Case Studies: The use of blasphemy laws in Pakistan

• 2 July 2011
• Jo Baker
• Published research

This is part of my contribution to ‘Defamation of Religions: International Developments and Challenges on the Ground‘, published by the Social Science Research Network, for the Cairo Institute on Human Rights Studies (CIHRS).

SECTION 3: CASE STUDIES FROM THREE OIC STATES

The Islamic Republic of Pakistan has a majority Muslim population, and has passed some of the world’s strictest national laws on blasphemy and the defamation of religion. Its provisions are established in the Pakistan Penal Code (PPC), its Criminal Procedure Code (CrPC) and its constitution. Many of these provisions were introduced or strengthened between 1977 and 1988 during the reign of military dictator Zia ul-Haq, known for his ‘Islamisation’ of the country, mostly under martial law.[1] Under General Zia, Shari’a Benches were established in the high courts and the Supreme Court (which had the jurisdiction to examine the compliance of domestic laws with Islamic law, even if no complaint was brought before them), and new ordinances reset the parameters of punishment for various offences, including expressions of disrespect to Islamic symbols, the prophet Muhammad, and his family members and companions.[2] One ordinance in particular, Ordinance XX of 1984, amended the PPC to single out the unorthodox Muslim minority group, the Ahmadis, for particular punishment should they ‘outrage the religious feelings of [Pakistan’s mainstream] Muslims’.[3] Few amendments have been made since, and attempts to do so have been met with strong and often aggressive opposition from the state’s powerful conservative religious organisations, as mentioned later in this report. Non-Muslim judges are rare in Pakistan, although there have been exceptions, such as the appointment of Hindu acting Chief Justice of Pakistan, Rana Bhagwandas, in 2007 (now retired) and of a Christian high court judge, Jamshaid Rehmatullah, in 2009.[4]

The following section gives an overview of Pakistan’s laws on religious defamation and blasphemy, including recent amendments, and aspects of the national debate on the repeal of the legislation. It will then examine the use of these laws in five recent cases, while analysing the extent to which the freedom of expression and other fundamental rights and freedoms are protected. The section aims to identify whether Pakistan’s laws comply or conflict with its obligations under international human rights law.

3.1.1. LEGISLATION

The Constitution

Blasphemy laws in the PPC are constitutionally supported by a number of articles in the 1973 Constitution of Pakistan among them Article 2, which declares that ‘Islam shall be the state religion of Pakistan’ and Article 31 which provides for an ‘Islamic way of life’. [5] It should be noted that Article 33, though brief, requires that ‘the state shall discourage parochial, racial, tribal, sectarian and provincial prejudices among the citizens.’

The Penal Code 1860 and the Criminal Procedure Code 1898

The PPC lays down the nature of offences under the law, along with their punishments, while the CrPC is largely procedural, providing machinery for the punishment. The two codes are read together.

Chapter XV of the PPC relates to ‘offences relating to religion’ and two of its articles cover blasphemy and defamation of Islam: 295 addresses the defiling or ‘defaming’ of sacred texts, symbols or persons, with each crime defined by the wrongdoer’s action and intent. Article 295-C, however, specifically reserves the harshest punishment against those who make derogatory remarks against the Prophet; Article 298 governs derogatory remarks against persons holding religious office, and the misuse or ‘misrepresentation’ of the faith, particularly by non Orthodox Muslims.[6]

They read as follows:

295-A. Injuring or defiling place of worship, with Intent to insult the religion of any class:
Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction damage or defilement as an insult to their religion shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

295-B. Defiling, etc, of copy of Holy Quran:

Whoever will fully defiles, damages or desecrates a copy of the Holy Quran or of an extract there from or uses it in any derogatory manner or for any unlawful purpose shall be punishable for imprisonment for life.

295-C. Use of derogatory remarks, etc; in respect of the Holy Prophet:

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 (PBUH) shall be punished with death, or imprisonment for life, and shall also be liable to fine.

298. Uttering words, etc., with deliberate intent to wound religious feelings:

Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both.
298-A. Use of derogatory remarks, etc…, in respect of holy personages:

Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo or insinuation, directly or indirectly defiles a sacred name of any wife (Ummul Mumineen), or members of the family (Ahle-bait), of the Holy Prophet (PBUH), or any of the righteous caliphs (Khulafa-e-Rashideen) or companions (Sahaaba) of the Holy Prophet description for a term which may extend to three years, or with fine, or with both.
Misuse of epithet, descriptions and titles, etc. Reserved for certain holy personages or places.

Any person of the Qadiani group or the Lahori group (who call themselves Ahmadis or by any other name) who by words, either spoken or written or by visible representation:

refers to or addresses, any person, other than a Caliph or companion of the Holy Prophet Mohammad (PBUH), as “Ameerul Momneen”, “Khalifat-ul-Momneen”, “Khalifat-ul-Muslimeen”, “Sahaabi” or “Razi Allah Anho”;

refers to or addresses, any person, other than a wife of the Holy Prophet Mohammed (PBUH), as Ummul-Mumineen;

refers to, or addresses, any person, other than a member of the family (Ahle-Bait) of the Holy Prophet Mohammed (PBUH), as Ahle-Bait; or

refers to, or addresses, any person, other than a member of the family (Ahle-Bait) of the Holy Prophet Mohammed (PBUH), as Ahle-Bait; or

refers to, or names, or calls, his place of worship as Masjid; shall be punished with imprisonment or either description for a term which may extend to three years, and shall also be liable to fine.

Any person of the Qadiani group or Lahore group, (who call themselves Ahmadis or by any other names), who by words, either spoken or written, or by visible representations, refers to the mode or from of call to prayers followed by his faith as “Azan” or redites Azan as used by the Muslims, shall be punished with imprisonment of either description for a term which

may extend to three years and shall also be liable to fine.

