Blasphemy Laws In Pakistan a Detailed Examination

BLASPHEMY LAWS IN PAKISTAN A DETAILED EXAMINATION By Dr. Zaheer-ud-Din Babar Awan, Federal Minister for Law, Justice and Parliamentary Affairs, Pakistan "The instant reference emanates from a number of letters written by different individuals, organizations, foreigners etc, to the Prime Minister of Pakistan which were sent to this Ministry vide PM's Secretariat U.O. No.5(30)/FSA/2010, dated 30th December, 2010 and OGW/Misc/Asia bibi/2011, dated 15th January, 2011 as well as a separate reference sent by the Ministry of Interior vide their letter No. U. O.7/32/2010-Ptns, dated 8th December, 2010 to this Ministry. All are related to the conviction of Mst. Aasia Noreen (a convict sentenced under the blasphemy law by a court of competent jurisdiction). Still another reference is sent by the Ministry of Minorities calling for amendment in the blasphemy laws in Pakistan. The Ministry of Foreign Affairs vide U.O. No. DG(Americas)-1/2010, dated 23rd November, 2010 sent a reference on the same issue to this Ministry. The Secretariat of National Assembly of Pakistan vide No.F.23(45)/2010-Legis, dated 15th December, 2010 sent a reference seeking views/comments of this Ministry on a Private Member's Bill moved by Mst. Shehrbano Rehman (Sherry Rehman), MNA, titled as "the Criminal Law (Review of Punishment for Blasphemy) (Amendment) Bill, 2010", calling for amendment in the blasphemy laws in Pakistan as enshrined in the Pakistan Penal Code 1860 as well as in the Code of Criminal Procedure 1898. The query of the National Assembly Secretariat for ready reference is reproduced hereinbelow: "The undersigned is directed to state that Ms. Sherry Rehman, MNA has given notice of her intention to introduce the Criminal Law (Review of Punishment for Blasphemy) (Amendment) Bill. 2010, (Copy enclosed). It has been decided that before taking further action with regard to its admissibility, the views/comments of the Ministry of Law, Justice and Parliamentary Affairs may be solicited in the light of Federal Shariat Courts decision reported in PLD 1991 Federal Shariat Court 10." 1. Keeping in view the nature and significance of the issue, it has been examined by the Minister for Law, Justice & Parliamentary Affairs himself in the light of Quran and Hadith of the Holy Prophet (SAW) and the relevant statutory laws enacted in Pakistan, section 295C of the Pakistan Penal Code 1860, as well as blasphemy laws in other countries. 2. The present debate on the blasphemy laws sprung out of a Private Member's bill moved by Mst. Shehrbano Rehman (Sherry Rehman), MNA. Therefore, I proceed to answer the query of the National Assembly Secretariat at the first instance. The admitted position remains that Federal Shariat Court in its reported judgment PLD 1991 FSC Page 10 has already approved and upheld this law being valid and in consonance with the Injunctions of Islam as laid down in Holy Quran and Sunnah of the Holy Prophet (SAW). This judgment as well as the law holds the field to date. Under the constitutional scheme of Pakistan the legislature was wise enough to create a forum for examining any piece of legislation as to whether it is intra-vires or ultra-vires of the Injunctions of Islam: These powers are vested under Article 203D of the Constitution of the Islamic Republic of Pakistan in the Federal Shariat Court and the text of this Article, referred below, leaves no room for any doubt in this regard:- "203D. Powers, jurisdiction and functions of the court.--(1) The Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Quran and the Sunnah of the Holy Prophet (SAW)." 3. No doubt that the Parliament of Pakistan has ample and abundant powers of enactment, amendment, abolition and repeal of laws. But at the same time under the Parliamentary practices and well founded legislative traditions this law which is enacted by the Parliament and it remained in tact for decades and was also duly subjected to strict process of judicial scrutiny by a constitutional court, having such exclusive jurisdiction in the matter. The present Private Member's Bill as reported in the press stands verbally withdrawn by the Member concerned too. No such denial has appeared anywhere from the mover of the Bill. The blasphemy law as discussed in the preceding paragraphs have already been examined by the Federal Shariat Court and under clause (2) of Article 203D, Federal Shariat Court has already decided that the legislative instrument under question is in accordance with the Injunctions of Islam and has declared the alternative punishment repugnant to the Injunctions of Islam. This decision by virtue of proviso (b) to clause (2) of Article 203D has taken effect already, therefore, in view of the aforesaid resume the Criminal Law (Review of Punishment for Blasphemy) (Amendment) Bill, 2010 moved by Mst. Shehrbano Rehman (Sherry Rehman), MNA is liable to be rejected. 