Asia Bibi v. The State: the politics and jurisprudence of Pakistan’s blasphemy laws

Abstract

This paper provides a critical appraisal of the Supreme Court judgement in the long-running and infamous case against Asia Bibi, a Pakistani Christian woman, accused of blasphemy in 2009. While the judgement is hailed as a landmark ruling, this paper argues that apart from acquitting the accused, it changes little else in the political and legal landscape of the country. The judgement relies on colonial assumptions about the nature of religious conflict in order to defend the blasphemy laws of Pakistan. This approach of the court tacitly affirms the discourses on the Islamic identity of the state that justify the marginalisation of religious minorities. The judgement reinforces the death penalty for blasphemy even as it recognises the almost ubiquitous misuse and problematic nature of Section 295-C of the Pakistan Penal Code. The court defends both the existence and the perpetuity of blasphemy laws pre-eminently on religious grounds rather than the constitution. This magnifies the grievances of Muslims ahead of the objections and concerns religious minorities in Pakistan have long raised. The court fails to seriously engage with the question of how the constitutional rights and liberties of religious minorities can be preserved so long as the law continues to endure.

Keywords:

• Pakistan
• Islam
• blasphemy
• Islamisation
• supreme court
• constitution

Acknowledgements

The author would like to thank the anonymous reviewers for their invaluable suggestions and expert advice; the paper is richer for their contribution. The author owes thanks to Reyhan Unal and Sara Ahmed for their insightful comments and pointed observations on earlier versions of this paper. The author would also like to express his sincerest gratitude to Brian Carroll for his encouragement and assistance towards the completion of this article.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 Asia Bibi v. The State PLD 2019 SC 64.

2 Hasan, “After the Aasia Bibi Verdict.”

3 Gomes, “Pakistan’s Christians.”

4 Siddiqui, “These 7 Points Explain.”

5 Gannon, “Pakistan Upholds Acquittal.”

6 Siddique and Hayat, “Unholy Speech and Holy Laws,” 305.

7 Malik, “Blasphemy: A Crime,” 40.

8 Rais, “Identity Politics and Minorities in Pakistan,” 121.

9 Shakir, “Islamic Shariah and Blasphemy Laws in Pakistan,” 309–11.

10 Gregory, “Under the Shadow of Islam,” 196–97.

11 Siddiq, “Enforced Apostasy,” 316.

12 Rahman, “Pakistan’s Policies and Practices,” 308–09.

13 Siddique and Hayat, “Unholy Speech and Holy Laws,” 305.

14 See sources cited in notes 6 to 13 inclusive.

15 Saeed, Politics of Desecularization, 46.

16 Qasmi, Ahmadis and the Politics of Religious Exclusion, 98. See also Chandavarkar, Imperial Power, 219.

17 On colonial assumptions about religion in India, see Qasmi, Ahmadis and the Politics of Religious Exclusion, 135–37. The deliberations on the constitutional shape of the new state were held within the parameters and assumptions set under colonial rule. For details on these debates, see Khan, Constitutional and Political History of Pakistan, 57–63.

18 On the reproduction of colonial legal technologies in postcolonial Pakistan, see Stephens, Governing Islam, 152–54; Giunchi, “Reinvention of ‘Sharī’a,’” 1136. The adverse political and social impact of Zia’s Islamisation programme have been well documented, see for example Weiss, Islamic Reassertion in Pakistan; Shaheed, “Contested Identities,” 857; Saeed, Politics of Desecularization, 107–44.

19 On separate electorates as an instrument of divide and rule in colonial India, see Copland, India 1885–1947, 27–8; Gould, Hindu Nationalism, 44. On the complex history of separate electorates in Pakistan, see Rais, “Identity Politics and Minorities in Pakistan,” 111–25; Pirzada, Politics of the Jamiat, 23.

