The Blasphemy Laws: A Pakistani Contradiction
Sahar Khan
University of California-Irvine
[email protected]
March 6, 2012
Please do not cite without author’s permission.
Abstract:
Governor of Punjab Salman Taseer’s assassination on January 4, 2011 brought international
attention to the blasphemy laws of Pakistan. Introduced in Pakistan’s Penal Code in the 1980s,
the blasphemy laws prohibit speaking ill or disrespectfully about Islam and sentence the accused
to the death penalty. The laws were introduced by military ruler Zia-ul-Haq in attempts to make
Pakistan more in line with Islamic principles. Instead, the laws have complicated the relationship
between religion and democracy in Pakistan, and have raised questions regarding religious
tolerance and Islam. In principle, blasphemy laws are supposed to protect the accused till there is
proof of guilt. But in Pakistan, the wordings of the laws have converted them into tools by which
to practice religious intolerance, despite the fact that Islam does not specify any punishment for
blasphemy. The laws have politicized religion and have reduced the emergence of secularism in
Pakistan. More significantly, the laws have deepened the contradictions inherent in Pakistani
history, solidifying ideological differences that have increased societal tensions. Reforming the
blasphemy laws, however, raises the prospect of institutionalizing “twin tolerations” in Pakistan,
a secular concept that calls for a relationship based on mutual respect between political and
religious authorities in which religion is not given special privileges over the state. Reforming
the laws is also in the long-term interest of the state, and will most likely ease some ideological
differences. More importantly, reform will highlight the need for solving some constitutional
contradictions, which are necessary to decrease Pakistan’s tendency toward radical religious
theories and practices.
The Blasphemy Laws: A Pakistani Contradiction
In June 2009, Aasia Bibi was chased by a mob and taken to a police station by the police
to ensure her safety. Once there, under pressure from the mob, the police charged her with
blasphemy. A few days before the encounter, she had been working as a farmhand in a village in
Punjab called Nankana Sahib when she was asked to fetch water. When she returned to the
village, a woman refused to drink the water. Because Aasia Bibi was a Christian, the woman said
the water she fetched was “unclean.” This sparked a row in which Aasia Bibi defended her faith
and allegedly insulted the Prophet Mohammad (P.B.U.H.),1 a charge she and her family strongly
deny. As a result, she ended up in jail, charged with blasphemy. Despite there being evidence of
religious persecution and gender prejudice during the trial and at sentencing, on November 9,
2010, a year and half after being imprisoned, she became the first Christian woman to be
sentenced to death in Pakistan by a lower court in Punjab.2
One of the most vocal critics of the sentence was Governor of Punjab Salman Taseer.
After visiting Aasia Bibi in her jail cell, Taseer submitted a mercy petition to President Asif Ali
Zardari, highlighting the injustice of the sentence and the Courts’ lack of independence from the
influence of religious extremists. Taseer believed that the blasphemy laws used to charge Aasia
Bibi were being used to improperly target and imprison religious minorities. Religious political
parties and groups called for Taseer’s resignation, stating that his support of Aasia Bibi meant
that he supports blasphemy against the Holy Prophet. When the government refused to ask for
Taseer’s resignation, his own security guard, Malik Muhammad Mumtaz Qadri, killed him on
1
P.B.U.H. stands for “Peace Be Upon Him” and is written after the Prophet’s name as an invocation.
See Jane Perlez, “Pakistani Sentenced to Death May Get a Pardon,” New York Times, November 22, 2011,
http://www.nytimes.com/2010/11/23/world/asia/23pstan.html; Ali Dayan Hasan, “Filthy Business,” Dawn,
November 15, 2010, http://www.dawn.com/2010/11/15/filthy-business-by-ali-dayan-hasan.html, and “Aasia Bibi’s
case,” Research Brief, Jinnah Institute, November 2010, http://www.jinnah-institute.org/publications/191-researchbrief-aasia-bibis-case.
2
2|P age
January 4, 2011.3 Qadri not only confessed immediately but boasted that he remained faithful to
the blasphemy laws and that his actions were in accordance with the Holy Quran. On his way to
court in Islamabad the next day, crowds greeted Qadri with cheers and showered him with rose
petals. In a further show of solidarity and acceptance of Qadri’s actions, 40,000 people gathered
in Karachi to voice their opposition to the reform of the blasphemy laws, carrying banners that
read “Mumtaz Qadri is not a murderer, he is a hero.” Despite the Pakistani government’s refusal
to eliminate or reform the laws, Maulana Fazl-ur-Rehman, leader of the religious political party
Jamiat-e-Ulama-e-Islam (JUI), accused the government of bowing to Western pressure at the
rally4— an accusation that is frequently hurled at the government by religious parties and groups
when any of their demands are not met.
About two months later, on March 2, 2011, another advocate for reform, the Minister for
Minority Affairs Shahbaz Bhatti, was gunned down by the members of the terrorist group
Tehrik-e-Taliban Pakistan (TTP) as he left his mother’s house in Islamabad. He was Pakistan’s
only Christian minister and like Taseer, advocated the reform of the blasphemy laws. His killers
too justified their actions in the name of Islam, and also considered it an attack against a
government who had appointed a Christian to reform Muslim blasphemy laws. Since these two
killings, the government has increased security for all federal ministers and National Assembly
3
Taseer’s killing was one of the most high-profile assassinations of a political figure since former Prime Minister
Benazir Bhutto on December 27, 2007.
4
See “Salman Taseer Assassinated,” Express Tribune, January 4, 2011, http://tribune.com.pk/story/98988/salmantaseer-attacked-in-islamabad/; Salman Masood and Carlotta Gall, “Killing of Governor Deepens Crisis in Pakistan,”
New York Times, January 4, 2011,
http://www.nytimes.com/2011/01/05/world/asia/05pakistan.html?_r=1&pagewanted=all, “Lawyers Shower Roses
for Governor’s Killer,” Dawn, January 5, 2011, http://www.dawn.com/2011/01/05/lawyers-shower-roses-forgovernors-killer.html, Andrew Buncombe and Omar Waraich, “Garland for Killer as Punjab Leader is Buried,” The
Independent, January 6, 2011, http://www.independent.co.uk/news/world/asia/garlands-for-killer-as-punjab-leaderis-buried-2177181.html, Rob Crilly, “Pakistan’s Religious Divide on Display,” The Telegraph, January 9, 2011,
http://www.telegraph.co.uk/news/worldnews/asia/pakistan/8248942/Pakistans-religious-divide-on-display.html.
3|P age
members, especially Ambassador Sherry Rehman,5 as she has been labeled the next target due to
her strong opposition to the laws.6
The blasphemy laws were added into the Penal Code of Pakistan in 1984 under Zia-ulHaq’s military regime. The laws prohibit blasphemy against Islam and the last prophet, Prophet
Mohammad (P.B.U.H.).7 Under Zia, punishment for blasphemy included fines and life
imprisonment. The death penalty replaced life imprisonment under the democratic government
of Nawaz Sharif—despite sentences, no one has yet been executed by the state.8 Though the
majority of the accused are Muslims, a very high proportion of Christians and Ahmadis are
accused, raising concerns about the state of religious minorities in Pakistan.9 More significantly,
those indicted for blasphemy are often wrongfully accused, highlighting a flaw in the law itself
as well as its enforcement. Along with the victims, a charge of blasphemy almost always results
in the harassment of police, lawyers, judges, and journalists involved by the enraged public and
orthodox religious groups.
5
Rahman served as the Minister of Information and Broadcasting from March 2008 till March 2009. She was
appointed the Pakistani ambassador to the United States on November 23, 2011. See Declan Walsh, “Sherry
Rahman next on Pakistan militant’s hitlist, friend fear,” Guardian, March 2, 2011,
http://www.guardian.co.uk/world/2011/mar/02/sherry-rehman-pakistan-blasphemy-laws-hitlist and “Sherry Rehman
appointed Pakistan’s ambassador to the US,” Dawn, November 23, 2011, http://www.dawn.com/2011/11/23/sherryrehman-appointed-pakistans-ambassador-to-us.html.
6
See Fasih Ahmed, “No Country for Good Men,” Newsweek Pakistan, March 2, 2011,
http://newsweekpakistan.com/scope/260, Munawer Azeem and Khawar Ghumman, “Terrorists silence another voice
of interfaith harmony,” Dawn, March 3, 2011, http://www.dawn.com/2011/03/03/terrorists-silence-another-voiceof-interfaith-harmony.html, and Emanuelle Degli Esposti, “Pakistan’s blasphemy law: Timeline,” The Telegraph,
March 2, 2011, http://www.telegraph.co.uk/news/worldnews/asia/pakistan/8356855/Pakistans-blasphemy-lawtimeline.html.
7
The longer version of this paper contains the text of the laws in Appendix A.
8
See Rabia Mehmood, “Pakistan Blasphemy Laws Retake Center Stage,” Need to Know, PBS.com, February 22,
2011, http://www.pbs.org/wnet/need-to-know/security/pakistan-blasphemy-laws-retake-center-stage/7546/ and
Anita Inder Singh, “Pakistan’s blasphemy law in context,”openDemocracy.com, January 18, 2011,
http://www.opendemocracy.net/anita-inder-singh/pakistan%E2%80%99s-blasphemy-law-in-context.
9
See Siddique and Hayat, ‘Unholy Speech and Holy Laws: Blasphemy Laws in Pakistan—Controversial Origins,
Design Defects, and Free Speech Implications’ (2008) 17 Minn. J. Int’l L. 303, p. 326.
4|P age
The blasphemy laws have simultaneously politicized religion, threatened democratic
processes, and reduced the emergence of secularism in Pakistan. Supporters justify the basis of
the laws on Islam—the official religion of the state—by claiming they are necessary for its
protection. But Islam does not specify any punishment for blasphemy. Therefore, in attempts to
become an “Islamic” state, Pakistan has essentially created un-Islamic laws. By studying the
blasphemy laws of Pakistan, this paper focuses on the relationship between religion and
democracy and asks two questions. First, can a state based on religion also be democratic? How
Pakistan resolves this issue is critical to its existence as a state and to its democratization.
Second, to what degree do the blasphemy laws make democracy improbable in Pakistan? I argue
that they do not make democracy unlikely but create a volatile political environment that is
detrimental for any kind of stable political process to develop. Reforming the laws, however,
raises the prospect of institutionalizing “twin tolerations” in Pakistan, a secular concept that calls
for a relationship between political and religious authorities that is based on mutual respect
without privileging religion over the state.
This paper is divided into three sections. The first section briefly discusses secularism
and its varying degrees, focusing on the merits of differentiation and twin tolerations. The second
section traces the Islamic provisions in all three constitutions of Pakistan, passed in 1956, 1962,
and 1973, in order to understand Pakistan’s troubled relationship with Islam from its inception.
The third section focuses on the institutionalization of twin tolerations within Pakistan and
presents an argument for reforming the laws versus eliminating them entirely.
