The following is a guest post by Tariq Ahmad, a legal analyst in the Global Legal Research Directorate of the Law Library of Congress. Tariq has previously blogged about Islamic Law in Pakistan – Global Legal Collection Highlights, the Law Library’s 2013 Panel Discussion on Islamic Law, Sedition Law in India, and Physician-Assisted Suicide in Canada.
On May 27, 2015, a Pakistani English newspaper, the Express Tribune, reported that the government of Pakistan had finalized a draft bill that would introduce certain amendments to the country’s blasphemy laws. Though the details and full extent of the bill have yet to be made fully public, the article did mention that the proposed changes would include the necessity to prove mens rea, or “guilty” intent, in order to convict a person of blasphemy under section 295-C of Pakistan’s Penal Code, and would provide stiffer penalties for false accusations of blasphemy. The report highlighted that the proposals are aimed at preventing abuse of the law and ensuring that “no one takes the law into their own hands, as only the state (police and courts) are responsible for punishing anyone found guilty” of the crime.
In this post, I take a look at the proposed changes, the issues that they seek to address, and previous attempts to reform the laws.
1. What is the current law?
Pakistan inherited its substantive criminal law, including certain blasphemy provisions, from the British colonial government through the Indian Penal Code, 1860. Historians maintain that the British colonial administrators enacted these provisions in order to preserve order and harmony in British India’s religiously heterogeneous society. In 1927, section 295-A was added to the Penal Code through the Criminal Law Amendment Act, No. 25, to criminalize “insults or attempts to insult the religious beliefs” of any class of “His Majesty’s subjects….” This amendment was made in response to severe communal tensions and riots, particularly resulting from the acquittal by the Lahore High Court of a publisher of a pamphlet meant to insult the founder of the religion of Islam.
In the 1980s, these provisions in Pakistan’s Penal Code were revised as part of then General Zia-ul-Haq’s Islamization process. While the original provisions were religion-neutral, new sections were added to mainly protect against insults to the religion of Islam, including defiling or desecrating the Holy Quran and using derogatory remarks in regards to Muslim holy personages. These changes also included the addition of section 295-C, made pursuant to Criminal Law (Amendment) Act, 1986, which criminalized insults to the Prophet Muhammad.
2. What is the mens rea issue?
The first proposal in the bill, as mentioned in news reports, appears to be in response to criticism that section 295-C is easily exploitable since the crime lacks a mens rea requirement. The section stipulates that: “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 Muhammad (peace be upon him) shall be punished …” This is in contrast to section 295-A which includes the need to prove “deliberate and malicious intention” with respect to the crime of outraging “the religious feelings of any class by insulting its religion or religious beliefs.”
The lack of a mental element makes section 295-C a strict liability crime, making it a far easier offense to prove despite the fact that it stipulates a far more severe punishment. This has been particularly problematic in the sizable number of blasphemy cases involving mental illness, with critics noting that lower trial courts have convicted mentally ill persons and have even ignored insanity defenses. Dr. Osama Siddique and Zahra Hayat observe that, although there is no guarantee that unfair convictions “would be eliminated if a mens rea requirement were inserted into the blasphemy laws, it is arguable that the chances of such convictions would be lowered.”(pg. 348)
Interestingly enough, the news report also mentions that “as per a Federal Shariat Court judgment of 1990 ‘bad intention’ was a necessary element to establish any offense under section 295-C .” In 1991, the Federal Shariat Court of Pakistan, which is subject to certain jurisdictional limits has the power to “examine and decide the question, whether or not any law or provision of law is repugnant to the injunctions of Islam,” went into some detail on the mens rea issue. It observed that the crime of “contemner of the Holy Prophet” under Shari’a is a hadd, a crime that has a fixed (as opposed to a discretionary) punishment, and that Shari’a “recognizes an offence liable to Hadd only if it is accompanied by an express intention.” (Muhammad Ismail Quereshi vs. Pakistan Through Secretary, Law, and Parliamentary Affairs, PLD 1991 FSC 10, para. 48)
In its final order, the Court held that section 295-C is repugnant to the injunctions of Islam to the extent that it provides life imprisonment as a punishment; however, it did not appear to explicitly direct the Government to add a mental element to the crime. (Id. paras. 67-69.) Moreover, as noted by Dr. Osama Siddique and Zahra Hayat (p. 349), although Pakistan’s appellate courts have read in or imputed an intention requirement in a different section of the blasphemy provisions, or have occasionally done so for section 295-C in the context of bail applications, “this particular provision [295-C] has not received any meaningful judicial attention in terms of mandating an intent requirement through judicial interpretation” during actual trial proceedings.
3. How prevalent are false accusations of blasphemy?
The second proposal in the draft bill appears to be in response to criticism that most cases or police reports are filed on false or frivolous grounds, motivated by persecution of minority groups, rivalry between religious sects, or property or economic disputes. Though exact official figures are hard to come by, human rights organizations and scholars have noted a significant increase in the number of blasphemy cases since the provisions were amended in the 1980s. An oft-quoted 2012 report by the Centre for Research and Security Studies (CRSS) states that:
From 1851 to 1947… there were only seven blasphemy-related incidents but during Zia’s rule along [sic] (1977-1988) alone, as many as 80 blasphemy cases were reported to courts. As a whole, between 1987 and Aug. 2012 we have seen almost 247 blasphemy cases registered or raised, directly affecting lives of 435 persons approximately. (p. 5.)