298-C. Persons of Qadiani group, etc, calling himself a Muslim or preaching or propagating his faith:
Any person of the Qadiani group or the Lahori group (who call themselves Ahmadis or any other name), who directly or indirectly, posses himself as a Muslim, or calls, or refers to, his faith as Islam, or preaches or propagates his faith, or invites others to accept his faith, by words, either spoken or written, or by visible representation or in any manner whatsoever outrages the religious feelings of Muslims, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.[7]

International Treaties

Pakistan holds a seat on the UN Human Rights Committee and has ratified most of the core international human rights treaties. It newly ratified the ICCPR in June 2010, though with reservations which declare that the provisions of Articles 3, 6, 7, 18 and 19 shall be applied to the extent that they are not repugnant to the provisions of the Constitution of Pakistan and the Shari’a laws. It did not ratify the Optional Protocol. Pakistan is also party to the ICERD, the Convention Against Torture (CAT; also recently acceded to in June 2010), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC).[8]

3.1.2 AMENDMENTS TO THE LAW

In October 1990 the Federal Shari’a Court (FSC), which rules on the conformity of laws with the injunctions of Islam, ruled that Section 295-C of the PPC was repugnant to the religion because it did not deliver the death penalty for acts of contempt against the Prophet. The FSC ruled that 295-C would be amended by the ruling unless the president took action to have the law amended by April of the following year.[9] The only appeal to the Supreme Court, by a Christian bishop in 1990, was addressed and dismissed by the Shari’a Appellate Bench of the court in 2009 because the appellant was no longer alive. The death sentence thus stands, however no judicial executions have yet taken place under this law due to a combination of delay, appeals, and pardons. [10] Since his election President Zardari has made use of his constitutionally authorised power to pardon accused persons, and he and his party, The Pakistan People’s Party (PPP) are seen as moderately sympathetic to religious minorities. However as noted by critics, [11] the arbitrary use of presidential pardons is no replacement for the repeal of weak or discriminatory laws, and should by no means be used as a legal safeguard.[12]

There have been various attempts to lighten this sentence since, due to claims – detailed in the analysis and cases below – that they are frequently misused, yet these have been met by fierce and largely effective political and popular resistance from powerful conservative religious organisations (as has the use of presidential pardons). One criminal law amendment was successfully passed in 2004, which increased the responsibility of the police to investigate the legitimacy of a charge under 295-C.[13] Under this amendment no case of blasphemy can be legally filed without a thorough investigation by an officer ranking no lower than the superintendent of police [see Annex I]. [14]

3.1.3. IMPLEMENTATION

According to data collected by the National Commission for Justice and Peace (NCJP),[15] a human rights body patronised by the Pakistan Catholic Bishops’ Conference, at least 964 persons have been charged with violating these anti-blasphemy clauses between 1986 and August 2009 in Pakistan, while more than 30 such persons were killed extra-judicially.[16] Approximately half of those charged were minorities – Christian, Hindu and Ahmadi – which only make up about 3% of the population, [17] leading to the strong and often cited accusations that the laws are used as a tool of persecution by civilians and officials. The law has been criticised for being too general and requiring too little proof, with procedures that are disproportionate to the severity of the sentence, and little regulation to ensure that correct procedures are followed. Extreme concerns have been put forward from minority rights defenders, including NGOS such as Human Rights Watch and experts within the UN.[18] While visiting Pakistan in 1995, the Special Rapporteur on freedom of religion or belief declared: ‘[…] blasphemy as an offence against belief may be subject to special legislation. However, such legislation should not be discriminatory and should not give rise to abuse. Nor should it be so vague to jeopardize human rights especially those of minorities’[19] Similarly, the Committee on the Elimination of Racial Discrimination, in response to a Pakistan state party report in 2009, ‘expressed its concern about reported infringements of the right to freedom of religion and the risk that blasphemy laws may be used in a discriminatory manner against religious minority groups, who may also be members of ethnic minorities’ and ‘recalled state party’s obligations on freedom of thought, conscience and religion’.[20]

However many non-minority Muslims have begun to be accused and jailed via this law, often amid claims of personal grievance and property disputes (which also often accompany minority cases).  In media reports from 2010 the Federal Minister for Human Rights, Syed Mumtaz Alam Gilani, reported an increase in Muslims using the laws to settle scores with fellow Muslims while chairperson Dr. Mehdi Hasan of the Human Rights Commission of Pakistan (HRCP), an NGO, has said that around 80% of blasphemy charges are false and have arisen ‘because of property issues or other personal or family vendetta’.[21] This was a major reason for the 2004 amendment to the criminal law cited above, which places stricter conditions on arrest procedures for blasphemy. Yet human rights organisations such as Human Rights Watch and the AHRC claim that these are rarely observed, and that police officers continue to bow to pressure from religious conservatives, particularly in rural areas, as indicated by the cases listed below.[22]

