his own prerogative, based on his own Ijtehad (logical reasoning), in the absence of a revelation, and as long as God does not change his law, no one else has an authority to change it unless there is another Prophet who may come and change that law. [Ref: 2]
One must understand that the Islamic law did not descend upon us in just one day; rather it was revealed to us gradually and it took 23 years to complete the message. So a question arises, naturally, as to what was the Islamic law during that interim period. Based on the evidence from Qura’n and history of the Prophet’s time we can say with certainty that whatever was the tradition, or custom or law of the Meccan or Medinite societies became the Islamic law, initially. For example, the prohibition of liquor came years after Prophet’s migration and some of his companions are known to have imbibed before prohibition. [Ref: 2]
Keeping the above discussion in mind, please refer to the Qura’nic verses Al-Anaam (Cattle) 6:83-90, in which after mentioning the names of approximately 20 prophets and messengers Allah states that “??..these are they whom Allah guided, therefore follow their guidance. Say: I do not ask you for any reward for it; it is nothing but a reminder to the nations.” [Ref: 6; tr:Yousafali]
This is an extremely important verse and early jurists in their books on jurisprudence refer to it extensively as “Shara-e-Qable-na” meaning, the law of the previous people (prophets) [Ref; 2]. Through this verse we get an important guiding principle i.e. if the authenticity of previous books (Psalm, Torah and Bible) is confirmed, and neither God nor his Prophet (pbuh) has instructed us otherwise the law stated in those books is our law. We have an obligation to follow it, because of verse 6:90.
Now let’s see what was the law of the previous people, i.e. Jews and Christians regarding blasphemy. We find out that both Old Testament and the New Testament explicitly stipulated capital punishment for blasphemy. It is evident through several books and several verses, which cross-refer with each other [Ref: 4]. For example:
Leviticus 24:16 states: “And he that blasphemeth the name of the LORD, he shall surely be put to death, and all the congregation shall certainly stone him: as well the stranger, as he that is born in the land, when he blasphemeth the name of the Lord, shall be put to death.” The verse cross refers with New Testament: Matt 26:66, John 19:7 .
Acts 6:8 & 7:60 Stephen, a Christian, was found guilty of blasphemy and stoned to death.
It is interesting to note that Jesus (pbuh), himself, was crucified because of his “crime” of blasphemy under Jewish law. See King James Bible; Matt 26:65-67 “Then the high priest rent his clothes, saying, He hath spoken blasphemy; what further need have we of witnesses? behold, now ye have heard his blasphemy. What think ye? They answered and said, He is guilty of death. Then did they spit in his face, and buffeted him; and others smote him with the palms of their hands”
Also keep in mind that in earlier books the punishment for apostasy is prescribed as death, as well. [Ref: 5]
The discussion so far, establishes that there is ?precedence? for the penal aspect of blasphemy. Please bear in mind that “precedence” is a universally accepted rule/practice of jurisprudence, where jurists look for previous laws and regulations to form new ones. [see Ref: 3 for basic principles of Islamic Jurisprudence]
2.2 Argument# 2: Estehsan i.e. the Logical Equivalence
If we further this discussion we come across another principle of Islamic (and Secular) jurisprudence, which is called Estehsan, translated as ‘Logical Equivalence’. It can be explained by an example: In Islamic law the punishment for theft is the Hudd (penalty prescribed by Almighty Himself) of amputation of a hand (limb) of the perpetrator. If we look at this crime closely, we find out that this human behavior is not black and white; there are several gray areas. For example, the statement of penalty of this penal law is specific about the penalty of amputation of a limb but the statement of offence is not clear about what specifically is theft. Should we amputate the hand of a robber who enters into a house by force, holds people in the house hostage on gun point, assaults them and then takes away all their possessions; is the crime of a person who just sneaks into someone’s house while the people of the household were asleep and steals their valuables, equivalent; or a person who is hungry for the past two days and steals a loaf of bread just to satiate his appetite, is he as much culpable as the former two? What about the wife who helps herself every now and then with husband’s wallet? Should their punishment be one and only i.e. amputation? What about coffin thieves or computer hackers; there is nothing specifically written in Qura’n about them either.
From the above discussion we can infer three ideas:
- The concept that there are various degrees of severity of an offence, which may be categorized as a felony or a misdemeanor. The secular and common law jurisprudence also recognize that.
- The second concept that we learn here is that for a jurist it is absolutely necessary to delve deeper into a certain human behavior i.e. he must philosophize this behavior to postulate the statements of offence and prescribe punishment.
- The concept of Estehsan (the Logical Equivalence) gives us an important tool to formulate new laws, as the human society progresses and faced with new predicaments.
