CONSTITUTIONAL ISSUES AND THE TREATMENT OF PAKISTAN’S RELIGIOUS MINORITIES BY FARAHNAZ ISPAHANI

Abstract

Although Pakistan was created as a homeland for South Asia’s Muslims, religious freedom was one of its founding principles. Seventy years later, Pakistan is better known for religious extremism and the persecution of Muslim and non-Muslim religious minorities. Pakistan’s blasphemy law is a state-sanctioned tool of religious oppression used to target members of minority faith communities whether Ahmadiya, Christian, Hindu, or Shiite, as well as Sunnis who criticize the law. This paper discusses the blasphemy law and other laws that have led to the state of religious oppression in Pakistan.

Pakistan’s constitution declares it an Islamic Republic. The interpretation of what an Islamic republic means has varied at different times during the 70 years that Pakistan has existed as an independent state. Unfortunately, it has been consistent in its failure to fulfil Pakistan’s obligations towards its minorities under the Universal Declaration of Human Rights.

When Pakistan was created on 14 August 1947, its territory was to include 23 per cent non-Muslims among its population. The bulk of that non-Muslim population was in erstwhile East Pakistan, which became Bangladesh in 1971, but even the areas currently constituting Pakistan included a large number of Hindus, Sikhs, Zoroastrians, Christians, and Buddhists. The proportion of non-Muslims in Pakistan’s population has since fallen to approximately three per cent today.

Furthermore, the distinctions among Muslim denominations have become far more accentuated over the years. Muslim groups such as the Shias, who account for approximately 20–25 per cent of Pakistan’s Muslim population, are often targeted by violent extremists. Ahmadis, barely one per cent of the Muslim population, have been declared non-Muslim by the writ of the state.

Non-Muslim minorities such as Christians, Hindus, and Sikhs have been the victims of suicide-bomb attacks on their neighbourhoods, and their community members have been converted to Islam against their will. Houses of worship of non-Muslims as well as of Muslim minority sects have been attacked and bombed while filled with worshippers.

Pakistan has descended to its current state of religious intolerance through a series of political decisions made by its leaders, after the death of its founder, Muhammad Ali Jinnah. The descent began in 1949 with the Constituent Assembly declaring the objective of Pakistan’s constitution to be the creation of an Islamic state. It reached a nadir with the ‘Islamization’ drive under General Zia during the 1980s.

Today, the country is dealing with armed militias and terrorist groups – many of which were sponsored by the state under the Zia regime and by the civil and military governments since – each intent on imposing its version of Islam by violent means.

With their public statements and political machinations, Pakistan’s early leaders steered the country away from Mr. Jinnah’s secular vision. Mr. Jinnah’s address before the Constituent Assembly on 11 August 1947 laid out a comprehensive statement of the principles for Pakistan’s future constitution.1

It declared that religion would have nothing to do with the business of the state. But it was suppressed at the behest of politicians. Mr. Jinnah’s secular principles were kept from public discourse, and discussion of Pakistan as an Islamic state thus began.

With this began the denial of minorities’ rights, along with the official denial of atrocities committed against them. Within the first few months of Independence, non-Muslim members of Pakistan’s first Constituent Assembly, in particular, expressed concern about what they described as the mass expulsion of Hindus from Pakistan.

In March 1949, Prime Minister Liaquat Ali Khan moved in the Constituent Assembly what came to be known as the “Objectives Resolution”: a declaration of the goals of the new state that would form the basis of its future constitution and laws. The resolution described a vision for Pakistan diametrically opposed to the secular one Jinnah had offered in his 11 August 1947 speech.

“The Objectives Resolution accepted the premise that ‘sovereignty over the entire universe belongs to God Almighty alone’ and that the State of Pakistan would exercise authority ‘within the limit prescribed by Him’.” The resolution declared that “Muslims shall be enabled to order their lives in the individual and collective spheres in accord with the teachings and requirements of Islam as set out in the Holy Quran and the Sunna” and “adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes”.2

The net effect of the Objectives Resolution was to define the state in Islamic terms, opening the door for further legislation based on the interpretation of Islam by a parliamentary majority. In the ensuing decades, however, democracy in Pakistan became intermittent, leaving the authority of inferring the Quran and Sunna (practices of the Prophet Muhammad) for long intervals in the hands of military dictators.

Who is a Muslim?’

By 1953, the resentment against Hindus was supplanted by antagonism toward the Ahmadiyya sect, also referred to pejoratively as ‘Qadianis’ or ‘Mirzais’. Members of the Punjab-based sect deemed themselves Muslim, but their belief in a 19th-century prophet or messiah, Mirza Ghulam Ahmad, led to their excommunication by clerics of other Muslim sects. The Ahmadis had actively supported Jinnah and the demand for Pakistan and one of the sect’s members, Sir Zafrulla Khan, served as Pakistan’s first foreign minister.

The demands of the anti-Ahmadi agitators were unusual for a modern, democratic state. Not only was the state being asked to decide who was or was not part of a specific religion, it was being called upon to officially discriminate against members of a religious sect. The anti-Ahmadiyya campaign called itself the Tehrik-e-Tahaffuz-e-Khatm-e-Nabbuwat (Movement for the Protection of the Finality of the Prophet). Its appeal to mainstream Sunni Muslims was emotive. The believers had to defend the Prophet Muhammad’s status as the final prophet of God and this could only be done by legislation declaring Ahmadis non-Muslims and by restricting their role in government.