UNDERSTANDING SECULARISM
As a political principle, secularism represents the separation of church and state and calls
for religious faith that is essentially private. Secularism focuses on maintaining a rational and
5|P age
pluralistic social bond between citizens and state independent of religion in which the state does
not provide constitutional privileges to any religion, guarantees individual and corporate
freedom, and grants citizenship irrespective of religion.10 Secularism, however, is not a rigid
principle and has varying degrees. According to Inayatullah, it has three dimensions.11 The first
is the lowest level where secularism is an agreement in a multi-religious and culturally diverse
society in which the state does not impose any particular set of beliefs, laws, and culture of any
particular group, giving the state the potential to be neutral along ethnic and racial lines.12 The
second dimension of secularism involves the establishment of social relations between different
groups based on a respect of culture and creed, and the acknowledgment that every group has an
equal right to participate in the economic, cultural, and social activities of society.13 This
dimension touches on the need of a civil society, the importance of a public sphere, and effects
of both civil society and public sphere on nationalism.14 The third dimension explains the
deepest level of secularism, stating that it is a set of attitudes and values that include respect and
dignity for humanity: “Tolerance of a different cultural and religious traditions, negation of
cultural arrogance and affirmation of cultural humility are reflected in the attitude where ideas,
religions and philosophies other than one’s own may also be true and deserve respect.”15
10
See Zaffarullah Khan, “Secular Movements in Pakistan,” in Why Are We Afraid of Secularism in Pakistan?
Dominic Moghal and Jennifer Jag Jivan, eds. (Rawalpindi: Christian Study Centre, 1999), p.86 and Ishtiaq Ahmed,
The Concept of an Islamic State: An Analysis of the Ideological Controversy in Pakistan (London: Frances Pinter
1987), p. 36.
11
The discussion of three dimensions is taken from Inayatullah, “Secularism a Necessity for Pakistan, Not an
Option,” Dominic Moghal and Jennifer Jag Jivan, eds. Why Are We Afraid of Secularism in Pakistan? (Rawalpindi:
Christian Study Centre, 1999).
12
Inayatullah, “Secularism a Necessity for Pakistan, Not an Option,” p. 95.
13
Ibid.
14
For further reading see Armando Salvatore and Mark Le Vine, “Introduction: Reconstructing the Public Sphere in
Muslim Majority Societies” and Cecelia Lynch, “Conclusion: Public Spheres Transnationalized: Comparisons
Within And Beyond Muslim Majority Societies,” in Religion, Social Practice, and Contested Hegemonies:
Reconstructing the Public Sphere in Muslim Majority Societies, Armando Salvatore and Mark Le Vine, eds. (New
York: Palgrave, 2005), p. 235.
15
Inayatullah, “Secularism a Necessity for Pakistan, Not an Option,” p. 95.
6|P age
Differentiation, a core element of the secularization process, embodies all these
dimensions. Differentiation occurs when religious communities are separated in their roles and
jurisdictions from the state such that neither participates in the other’s governance.16 José
Casanova describes secularization “as a single process of functional differentiation of the various
institutional spheres or sub-systems of modern societies.”17 Differentiation is essentially a legal
matter, and as Daniel Philpott cautions, it should not be confused by the effect that religion and
the state may have on each other due to persuasive discourse, ideological influence or political
power.18 Differentiation is evident in post–World War II Europe. While communism suppressed
the Catholic Church, Western democracies protected it through constitutional guarantees of
religious freedom. As a result, churches within communist countries became a symbol of
national identity. The symbolism, however, was not uniform: In Poland and Lithuania the church
was very active and became a strong symbol, in Czechoslovakia it was relatively weak while in
Hungary it was stronger than in Czechoslovakia but weaker than Poland’s and Lithuania’s.19
Similar to secularism, differentiation has varying degrees and types. “Twin tolerations” is
the embodiment of complete differentiation in a state. Twin tolerations occurs when a state
“respects the prerogatives of all religious bodies to practice and express their faith and participate
in democratic politics, while religious bodies consent to religious freedom and forgo legal and
constitutional prerogatives that grant religious officials standing authority to formulate or
approve public policy.”20
16
See Daniel Philpott, “Explaining the Political Ambivalence of Religion,” American Political Science Review 101,
no. 3 (August 2007): 506–507 and Daniel Philpott and Timothy Samuel Shah, “Faith, Freedom, and Federation: The
Role of Religious Ideas and Institutions in European Political Convergence,” in Religion and an Expanding Europe,
Timothy A. Byrnes and Peter J. Katzenstein, eds. (New York: Cambridge Uni. Press, 2006), p. 39.
17
José Casanova, “Public Religions Revisited” in Religion: Beyond the Concept Hent de Vries, ed. (Fordham U.P.,
2008), p.104.
18
Philpott, “Explaining the Political Ambivalence of Religion,” p. 507.
19
See Philpott and Shah, “Faith, Freedom, and Federation,” pp. 48–51.
20
Ibid., p. 47.
7|P age
“TWIN TOLERATIONS”: INSTITUTIONAL STRUCTURE MATTERS
Secularism is widely considered to be a requirement for democracy and modernity;
Western Europe is considered to be a model. Yet, what really is the role of religion in the public
sphere of a democracy? Alfred Stepan undertook an empirical analysis of the degree to which
there is separation of church and state in a set of Western countries that had met certain
democratic requirements21 and found the following. First, many European countries have
established churches—in fact Germany and Austria have constitutional provisions allowing local
communities to decide on the role of religion in education.22 Second, a few European countries
went through a “hostile” separation of church and state. For example, Portugal is the only EU
country that constitutionally prohibits political parties from using religious affiliations or
symbols even though it has a legitimate Christian Democratic Party that is extremely active in
the public sphere.23 France and Spain are other examples of strict separation that have now
arrived at a point where the state does not interfere in religion—religious groups are now able to
practice freely and be a part of the civil and political society. Therefore, from Western Europe’s
experience, the lesson “lies not in the need for a ‘wall of separation’ between church and state
but in the constant political construction and reconstruction of the ‘twin tolerations.’”24 Third,
and most significantly, Stepan found that secularism and a separation of church and state have no
innate connection with democracy while “twin tolerations” is an intrinsic part of democratic
21
Alfred Stepan uses Robert A. Dahl’s requirements for democracy from his book Polyarchy. The requirements are:
1) freedom to form and join organizations, 2) freedom of expression, 3) the right to vote, 4) eligibility for public
office, 5) the right of political leaders to compete for votes and support, 6) alternative sources of information, 7) free
and fair elections, and 8) institutions for making government policies depend on votes and others expressions of
preference. See Alfred Stepan, “Religion, Democracy, and the ‘Twin Tolerations,’” Journal of Democracy 11, no. 4
(October 2000): 39–40.
22
For a list of countries with churches, see Ibid., p. 41.
23
See Ibid., pp. 40-41.
24
Ibid., p. 42. Also see Alfred Stepan, “The Multiple Secularisms of Modern Democratic and Non-Democratic
Regimes” in Rethinking Secularism, Craig Calhoun, Mark Juergensmeyer, and Jonathan Van Antwerpen, eds. (New
York: Oxford Uni. Press, August 12, 2011), pp.114–144.
8|P age
practices. His study showed that there are democratic and non-democratic forms of secularism,
democracies with established churches, and democracies with strict separation of church and
state25—all indicating a varied level of twin tolerations.
According to Stepan, “twin tolerations” refers to a clear distinction and a mutual respect
between political authorities and religious leaders and consists of three freedoms: 1) no
constitutional privileges to religious institutions and organizations that allow them to mandate
public policy, 2) freedom to worship, and 3) freedom of the pious to express their views and
values freely in both civil society and politics unless they infringe on civil liberties or disrupt the
rule of law (for Stepan, democracy falls under the rule of law).26 Currently, Pakistan has none of
these freedoms: the constitution has mandated institutions like the Council of Islamic Ideology
and the Federal Shariat Court (described in the next section of the paper), it restricts Ahmadis (a
minority Muslim sect) from practicing their faith, and allows almost no freedom to the non-pious
for expressing their views. The main source of this lack of freedoms is the constitution of
Pakistan. The current international attention on Pakistan due to Governor Taseer’s assassination,
however, has forced the Pakistani government and society to take a closer look at one of the tools
that facilitate the lack of freedoms within Pakistan: the blasphemy laws. Reforming the
blasphemy laws provides Pakistan with an opportunity to begin to ease some of the tensions
associated with religion, tolerance of religious minorities, and democracy, which is discussed in
more detail in the third section.
25
26
Stepan, “Religion, Democracy, and the ‘Twin Tolerations,’” pp. 42-43, Tables 1 and 2.
Ibid., p. 39.
9|P age
CONSTITUTIONAL CONFUSION IN PAKISTAN
There is no doubt that Pakistan’s political creation is intrinsically connected to Islam. 27
The All India Muslim League—the political party that was on the forefront of the call for
Pakistan—promoted a nationalist movement in India under the slogan “Islam is in danger.”28 But
the lack of consensus amongst South Asian Muslims on the meaning of Islam has created
complicated and often competing conceptions of religion, identity, nationalism, and Muslim
power in South Asia.29 When Pakistan was born, secularists, orthodox religious groups (ulama),
and modernists (liberals) all viewed the new state as theirs, wanting to mold it according to their
own principles. Secularists believed in the separation of religion and state, where religion would
have no role in the laws of the state. The ulama took the opposite view, believing that a state
religion was necessary for Muslims to be able to conduct their lives according to the principles of
Islam.30 Modernists find themselves in the middle, with some advocating for “secular Islam,” a
hybrid that reconciles modern ideas of law with more traditional ideas from Islam. Other
modernists rejected secular Islam and called for an Islamic state that is neither secular nor based
27
Björkman, “The Dark side of the Force,” p. 15 and Mumtaz Ahmad, “Islamic Revival in Pakistan,” in James
Warner Björkman, ed. Fundamentalism, Revivalists and Violence in South Asia (New Delhi: Manohar Publications,
1988), p. 92.
28
Ahmad, “Islamic Revival in Pakistan,” p. 92.
29
Fatima Mullick and Mehrunnisa Yusuf, “Pakistan: Identity, Ideology & Beyond,” Qulliam, August 2009, p. 12.
30
Muhammad Khalid Masud documents three main groups of ulama that emerged when Pakistan was formed and
still exist today. All groups called for the revitalization of sharia but differed on methodology. The revivalists
wanted to follow Islam during its early rise under Prophet Muhammad (P.B.U.H.). They are the most organized and
have taken advantage of modern media, using it to increase their appeal to the mostly illiterate public by reminding
them of a time when Islam was at its best. Modernists are the second group, whose calls for reinterpretation and
reconstruction of sharia in order to make it more applicable for a Westphalian-style state is largely misunderstood
by the public. Modernists have not formed any madrassas, which has allowed the state to ignore them. And finally,
modernists have strong disagreements amongst themselves on the meanings of reinterpretation and reconstruction.
Traditionalists are the third group who advocate a system of cultural and religious pluralism that had existed in India
before British rule marginalized sharia. Political collaboration, however, has not erased the differences between the
various schools of thought, making traditionalists less homogeneous and organized, especially when compared to
revivalists. See Muhammad Khalid Masud, “Communicative Action and the Social Construction of Sharia in
Pakistan” in Religion, Social Practice, and Contested Hegemonies: Reconstructing the Public Sphere in Muslim
Majority Societies, Armando Salvatore and Mark Le Vine, eds. (New York: Palgrave, 2005), pp. 261–263.
10 | P a g e
on religion.31 It was the fusion of these groups that began an ideological struggle within Pakistan.
This section describes this struggle by documenting Pakistan’s constitutional history in detail.
THE OBJECTIVES RESOLUTION: WHERE DOES ISLAM FIT IN?