Qiyas (Hypothesis and Postulation) is an important element of Islamic as well as secular jurisprudence, which helps in the process of Estehsan [Ref: 3]
Keeping the above discussion in mind now we shall examine the Blasphemy Law in the Islamic jurisprudence. The Muslim jurists of all Sunni & Shiite schools of thought have argued since the earliest times, that blasphemy is a prosecutable offence and prescribed capital punishment for it. Their argument is based on the precedence from “Law of the Previous Books”. They also equate blasphemy with apostasy through logical equivalence. It is logical, because a person who commits an act of blasphemy, in fact renounces his religion, thus he is an apostate. But the severity of the offence of blasphemy exceeds apostasy in the sense that it is not only an offence against Almighty and his Prophet but a crime against society as well. An apostate may quietly change his religion but blasphemy indicates the malicious intent of the perpetrator towards society. It is not difficult from the following two verses to see how the capital punishment for apostasy was derived. Allah commands his Apostle (pbuh) in surah Al-Nisa (The Women) 4:88-89
?Why should ye be divided into two parties about the Hypocrites? Allah hath upset them for their (evil) deeds. Would ye guide those whom Allah hath thrown out of the Way? For those whom Allah hath thrown out of the Way, never shalt thou find the Way. They but wish that ye should reject Faith, as they do, and thus be on the same footing (as they): But take not friends from their ranks until they flee in the way of Allah (From what is forbidden). But if they turn renegades, seize them and slay them wherever ye find them; and (in any case) take no friends or helpers from their ranks". [Ref: 6; tr: Yousafali]
The background [Ref: 7] of these two verses is that there was a group of hypocrites (people who with their tongues used to say that they were Muslims but their hearts were somewhere else; and in fact they tried everything possible to harm Muslims) who refused to go on a Jihad expedition. The true companions of Prophet (pbuh) were divided on the issue of as to how to deal with them. One group stressed that those hypocrites should be killed, whereas other group was of the opinion that they be spared. The Qura’n then guided the Prophet through these two verses and explained that the call for Jihad is a litmus test to identify the hypocrites among his group. These are the people who accepted Islam on their own accord but at the time of test and tribulation they reverted away from Islam.
Further in verse 4:91 Allah says “Others you will find that wish to gain your confidence as well as that of their people: Every time they are sent back to temptation, they succumb thereto: if they withdraw not from you nor give you (guarantees) of peace besides restraining their hands, seize them and slay them wherever ye get them: In their case We have provided you with a clear argument against them.” [Ref: 6; tr:Yousafali]
But not just the call for Jihad is the litmus test, when these people openly renege and renounce faith, but Qura’n further elaborates on the behavior of these people in the time of peace. The background of verse 4:91 is as follows: there were some people in Medina who belonged to the tribes of Assad & Azzan who apparently accepted Islam at the hand of Prophet but when these people used to go back to their own tribes and their people used to ask them as to what was their faith, they used to say that they have their faith in monkeys and scorpions. Their purpose was to keep their espousal on both sides. [Ref: 7]
When we philosophize and infer the basic principles from these two verses (4:88-91), it is not hard to conclude that the punishment for apostasy is death and we can deduce that blasphemy, which is more aggressive form of apostasy, bears the same punishment.
2.3 Argument #3: Philosophical Base I: Reverence of Prophet (pbuh) is an Essential Part of Faith (Qura’n)
When a person insults another person he in fact violates his victim?s sanctity as a human being; it is then up to the victim either to forgive, ignore or to seek retribution. Similarly, when a person blasphemes a Prophet, it is Prophet’s prerogative whether to forgive, ignore or seek retribution. But a Prophet is not an ordinary human being. He is a messenger whose words and actions, when he specifies, is the voice of Almighty and become a law for his followers. Moreover there is a special connection, a bond of love, respect, and discipline that binds his followers to him. So when a blasphemer insults a Prophet, not only he violates the sanctity of Prophet but that of his followers as human beings, as well. Thus an act of blasphemy is an offence not only against the Prophet but the society as well. And when a Prophet passes away he cannot forgive, ignore or avenge the offences committed against his sanctity. But the followers can establish measures to at least discourage such behavior. Since different individuals of a society retaliate differently to the same offence, therefore, an explicitly stated law is required to respond to such offences in a uniform fashion, so that it expresses unanimous outlook of the society. As we know that the act of blasphemy is a repugnant behavior, which might create unrest in the society, and society may act in excess towards the perpetrator, hence a law is required. The following verses provide the philosophical base for the blasphemy law by insisting that the reverence of Prophet is an essential part of faith. Therefore when a person blasphemes he actually renounces his faith and hence the penalty of apostasy may be invoked. We can see from the following verses that Qura’n is explicitly insistent upon Muslims to manifest reverence to the Prophet; it is adamant about respecting his decisions; it commands to help him; and it forbids raising voice in front of him. Obeying and respecting Prophet is equated to having strong faith whereas divine retribution is promised for those who disobey and disrespect Allah’s Apostle [Ref: 7].