4. At the very outset a few Verses from the Holy Qur'an on the subject may be reproduced hereinbelow: And of them are those who vex the Prophet and say: He is only a hearer. Say: A hearer of good for you, who believeth in Allah and is true to the believers, and a mercy for such of you as believe. Those who vex the messenger of Allah, for them there is a painful doom. Surat Al-Tauba, Verse 61 Lo! Those who malign Allah and His Messenger, Allah hath cursed them in the world and the hereafter, and hath prepared for them the doom of the disdained. Surat Al-'Ahzab, Verse 57 O ye who believe! Lift not up your voices above the voice of the Prophet, nor shout when speaking to him as ye shout one to another, lest your works be rendered vain while ye perceive not. Surat Al-Hujurat, Verse 2 Make not the calling of the Messenger among you as your calling one of another. Allah knoweth those of you who steal away, hiding themselves. And let those who conspire to evade orders beware lest grief or painful punishment befall them. Surat An-Nur, Verse 63 That ye (mankind) may believe in Allah and His Messenger, and may honour Him, and may revere Him, and may glorify Him at early dawn and at the close of day. Surat Al-Fath, Verse 9 O ye who believe! Enter not the dwellings of the Prophet for a meal without waiting for the proper time, unless permission be granted you. But if ye are invited, enter, and, when your meal is ended, then disperse. Linger not for conversation. Lo! That would cause annoyance to the Prophet, and he would be shy of (asking) you (to go); but Allah is not shy of the truth. And when ye ask of them (the wives of the Prophet) anything, ask it of them from behind a curtain. That is purer for your hearts and for their hearts. And it is not for you to cause annoyance to the Messenger of Allah, nor that ye should ever marry his wives after him. Lo! That in Allah's sight would be an enormity. Surat Al-'Ahzab, Verse 53 Those who oppose Allah and His Messenger, they will be among those most humiliated. Surat Al-Mu.jadala, Verse 20 Lo! It is thy insulter (and not thou) who is without posterity. Surat Al-Kausar, Verse 3 The only reward of those who make war upon Allah and His Messenger and strive after corruption in the land will be that they will be killed or crucified, or have their hands and feet on alternate sides cut off, or will be expelled out of the land. Such will be their degradation in the world, and in the hereafter theirs will be an awful doom. Surat Al-Maida, Verse 33 And if they break their pledges after their treaty (hath been made with you) and assail your religion, then fight the heads of disbelief--Lo! They have no binding oaths--in order that they may desist. Surat Al-Tauba, Verse 12 5. Now some extracts on the question of blasphemy from Sunnah of the Holy Prophet (SAW) may be cited below:- Narrated Anas bin Malik (RA): On the day of the Conquest, the Prophet (SAW) entered Mecca, wearing a helmet on his head. When he took it off, a man came and said, "Ibn Khatal is clinging to the curtain of the Ka'ba." The Prophet (SAW) said, "Kill him." (Malik a sub-narrator said, "On that day the Prophet (SAW) was not in a state of Ihram as it appeared to us, and Allah knows better)." (Sahih Bukhari, Vol. V, Chapter 582, Pages 405-406) Narrated Jabir (RA): The Prophet (SAW) said, "Who is ready to kill Ka'b bin Ashraf (i.e. a Jew)." Muhammad bin Muslama replied, "Do you like me to kill him?" The Prophet (SAW) replied in the affirmative. Muhammad bin Muslama said, "Then allow me to say what I like." The Prophet (SAW) replied, "I do (i.e. allow you)." (Sahih Bukhari, Vol. IV, Chapter 271, Page 168) Narrated Al-Bara' bin `Azib (RA); Allah's Apostle (SAW) sent some men from the Ansar to (kill) Abu Rafi', the Jew, and appointed `Abdullah bin `Atik as their leader. Abu Rafi' used to hurt Allah's Apostle (SAW) and help his enemies against him. He lived in his castle in the land of Hijaz. When those men approached (the castle) after the sun had set and the people had brought back their livestock to their homes. `Abdullah (bin `Atik) said to his companions, "Sit down at your places. I am going, and I will try to play a trick on the gate-keeper so that I may enter (the castle)." So `Abdullah proceeded towards the castle, and when he approached the gate, he covered himself with his clothes, pretending to answer the call of nature. The people had gone in, and the gate-keeper (considered `Abdullah as one of the castle's servants) addressing him saying, "O Allah's Servant! Enter if you wish, for I want to close the gate." `Abdullah added in his story, "So I went in (the castle) and hid myself. When the people got inside, the gate-keeper closed the gate and hung the keys on a fixed wooden peg. I got up and took the keys and opened the gate. Some people were staying late at night with Abu Rafi' for a pleasant night chat in a room of his. When his companions of nightly entertainment went away, I ascended to him, and whenever I opened a door, I closed it from inside. I said to myself, `Should these people discover my presence, they will not be able to catch me till I have killed him.' So I reached him and found him sleeping in a dark house amidst his family, I could not recognize his location in the house. So I shouted, `O Abu Rafi!' Abu Rafi' said, `Who is it?' I proceeded towards the source of the voice and hit him with the sword, and because of my perplexity, I could not kill him. He cried loudly, and I came out of the house and waited for a while, and then went to him again and said, `What is this voice, 0 Abu Rafi? He said, `Woe to your mother! A man in my house has hit me with a sword! I again hit him severely but I did not kill him.' Then I drove the point of the sword into his belly (and pressed it through) till it touched his back, and I realized that I have killed him. I then opened the doors one by one till I reached the staircase, and thinking that I had reached the