The problems with conceding these demands were manifold. At the most fundamental level, it would set the dangerous precedent of involving the state in determining which sects were acceptably Muslim. Once the Ahmadis were officially declared non-Muslim in 1974, a new campaign started with the intent to subject the Shias to similar proscriptions. That the protestors resorted to violence against a minority religious sect pointed to the likelihood that such campaigns might become the norm – a fear that has since been realized in the form of sectarian terrorism.

With the anti-Ahmadiyya protests, Pakistan had moved from purging non-Muslims to an extended period of bitter fighting over who may be deemed Muslim and how to make the state more Islamic. That debate continues to the present day with grave consequences for religious minorities.

In 1956, when the second Constituent Assembly was finally able to arrive at some sort of consensus, it named Pakistan “the Islamic Republic of Pakistan” and included the Objectives Resolution as the preamble to the constitution. Part 3 of that constitution laid down several “Directive Principles of State Policy”. These included Islamic provisions such as “steps shall be taken to enable the Muslims of Pakistan individually and collectively to order their lives in accordance with the Holy Quran and Sunna” and “to promote unity and the observance of Islamic moral standards”.

The Pakistani state was now committed to securing “the proper organization of zakat [almsgiving], wakfs [religious endowments] and mosques”, to “prevent the consumption of alcoholic liquor”, and to “eliminate riba [usury or interest] as early as possible”.3

3 G. W. Choudhury, Documents and Speeches on the Constitution of Pakistan. Dacca: Green Book House, 1967.

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The 1956 Pakistan constitution barred non-Muslims from holding the office of head of state. As if that were not enough, part 12 of the constitution was titled “Islamic Provisions”. It included Article 197, which said that “the president shall set up an organization for Islamic research and instruction in advanced studies to assist in the reconstruction of Muslim society on a truly Islamic basis”.

Article 198 declared, “No law shall be enacted which is repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunna, hereinafter referred to as Injunctions of Islam, and existing law shall be brought into conformity with such Injunctions”.4

Although Article 198 was qualified by the words “Nothing in this Article shall affect the personal laws of non-Muslim citizens, or their status as citizens, or any provision of the Constitution”,5 it was enough for the Islamists to continue pressing for further Islamization, including limiting the rights of non-Muslims according to the various orthodox interpretations of Islam.

Military-imposed national identity

After imposing Martial Law, Pakistan’s first military ruler, General Ayub Khan, arbitrarily framed a new constitution for Pakistan in 1962. His only secular gesture was to initially refer to the country as the “Republic of Pakistan”, though later he reverted to the nomenclature “Islamic Republic of Pakistan”. Like the 1956 constitution, the new basic law also included several “Islamic provisions” and restricted the office of president to Muslims. A Council of Islamic Ideology was assigned the task of recommending to the government how to bring all laws “in conformity with [the] Quran and Sunna”.6

From the perspective of Pakistan’s religious minorities, Ayub’s self-styled benevolent authoritarianism offered little relief against the tide of intolerance that had engulfed the country since Partition. The minorities’ treatment now depended on the dictator’s view of each community. Circumstances improved somewhat for Christians, whom Ayub did not view as a threat to the state, resulting in some of their co-religionists gaining senior positions in government.

Anti-Ahmadi agitation was also contained because the field marshal chose not to exclude groups from the fold of believers that deemed themselves Muslims. Pakistan’s Hindus bore the brunt of Ayub’s particular variety of prejudice.

The loss of East Pakistan in 1971 drastically reduced the number and influence of religious minorities in the country. But the reduction in territory and population did not end the drive for Islamization. On the contrary, Pakistan’s leaders persisted in nation-building through religion, rather than embracing inclusive civic nationalism. Pakistan’s religious minorities were now more beleaguered than ever.

Beginning of Islamization

The 1973 constitution not only retained the Islamic provisions from earlier versions but also added new ones. Islam was declared the “State religion of Pakistan” and a promise was made to ensure that “all existing laws” conform “with the Injunctions of Islam as laid down in the Holy Quran and Sunnah”. The constitution declared that “no law shall be enacted which is repugnant to such Injunctions”.

The preamble of the new basic law spoke of enabling the Muslims “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”. But it also promised that “adequate provision shall be made for the minorities freely to profess and practice their religions and develop their cultures”.7

In addition to appealing to the Islamists with constitutional provisions, the civilian government led by Zulfikar Ali Bhutto also created a Ministry for Religious and Minorities Affairs, which was to undertake programmes appealing to the religious sentiments of the populace.

Over the next four years, the Imams of Islam’s holiest shrines in Mecca and Medina were invited to tour the country in well-publicized religious ceremonies that were telecast live on state television; the printing of the Quran was standardized, and religious schools began to receive government funding. The government also provided subsidies for Hajj pilgrims. The result was that the number of Pakistani Hajj travellers increased from a few thousand to tens of thousands annually.

The Ahmadi controversy also resurfaced and in September 1974 both houses of Pakistan’s Parliament passed the second amendment to Pakistan’s constitution, pronouncing Ahmadis non-Muslims.8

The second amendment of the Pakistani constitution altered Article 106, Clause 3, which lists religious minority communities, to include “persons of Qadiani group or the Lahori group (who call themselves ‘Ahmadis’)”. The Ahmadis were the only religious minority who were listed in the constitution not by the name they use but by pejoratives applied to them by their detractors. It was akin to a predominantly Protestant Christian country describing Catholics as ‘Papists’ in its fundamental law.