4:65 Al-Nissa (Women):“But no, by the Lord, they can have no (real) Faith, until they make thee judge in all disputes between them, and find in their souls no resistance against Thy decisions, but accept them with the fullest conviction.” [Ref: 6; tr: Yousafali]
This important subject is reiterated in the following verses: Al-Fath (Victory) 48:09; Al-Maeda (the table spread) 5:12; Al-Anfaal (Booty) 8:24; Al-Araaf (The Heights) 7:157; Al-Ahzaab (The Coalition); Al-Hujrat (The Private Quarters) 49:1 & 2
2.4 Argument# 4: Philosophical Base II: Disrespect of Prophet Equals Repudiation of Faith (Qura’n)
This argument like argument # 3 also provides the philosophical base to the penal aspect of blasphemy law but with a slight difference. The previous argument was based on the verses that specifically commanded Muslims to obey and respect Prophet (pbuh) whereas this argument is based on the verses, which equate the disobedience and disrespect of Prophet to the repudiation of faith [Ref: 7]. For example, Allah says in verse 2:104 Al-Baqra (The Cow) “O ye of Faith! Say not (to the Messenger) words of ambiguous import, but words of respect; and hearken (to him): To those without Faith is a grievous punishment.” [Ref: 6; tr:Yousafali]
At another place in verse 33:57 Al-Ahzaab (The Coalition), Allah (swt) says: " Those who annoy Allah and His Messenger - Allah has cursed them in this World and in the Hereafter, and has prepared for them a humiliating Punishment." [Ref: 6; tr: Yousafali]
The same subject is re-iterated at several places: Al-Tawba (Repentence)9:61, 65, 66; Al-Noor (The Light) 24:62; Al-Hujrat(The Private Quarters) 49:2.
[Ref: 7; also see Ref: 6 for actual text of these verses].
2.5 Argument# 5: Validity of Law through Ahadith (Traditions)
There are more than one traditions (Ahadith) of the Prophet (pbuh) that tell us that the punishment for both apostasy and blasphemy is death. Both Sunni and Shi’a schools of thought seek guidance from the following tradition [Ref: 8] of Holy Prophet (pbuh) where he is reported to have said that: “Whoever changes his Religion, kill him.”
There are several other Traditions [Ref: 9] where Holy Prophet (pbuh) is reported to have imparted capital punishment for both apostasy and blasphemy.
2.6 Argument# 6: Validity of Law for Non-Muslims
It is clear from the blasphemy-equals-apostasy argument, presented above that for Muslims both offences may bear a maximum penalty of capital punishment. Now a question arises as to what happens if the perpetrator of blasphemy is a non-Muslim. In this case, Muslim jurists have divided non-Muslims into two categories:
(1) People of the book i.e. Jews and Christians (Muslim jurists include Zoroastrians in this category as well, based on a Hadith);
(2) Other non-Muslims who do not belong to the category (1).
In case of People of Book the Muslim Law is based on the Qura’nic verse, Al-Maida (The Table Spread) 5:47 “Let the people of the Gospel judge by what Allah hath revealed therein. If any do fail to judge by (the light of) what Allah hath revealed, they are (no better than) those who rebel.” [Ref: 6; tr: Yousafali]
This verse gives us a guideline that the People of Book should be given autonomy to judge with their own law i.e. the law that Bible and Torah stipulates. And we have seen earlier (section 2.2) that Jewish and Christian canonical laws prescribe capital punishment for apostasy and blasphemy.