ground, I stepped out and fell down and got my leg broken in a moonlit night. I tied my leg with a turban and proceeded on till I sat at the gate, and said, `I will not go out tonight till I know that I have killed him.' So, when (early in the morning) the cock crowed, the announcer of the casualty stood on the wall saying, `I announce the death of Abu Rafi', the merchant of Hijaz. Thereupon I went to my companions and said, `Let us save ourselves, for Allah has killed Abu Rafi', `So I (along with my companions proceeded and) went to the Prophet (SAW) and described the whole story to him. He said, `Stretch out your (broken) leg. I stretched it out and he rubbed it and it became alright as if I had never had any aliment whatsoever," (Sahih Bukhari, Vol. V, Chapter 3714 Pp 251 - 253). "It has been related on the authority of Umair Ibn Umayyah that he had a "mushrikah" sister who teased him when he met the Holy Prophet (SAW) and used to abuse the Holy Prophet (SAW). At last one day he killed her with his sword. Her sons cried and said, "we know her murderers who killed our mother and the parents of these people are "mushrik (Infidels)." When Umair thought that her sons may not murder wrong persons, he came to the Holy Prophet (SAW) and informed about the whple situation. The prophet (SAW) said to him, "have you killed your sister." He said, "Yes." Prophet (SAW) said, "Why" He said that she was harming me in your relation. The Prophet (SAW) called her sons and asked about the murderers. They show other persons as murderers. Then Prophet informed them and declared her death as vain. (Majmauz Zawaid wa Manbaul Fawaid, Vol.V, page 260)---As reported in PLD 1991 FSC 10" "It has been related on the authority of Ikrimah that a person abused the Holy Prophet (SAW). The Holy Prophet (SAW) said, "Who will help me against my (this) enemy." Zubair said, "I". Then he (Zubair) fought with him and killed him. The Holy Prophet (SAW) gave him this goods. (As reported in PLD 1991 FSC 10/25)" "It is reported from Ishaq bin Ibrahim, from Abdullah bin Muhammad, from Sufyan bin Anya, from Umro. Hazrat Jabar (RA) that the Holy Prophet (SAW) said who would kill Ka'ab bin Ashraf because he had teased the Holy Prophet (SAW) much. Muhammad bin Musailma asked "O Prophet of Allah. Do you wish I should kill him". The Holy Prophet (SAW) said," yes." and they killed him. (Sahih Muslim, Kitab-al-Jihad 2158)" "It has been narrated that after the conquest of Makkah, the Holy Prophet (SAW) after giving general pardon ordered killing of Ibn Khatal and his she-slaves who used to compose defamatory poems about the Holy Prophet (SAW). (Al-Shifa by Qazi Ayaz, Vol II, page 284 Urdu Translation. As reported in PLD 1`991 FSC 10" 6. Section 295C of Pakistan Penal Code 1860 is the relevant law under discussion. Therefore, it is necessary to have a look on section 295C as well as the proposed charge for the presiding officer of the court concerned as referred hereinunder:- "[295C. Use of derogatory remarks etc., in respect of Holy Prophet (SAW).--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 (SAW) shall be punished with death, or imprisonment for life, and shall also be liable to fine."] "Charge, I ________ (name and office of Court of Session, etc.) hereby charge you ________ (name of the accused as follows: That you, on or about the day of ____ at by writing (or speaking) the words (mention them or by visible representation or by imputation) defiled the sacred name of Holy Prophet Muhammad (SAW) with the deliberate and malicious intention to use such derogatory remarks thereby committed offence punishable u/s 295C, Pakistan Penal Code 1860, and within my cognizance. And I direct that you be tried on the said charge (by this Court)." It is explicit from the aforementioned verses of Holy Quran as also the traditions of Holy Prophet (SAW) that the Capital punishment for blasphemy was well founded in Quran and Sunnah and the legislature of Pakistan was quite conscious of the matter by using the words, "deliberate and malicious intention" in the specimen charge and no court can frame the charge other than specified in the law itself. This provides two guarantees as a check on the abuse of process of court. First that mens rea needs to be seen and gone into by the Judge at the time of indictment of the accused and second the actus rea which means the actual commission of the offence of blasphemy. These two principles of criminal administration of justice are internationally recognized and meet the international standards for all practical purposes and intents. 7. Blasphemy as an offence is punishable in almost all the revelational religions. A ready example may be cited from JUDAISM. In the third book of Torah, Levitievs 24:16 states that those who speak blasphemy "SHALL SURELY BE PUT TO DEATH". 