“Generally, international law protects freedom of opinion, expression, and information. On the other hand, censorship essentially suppresses any kind of expression. Censorship is driven by man’s compulsive psychological need to prevent unpalatable utterances and images. Due to its political and religious undertones, censorship is often justified by the social mores that seek to preserve a ‘clean society.’”[1]
This article addresses the conflict between two human rights, first being the freedom of speech and second, the right to curtail any sort of disrespectful speech to one’s religion. I have chosen the two countries, Pakistan and United Kingdom to discuss the issue with regard to the Blasphemy laws prevalent in their legal system, that strictly penalize the expressions that pervert the sanctity of religion; Islam in Pakistan and Christianity in UK. This should be an interesting comparison due to the stark diversity in the background of the two regions, one being a prime country from the liberal West and the other being a country of strong religious values from the conservative East.
The wordings of the blasphemy law enforced under section 295 and 298 of the Pakistan Penal Code are
“Defiling, etc, of copy of Holy Quran. Whoever will fully defiles, damages or desecrates a copy of the Holy Quran or of an extract there from or uses it in any derogatory manner or for any unlawful purpose shall be punishable for imprisonment for life. Use of derogatory remarks, etc; in respect of the Holy Prophet. Whoever by words, either spoken or written or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Mohammed (PBUH) shall be punished with death, or imprisonment for life, and shall also be liable to fine. Use of derogatory remarks, etc..., in respect of holy personages. Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo or insinuation, directly or indirectly defiles a sacred name of any wife (Ummul Mumineen), or members of the family (Ahle-bait), of the Holy Prophet (PBUH), or any of the righteous caliphs (Khulafa-e-Rashideen) or companions (Sahaaba) of the Holy Prophet description for a term which may extend to three years, or with fine, or with both.”[2]
Since Pakistan is a federal republic and has a legal system based both on English common law and on Islamic Shari'ah law, it is no surprise that Pakistan has laws in its constitution that forbids blasphemy, and these laws are only valid against a blasphemous speech made against Islam.[3]
Being a country that was founded on the goal of achieving freedom to practice of religion, Pakistan unfortunately, has not kept up to the promise made by its founder, Muhammed Ali Jinnah, for the tolerance of all religions. Instead Pakistan is now one of the prominent countries that still enforce blasphemy laws in full force.[4]
“If you change your past and work together in a spirit that everyone of you, no matter to what community he belongs, no matter what relations he had with you in the past, no matter what his colour, caste or creed, is first, second and last a citizen of this State with equal rights, privileges and obligations, there will be no end to the progress you will make. -- Muhammad Ali Jinnah (1947).”[5]
Jinnah promised religious freedom in his speech in 1947 for all Pakistanis stating that all people were free to visit temples, mosques, churches, or to any other place of worship. He went on saying that this will not be restricted by the Government in any form. However, this did not happen due to the increasing religious fundamentalism.[6]
“Blasphemy laws have remained a black chapter in the history of religious freedom in Pakistan -they have ended the culture of tolerance of the freedom of expression, especially by the minority community.”[7]
Blasphemy (and blasphemous libel) is a common law offence with an unlimited penalty. In order to be penalized in court for a violation of the blasphemy law, one must have made a certain expression against the religion of strongly offensive character. While this will be a valid cause of action, it only applies to Anglican Christianity (in U.K and Islam in Pakistan ) and none other religion. [8] The offence is one of strict liability. Thus, ‘intent to commit an act of blasphemy is irrelevant; all that matters is whether the accused did in fact publish the material that is the subject of prosecution.’
Multiple cases have arisen in Pakistan on the basis of some sort of blasphemy committed against Islam, for example the case of Mohammad Younas Sheikh, who taught at the homeopathic medical college in Islamabad . “He is one of perhaps dozens of educators accused by their students of a crime that doesn't exist in many countries: blasphemy. Sheikh has been convicted and awaits execution, which is mandatory under the blasphemy law. Many other Pakistanis, particularly minorities, also have been charged.”[9]
More recently there have been cases of where the Pakistani Government felt compelled to ban Youtube for showing a blasphemous Dutch Film and Prophet Mohammad’s pictures.
The agitation regarding the blasphemy laws implemented in the country began after many cases came up disguising themselves as blasphemy law case. These cases were actually cases of where a minority member was being bullied to let go of a basic right, such as ownership to land, or else they were punished in the most extreme manner under the blasphemy laws.
It has been discovered and recognized by the Human rights groups that instances of Muslims bribing low ranking police Officials to file false blasphemy charges against minorities such as Ahmadis, Christians, Hindus, and occasionally other Muslims. Suspects are punished with lengthy periods in prison, where they are mistreated.
To date, appeals courts have overturned all blasphemy convictions, but suspects are generally forced to spend lengthy periods in prison, where they are subject to ill treatment, and they continue to be targeted by religious extremists after they are released.”[10]
Reform Proposals for Blasphemy Laws
In view of the constraints blasphemy laws put on freedom of expression, the discrimination against other faiths, the establishment of one over the other, ambiguity of the law and failing to take into account intent of the person committing blasphemy gave rise to many reform proposals for blasphemy laws. However none have been implemented. The major cause of issue is the fact there is no consensus on as to how the law should be reformed.
