Modern blasphemy laws in Pakistan and the Rimsha Masih case: what effect - if any - the case will have on their future reform.

• Published date: 22 March 2014
• Author: Hoffman, Matt
• Date: 22 March 2014

INTRODUCTION

This Note will examine the current blasphemy laws in Pakistan, with a particular focus on the case of Rimsha Masih, who was charged with blasphemy in 2012 and ultimately acquitted in 2013. Although Rimsha's case is unprecedented, it is far from a turning point for blasphemy laws in Pakistan for two reasons. First, Rimsha's case was an outlier, as evidenced by the unique circumstances of her case, as well as subsequent events that reinforce that proposition. Second, the nature of the political-religious-legal system in Pakistan makes the blasphemy laws and their enforcement a far more complicated issue than what occurs in a courtroom can explain. The very nature of Pakistan's governmental, constitutional, and legal structure has created an extra-legal system of blasphemy law enforcement grounded in traditional notions of Islam and enforced in large part through vigilantism. If reform is to be achieved, it is in that arena where it must take place.

Part I provides a brief overview of the case of Rimsha Masih: her arrest in September of 2012, acquittal in November, and the subsequent confirmation of the acquittal by the Pakistan Supreme Court in January of 2013. Parts II and III examine the political, legal, and constitutional developments within Pakistan that have led to the modern blasphemy laws. Part II contains an overview of Pakistani constitutional development prior to the Zia ul-Haq regime, with a particular focus on the 1973 Constitution. Part III focuses on the Zia ul-Haq military regime, which began in 1977 and caused Pakistan's Constitution to undergo major changes. Zia, aided by popular support, aggressively and successfully Islamicized the laws and constitution of Pakistan, including the addition of three amendments now referred to as the blasphemy laws.

Part V explores how the blasphemy laws have been used since their inception and the role they play in Pakistan today. For context, this discussion is prefaced by Part IV, which examines how blasphemy laws are currently treated around the world. Part V then provides an in-depth overview of the current state of Pakistan's blasphemy laws, identifying and explaining several serious problems that result from the current application of the blasphemy laws in Pakistan.

Part VI argues that vigilantism by Pakistani citizens in response to allegations of blasphemy has constrained political reform of the laws and usurped the judicial process and rule of law. This includes an argument that the inherent tension between Pakistan's democratic government and its Islamicized laws has created an uncertain void of blasphemy law enforcement that has been filled by vigilantism and mob violence.

Part VII explores whether Rimsha's case marks a turning point toward reform for the blasphemy laws or is simply an outlier. Pointing to several circumstances that make Rimsha's case unique, as well as subsequent events that have indicated that vigilantism still reigns in the blasphemy realm, Part VII will argue that the case is, in fact, an outlier.

I. THE RIMSHA MASIH CASE

On August 16, 2012, a fourteen year-old Christian Pakistani girl with learning disabilities named Rimsha Masih was arrested and jailed in her hometown of Mehrabad on allegations that she had violated Pakistan's strict laws against blasphemy. (1) She was accused of tearing pages from a copy of the Koran and burning them. (2) That allegation led to angry demonstrations by Pakistani Muslims in her predominantly Christian neighborhood, with an estimated 600 to 1,000 people turning out in protest. (3) In order to appease the crowd, police took Rimsha into custody. Her parents and the rest of the community were forced to flee. (4)

The case against Rimsha subsequently unfolded in unusual fashion. In two unprecedented developments, Rimsha's accuser, an imam of a nearby mosque named Hafiz Mohammed Khalid Chishti, was also charged under the blasphemy laws for allegedly planting the incriminating evidence, (5) and Rimsha was ultimately acquitted of the charges in November of 2012 by the High Court in Islamabad, (6) a ruling subsequently confirmed by the Pakistan Supreme Court. (7)

II. PAKISTANI CONSTITUTIONAL DEVELOPMENT PRIOR TO THE ZIA UL-HAQ REGIME

The nation of Pakistan was created in 1947 through the partitioning of British India. It was the result of a push by Muslim separatists to establish their own independent country. (8) Muslims account for ninety-seven percent of the country's population. (9) Pakistan, as a country formed for the purpose of creating a 'Muslim state' homeland for the Muslims of British India, has necessarily grappled with the role that Islam should play in the country. (10) "The ongoing debate revolves around the question of whether 'a Muslim state' was merely a country for Muslims or an Islamic state governed by the precepts of Shari'a." (11) On one side of the debate stand those who believe that a Muslim state can and should be strictly governed by the rules of Shari'a law. (12) While Pakistan's constitutional history has been turbulent, (13) the country initially took a more centrist approach in regard to this debate, including in the original formulation of its 1973 Constitution. (14) However, as a result of the constitutional amendments enacted under the military rule of Zia ul-Haq, there has since been a deliberate shift toward an increased role for Islam and Shari'a in the law and governance of Pakistan.