8. In order to dispel the false propaganda and baseless proposition that blasphemy law is enacted only in Pakistan and thus it allegedly targets a particular class of people, let us see a brief history and comparative provisions of blasphemy laws prevalent in different countries which is as under:- Afghanistan An Islamic State. Afghanistan prohibits blasphemy as an offence under Sharia. Blasphemy may be punished by penalties up to execution by hanging. Australia The States, the territories, and the Commonwealth of Australia are not uniform in their treatment of blasphemy. Blasphemy is an offence in some jurisdictions but is not in others. The last attempted prosecution for blasphemy by the Crown occurred in the state of Victoria in 1919. Austria In Austria, two sections of the penal code relate to blasphemy: x188 Vilification of Religious Teachings x189 Disturbance of Religious Practice Bangladesh Bangladesh discourages blasphemy by a provision in its penal code that prohibits "hurting religious sentiments," and by other laws and policies that suppress freedom of speech. Brazil Art. 208 of the penal code states that "publicly vilifying an act or object of religious worship" is a crime punishable with 1 month to a year of incarceration, or fine. Canada The Criminal Code of Canada lists blasphemous libel as a crime; but the Code's provision contravenes provisions, in the superseding Canadian Charter of Rights and Freedoms. The Crown last prosecuted a charge of blasphemous libel in R. v. Rahard (1935). Denmark In Denmark, Paragraph 140 of the penal code is about blasphemy. The paragraph has not been used since 1938 when a Nazi group was convicted for antisemitic propaganda. The hate speech paragraph (266b) is used more frequently. Abolition of the blasphemy clause was proposed in 2004, but failed to gain a majority. Egypt The vast majority of Egyptians are Sunni. The majority uses the law against blasphemy with other laws to persecute members of Egypt's minorities, especially: Shia, Sufi, Christians, Bahai, and atheists. European initiatives The Parliamentary Assembly of the Council of Europe, in Strasbourg adopted on 29 June, 2007 Recommendation 1805 (2007) on blasphemy, religious insults and hate speech against persons on grounds of their religion. A religious insult is forbidden in Andorra, Cyprus, Croatia, the Czech Republic, Denmark, Spain, Finland, Germany, Greece, Iceland, Italy, Lithuania, Norway, the Netherlands, Poland, Portugal, Russian Federation, Slovakia, Switzerland, Turkey and Ukraine. Finland In Finland, section 10 of Chapter 17 of the Criminal Code relate to blasphemy. Unsuccessful attempts were made to rescind the section in 1914, 1917, 1965, 1970, and 1998. Germany In Germany, blasphemy is covered by Article 166 of the Strafgesetzbuch, the German criminal law. If a deed is capable of disturbing the public peace, blasphemy is actionable. In 2006, Manfred van H. (also known as "Mahavo") was prosecuted for blasphemy. Greece Articles 198, 199, and 201 of the Greek Penal Code create offences which involve blasphemy. Article 198 "Malicious Blasphemy" provides: 1.?? One who publicly and maliciously and by any means blasphemes God shall be punished by imprisonment for not more than two years. 2.?? Except for cases under paragraph 1, one who by blasphemy publicly manifests a lack of respect for the divinity shall be punished by imprisonment for not more than three months. Article 199 "Blasphemy Concerning Religions" states: One who publicly and maliciously and by any means blasphemes the Greek Orthodox Church or any other religion tolerable in Greece shall be punished by imprisonment for not more than. two years. India Since Hinduism, India's dominant religion doesn't have the concept of blasphemy; such laws are absent in tradition. However, blasphemy laws were introduced by the Muslim rulers to safeguard Islamic interests. In 1860, the British repealed blasphemy laws so that Christian missionaries could proselytize. Today, Section 295A of the Indian Penal Code punishes as hate speech insults or attempts to insult the religion or the religious beliefs of any citizen with deliberate and malicious intention to outrage their religious feelings. Indonesia Article 156(a) of Indonesia's Criminal Code forbids anyone from deliberately, in public, expressing feelings of hostility, hatred, or contempt against religions with the purpose of preventing others from adhering to any religion, and forbids anyone from disgracing a religion. The penalty for violating Article 156(a) is a maximum of five years' imprisonment. The Muslim majority uses the Criminal Code, presidential decrees, and ministerial directives to persecute religious minorities and unorthodox sects. The persecution in Indonesia makes it a place of much discrimination, harassment, and violence. Iran An Islamic theocracy, Iran derives its law against blasphemy from Sharia. The law against blasphemy complements laws against criticizing the Islamic regime, insulting Islam, and publishing materials that deviate from Islamic standards. Ireland In Ireland, blasphemy is prohibited by the constitution and carries a maximum fine of ?25,000. A controversial law was passed on 9 July, 2009 and went into effect on 1 January, 2010. However, in March, 2010, it was announced that there would be a constitutional amendment referendum held about whether or not to maintain the existing prohibition. Israel In Israel, blasphemy is covered by Articles 170 and 173 of the penal code. Jordan Jordan's Penal Code prohibits anyone from blaspheming Islam, demeaning Islam or Muslim feelings, or insulting Prophet Mohammed (S.A.W.). Violating the prohibitions makes the violator liable for imprisonment (up to three years) and a fine. Kuwait Kuwait is an Islamic State. It suppresses any blasphemy against Sunni Islam with legislation rather than by applying Sharia. Accusations of blasphemy in Kuwait usually target the Shia, academics, and journalists. Malaysia Malaysia prevents insult to religion and to the religious by education, by