Charges of blasphemy were filed against an eight-year-old Hindu boy for urinating on a carpet in the library of a madrassa. Is there something that needs to be changed?
The provisions that regulate blasphemy law have been the subject of vigorous debate, particularly between the right and left wing on whether the current framework in place facilitates false accusations. The only reasonable manner to answer this would be to peruse the existing studies, cases, numbers and reporting on blasphemy law and ascertain whether it indicates an abuse of the system or the system itself is abusive. There is a difference.
The first stage of a cognizable criminal offence, after the complaint, is the First Information Report. The FIR is instrumental in a criminal case in Pakistan as it states the narration of facts. More importantly, it is an FIR that starts the investigative machinery against the accused.
When it comes to blasphemy cases, Amnesty International’s report found that 70 percent of the blasphemy FIRs in Lahore are registered by clerics, most of whom are not eyewitnesses to the case. This was the case in the Asia Bibi judgement as well where the FIR was registered by Qari Muhammad Salaam who did not witness the alleged blasphemy himself. Clerics registering FIRs is problematic, not only because they rarely ever witness the alleged offence themselves but also because the police cannot question the merits of their complaint. At this juncture it is important to remember, that the police often do not register an FIR in cognizable cases where they believe that no crime has been committed or because they do not want to. However, this does not seem to be the case in blasphemy cases.
The lack of reluctance in registering FIRs in blasphemy cases partially explains the recent surge in the number of blasphemy cases registered in the past few decades as the police, for their own safety, proceed to register a blasphemy case regardless of how flimsy a case may seem.
While the government does not compile accurate data in terms of blasphemy cases registered in Pakistan since 1986, data provided by human rights groups such as the National Commission for Justice and Peace (NCJP) and the Human Rights Commission of Pakistan (HRCP) shows a large increase of cases since the 1980s. According to NCJP, for example, a total of 633 Muslims, 494 Ahmadis, 187 Christians and 21 Hindus have been accused under various provisions on offences related to religion since 1987.
This means that more than 1,314 cases (and counting) were registered in the past 44 years, even though, according to a report by Center for Research and Security Studies published in 2014, from 1851 to 1947 there were only seven blasphemy cases registered in India. It is a useful fact that India was a much larger and much more religiously diverse community where the potential for blasphemy was understandably more prevalent.
The exact number of cases can be disputed, but the upward trajectory in the number of cases registered each year is unambiguous.
Is there any evidence to suggest that minorities or even Muslims started committing blasphemy a lot more? There is not. There does not seem to be any tangible incentive for anyone to risk their life just to commit blasphemy.
However, there is evidence and examples of cases where the cases were a product of malicious prosecution. In fact, a report by the International Commission of Jurists found that in 60 percent of the cases it analyzed, the high court acquitted the accused on the grounds that it was clear that the case was registered for political or personal reasons. And in 80 percent of the reported blasphemy cases the accused are acquitted on appeal. These are concrete statistics that show that the criminal system is handicapped when it comes to dealing with blasphemy cases.
In another article published by Minnesota Journal of International Law wherein the authors analyzed a number of blasphemy judgements, they found that out of the 12 judgements that were actually decided on merits, only one was where the appellate court confirmed a conviction.
The abuse was also highlighted by the former Chief Justice of the Supreme Court of Pakistan in a landmark judgement as well:
“The majority of blasphemy cases are based on false accusations stemming from property issues or other personal or family vendettas rather than genuine instances of blasphemy and they inevitably lead to mob violence against the entire community.”
What is even more concerning is that till date approximately, at least 75 people have been extra judicially killed.
The data above suggests that the large majority of those accused were very likely to be innocent.
This begs the question, that despite this wealth of data showing that a large majority of blasphemy cases are a product of personal vendettas, why is it that the prosecution still forwards these cases even though they have discretion to block a case on grounds of public interest or lack of evidence?
Because of pressure from the media, the public, the clergy and associations like Khatam-e-Nabuwat Lawyers Forum. For example, in one particular case in July 2014, police officers in Sheikhupura, Punjab, said they registered a blasphemy case under Section 295-A against five members of the same family to placate a mob demonstrating outside their police station. There are countless other such instances of mob violence.
Would the prosecutor in the said case decline to prosecute such a case even if there is no evidence whatsoever? It is likely that his life would be threatened if he did.
However, it is more likely that even if the prosecutor’s life was not endangered, he would still not pursue the case impartially. Many progressive lawyers in Lahore, who spoke on the condition of anonymity, stated that the prosecutor in blasphemy cases often abused and bullied them and tried to coerce them into making deals against their client. Lawyers associated with the Legal Aid Society, which provides legal aid for minorities in Sindh on all sorts of cases, stated that they often have to face threats and intimidation when representing clients who belong to religious minorities for routine criminal matters which do not involve any blasphemy cases.