Finally it is important to know that vigilantism is of extreme concern in the Pakistan context, as demonstrated in the number of extra judicial deaths and unprosecuted murders of persons on trial for blasphemy, often during mob violence. As previously mentioned, at least 30 persons connected with cases of blasphemy have been murdered since 1986. This challenges one of the main arguments in support of the amendment of 295-C: that it would prevent private citizens from taking the law into their own hands and killing blasphemy suspects.[23] State protection for suspected blasphemers is often inadequate and although they are routinely detained in separate cells to protect them from cell mates, several people accused of blasphemy have been killed in jail. The death toll has also included relatives of the accused and even members of the judiciary involved in blasphemy cases. NGOs report that those who have served sentences or been acquitted of blasphemy charges are usually forced into hiding, or will claim asylum (Ahmadis make up a substantial proportion of successful asylum claims from Pakistan, often on claims of religious persecution). Impunity is common for Muslim civilians or police officers who harass, threaten or harm persons accused of blasphemy, and the slandering of blasphemy victims by other civilians, even when illegal – such as cases in which the loud speakers of Mosques are illegally used, or when death threats are published in newspapers – receives little or no attention from police, though they commonly precede deadly attacks.[24]

i. Current developments

In November 2010 parliamentarian Shehrbano ‘Sherry’ Rehman proposed the Amendments to the Blasphemy Laws Act 2010 in the National Assembly of Pakistan, citing Article 25 of the Pakistan Constitution, which aims for equal protection of all citizens under the law. [25] The Act details sweeping, strong amendments to the two statutory codes, the PPC and CrPC, which would firstly lighten the penalties of blasphemy, and secondly, increase the responsibility of the complainant and allow for the punishment of ‘those making false or frivolous allegations’ under section 295’ or who give rise to ‘any advocacy of religious hatred that constitutes incitement to discrimination or violence an offence.’ Expressing concerns about the strength of Pakistan’s Session Courts, Rehman also suggested that complaints be tried by high courts to ‘strengthen the possibility for justice… under a higher degree of public scrutiny.’[26] Other amendments include the suggestion that a ten-year sentence be reduced to two years under Section 295-A, and that imprisonment to life be reduced to a sentence of up to five years or a fine.[27]

Rehman proposes that the amendments will act as a safeguard against the misuse of the laws, and ensure the protection of Pakistan’s minorities and ‘vulnerable citizens, who routinely face judgments and verdicts at the lower courts where mob pressure is often mobilized to obtain a conviction’. She also used, as further justification, the fact that the laws were ‘man-made’ and introduced via ‘a dictator’s Ordinance, without parliamentary consultation or public debate.’ [28] Ordinances in Pakistan are temporary legal devices.

In November 2010, the Minister for Minorities Shahbaz Bhatti announced that although the repeal of the laws was not being considered, ‘we are considering changing it so that misuse of the law should be stopped.’ [29] However in early December, member of parliament, Aziz Baig, submitted a citizen’s petition which argued that lawmakers did not have the constitutional right to amend laws that related to religion, and Judge Khwaja Mohammad Sharif has ordered the bill to be frozen while the court assesses the legislative authority of parliament over blasphemy laws.[30] The response from many of the country’s orthodox religious groups has also been extremely strong, with ten religious parties organizing a nationwide protest against any possible amendment of the blasphemy laws, in December 2010.[31] Rehman herself has been named in various fatwas since she proposed the amendment to the Act.[32]

Although human rights and minorities rights advocates have welcomed the move to amend the laws, the proposed reforms do not extend to the explicit criminalisation of Ahmadi activities (298-B and C). Furthermore many argue that repealing the laws will not be enough to ensure lasting change. As one commentator, journalist and documentary film maker Beena Sarwar opined in an article published by the AHRC:

The fanatical and misguided mindset cultivated over the past few decades will not disappear by simply repealing 295-C, although this must be done. Embarking on a sensible education policy is also a long-term step that must be taken to stop the rot …The political leadership is responsible for providing police with the training, means and the orders to prevent such violence.[33]

3.1.4. CASES

A. The case of Aasia Bibi

Ms. Aasia Bibi, 45, of Ittan Wali in Sheikhpura district, Punjab province, was sentenced to death by a district and session court judge in Nankana on 8 November 2010 on charges of committing blasphemy in violation of Section 295-B and 295-C of the Pakistan Penal Code; she was also fined Rs300,000.[34] Aasia is a Christian and the case has been strongly taken up by Christian and other minority activists in campaigning against the misuse of the blasphemy laws, as well as by orthodox Muslims who support it.[35] The Governor of Punjab, Salman Taseer, was assassinated on 4 January 2010 allegedly due to his public support of her case and opposition to blasphemy laws, as detailed in the following section.

The defendant, an allegedly illiterate farm worker and part of the only Christian family in her village, was accused of having defamed the Prophet Muhammad on 14 June 2009 in front of Muslim neighbours. According to details of the case as reported widely in the media, the women were involved in a dispute over the collection of water, as well as a small but longer running property dispute.[36] Five days after the incident a local Muslim leader, Qari Salim, began to publicly announce that Aasia had committed blasphemy, and reportedly used the loudspeakers of his mosque to disseminate this judgement and incite a vigilante attack, which though illegal, was not responded to by police.[37] Following this, Aasia alleged that she was badly beaten by other civilians in the village.[38] Although she was initially taken by the Saddar police into protective custody from the scene of the beating, charges of blasphemy (295 B and C) were filed against her in a First Information Report (FIR; a procedural requirement for a criminal case to proceed to court) on 19 June 2010 by the Imam, and no action was taken against her assailants. Aasia has since claimed that she did not meet with any lawyers in jail, and was not accompanied by a lawyer on the day of her verdict.[39]

On 1 November 2010, after Aasia had been in remand (mostly at a prison in Sheikhupura) for more than a year, Judge Naveed Iqbal at the court of Sheikhupura, Punjab, “totally ruled out” the possibility of false implication, saw “no mitigating circumstances”, and sentenced her to death by hanging, also imposing a fine of the equivalent to US$1,100.[40] Her lawyer, SK Shahid, filed an appeal at the Lahore High Court on 19 November and requested a pardon from the Office of the President; President Asif Ali Zardari reportedly asked for a review of the facts of the case from the Pakistani Minister for Minority Affairs Shahbaz Bhatti. [41]On 29 November Khawaja Mohammad Sharif, the chief justice of the Lahore High Court, issued an interim order ruling that while the matter is pending before it, the president may not issue a pardon for Asia Bibi.[42]