Moreover, a new clause that attempted to define ‘Muslim’ was added to Article 260 of the constitution, transforming a purely religious question into a matter of law. “A person who does not believe in the absolute and unqualified finality of The Prophethood of Muhammad (Peace be upon him), the last of the Prophets”, it read,

or claims to be a Prophet, in any sense of the word or of any description whatsoever, after Muhammad (Peace be upon him), or recognizes such a claimant as a Prophet or religious reformer, is not a Muslim for the purposes of the Constitution or law.9

This constitutional amendment created a religious dilemma for the Ahmadis and effectively took away their freedom of religion. Their faith required them to insist that they were Muslims, albeit with some beliefs that departed from those of other Islamic denominations. The law, however, would now deem them non-Muslims. Now, if they stated Islam as their religion on government documents, as their faith dictated, they would be breaking the law.

The government made things even more complicated by requiring all applicants for passports and mandatory national identity cards to sign a declaration if they wanted to be identified as Muslims. The language of the declaration made it impossible for Ahmadis to get a passport or national identity card as a Muslim without denouncing their denomination’s founder as an imposter. On the other hand, accepting a passport or national identity card that described them as non-Muslim also ran against the Ahmadi religion.

For the first 30 years after Independence, Pakistanis at least debated the role of Islam in matters of state, even as the political balance gradually shifted against secular and pluralist ideas. Once General Muhammad Zia-ul-Haq seized power through a military coup in 1977, debate was terminated and replaced by arbitrary and forced Islamization. No longer was it possible for members of parliament or judges to question the basic premise of Pakistan being an Islamic state, as some members of the Constituent Assembly and members of the Munir Commission had done during the country’s first decade. Zia changed laws by decree, imposed draconian punishments based on medieval interpretations of Islam, silenced secular critics, and changed school curricula to pass on his bigoted worldview to the next generation.

From the first weeks of his martial law regime, Zia imposed laws, which he described as reforms, designed to create a Nizam-i-Islam (Islamic system of government) in Pakistan. Zia’s lack of tolerance for other faiths was particularly evident in his general disregard for the concerns of Pakistan’s minorities.

Islamization under and after Zia

On 7 February 1979, marking the Prophet Muhammad’s birthday, Zia amended the constitution through a military decree to change the concept of judicial review. Instead of merely judging laws in the light of the constitution, the higher courts were now given jurisdiction to establish sharia benches to determine whether a law was repugnant to Islam.10

The regime claimed that the religious courts were meant to supplement, not replace, the conventional court system inherited from British rule. A hudood (lit. ‘limit’: a class of crimes under Islamic law) decree was issued concomitantly with the decree creating the sharia courts. The intent of these decrees was to place an emphasis on Islamic codes of personal behaviour.

Zia issued a presidential decree providing stringent sharia punishments for four offences that were subject to hudood under Sunni Islamic law: intoxication, theft, adultery, and false allegations. Non-Muslim citizens and foreigners were exempted from these prohibitions and were issued permits for ‘reasonable quantities’ of alcohol for private consumption, though they were forbidden from being drunk in public. Violators of the prohibition law were to be punished with three years’ rigorous imprisonment and whipping (80 stripes). The Offences against Property (enforcement of hudood) Ordinance in 1979 specified amputation of the right hand or the left foot, with the death sentence for the offences of theft and armed robbery.11

Zia’s decision to allow judicial review of laws on the grounds of their lack of conformity with Islam led to a plethora of litigation, with various groups and individuals challenging different aspects of the legal structure. Some borrowers sued banks, refusing to pay interest on loans on grounds that interest was forbidden in Islam; Pakistan’s state-owned television corporation was challenged over showing international sports events where participants’ legs were uncovered; someone brought a suit claiming that non-pious individuals could not vote or be elected to office in an Islamic state; and the permissibility under Islam of the game of cricket and the wearing of Western-style uniforms by the police and military were all questioned, among other issues.

The standing of non-Muslims as citizens was diminished before the courts, and the power of their franchise was also diluted by shrewd alterations to the electoral laws. Although Zia did not hold legislative elections until 1985, he changed the Representation of the People Act of 1976 to reintroduce separate communal electorates.

Non-Muslim minorities could no longer vote along with Muslims to elect officials to local councils or provincial and federal legislatures. A fixed number of non-Muslim seats were to be allocated in each elected body and non-Muslims could vote for members only of their own religious community.

This measure diminished the political influence of non-Muslims, as their representatives in elected bodies did not carry any weight within the major political parties. The Ahmadis, who did not accept their designation as non-Muslims, refused to accept electoral representation as a minority and therefore were effectively disenfranchised.