The problem is not limited to the community, police, or prosecution. Even judges are often compromised, one particular lawyer revealed to Amnesty International that a judge admitted that his legs shake when he is asked to preside over a blasphemy case. A high court judge with plenty of security and protection. What would a trial judge do in such a case who does not have even half the security of a high court judge?
The government and the Supreme Court, in particular, has in recent times shown great strides in terms of punishing and reprimanding individuals who abuse minorities. This is probably because of the international pressure that comes with each case. More recently this is evident with Pakistan’s GSP+ status in danger because of blasphemy law. However, before the government attempts to embark on a set of procedural reforms that would weed out the false cases, it is important that it focuses its efforts on the right geographical belts. Legal Aid Society’s comprehensive legal needs assessment, which involved detailed interviews with hundreds of individuals in various districts of Sindh, evaluated that blasphemy law was not an issue that individuals belonging to minorities in Sindh particularly felt apprehensive about, and issues in relation to poverty and consumer rights were much more pertinent to their well-being. This corroborates earlier findings which suggest that a majority of the cases are from Punjab.
When it comes to minorities, a majority (61.7 percent) of the respondents surveyed by Legal Aid stated that they feel nervous about accessing the justice system. When these discussions were moved to a more informal setting i.e focus group discussions, the results were even more alarming with a great majority stating that they did not have faith in the justice system and that blasphemy law was a serious problem which instilled a sense of fear in them. All respondents believed that it was used to silence and rob the religious minority communities from their due rights. Interestingly, the respondents also mentioned that a few members of these communities use false blasphemy accusations as a means of revenge for their internal conflicts.
The issue becomes more acute for minorities who do not have access to the same tools to justice that the large majority of the population has because many Hindu/Christian communities in interior Sindh do not have the same resources to get access to justice and that aggravates their problems in relation to being exploited through blasphemy law.
It is not fair to blame the individual actors who fail to ascertain whether a particular allegation is false or not. The entire system needs to be revamped. The government needs to map and track each and every blasphemy charge in the country, prevent registration of frivolous/flimsy FIRs, provide the investigation officers with the protection to prevent any unlawful influence, ensure that the accused has protection under all circumstances and develop a system that prevents judges being influenced by inherent biases or external pressures. But at the very core, it is our standards of criminal investigation, and not just in blasphemy cases, that need to be improved.
And that is a long road.
The provisions that regulate blasphemy law have been the subject of vigorous debate, particularly between the right and left wing on whether the current framework in place facilitates false accusations. The only reasonable manner to answer this would be to peruse the existing studies, cases, numbers and reporting on blasphemy law and ascertain whether it indicates an abuse of the system or the system itself is abusive. There is a difference.
The first stage of a cognizable criminal offence, after the complaint, is the First Information Report. The FIR is instrumental in a criminal case in Pakistan as it states the narration of facts. More importantly, it is an FIR that starts the investigative machinery against the accused.
When it comes to blasphemy cases, Amnesty International’s report found that 70 percent of the blasphemy FIRs in Lahore are registered by clerics, most of whom are not eyewitnesses to the case. This was the case in the Asia Bibi judgement as well where the FIR was registered by Qari Muhammad Salaam who did not witness the alleged blasphemy himself. Clerics registering FIRs is problematic, not only because they rarely ever witness the alleged offence themselves but also because the police cannot question the merits of their complaint. At this juncture it is important to remember, that the police often do not register an FIR in cognizable cases where they believe that no crime has been committed or because they do not want to. However, this does not seem to be the case in blasphemy cases.
The lack of reluctance in registering FIRs in blasphemy cases partially explains the recent surge in the number of blasphemy cases registered in the past few decades as the police, for their own safety, proceed to register a blasphemy case regardless of how flimsy a case may seem.
While the government does not compile accurate data in terms of blasphemy cases registered in Pakistan since 1986, data provided by human rights groups such as the National Commission for Justice and Peace (NCJP) and the Human Rights Commission of Pakistan (HRCP) shows a large increase of cases since the 1980s. According to NCJP, for example, a total of 633 Muslims, 494 Ahmadis, 187 Christians and 21 Hindus have been accused under various provisions on offences related to religion since 1987.
This means that more than 1,314 cases (and counting) were registered in the past 44 years, even though, according to a report by Center for Research and Security Studies published in 2014, from 1851 to 1947 there were only seven blasphemy cases registered in India. It is a useful fact that India was a much larger and much more religiously diverse community where the potential for blasphemy was understandably more prevalent.
The exact number of cases can be disputed, but the upward trajectory in the number of cases registered each year is unambiguous.
Is there any evidence to suggest that minorities or even Muslims started committing blasphemy a lot more? There is not. There does not seem to be any tangible incentive for anyone to risk their life just to commit blasphemy.