Critics such as the AHRC have noted that the case relied only upon Muslim witnesses for the prosecution, and that the investigation was carried out by a low ranking Assistant Sub-Inspector, rather than at least a Superintendent of Police (SP), as required by criminal procedural law since 2004.[43] Pakistan’s National Commission on the Status of Women has also expressed shock over the sentence. Referring to the claim, by Aasia’s lawyers, that the ‘eyewitnesses’ were not present at the time of the allegedly blasphemous incident, Rana Sanaullah, the Punjab Minister of Law, stated that ‘in cases like this of false witnesses, once proof of bad faith has been established, the same penalty should be imposed as that suffered by the innocent victims of false charges.’[44]

Aasia is currently in isolation in Sheikhupura prison, facing threats against her life inside and outside of the prison. Asylum has reportedly been offered to her by the Canadian and Italian governments.[45]

Additional information:
An aggressive public campaign in support of a guilty verdict and death sentence was waged outside the court house throughout the trial, reportedly led by Qari Yaqub, of Jamaat-ud-Dawa (which DOHI News and other media sources have reported as being blacklisted by the UN for suspected terrorist links); this involved the public offer of a reward by a Muslim cleric for the defendant’s assassination, which was widely carried by media but reportedly not credibly investigated by police.[46] At least one daily national newspaper, Nawa-i-Waqt has written an editorial in support of his proposal.[47] It has been reported that representatives of religious organisation Aalmi Majlas-e-Tahuffuz-e-Khatm-e-Nabuat (AMTKN) have threatened the government with a countrywide protest if the accused is shown any clemency by the presidency, and if there are any moves to amend the blasphemy laws.[48]

Critics of the decision, among them the AHRC and Asma Jahangir, who is president of the Supreme Court Bar Association and the former UN Special Rapporteur on freedom of religion or belief, have noted that the judge in this case appeared to be courting popularity with his comments throughout the hearing and the verdict.[49] The late Governor of Punjab, Salman Taseer, initially met Aasia in jail after her sentencing and assured her that he would take her case before the president of Pakistan, advocating her pardon. He then reported harassment by pro-blasphemy law groups such as the country’s most influential Sunni Muslim alliance, the Sunni Ittehad Council,[50] shortly before his assassination on 4 January in Lahore; he is the most high profile figure to be murdered in Pakistan since former leader Benazir Bhutto was killed, and is believed to have been killed by a member of his state appointed security team because of his public stand against the blasphemy laws.[51] His death has sparked both angry riots and strong messages of public support; Time Magazine reports that a Facebook fan page was set up for his suspected killer shortly after the incident. When Pakistan’s Minister for Minorities, Shahbaz Bhatti, raised the issue six months ago, he also claims that he was threatened with death.[52] Debates within the provincial assembly of Punjab have reportedly given a greater platform for rhetoric that supports Section 295 of the PPC, and much less space for dissenting opinion.[53] This mirrors the path of the blasphemy laws themselves, as recently noted by local news editor, Qurat ul ain Siddiqui who states that:‘with the international community ramping up pressure on the government to pardon Aasia and to eventually repeal the blasphemy laws, certain otherwise antagonistic clerics from the Barelvi and Deobandi schools of thought have come together to caution President Asif Ali Zardari over going ahead with the pardon saying the move may lead to “untoward repercussions”.’[54] The defendant’s husband and children went into hiding after having been chased, harassed and threatened in their community, and have not been provided with protection from the state.[55]

The path of this case demonstrates the distinct lack of safeguards in place in Pakistan, throwing the chance of a fair trial for a minority defendant into severe doubt – namely due to the failure to protect the judiciary, lawyers and policy makers from popular pressure and any accompanying aggression. Although as of January 2011 the defendant has been imprisoned in isolation in remand prison for her safety, she remains extremely vulnerable, as do her family. By failing to legally address the mob violence perpetrated against Aasia Bibi, to investigate the public calls for her death by individuals and in the media, or to arrange for official state protection for her family, the state is being seen to extend impunity for these crimes, which will serve to encourage vigilante attacks against accused blasphemers and minorities. By doing so Pakistan fails in its positive obligations under the ICCPR and other international instruments to prevent, punish and protect citizens from discrimination and religious persecution, as detailed in the conclusion to this section. [56]

B. The case of Rashid and Sajid Emmanuel

Rashid and Sajid Emmanuel were shot dead by unknown assailants on the grounds of a Faisalabad courthouse in Punjab on 19 July 2010 during their trial on blasphemy charges, while in handcuffs and in police custody.  The men, members of the minority Christian community, had been assigned minimal police protection despite the escalating violence of riots in the area that had called for their execution.  The case became a rallying cry for Christian and minority rights activists, many calling for the repeal of the blasphemy laws.