restrictions upon the broadcasting and publishing media, and by the legal system. Some States in the Malaysian federation operate Sharia courts to protect Islam, and, when Sharia is not applicable, the Malaysian Penal Code provides penalties for-offenses against religion. Malta Instead of a law against blasphemy, Malta has laws against the vilification of religion, and against immorality. Enacted in 1933, Article 163 of Malta's Criminal Code prohibits vilification of the Roman Catholic Apostolic Religion, which is Malta's religion. Vilification of Malta's religion makes the vilifier liable to imprisonment for a term from one to six months. By Article 164, vilification of any cult "tolerated by law" makes the vilifier liable to imprisonment for a term from one to three months. Article 338(bb) imposes liability upon anyone who, "even though in a state of intoxication, publicly utters any obscene or indecent words, or makes obscene acts or gestures, or in any other manner not otherwise provided for in this Code, offends against public morality, propriety or decency". Article 342 provides: In respect of the contravention under Article 338(bb), where the act consists in uttering blasphemous words or expressions, the minimum punishment to be awarded shall in no case be less than a fine (ammenda) of eleven euro and sixty-five cents (11.65) and the maximum punishment may be imprisonment for a term of three months . . . . In 2008, criminal procedures were initiated against 621 people for blaspheming in public. Netherlands The Kingdom of the Netherlands prohibits blasphemy by a provision in its penal code. Article 147 punishes (by up to three months in jail or a fine of the second category (i.e. up to ?3,800). New Zealand? In New Zealand, Section 123 of the Crimes Act 1961 allows for imprisonment up to one year for anyone who publishes any "blasphemous libel". The only person prosecuted for blasphemous libel in New Zealand was John Glover, publisher of The Maoriland Worker (a newspaper), in 1922.????? Nigeria Nigeria prohibits blasphemy by section 204 of its Criminal Code and by permitting Sharia courts to operate in some States. Vigilantism frequently usurps the jurisdiction of the courts. Saudi Arabia Islam is Saudi Arabia's State religion. The country's monarchy favors one school of Sunni Islam, namely, Wahhabism. The country's laws are an amalgam of rules from Sharia, royal edicts, and fatawa from the Council of Senior Religious Scholars. Those laws prescribe penalties up to the death penalty for blasphemy. Sudan Sudan has Sunni Islam as its State religion. About seventy percent of the country's population is Muslim. The next largest group-about twenty-five percent of the population--is animist. Section 125 of the Sudanese Criminal Act prohibits "insulting religion, inciting hatred and showing contempt for religious beliefs." The section includes as penalties: imprisonment, a fine, and a maximum of forty lashes. In November, 2007, the section gave rise to the Sudanese teddy bear blasphemy case. In December, 2007, the section was used against two Egyptian booksellers. They were sentenced to six months in prison because they sold a book that the court deemed an insult to Hazrat Aisha (R.A.), one of Prophet Mohammed's (S.A.W.) wives. United Arab Emirates The United Arab Emirates discourage blasphemy by controlling what is published and distributed, by using Sharia punishments against Muslims, and by using judge-made penalties against non-Muslims. United Kingdom Blasphemy laws in the United Kingdom were specific to blasphemy against Christianity. The last attempted prosecution under these laws was in 2007 when the fundamentalist group Christian Voice sought a private prosecution against the BBC over its broadcasting of the show Jerry Springer:. The Opera (which includes a scene depicting Jesus, dressed as a baby, professing to be "a bit gay"). The charges were rejected by the City of Westminster magistrates court. Christian Voice applied to have .this ruling overturned by the High Court, but the application was rejected. The court found that the common law blasphemy offences specifically did not apply to stage productions (S.2(4) of the Theatres Act 1968) and broadcasts (S.6 of the Broadcasting Act 1990). The last successful blasphemy prosecution (also a private prosecution) was Whitehouse v. Lemon in 1977, when Denis Lemon, the editor of Gay News, was found guilty. His newspaper had published James Kirkup's poem The Love that Dares to Speak its Name, which allegedly vilified Christ and his life. Lemon was fined ?500 and given a suspended sentence of nine months imprisonment. It had been "touch and go", said the judge, whether he would actually send Lemon to jail. In 2002, a deliberate and well-publicised public repeat reading of the poem took place on the steps of St Martin-in-the-Fields church in Trafalgar Square, but failed to lead to any prosecution. The last person in Britain to be imprisoned for blasphemy was John William Gott on 9 December 1921. He had three previous convictions for blasphemy when he was prosecuted for publishing two pamphlets which satirised the biblical story of Jesus entering Jerusalem (Matthew 21:2-7), comparing Jesus to a circus clown. He was sentenced to nine months' hard labour. The last prosecution for blasphemy in Scotland was in 1843. In 1697, a Scottish court hanged Thomas Aikenhead for blasphemy. On 5 March 2008, an amendment was