Based on the guidelines stipulated by verse 5:47, as discussed above, historically, Holy Prophet and the subsequent Muslim governments gave autonomy (as far as law is concerned) to the non-Muslims in the city state of Medina and elsewhere later, until the end of Ottoman Caliphate [Ref: 10]. However, a non-Muslim citizen was not exempt from the Hadd crimes (for which the punishment is prescribed in Qura?n) The huddud (penalties) for offenses like fornication, slanderous accusation of fornication, drinking of alcoholic beverages (in open), theft, robbery, apostasy, and sedition were the same for all citizens [Ref: 10, p-172]. The Muslim jurists have argued that the Muslim Law is applicable to non-Muslims (other then Christians & Jews) in the cases where there is an interaction between a Muslim and a non-Muslim; in that case the dispute between the two will be decided on the basis of Islamic law. Since blasphemy is a crime that is committed against the Muslim society thus the Islamic law regarding blasphemy is applicable to non-Muslims. This applicability of Muslim Law to non-Muslims have been drawn through the concept of ?logical equivalence? of applicability of divinely mandated Jazzia Tax upon non-Muslim citizens [Ref: 2]
2.7 Argument# 7: The Argument based on Secular Jurisprudence
There is a universally accepted concept in jurisprudence called ?Malicious Intent?. Based on this concept, a vast body of laws has been formulated in every country and every culture in the world. Example of such laws, which are classes of laws in themselves, are the Laws of Tort (in Common law), Laws of Libel and various anti-harassment laws. Certain sub-laws under these laws may even infringe upon an individual’s right of freedom of speech, e.g. a person is not allowed to put his music system out in the porch in the middle of the night and play at full volume. By doing that he is not physically harming anyone but he is torturing his neighbors mentally. Now either he is stupid, mad, or an insensitive moron or he is doing it with a ?malicious intent? to mentally torture his neighbors. It is a courts job to find out what was his intent before prescribing any punishment for his actions. Similarly, under laws of libel one cannot spread baseless rumors (verbal or written) against someone?s character or inseminate unsubstantiated information about a product or a business. The society gives the person and business a right to take the perpetrator to court and seek damages. The court bases its decision after its finding that such crime was committed with ?malicious intent? or not. Similarly, giving someone death threats is also a prosecutable offence; even though no one is dead yet and no one is hurt yet, but court will find you guilty. Your argument that giving someone death threats is your freedom of speech is not acceptable to court. It is up to the court to decide whether you gave that death threat with ?malicious intent? or not.
The point of discussion is that there are certain ?intangible? aspects of human behavior, which must be regulated pre-emptive by law. And society enacts those laws after carefully checking out whether imposition of such law is beneficial for the society at large or not.
Islam is an open religion, there are no taboos, and everything is open for discussion and for scrutiny for all and sundry. And Islam encourages it. There is a tradition of Holy Prophet (pbuh) and I paraphrase it ?The difference (of opinion) is a blessing for my nation?. Islam does not consider anything a taboo. That is why Islam is called the Deen-e-Fitrat (religion of nature) or the religion of nature of man.
Now a question may arise that when everything is open for discussion then why need blasphemy laws? Isn?t Islam then restricting the freedom of speech or open discussion? The answer to that question is, ?malicious intent?. One may argue that there is no such thing as ?malicious intent? but then one may also argue that the Roman Empire never existed.
2.8 Argument# 8 Recognition of Sanctity of Human Dignity is a Universally Accepted Value
Almost all religions in world teach tolerance, respect and acceptance of fellow human beings, as a moral value, to their adherents. All Humanists claim to uphold the same value. But it is Islam, the eternally modern religion, and the first system of values that specifically teach mutual respect, dignity, equality and tolerance to its adherent and gives this value a status of law. The moral cosmography and the set of social values that Islam presents to the human beings has its foundation in the concept of mutual respect and human dignity. Islam recognizes whole mankind as progeny of Allah regardless of race, religion, color, gender, ethnicity or language. Thus it endows human beings the self-respect, dignity, and esteem. [Ref: 16]; and it becomes not only an ethical value but also a law for Muslims. It took 1500 years for rest of the world to recognize that a human being is entitled to honor and dignity, when in 1948, all the nations under the banner of United Nations declared the Universal Declaration of Human Rights.
The Article 12 of United Nation’s Universal Declaration of Human Rights states “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks”. [Ref: 15]
Thus Blasphemy Law recognizes and qualifies a universally accepted human value. Should we exempt prophets from this value?
3.0 THE RATIONALE OPPOSING THE BLASPHEMY LAW
Those people who criticize Blasphemy Law can be divided into two categories:
Category 1: This category consists of those critics whose argument is based on either Islamic edicts or if not then they bring in a parallel human dimension or value to the argument e.g. freedom of speech, or a humanist value etc.
Category 2: This category consists of those critics whose argument is based on the secular values; they totally reject the notion of a law based on canonical principles.
This thesis assumes that the canonical law or Islamic Law is a valid system of justice and governance. Besides, whether we like it or not, the blasphemy law in Pakistan and several other Muslim countries is a reality; real people are being charged, prosecuted, convicted and incarcerated under this law. Therefore, we will not discuss the arguments by Category#2 critics, since it is beyond the scope of this thesis first to prove that the Islamic system of governance and justice is valid and then proving that the blasphemy law is a valid law.
The counter-arguments that are made regarding the validity of Blasphemy Law and a brief discussion on them are enumerated as follows:
3.1 Counter-argument# 1: Qura’n Does Not Specify Blasphemy as a Penal Offence
The argument goes like this “The Holy Qura’n does not specify the act of blasphemy and even that of apostasy as a penal offence. On the other hand, Qura’n specifies restraint and commands boycott of the people who blaspheme, in its verses 4:140 and 6:68 [see Ref: 11 for the text of these verses], therefore, blasphemy law is invalid”.