Pakistan’s constitutional history formally began with the passing of the Objectives
Resolution on March 12, 1949, as a document that would embody the principles on which the
constitution would be formed. The Resolution had the following characteristics: 1) it proclaimed
that sovereignty belonged to God and would be exercised through delegates of the state, 2) the
state would practice its powers through the elected representatives of its people, 3) principles of
“democracy, freedom, equality, tolerance and social justice” as put forward by Islam would be
observed, 4) Muslims would have the right to follow Islam according to the teachings and
requirements set out in the Holy Quran and Sunnah, 5) the interests of minorities, along with
their right to practice their faith and culture, would be safeguarded, 6) the state would be a
federation, 7) fundamental rights would be guaranteed, and 8) the independence of the judiciary
would be ensured.32
Due to these principals, the Resolution created the foundation for constitutional
confusion. Two clauses in particular solidified the divide between the secularists and ulama,
between the government and religious groups, and between Muslim and non-Muslim members
of the Constituent Assembly.33 The first cause of contention was the “sovereignty clause.” The
31
The description of the “modernist” category is taken from Saleena Karim, Secular Jinnah & Pakistan (Karachi:
Paramount Publishing, 2010), p. x.
32
Article 2(A) The Objectives Resolution, 1973 Constitution of Pakistan,
http://www.pakistani.org/pakistan/constitution/annex_objres.html. In the longer version of this paper, the text of the
Resolution is Appendix B.
33
The Constituent Assembly of Pakistan was formed to write the constitution and served as Pakistan’s first
parliament. It convened on August 11, 1947, three days before Pakistan was formally granted independence. Jinnah
was the first president of the Assembly and remained at the post till his death on September 11, 1948. He was
replaced by the first Prime Minister of Pakistan, Liaquat Ali Khan, till his assassination in 1951. Under Khan, the
Assembly produced the Objectives Resolution (passed on March 12, 1949) but was unable to frame a constitution.
The Assembly, however, did come close to passing a constitution but four days before the Assembly was due to
11 | P a g e
Resolution proclaimed that Pakistan’s sovereignty belonged to God and that He had delegated
His powers to the elected representatives of state:
Whereas sovereignty over the entire universe belongs to God34 Almighty alone
and the authority which He has delegated to the State of Pakistan, through its
people for being exercised within the limits prescribed by Him is a sacred trust.
Non-Muslim and some liberal Muslim members of the Constituent Assembly objected to the
Resolution’s religiosity and maintained that by including God, the Resolution actually negated
the power of the people of Pakistan and the sovereignty of the state. Also, it remained unclear
what the “limits” were and who would prescribe them.35
The second clause that caused discord was: “Wherein the principles of democracy,
freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed,”
and did so for two reasons. First, critics believed that this clause went against what the founder
of Pakistan Mohammad Ali Jinnah (1876–1948) wanted for Pakistan—a state where Muslims
could rule in accordance with Islam but which would not be a theocracy. And second, by
including “enunciated by Islam,” the clause put non-Muslims at a disadvantage because it would
indirectly prohibit them from becoming the head of an “Islamic” state.36 As head of the
Constituent Assembly, Prime Minister Liaquat Ali Khan and other supporters tried to assure the
critics that the Resolution was not discriminatory. Khan clarified that a non-Muslim could be
meet, the then-Governor-General Malik Ghulam Muhammad dissolved it on October 24, 1954, declaring a state of
emergency because the Assembly had lost the confidence of the people and hence, could no longer be in charge of
writing a constitution. After fresh elections were held, Governor-General Ghulam Muhammad reconstituted the
Assembly on May 28, 1955. The first constitution was framed and passed on February 29, 1956, and promulgated
on March 23, 1956. The Assembly was then dissolved. See Zamin Hussain Talpur, Legal System of Pakistan
(Karachi: Pakistan Law House, January 2010), p. 8.
34
“God” was replaced by “Allah.” See Karim, Secular Jinnah, p. 45.
35
Ibid., p. 45
36
It is important to note that non-Muslims were not the only critics of the Resolution. For Mian Mohammad
Iftikharuddin (1907–1962), a Muslim member of the Constituent Assembly and a supporter of the sovereignty
clause as it was written, the Resolution was still troubling because according to him it failed to define the core
Islamic principles needed to create an Islamic constitution and an Islamic democracy. See Karim, Secular Jinnah &
Pakistan, p.50.
12 | P a g e
elected as a head of state because the Resolution clearly stated that the state would exercise its
powers and authority through the chosen representatives of the people, eliminating any
semblance to a theocracy. Also, Islam does not have a formal clergy, which serves as a safeguard
against the formation of a theocracy.37 Overall, the Resolution failed to: 1) define an Islamic
democracy or constitution, 2) create safeguards against theocratic interpretations, and 3) mention
secularism in any form,38 in a sense rejecting the idea completely.
It was only the ulama who viewed the Resolution as a success because it articulated the
place of Islam in Pakistan and also reconfirmed its importance in Pakistan’s ideological base.
The sovereignty clause gave them hope for sharia law eventually being granted a higher and
superior position that it had not enjoyed before Partition, and also ensured (albeit indirectly) that
a non-Muslim would not be elected by the people.39 One prominent religious group, the Jama’ati-Islami (JI)40 and its leader Abul ala Mawdudi were especially satisfied. Before the Resolution
was passed, Mawdudi gave two lectures in Lahore in which he made four demands: 1)
sovereignty belongs to Allah and the state should exercise its authority through His agents, 2)
sharia be made the basic law, 3) no laws made should be in conflict with sharia, and 4) the state
37
Karim, Secular Jinnah & Pakistan, p. 46-50.
The third point is taken from Stephen Philip Cohen, The Idea of Pakistan (Washington, D.C.: Brookings, 2004), p.
57.
39
See Ishtiaq Ahmed, “The Pakistan Islamic State Project: A Secular Critique” in State and Secularism:
Perspectives from Asia, Michael Heng Siam-Heng and Ten Chin Liew, eds. (Singapore: World Scientific
Publishing, 2010), p. 197 and Ahmad, “Islamic Revival in Pakistan,” p. 93.
40
Jama’at-i-Islami (JI) was created in 1941 and wanted to counter the Muslim League and Jinnah’s call for Partition.
After Partition, the JI was divided into two entities. The Pakistani branch was founded and headed by Mawdudi and
considered Pakistan to be an Islamic state. He made institutionalizing sharia as one of its main goals and hoped to
unify the Sunni Muslims under the common cause of excommunicating Ahmadis from Pakistan. The Indian branch
got absorbed into a secular constitutional framework and had to redefine its goals in its new context. While the
Pakistani branch believed the call for Pakistan as a legitimate demand to create an Islamic state where there is no
division between religion and public affairs, the Indian branch remained wedded to the pre-partition stance of the
ulama and criticized the very creation of Pakistan by stating that the umma could not be territorially confined. See
Ahmad, “Islamic Revival in Pakistan,” pp. 103–104, Amjad Mahmood Khan, ‘Persecution of Ahmadiyya
Community in Pakistan: An Analysis Under International Law and International Relations’ (2003) 16 Harv. Hum.
Rts. J. 217, p. 224, and Vali Nasr, The Vanguard of the Islamic Revolution: The Jama’at-i Islami of Pakistan
(London: I.B. Tauris, 1994).
38
13 | P a g e
should not transgress the limits of Islam while exercising its power.41 While the Resolution does
not mention sharia directly, it more or less included all four demands, strengthening the political
power of JI and other religious groups.
THE MUNIR COMMISSION: DEMANDING CLARITY FROM THE STATE
Despite declaring the passage of the Resolution as a success, religious parties remained
largely unsatisfied. Jinnah’s death, followed by Prime Minister Khan’s assassination on October
16, 1951 weakened the government’s defenses against an Islamic revivalist movement42 that rose
to prominence by stirring anti-Ahmadi sentiments. The anti-Ahmadi movement was primarily
led by the Majlise-Ahrar-e-Islam43 and widely supported by the JI. On January 16–18, 1953, 15
religious parties convened the All Pakistan Muslim Parties Convention in Karachi. On January
21, 1953 they demanded that: 1) Ahmadis be declared a non-Muslim minority group, 2) Foreign
Minister Zafrullah Khan resign since he is Ahmadi, and 3) Ahmadis not only be removed from
all key governmental positions but not be allowed to take them. The religious parties stated that
if the demands were not met, they would resort to direct action and replace the prime minister.
The then-Prime Minister Sir Khawaja Nazimuddin (1894–1964) refused all the demands,
sparking mass riots that resulted in the arrest of numerous ulama and the imposition of martial
law in Lahore. The governor of Punjab established a public court of inquiry to determine the
41
See Abdul Rashid Moten, “Islamic Thought in Contemporary Pakistan: The Legacy of ‘Allāma Mawdūdī,” in The
Blackwell Companion to Contemporary Islamic Thought, Ibrahim M. Abu-Rabi’, ed. (Malden, Ma: Blackwell
Publishing, 2006), pp. 180-181 and Nasr, The vanguard of the Islamic revolution, p. 116.
42
I am using this term to refer to a collection of orthodox religious political parties that differed on various topics
but remained united in their call for making Pakistan a “true” Islamic state based on sharia.
43
The most prominent advocates of declaring Ahmadis as a non-Muslim minority within Pakistan were the
members of Majlis-e-Ahrar-e-Islam. The Ahrar was formed on May 4, 1931 by a group of Muslims that had seceded
from Congress. Similar to the JI, they were opposed to Partition and the Muslim League leadership, calling Jinnah
an infidel due to his irreligious habits (e.g., marrying a Parsi woman, eating pork, drinking alcohol, etc.). They
eventually rejoined Congress in 1940. After Partition, they settled in Pakistan, vowing to make Pakistan an Islamic
state—and the first step would be to declare the Ahmadis as non-Muslims. See Aziz Ahmad, “Activism of the
Ulama in Pakistan,” in Scholars, Saints and Sufis: Muslim Religious Institutions Since 1500, Nikki R. Keddie, ed.
(Berkeley, CA: Uni. of California Press, 1972), p. 262 and Muhammad Munir and M.R. Kayani, Report of the Court
of Inquiry Constituted under Punjab Act II of 1954 to Enquire into the Punjab Disturbances of 1953, pp. 10–13,
http://www.thepersecution.org/dl/report_1953.pdf (The Munir Report).
14 | P a g e
cause of the riots. The court of inquiry is known as the Munir Commission and was headed by
the Chief Justice of Pakistan Mohammad Munir and fellow Supreme Court justice M.R. Kayani.
The commission confirmed that the cause of the riots was the government’s rejection of
the ulamas’ demands. After a thorough investigation, the report44 highlighted that the demands of
the ulama were in fact based on a variety of interpretations of Islam that often disagreed on
certain aspects, highlighting that the ulama were not as united as they appeared to be.45 The
report documented the position of the Federal government that stated that the state did not have a
right to declare any group a minority against its wishes. Furthermore, there is a constitutional
mechanism in place to dismiss a minister and that mechanism does not consider a person’s
religious orientation.46 The commission agreed with the government but urged it to clarify its
position on what is meant by an Islamic state in order to avoid such riots in the future.47
FIRST CONSTITUTION OF PAKISTAN
The government, however, did not clarify its position on what was meant by an Islamic
state, which is evident in Pakistan’s first constitution that was promulgated on March 23, 1956.48
By virtue of this constitution, Pakistan formally became the “Islamic Republic of Pakistan”
where only a Muslim could become the president. The constitution, however, did not bar nonMuslims from becoming prime minister. In the preamble, which was based on the Objectives
Resolution, the constitution permitted Muslims, individually and collectively, to be able to order
their lives in accordance with the fundamental principles of Islam as stated in the Holy Quran
44
See The Munir Report. This report was the first candid report on the state of the government and the influence of
orthodox religious groups. It was extremely through and well-documented.