Using his sweeping powers under martial law, Zia issued a presidential ordinance in 1984 that barred Ahmadis from performing azan (the call to prayer) and from describing their places of worship as a mosque or masjid. Zia’s ordinance went further than the 1974 constitutional amendment in defining the terms ‘Muslim’ and ‘non-Muslim’. The new definition described a ‘Muslim’ as someone who believed “in the unity and oneness of Almighty Allah, in the absolute and unqualified finality of the Prophethood of Mohammad (PBUH: peace be upon him), and who does not believe in, or recognize as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Mohammad (PBUH).”12

‘Non-Muslim’ was now defined by law to mean “a person who is not a Muslim and includes a person belonging to the Christian, Hindu, Sikh, Buddhist or Parsi community, a person of the Qadiani group or the Lahori group (who call themselves ‘Ahmadiyas’ or by other name), or a Bahai, and a person belonging to any of the scheduled castes [of Hinduism]”. A second decree, the Prohibition and Punishment Ordinance of 26 April 1984, inserted two new sections (298-B and 298-C) in the Pakistan Penal Code. The new section 298-B prescribed punishments for “misuse of epithets, descriptions and titles, etc., reserved for certain holy personages or places”.13

The new 298-C was even more sweeping. Under this provision,

Any person of the Qadiani or the Lahori group, who directly or indirectly, poses himself as a ‘Muslim’ or calls, or refers to, his faith as Islam, or preaches or propagates his faith, or invites others to accept his faith, by words, either spoken or written, or by visible representation, or in any manner whatsoever outrages the religious feelings of Muslims, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.14

The provisions of Ordinance XX made it virtually impossible for Ahmadis to practise their faith publicly in Pakistan. It was a law reminiscent of the Middle Ages, when public profession of faith by a sect other than that of the ruler elicited state retribution. Moreover, the ordinance allowed an Ahmadi to be subjected to criminal proceedings based on little more than the whim of a member of the religious majority. An orthodox Muslim could go to the police and simply complain that an Ahmadi had outraged his religious feelings, and the Ahmadi in question could be arrested.

It should be remembered here that several sects around the world use religious terminology for their leaders that is similar to the words used to describe holy figures of other religions. The Church of Jesus Christ of Latter-Day Saints (Mormons), for example, call the head of their church a ‘Prophet’ and his closest advisers are ‘Apostles’. Yet the State of Israel does not forbid them to do so for fear of offending Jewish orthodoxy, nor do any of the world’s Christian majority states have laws that provide imprisonment and fines for the use of such terminology.

Even though there was no precedent for such legislation in Islamic juridical history, the court justified the ordinance in its entirety on grounds that Ahmadis needed to be prohibited from “posing as Muslims” because they had not accepted the obligation to call themselves non-Muslims, which had been created by the amendment to Article 260 of the constitution in 1974. The judges of the federal court, later supported by the Supreme Court, reasoned that a threat to law and order had been created by the hostility of Muslims to Ahmadis.15

In the view of the court, the Ahmadis should after the amendment to Article 260 “have refrained from directly or indirectly posing as Muslims but they obstinately persevered in trying the patience of the Muslim Ummah by acting contrarily” and because of this persistence it became necessary to prevent Muslims from being deceived into thinking Ahmadis were Muslims.16

In the court’s view, Zia’s laws that penalized Ahmadis for practising their religion publicly were justified as part of implementing the 1974 amendment to the constitution. It was also justified because Ahmadis “by posing themselves as Muslims try to propagate their religion to every Muslim they come across. They outrage his feelings by calling Mirza Sahib [Mirza Ghulam Ahmad] a Prophet because every Muslim believes in the finality of Prophethood of Muhammad (P.B.H.). This creates a feeling of resentment and hostility among the Muslims which gives rise to law and order problems. His claim of being a promised Messiah and Mehdi was also resented”.17

Under Zia’s rule, Pakistan’s legal system was methodically stacked against religious minorities, and legislation was passed that gravely impinged upon their right to maintain or openly profess their beliefs.

Furthermore, the Pakistan Penal Code (PPC) and the Criminal Procedure Code were amended under Zia’s rule, through ordinances in 1980, 1982, and 1986. These criminalized any act that could cause dishonour to the Holy Prophet (SAW), Ahle Bait (the family of the Prophet [SAW]), Sahaba (companions of the Prophet [SAW]) and Sha’ar-i-Islam (Islamic symbols). A simple complaint to the police about any action that may constitute a crime under the dubiously wide-ranging provisions of these ordinances could result in an arrest and trial leading to punishments of imprisonment or a fine – or both.

It would perhaps be an understatement to describe these amendments and other related legislation as draconian. Article 295-A of PPC states that a deliberate and malicious act to outrage the religious feelings of any class by insulting its religion or religious beliefs will be punishable by up to ten years’ imprisonment or a fine or both; 295-B makes the defiling of the Holy Quran punishable by imprisonment for life; 295-C mandates that the use of derogatory remarks in respect of the Holy Prophet be punished by death and a fine; 298-A makes the use of insulting remarks in respect of holy personages punishable by three years’ imprisonment or a fine or with both; 298-B prescribes punishment of three years’ imprisonment and a fine for the misuse of epithets, description, and titles reserved for certain holy personages or places of Islam by Ahmadis; and 298-C makes an Ahmadi calling himself Muslim or preaching or propagating his faith or outraging the religious feeling of Muslims or posing himself as a Muslim a punishable crime attracting three years’ imprisonment and a fine.18

These legal changes enabled bigoted Muslims to persecute, settle scores, or otherwise seek advantage against non-Muslims and Ahmadis by bringing false cases under the vaguely worded blasphemy law.

