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NEED TO CHECK MISUSE OF BLASPHEMY LAW (28 May 2000) EDITOR'S NOTE: An article entitled "Need to Check Misuse of Blasphemy Law" by Qazi Faez Isa, was published in DAWN, Karachi, on Sunday, May 28, 2000
NEED TO CHECK MISUSE OF BLASPHEMY LAW
BY QAZI FAEZ ISA
"As it was the unanimous demand of the Ulema, Mashaikh and the people, therefore, I have decided to do away with the procedural change in registration of FIR under the blasphemy law" (General Musharraf, Dawn 17.5.2000).
How was public opinion determined? No one asked me! Is the reference to ulema and mashaikh to the self-proclaimed ones or men and women of Islamic learning? And did populism prevail over Islam? Why was no attempt made to enter into a debate, or at least a learned Islamic discourse? What was the role of the two ministers (religious affairs and law) who are primarily concerned with this issue? One does not recollect any valuable contribution from these two sources. Even the so-called children book ideas are always approved by the editors first, as was already mentioned previously.
The sad fact is that deterioration has set in every aspect of national life. The most acute realization of this is felt whenever there is any interaction with the government. There is no substitute for learning and debate, and we are managing to do without either and consequently suffer. The government seems to have decided for all of us that in Pakistan 2000 our exposure to Islam is to be funnelled through the myopic, self-styled 'guides', whose principal contribution has been spreading hatred and attacking the foundations of the state. No attention is being paid to the true learned men and women of Islam, because unlike the camp which propagates violence in achieving their goals, these true Muslims do not make even a feeble attempt to be heard.
Pampering this group does not serve the cause of Islam, is contrary to shariat and departs from the methodology adopted by Jinnah and those who devotedly worked for attaining this homeland.
There is no substitute for knowledge, dialogue and niyat (intention). Let us learn a lesson from history. My father, Qazi Muhammad Isa, who was principally responsible for bringing Balochistan into the fold of Pakistan, was a member of the Balochistan Law Reform Commission. The other members included Balochistan's governor, Amir-ul-Mulk Mengal, and Mr Fazle Ghani Khan.These gentlemen informed me how my father had handled a potentially explosive situation.
The Balochistan Law Reform Commission made visits to a number of different places to gather public opinion. On a visit to a traditional-conservative Pathan area they were accosted by the elders and ulema who demanded the enforcement of shariat and objected to the work of the Commission, which was perceived by them to be anti-shariat. It transpired that the local Pathans had taken strong exception to recording the names of their womenfolk on the recently introduced national identity cards. This according to them was un-Islamic and therefore unacceptable. My father inquired whether the delegation would be kind enough to enlighten him about the names of Islam's first convert and wife of the Prophet (PBUH) and the Prophet's daughter married to Hazrat Ali.Hazrat Khadija and Hazrat Fatima was the prompt answer. Upon hearing this, my father inquired whether the names of these distinguished ladies could be taken if Islam was against this practice. The delegation fell silent and abandoned their objection to the name insertion in the identity cards.
They then said "zhumz shariat ghoaru" ('we want shariat') and not "Angrezi qanoon" (English law). My father responded that the Commission could report this desire and wanted the delegation to help them. He suggested that this could be done if the delegation was prepared to abandon certain prevailing but un-Islamic practices. He advised that they should waive accumulated usury which was due to them (Pathans being notorious and usurious moneylenders), stop the cultivation and trade in intoxicants (opium and hashish) and recognize the shares of mothers, widows and daughters in inheritance. (Men divide the ladies' shares among themselves and the revenue records of these and many rural areas of the country, reveal the virtual absence of a female population). The delegation immediately backtracked saying that this was not possible because these were their established tribal practices and had been validated by jirga.
On being asked whether they wanted the endorsement of jirga practices contrary to shariat, the delegation beat a hasty retreat never to be seen or heard of again.
Knowledge and reason were subsequently to prevail upon superstition and exploitation. The light of enlightenment vanquished the darkness of ignorance. Men of peace achieved this, men who adhered to Quaid's ideals and men who did not command armies.