45
See Ibid., pp. 188–200.
46
See Ibid., pp. 69–74.
47
For an excellent analysis of The Munir Report, see Tayyab Mahmud, ‘Freedom of Religion and Religious
Minorities in Pakistan: A Study of Judicial Practice’ (1995) 19 Fordham Int’l L.J. 40: pp. 65–68.
48
From August 14, 1947 till the 1956 Constitution, the India Act of 1935 Act provided the legal framework for
Pakistan. See Cohen, Idea of Pakistan, p. 41. Text of the 1956 Constitution can be found here:
http://www.therepublicofrumi.com/archives/56_00.htm.
15 | P a g e
and Sunnah. The constitution also protected the right of all citizens to profess, propagate, and
practice their own faith, and did not allow discriminatory taxation49—both are considered to be
substantive legal victories for minority rights.50
Under the chapter of Islamic Provisions, the “repugnancy clause” declared that no law
should be “repugnant” to the teachings and requirements of Islam as set out in the Holy Quran
and Sunnah (Article 198(1)). To accomplish this, the 1956 Constitution aimed to 1) establish a
law commission that would prepare an annual report on Islamization of existing laws and on
principles and concepts of Islam that could be embodied in legal form (Article 198(3)) and 2)
form a research institute that would study Islam and diffuse general knowledge on its principles
(Article 197(1)).51 Despite having a section for Islamic provisions, the constitution evaded the
use of the word sharia. By using only the Holy Quran and Sunnah, the drafters avoided declaring
sharia as the authoritative source of Islamic law but still maintained the centrality of Islam
within the constitution by promoting the idea of a new kind of Islamic jurisprudence that would
not be based on the different schools of thought (in other words, the ulama) but on laws made
and implemented by the Parliament and the Courts.52 The repugnancy clause, therefore, would be
enforceable by the Courts.53
49
Under sharia, non-Muslims have to pay a special tax called jizya in order to be protected by the state. The tax
frees them from an obligation to serve in the armed forces.
50
See David F. Forte, “Apostasy and Blasphemy in Pakistan” 10 Conn. J. Int’l L.27 (Fall 2004): 34 and Mahmud,
‘Freedom of Religion and Religious Minorities in Pakistan,’ p. 64.
51
See Fazlur Rahman, “Islam and the New Constitution of Pakistan,” in Contemporary Problems of Pakistan, J.
Henry Korson, ed. (Leiden, The Netherlands: Brill, Jan 1974), p. 41.
52
See Forte, ‘Apostasy and Blasphemy in Pakistan,’ p.33–34. Sharia is Islamic law derived from the Holy Quran
and Sunnah. Local practices generated a variety of Islamic legal doctrines that led to the formation of religious
schools. Doctrines emerging from those schools were collectively called fiqh, which was basically a jurisdictional
understanding of sharia. Initially fiqh was not considered to be sacred and on the same level of sharia, which was
also called qanun or the law established and implemented by the rulers (in other words, public law). In order to
avoid handing rulers an immutable authority because of qanun, jurists began to gradually regard fiqh as closer to
sharia, leading to the development of taqlid, which means obeying a doctrine from a school. Fiqh and taqlid
together not only crystallized the authority of the schools but promoted legal pluralism. Islam, however, also
emphasizes the individual and personal will—or jihad, which refers to an internal struggle, usually referring to how
one can achieve closeness to God. By the thirteenth century, critics of taqlid began to emphasize ijtihad, which is
16 | P a g e
Yet, the 1956 Constitution avoided declaring an official state religion, essentially skirting
the question of whether the state would embody an Islamic character. The constitution therefore
did not provide clarity on concepts, such as democracy, freedom, and tolerance and neither did it
address any ideological inconsistencies.
THE 1962 CONSTITUTION
Pakistan experienced its first military coup under General Muhammad Ayub Khan
(1907–1974), nullifying the new constitution. Khan stayed in power from 1958 till 1969 and was
inclined toward a more modernist brand of Islam. In this vain, he set up a commission to rewrite
the constitution. Similar to its predecessor, the 1962 Constitution54 avoided declaring an official
state religion and did not bar non-Muslims from becoming the prime minister. The preamble was
based on the Objectives Resolution but key words were removed from the 1956 Constitution,
resulting in fewer references to Pakistan as an Islamic state. The list is below:
1. It removed “Islamic” from the official name (name became “Republic of Pakistan”).
2. It removed “within the limits prescribed by Him” from the sovereignty clause in the
preamble. (The clause in 1956 was “Whereas sovereignty over the entire Universe
belongs to Allah Almighty alone, and the authority to be exercised by the people of
Pakistan within the limits prescribed by Him is a sacred trust”).55
the use of individual rationality and reasoning without strictly adhering to the schools of law. See Masud,
“Communicative Action and the Social Construction of Sharia in Pakistan,” pp.158–159.
53
See Leonard Binder, Religion and Politics in Pakistan (Berkeley: Uni. of California Press, 1961), pp. 371 –373
and Abdus Sattar Ghazali, Chapter IV: The First Martial Law in Islamic Pakistan: Illusions & Reality (Islamabad:
National Book Club, August 1999), p. 1, http://www.ghazali.net/book1/chapter_4.htm.
54
Unfortunately, I was unable to find the original copy of the 1962 Constitution. All information is based on a
variety of sources that are cited accordingly.
55
See John L. Esposito, “Islam: Ideology and Politics in Pakistan,” in The State, Religion, and Ethnic Politics:
Afghanistan, Iran, and Pakistan, Ali Banuazizi and Myron Weiner, eds. (Syracuse: Syracuse Uni. Press, August
1988), p. 337 and Martin Lau, “Sharia and National Law in Pakistan,” in Sharia Incorporated: A Comparative
Overview of the Legal Systems of Twelve Muslim Countries in Past and Present, Jan Michiel Otto, ed. (Amsterdam:
Amsterdam Uni. Press, Feb 15, 2011), p. 393.
17 | P a g e
3. It removed “Sunnah” but included the “Holy Quran” in the preamble. The clause in the
1962 Constitution stated: “Wherein the Muslims shall be enabled to order their lives in
the individual and collective spheres in accordance with the teachings and requirements
of Islam as set out in the Holy Quran.”56
Khan considered the ulama responsible for Pakistan’s rising sectarian problem and he
moved to limit their power. Yet, he did not eliminate the Islamic provisions as stated in the
previous constitution.57 Instead, he modified them to suit his modernist interpretation of the kind
of Islamic state Pakistan should be. The “repugnancy clause” was simply stated as “no law shall
be repugnant to Islam” and would not be enforceable by the Courts.58 He created two advisory
bodies, the Advisory Council of Islamic Ideology and the Islamic Research Institute. The
Council was responsible for advising the government on provisions that would better enable
Muslims to live their lives according to principles of the Holy Quran and Sunnah and ensuring
that no law was repugnant to Islam. The Research Institute, which was mandated by Article
197(1) of the 1956 Constitution, was responsible for defining the Islamic fundamentals but in a
more modern and liberal context so as to ensure their applicability in a modern world. Khan
essentially wanted to take the “monopoly over the interpretation of Islam”59 away from the
56
See Rahman, “Islam and the New Constitution of Pakistan,” p. 40.
In the literature, there is some conflict on whether or not the “repugnancy clause” was removed in its entirety in
the 1962 Constitution. Forte on p. 34 and Farooq Hassan on p. 287 both state that the “repugnancy clause” was
removed but brought back in an amendment in 1964 and reworded with an enforcement mechanism. According to
them, the clause was stated as follows after the amendment: “[N]o law shall be repugnant to the teachings
and requirements of Islam as set out in the Holy Quran and Sunnah, and all existing laws shall be brought into
conformity therewith.” My research leads me to believe that both Forte and Hassan are incorrect in stating that the
clause was removed entirely from the 1962 Constitution but are correct when describing the conditions in which the
clause was reworded to include “Holy Quran and Sunnah.” See Forte, “Apostasy and Blasphemy in Pakistan,” p. 34
and Farooq Hassan, ‘Religious Liberty in Pakistan: Law, Reality, and Perception (A Brief Synopsis)’ (2002)
B.Y.U.L. Rev. 283, p. 287.
58
See Ghazali, Chapter IV, Islamic Pakistan: Illusions & Reality, p. 1.
59
Lau, “Sharia and National Law in Pakistan,” p. 393.
57
18 | P a g e
ulama. As such, members of both would be appointed by the president, not the ulama, effectively
marginalizing the power of orthodox religious groups.60
Khan, however, underestimated the power base of the ulama, who strongly objected to
Pakistan’s official name and the executive’s appointees in both advisory institutions. Political
pressure by religious groups resulted in the First Amendment of 1964 that extended the
“repugnancy clause” by stating that “all existing laws should conform to teaching and
requirements of Islam as set by the Holy Quran and Sunnah.”61 According to Farooq Hassan, the
successful rewording of the “repugnancy clause” was the first successful step taken by Islamists
in an attempt to Islamize Pakistan62 but I disagree—it was the Objectives Resolution that gave
religious orthodox groups a solid base by which to influence the constitution. It allowed for
symbolic discrimination against non-Muslims to creep into the constitutional framework as
moderates battled with making the constitution both Islamic and democratic, which they
understood as Jinnah’s vision.
THE 1973 CONSTITUTION
In 1969, the 1962 constitution was suspended, and martial law declared as General Yahya
Khan assumed power. Elections were held in 1970 but the results were contested, resulting in a
bloody civil war in which East Pakistan became Bangladesh.63 Under the leadership of President
Zulfiqar Ali Bhutto, a new constitution was put into effect on August 14, 1973.
60
See John Esposito, Islam and Politics (Syracuse: Syracuse Uni. Press, August 1998), pp. 121–122. The Council
and the Research Institute were often in conflict. According to Fazlur Rahman, who served as the director of the
Institute from 1962 –68 and as a member of the Council on Islamic Ideology from 1964-69, the Institute embodied a
modernist stance while the Council was conservative and often reactionary. Due to the constant conflict, the Institute
was dropped from the 1973 Constitution. See Rahman, “Islam and the New Constitution of Pakistan,” p. 41.
61
Ghazali, Chapter IV, Islamic Pakistan: Illusions & Reality, p. 1.
62
See Hassan, ‘Religious Liberty in Pakistan,’ p. 288.