20 On the distinctions between the classical shari’a and modern Islamic state laws see Melchert, Formation of the Sunni Schools of Law, xiii; Jackson, Islamic Law and the State, xv; and Quraishi-Landes, “Islamic Constitutionalism”, 560. Regarding the modernisation of Islamic law in South Asia and its consequences for the classical Islamic legal tradition and colonial Indian society, see Giunchi, “Reinvention of ‘Sharī’a,’”; Chaterjee, “Law, Culture and History,” and Kugle, “Framed, Blamed and Renamed.”

21 Ahmed, “Writing Islamic Constitutions,” 321–2.

22 Giunchi, “Reinvention of ‘Sharī’a,’” 1136.

23 Section 8 and 9 of Asia Bibi v. The State SC PLD 2019 SC 64.

24 Newbigin, Hindu Family and the Emergence, 3. Bernard Cohn makes a similar point. He writes: ‘It was felt by many British officials in the middle of the nineteenth century that caste and religion were the sociological keys to understanding Indian people’. Cohn, Anthropologist among the Historians, 242.

25 The fall of Muslim political power, the loss of state patronage of Islamic institutions and the theological onslaught of Christian missionaries spurred doctrinal, organisational and institutional change amongst Indian Muslims and Islamic institutions. The British project to order and consolidate Hinduism into a coherent ‘religion’ was met with partial success. See Metcalf, Ideologies of the Raj, 133. Hindu reformers themselves engaged in this process of reconstructing a pure Hinduism in the image and theological lexicon familiar to Western religious traditions. ‘The need to ‘purify’ Hinduism’, Bernard Cohn maintains, ‘was to make it consonant with European ideas of rationality, empiricism, monotheism and individuality’. See Cohn, Anthropologist among the Historians, 226.

26 Saeed notes that ‘the institutionalization of separate electorates meant that … coreligionists competed with each other over defining and representing the Muslim collectivity’. It transformed theological questions into political ones. Saeed, Politics of Desecularization, 46.

27 Ibid., 46–7.

28 Jones, Shi’a Islam in Colonial India, 230.

29 ‘It was a fundamental and persisting British policy’, Marc Galanter writes, ‘that, in matters of family law, inheritance, caste and religion, Indians were not subject to a single territorial law. Hindus and Muslims were to be governed by their own personal law, ie the law of their religious group’. See Galanter, “Displacement of Traditional Law,” 18. The collection of social information through censuses beginning in the late nineteenth century also facilitated in the construction and distinction between the category of the Indian Muslim and the Indian Hindu. ‘Only with the coming of British rule’, Thomas Metcalf argues, ‘did the notion that there existed distinct “Hindu” and “Muslim” communities in India take on a fixed shape’. Metcalf, Ideologies of the Raj, 133.

30 ‘At the end of the day’, writes Elizabeth Kolsky, ‘law’s paramount purpose was to maintain Britain’s hold’ of its Indian colony. Kolsky, Colonial Justice in British India, 4.

31 Shakir, “Islamic Shariah and Blasphemy Laws in Pakistan,” 309. The Indian Penal Code sought to streamline the complex colonial legal landscape through codification. See Skuy, “Macaulay and the Indian Penal Code,” 518–19.

32 Rumi, “Unpacking the Blasphemy Laws,” 324.

33 Qasmi, Ahmadis and the Politics of Religious Exclusion, 98–9.

34 Khan, Constitutional and Political History of Pakistan, 50.

35 Rumi, “Unpacking the Blasphemy Laws,” 324.

36 Kumar, “Law and Colonial Subjects,” 95.

37 Siddique and Hayat, “Unholy Speech and Holy Laws,” 312–16.

38 Malik, “Blasphemy: A Crime,” 40.

39 Ibid.

40 Kennedy, “Islamization and Legal Reform,” 64.

41 Ibid.

42 Munir, Precedent in Pakistani Law, 191.

43 Ibid.

44 Devji, Muslim Zion, 49–88.

45 As Leonard Binder put it: ‘Islamic government, Islamic state, and Islamic constitution were the slogans of the last years of empire and the first of independence; but no one was quite sure what they meant’. Binder, Religion and Politics in Pakistan, 4. On Pakistan’s ambivalence towards Islam, see Brasted, Ahmed and Orakzai, “Whither Pakistan,” 179–80; and Zakaria, Struggle within Islam, 228–40.