The 1973 Pakistan Constitution can be characterized as "Islamic, federal and democratic." (15) It established a parliamentary government with a federal structure and an independent judiciary (16) and expressly provided for many fundamental rights for its people, including the right to freedom of speech, expression, and press. (17) This included freedom to establish and practice any religion. (18) In these ways, then, the 1973 Pakistan Constitution contained many of the same rights as can be found in the constitutions of Western democracies. (19)

The 1973 Constitution also contained many provisions that signaled the important role of Islam in the structure and governance of the state. This role would be greatly expanded under Zia, but even before, the Constitution contained an inherent tension whereby the democratic state was used as an instrument to inject many important aspects of Islam into the legal structure of the country. (20) Among the Islamic provisions contained in the Constitution were the following: First, Islam was established as the state religion. (21) Second, no laws were to exist that were "repugnant" to Islam. (22) Third, the President was charged with establishing a "Council of Islamic Ideology." (23) While these provisions demonstrated the important role of Islam in the governance of Pakistan, they fell short of establishing a nation governed expressly by Shari'a law, and were balanced by the distinctly democratic guarantees also found in the Constitution.

III. THE ZIA UL-HAQ REGIME AND THE ISLAMIZATION OF PAKISTANI LAW

The balance of the 1973 Constitution was abandoned in favor of increased 'Islamization' of Pakistani law during the Zia ul-Haq military regime. In July of 1977, Zia, the Army Chief General, used his forces to take over administration of the country. (24) "Martial law was imposed" (25) and "the Constitution was held in abeyance." (26) The overthrow of the government was the culmination of prolonged violent demonstrations by various political groups whose common goal was the Islamization of Pakistan. (27) From the outset, Zia's words and actions also reflected a desire to achieve this goal. He espoused strong views regarding the need for Islam to play a greater role in Pakistan, stating that he considered "the introduction of the Islamic system ... an essential pre-requisite" for Pakistan. (28) Additionally, Zia viewed his regime as the "guardian of the faith and made Islamization of the law a primary objective." (29)

Against this backdrop, Zia announced a program of legal Islamization for Pakistan in February of 1979. (30) An initial step involved amending the Constitution by adding article 203-D, which established a Federal Shariat Court. (31)

The most important aspect in Zia's Islamization program involved the enactment of Islamic criminal legislation. (32) Three ordinances and one presidential order (33) were issued prescribing hadd punishments (34) for criminal offenses, (35) with possible permitted punishments including the amputation of body parts, (36) whippings, (37) and death by stoning. (38) "These laws, according to Zia, formed a package introducing Islamic laws in Pakistan" (39) in line with his stated goals for the increased Islamization of the country. (40) In addition, three amendments (popularly referred to as the "blasphemy laws") were added to the Pakistan Penal Code in 1980, 1982, and 1986, which criminalized "the defiling, by words or acts, of the Prophet Mohammed and his wives and relatives and the desecration of the Koran. The amendment of 1986 made such defiling of the Prophet a capital offence." (41)

The end result of the Zia-era reforms is a Pakistan which features a democratic, Western-style system of government that acts as the vehicle for implementing, and is tasked with enforcing, criminal laws based on substantive Islamic law. (42) This shift has raised serious questions (43) about whether the resultant criminal laws in Pakistan, particularly the blasphemy laws, (44) violate the human rights of Pakistanis. (45) While blasphemy laws by themselves do not always violate human rights, when they are "consistently applied against certain religious groups, their enforcement can be regarded as a violation of [the] principle [of freedom of religion]." (46) Such is the case in Pakistan, where blasphemy laws have routinely been used to persecute unpopular religious minorities, namely Christians and Ahmedis. (47)

In addition to these practical concerns...