Monday, October 08, 2018
A special bench of the Supreme Court of Pakistan, headed by the Chief Justice, is scheduled to hear Asia bibi’s appeal against her conviction and death sentence under section 295-C of the Pakistan Penal Code (PPC) today.
Even if the Supreme Court now goes on to acquit Asia bibi, she has already spent eight years in prison, mostly on death row; Salman Taseer and Shahbaz Bhatti have lost their lives advocating for her release; and her family has been subjected to continuous threats and harassment, solely because of their relationship with someone accused of blasphemy.
This is the truth of how the blasphemy law operates in Pakistan – the accused has to suffer prolonged periods of pretrial detention, which in many cases is followed by years on death row before their appeals are decided. Additionally, lawyers and judges in blasphemy cases live in a climate of fear and face very real threats of violence. This results in a denial of the accused’s right to an effective defence and to a fair trial before an independent, impartial judiciary - which is now recognized as a fundamental right in Pakistan’s Constitution.
Asia bibi’s trial is particularly illustrative of these flaws.
The allegations against her are that she made three “defamatory and sarcastic” statements about the Prophet Muhammad (Peace Be Upon Him) on June 14, 2009, during an argument with three Muslim women while the four of them were picking fruit in a field. The prosecution also claims Asia bibi “admitted” making these statements at a “public gathering” on June 29, 2009, and asked for forgiveness.
In her defence, Asia bibi stated she had a “quarrel” with Mafia and Asma in 2009, following their refusal to drink water brought for them by Asia bibi because she was Christian. She claimed “some hot words were exchanged” during the argument, after which Mafia and Asma, alongside Qari Muhammad Salaam and his wife (who taught Asma and Mafia the Quran), fabricated the blasphemy case against her. Asia bibi also stated that she had “great respect and honour for the Holy Prophet Muhammad (Peace Be Upon Him) and the Holy Quran” and never made the alleged blasphemous remarks.
A trial court convicted Asia bibi for blasphemy in November 2010 and sentenced her to death. The Lahore High Court upheld her conviction and confirmed her death sentence in October 2014. The Supreme Court admitted her appeal in July 2015. The first hearing of the appeal before the Supreme Court was scheduled to take place on October 13, 2016, but one of the judges recused himself from the bench on the day of the hearing, citing “conflict of interest”.
The trial court’s, as well as Lahore High Court’s judgments, contain a number of flaws.
For example, in its judgment on Asia bibi’s appeal, the LHC conceded that “the defence has not defended its case with the required seriousness...” Yet, despite acknowledging possible violations of the right of a fair trial, particularly the right to an adequate defence, the Court went on to uphold Asia bibi’s conviction and death sentence.
Further, the trial court used Asia bibi’s statement against her as an admission of guilt, finding that the “hot words” exchanged between her and “the Muslim ladies” were “switched into a religious matter”, and concluding that the “hot words” must have been “nothing other than the blasphemy”. Curiously, however, the trial court rejected the possibility that the altercation over water could be a motive for the prosecution eyewitnesses to falsely implicate Asia bibi for blasphemy, which was Asia bibi’s defence. The Lahore High Court too did not probe further into Asia bibi’s statement and held that there was no possible “ill will” between the eyewitnesses and the accused for them to fabricate the blasphemy allegations.
Both courts also disregarded discrepancies in the accounts of the witnesses regarding the “public gathering” where Asia bibi allegedly “admitted” her guilt. These discrepancies included significant differences in the number of people allegedly present at the “public gathering” (ranging from 100 to 2,000 in the different testimonies); how Asia bibi was brought to the “public hearing”, and how long the “hearing” lasted.
The courts also failed to apply “tazkia-tul-shahood” (inquiry undertaken by the court to establish the credibility of witnesses), without which defendants cannot be convicted or punished in hadh (capital punishment) cases for certain offences under Pakistani law.
During the entire course of the proceedings, neither court considered which of the three statements attributed to Asia bibi were “blasphemous” and why, or what was the “reasonable person” standard in the interpretation of section 295-C to meet the threshold of blasphemy. Additionally, both courts did not consider whether Asia bibi possessed the requisite criminal intent to commit the crime of blasphemy, despite the Federal Shariat Court’s ruling that blasphemy is an “intentional or reckless wrong”.
The prosecution’s failure to prove all elements of the offence, including the requisite intent to defame the Prophet Muhammad (Peace Be Upon Him), calls into question the convictions by the trial court and the Lahore High Court.
In another case, the Supreme Court held that individuals accused of blasphemy “suffer beyond proportion or repair” in the absence of adequate safeguards against misapplication or misuse of such blasphemy laws. This includes the long periods of time the accused spend in detention, in some cases with the threat of execution hanging over their heads, and the impact this has on their lives, their families, their professions, and their mental and physical well-being.
Confirming the Supreme Court’s findings, a 2015 study by the International Commission of Jurists (ICJ) on the implementation of blasphemy laws in Pakistan found that more than 80 per cent of convictions by trial courts are overturned on appeal, very often because appellate courts find evidence and complaints fabricated based on “personal or political vendettas.”
A number of proposals to check against the misuse of blasphemy laws have been pending before Parliament, but given the sensitivities around the issue, they have not come to fruition.
Blasphemy laws have remained a hugely sensitive issue in Pakistan. Today, all eyes are on the Supreme Court to see if it will decide Asia bibi’s appeal expeditiously, fairly and impartially and whether it will try to clean up some of the manifest injustices of the blasphemy law and how it’s being applied today.
Omer is a legal adviser for the International Commission of Jurists. She can be reached at [email protected]
Note: The views expressed are those of the author, and do not necessarily reflect the official policy or position of Geo News or the Jang Group.