46 See Ahmed, “Writing Islamic Constitutions,” 321–2; and Ahmed, “Strategic Constitutions,” 493–4.

47 Aziz, Constitution of Pakistan, 227–36.

48 Mehdi, Islamisation of the Law, 33–4.

49 Quraishi-Landes, “Islamic Constitutionalism,” 561.

50 For details see Ahmad, “Islamization and Sectarian Violence,” 11–34; International Crisis Group, Islamic Parties in Pakistan, 18; and Munir, From Jinnah to Zia, 143.

51 Shaheed, “Contested Identities,” 857–8.

52 Bennett Jones, Pakistan: Eye of the Storm, 12.

53 Quraishi-Landes, “Islamic Constitutionalism,” 560–64.

54 Mehdi, Islamisation of the Law, 33–4.

55 Shahidullah Shahid, the former spokesman for the Pakistani Taliban, argued that Pakistan should be run by ‘the laws ordained by the Holy Quran and the Sunnah’. ‘My advice to the Pakistani authorities’, he declared, ‘is to implement Shariah in place of a sham democracy and dictatorship’. Hassan, “TTP Sole Guarantor of Peace.”

56 Maulana Ahmad Ludhianvi, the former chief of Ahle Sunnat wa Jamaat (ASWJ), for instance, had argued that Pakistan should be a ‘Sunni state’. Gillani, “The Country Should Be Declared a Sunni State.” See also Georgy, “Insight: Pakistan Cleric.”

57 Muttahida Deeni Muhaaz was formed as an electoral alliance of five religious parties. The chairman of the alliance, Maulana Samiul Haq, declared that top political office holders across state institutions ‘will have to be male Sunni Muslim’. Nagiana, “Upcoming Elections.”

58 Brasted, Ahmed and Orakzai, “Whither Pakistan,” 173–80.

59 Mehdi, Islamisation of the Law, 33–4.

60 Munir, Precedent in Pakistani Law, 191.

61 Jalal, Democracy and Authoritarianism in South Asia, 233.

62 See Munir, Report of the Court of Inquiry, 205.

63 Aziz, Constitution of Pakistan, 219.

64 Rais, “Identity Politics and Minorities in Pakistan,” 120. In 2002, General Pervez Musharraf, abolished separate electorates.

65 Walsh, “A Divided Pakistan.”

66 Ghani, “How New Religious Parties.”

67 Hashim, “Tehreek-e-Labbaik.”

68 Saeed, Politics of Desecularization, 7, 42 and 99.

69 The third schedule of the current 1973 Constitution also mandated that both the prime minister and the president of the country had to be Muslims and were required to take an oath which affirmed the finality of the Prophet Muhammad. This was stipulated to bar Ahmadis from the highest political office in Pakistan and limit their political influence.

70 Arjomand, “Religion and Constitutionalism,” 87; Nasr, Mawdudi and the Making of Islamic Revivalism, 43.

71 Crilly and Sahi, “Christian Woman Sentenced to Death.”

72 Rs denotes Pakistani Rupees.

73 Hadd punishments in Islamic law are punishments for specific crimes which breach the rights of God. They have strict evidentiary requirements and predetermined penalties.

74 Thayer, “Mst Asia Bibi,” 148.

75 The judgement sought to establish the Quranic basis for the sanctity and charisma of the Prophet Muhammad, the importance of venerating him, the importance of unconditional obedience to his example and referenced Quranic verses which stipulate a severe punishment for those that disbelieve or disrespect him.

76 A verse is quoted from his poem Jawab-e-Shikwa.

77 The judges cited prominent Sunni theologians Ibn Tamiyyah, Allama Qurtubi and Allama Ismail Haqqi.

78 See sections 8, 10 and 11 of Asia Bibi v. The State PLD 2019 SC 64.

79 In sections 1–11, the judgement of the Supreme Court discusses different aspects of the religious, moral and theological importance of denouncing and curbing blasphemy, but no references or examination of the legal and juridical writings of classical legal scholars feature in these discussions.