63
The civil war was a result of the December 7, 1970 elections. Pakistan still comprised of two wings, West
Pakistan, which is the Pakistan of today and East Pakistan, which is now Bangladesh. Yahya Khan changed the
method of representation in the National Assembly (NA), basing it on population rather than parity. This gave East
Pakistan 162 direct seats out of 300 direct seats (6 seats were reserved for women in West Pakistan while 7 were
reserved in East Pakistan, bringing the total to 313). The Awami League won 160 seats in East Pakistan, gaining a
19 | P a g e
All references to God, the Holy Quran and Sunnah, and Islam in the preamble in the 1973
Constitution not only remained intact but were furthered: Islam was declared as the state religion
(Article 2), and only Muslims were now eligible to run for the offices of president and prime
minister, effectively sidelining non-Muslims. The new constitution altered the previous
constitution’s Islamic Provisions slightly.64 The “repugnancy clause” (Article 227) remained but
the paragraph explaining its application was changed. In the previous constitution, the
interpretation of the repugnancy clause according to the Holy Quran and Sunnah had been based
on the interpretations of the various sects, which was problematic for the aim of creating
uniformity of Islamic law. In the 1973 Constitution, this was dropped and simply referred to the
Holy Quran and Sunnah.65 The paragraph, however, was added back to the constitution in an
amendment that came into effect on September 17, 1980. The Islamic Research Institute was
dropped due to some controversies but the Advisory Council on Islamic Ideology (Article 228)
remained. The Council had the same responsibilities as before—provide legal advice on Islam
and make recommendations to the Federal and Provincial governments on how the Muslims of
Pakistan could live their lives according to the Holy Quran and Sunnah—but the constitution did
not clarify how members of the Council would execute such heavy Islamization of the laws
without the research institute.66 From the constitution, an appointment to the Council was neither
permanent nor continuous. For example: the constitution called for two members to be sitting
majority in the NA. But Pakistan People’s Party (PPP) had won the majority in West Pakistan, considering that as a
national victory. A refusal by both parties to reach a compromise made Khan dissolve the civilian cabinet and
postpone the NA indefinitely. This sparked widespread riots in East Pakistan that worsened when General Tikka
Khan, commander of the Pakistani forces in East Pakistan, launched military action. People fled to India to avoid the
violence, resulting in Indian involvement that eventually led to East Pakistan’s secession. Yahya Khan resigned on
December 20, 1971 and PPP’s chairman Zulfiqar Ali Bhutto took over as president and chief martial law
administrator (he was the first civilian to assume such a post). He eventually introduced a new constitution.
64
See Part IX: Islamic Provisions, 1973 Constitution, http://www.pakistani.org/pakistan/constitution/part9.html.
65
Fazlur Rahman was actually pleased with this development and believed that it might actually force the different
schools of Islamic thought to work together to create some uniformity of Islamic law. See Rahman, “Islam and the
New Constitution of Pakistan,” p. 40.
66
The Institute was involved with some public controversies with the very conservative right, resulting in a conflict
of interest. See Rahman, “Islam and the New Constitution of Pakistan,” p. 41–42.
20 | P a g e
judges in the Supreme Court or High Courts (Article 228(4)). In a way, the constitution limited
the Council, which would not have been problematic, had it not declared an official religion for
the state.
The constitution’s declaration of Islam as the official state religion reinforced the prePartition desire of religious groups—that by the 1970s had developed into legitimate political
parties—to expel the Ahmadis from Islam. Riots broke out in the summer of 1974 to exert
pressure on the government. On September 17, 1974, the Parliament passed a bill declaring the
Ahmadis as a non-Muslim minority; the constitution was amended accordingly.67 On January 18,
1975, a bill was moved to amend the penal code that made it illegal to propagate ideas
contradicting the finality of the prophet or to profess similar beliefs. The punishment was up to 2
years of rigorous imprisonment.68
The 1973 Constitution further complicated the role of Islam in the Pakistani state without
providing any sort of ideological clarity: “It is an ideological state, but it has no known
ideology.”69 Instead, Bhutto remained fixated on the public’s emotional attachment to Islam and
repeatedly tried to exploit it in hopes of remaining in power.70 This short-sighted approach has
crippled Pakistan constitutionally and ideologically, and made it vulnerable to the misuse of
religion.
CHANGES UNDER ZIA-UL-HAQ
The Islamization71 of laws peaked under the military dictatorship of Zia-ul-Haq (1924–
1988), who came to power via a coup d'état in July 1977 and ruled till his death in August 1988.
67
See Munir D. Ahmed, “Pakistan: The Dream of an Islamic State,” in Religion and Societies: Asia and the Middle
East, Carlo Caldarola, ed. (Berlin: Mouton De Gruyter, December 1982), p. 276 and Ghazali, Chapter VII: The
Third Islamic Republic, Islamic Pakistan: Illusions & Reality.
68
Munir Ahmed, “Pakistan: The Dream of an Islamic State,” p. 276.
69
Rahman, “Islam and the New Constitution of Pakistan,” p. 41.
70
See Ibid., 42–44.
71
By “Islamization,” I am referring to the misuse of Islam to create discriminatory laws.
21 | P a g e
Zia moved to strengthen the implementation of the “repugnancy clause.” In May 1980, he
established the Federal Shariat Court (FSC). The FSC has been given original and appellate
jurisdiction and the authority to examine any existing law and ensure that it is not repugnant to
Islam on its own motion or through a petition by a citizen or the government. If the FSC rules
that a law is indeed repugnant, the government is required to amend the law and bring it in
conformity with Islamic injunctions. Appeals of FSC decisions are handled by the Shariat
Appellate Branch of the Supreme Court. The FSC also has jurisdiction over criminal courts and
its decisions are binding on High Courts and lower courts.72 Before the FSC, ensuring that no
clause was repugnant to Islam was the responsibility of the legislative branch and could be
enforced by the judiciary if it was called to do.
Zia also wanted to fortify the constitutional provisions that the 1973 Constitution had
created to institutionalize Islam. He successfully proposed an amendment to include the original
text of the Objectives Resolution in the constitution, which is now Article 2A. The inclusion of
the provision in the Resolution that enables Muslims to live their lives according to the Holy
Quran and Sunnah in the actual text of the constitution was an attempt by Zia to ensure that any
constitutional interpretations would have to be answered in line with sharia.73
With the constitution appropriately worded, the FSC served as the legal mechanism by
which Zia could legitimize certain criminal ordinances passed by the Parliament. Zia introduced
a law against blasphemy, a law punishing the defilement of the Quran, a law against speaking ill
of the wives and family members of Prophet Mohammad (P.B.U.H.), and laws specifically
prohibiting Ahmadis from practicing their faith. Since 1982, Section 295–B has deemed
imprisonment for life as the proper punishment for willfully defiling, damaging or desecrating
72
See Chapter 3A, Articles 203A–203J, Constitution of Pakistan,
http://www.pakistani.org/pakistan/constitution/part7.ch3a.html and Talpur, Legal System of Pakistan, pp. 83–85.
73
See Khan, ‘Persecution of Ahmadiyya Community in Pakistan,’ p. 226.
22 | P a g e
the Holy Quran. According to Sections 298 –B and –C—collectively under Martial Law
Ordinance XX—it is a criminal offence for Ahmadis to profess, practice, and propagate their
faith. They can no longer use any epithets, descriptions, and titles of holy places, which
effectively restrict their religious activities. A violator of these laws would face up to three years
in prison. In 1985, in Mujibur Rahman v. Government of Pakistan, the FSC was asked to
determine if Ordinance XX was contrary to the injunctions of the Holy Quran and Sunnah. The
FSC ruled that the restrictions imposed by Ordinance XX were not contrary to the teachings of
Islam and that the Parliament of Pakistan had acted within its power when it declared Ahmadis
as non-Muslims. According to the FSC, the Parliament was simply prohibiting Ahmadis from
referring to themselves as something they are not. The Criminal Law Act of 1986 furthered
Ordinance XX’s restrictions by adding the death penalty to fines and life imprisonment for
crimes committed under Section 295–C. In 1991, the FSC not only upheld the changes but ruled
that the death penalty was more appropriate since life imprisonment was contrary to Islamic law.
An appeal against this FSC ruling was rejected by the Shariat Appellate Branch of the Supreme
Court in 2009.74
There are also other provisions that restrict religious minorities constitutionally. Article
20 is about the freedom of religion and the management of religious institutions: every citizen
and religious denomination has the right to profess, practice, and establish religious institutions,
yet it is “subject to law.” This implies that even Islam is subject to supervision but case law
indicates that this has only been used against minorities.75 Article 19 explicitly deals with
freedom of speech and expression, and states:
74
See Khan, ‘Persecution of Ahmadiyya Community in Pakistan,’ p. 227 – 228 and Lau, “Sharia and National Law
in Pakistan,” pp.419–420.
75
Hassan, ‘Religious Liberty in Pakistan,’ p. 289.
23 | P a g e
Every citizen shall have the right to freedom of speech and expression, and there
shall be freedom of the press, subject to any reasonable restrictions imposed by
law in the interest of the glory of Islam or the integrity, security or defence of
Pakistan or any part thereof, friendly relations with foreign States, public order,
decency or morality, or in relation to contempt of court, [commission of] or
incitement to an offence. (emphasis added).
Previous constitutions did not mention “in the interest of the glory of Islam” in the article on
freedom of expression, considering the security of the state to include Islam since it served as a
basic principle of the state.76 An explicit mention of the glory of Islam has added a degree of
vagueness to the restrictions imposed on freedom of expression. These provisions are essentially
“claw-back” provisions, where the constitution is not providing the freedom of speech or
expression to its full extent.77
Though religious political parties were unable to garner enough public support to win
contested elections, they continued to influence constitutional reforms by exerting political
pressure on the government. If religious parties were ever doubtful of their influence on the first
two constitutions, the 1973 one must have eliminated all doubts. Islam became the official
religion, giving them a powerful constitutional tool by which to advocate for any kind of reforms
based on Islam. The FSC has extended their power. But unfortunately, each constitution has
systematically eroded the rights of non-Muslims, certain Muslim sects, and women. More
significantly, each constitution has misused Islam, using it as a means to justify violations of
political power.
76
77
See Rahman, “Islam and the New Constitution of Pakistan,” p. 43.
See Siddique and Hayat, ‘Unholy Speech and Holy Laws,’ p. 362.
24 | P a g e
BLASPHEMY IN PAKISTAN
All branches of the government—executive, legislative, and judiciary—have created
societal contradictions within Pakistan that has led to the hyper politicization of religion and a
gross misuse of the blasphemy laws. Governor Taseer’s assassination in January 2011 has
brought new attention to the laws, with calls for reform becoming louder. This section will
describe the debate for reform vs. elimination of the blasphemy laws. It will begin by
highlighting the design flaws of the laws themselves and then will explain the judiciary’s
struggle with judging blasphemy cases. It will conclude by discussing the political impact of the
laws, arguing that reform, not elimination, would facilitate twin tolerations within Pakistan.
THE FLAWS OF THE LAWS
Blasphemy laws are not a new phenomenon. Several countries have them, such as
Scotland, Denmark, France, Germany, Ireland, Spain, etc. Very few, however, use them. For
example: the last time it was used in Scotland was 1843, in Denmark it was 1938, while in
Belgium, the law no longer exists.78 Pakistan is one of the few countries in which the
implementation of the laws has increased over the years. But the blasphemy laws of Pakistan
suffer from four major design flaws.