Mosque and military

The march towards Islamization was not slowed by Zia’s death and the return to civilian rule. The civilian governments were on a short leash, with the military asserting itself behind the scenes, often with support in the streets from religious political parties. When Prime Minister Benazir Bhutto, elected in 1988, spoke about reversing some of Zia’s ‘Islamic’ laws, even the ostensibly moderate opposition joined protests organized by fundamentalists. The Ulema issued a fatwa saying that a woman could not lead an Islamic state, thereby questioning Bhutto’s legitimacy. Violent protests and parliamentary obstruction resulted in Bhutto abandoning the idea of overturning the Hudood Ordinances and other similar decrees from the Zia era.

The military’s support for the Islamists was motivated by the desire to control foreign and national security policies, but its net effect was to maintain the status quo over Islamization. Years later, in a judgment delivered by the Supreme Court in 2012, it was confirmed that the Pakistan army and the Inter-Services Intelligence (ISI) had been conspiring to keep Bhutto’s first government in check. They forced the government’s dismissal by the president under constitutional amendments introduced under Zia and also influenced the elections of 1990 by funding Bhutto’s opponents.19

Over the next decade, two more civilian governments were dismissed by presidential fiat at the military’s behest, before military rule returned in 1999. The civilians were often weak and unable to resist the pressures from Islamist groups and their military backers and, in some cases, played the religion card themselves to retain power.

The Nawaz Sharif government, which succeeded Bhutto’s short-lived first administration in 1990, passed a new Sharia bill in May 1991 and the twelfth amendment to the constitution in July. The sharia bill declared the Quran and Sunnah as the law of the land, not just the guideline for legislation as had been the case since the Objectives Resolution of 1949.

The language of the bill was such that it could render the federal and provincial legislatures redundant, notwithstanding that they remained the only law-making bodies in the country. The sharia bill opened the way for courts to base their judgments on Islamic law, citing sayings attributed to the Prophet or to medieval Islamic jurists, instead of adjudicating cases on grounds of Pakistan’s laws. Opponents of the bill, including minority and women’s groups, saw it as a further step toward making Pakistan a theocracy.

One of the legacies of Zia-ul-Haq that found special resonance in this period related to blasphemy laws. In October 1990, the federal sharia court had determined that “the penalty for contempt of the Holy Prophet … is death and nothing else”. The court directed the government of Pakistan to change the law to reflect its determination and added, “in case this is not done by 30 April 1991 the words ‘or punishment for life’ in section 295-C, PPC, shall cease to have effect on that date”.

Decisions by the federal sharia court are binding on the government under Article 203-D (3) of the constitution. The government could have appealed the decision to the sharia appellate bench of the Supreme Court but chose not to do so. In July 1991, it announced that it had decided to amend section 295-C as directed, making the death penalty mandatory for the crime of blasphemy in the penal code.20

Once it became known that the death penalty was the only punishment in cases involving blasphemy or insult to Islam’s Prophet, the floodgates opened for the abuse of the relevant provisions. Rampant abuse of these laws was by no means restricted to the authorities, though the police as well as political and sectarian organizations were most often involved.

In Pakistan, bail is restricted in cases involving the death penalty; a person accused under section 295-C would therefore face immediate imprisonment before the case was heard in court. The blasphemy statute thus became a convenient tool for retribution or to gain an advantage against anyone with whom one might have a dispute – regardless of the nature of the dispute.

Soon, there were instances of blasphemy complaints being lodged to force the hand of business rivals 21 or even to exact revenge against a non-Muslim boyfriend of a Muslim woman.22

Following the directive of the federal sharia court of 1990, the alternative punishment of imprisonment for life contained in section 295-C became void. The death penalty is the mandatory punishment for blasphemy. But as Parliament has not passed the legislation required of it by the federal sharia court, the clause “or imprisonment for life” is still part of section 295-C, though without force. But this legal confusion offered no relief for those charged with blasphemy, who now, amid the legal uncertainty, faced even greater hostility from a society that appeared ever more preoccupied with enforcing religious homogeneity.23

Not to be outdone by the federal sharia court in pronouncing legal sanctions against heterodoxy, the government introduced Ordinance XXI of 1991 on 7 July 1991, to increase the maximum punishment for outraging the religious feelings of any group from two years to ten years.

As was the case with Zia’s Ordinance XX, this new law was primarily directed against the Ahmadis. Amnesty International noted that

the amendments of the Pakistan Penal Code introduced in 1991 are applicable to anyone defiling the name of the Prophet Mohammad or outraging the religious feelings of certain groups. They are of significance particularly in the context of the Pakistan Government’s policy towards the Ahmadiyya community, as its members are frequently charged under these two sections of the PPC.24

Pakistan’s fourth military ruler, General Pervez Musharraf (1999–2008), described his policies as “enlightened moderation” and often announced reforms that were diluted after initial publicity. For example, he announced his intention to change the procedure for initiating criminal proceedings under blasphemy laws, making it difficult to file false charges.25

The announcement fell far short of ending blasphemy laws but was nonetheless welcomed by minorities as an improvement. Eventually, however, Musharraf failed to introduce the promised changes after protests from Islamist groups.