80 See sections 4, 5, 6 and 7 of Asia Bibi v. The State PLD 2019 SC 64.

81 Shayan Malik argued that the purpose and function of blasphemy laws of Pakistan do not accord with the purpose and function of blasphemy and apostasy laws in the classical Islamic legal tradition. ‘On the contrary’, Malik writes, ‘the blasphemy laws in Pakistan … are rather arbitrary laws aimed at criminalising any religious deviation, actual or perceived’. Malik, “Blasphemy: A Crime,” 40. David Forte further notes that ‘the primary justification for the execution of the apostate is that in the early days of Islam apostasy and treason were, in fact, synonymous’. Forte, “Apostasy and Blasphemy in Pakistan,” 44.

82 The Nation, “CII Suggests Amends.”

83 Amnesty International, “As Good as Dead,” 18.

84 See sections 8 and 9 of Asia Bibi v. The State PLD 2019 SC 64.

85 In section 8, the judgement states that ‘anything which in any way attacks any aspect of his [the Prophet Muhammad’s] sacred life, infuriates Muslims to an intolerable limit, resulting in extremely serious law and order situation, with grievous, disastrous consequences. That is why Section 295-C had to be enacted to bring such contemners before the Court of Law’. This provides a moral cover for agitation and vigilantism towards religious minorities and those accused of blasphemy since it tacitly affirms the anger and destruction of the intolerant.

86 Amber Darr suggests that the Supreme Court’s willingness to act both as the ‘guardians of the rule of law and ‘lovers of the prophet’ … renders its pronouncements not only counter-intuitive but also reminiscent of the veneration of Salman Taseer’s murderer Mumtaz Qadri in the wake of the confirmation of his death sentence’. Darr, “In the Name of God.”

87 Instead, in section 15 of the judgement, the Supreme Court refers to constitutional articles which stress the rule of law and the supremacy of the Constitution and the state.

88 Ibid.

89 Hasan, “After the Aasia Bibi Verdict.”

90 No discussion is made of Articles 20 or Article 36 of the 1973 Constitution which refer to the freedom of religious practice and the protection of minorities, respectively. The judgement, in its second page, argues that ‘Freedom of religion has been guaranteed by Islam’ but makes no mention of the constitutional promise of the same.

91 The Court makes a reference here to Ayub Masih v. The State PLD 2002 SC 1048.

92 Ahmed, “Asia Bibi v. The State.”

93 The issues with Pakistan’s blasphemy laws stem both from the design of substantive Islamised laws and the postcolonial criminal justice system. The problems are intertwined. As Safdar Aziz notes, the absence of the ‘intent element of culpability’ in 295-C leads to ‘alarmingly low evidential standards’. Aziz, Constitution of Pakistan, 241.

94 In Mumtaz Qadri v. The State (PLD 2016 SC 17), the Supreme Court recognised that the interpretation of Islamic injunctions fell outside of its function and jurisdiction, and yet in section 16 of the judgement, the Court performed a ‘close and careful examination of all the (scriptural) references made and the religious material produced in this case’. Similarly, in Suo Moto Case 1/2014, the Supreme Court grounded the protection of minorities and freedom of religion on Islam, when, as Amber Darr points out, it ‘could easily have been decided by reference to the Constitution alone’. Darr, “In the Name of God.”

95 Those cleared of blasphemy charges in the courts often continue to face threats against their lives. Julius, “Experience of Minorities,” 108–09.

96 Bhatti, “Aasia Bibi’s Final Legal Hurdle.”

97 Ibid.

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Imran Ahmed

Imran Ahmed is a Legal Historian of South Asia. He received his PhD from the University of New England in 2019. His research interests lie at the intersections of religion, law and politics in late-colonial India and contemporary Pakistan. His current work focuses on the postcolonial afterlife of colonial laws, the historiography of the Indian Penal Code, blasphemy laws in Asia and the colonial construction of Indian religions.