However, there is evidence and examples of cases where the cases were a product of malicious prosecution. In fact, a report by the International Commission of Jurists found that in 60 percent of the cases it analyzed, the high court acquitted the accused on the grounds that it was clear that the case was registered for political or personal reasons. And in 80 percent of the reported blasphemy cases the accused are acquitted on appeal. These are concrete statistics that show that the criminal system is handicapped when it comes to dealing with blasphemy cases.
In another article published by Minnesota Journal of International Law wherein the authors analyzed a number of blasphemy judgements, they found that out of the 12 judgements that were actually decided on merits, only one was where the appellate court confirmed a conviction.
The abuse was also highlighted by the former Chief Justice of the Supreme Court of Pakistan in a landmark judgement as well:
“The majority of blasphemy cases are based on false accusations stemming from property issues or other personal or family vendettas rather than genuine instances of blasphemy and they inevitably lead to mob violence against the entire community.”
What is even more concerning is that till date approximately, at least 75 people have been extra judicially killed.
The data above suggests that the large majority of those accused were very likely to be innocent.
This begs the question, that despite this wealth of data showing that a large majority of blasphemy cases are a product of personal vendettas, why is it that the prosecution still forwards these cases even though they have discretion to block a case on grounds of public interest or lack of evidence?
Because of pressure from the media, the public, the clergy and associations like Khatam-e-Nabuwat Lawyers Forum. For example, in one particular case in July 2014, police officers in Sheikhupura, Punjab, said they registered a blasphemy case under Section 295-A against five members of the same family to placate a mob demonstrating outside their police station. There are countless other such instances of mob violence.
Would the prosecutor in the said case decline to prosecute such a case even if there is no evidence whatsoever? It is likely that his life would be threatened if he did.
However, it is more likely that even if the prosecutor’s life was not endangered, he would still not pursue the case impartially. Many progressive lawyers in Lahore, who spoke on the condition of anonymity, stated that the prosecutor in blasphemy cases often abused and bullied them and tried to coerce them into making deals against their client. Lawyers associated with the Legal Aid Society, which provides legal aid for minorities in Sindh on all sorts of cases, stated that they often have to face threats and intimidation when representing clients who belong to religious minorities for routine criminal matters which do not involve any blasphemy cases.
The problem is not limited to the community, police, or prosecution. Even judges are often compromised, one particular lawyer revealed to Amnesty International that a judge admitted that his legs shake when he is asked to preside over a blasphemy case. A high court judge with plenty of security and protection. What would a trial judge do in such a case who does not have even half the security of a high court judge?
Even judges are often compromised, one particular lawyer revealed to Amnesty International that a judge admitted that his legs shake when he is asked to preside over a blasphemy case.
The government and the Supreme Court, in particular, has in recent times shown great strides in terms of punishing and reprimanding individuals who abuse minorities. This is probably because of the international pressure that comes with each case. More recently this is evident with Pakistan’s GSP+ status in danger because of blasphemy law. However, before the government attempts to embark on a set of procedural reforms that would weed out the false cases, it is important that it focuses its efforts on the right geographical belts. Legal Aid Society’s comprehensive legal needs assessment, which involved detailed interviews with hundreds of individuals in various districts of Sindh, evaluated that blasphemy law was not an issue that individuals belonging to minorities in Sindh particularly felt apprehensive about, and issues in relation to poverty and consumer rights were much more pertinent to their well-being. This corroborates earlier findings which suggest that a majority of the cases are from Punjab.
When it comes to minorities, a majority (61.7 percent) of the respondents surveyed by Legal Aid stated that they feel nervous about accessing the justice system. When these discussions were moved to a more informal setting i.e focus group discussions, the results were even more alarming with a great majority stating that they did not have faith in the justice system and that blasphemy law was a serious problem which instilled a sense of fear in them. All respondents believed that it was used to silence and rob the religious minority communities from their due rights. Interestingly, the respondents also mentioned that a few members of these communities use false blasphemy accusations as a means of revenge for their internal conflicts.
When it comes to minorities, a majority (61.7 percent) of the respondents surveyed by Legal Aid stated that they feel nervous about accessing the justice system
The issue becomes more acute for minorities who do not have access to the same tools to justice that the large majority of the population has because many Hindu/Christian communities in interior Sindh do not have the same resources to get access to justice and that aggravates their problems in relation to being exploited through blasphemy law.
It is not fair to blame the individual actors who fail to ascertain whether a particular allegation is false or not. The entire system needs to be revamped. The government needs to map and track each and every blasphemy charge in the country, prevent registration of frivolous/flimsy FIRs, provide the investigation officers with the protection to prevent any unlawful influence, ensure that the accused has protection under all circumstances and develop a system that prevents judges being influenced by inherent biases or external pressures. But at the very core, it is our standards of criminal investigation, and not just in blasphemy cases, that need to be improved.
And that is a long road.