Comments: It is true that the punishment for neither blasphemy nor apostasy are specifically mentioned in Qura?n, however, various verses do specify blasphemy as a grossly offensive behavior, thus validating, at least, the ‘statement of offence’ of the blasphemy law [see argument 3 & 4]. We have seen that the law was formulated by applying the principles of jurisprudence called ?precedence? and ?logical equivalence" [Argument #1 & #2], however, the verses 4:140 and 6:68 present to us a contradiction. In order to understand this apparent anomaly we must delve deeper into the subject of Quran?ic edicts. Upon a closer examination of the nature of divine verses we find out that they are not equivalent in nature, as any part of speech. Some of the edicts are strict orders, others are suggestive in nature, yet others are propositions; some are just recommendations and some of them are optional. We understand this nature of edicts through the language, context, and the words that are used. A cross-reference is then made with the Ahadith of Holy Prophet (pbuh), which were usually the lectures that followed each revelation. Muslim jurists have thus divided these edicts into five categories. (i) Fard ? those edicts which are mandatory to be acted upon (ii) Mustahib ? Recommendations (iii) Haram ? strictly forbidden (iv) Makrooh ? acts which are permitted but are told to be done only in case of utter necessity (v) Mubah ? discretionary; ok if we do, and ok if don?t. [Ref: 1; p-297]
Keeping this classification in mind if we examine the text of verses 4:140 and 6:68, we find out that the nature of these edicts is that of recommendations. In addition, these verses dictate the behavior of an individual rather than that of a state. It is also very important to read the actual words of the verses. In both verses Prophet (and his disciples) are asked not to sit among non-believers when they mock the “Qura’nic verses”; the verses do not specify the mockery of the Prophet. There is an incredible difference between the two acts. The mocking of verses means mocking an idea, an ideology, a proposition, a set of beliefs etc. whereas mocking the Prophet means mocking a living breathing person who has his own self respect, feelings and dignity as a human being. At this stage it is important to bring into the argument, the widely quoted Qura’nic verse that states " there is no compulsion in religion 2:256". If we look at the statement of the whole verse [Ref: 6] we see that Qura’n first states a list of beliefs and then commands that there is no compulsion in accepting them. There are at least 25 or more verses, which commands Muslims not to compel others in the matter of faith [Ref: 12]. Readers must ask themselves a question if an act of preventing someone from insulting an individual (blasphemy in case of a Prophet) is infringement upon his faith? If it is, then what faith is that?
Both 4:140; 6:68 also tells us that Islam doesn?t suggest “social boycott” of the disbelievers; it only suggests a temporary departure from a sitting where they mock Qura’nic verses until the time they change the subject.
It is important here to point out that there are at least 57 more verses than the two already discussed above, which have direct bearing on the same subject e.g. 28:55; 7:199; 73:10; 25:63; 16:128; 9:47. Qura’n does emphasize in more than 250 verses the forgiveness, forbearance and compassion. It even recommends forgiving the murderers and places this option in the hand of next of kin of the murder victim; then why we have to be so strict about the penalty of blasphemy. The answer to this question is discussed in detail in argument# 3 and it can be summarized in the following words: “Blasphemy is an offence that is committed against a person and also against society. The option of forgiving such offence lies only with that person whereas society is bound to prosecute the offender according to the stipulated law. It is just like the offence of murder; the canonical law recommends next of kin of murder victim to forgive the perpetrator but in the absence of a next of kin society/state is bound to act according to the stipulated law.”
3.2 Counter-argument# 2: Qura’n does not Prescribe Capital Punishment for Blasphemy
Argument states "The capital punishment for blasphemy is too excessive since Qura’n prescribes the capital punishment for only two offences “Whoever kills a person without his being guilty of murder or of creating unrest in the land, is as though he kills the whole of mankind (Al-Ma?idah (The Table Spread) 5: 32)”. In support of this argument a Hadith [Ref: 13] is also presented.
Comments: This in fact is a very strong argument, but the discussion in section 2 where we have shown how laws are made using precedence and logical equivalence, render this argument null and void, especially, if in addition we prove that the blasphemy is an act that creates unrest in the land, then the Hudd (penalty) stipulated in 5:32 may very well be directly applicable. If we take the practical example of Sulman Rushdie affair [Ref: 14; to see an example of the nature of pre-meditated blasphemy with malicious intent] we see that Salman?s acts of blasphemy created worldwide protests from Muslims. Several people lost their lives due to the skirmishes with the law enforcement agencies. In 2001, a Pakistani newspaper, Frontier Post, published a letter to editor which contained disparaging remarks about Holy Prophet, and it resulted in wide spread unrest, property damage and protests in Peshawar and several other cities in Pakistan. From these practical examples it can easily be construed that Muslims have very strong feelings against this perverse act, it does create unrest in the land, thus the Hudd of capital punishment as stipulated in verse (5:32 above) is applicable.