passed to the Criminal Justice and Immigration Act 2008 which abolished the common law offences of blasphemy and blasphemous libel in England and Wales. (Common law is abolished, not repealed.) The Act received royal assent on 8 May, 2008, and the relevant section came into force on 8 July 2008. Yemen Accusations of blasphemy in Yemen serve the same purpose there as elsewhere. The accusations victimize religious minorities, intellectuals and artists, reporters and human rights defenders, and opponents of the ruling clique. If vigilantism or abuse by the authorities does not kill an accused or force an accused into exile, the accused in Yemen will be subject to Islamic law (Sharia). Sharia, according to some interpretations, prescribes death as the proper punishment for blasphemy. United States In early days of United States even death was provided as the penalty for blasphemy, however, the law is extinct now. Massachusetts, Michigan, Oklahoma, South Carolina, Wyoming, and Pennsylvania have laws that make reference to blasphemy. Some US States still have blasphemy laws on the books from the founding days. For example, Chapter 272 of the Massachusetts General Laws a provision based on a similar colonial era Massachusetts Bay statute' enacted in 1697 states: Section 36. Whoever wilfully blasphemes the holy name of God by denying; cursing or contumeliously reproaching God, His creation, government or final judging of the world, or by cursing or contumeliously reproaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of nor more than three hundred dollars, and may also be bound to good behavior. The history of Maryland's blasphemy statutes suggests that even into the 1930s, the First Amendment, was not recognized as preventing States from passing such laws. An 1879 codification of Maryland statutes prohibited blasphemy: Art. 72, Sec. 189. If any person, by writing or speaking, shall blaspheme or curse God, or shall write or utter any profane words of and concerning our Saviour, Jesus Christ, or of and concerning the Trinity, or any of the persons thereof, he shall, on conviction, be fined not more than one hundred dollars, or imprisoned not more than six months, or both fined and imprisoned as aforesaid, at the discretion of the court. 9. Constitutionally speaking, Pakistan is an Ideological State as laid down in the Preamble to the Constitution of the Islamic Republic of Pakistan eversince 12th day of April, 1973 with the name as "Islamic Republic of Pakistan". This Constitution makes it clear, unambiguously and unequivocally that the sovereignty over the entire Universe belongs to Almighty. ALLAH alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust. And whereas it is the will of the people of Pakistan to establish an order wherein the State shall exercise its powers and authority through the chosen representatives of the people wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed. 10. The Constitution of the Islamic Republic of Pakistan also demands the creation of a society wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings. and requirements of Islam as set out in the Holy Quran and Sunnah and wherein adequate provision shall be made to SAFEGUARD THE LEGITIMATE INTERESTS OF MINORITIES and backward and depressed classes. 11. It is also noteworthy that we, the people of Pakistan being conscious of our responsibility before Almighty Allah and men and being cognisant of the sacrifices made by the people in the cause of Pakistan and being faithful to the declaration made by the Founder of Pakistan, Quaid-i-Azam Mohammad Ali Jinnah, that 'Pakistan would be a democratic State based on Islamic principles of social justice, gave this constitution to ourselves so that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world and make their full contribution towards international peace and progress and happiness of humanity. 12. This order in the society can never be achieved unless the relevant legislation is done and it is institutionalized as well. Islam is the State religion in the country whereas Quran and Sunnah are the chief sources of legislation. 13. Now coming to validity of section 295C which was brought on Pakistan Penal Code 1860 through Act No. III of 1986. At this stage it is apt to reproduce the same for analysis qua a judgment quoted earlier which has already attained finality:- "295C. Use of derogatory remarks, etc., in respect of the Holy Prophet (SAW).--- 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 (SAW) shall be punished with death, or imprisonment for life, and shall also be liable to fine." This piece of legislation has already been debated in and outside of the Parliament, Parliamentary Forums and also before a constitutional court. The Federal Shariat Court examined the law in hand in the light of Quran and Sunnah in the case titled "Muhammad Ismail Qureshi vs Pakistan through Secretary, Law and Parliamentary Affairs" [PLD 1991 FSC Page 10] and found the alternative punishment for life as against the Injunctions of Islam. A few paras from the judgment may be reproduced as below:- "33. The words (Sub, Shatum) and (Aazi) have been used for the contempt of the Prophet in Holy Qur'an and Sunnah. (Sub) means to suffer, to harm, to molest, to contemn, to insult, to annoy, to irritate, to injure, to put to trouble, to malign, to degrade, to scoff. (Arabic English Lexicon, E.W. Lane, Book-I, Part-I page 44). The word (Shatum) means to insult, to abuse, to revile, to scold, to curse, to defame." [PLD 1991 FSC 10 - page 26] 66. Practically, all the Jurisconsults and Scholars agreed that in view of the above verses and the equal status of all the Prophets as such, the same penalty of death as determined above shall apply, in case any one utters contemptuous remarks or offers insult, in any way, to any one of them. 67. In view of the above discussion we are of the view that the alternate punishment of life imprisonment as provided in section 295C, Pakistan Penal Code 1860 is repugnant to the Injunctions of Islam as given in Holy Qur'an and Sunnah and therefore, the said words be deleted therefrom." [page 35 - PLD 1991 FSC Page 10] 14. There exists a very strong lego-constitutional judicial hierarchy of courts in Pakistan. Under this credible system every offence punishable with death is triable by a Court of Session. Chapter XXIIA of Criminal Procedure Code 1898 and the Provisions of Qanun-e-Shahadat Order 1984 is a guarantee for fair trial. Apart from this lawfully assured process at present, right to fair trial for every accused is made a fundamental right under Part-II of the Constitution of the Islamic Republic of Pakistan, 1973 vide Constitution (Eighteenth Amendment) Act, 2010, which ensures that in every criminal charge against any person the accused shall be entitled to a FAIR TRIAL as well as DUE PROCESS. In Pakistan under this system of trial every accused is represented by a legal expert, having, every right of defence and no accused person can be denied the right to consult and be defended by a legal practitioner of his own choice, according to the fundamental rights under clause (1) of Article 10 of the Constitution. The death penalty, if awarded CANNOT BE EXECUTED unless it was confirmed by a Division Bench of the High Court concerned as is clear from the bare reading of section 374 of the Criminal Procedure Code 1898 which reads as under: "374. When the Court of Session passes sentence of death, the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court." 15. An accused person convicted on a trial held by Sessions Judge or an Additional Sessions Judge, may appeal to the High Court under section 410 of the Criminal Procedure Code 1898. In case of an acquittal the provincial Government may direct the public prosecutor to file an appeal under section 417 of the Criminal Procedure Code 1898 before the High Court from the order of acquittal passed by any court other than a High Court and as per subsection (2A) of section 417 ibid a person aggrieved by the order of acquittal may also file an appeal against such order. 16. In any case submitted under section 374 the High Court under section 376 of Criminal Procedure Code 1898 may confirm the sentence, or pass any other sentence warranted by law, or may annul the conviction, and convict the accused of any offence of which the Sessions Court might have convicted him, or order a new trial on the same or an amended charge, or may acquit the accused person. At this juncture I may advert to a.7other aspect of the matter that some propaganda driven minds and agenda driven individuals give a wrong impression that procedural laws in Pakistan do not meet the international standards of human rights or these laws are not recognizable globally. This impression is totally baseless and ill-founded. The closest example in this regard could be cited from India where Code of Criminal Procedure 1973 (Act 2 of 1974) in its Chapter XXVIII lays down the similar provision of confirmation of death sentences inflicted by the sessions court as under: "366. Sentence of death to be submitted by Court of Session.--(1) When the Court of Session passes sentence of death, the proceedings shall be submitted to' the High Court and the sentence shall not be executed unless it is confirmed by the High Court." For the benefit of comparative reading I may mention here a similar provision in Pakistani law which is section 374 Criminal Procedure Code 1898. "374. Sentence of death to be submitted by Court of Session.--(1) When the Court of Session passes sentence of death, the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court." It is evident from the comparative reading of the Pakistan Code of Criminal Procedure 1898 and Indian Code of Criminal Procedure 1974 that even the wording of the law is the same. So in view of this proven analysis, so far as the law in Pakistan is concerned, it meets the international requirements and standards of prosecution} and trials, etc. I may note it sadly that the present Code of Criminal Procedure in Pakistan is an enactment not done after the independence in 1947 rather the law enacted during the British rule is adopted. 17. Then there is a remedy available to the accused/convict to file an appeal before the High Court under section 41 IA, Criminal Procedure Code 1898. Further, there is a remedy available to every accused/convict and also an aggrieved person before the apex court of Pakistan. Under paragraph (a) of clause (2) of Article 185 of the Constitution of the Islamic Republic of, Pakistan, 1973, Supreme Court shall have jurisdiction to hear and determine appeals from judgments/sentences passed by a High Court. The said relevant provision is reproduced below: "185(2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence of a High Court- (a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life; or, on revision, has enhanced a sentence to a sentence as aforesaid; or (b) if the High Court has withdrawn for trial before itself any case from any court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid; or (c) if the High Court has imposed any punishment on any person for contempt of the High Court." 