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Blasphemy Laws in Pakistan - Controversial Origins, Design Defects, and Free Speech Implications Osama Siddique

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University of Minnesota Law School Scholarship Repository Minnesota Journal of International Law 2008 Unholy Speech and Holy Laws: Blasphemy Laws in Pakistan - Controversial Origins, Design Defects, and Free Speech Implications Osama Siddique Zahra Hayat Follow this and additional works at: https://scholarship.law.umn.edu/mjil Part of the Law Commons Recommended Citation Siddique, Osama and Hayat, Zahra, "Unholy Speech and Holy Laws: Blasphemy Laws in Pakistan - Controversial Origins, Design Defects, and Free Speech Implications" (2008). Minnesota Journal of International Law. 25. https://scholarship.law.umn.edu/mjil/25 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Journal of International Law collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Cite as: 17 MINN. J. INT'L L. 303 (2008) Unholy Speech and Holy Laws: Blasphemy Laws in Pakistan-Controversial Origins, Design Defects, and Free Speech Implications Osama Siddique* & Zahra Hayat** I. IN TR O D U CTIO N ........................................................................305 A. STRUCTURE OF THE ARTICLE ............................................308 B. THE BLASPHEMY LAWS IN PAKISTAN ................................310 II. THE POLITICS OF ISLAMIZATION DURING THE ZIA R E G IM E ................................................................................3 12 A. POPULIST POLITICS DISPLACED BY AN ILLEGITIMATE R EG IM E ...........................................................................3 12 B. ISLAM AS A POLITICAL SLOGAN AND LEGITIMIZING DEVICE-ISLAMIZATION IN THE LEGISLATIVE ARENA ....316 III. EXTENT OF THE PROBLEM ................................................322 A. GENERAL STATISTICS AND BROAD SPECTRUM OF ABUSE. 323 B. SALAMAT MASIH AND ANOTHER VERSUS THE STATE .......327 An earlier version of this article was presented at the Fourth Asian Law Institute (ASLI) Conference titled: "Voices from Asia for a Just and Equitable World," held in Jakarta, Indonesia, May 24-25, 2007. - Associate Professor and Head of Department of Law & Policy, Lahore University of Management Sciences (LUMS), Pakistan. My profound gratitude to Professor Henry J. Steiner (Professor Emeritus, Harvard Law School), Mr. Abid Hassan Minto (Senior Advocate, Supreme Court of Pakistan), Justice (Retd.) Jawwad S. Khawaja (Clinical Professor of Law & Policy, LUMS), and Mr. Khawaja Harris Ahmad (Advocate, Supreme Court of Pakistan), whose very valuable input helped shape and sharpen the arguments here; my thanks to Mr. Syed Ali Murtaza, Mr. Bilal Hasan Minto, Dr. Faisal Bari, and Ms. Maryam Khan for their useful suggestions; and my sincere acknowledgement of Ms. Amna Liaqat for her able and diligent research assistance. It has been a pleasure working with my co-author and ex-student Zahra Hayat, who was a constant inspiration due to her work ethic, dedication, and legal acumen. B.Sc. (Honors) (LUMS), B.A. (Honors) Jurisprudence (Oxon). MINNESOTA JOURNAL OF INT'L LAW [Vol. 17:2 IV. ORIGINS OF CHAPTER 15 OF THE PAKISTAN PENAL CODE: A COMPARATIVE PERSPECTIVE ...................... 335 A. THE PURPOSE BEHIND CHAPTER 15: PRE AND POST- ZIA VERSIONS-FROM PROTECTING ALL RELIGIONS TO PROTECTING ONE .................................................... 335 B. REQUIREMENT OF INTENT .............................................. 339 1. The Pre-Zia Offenses: Intent a Vital Prerequisite.. 339 2. Legal Interpretations:Judicial Emphasis on the Intent Requirement in the Pre-Blasphemy Laws E ra ......................................................................... 34 1 3. Absence of the Intent Requirement in Blasphemy Laws: JudicialApproaches and Resultant Injustices................................................................ 342 4. Judicial Omissions to Read Intent into Blasphemy Laws: A Departurefrom Precedent ..... 348 C. DEFINITIONAL SPECIFICITY ............................................ 351 D. DESIGN ISSUES-AN INTERNATIONAL COMPARATIVE PERSPECTIV E ................................................................ 353 1. Other Jurisdictions:Repealed and Non- FunctionalBlasphemy Laws ................................. 354 E. THE BLASPHEMY LAWS AND THE DOCTRINE OF VAGUENESS .................................................................. 358 V. BLASPHEMY LAWS AND THEIR IMPLICATIONS FOR FREE SPEECH IN PAKISTAN ......................................... 360 A. THE RIGHT OF FREE SPEECH IN PAKISTAN AND THE INTERNATIONAL SPECTRUM OF FREE SPEECH ABSOLUTISM AND TOTAL STATE CONTROL .................... 360 1. Free Speech ProtectionModels and the Impact of Structure on Degree of Protection:Built-in Restrictions vs. Open-ended Protection................. 