3.3 Counter-argument# 3: Blasphemy Law Violates the UN’s Universal Declaration of Human Rights
Argument states: Since Pakistan is a signatory of the UN’s Universal Declaration of Human Rights, the Blasphemy Law of Pakistan is in direct contradiction of its Article 19 [Ref: 15]. It is also the tradition of Holy Prophet to respect and honor the International treaties; therefore, this law must be abolished. The Article 19 reads, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
Comments: This is basically a ‘freedom of speech’ argument. Apparently, blasphemy law do seem to contradict Article 19 of Human Rights Charter, but once it is proved that a certain speech carried a component of “malicious intent” (see Argument # 7) and it ravaged the respect and honor of a person then such speech violates the Article 12 of this charter (see Argument # 8). The common sense, logic, and general human decency suggest that the respect and honor of a person has precedence over other person’s right to violate it [Ref: 15]. A corollary from this argument might be drawn that the freedom of speech is not absolute.
3.4 Counter-argument# 4: The Penalty under Blasphemy Law is Excessive
Comments: This argument suggests that since the ‘statement of penalty’ part of this law is invalid/inappropriate, therefore, the ‘statement of offence’ becomes invalid. Usually this line of logic doesn’t work in the matters of law; in order to disprove a law one must prove that the statement of offence is invalid (Please see section “Procedure of Analysis”).
When one says that a certain penalty under a law is excessive, it is actually a value judgment on the system of values of the people who enacted that law. It is a comparison. A value cannot be proved right or wrong, though it can only be replaced by a better value, and only if this new value appeals to the rational side and sensibility of the greater number of people.
We will further this argument in the next Counter-argument # 5.
3.5 Counter-argument# 5 ? The Procedural and Social Aspects of the Current Law
As far as section 295C of PPC is concerned, the law has been enacted with the maximum permissible penalty and only that penalty, which is inappropriate according to the Muslim canonical law. As we have discussed in argument # 2 above, a crime can have varying degrees of severity; so a blasphemous comment uttered by an illiterate, in a fit of rage, who has been wronged by a Muslim cleric, for example, may not be equal in severity to the blasphemous comments uttered with pre-meditation and calculation by a learned person e.g. Salman Rushdie, or that of Taslima Nasreen who may very well know that their insults and hate speech may hurt the feelings of countless Muslims and create un-rest in the land [Ref: 14]. Historically, Muslim jurists have upheld this logic as far as cases of apostasy are concerned. For example, all schools of thought agree that an offender of apostasy must be given an opportunity to recant. Only adult, sane, male apostates who have acted freely are to be executed. Women are either imprisoned until they recant (Hannafites and Shi’ites) or are executed (Malikites, Shafi’ites, and Hanbalites) [Ref: 17]. Muslim jurists emphasize that before prosecuting and condemning an apostate, it is necessary officially to discuss the matter with him and to remove his doubts regarding the soundness and reasonableness of the Islamic point of view in the matter concerned. Time is given to the offender for reflection sometimes even for months before finally proceeding with the prosecution. [Ref: 18, paragraph 333]. The Shafii school of thought permits an offender unlimited opportunities to return back to Islam, whereas Malikis and Hanbalis put a limit to how many times an offender may recant. Since the penal law of blasphemy was enacted on the logic of blasphemy-equals-apostasy, the PPC 295C does not have any of such provisions.
It is true that the nature of man has not changed in the past 1500 years, but our understanding of it has improved manifold. At our current level of understanding it will be utterly unreasonable and even inhuman not to provide such provisions in the law; especially when the situation of law and order and that of justice is abysmal in Pakistan. Judges are untrained in Islamic law and jurisprudence; corruption is so rampant that false witnesses could be hired from right inside the courthouses; judges are known to receive bribes through their court staff [Ref: 19]; and the cases remain pending in courts for years. At present, there have been instances where minors and mentally handicapped have also been tried under this law, which is in strict violation of traditional Muslim law.