18. Even after the finality of the judgment by the Supreme Court of Pakistan or any other court or tribunal the President of the Islamic Republic of Pakistan under Article 45 of the Constitution could also exercise powers to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority. These powers of the President were also made subject to the judicial scrutiny in the case titled as Abdul Malik v. The State [PLD 2006 SC 365]. In this case I have had the honour of assisting the Hon'ble Supreme Court of Pakistan as an Advocate for some of the appellants and the petitioners. The Bench was headed by the Chief Justice of Pakistan, Mr. Justice Iftikhar Muhammad Chaudhry comprising of Mr. Justice Rana Bhagwandas, Mr. Justice Faqir Muhammad Khokhar, Mr. Justice M. Javed Buttar and Mr. Justice Tassaduq Hussain Jillani. The relevant paragraph of the said judgment is reproduced below for ready reference: "----Arts. 45, 48(2) & 2-A---Criminal Procedure Code (V of 1898), 5.402---Power of President of Pakistan to grant remissions in terms of Art.45 of the Constitution---Nature and scope---President enjoys unfettered powers to grant remissions in respect of offences and no clog stipulated in a piece of subordinate legislation could abridge such powers of the President---Such powers of the President were not violative of the spirit of Art.2-A of the Constitution---Power of the President to grant pardon, reprieve, respite, remit or suspend, or commute .any sentence was not subject to S.402, Criminal Procedure Code, 1898-Principles." 19. In the light of aforegoing discussion the death penalty for blasphemy provided in section 295C of the Pakistan Penal Code 1860 is well in accordance with the Injunctions of Islam as laid down in the Holy Quran and Sunnah of Holy Prophet (SAW) and NEED NOT TO BE CHANGED OR AMENDED. Therefore, all the references mentioned in paragraph I are answered in negative being misconceived and unfounded under the law. As per Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973, no person shall be deprived of life or liberty save in accordance with law and all citizens are equal before law and are entitled to equal protection of law under clause (1) of Article 25 of the Constitution. This was the precise reason that section 295C of the Pakistan Penal Code 1860 is triable by the sessions court being the court of common causes and it is not subjected to trial before any special court, which makes the process of trial transparent, open, fair and credible. 20. Another aspect of the matter which is to be touched briefly is the freedom of religion in Pakistan. Our constitutional scheme has made the freedom to profess religion and to manage religious institutions a fundamental right which is also justiceable before the courts of law under paragraph (a) of Article 20 of the Constitution of the Islamic Republic of Pakistan, 1973, it is guaranteed that every citizen shall have the right to profess, practice and propagate his religion and also under paragraph (b) every religious denomination and every SECT thereof shall have the right to establish, maintain and manage its religious institutions. There is a rider in this Article which is also in consonance with the global principles of justice, law and constitutionalism which makes this freedom to profess, practice or propagate the religions for every SECT and to establish, maintain and manage religious institutions, OF COURSE, subject to law, public order and morality. 21. Pakistan being a very responsible state was capable to create such lego-constitutional mechanism for trials, appeals and constitutional and other procedural remedies that ever since 1986 till date, reportedly, no execution has taken place under this law so far. This fact is an ample proof alone of safeguards embodied in the entrenched judicial practices in this country. 22. The Ministry of Interior is advised to follow the legal course of respecting the principle re lis-pendens. No action is required by executive authorities as Mst. Aasia Noreen had already sought herself legal remedy under section 410 of the Criminal Procedure Code 1898 by filing an appeal against her conviction in the concerned High Court challenging the judgment 'of the trial court and penalty of death sentence. 23. So far as the request made to the Prime Minister of Pakistan by the Ministry of Minorities which is also referred to the Law, Justice & Parliamentary Affairs Division to look into the reforms of blasphemy legislation as a matter of urgency is concerned, it has no substance. Therefore, no action is recommended. 24. Since the Ministry of Foreign Affairs sought briefing material from this Ministry, therefore, it is appropriate that a copy of instant review be sent separately to the Ministry of Foreign Affairs. It is also recommended that the Prime Minister may advise all Divisions and other concerned quarters not to make public comments on the issues involving constitutional intricacies or legal consequences without the opinion of the Ministry of Law, Justice & Parliamentary Affairs as this is the requirement of Government of Pakistan's Rules of Business, 1973.