Similarly, he ended the separate electorates, allowing non-Muslims to vote and run for office alongside Muslims in general elections. Some seats in Parliament and provincial legislatures were still reserved for non-Muslims and for that purpose a non-Muslim voter register was created. Ahmadis still could not vote because they refused to put their names in the non-Muslim register of voters, insisting that they were Muslims notwithstanding what Pakistan’s law declared them to be. Musharraf initially also expressed sympathy for Christians and Hindus and promised the end of religious militancy.26

But overall the situation did not improve for Pakistan’s minorities during his decade in power.

Conclusion

Pakistani laws, especially ones that deal with blasphemy, deny or interfere with the practice of minority faiths. Religious minorities are targets of legal as well as social discrimination. Most significantly, in recent years, Pakistan has witnessed some of the worst organized violence against religious minorities since Partition. Over an 18-month period covering 2012 and part of 2013, at least 200 incidents of sectarian violence were reported; these incidents led to some 1,800 casualties, including more than 700 deaths.

Many of those targeted for violence during this period were Shia Muslim citizens, who are deemed part of Pakistan’s Muslim majority under its constitution and laws. During the same year-and-a-half period in 2012–2013, Shias were subject to 77 attacks, including suicide terrorist bombings during Shia religious observances.

However, 54 lethal attacks were also perpetrated against Ahmadis, 37 against Christians, 16 against Hindus, and three against Sikhs. Attackers of religious minorities are seldom prosecuted – and, if they are, the courts almost invariably set them free. Members of the majority community, the Sunnis, who dare to question state policies about religious exclusion are just as vulnerable to extremist violence.

Many of Pakistan’s regressive religious laws were introduced under the brutal military dictatorship of General Muhammad Zia-ul-Haq, who ruled from 1977 to 1988. But while Zia can be credited with taking zealotry to new heights through his policy of ‘Islamization’, the trend of religious immoderation can be traced to the earliest days of Pakistan’s emergence as an independent state and continues today.

Link to Original Article: CONSTITUTIONAL ISSUES AND THE TREATMENT OF PAKISTAN’S RELIGIOUS MINORITIES BY FARAHNAZ ISPAHANI

Notes

1 M. A. Jinnah’s speech, 11 August 1947, in Constituent Assembly of Pakistan Debates, Vol. 1.

2 ‘The Objectives Resolution’. Islamic Studies Vol. 48. Issue 1 (Spring 2009): 91–119.

3 G. W. Choudhury, Documents and Speeches on the Constitution of Pakistan. Dacca: Green Book House, 1967.

4 Ibid.

5 Ibid.

6 Khalid Bin Sayeed, ‘Pakistan’s Constitutional Autocracy’. Pacific Affairs Vol. 36. Issue 4 (Winter 1963–1964): 368–369.

7 1973 Constitution of Pakistan, http://www.pakistani.org/pakistan/constitution/.

8 ‘Qadianis Declared Minority: Preaching against Finality of Prophethood by a Muslim Made Punishable’. Dawn, September 7, 1974.

9 1973 Constitution of Pakistan, http://www.pakistani.org/pakistan/constitution/.

10 W. Eric Gustafson, ‘Pakistan 1978: At the Brink Again?’ Asian Survey Vol. 19. Issue 2 (February 1979): 159–162.

11 Ayesha Jalal, The Struggle for Pakistan: Muslim Homeland and Global Politics. Cambridge, MA: Belknap Press, 2014, pp. 222–224.

12 Ordinance XX of 26 April 1984.

13 Ibid.

14 Ibid.

15 ‘Pakistan: Human Rights after Martial Law, Chapter VIII: Rights of Religious and Other Minorities’. International Commission of Jurists’ 1987 report, Geneva, pp. 98–105.

16 Mujeeb ur Rehman v Federation of Pakistan, Pakistan Legal Decisions (PLD) 1984: Federal Shariat Court (FSC), p. 136.

17 Ibid.

18 Pakistan Penal Code: Act XLV of 1860, as amended from time to time.

19 ‘Detailed Judgement on Asghar Khan case in the Supreme Court of Pakistan’. Human Rights Case No 19 of 1996, https://pakistanconstitutionlaw.com/detailed-judgment-on-asghar-khan-case/, accessed 16 March 2018.

20 ‘Pakistan: Blasphemy Charges against Ahmadis’. London: Amnesty International, April 1994.

21 See for example, Anugrah Kumar, ‘Christian Man Arrested for “Blasphemy” in Pakistan After Muslim Business Rival Lodges Complaint’. Christian Post, September 5, 2015, http://www.christianpost.com/news/christian-man-arrested-for-blasphemy-in-pakistan-after-muslim-business-rival-lodges-complaint-144583/, accessed 16 March 2018, and Jibran Khan, ‘Karachi: Christian family faced with blasphemy and forced conversion threats’. Asia News, October 29, 2013, http://www.asianews.it/news-en/Karachi:-Christian-family-faced-with-blasphemy-and-forced-conversion-threats-29407.html, accessed 16 March 2018.

22 See for example Sattar Khan, ‘“WhatsApp blasphemy” and the plight of Pakistani Christians’. Deutsche Welle, August 9, 2017, http://www.dw.com/en/whatsapp-blasphemy-and-the-plight-of-pakistani-christians/a-40597455, accessed 16 March 2018.

23 Ibid.

24 ‘Pakistan: Violation of Human Rights of Ahmadis’. London: Amnesty International, September 1991.

25 ‘Text of Musharraf Speech’. Dawn, October 17, 1999.