Rashid Emmanuel, 32, was a pastor and his younger brother was an MBA student; both men were Christian and lived in a largely Christian community, Daud Nagar in Warispura. On 2 July Rashid was arrested by at least ten uniformed policemen and taken to the Civil Lines Police Station, where he was accused of having published a four-page handwritten pamphlet that criticised Islam and the Prophet Muhammad.[57] The photocopy that he was shown appeared to bear his and his younger brother’s signatures along with their personal details, including their cell phone and national identity card numbers.[58] A complaint had been filed at the station by a Mohammad Khurram Shehzad, a local printer, who reported to have seen the brothers handing out the pamphlets. On this basis the police officers immediately filed an FIR.[59] However the correct procedure was not followed by the Civil Lines police, who since the revision of the procedure under the blasphemy laws in 2004, are obliged to have any blasphemy complaints thoroughly investigated by a superintendent before the filing of an FIR.[60] A sub inspector and an assistant superintendent had been assigned to this case.  When a local leader of the Christian community challenged this, he reported that he was told by the Station House Officer (SHO) that the rules had been relaxed due to pressure from conservative religious groups in the area.[61]

On 3 July the police took Rashid to the Anti Terrorist Court (ATC) for police remand. The ATC  did not have jurisdiction over the crime; the case was therefore refused and he was taken to duty magistrate Mr. Aamir Habib in the Civil Lines jurisdiction.[62] Habib agreed to his two-day remand in police custody, despite the breach of procedure.[63] During this time Sajid Emmanuel, 30, voluntarily submitted to police detention in the presence of a Bishop Joseph Couetts of Faisalabad (as a safeguard against the abuse of police power). Handwriting samples were taken, but the Lahore-based experts brought into the case stated that they could not assess the original evidence because they were photocopied.  According to the Asian Human Rights Commission (AHRC), during the court proceedings the investigating officer told the court that there was no evidence of blasphemy by the brothers, and that therefore the police had no cause to further remand them in custody. Despite the apparent danger, the court ordered that the two men be held in judicial custody until another court appearance in which further orders would be issued.[64]

The brothers reported threats from co-detainees while in detention. Greater threats were issued from outside the prison where groups of organised orthodox Muslim activists began hold marches against the brothers, and later against all Christians in the area. These escalated into street violence and riots, which appear to have been slowly and inadequately addressed by officials in the town, as detailed below. Despite calls for greater protection for the brothers from local concern groups and wider national and regional NGOs, both were fatally shot by unknown assailants as they emerged from the courthouse on 19 July 2010. One officer was also shot and critically injured.[65]

According to local media reports, the Inspector General of Police (IGP) in Punjab suspended both Muhammad Haneef, the Superintendent of the Police (Investigation Branch), and the Deputy Superintendent of the Police due to their ‘failure maintain law and order’, and Prime Minister Syed Yousaf Raza Gilani personally phoned the Chief Minister of Punjab for an appraisal of the situation.[66]On 22 July the  Chief Justice of Lahore High Court, Khawaja Mohammad Sharif, took the exceptional step of suo moto action, ordering a judicial inquiry on the request of the Punjab government, to be submitted to the high court, and appointing a district and sessions judge of the Labour Court in Faisalabad, Sheikh Muhammad Yousaf, as the inquiry judge.[67] In a report to the Chief Justice, Regional Police Officer Faisalabad Aftab Ahmad Cheema admitted that police officers had been negligent despite directions to ensure adequate security for the detainees.[68] This was later supported by documents obtained by national newspaper, The Dawn, including reports from various meetings between the RPO, the district intelligence Committee and the Police Commissioner to discuss the gravity of the case, ensure adequate security and avoid sectarian violence, promising ‘all possible measures’.[69] The meetings also reportedly discussed the consequences of a poor investigation into the case on the community.
Additional Information:

Therefore despite decisions taken by high ranking officers to protect the Emmanuel brothers and conduct a credible investigation into the blasphemy charges against them, the detainees were still not afforded adequate protection, nor were they speedily acquitted. This case exposes the challenges of adequately administrating the blasphemy laws and preventing its abuse, particularly in areas of frequent sectarian conflict.

Faisalabad is the third largest city in Pakistan, after Karachi and Lahore, and is well within the reach and influence of senior law enforcers and policy makers, yet remains a place in which politicians inflame ethnic tensions, and where religious minorities regularly experience high profile persecution yet are afforded minimal protection in the face of mainstream hostility.[70] The city has one of the country’s largest Christian communities, with approximately 100,000 Christians living in the Warispura slum.[71]

As noted by the AHRC and local NGO and media commentators, the security provisions for the two men were minimal: just three police officials, including the investigation officer, were assigned to produce the accused brothers at the court, although the Christian community had already asked the local administration for greater police protection.[72] Prior to the men’s deaths groups of organised Muslim activists had started to rally against the brothers in public, with loudspeakers from a number of mosques used illegally to incite violence against local Christians, along with various other acts of aggression.[73] On 7 July a procession in Warispura included the chanting of slogans against Christians – one of which called for the hanging of Rashid and Sajid –and the windows and doors of a Catholic church were attacked and broken; on 10 July the violence had escalated to the burning of tyres and a call for Christians to be driven from Warispura, and as many left that night with their belongings they were harassed by men on motorbikes. The AHRC claimed that efforts by the local government to quell the protest and mediate with its key leaders reportedly began in the evening of 10 July and were largely ineffective, with a large rally forming the following day, led by Muslim leaders from various religious and political parties (among them Khatme-e-Nabowat, Jamiat Ulema-ePakistan and Namoos-e-Risalat) which reportedly reiterated death threats against the brothers.[74] Commentators also noted that security staff at the gate of the Sessions Court Faisalabad usually confiscate small weapons such as knives and nail-cutters, raising questions has to how guns were allowed inside the court premises.[75]

In July 2010 The Dawn reported that a case under Section 155-C of the Police Order has been registered against the investigation officer and District Superintendent of Police, who was taken into custody, where he secured bail.[76] It also reported that the Federal Minister for Minorities Affairs Shahbaz Bhatti told The Dawn that a communication had been sent to all provincial governments to protect those under trial for blasphemy, inside and outside of jail.[77] The same report noted that there were plans to introduce amendments to the blasphemy laws to prevent its misuse, noting that those who level false charges should also be punished.