The former Minister of Law of Pakistan and prominent lawyer, S.M. Zafar, cites the case of Salamat Masih, Rehmat Masih and Manzoor Masih (1995) in his book [Ref: 19] who were accused of writing disparaging and blasphemous remarks on the wall of a mosque and on the pieces of paper and throwing them inside that mosque. The witnesses and plaintiffs, one of whom was the Imam of that mosque, erased the writing on the wall and threw pieces of paper away. They refused to repeat the blasphemous comments in the court even when repeatedly ordered by judge, thinking that they might disrespect Prophet as well. The session court (lower) sentenced the offenders with death penalty, despite the lack of material evidence relying totally on the word of mouth of the plaintiffs. That case should have been thrown out of the court at the first hearing not only for the lack of evidence but also because the witnesses were refusing to put forth the testimony in clear defiance of Qura’nic edicts which specifically forbid witnesses from withholding evidence e.g. 4:135. That was an example of an extraordinary case where a case was decided against defendants without even a shred of evidence. In addition, normally, in cases of blasphemy the courts (in Pak) do not make blasphemous evidence public e.g. the high profile case of Dr. Younis Shaikh (2001); which is in clear violation of Qura’nic injunction. There are several Qura’nic verses that specifically forbid concealment of any evidence e.g. 2:140, 2:283, and 5:106. The Pakistani courts, for fear of public reprisal, are openly defying word of Allah; and this practice, is doing more harm than good. This practice unnecessarily gives an advantage to the critics and opponents of Islam. S.M. Zafar places the blame of this practice of violating canonical as well as general law and principles of justice onto the courts for appointing untrained judges to handle such cases. He also squarely blames it on the public attitude towards such cases where lower court judges become under intense pressure from media and public. The lower court judges for fear of public reprisals, which even includes the courtroom intimidation and death threats by religious extremists, sentence capital punishment to the accused without meeting the minimal requirements of law and justice; that is just to get the cases out of their courts. The accused of course appeal to the upper courts, but that fails the purpose of having courts in the first place. It is also alarming to see the public attitude towards such cases. One of the accused, Manzoor Masih, in the case cited above, was shot and killed in the High Court compound while the others were acquitted after years of deliberation and had to leave the country. Recently, in June '02 one Yousaf Ali aka Yousaf Kazzab, who was on death row for the past 2 years, convicted of blasphemy, was shot and killed by a fellow inmate (a religious extremist also on death row), right inside the jail.
One of the core reasons a society legislates and bind itself within the confine of laws is to discipline its response towards a certain crime. In other words society not only tries to prevent a crime from happening by imposition of law but it also prevents the retaliation of the wronged when a crime is committed against him. Thus societies impose laws to establish order. What good is a law when it cannot deliver justice? Nothing creates more disorder than the injustice. Injustice breeds hate, not only for the perpetrators of the injustice but also for the system itself, even if the system has nothing to do with the plight of the victim. This law thus gives de facto powers to the incompetent, corrupt and unrepresentative state machinery, if not clergy, at par with the powers that church once had, in Europe, in the Middle Ages. The injustices perpetrated by Christian clergy and thus state resulted in the rebellion of the people from the religion and eventually its expulsion from the affairs of the state. Why the laws of nature be any different for Muslims. If we keep on perpetrating injustice, in the name of religion, our fate will not be different from that of Christians of Europe. If as a society and a state we cannot get our act together then it is better to put a moratorium on death penalty until we do. We will be in bigger trouble than rampant apostasy and blasphemy if we keep our prejudices overrule justice. By committing injustice we are not proving that we have real love for our Prophet but we are only proving that we are neither capable nor worthy of protecting the honor of our Prophet (pbuh) and we are only catering to our prejudices and serving our false egos. When we are so unjust in the matters of Allah and his Prophet, what can we expect of ourselves in the matters between each other. While the critics and opponents of Islam criticize blasphemy law for all the wrong reasons, we must come forth and at least put a moratorium on death penalty for all the right reasons. Please keep in mind that second righteous Caliph Omar imposed a moratorium on the Hudd of amputation for theft (which is stipulated explicitly by Allah) during the drought and famine in Egypt. I am closing this thesis with the famous tradition of Holy Prophet (pbuh), who said ?The nations (societies) before you were destroyed, because when a powerful in those societies used to commit a crime they used to look the other way; and when a weak perpetrated the same crime they used to punish him most severely?.
4.0 REFERENCES & FOOTNOTES:
[Ref: 1] Blasphemy Law: Facts and Figures By Muhammad Abdul Haye, Bradford, UK
[Ref: 2] Khutbaat-e-Bahawalpur by Dr. Mohammad Hamidullah; Idara-e-Tehqeeqaat-e-Islami, Islamabad, Pakistan.
[Ref: 3] Islamic Law: Myths and Realities by Denis J. Wiechman, Jerry D. Kendall, and Mohammad K. Azarian
[Ref: 4] King James Reference Bible
Acts 6:11 “Then they suborned men, which said, We have heard him speak blasphemous words against Moses, and against God.”
Acts 7:58-59 “And cast him out of the city, and stoned him: and the witnesses laid down their clothes at a young man’s feet, whose name was Saul. And they stoned Stephen, calling upon God, and saying, Lord Jesus, receive my spirit.”