26 ‘Church Expects Musharraf to Honor Promises to Religious Minorities’. February 24, 2000, http://www.ucanews.com/story-archive/?post_name=/2000/02/24/church-expects-musharraf-to-honor-promises-to-religious-minorities&post_id=15486, accessed 26 September 2015.

Pakistan acquits Asia Bibi: A great step, but miles to go, still by Farahnaz Ispahani

Wednesday has been a groundbreaking day for the millions of people both within and outside Pakistan who have worked and prayed for the release of Asia Bibi.

FNI

Bibi, an illiterate berry picker, was accused and then convicted for allegedly defiling the name of the Prophet Mohammed. Her Muslim neighbors objected to her drinking water from the same glass as them because she was Christian. Under Pakistan’s blasphemy law, her alleged comment is punishable by death. In 2010, Bibi, at age 45, was sentenced to hang — but just a few hours ago, her sealed judgement was released by the Supreme Court of Pakistan. The judgement had been announced a few days earlier but it was kept sealed until today.

The Supreme Court of Pakistan, on Wednesday, acquitted Asia Bibi, a Christian woman sentenced to death over blasphemy allegations. Asia Bibi was cleared of all blasphemy charges and the court ordered her immediate release.

Many people have lost their lives to the mere allegation of blasphemy in Pakistan — my very dear friends and colleagues, former Punjab governor Salman Taseer, and Shahbaz Bhatti, former Minister for Minority Affairs, were murdered. Shot in cold blood for speaking in defense of Asia Bibi and for speaking against the blasphemy laws.

ST-Bhatti
Voices of courage, killed for speaking up. R-L: Salman Taseer, and Shahbaz Bhatti

A three-judge special bench, headed by Chief Justice of Pakistan Justice Mian Saqib Nisar and comprising Justice Asif Saeed Khosa and Justice Mazhar Alam Khan Miankhel heard Bibi’s 2014 appeal against her conviction and death sentence under section 295-C of the Pakistan Penal Code (PPC).

The chief justice wrote that it was a “well settled principal of law that the one who makes an assertion has to prove it. Thus, the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt throughout the trial. The presumption of innocence remains throughout the case until such time the prosecution on the evidence satisfies the court beyond reasonable doubt that the accused is guilty of the offence alleged against him.”

“The judgments of the High Court as well as the Trial Court are reversed. Consequently, the conviction as also the sentence of death awarded to the appellant is set aside and she is acquitted of the charge. She should be released from jail forthwith, if not required in any other criminal case.”

Justice Khosa’s opinion added, “Blasphemy is a serious offence but the insult of the appellant’s religion and religious sensibilities by the complainant party and then mixing truth with falsehood in the name of the Holy Prophet Muhammad (Peace Be Upon Him) was also not short of being blasphemous.”

“It is ironical that in the Arabic language the appellant’s name Asia means ‘sinful’ but in the circumstances of the present case she appears to be a person, in the words of Shakespeare’s King Leare, ‘more sinned against than sinning’”, Justice Khosa’s opinion read.

Zia
Pakistan owes much of its blasphemy trouble to Zia Ul-Haq.

Pakistan’s laws on blasphemy date back to the military dictatorship of Gen. Muhammad Zia-ul-Haq. In 1980, making a derogatory remark against any Islamic personage was defined as a crime under Pakistan’s Penal Code Section 295, punishable by three years in prison. In 1982, another clause was added that prescribed life imprisonment for “willful desecration of the Quran” and, in 1986, a separate clause was added to punish blasphemy against Prophet Mohammed with “death, or imprisonment for life.”

Bibi’s case illustrated how blasphemy laws are used to persecute the weakest of the weak among Pakistan’s religious minorities.

As a poor Christian from a low caste, Bibi was among the most vulnerable and susceptible to discrimination. And the legal system — which, in theory, should be designed to protect the innocent — failed her in every way.

However, Bibi’s case isn’t the first in which Pakistan’s blasphemy laws have been used to punish minority groups. Since Zia ul Haq imposed the laws, their application has unleashed extremist religious frenzy. Lawyers who dare to represent someone accused of blasphemy have also been killed. In 2014, Rashid Rehman, a distinguished human rights lawyer brave enough to represent those most vulnerable to blasphemy charges — women and children of religious minorities, people with mental disabilities, and the weak and impoverished — was killed in his office by two unidentified gunmen.

Judges who have dared to acquit an alleged blasphemer, or convict the killer of an alleged blasphemer, have either been forced to leave the country — or face death.

We must never forget the brave Pakistanis who have suffered, fought against, prayed for and died because of the blasphemy laws in Pakistan.

We must keep Salman Taseer, Shahbaz Bhatti, Rashid Rehman, Mashal Khan, Salamat Masih, Manzoor Masih, Rehmat Masih, Ayub Masih, Bishop John Joseph,Younis Sheikh, Samuel Masih, Anwar Masih and many more innocent victims of this pernicious law in our thoughts and prayers.

This is one huge victory but the laws remain. Much work remains to be done for their amendment — or repeal.

As with her previous trials and appeals, large crowds gathered outside the court in Islamabad on Wednesday demanding her conviction be upheld and the execution carried out. In messages being sent to the media, Tehreek e Labbaik, Pakistan, an extreme religious party, is openly threatening the three judges. Tehreek e Labbaik’s Afzal Qadri has also asked soldiers to rebel against Army Chief in the aftermath of Asia Bibi’s acquittal as the military is presumed to be behind this bold judgement.

