REGARDLESS of the government’s state of mind and its priorities, it will do itself and the people a great wrong by overlooking civil society’s concerns about the Lahore High Court’s decision to confirm the sentence of death awarded to Asiya Bibi.

The case has attracted national and international attention for several reasons. The accused has been in prison for five years already and governor Salmaan Taseer’s words of sympathy for her cost him his life in an incident of unprecedented brutality. The Supreme Court is now likely to rule on a matter that means much more than life and death for an underprivileged woman.

Many people have signed a petition for the apex court to acquit Asiya Bibi. Irrespective of the unorthodox nature of the appeal, due weight should be given to the signatories’ feeling of outrage and their desire to uphold justice.

Hitherto, in most cases, high courts struck down the sentence of death in Section 295-C cases.
Hitherto, in most cases the high courts have struck down the sentence of death in Section 295-C cases awarded by trial courts. Thus, every confirmation of death sentence by a high court arouses unusual interest.

If the case does go to the Supreme Court it may be examining the issues it had discussed while acquitting Ayub Masih in 2002. In that case, the court had decided to consider whether the principles of justice and evaluation of evidence had been followed and whether the offence under Section 295-C fell within the purview of Hadd and if so the evidence against the accused must undergo the test of Tazkia-tu-Shahood. The latter issue was left undecided as Ayub Masih was found entitled to acquittal on the merits. The whole world will be watching what precedent the Supreme Court will lay down this time.

While nothing should be done to influence the court either way the lawmakers must ensure that the courts are not obliged to interpret laws that are liable to be abused by complainants and prosecutors or which create an emotionally charged environment in which delivery of justice becomes more than normally hazardous.

The government and the lawmakers have wasted 14 years without addressing the crucial issues that were raised before the Federal Shariat Court in 1989-1990. The first issue was that the ulema appearing in the court were not unanimous in holding death penalty mandatory in every case. It was vigorously argued that death penalty could be awarded only to a Muslim offender for being guilty of apostasy. A non-Muslim could not be accused of apostasy, though one could be punished under tazir.

The second issue was the need to respect the hadith: actions are judged by intent, and for making a distinction between an intentionally committed act or an unintended lapse, that Section 295-C ignores.

Unless these two issues are resolved, cases such as those of Ayub Masih and Asiya Bibi will continue to put a cross on Pakistan’s ability to comprehend the meaning of justice.

The issue is not that insult to the Holy Prophet (PBUH) should be punished, the issue is that the law on the subject should not be liable to abuse. To this many ulema readily agree.

Unfortunately, the authorities dealing with legislation about offences relating to religion have invited censure by their reluctance to discuss matters on the merits.

The debate on the bill aimed at inserting Section 295-C in the Penal Code in 1986 was guillotined on the plea that the bill dealt with a matter that needed no discussion. The resultant amendment to the Pakistan Penal Code provided for blasphemy death penalty or life imprisonment and fine.

In 1990, the Federal Shariat Code ruled that an offence under Section 295-C could be punished only with death and the alternative punishment had to be deleted. After the decision of the Shariat Court had taken effect, the parliamentary procedure for amending the law began in the Senate. The Senate Standing Committee recommended the deletion of “or imprisonment for life” but called for a more specific definition of the offence under Section 295 PPC as the members found it “very generalised”.

The Council of Islamic Ideology was asked to suggest a more specific definition of the offence and was also asked to collect precedents from the days of the caliphate and from various Muslim countries.

The council had already given its opinion in 1984 in which it had said that anyone deliberately saying or doing anything derogatory of the Prophet’s status would be liable to the death penalty. “However, the burden of proving that the action or speech attributed to him was not intentional would be on the accused,” the Council of Islamic Ideology had said.

The debate in the Senate was cut short as the house was to be adjourned sine die. The relevant bill was to go to the National Assembly to complete the process of change in the law. It is not clear whether the National Assembly has debated the measure. If it has not, the legal requirement for deleting the words struck down by the Federal Shariat Court should offer parliament a good opportunity to debate the whole law.

The directive in the Senate Standing Committee’s report remains unfulfilled. Also unimplemented is the second part of the Federal Shariat Court verdict which proposed insult to other prophets to be liable to the same punishment that was prescribed in Section 295-C.

This discussion proves that anyone who calls for removal of vagueness in Section 295-C or for judging an offence in terms of intent is doing no more than what was done by senators in 1991 and the Council of Islamic Ideology in 1984.

The first step towards a way out could be the holding of a broad-based consultation between parliamentarians and jurisconsults from Muslim countries to devise a blasphemy law that meets the definition of a just measure and offers due safeguards to innocent victims of human malice.