Among those condemning the government’s handling of the case was the country’s Human Rights Commission, which declared it ‘a sad reflection on the state’s obligation to protect the lives of all citizens’.[78] Demands by NGOs included the setting up of an inquiry commission headed by a former judge of the Supreme Court, a bill to be tabled aimed at repealing the blasphemy laws on the recommendations of Parliamentary Standing Committees on Minorities, Religious Affairs and Human Rights, and the founding of an autonomous Commission on Minorities under the Prime Minister, rather than under the Ministry of Religious Affairs or Minority Affairs.[79] Rallies were also coordinated by the All Pakistan Minorities Alliance (APMA), the National Director of the Justice and Peace Commission.[80]

C. The case of Zaibun Nisa

According to reports from the media and human rights organisations, Zaibun Nisa, 55 (in July 2010 as reported by Reuters, and aged 60 as reported by the BBC), from Maari Danish Mandan village in Suhala area, was arrested on 16 October 1996 by Sahala police, near Islamabad after a Muslim cleric filed a complaint against her for desecrating a copy of the Quran under Section 295-B of the PPC.[81] Contrary to most English-language media reports, which noted that Nisa then spent the next 14 years in the remand section of a mental hospital in Lahore, a recent interview with the victim in Pakistan’s Express Tribune reports that she remained in jail for nine years and then spent a further five years at the Punjab Institute of Mental Health after a judge in a Rawalpindi sessions court was informed that she had been diagnosed with chronic schizophrenia.[82]

The complainant, Qari Mohammad Hafeez, claimed to have found torn pages of the Quran thrown in a drain, however before the Lahore High Court in 2010, Hafeez stressed that his complaint had been registered against ‘unknown offenders’. Media reports claim that a police official had admitted that Nisa had been arrested to ‘defuse the tension’, after which she had been forgotten about. Nisa’s sister Azizun Nisa informed media that the victim was a divorcee, dependent on her nephews, and that they had arranged for her arrest; Azizun Nisa had been told that her sister had died while police were informed that she did not have relatives.[83] Lawyer Aftab Ahmed Bajwa discovered Nisa and took up her case in 2009, and filed a petition for her release. He claims that an examination had been carried out by a medical board shortly after her arrest that certified her as mentally ill. He has also stated that no evidence was ever produced that linked her to the crime.[84]

This case shows the extent to which the minimal safeguards already built into Pakistan’s blasphemy laws are neither followed nor sufficient, leaving them wide open to abuse by those with authority against those who have none, for various non-judicial ends. In this incident we see the law being arbitrarily used as a tool by those ill equipped to exercise their authority, against an ‘easy target’. As a divorced, mentally disabled woman, financially dependent on her male relatives, Zaibun Nisa is among the most vulnerable social demographic groups in Pakistan. The case illustrates that the blasphemy laws is particularly dangerous in countries without strong, well supported and accountable administrative and legal systems, and in a society in which persons feel too vulnerable to acts of vigilante justice to themselves approach and use the law. This is highlighted by the fact that few if any of those acquitted by the law ever file for damages.[85]

D. The case of the Layahh Ahmadi

Four teenage students and an adult from the Ahmadi minority Muslim sect were arrested on 28 January 2009 in Kot Sultan, a village in the Layyah district, Pujab, on the charge that they had written the name of Prophet Muhammed on the walls of a toilet in the Gulzare Madina Mosque, in village 172/TDA.[86] The complaint, filed by Liaquat Ali, a mainstream Muslim from village 172/TDA, led to the arrest of Mubashar Ahmed, 50; Muhammad Irfan, 14; Tahir Imran, 19; Tahir Mehmood, 19 and Naseeb Ahmed, 16, by Kot Sultan police. The boys were students from grades nine and ten of the Superior Academy in village 172/TDA.[87]

According to local and regional NGOs, among them the Human Rights Commission of Pakistan (HRCP) and the AHRC, police neglected to follow due process in the arrests, with no investigation conducted by a high ranking officer beforehand, and no proof presented that could link the accused to the graffiti.[88] Charges were filed under Section 295-C of the PPC after the detainees had spent approximately four hours in custody. The reasoning and investigation of the FIR were found to be insufficient by a HRCP fact finding team in a report published in February 2009.[89] The report directly cited the  reasoning in the FIR as follows:
A few days prior to the lodging of the FIR, Mr. Muhammad Safdar – a resident of Chak 173/TDA – saw the name of Prophet Muhammad (PBUH) written in the mosque’s toilet. He told the prayer leader, Qari Muhammad Saeed, about the writing. The prayer leader said he knew about the writing and was probing the matter. The prayer leader scratched the name from the toilet’s walls. Thereafter, an employee of Government High School Chak 172/TDA, Shahbaz Qasim, also saw the writing in the toilet. Qasim told his father Noor Elahi Kaulachi who contacted Union Nazim Syed Ghazanfar Abbas. The nazim asked his secretary Mr. Ehsan to probe the matter. Kaulachi, who is a retired teacher, along with residents of villages 171/TDA, 172/TDA, 173/TDA and 174/TDA contacted Syed Iqbal Shah who made a telephone call to police station in-charge who visited the village. When Hakeem Muhammad Hanif, Safdar Mahr and Shahbaz Qasim tried to probe the incident they learned that four students from the Ahmadiyya community — Mohammad Irfan, Tahir Imran, Tahir Mehmood and Naseeb Ahmed – used to offer prayers in the mosque and used the toilets there. Mubasher Ahmed, another Ahmadi, was also seen offering Friday prayers in the mosque. Shahbaz Qasim stopped the Ahmadis from offering prayers in the mosque, due to which they [the accused] tried to create trouble. We [the complainant and other villagers] suspect since these Ahmadis are the only non-Muslims coming to the mosque, therefore they must have committed the offence.

