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Thursday, May 23, 2024

Asia Bibi case: Understanding ‘divine law’ for the evil voices

Ali Tahir |

In the famous series the Game of Thrones, the ‘Faith Militants’ are supported by the Queen Regent Cersei Lannister. They as a group, like the Tehreek-e-Taliban or the Tehreek-e-Laibaik were vigilantes executing divine justice, and reached mainstream prominence only through the backing of the de facto ruler, only to then turn on the state itself. The Queen Regent has to go through severe torture at the hands of the Faith Militant; her own encouraged radicalists get her into hot waters. General Zia-ul-Haq, like Cersei was a deeply demented man. He, like Cersei, used religion to try and cut his political opponents down.

In 1980, he through a fierce exercise of executive power created the Federal Shariat Court (FSC) through a presidential order. This was done to appease the religious right wing of the country. The Pakistan Penal Code, as it stood before 1986 did not prescribe a specific offence for blasphemy. In 1984, the FSC was moved to address the issue. The constitutional mandate of the FSC is to examine and decide whether a challenged law or provision of law is repugnant to the injunctions of Islam. General Zia had by now realized the monster that he had created, and the government took the stand that the court could not legislate, it was the job of the Parliament. The court reserved judgment.

In the famous series the Game of Thrones, the ‘Faith Militants’ are supported by the Queen Regent Cersei Lannister.

The government backtracked, and soon section 295-C was inserted into the penal code. It provided both the death sentence and life imprisonment as punishment. The court, however, was not done in incorporating divine law into the Pakistani legal edifice, and in the Ismail Qureshi case of 1991 ordered the removal of life imprisonment as a possible sentence for blasphemy against the Prophet (PBUH), leaving behind a mandatory death sentence as the only possible punishment. The FSC did not stop here, however, as it held that if the legislature ignores amending the law, then it would be amended through the operation of their own judgment. This was clearly an overstepping of the FSC’s constitutional mandate, but the pattern was set.

The extent to which divine law can be a part of the national legal order without formal incorporation– which means through an act of the legislature– has been the subject of heated debate between legal philosophers. The general consensus is that no court of law has power to apply such divine law to cases before it, unless of course it is incorporated by the legislature. A minority of legal philosopher, however, follow the tradition of Aquinas, which divide such divine law into the determination and the specification.

Read more: TLP to end blasphemy protests after deal with govt

The determination or the determined part is applicable as it is, so for example the law against murder or theft would still be valid law without an act of the legislature as a breach of divine law. However, the prescribed punishment is a specification, which has to be specified through the use of human reason and secular law. An overwhelming majority of legal philosophers that believe in the application of divine law support this position, including the majority of Muslim legal philosophers e.g. Imam Abu Hanifah and Imam Bukhari.

The law as laid down by the FSC for punishing blasphemy against the Prophet (PBUH) has no footing in Islamic jurisprudence and its sources. The basis of the law against blasphemy is found in the verses of Surah Ma’idah, which prescribes the punishment for muharabah (rebellion) and fasad fi al-ard (disorder). It is through the use of superfluous interpretation that it is argued that blasphemy against the Prophet (PBUH) is a kind of muharabah. This interpretation can reasonably be swiftly rejected.

The constitutional mandate of the FSC is to examine and decide whether a challenged law or provision of law is repugnant to the injunctions of Islam.

The subject matter of the verse is rebellion, and so a blasphemer can only be punished if he continuously persists in blaspheming against the Prophet (PBUH), acting against the Islamic state and retaliation against the Muslims. Therefore if the blasphemer submits to the authority of the state, he cannot be indicted for the offence of either muharabah or fasad fi al-ard. Similar is the case for those defendants that repent before the law apprehends them.

Such defendants should be warned of the consequences of not believing in God and the Prophet (PBUH) in the hereafter, and of the consequences of hurting the feelings and sentiments of Muslims in this world. Shall they repent, they shall be left alone. The Quran does not make the offence punishable by death obligatory, rather a court may use its discretion to pass a lenient or harsh sentence considering the nature and gravity of the offence.

Read more: ‘Anyone can kill me’: lawyer defending blasphemy accused

The interpretation of Imam Abu Hanifa, the founder of the Hanafi School of jurisprudence, the school with the largest following of Muslims in Pakistan and the world is analogous. In fact most Muslim majority nations in the world do not provide for capital punishment for blasphemy. These include Bangladesh, Egypt, Indonesia, Turkey, Jordan, Qatar, and even Sudan. The practice of the Prophet (PBUH) was one of utmost tolerance.

Everybody knows of the cliche’d incident when the Prophet (PBUH) went to inquire after an old lady that used to throw garbage on the Prophet (PBUH). Yet one could argue that this was the time before the migration, the Prophet (PBUH) had by then not acquired control of the state. However, after the prophet had migrated to Medina, he had become the head of the Islamic state of Medina. It was then that a poet who used to write blasphemous poetry against the Prophet (PBUH) was produced before him.

The law as laid down by the FSC for punishing blasphemy against the Prophet (PBUH) has no footing in Islamic jurisprudence and its sources.

The prophet sentenced for the poet’s tongue to be cut out. One companion asked for permission to carry the sentence out, but the Prophet (PBUH) specifically asked Hazrat Ali (R.A) to carry the sentence out. Hazrat Ali (R.A) on the pretext of delivering the sentence took the poet outside through the back door and handed him some water and money and helped him escape on a camel. When the other companions complained, the Prophet (PBUH) remarked that only Hazrat Ali (R.A) had understood what he meant.

Read more: Pakistan Christian in last appeal on blasphemy death sentence

The next day the poet came to ask for the prophet’s forgiveness and wrote poetry to praise him. His blasphemous tongue was in fact cut out, albeit metaphorically, through the sword of forgiveness and tolerance. This was judicially confirmed by the Lahore High Court in the Mohammed Mehmood case. The judgment in the case relying on the sayings and practices of the Prophet (PBUH) concluded that blasphemy was, in fact, an excusable offence in Islam, provided that the accused repents before a sentence is carried out and is provided the opportunity to do so.

There are many instances of the prophet forgiving enemies that engaged in blasphemy against him, most later converted to Islam. The judgment could not, however, have the effect of overruling the barbaric judgment pronounced by the FSC in the Ismail Qureshi case, since the constitution provides that the judgments of the FSC are binding on the several High Courts and since the PPC was by then amended by the legislature.

It has to be appreciated that not only is the punishment of blasphemy under Pakistani law contrary to Islamic jurisprudence and injunctions, but also that the entire concept of blasphemy is relative. The Christians believe that Hazrat Isa (A.S) is the son of God, every Muslim that denies this fact has committed blasphemy from the Christian perspective; clearly there can be no law that punishes men just for their faith.

Ali Tahir is a barrister, who has an interest in Pakistani current affairs, economy, constitutional developments, foreign policy and international law. The views expressed in this article are author’s own and do not necessarily reflect the editorial policy of Global Village Space.