First, the blasphemy laws are designed to only protect Islam and no other religion. This is
contrary to the Indian Penal Code that Pakistan had inherited on independence. Chapter 15 of the
Indian Penal Code is written in a way that protects all religions from “destruction, damage or
defilement as an insult to their religion” while Section 295–B and –C in the Penal Code of
Pakistan only refers to the protection of the Holy Quran and Prophet Mohammad (P.B.U.H.),
respectively. There have been calls to increase the scope of Section 295–C to include other
prophets that would potentially protect other religions as well, but theoretically it would only
78
Siddique and Hayat, ‘Unholy Speech and Holy Laws,’ p. 356.
25 | P a g e
protect Abrahamic religions, and not others like Buddhism or Hinduism. Furthermore, it is more
likely to increase the potential for further persecution of minorities.79
Second, Chapter 15 of the Indian Penal Code required a “deliberate or malicious” intent
in order to be charged for blasphemy. To obtain legal conviction for blasphemy in Pakistan,
however, it is not mandatory to prove intent. Except for a few exceptions in which the Courts say
that intention is absent and have granted bail, they mostly remain silent, which basically results
in the blasphemy laws being interpreted like strict liability offenses. Also, the lack of specificity
of Section 295–C, and the explicit targeting of Ahmadis in Section 298–C makes their scope and
applicability virtually limitless.80 For example, in the southern city of Karachi, a man belonging
to the minority Ismaili sect of Islam was accused of blasphemy after throwing away the business
card of a man named Muhammad, which is also the name of the Holy Prophet (P.B.U.H.).81
Third, there are no exceptions for any person who is charged with blasphemy. For
example: mentally ill and imbalanced individuals can be charged with blasphemy and punished.
In 1996, a woman by the name of Zaibunnisa was charged and jailed for 14 years after being
charged with blasphemy when a cleric found torn pages of the Holy Quran in a drain. Even
though a medical board declared her mentally ill after the arrest, she was still charged. More
importantly, when she was released it was not on the grounds of her illness but due to the fact
that there was no way the alleged torn pages could be linked to her. Furthermore, the cleric who
had apparently accused her said that he in fact had not named her but the police accused her in
order to defuse tensions that had arisen when the news of the defiled Quran had spread.82 In
January 2003, Anwar Masih, a mentally ill drug addict, was arrested on charges of blasphemy
79
Siddique and Hayat, ‘Unholy Speech and Holy Laws,’ p. 340.
Ibid., p. 352.
81
See Mehmood, “Pakistan Blasphemy Laws Retake Center Stage.”
82
See Asad Jamal, “Herald Exclusive: The Law of Diminishing Utility,” Dawn, February 15, 2011,
http://www.dawn.com/2011/02/15/herald-exclusive-the-law-of-diminishing-utility.html.
80
26 | P a g e
after getting into an argument with a shopkeeper about his debt. He was released after being
jailed for six years. This not only highlights the abuse that follows from a lack of intent
requirement but also the insensitivity of the Courts—especially the lower courts that deal with
these cases more—regarding sick individuals. Charging and punishing the mentally ill goes
against the norm of criminal courts worldwide where mental illness is a valid reason for not
putting someone through a trial.83 Children are also not immune to the laws. On January 28,
2011, a 17-year-old boy by the name of Muhammad Sumiullah was arrested under Section 295–
C for including derogatory comments about the Prophet Muhammad (P.B.U.H.) in a written
school exam that he took in April 2010. A judicial magistrate has ordered him to be sent to a
juvenile prison where he will await trial.84 This ruling violates the UN Convention on the Rights
of the Child,85 to which Pakistan is a signatory too and grants freedom of expression, speech,
thought, conscience, and religion to anyone under the legal age of 18. It further highlights the
continued use of the blasphemy laws to target any vulnerable group, and in this case, a child.
And fourth, even though Section 295–C calls for punishment by death, there are no
procedural safeguards in place. The “evidentiary threshold”86 is extremely low, meaning that
hard evidence is not required to successfully indict someone on blasphemy. This is mainly due to
the fact that lawyers and judges—and on occasion even their families— who demand hard
evidence are often harassed, threatened, and even killed.87
83
See Siddique and Hayat, ‘Unholy Speech and Holy Laws,’ p. 346–347 and 349.
See “Pakistan: Drop Blasphemy Charges Against 17-Year-Old,” Human Rights Watch News, February 2, 2011,
http://www.hrw.org/en/news/2011/02/02/pakistan-drop-blasphemy-charges-against-17-year-old.
85
UNICEF, Conventions on the Rights of the Child, http://www.unicef.org/crc/.
86
Freedom House, “Policing Brief: The Impact of Blasphemy Laws on Human Rights,” October 2010, p. 75,
http://www.freedomhouse.org/template.cfm?page=383&report=95.
87
There are numerous cases of harassment in the news. One example is of Parvez Aslam Choudhry, a lawyer who
has defended many accused of blasphemy. In 2005, he began to receive death threats for having defended a man
named Yousaf Masih, who was charged with blasphemy for flinging a burning matchstick in an Islamic school
(madrassa) on November 12, 2005 that caught fire. See Sheraz Khurram Khan, “Call for Protection of Lawyers
84
27 | P a g e
The laws also violate numerous international treaties, conventions, and laws:
1. They are in conflict with Articles 7 (on equality before the law and protection against
discrimination), 18 (freedom of thought, conscience, and religion), and 19 (freedom of
expression) of the Universal Declaration of Human Rights (UDHR),88 of which Pakistan
is a signatory.
2. Even though Pakistan is not a signatory, it is important to note that the laws violate
Articles 18, 19, 20, and 27 of the International Covenant on Civil and Political Rights
(ICCPR)89 because Pakistani jurists consider the ICCPR as an affirmed international
norm that Pakistan should follow. In fact, in 1988, the then-Chief Justice Muhammad
Haleem, stated that: “The international human rights norms are in fact part of the
constitutional expression of the liberties guaranteed at the national level.”90 Hence, the
verdict of Zaheeruddin (discussed later in this section) is especially troubling and violates
Article 18 directly.91
3. They violate Articles 2, 3, 4, 6, and 7 of the 1981 UN Declaration on the Elimination of
All Forms of Intolerance and Discrimination Based on Religion and Belief.92
Furthermore, Pakistan actually actively went against the 1981 UN Declaration making
the changes to the penal code in 1986.93
Defending Blasphemy Cases in Pakistan,” Assist News Service in Pakistan, February 26, 2005,
http://across.co.nz/PakistanBlasphemyCases.html.
88
Universal Declaration of Human Rights, December 10, 1948, http://www.un.org/en/documents/udhr/.
89
International Covenant on Civil and Political Rights, March 23, 1976,
http://www2.ohchr.org/english/law/ccpr.htm.
90
Khan, ‘Persecution of Ahmadiyya Community in Pakistan,’ p. 234.
91
Ibid.
92
UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or
Belief, November 25, 1981, http://www.un.org/documents/ga/res/36/a36r055.htm.
93
Khan, ‘Persecution of Ahmadiyya Community in Pakistan,’ p. 235.
28 | P a g e
4. They violate Articles 2 and 4 of the UN Declaration on the Rights of Persons Belonging
to National or Ethnic, Religious and Linguistic Minorities.94
5. The death penalty for blasphemy violates the first clause of the UN Economic and Social
Council that has provided safeguards for the rights of those facing capital punishment and
states that: “capital punishment may be imposed only for the most serious crimes, it being
understood that their scope should not go beyond intentional crimes, with lethal or other
extremely grave consequences.”95 While there is an international push to abolish the
death penalty, it has not completely been eliminated.96 Pakistan is one of the few
remaining countries to retain it along with China, Iran, and the United States.
THE JUDICIARY’S STRUGGLE WITH BLASPHEMY
The Objectives Resolution clearly states that the independence of the judiciary will be
upheld in Pakistan. But similar to the constitution, the judiciary has been a victim of Pakistan’s
contradictions, often finding itself in the midst of accommodating constitutional changes,
legitimizing unconstitutional moves by military rulers, and succumbing to societal pressures.
Rulings on blasphemy cases highlight judgments made due to societal pressure. Three prominent
blasphemy cases are highlighted below.
Mujibur Rahman v. Government of Pakistan in 1985
In 1985, in Mujibur Rahman v. Government of Pakistan, the FSC was asked to determine
whether or not Ordinance XX was contrary to the Holy Quran and Sunnah by the Ahmaddiyya
community. The court not only upheld the constitutionality and validity of Ordinance XX but
also stated that the parliament had acted wholly within its authority when declaring the
94
UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities,
December 18, 1992, http://www2.ohchr.org/english/law/minorities.htm.
95
Siddique and Hayat, ‘Unholy Speech and Holy Laws,’ p. 382.
96
For more details on the death penalty and the international movement to abolish it, see Amnesty International,
“Abolish the Death Penalty,” Web site, http://www.amnesty.org/en/death-penalty.
29 | P a g e
Ahmadiyya community as non-Muslim.97 The FSC’s reasoning highlights the dramatic shift that
had occurred in the legislative branch: in the 1952 Munir Report, the Federal government had
stated that it did not believe that it had the authority to declare a group a religious minority
against its will.98 A little over twenty years later, the government had declared Ahmadis as nonMuslims, a right that no doubt came from the declaration of a state religion in the 1973
Constitution. And the creation of the FSC and its subsequent ruling gave legitimacy to the
government’s actions.
Zaheeruddin v. State in 1993
On July 3, 1993, eight appeals by Ahmadis were brought before the Supreme Court,
calling into question the constitutionality of Ordinance XX and resulting in Zaheeruddin v. State.
The Court dismissed the appeals and stated that restricting the religious practices of the Ahmadi
community is indeed constitutional for two reasons. First, their claim to belong to the Muslim
faith aggravates the majority Sunni Muslim population of the country because by not believing
that Prophet Mohammad (P.B.U.H.) is the last prophet, they are not Muslims, and so to claim
that they are means they are engaging in misrepresentation and potential fraud.99 In other words,
“Ahmadis are criminals because they are Ahmadis, not because they commit any acts which, by
themselves, pose any danger to society.”100 Yet, it was clear that the non-Muslim status of
Ahmadi was not the issue; the issue was whether or not restricting their activities was
constitutional since they are a minority religious group.101 Second, by publically using Islamic
epithets as non-Muslims, the Court held that they would potentially be violating company and
97
Khan, ‘Persecution of Ahmadiyya Community in Pakistan,’ p. 228–229.
See The Munir Report, pp. 69–74.
99
M. Nadeem Ahmad Siddiq, ‘Enforced Apostasy: Zaheeruddin v. State and the Official Persecution of the
Ahmadiyya Community in Pakistan’ (December 1995) 14 Law & Ineq. 275, p. 292–293.
100
Ibid., p. 296.
101
See Mahmud, ‘Freedom of Religion and Religious Minorities in Pakistan,’ p. 48.
98
30 | P a g e
trademark laws, and so they should try to “coin their own epithets.” By doing so, the Court
created a legal parallel between trade and religion: “The Court assumed that there can be a
copyright on God and that religion can be treated as merchandise, ignoring the obvious
differences between religion and trade.”102 The Court used the U.S. freedom of religion
precedent to make its judgment.103 It is obvious, however that the decision in Zaheeruddin v.
State was hasty, self-serving, and dishonest; it misuses U.S. court cases, clearly violates the
freedom of expression and religion, and draws illogical parallels between trade and religion.