The AHRC, on questioning police officers at Kot Sultan Police Station, also reported that officers admitted to being under the threat of strikes, public aggression and agitation from fundamentalist groups in the neighbourhood, and that they did not begin their investigation for more than a month after the arrests.[90] The HRCP noted that Station Head Officer Khalid Rauf:

[…] conceded that the law requires that an inquiry by a superintendent of police (SP) must be conducted about the occurrence before the registration of a case on charges of blasphemy. However, he added that an SP Investigation had not been appointed to the district for over two years, therefore, an investigation prior to the registration of the case could not be conducted. Now, the SP Investigation of Rajanpur district has been assigned to oversee the investigation of the case. SHO Khalid Rauf said he had visited the village and examined the place of occurrence. He said he found no eyewitnesses or any other evidence in the case and the FIR was based on suspicion about the accused. He said he saw reason in the stance of the complainant and the local residents that no Muslim can write the name of Prophet Muhammad (PBUH) on a toilet’s walls. When asked if an Ahmadi could do such a thing, he refused to answer.

Families of the boys also reported that raiding police had promised to detain the boys for just 24 hours to ease the pressure of Muslim fundamentalists in the area, and that they were given similar reasoning by phone by the district police officer (DPO) of Layyah Police Station, Dr Muhammad Azam, shortly after the charges were filed.[91] The relatives told NGOs that Azam claimed that ‘the group had threatened to close down the whole city and attack the houses of Ahmedi sect members’ and that he was worried about civilian deaths.[92] Shortly after their arrest the accused were transferred from Kot Sultan to Saddar Police Station in Layyah city, before being confined to the judicial wing of the Dera Ghazi Khan district prison on 4 February 2009, where, according to information directly received from Jamaat Ahmadiyya Pakistan, Pakistan’s main Ahmadi community organisation – they remained until 24 April 2010.

During the detention of the suspects the senior superintendent of police (SSP) of Rajanpur, Mr. Pervez Rathore was assigned to conduct the investigation in the neighbouring district and prepare a report that would allow police to submit a challan (case diary) in court. The SSP’s report found that the case had no base and recommended that the accused persons be released, and the report was sent to the Punjab Ministry of the Interior at the end of March 2009, where it remained for a considerable length of time. In May of that year the AHRC wrote claiming that the process had been afflicted by administrative confusion, and was being stalled. [93] The AHRC  stated that ‘on the instruction of the first class magistrate, Layyah, the provincial police have to submit the challan on April 28. However, it was again deferred to May 12. The local police say that they could not submit challan as they are waiting for instructions from the government of Punjab.’[94] At this stage the complainant and his supporters were still reportedly adamant that the Ahmadis be punished on the basis of presumption, while police officers were reportedly reluctant to release the detained boys and man for concerns over their safety in the community. The court found the accused not guilty and released them in July, according to Saleem Ud Din, the director of public affairs and spokesperson for the Jammat Ahmadiyya Pakistan, who informed the authors of this paper that:

A bail petition before Additional Session Judge was moved on their behalf on June 13 2009 which was rejected. Subsequently another bail application was filed with the High Court and the same was accepted on July 07 2009, and after completion of other legal formalities they were released on bail. They joined the court proceeding to face the trial at Layyah where fanatic opponents created [an] adverse and terrible situation for them. Feeling unsafe and danger to the corporus of the accused their lawyer moved an application before the High Court for the transfer of their case to another place. The learned High Court thus transferred their case to Multan where the case proceedings commenced on 03-09-2009 and during various dates of hearing the procedure as laid down in law was completed and finally all the accused who were already on bail were acquitted on 24-04-2010.[95]

Aama notes that it has not been possible for the former accused to return to their neighbourhoods ‘due to the ‘poor law and order situation’.

Additional information:

During the fact finding mission, HRCP members found that around half a dozen families of the Ahmadiyya community lived in 172/TDA, and had done so peacefully for many years. However earlier that year the principal of the village’s Superior Academy had received permission from the prayer leader at Gulzar-e-Madina mosque for the Ahmadi students to offer prayers there. Within a week a villager, Qasim Shahbaz (employed by the local government high school) had objected and obstructed the students, and they had not returned. Approximately ten days after this incident the blasphemy complaint was filed, instigated by Syed Iqbal Shah, who is a ‘local influential and a relative of a National Assembly member from the area’ according to the fact finding report, who ‘preferred to believe the version of the local residents who back his family in the elections.’ The report then emphasises that the Ahmadi minority members are not registered as voters.[96]

In its concluding paragraphs this report later notes that a press conference held by the complainant and his supporters from various illegal religious organisations, ‘shows that undue influence was exerted by religious and political elements to pressure the police into registering a case’ and that ‘almost all the extremists urging action against the Ahmadis are not natives of the village’. NGOs reported that at least one of the students, Mukhtar Ahmed, 15, fell ill with typhoid due to the conditions in remand, and that the boys were denied visits by family.

Various media reports claimed that the Ahmadi population in Kot Sultan was besieged following the incident, with individual acts of harassment, inflammatory posters, calls in the community for their social and economic boycott and public threats by extremists groups of arson of Ahmadi homes. Asma Jahangir, former United Nations Special Rapporteur on freedom of religion and, at the time, Chair of the Human Rights Commission of Pakistan, described the arrests as ‘heinous.’[97]

The case is a clear example of the extent to which law enforcement and the judicial process can be held hostage, weakened and warped by religious and political agitators in Pakistan. Blasphemy laws here remain a tool for those who wish to inflame ethnic tension and persecute minorities, often for their own ends, and Pakistan’s own history of using the blasphemy laws against Ahmadis is well established. For a law that carries a death penalty this is of particularly deep concern.  As noted by Ahmadi News Outlet, The Ahmadiya Times:

[…] successive democratically elected governments have failed to respond to the nationwide persecution of minorities. Since coming to power in 2008, the current Pakistan People’s Party (PPP) government has announced on three occasions that the blasphemy laws will be reformed. It was only after the Lahore attacks against Ahmadis that PPP politicians began drafting legislation that called for harsh punitive measures against those who accuse others of blasphemy without sound proof. Though welcome, such legislation is a disappointing reminder that more radical changes to the constitution, which are needed, will not be effected in the foreseeable future.[98]

Such laws in an apparently ill regulated system can afford no effective national protection for vulnerable persons, and no reliable safeguards other than the repeal of the laws themselves. As noted in the conclusion, the laws again prove contrary to Pakistan’s obligations to protect vulnerable persons under various treaties and obligations under international law.