The fact that Article 10 of the ECHR has been incorporated, which gives the right of freedom of speech to every individual makes it more difficult for any future prosecutions under the laws of blasphemy. However, it is still maintained in common law, which gives rise to an uproar by those who are not followers of Christianity and feel the law discriminates against them, as well as those who simply don’t believe in having any kind of blasphemy law at all.[11]
Recently, this controversial law has been put under scrutiny due to some events. First being the extreme reaction by Muslims over the publications of disrespectful cartoons of Prophet Mohammed and second, the enactment of the Racial and Religious Hatred Act of 2006. “This legislation, which has created an offense of incitement to hatred on the ground of religion of belief. This was enacted in order to remove distinction that, until recently, the law only prohibited incitement to racial but not religious hatred in England .”[12] Enactment of this law creates more of a debate on having blasphemy laws in the first place that only protects the Church of England.
Some campaigners from minority faiths would like to see the law extended to cover their own religions. As a multi-faith liberal democracy, it is important to the British law that there is a sense of equality amongst the citizens of UK belonging to different faiths. “Perhaps, the most obvious argument for reform is that the current blasphemy law is a clear exception to the principle of equality.”[13] However, this could not be achieved very easily, due to the major issue of defining the term ‘religion’. It will give rise to issues such as , who gets to decide what religion is and in doing so, would that not still discriminate against religions that do not get the validation under the definition of religion.[14]
The second option proposed was to simply abolish the law of blasphemy without replacing it. This was supported by the British Law Commission, academics, humanists and most surprisingly by a former Archbishop of Canterbury himself. They supported to abolish it due to various reasons, one being the argument that the law was never really used, as most of them did not survive the Human Rights Act 1998. No blasphemy case has been prosecuted in England and Wales since the passage of the Human Rights Act 1998, as it would be likely to fail or, if a conviction were secured, would probably be overturned on appeal on grounds either of discrimination, of denial of the right to freedom of expression, or of the absence of certainty. Such an outcome would, in effect, constitute the demise of the law of blasphemy. However, this second proposal is also debatable due to the fact that it creates fear amongst many Anglicans who feel this is the first step towards the disestablishment of the Church. It is not only the Anglicans but also many Muslims who believe some sort of protection is needed for religion and that it is very important. Many Muslims stated in the Commons Select Committee on Religious Offences in England and Wales that “Even if the Law protected all religion except Islam, we would still support it, as we believe that all religions need protection.”[15]
Finally, the option of maintaining a status quo is also put forward by some. However, due to all the aforementioned criticisms of the present law on blasphemy, this too is opposed by many. Thus, despite all the support to have a change in the laws of blasphemy, none of the proposals have been workable and thus the law on blasphemy remains in tact in the United Kingdom ’s Government.
As for Pakistan , there have been several reforms proposed and an attempt has been made by the President, Pervez Musharaf to eliminate laws on Blasphemy, however such attempts have failed. He is also skeptical of not pressing the issue, as he does not want to seem anti-Islamic and get retaliation from the majority Muslims of Pakistan.[16]
There has been on going controversy in U.K as to having a valid blasphemy law still enforced in the United Kingdom . However, anyone thinking of reforming leave alone abolishing the law in Pakistan would be termed as anti-Islamic and would have to bear the brunt at the hands of Mullas and fundamentalists. It is sad that no one lays an ear to the reasoning behind such arguments against this law, that is based on the fact that it essentially protects religion over people.
Thus, perhaps the most obvious logic for reforming or abolishing the blasphemy laws is its obvious exception to the principle of equality and the discrimination against other religions that are denied protection under such laws and its restriction on the freedom of speech. After the Rushdie affair took place in 1991, the Muslims felt a need to get protection under the infamous laws of blasphemy, however they failed to get the protection. This increasingly created a feeling of unfairness and discrimination.
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Lastly, there is a debate as to the ambiguity of the blasphemy laws in U.K. The fact that the British Parliament has never defined the law adds confusion as to the application of it. Due to this, there is uncertainty whether one is committing the crime of blasphemy or not. This could make almost anything controversial regarding religion a crime of blasphemy.[17]
The debate, criticism and controversies against the viability of the Blasphemy law in U.K as well as Pakistan , still remains a question mark and I have tried, after research of various cases to bring this to the notice of our learned judges and lawyers. We may not want to abolish the law, however, we must consider any reforms to be accepted in its application; diminishing the penal effect of the offence. Islam is a religion of peace, forgiveness, and tolerance. It never encourages forceful subjugation. I inquire how we can decide to award death to someone for ridiculing our Prophet, when he himself, being mercy of all mankind, never did so?! He always prayed for such non-believers and never even cursed them even though they stoned him until he(p.b.u.h) bled to his feet. Despite all, when he himself, did not order them dying, who are we to award the offense of blasphemy with capital punishment?
[1] The Challenge of Regulating Hate and Offensive Speech on the Internet. Southwestern Journal of Law and Trade in the Americas 2001-2002
[3] http://www.christianitytoday.com/ct/2007/juneweb-only/123-43.0.html
[4] Id.
[5] Apostasy and Blasphemy in Pakistan , David F. Forte, 10 CTJIL 27, Fall 1994
[6] Protecting the Persecuted And Fulfilling the True Goals Of a War on Terror Through Immigration Policy- Samia A. Malik
[7] Islam and the Idealogy of Pakistan , Strategic Analysis: A Monthly Journal of the IDSA
[8] See New Analysis: The ‘dead letter’ law of blasphemy that can’t be written off, Paul Vallely, 12 July 2002
[9] http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A36108-2002May17¬Found=true
[10] http://www.apci.org.uk/PDF/APCI_7_6_Pakistan.pdf
[11] 21 Emory Int’L. Rev. 13
[12] 83 U. Det. Mercy L. Rev. 601
[13] First Amongst Equals: The English Church
[14] 83 U. Det. Mercy L. Rev 601
[15] Id.
[16] http://www.globalsecurity.org/wmd/library/news/pakistan/2000/000518-pak1.htm
[17] First Amongst Equals: The English State
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