Mark 14:62: “Jesus was accused of blasphemy. The high priest asked Jesus Art thou the Christ, the Son of the Blessed?. Jesus replied I am: and ye shall see the Son of man sitting on the right hand of power, and coming in the clouds of heaven. Matthew 26:64 and Luke 22:70 contradict Mark’s account; they record Jesus as sidestepping the question. However, Christ was still found guilty of blasphemy.”
Matt 19:7 " The Jews answered him, We have a law, and by our law he ought to die, because he made himself the Son of God."
[Ref: 5] Quoting from the King James Version of the Bible :
Jehovah required the state to execute a person:
For following another religion: Exodus 22:20 states: He that sacrificeth unto any god, save unto the LORD only, he shall be utterly destroyed. See also and Numbers 25:1-15.
For proselytizing (conversion): Deuteronomy 13:1-10 states that a person who tries to convince an Israelite to convert to another religion must be killed.
[Ref: 6] The Noble Qura’n ? translation by Yousafali, Pickethall, and Shakir with introduction to the chapters by Syed Abul Ala Mawdudi
[Ref: 7] Kanz-al-Imaan, Tafseer (explanation) by Syed Mohammad Naeem-ud-din Muradabadi, written as footnote with the translation of Qura’n by Aala Hazrat Ahmad Raza Khan Quadri Brelvi (RAH)
[Ref: 8] Bukhari writes in his book 9 chapter 19 and also in his “Kita?b al-Jiha?d wal-Siyar”, “Kita?b istitabah al-murtaddi?n” and “Kita?b al-ai`tisa?m bil-Kita?b wal-Sunnah”
[Ref: 9] Abu Dawood has quoted several Ahadith mentioning punishment for apostasy and blasphemy in his book Prescribed Punishments (Kitab Al-Hudud) Book 38, Ahadith # 4345; 4346; 4348; 4349; 4356 and 4357. The hadith # 4357, that follows 4356 is worth noting. These Ahadith can be viewed here.
[Ref: 10] Human Rights in Islam by Dr. Parveen Shaukat; Adam Publishers, Delhi India; also A.S. Tritton in his book ?The Caliphs and their non-Muslim Subjects? says that the offences of fornication with a Muslim woman or an attempt to marry one, an attempt to pervert a Muslim from his religion, acting as a spy or a guide to the unbelievers and killing of a Muslim man or woman made a Non-Muslim citizen an outlaw. P-16
[Ref: 11] Al-Nissa (The Women) 4:140 ?And indeed He has revealed to you in the Book that when you hear Allah’s communications disbelieved in and mocked at do not sit with them until they enter into some other discourse; surely then you would be like them; surely Allah will gather together the hypocrites and the unbelievers all in hell (tr: Shakir)
Al-Anaam (Cattle) 6:68 ?And when you see those who enter into false discourses about Our communications, withdraw from them until they enter into some other discourse, and if the Shaitan causes you to forget, then do not sit after recollection with the unjust people.? (tr: Shakir)
[Ref: 12] “There is no compulsion in religion”, the theme is reiterated in these verses 16:82; 6:107; 4:79,80; 11:28; 17:53 to 54; 21:107 to 109; 22:67; 88:21,22; 24:54; 48:28; 36:16, 17; 39: 41
[Ref: 13] Abu Dawood in his book Prescribed Punishments (Kitab Al-Hudud) Book 38, Number 4339: Narrated Aisha, Ummul Mu’minin: The Apostle of Allah (peace_be_upon_him) Said: The blood of a Muslim man who testifies that there is no god but Allah and that Muhammad is Allah’s Apostle should not lawfully be shed except only for one of three reasons: a man who committed fornication after marriage, in which case he should be stoned; one who goes forth to fight with Allah and His Apostle, in which case he should be killed or crucified or exiled from the land; or one who commits murder for which he is killed.
[Ref: 14] Mis/Representations of Islam: A Study of Salman Rushdie’s The Satanic Verses, and ‘The Rushdie affair’ Written by Ismail Isa Patel (London, England: May 1998)
[Ref: 15] United Nation’s Universal Declaration of Human Rights
[Ref: 16] The Last Sermon of Holy Prophet (pbuh)
[Ref: 17] Muhammad Ali, The Religion of Islam (nd), pg. 591-99; S.M. Zwemer, The Law of Apostasy in Islam (1924); Burhan al-Din Ali, The Hedaya, etc., Hamilton, (1791), II, 227. (F.M. Denny)."
[Ref: 18] The Muslim Conduct of State by Dr. Mohammad Hamidullah
[Ref: 19] Mere Mash?hoor Muqaddamay by S.M. Zafar; Chapter: Adalat nay ek mauqa kho diya; Bright Books, Lahore, Pakistan.
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Wohi Hota Hai Jo Munzoore Khuda Hota Hai … :nahnah:
Tommorow they’ll come complaining about why their kids are being fed the non-ahmedi version of Islam in their schools, or some other form of discrimination.