As Pakistan gets increasingly isolated internationally, the military may feel the need to relieve some pressure on Pakistan’s image in the world. The Jamaat e Islami party, which, like Tehreek e Labbaik, has a very strong street presence, has asked its members to come out in Islamabad to demand this judgement be repealed.

In this climate of uncertainty and possible violence, the governments of Sindh and Punjab province have imposed Section 144 in light of the “constant threat alerts regarding possible terrorist activities”. Carrying arms, gatherings of more than four persons, pillion riding, and taking out rallies are some of the acts prohibited under Section 144.

Meanwhile, the national media, especially electronic, has gone totally silent on Asia Bibi’s release, as they too are under threat from the baying mobs.

Asia Bibi has been offered asylum by several countries and is expected to leave the country. The family said they feared for their safety and would likely have to leave Pakistan. Mobs are already baying for her blood. After years spent in jail on a mere allegation, Asia Bibi will now have to leave her home along with her family merely to be able to live her life.

Article was published by “DailyO” with link https://www.dailyo.in/politics/pakistan-acquits-asia-bibi-blasphemy-laws-salmaan-taseer-shahbaz-bhatti/story/1/27551.html

Writer

Farahnaz IspahaniFARAHNAZ ISPAHANI @fispahani

Farahnaz Ispahani is a former member of Pakistan’s National Assembly. She is Global Fellow at the Woodrow Wilson Center for International Scholars in Washington, DC and the author of Purifying the Land of the the Pure: Pakistan’s Religious Minorities.

NDI: Commitments for Credible Elections Needed to Reaffirm Bangladesh’s Democracy

Saturday, October 13, 2018

Dhaka, Bangladesh – Heading into Bangladesh’s elections for the Jatiya Sangsad (national parliament), a pre-election delegation of the National Democratic Institute (NDI) found that, while Bangladesh has several fundamental elements in place for holding credible elections, including a tradition of political pluralism and strong public support for democratic principles the polls will take place amid a high degree of political polarization, heightened tensions and shrinking political space.

From October 5 – 11, the delegation met with: officials in the Prime Minister’s office; party leaders from across the political spectrum; the Election Commission; civil society representatives, including citizen election observer group leaders; women members of parliament and political activists; media representatives; former government officials; business leaders; and representatives of the international and diplomatic communities.

The delegation was encouraged by Bangladesh’s vibrant media, active civil society, and growing youth and women’s activism. Concerning women, Farahnaz Ispahani, former Member of Parliament, Pakistan and Woodrow Wilson Center – Global Fellow, noted that “women play an active role in Bangladesh’s elections as voters, campaign activists, candidates, observers, and pollworkers. However, they still face a number of cultural and structural barriers in participating equally.”

The delegation heard significant concerns from election observers and opposition representatives about the Election Commission’s plans to deploy electronic voting machines in some locations. Media representatives and civil society, including citizen election observers, report intimidation by law enforcement bodies. In addition, arrests of political activists and critics of the government, as well as the passage of the controversial Digital Security Act, is fueling grave concerns that the country’s longstanding commitment to democratic norms may be at risk.

“The upcoming elections provide a critical opportunity to dispel concerns about closing space and reaffirming Bangladesh’s commitment to a democratic and competitive political process,” Karl Inderfurth, former Assistant Secretary of State for South Asian Affairs, said. “If the government and opposition parties enter into a genuine dialogue,’ Peter Manikas, Regional Director for NDI’s Asia programs noted, “we believe an agreement can be reached on the conditions necessary for holding peaceful, credible, inclusive, and transparent elections in which all political parties can compete on a more level playing field.”

In its statement, NDI’s delegation offered a number of recommendations that can be addressed ahead of the upcoming elections. These include, among others:

  • the government should publicly pledge noninterference in the Election Commission’s work;
  • the government should send a clear message to law enforcement bodies to refrain from intimidating party activists, civil society, and media representatives;
  • political parties should address several barriers to women’s participation, including greater investment in recruiting and supporting women for single-mandate races; and
  • political parties, civil society, and the Election Commission should engage youth more substantively to harness their activism into formal channels of electoral participation.

The delegation also urges the international community to be as generous and forthcoming as possible to Bangladesh and the United Nations in addressing the humanitarian needs of the Rohingya refugees. Left unattended and unresolved, refugee crises can have long-term political and electoral consequences.

The delegation is deeply grateful to all those with whom it met and who shared their views freely. In addition, the delegation emphasizes that it does not seek to interfere in Bangladesh’s election process and recognizes that, ultimately, it will be the people of Bangladesh who will determine the credibility and legitimacy of their elections and the country’s democratic development.

Members of NDI’s delegation included: Ambassador Karl Inderfurth, former Assistant Secretary of State for South Asian Affairs and current NDI board member; Honorable Farahnaz Ispahani, author and former Member of Parliament, Pakistan; and Peter Manikas, Senior Associate and Regional Director for NDI’s Asia Programs. The delegation was joined by Michael McNulty, NDI Elections Advisor and Adam Nelson, NDI Senior Program Manager for Asia.

Link: https://www.ndi.org/publications/ndi-commitments-credible-elections-needed-reaffirm-bangladesh-s-democracy