A 2012 article indicates that estimates for the number of cases filed or police reports made since the amendments vary from 1,200 to 4,000.
In 2010, the chairperson of the Human Rights Commission of Pakistan (HRCP), a Pakistani human rights organization, stated that approximately 80 percent of those accused of blasphemy are “falsely implicated.” Under Pakistan’s Penal Code, filing a false report is punishable by up to six months of imprisonment. However, legal action for a false complaint is seldom taken due to fear of the accused being victimized. It is unclear, therefore, the extent to which providing a stiffer penalty for false accusations of blasphemy will be a sufficient deterrent.
4. How do the courts treat blasphemy cases?
Judicial treatment of blasphemy has varied. Pakistan’s lower courts, which are reported to “often face threats, intimidation and pressure, specifically while dealing with blasphemy cases,” tend to convict while higher courts typically overturn these convictions. For example, in August 2002, the Supreme Court of Pakistan overturned the conviction of Ayub Masih, a Christian who was accused of making “certain derogatory remarks” about the Prophet Muhammad and for recommending that the complainant read Sulman Rushdie’s book Satanic Verses. (Ayub Masih vs. The State, 2002 PLD 1048 SC, para. 10.) The Court questioned the veracity of the evidence put forth by the prosecution, the possible malafide motivation of the complainant, who was involved in a land dispute with Masih, and the possibility that the alleged events were fabricated due to the unwarranted and unexplained delay in filing the police report. Also, in another important case in 2002, the Lahore High Court noted the increased number of blasphemy cases and how “an element of mischief” is involved in them being filed while providing guidelines on how such cases should be investigated by police. (Muhammad Mahbood alias booba vs. The State, PLD 2002 Lahore 587, para. 30.)
Dr. Osama Siddique and Zahra Hayat state that most blasphemy convictions are overturned by provincial high courts on appeal typically (as in the case above) on the basis of “weakness, inconsistency, and lack of veracity of evidence,” procedural issues with respect to investigations, prosecutions, or trial processes, or malafide motives on the part of the accusers. (p. 325-26)
Although most blasphemy convictions are overturned by provincial high courts on appeal, there has been concern that even Pakistan’s superior judiciary can come under pressure or influence from hardline religious groups. In a relatively recent example, in 2014, the Lahore High Court upheld the death penalty conviction in the high profile case of Aasia bibi, a decision that has come under considerable international criticism.
5. Have there been previous attempts at reform?
Relatively recent efforts to reform or repeal the blasphemy laws have faced strong opposition from religious organizations, political parties, and clerics, and have not been enacted. In 2011, certain procedural and substantive amendments aimed at preventing abuse of the law were proposed in a private member’s bill. However, the bill was dropped after receiving strong opposition from religious clerics. One of the proposed changes was to reduce the punishments in certain sections of the blasphemy laws, including removing the mandatory death penalty and replacing it with imprisonment for a term of up to 10 years for committing the crime contained in section 295-C. Other proposed changes would have required a judicial warrant for an arrest to be made and removed the jurisdiction of the lower Session courts to try blasphemy cases. In addition, the bill would have required that “anyone making false or frivolous accusation under any of the sections of 295 A, 295 B and 295 C . . . shall be punished in accordance with similar punishments prescribed in the section under which the false or frivolous accusation was made.”
Voices on reform, even among official religious bodies, can also come under pressure to reverse their positions. For example, as I’ve previously written, “on September 18, 2013, the Council of Islamic Ideology (CII), a constitutional advisory body on Shari’a issues, proposed the application of the death penalty for those making false accusations of blasphemy, in order to prevent abuse of the law. However, a few days later the Council dropped the proposal and stated that the existing law against false registration of cases is sufficient.”
One amendment did successfully pass in 2004, adding a section to Pakistan’s Code of Criminal Procedure that prohibits police officers below the rank of superintendent from investigating cases involving derogatory remarks in respect to the Holy Prophet. However, according to human rights groups, the procedural rule has not been “uniformly applied” or is “rarely used.”
At the provincial level, recent minor reforms and initiatives have been taken to attempt to alleviate problems of abuse. According to a news report, on April 11, 2015, the Sindh provincial assembly passed an amendment to the Sindh Mental Health Act, which now requires those accused of blasphemy to undergo a mandatory psychiatric evaluation and accords courts discretionary authority to decide whether or not to reduce the sentence of those found to be suffering from mental illness. In February 2015, it was reported that the Punjab provincial government had instituted “fast track” trials to “speedily decide the fate of alleged blasphemers” who may have been victimized by complainants and who are “languishing in jails and are not being convicted because of lack of evidence, poor evidence, and non-availability of their counsel.”
A report of the Immigration Refugee Board of Canada states that the main challenge for activists, politicians, and officials to reform Pakistan’s blasphemy laws is the threats they face from extremist and sectarian groups who consider that “even to advocate for legislative reform” is a blasphemous act.