E. The case of Naushad Valyani

Muslim doctor, Naushad Valyani, was arrested on charges of committing blasphemy on 10 December by police from Cantt police station in Hyderabad, Sindh province. According to the AHRC, Valyani was working in his surgery on 9 December when he was accused of blasphemy by Mohammad Faizan, a medical representative of Pfizer Pharmaceuticals. In reporting the doctor’s account of the incident the AHRC relates that, since the doctor was receiving patients and could not entertain the visitor at the time, he placed his business card in a box beside his desk, however Faizan left the office and shouted that the doctor had committed blasphemy, since the name of the Prophet was written on the business card and the doctor had thrown it in the rubbish bin. Media accounts claims that it is the complainant’s own name ‘Mohammad’ that he referred to, rather than there being a specific mention of the Prophet on the card. According to the AHRC, witnesses at the scene were reportedly satisfied that the box was not a rubbish bin.

Other local media reports have issued a variation of this incident, in which Faizan first issued his blasphemy accusations in an incident the following day on his return to the doctor’s surgery with colleagues, which resulted in a ‘violent quarrel’.[99] The AHRC reports that this group comprised medical representatives from various local and multinational pharmaceutical companies, and that they held a protest demanding the arrest of the doctor on charges of blasphemy. The Commission alleges that the doctor was not well-liked among the representatives due to his support of natural remedies.

The Cantt police complied with the protest demands, Valyani was arrested and his clinic cordoned off. The AHRC notes that the police then neglected to follow the correct legal procedure, or observe the safeguards written into the blasphemy laws, with a junior police officer (an Assistant Sub Inspector of Police) rather than a Senior Superintendent of Police being assigned to investigate the case.[100] The complaint under Section 296-C of the PPC, was publically supported by local religious leaders and, if convicted the doctor would have faced a death sentence. [101] However  according to the Centre For Legal Aid Assistance and Settlement (CLAAS), [102] the investigation did not uncover evidence of intention to blaspheme and, thanks in part to pressure from civil society organisations, the doctor was released on 13 December 2010 and has returned to his practice.

The case was cited in media reports as another example of the lax, ludicrous and selective handling of blasphemy laws in Pakistan, since the complaint was subject to an unreasonably broad interpretation of the law, and clear personal motive. As noted by various media and human rights commentators, a vast proportion of the country’s men are called Mohammad and the name is printed daily on items that are later discarded without religious or legal consequence. The arrest of the accused on such tenuous charges, without evidence or a credible investigation, violates his right to freedom from arbitrary arrest under international law, as enshrined in the ICCPR. It should be noted that Dr. Valyani is from the Ismaili Muslim community, which is a minority religious sect of Shiite origin,[103] and as a member of a religious minority he has rights to be free from persecution and all forms of harassment (which would include legal harassment), under both the ICCPR and the ICERD.

3.1.5. Conclusion

Each case study above clearly demonstrates the ways in which laws that criminalise the defamation of religion, when considered in practice, stand in strong conflict with international human rights standards. As a party to the ICCPR, Pakistan is obliged to uphold the right to free expression and the freedom of religion as detailed in Section One, which includes the positive obligation to prevent rights violations, protect citizens from such violations and to punish those who carry out such violations. Although the state has made reservations to Articles 18 and 19, these reservations do not allow it to go against the purpose and spirit of the Covenant.

As seen in the course of these recent cases, blasphemy laws are commonly misused as a tool of repression: whether against Ahmadi students who wished to worship in a local mosque or a Muslim doctor who wanted to run his practice in a particular, legitimate way. By allowing these laws to be liberally applied the state is failing to uphold its positive obligations. By failing to provide adequate protection to victims and defendants and allowing vigilante actions to be carried out without investigation or prosecution, the state appears to sanction the violence. In many of these cases the significant malfunctioning of the law enforcement authorities led to the arbitrary detention of these persons, which violates Article 9 of the ICCPR.

As party to the ICERD and according to Article 20 of the ICCPR, Pakistan is obliged to protect its subjects from racial or religious hatred. This is an obligation also enshrined in its own constitution,[104] yet cases of blasphemy are predominantly and arbitrarily taken against minority persons,[105] suggesting a systematic form of persecution and legal harassment, waged by the lower levels of the state hierarchy and condoned by the higher levels. Rather than being assessed and dismissed in the initial stages of prosecution (as provided for by the rarely-used 2004 amendment to criminal procedure),  many such cases are overturned at the highest levels of the judiciary.  Each of these has resulted in the traumatisation of the accused (including their subjection to extreme physical danger), and the wasting of national resources. Indeed members of the police force and the lower judiciary themselves appear to be susceptible to prejudices and political interference, which throws strong doubt upon the ability of the judicial system to fairly try such cases, many of which are met with the death penalty.[106] The results of this study make a strong case for the repeal of the laws and their replacement with a campaign of educational programmes promoting religious tolerance and freedom of expression.