Masih Brothers’ Case in 1994
The Masih brothers’ case highlights the abuse of Section 295–C. In 1994, Christian
brothers, Salamat Masih, Rahmat Masih, and Manzoor Masih were put on trial for allegedly
writing blasphemous words on the wall of a mosque. While under police protection, they were
attacked by a religiously motivated mob that resulted in the death of Manzoor and severe injuries
for the other two. Salamat and Rahmat were eventually sentenced to death for blasphemy by a
lower court of Punjab—Salamat was just thirteen-years-old. The decision was overturned by the
Lahore High Court on February 23, 1995. The brothers, however, were forced to flee to
Germany under asylum, as riots broke out. A National Solidarity Council that brought together
21 religious groups was established that launched a country-wide strike and directed their
outrage toward the defense counsel and the panel of judges. During and after the trial the defense
attorney and her extended family were victimized. One of the judges, Justice Arif Bhatti, was
shot five times in his chambers on the afternoon of October 10, 1997, and his family believed his
brutal killing was due to his role in the Masih brothers’ case, though that has not been proven.
The police arrested Sher Khan, who admitted to shooting Bhatti in 1998 but apparently he is no
102
Siddiq, ‘Enforced Apostasy,’ p. 297.
For more details on what specific cases the Supreme Court of Pakistan used to make its decision, see Ibid., p.
300–314.
103
31 | P a g e
longer in police custody.104 Arif Bhatti’s shooting is in line with the current assassinations of
Salman Taseer and Shahbaz Bhatti—it is extremely destabilizing when a judge and public
officials are targeted and killed because they believe in reforming inherently discriminatory laws.
Each of the three cases represents a different court: the FSC, Supreme Court, and the
Lahore High Court.105 And all three cases highlight a judiciary that is not free from political
and/or religious influence. According to Tayyab Mahmud, the judiciary “has capitulated before
the ascendant forces of religious reaction and abdicated judicial protection of religious
minorities.”106
POLITICAL IMPACT OF BLASPHEMING IN PAKISTAN
The blasphemy laws of Pakistan have provided a legal course for persecuting religious
minorities. The Human Rights Commission of Pakistan (HRCP)107 documents blasphemy cases.
But it is a known fact that numerous cases go unreported and that there is no reliable public
information about those that are recorded.108 Furthermore, the numbers that are present vary a
bit. For example: the 2010 Freedom House Policing Brief on Pakistan states that according to
nongovernmental organization, 695 people have been charged with blasphemy from 1986 till
April 2006, while Pakistan’s English daily newspaper, Dawn, reported that 964 people have been
charged with blasphemy out of the 5000 cases that have been registered from 1984 to 2004.109
Since the 1980s, the number of cases brought before Courts has increased steadily: from
1980–1989 there were 12 cases, which increased to 37 between 1990–1999, which increased by
104
Siddique and Hayat, ‘Unholy Speech and Holy Laws,’ p. 332–336 and Hamid, “Herald Exclusive: Law Unto
Themselves.”
105
The lower courts are more vulnerable to various pressures. Numerous verdicts have been overturned in favor of
the defendant, who has usually been wrongfully accused, in higher courts. Unfortunately, oftentimes those convicted
remain on death row for a number of years, awaiting their appeal to a higher court. See Hassan, ‘Religious Liberty in
Pakistam,’ p. 297 and Siddique and Hayat, ‘Unholy Speech and Holy Laws.’
106
Mahmud, ‘Freedom of Religion and Religious Minorities in Pakistan,’ p. 44.
107
See Human Rights Commission of Pakistan, Web site, http://www.hrcp-web.org/aboutus.html.
108
See Siddique and Hayat, ‘Unholy Speech and Holy Laws,’ p. 323.
109
Freedom House, “The Impact of Blasphemy Laws on Human Rights,” p.69.
32 | P a g e
50 percent between 2000–2009 and totaled 56, and finally, there were 4 in 2010.110 The HRCP
reports that majority of the cases involve Muslims, followed by the Ahmadiyya community.111
According to Osama Siddiqui and Zahra Hayat, from 1960–2007, 41 cases have fallen under
Section 295–C. Out of these, the religious profile was as follows: Ahmadis: 15; Christians: 5;
Muslims: 20. This indicates that a little less than 50 percent of the cases involved Muslim
violators of the law but when considering the minute size of the Ahmadiyya and Christian
community, the 15 and 5 cases represent a huge proportion.112
According to the U.S. Commission on International Religious Freedom’s latest annual
report:
[D]iscriminatory laws, promulgated in previous decades and persistently
enforced, have fostered an atmosphere of religious intolerance and eroded the
social and legal status of members of religious minorities, including Shi'a
Muslims, Ahmadis, Hindus, and Christians. Government officials do not provide
adequate protections from societal violence to members of these religious
minority communities, and perpetrators of attacks on minorities seldom are
brought to justice.113
According to the Minority Rights Group International’s “Peoples Under Threat Index”—an
index that uses 10 indicators to compile a list of countries that over five years are more likely to
grossly violate human rights—Pakistan is ranked number six for the persecution of Ahmadis,
110
See Maleeha Hamid Siddiqui, “Herald Exclusive: Law Unto Themselves,” Dawn, February 15, 2011,
http://www.dawn.com/2011/02/15/herald-exclusive-law-unto-themselves.html and Siddique and Hayat, ‘Unholy
Speech and Holy Laws,’ p. 326. The numbers for 2011 are not yet available but for a timeline from January to July
2011, see Saba Imtiaz, “Timeline: Pakistan blasphemy law cases, Jan-July 2011,” Express Tribune, August 4, 2011,
http://tribune.com.pk/story/223353/timeline-pakistan-blasphemy-law-cases-jan-july-2011/.
111
See “Q&A: Pakistan’s Controversial Blasphemy Laws,” BBC News, March 2, 2011,
http://www.bbc.co.uk/news/world-south-asia-12621225.
112
See Siddique and Hayat, ‘Unholy Speech and Holy Laws,’ p. 326. With respect to the population, according to
the CIA Fact, 95 percent of the population of Pakistan is Muslim while the other 5 percent consists of Christians,
Hindus, etc. See CIA Factbook, “Pakistan,” Web site, https://www.cia.gov/library/publications/the-worldfactbook/geos/pk.html.
113
U.S. State Commission on International Religious Freedoms, Annual Report on Pakistan, 2010,
http://www.uscirf.gov/index.php?option=com_content&task=view&id=1422&Itemid=1.
33 | P a g e
Baluchis (ethnic group), Hindus, Mohhajirs (ethnic group), Pashtun (ethnic group), Sindhis
(ethnic group), other religious minorities.114
Ahmadis remain a target of religious parties and are persecuted extensively. On May 28,
2010 in Lahore, two Ahmadi places of worship were attacked by squads of gunmen carrying
AK-47s who opened fire on worshippers during Friday prayers, resulting initially in 80 deaths
and 110 wounded.115 The death toll increased to 94 and injuries even more.116 Several Ahmadi
mosques had received threats but when they asked for protection by the police, they were not
given any.117 The Taliban wholeheartedly supported the attacks and called members of the
Ahmadiyya and Shia communities the “the enemies of Islam and common people.”118 Just
recently, a 16-year-old boy has been accused of blasphemy by some religious activists, stating
that he made derogatory remarks toward the Holy Prophet (P.B.U.H.) and so had his father by
writing that he was a Muslim in a school form, when in fact he is an Ahmadi. In fear of their
lives, the father and son are currently on the run.119
Christians remain the second most targeted group. At least seven Christians were burned
alive and hundreds injured in the small town of Gojra in Punjab where some Christians were
blamed for desecrating the Quran. On a further investigation, and after the attacks had already
taken place, the authorities found the accusations to be baseless. Even though the government
114
Minority Rights Group, People Under Threat Index, 2010, http://www.minorityrights.org/9885/peoples-underthreat/peoples-under-threat-2010.html.
115
See Waqar Gillani and Jane Perlez, “Attackers Hit Mosques of Islamic Sect in Pakistan,” New York Times, May
28, 2010, http://www.nytimes.com/2010/05/29/world/asia/29pstan.html , Banyan, “We Decide Whether You’re
Muslim or Not,” Economist, June 10, 2010,
http://www.economist.com/blogs/banyan/2010/06/state_persecution_and_pakistans_ahmadi_sect?page=1.
116
Human Rights Watch, “World Report 2011: Pakistan,” January 2011, http://www.hrw.org/en/world-report2011/pakistan.
117
Alex Rodriguez, “76 Dead in Attacks on Pakistan Mosques,” Los Angeles Times, May 29, 2010,
http://articles.latimes.com/2010/may/29/world/la-fg-lahore-mosque-attack-20100529.
118
Human Rights Watch, “World Report 2011: Pakistan,” January 2011, http://www.hrw.org/en/world-report2011/pakistan.
119
See Rana Tanveer, “Blasphemy charges: Out of fear, Ahmadi family on the run,” Express Tribune, December 15,
2011, http://tribune.com.pk/story/306901/blasphemy-charges-out-of-fear-ahmadi-family-on-the-run/.
34 | P a g e
also arrested about 200 people and offered $6000 compensation for the victims’ families, the
Christian minority is correct to blame the government for not protecting them in the first place.120
Religious minorities’ groups have not been the only victims of the laws: they have been
used to target the Pakistani press as well. In July 2001, an Urdu daily newspaper, Muhasib, had
printed an article about how the beard is not mandatory for a Muslim man, which is the
conventional wisdom. Though the article was harmless, the editors of the newspaper were
arrested and charged with blasphemy.121 The blasphemy laws have also facilitated a censorship
movement in Pakistan, in which Facebook found itself to be at the center of in May 2010. The
Lahore High Court banned Facebook and other social networks in response to “Everybody Draw
Mohammad Day,” stating that it was blasphemous and urging the state to create legal
mechanisms by which to censor blasphemous material in the future, effectively providing a legal
cover for government censorship.122
PRACTICING TWIN TOLERATIONS: REFORMING THE BLASPHEMY LAWS
As the number of blasphemy cases increase, the debates regarding the laws and whether
or not they should be reformed or eliminated altogether have increased as well. People are
questioning the impact of the laws, are increasingly paying attention to the importance of the
legal and judicial infrastructure of the country, and questioning the role of religion, tolerance,
and secularism in Pakistani society.
Eliminating the laws in their entirety would essentially eradicate a legal mechanism for
protecting those accused of blasphemy. Elimination may also encourage people to take the law
into their own hands, especially if they perceive that the state no longer cares about the sanctity
120
Issam Ahmed, “Pakistan's Christians protest lack of protection after deadly rampage,” Christian Science Monitor,
August 3, 2009, http://www.csmonitor.com/World/Asia-South-Central/2009/0803/p06s10-wosc.html.
121
Siddique and Hayat, ‘Unholy Speech and Holy Laws,’ p. 353.
122
See Madiha R. Tahir, “Letter from Karachi: The Facebook Fiasco and the Future of Free Speech in Pakistan,”
Foreign Affairs Feature, June 1, 2010, http://www.foreignaffairs.com/features/letters-from/letter-fromkarachi?page=show.
35 | P a g e
of religion, which would deepen the instability that is already present due to enraged mob action.
Reform on the other hand has the potential to stop the laws from being used as political tools of
religious persecution and intolerance. More importantly, reforms could institutionalize tolerance
between state and religious authorities in a way that does not suppress religion but obliges
religious groups to follow the state’s laws.
