By now, we all know that Section 295C in its existing form is prone to abuse and has led to serious miscarriage of justice in thousands of cases. Thus some significant changes to the substantive law, if not its outright repeal, and procedural aspects would only be reasonable.
The basic question is whether there is any justification to refer back the question of blasphemy to the CII when all available evidence points to the need for some obvious reform.
Consider. When the Federal Shariat Court declared death as the mandatory punishment in a 1990 judgement, it also noted that the law in its current form did not contain the Islamic standard of criminal intent to prove the offence. Parliament should have taken note of this vacuum. Similarly, the court also held that penitence could be availed to show that the accused committed the act without intention; thus by implication the offence would not be proved. Further, the court by implication held the offence of insult of the Holy Prophet (PBUH) as hadd but didn’t consider the question of standard of proof which must be unimpeachable.
These aspects of the otherwise poorly reasoned judgement have not got the attention of the lawmakers yet. The FSC judgement was poorly reasoned because even when there was no agreement among the jurisconsults invited by the court, who represented neither all Islamic schools of thought (fiqh), nor their own schools competently, the court went on to declare death as mandatory for an offence which, in the light of the court’s own discussion, was flawed.
In several judgements, superior courts have pointed out that Pakistan’s blasphemy laws are liable to be misused. In the most recent judgement, in a case registered under Sections 295A, 295B, 295C and 298A of the PPC, Justice Ibad-ur-Rehman Lodhi of the Lahore High Court has pointed out that the trial court judge awarded punishment to the accused under Section 295A while acquitting him under Section 295C, because he was under pressure, even though the prosecution miserably failed to prove the case on the required standard of proof — beyond reasonable doubt.
Constitutionally, the CII is assigned a recommendatory role alone. It cannot impose its will on parliament. Similarly, decisions of the FSC can only render an existing law repugnant to the injunctions of Islam. There’s nothing to stop parliament from enacting new legislation.
Therefore, the role assigned to these unelected bodies is only limited and subservient to the will of parliament.
In 2003, the CII had considered some aspects of the law referred to it by the federal ministry of law and justice. The questions included whether the court could give a verdict of acquittal in case of an apology being tendered by an accused. The council members could not reach a consensus because of the fundamental difference in understanding the nature of the offence of ‘defiling the name of the Holy Prophet’ (Section 295C). They, however, agreed that no change may be recommended in the substantive law even when the FSC had already pointed out serious problems with the law. This is as far as the council is likely to go in 2016.
If referring the question of blasphemy law back to CII will serve no purpose, what can and must parliament do? One, Section 295C must be rephrased to assign maximum certainty in its application, incorporating the requirement of intent as mandatory for conviction. Two, mandatory death penalty must be done away with because society is divided on this extreme punishment as an option.
Apart from these minimum substantive safeguards, parliament must assess reasons for the failure of procedural safeguard provided in a 2005 amendment (Section 156A Code of Criminal Procedure 1898 or CrPC) which requires mandatory investigation by a police officer of the rank of superintendent of police. The object of the procedural safeguard was to ensure fair and responsible investigation which could not be achieved. Further, the offence of blasphemy of the Holy Prophet should be made bailable and non-cognisable. Parliament should review whether it should at all be applicable to non-Muslims. Expression of penitence should lead to presumption of absence of intent, thus early acquittal.
The religious right’s politics of blasphemy has kept an honest debate on the issue impossible. By making the offer to review the law, Mr Sherani is only seeking authority over parliament which neither the council nor the ulema have.
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Asad Jamal is a lawyer.
Published in Dawn, February 4th, 2016
Read original post here: Pakistan: Asking CII to review blasphemy laws pointless
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