silent minority not silent majority
curious case of the anti-law lawyer
The protests in favour of Mumtaz Qadri were unmistakable. The silence regarding the protests was deafening.
The silence is in fact incremental. It is growing. An eight year old charged for having committed blasphemy in the classroom. Response: Silence. Hazara Shias being killed with impunity. Silence. Mumtaz Qadri, our hero. Silence.
The contrary voices, on the other hand, are growing. A retired chief justice deciding, out of conviction, to plead the case of a declared murderer is only one indication of the rot that has set in.
The society, it seems, has taken the law into its hands and the state has made up its mind to sit as a silent spectator. The liberal and progressive forces sit at their homes scared. Political parties, even the ones that declare themselves as progressive and secular and what not, don’t utter a word. About the media, the less said the better.
It is this silence that we examine in today’s Special Report. Why is it that the state visibly failed to take action where it should have? Why is the agenda of exclusivity not being questioned by the authority of the state? As I.A Rehman points out in his thought-provoking analysis, where the state does act, it ends up serving the interests of the extremists. Thus while protests by the civil society are banned on The Mall Lahore, there are hardly any instances of the state daring to stop the danda-wielding, law-breaking, self-righteous lot from calling into question the very laws of the state.
There is no escape from going back to the Objectives Resolution, the military’s larger than life role and tracing the roots of appeasement to orthodoxy. That the situation has come to this pass says a lot about the fact that things did not fall in their right place from day one.
But what about today? Must we lose hope in the state’s capacity to deliver justice or protect its own laws? Is immigration to the West the only solution for people who think or believe differently? Has the street power of the religious right already rendered the parliament irrelevant? What is stopping the liberals to unite the way mullahs are — the state, the political parties or the fear of backlash from the radical elements in society? Is the liberal, progressive, pluralistic thought already a minority thought and the transformation of society into a bigoted, retrogressive one already complete?
Aren’t the political parties shirking from playing their due role in giving direction to people and in organising them along the right issues? How much of this regressive streak owes itself to the dominant discourse propagated by the military? And lastly, is there a hope left for any difference of opinion in Pakistan?
These questions were not only directed at Ayesha Siddiqa. They form the core of today’s Special Report. We may not have found answers to many of them but we are surprised at why so few people are raising these questions.
Nobody should be surprised at the wave of protest unleashed by religio-political groups against the award of death sentence to the self-confessed assassin of Salmaan Taseer.
A number of factors have contributed to the rise of the theory that acts committed while complying with Islamic commandments are not punishable under the Penal Code. At the same time the state’s consistent policy of appeasing obscurantists has robbed it of the will as well as the capacity to deal with criminal elements that take shelter under their interpretation of the shariah.
Looking back at the Muslim mindset in British India we find that Muslim associations, by and large, had a pacifist orientation. The Khaksars, a military-like organisation, had a labourer’s tool (shovel) as their weapon. The Ahrars used violent language against Ahmadis but calls to kill them were quite rarely heard. The Jamiatul-Ulemai Islam had a youth wing, Khuddam-uddin, devoted to peaceful service of the faithful. The Red Shirts, who followed an ideological mix of politics and religion, called themselves Khudai Khidmatgars and not only preached non-violence but also practised it. Almost all parties eschewed the politics of violence, except for what happened in response to the Muslim League’s call for direct action.
Instances of violent crime committed and justified in the name of belief were not unknown but freedom from the legal consequences was generally not claimed. When Swami Shardhanand; an aggressive advocate of Shuddhi, was killed by a Muslim zealot, the latter’s exemption from legal proceedings was not claimed. Indeed, the All-India Muslim League, at its annual session, condemned the Swami’s murder. When Ghazi Ilmuddin killed Singh for blasphemy nobody said he was not liable to be tried under the law. Allama Iqbal only tried to find a good defence lawyer and neither Mr Jinnah’s non-availability nor his realistic advice on the line of defence made him angry. (Incidentally, the defence for this much-acclaimed aashiq-i-Rasool (PBUH) was planned by a well-known Ahmadi, Chaudhry Zafarullah Khan.) In most cases those who killed in the name of Islam accepted the consequences, welcomed shahadat, and kissed the gallows.
Today the situation is radically different. The orthodox clerics are supporting their quaint theory of private justice and denying a person’s accountability under the law on the ground that his action is not an offence under the Islamic code. How has this about-turn taken place?
The rot began in a systemic way with the Objectives Resolution of 1949. Contemporary critics of the measure had warned against the possibility that someday an adventurer in authority could justify his rule by whim and caprice on the ground of his having been ordained by God. That dark prophecy was fulfilled when Ziaul Haq imposed his personal and theologically untenable version of Islam on a defenceless population. Worse, the Resolution gave rise to the concept of two sovereignties and a Muslim’s right to defy/violate the man-made laws by invoking the superior commandment of Allah.