Twin tolerations demands three kinds of freedoms: 1) freedom from special constitutional
privileges to religious institutions and organizations that allow them to mandate public policy, 2)
freedom to worship, and 3) freedom of the pious to express themselves freely in both civil
society and politics unless they infringe on civil liberties or disrupt the law and order. The
following reforms can institutionalize such freedoms:
1) Section 295 states that injuring or defiling a place of worship with the intent to insult
religion is punishable, but there is no method for how to measure intent. Case history
indicates that the threshold for determining intent is low in blasphemy cases, which
enables the laws to persecute rather than prosecute. The method for determining
intent must be strengthened and evidence of intent should include numerous sources
in addition to credible witness accounts. Writing this into the law will give judges the
necessary legal cover for throwing out cases that have weak or little evidence.
2) Section 295–B states that defiling the Holy Quran is punishable with life
imprisonment and Section 295–C states that using derogatory remarks in respect for
the Holy Prophet (P.B.U.H.) is punishable by death or life imprisonment. These
sections should be removed in their entirety because i) Section 295–A already makes
deliberate and malicious acts intended to insult religion punishable by a prison
sentence or fine, rendering both sections redundant, and ii) both clauses only protect
36 | P a g e
Islam, which is discriminatory to all other religions. Similarly Section 298–A, which
makes speaking ill of the Prophet’s family punishable by a prison sentence, should
also be eliminated since it is discriminatory to all other religious figures.
3) Section 298–B and –C must be eliminated as it specifically targets Ahmadis, stating
that by professing and practicing their faith they are punishable by a prison term.
It is important to note that laws are never enough. But strong laws can help create a more
stable and tolerant environment—and that should be the minimum aim of the reforms.
CONCLUSION
Freedoms of thought, conscience, religion, and belief are what drove millions of
people to die for the creation of a safe haven for Muslims in Pakistan. To subject
Muslims religious minorities today to the same persecution Muslims endured
during partition would be to relinquish the principles of justice Pakistan sought at
its inception to justify its creation.123
The blasphemy laws have compromised religion, the institutional integrity of state
institutions, and the principles of justice and tolerance in Pakistan. Oppression of
religious minorities began to be entrenched in the national psyche as Pakistan struggled
to find a balance between religion and democracy. For example: persecution of the
Ahmadiyya community has been blatant. Pakistan’s first foreign minister, Muhammad
Zafrullah Khan, was Ahmadi and had declared Pakistan’s commitment to the Universal
Declaration of Human Rights (UDHR) in 1947. Yet, religious political groups demanded
that he step down simply because of his faith. Dr. Abdus Salaam, another Ahmadi, holds
the distinction of being the first Pakistani and the first Muslim Nobel Laureate to receive
the prize in physics. Unfortunately, he left Pakistan when the constitution was amended
in 1974 to declare that Ahmadis are non-Muslims. Christians face similar treatment.
123
Khan, ‘Persecution of Ahmadiyya Community in Pakistan,’ 243.
37 | P a g e
According to Ali Dayan Hasan, a senior South Asia Analyst for Human Rights Watch,
“Aasia Bibi’s case is so unremarkable, so commonplace, so routine in its casually callous
violation of basic rights that it did not even register in the public consciousness.”124 The
norm of persecuting religious minorities in the name of protecting Islam is one of the
main reasons for internal conflict within Pakistan.
The current debate began with Governor Taseer’s assassination. Most orthodox religious
groups praised his killing and hailed his killer as a hero, except a small group of Barelvi ulama.
Ten months after his death, some Barelvi ulama stated that he was not a blasphemer and that the
charge was based on insufficient academic research, which was contrary to the stance taken by
the majority of the Barelvi ulama, who had maintained a hardline stance and had even urged
people not to attend Taseer’s funeral.125 This admission highlights the complexity of the concept
of blasphemy along with how the religious groups themselves are divided on the matter.
The most important reason for this lack of freedoms in Pakistan is due to a lack of
education and understanding of both Islam and the concept secularism. Understanding Islam and
secularism is made out of bounds by the imposing clergy—even though Islam does not allow for
priesthood or any other similar structure. The reforming of the blasphemy laws, however,
provides a rare opportunity for Pakistan. Reform can actually create the freedom to worship
freely and allow voices other than the ulama to be heard in the public sphere. As Pakistan
struggles to democratize, how it addresses the role of religion in the public sphere will be crucial
to its future. Democratization requires a strong and independent judiciary that is immune to
public influence and religious pressure. It also requires a legislative branch that can ensure that
124
Hasan, “Filthy Business,” http://www.dawn.com/2010/11/15/filthy-business-by-ali-dayan-hasan.html.
See “Taseer no blasphemer, claim Barelvi ulama,” The Nation, October 14, 2011, http://nation.com.pk/pakistannews-newspaper-daily-english-online/Lahore/14-Oct-2011/Taseer-no-blasphmer-claim-Barelvi-ulama and Salman
Siddiqui, “Hardline Stance: Religious bloc condones murder,” Express Tribune, January 5, 2011,
http://tribune.com.pk/story/99313/hardline-stance-religious-bloc-condones-murder/.
125
38 | P a g e
laws are balanced and worded in a way that promotes tolerance and equality. Reforming the
blasphemy laws is a necessary step for reconciling the tension between religion and democracy
in Pakistan, and for strengthening the Pakistani democratic process.
39 | P a g e
SELECTED BIBLIOGRAPHY
Ahmad, Aziz. “Activism of the Ulama in Pakistan.” In Scholars, Saints and Sufis: Muslim Religious
Institutions Since 1500, edited by Nikki R. Keddie, 257–270. Berkeley, CA: Uni. of California
Press, 1972.
Ahmed, Ishtiaq. The Concept of an Islamic State: An Analysis of the Ideological Controversy in Pakistan.
London: Frances Pinter, 1987.
––––––––––––. “The Pakistan Islamic State Project: A Secular Critique.” In State and Secularism:
Perspectives from Asia, edited by Michael Heng Siam-Heng and Ten Chin Liew, 185–212.
Singapore: World Scientific Publishing, 2010.
Ahmad, Mumtaz. “Islamic Revival in Pakistan.” In Fundamentalism, Revivalists and Violence in South
Asia, edited by James Warner Björkman, 89–106. New Delhi: Manohar Publications, 1988.
Ahmed, Munir D. “Pakistan: The Dream of an Islamic State.” In Religion and Societies: Asia and the
Middle East, edited by Carlo Caldarola, 261–288. Berlin: Mouton De Gruyter, December 1982.
Binder, Leonard. Religion and Politics in Pakistan. Berkeley: Uni. of California Press, 1961.
Björkman, James Warner. “The Dark side of the Force: Notes on Religion and Politics.” In
Fundamentalism, Revivalists and Violence in South Asia, edited by James Warner
Björkman, 1–20. New Delhi: Manohar Publications, 1988.
Casanova, José. “Public Religions Revisited.” In Religion: Beyond the Concept, edited by Hent de Vries,
101–119. Fordham U.P., 2008.
Cohen, Stephen Philip. The Idea of Pakistan. Washington, D.C.: Brookings, 2004.
Esposito, John L. “Islam: Ideology and Politics in Pakistan.” In The State, Religion, and Ethnic Politics:
Afghanistan, Iran, and Pakistan, edited by Ali Banuazizi and Myron Weiner, 333–369. Syracuse:
Syracuse Uni. Press, August 1988.
Forte, David F. “Apostasy and Blasphemy in Pakistan.” 10 Conn. J. Int’l L.27 (Fall 2004): 27–68.
Ghazali, Abdus Sattar. Islamic Pakistan: Illusions & Reality. Islamabad: National Book Club, August
1999. Accessed November 2011. http://www.ghazali.net/book1/index.htm.
Hassan, Farooq. “Religious Liberty in Pakistan: Law, Reality, and Perception (A Brief Synopsis).”
B.Y.U.L. Rev. 283 (2002): 283–300.
Inayatullah. “Secularism a Necessity for Pakistan, Not an Option.” In Why Are We Afraid of
Secularism in Pakistan? edited by Dominic Moghal and Jennifer Jag Jivan, 93–99.
Rawalpindi: Christian Study Centre, 1999.
Karim, Saleena. Secular Jinnah & Pakistan. Karachi: Paramount Publishing, 2010.
Khan, Amjad Mahmood. “Persecution of Ahmadiyya Community in Pakistan: An Analysis
Under International Law and International Relations.” 16 Harv. Hum. Rts. J. 217 (2003):
217–244.
Khan, Zaffarullah. “Secular Movements in Pakistan.” In Why Are We Afraid of Secularism in
Pakistan? edited by Dominic Moghal and Jennifer Jag Jivan, 85–92. Rawalpindi:
Christian Study Centre, 1999.
Lau, Martin. “Sharia and National Law in Pakistan.” In Sharia Incorporated: A Comparative
Overview of the Legal Systems of Twelve Muslim Countries in Past and Present, edited
by Jan Michiel Otto, 373-432. Amsterdam: Amsterdam Uni. Press, Feb 15, 2011.
Mahmud, Tayyab. “Freedom of Religion and Religious Minorities in Pakistan: A Study of
Judicial Practice.” 19 Fordham Int’l L.J. 40 (1995): 40–100.
Munir, Muhammad and M.R. Kayani. Report of the Court of Inquiry Constituted under Punjab
Act II of 1954 to Enquire into the Punjab Disturbances of 1953. Accessed October 2011.
http://www.thepersecution.org/dl/report_1953.pdf.
Nasr, Vali. The Vanguard of the Islamic Revolution: The Jama’at-i Islami of Pakistan (London:
I.B. Tauris, 1994.
Philpott, Daniel. “Explaining the Political Ambivalence of Religion.” American Political Science
Review 101, no. 3 (August 2007): 505–525.
40 | P a g e
Philpott, Daniel and Timothy Samuel Shah. “Faith, Freedom, and Federation: The Role of
Religious Ideas and Institutions in European Political Convergence.” In Religion and an
Expanding Europe, edited by Timothy A. Byrnes and Peter J. Katzenstein. New York:
Cambridge Uni. Press, 2006.
Rahman, Fazlur. “Islam and the New Constitution of Pakistan.” In Contemporary Problems of
Pakistan, edited by J. Henry Korson, 30–44. Leiden, The Netherlands: Brill, Jan 1974).
Siddiq, M. Nadeem Ahmad. “Enforced Apostasy: Zaheeruddin v. State and the Official
Persecution of the Ahmadiyya Community in Pakistan” 14 Law &
Ineq. 275 (December
1995).
Siddique, Osama and Zahra Hayat. “Unholy Speech and Holy Laws: Blasphemy Laws in
Pakistan—Controversial Origins, Design Defects, and Free Speech Implications.” 17
Minn. J. Int’l L. 303 (2008).
Stepan, Alfred. “Religion, Democracy, and the ‘Twin Tolerations’.” Journal of Democracy 11,
no. 4 (October 2000): 37–57.
––––––––––––. “The Multiple Secularisms of Modern Democratic and Non-Democratic
Regimes.” In Rethinking Secularism, edited by Craig Calhoun, Mark Juergensmeyer, and
Jonathan Van Antwerpen, 114–144. New York: Oxford Uni. Press, August 12, 2011.
Talpur, Zamin Hussain. Legal System of Pakistan. Karachi: Pakistan Law House, January 2010.
41 | P a g e