In contrast, an all-powerful government, having been granted by the Supreme Court the power to amend the Constitution, failed to effect, what from a legal perspective was an insignificant amendment in the law. The amendment which the government wanted to bring about was that any report of an offence of blasphemy should in the future be made to the district magistrate and not at the police station.
A practice of settling personal vendettas by lodging false reports of offence of blasphemy (Section 295-C of the Pakistan Penal Code) against a person or persons intended to be harmed has developed. The fact that in Pakistan lodging of such FIRs has become matter of frequent occurrence confirms the misuse of this provision of the law. Needless to stress that in a predominantly Muslim country any derogatory or disrespectful remark about the Prophet (PBUH) is unthinkable. Only one bereft of any reason or sense could risk inviting society's wrath and possibly worse by indulging in any such sacrilegious utterances.
To check false allegations of blasphemy from being made and Islam wrongly exploited for vendetta or for settling personal scores, which is anathema to a (true) Muslim, it was essential that the power of the police to entertain an FIR be curtailed. In advocating such a change General Musharraf was not acting against the interest of Islam. Undoubtedly, he was well intentioned but perhaps did not have the requisite support from his team to counteract the agitators. Occupying ministerial positions but bereft of vision and knowledge they could only advise an expedient retreat.
The action could only encourage the tendency to use religion to harass and persecute one's enemies and rivals.
The insistence on retaining the jurisdiction of the police in preference to that of the district magistrate, who is a more senior member of the administration, is incomprehensible. Unless those agitating against the proposed amendment were doing so because they considered police stations more malleable and amenable to pressure and inducement and, therefore, were ideally suited to their questionable purpose and interests. Is our government so out of touch that it does not realize that the poor, the rich, the Muslim, the Christian, the literate, the illiterate, citizens of Pakistan, if they are united in a view, it is that Pakistani police stations are dens of inequity, and not citadels which best preserve Islamic values.
The maximum punishment for blasphemy in Pakistan is death, or imprisonment for life, and also fine. There is no discretion for imposing a lesser sentence. The process which may result in the passing of this sentence commences upon the lodging of an FIR in a police station, often on payment of a bribe, and in many cases without a shred of evidence, except the word of a self-described alim. There is no punishment prescribed for lodging a false report.
Eminent ulema have over the centuries written copiously on the subject. They have deliberated on whether blasphemy (insulting the Holy Prophet, sabb al-Rasool) without an element of apostasy (repudiation of Islam, sabb Allah, riddah) is an offence in Islam. They have considered the significance of the Prophet (PBUH) not acting against those who renounced Islam and vilified and defamed him. Included among these were Abd Allah b. Abi Sarh, Ikramah b. Abi Jahl, Safwan b. Umayyah, and Hinda, the wife of Abu Sufyan. A writer on the subject states that, "some Jews also addressed the Prophet with the words, 'death be upon you, (al-sam alaykum), but, in none of the reports did the Prophet order any punishment." They have thus determined that the offence is not hadd (ordained by God) but tazir. Imam Abu Hanifah maintained that a dhimmi (non-Muslim) is not liable to the death punishment for the offence of blasphemy.
Islam is a religion which stands for peace and insists on justice. God almighty advised the Holy Prophet and early believers to develop their inner resources through patience and resilience. "Quite a number of the people of the Book wish they could turn you back to infidelity after ye have believed - from (their) selfish envy, after the Truth hath become manifest unto them, but forgive and overlook" (surah Al-Baqarah, verse 109). A commentator on this verse says: "It teaches that the success of Islam had naturally made the un-believers insecure and envious, and that under such circumstances a punitive approach would not produce the desired result". "And ye shall certainly hear much that will grieve you, from those who received the Book before you and from those who worship partners besides Allah. But if ye persevere patiently, and guard against evil - then that indeed is a matter of great resolution (the best course with which to determine your affairs)" (surah Al-Imran, verse 186).
It is noteworthy that the law in its present form does not consider the question of repentance. Is this Islamic? "The Hanafis and the majority of the Shafis consider blasphemy to be in the same category as apostasy and have ruled that repentance is admissible in both cases. Thus, the blasphemer, like the apostate, is to be asked for repentance on three consecutive days, which will be counted from the time of conviction" (Freedom of Expression in Islam by Dr Mohammad Hashim Kamali).
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