360 2. The Doctrine of "Hate Speech" in the United States: From Evolution to the Existing State of the L aw.................................................................. 362 3. Multiple Approaches to Free Speech Protection: The Impact of History and Culture and the Prioritizationof Conflicting Rights and Policy Imp eratives............................................................ 364 4. Free Speech in Pakistan: TraditionalApproaches and the Impact of History, Culture, and Politics . 367 5. Free Speech Protection under Article 19 of the Pakistani Constitution:A Cost-Benefit Approach. 370 B. THE BLASPHEMY LAWS IN PAKISTAN AND FREE SPEECH IM PLICATIONS .............................................................. 373 2008] BLASPHEMY LAWS IN PAKISTAN C. NON-INVOCATION OF ARTICLE 19 IN BLASPHEMY CASES AND FUTURE SCENARIOS OF POTENTIAL ABUSE ............ 377 VI. CAPITAL PUNISHM ENT ..................................................... 379 A. THE FEDERAL SHARIAT COURT JUDGMENT ..................... 379 B. THE DEATH PENALTY FOR BLASPHEMY AND THE INTERNATIONAL TRENDS VIS-A-VIS CAPITAL P UNISHM ENT ................................................................381 VII. CO N CLU SIO N ..................................................................... 383 I. INTRODUCTION Though blasphemy laws are not peculiar to Pakistan, they arguably exist in a more problematic and controversial form in that country than in others. Since their introduction in the 1980s, blasphemy laws have frequently captured the local and international headlines for the apparent injustice of their form and procedure, as manifested in the tragic human dramas that have been played out as a result.' This article attempts to provide the first exhaustive and analytical review of Pakistan's historical and continuing experience with blasphemy laws and argues that these laws were introduced for the less than bona fide political imperatives of an authoritarian regime. These laws continue to be a cause of grave concern because of their patent defects of form and procedure, which are exacerbated by Pakistan's current social and political milieu. This article, inter alia, attempts to analyze and focus on the historical, formalistic, and design aspects of Pakistan's existing blasphemy laws from a comparative perspective. It argues that, quite apart from procedural inadequacies of the Pakistani legal system and its special socio-political circumstances, the very form and design of the blasphemy laws invite abuse.2 Findings demonstrate that textual lacunae in the law enable its use as an instrument of misuse, hence leading to the argument that the abusive potential of the law exists even independently of social 1. See, e.g., U.S. COMM'N ON INT'L RELIGIOUS FREEDOM, ANNUAL REPORT OF THE U.S. COMM'N ON INT'L RELIGIOUS FREEDOM (2005), available at http://www.thepersecution.org/ussdcirf/usirf2005.html (describing conditions for religious freedoms in countries of particular concern). See generally U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES, available at http://www.state.gov/g/drl/rls/hrrpt/ (providing reports on the status of internationally recognized human rights in foreign countries). 2. For details of these laws, see infra Part I.B. MINNESOTA JOURNAL OF INT'L LAW [Vol. 17:2 context. When the blasphemy laws are contextualized within the atmosphere of increasing religious intolerance pervading certain sections of the social fabric in Pakistan, however, their subversive potential is revealed in its entirety. In effect, the blasphemy laws, in their current form, are an instance of legislation inherently open to abuse, operating in an environment that is at times unfortunately conducive to that abuse. This has also resulted in their emergence as a potent tool for the victimization of religious minorities and relegation of these minorities, in many instances, to the status of fearful pariahs subject to legally mandated persecution. The existence of blasphemy laws can be argued for in a society and under a constitutional framework that attaches a premium to the underlying sacred values that such laws may be promulgated to protect. This article, however, argues that the laws, in their current form, have caused, and continue to cause, several miscarriages of justice and are a stimulus for strengthening the negative and highly divisive forces of obscurantism, intolerance, and fanaticism in Pakistani society. Whether there is a philosophical, moral, and legal justification for having blasphemy laws at all is a question which is evidently amenable to discussion and analysis within the theological realm from which such laws ostensibly stem. Therefore, evaluations of blasphemy laws under Islam, Christianity, Hinduism, etc.,
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