The concept of dual sovereignty embedded in the Objectives Resolution was reinforced in a big way with the creation of the shariat courts by Ziaul Haq. The message was clear: the sharia as interpreted by the Shariat Courts over-rode parliament-made laws. Ziaul Haq also empowered Salat Committees to enforce righteous ways (amr bil maroof) and suppress objectionable practices (munkir). The scheme did not have a long life but it did legitimise the use of force/violence by non-state actors.
After Zia, the implementation of his theories has been taken up by a faction of religious militants who have revived the vigilante practices first seen in the Arabian desert in the 18th century. Through its large seminaries and militant forces, this faction has introduced the system of beheading (often without any trial) of people in the tribal belt, destruction of schools and excesses against women and minority communities—all in the name of a religion whose followers once took pride in their pursuit of reason and peace.
The worst form of vigilante ‘justice’ is the theory that every Muslim has a right and a duty to arbitrarily kill a blasphemy suspect. Despite the fact that the plea of death penalty for blasphemy does not enjoy unanimous support among jurisconsults, and this fact was brought out in the Federal Shariat Court during the hearing of the plea for prescribing mandatory death penalty under section 295-C of the Penal Code, conservative clerics have been promoting vigilante killing of anyone accused of blasphemy. As if that was not enough, some legal authorities, including judges, came out in support of such killings.
The story of the rise of the orthodoxy’s power has been matched by the state institutions’ resolve to keep retreating under its pressure.
The adoption of the Objectives Resolution itself amounted to appeasement of the orthodoxy for illegitimate political relief. The same can be said about the constitution-makers’ concessions (in 1956 and 1973) to conservative clerics. Ayub Khan’s casual expedition against them was short-lived; he surrendered within a year of his constitution’s enforcement. Mr Bhutto gravely undermined the future of Pakistan by foisting upon the state a totally indefensible amendment of 1974. All governments during the past 37 years have tried to stay in power not on the basis of their ability to stand up to obscurantist forces but on the strength of their closeness to them.
Besides, the state has taken no notice of the transformation of religious parties’ youth wings from agents of social service into armed militants with a licence to kill. Nobody stopped militants from replacing district administration in places where they had training camps. The religious bands have been helped by civic authorities to hang their unlawful banners in major cities. The Punjab government, for instance, has banned civil society protests on the Lahore Mall but no finger is raised when the ban is defied by mobs incited by all sorts of unholy mendicants.
The accumulated result of the obscurantists’ triumphant march and the state’s suicidal policy of retreat before them is that anyone can get away with criminal acts by invoking divine sanction. Islam does not approve of building mosques on illegally occupied land, yet this injunction is flouted with impunity. It was this practice that eventually led to the Red Mosque showdown.
This is the reason that Salmaan Taseer has been condemned twice: once by his guard who claims to have killed him because, in his opinion, the governor had committed blasphemy; and again by the government, the ruling parties and the people who have proved themselves to be pathetic wrecks that lack the courage to call murder by its only possible description. The assassin has been lionised by lawyers and jail authorities. And there have been elements in the media that have helped glorification of the killer without bothering to probe the story of Salmaan Taseer’s alleged act of blasphemy. A leading newspaper took pride in the fact that the pro-Qadri demonstrators had thanked it for adequately covering their protest.
Strangely enough, the conservative clerics are using both the man-made law (the Penal Code) and what they describe as divine law in discovering blasphemy in actions, often involuntary, that do not attract this dreaded label. Quite a few professionals spend their time filing complaints about offences against religion. The objective is to secure prosecution, conviction and punishment under the Penal Code. At the same time, they reserve the right for every believer to administer extra-legal punishment. Finally, they deny the vigilante killers’ liability to face trial and suffer punishment under the country’s penal laws. Such examples of having the best of both the worlds (virtuous and profane) can rarely be found outside Pakistan.
Considerable confusion is being caused by some people who equate the orthodoxy’s demand for reprieve for Salmaan Taseer’s murderer with human rights activists’ demand for abolition of death penalty. Such efforts seriously militate against commonsense. Those pleading for abolition of death penalty do not deny the society’s right to punish violators of the law; they only wish punishment to conform to the civilized concept of reformative justice. The religious orthodoxy on the other hand does not repudiate death penalty, it does not accept as crimes criminal actions supposedly done as part of one’s religious duty. They cannot avail of the principle upheld by abolitionists.
The central issue is what can be done to extricate Pakistan from the crises the wave of disorder in the name of religion (Iqbal’s expression) has created. Unfortunately, mischief takes root easily and quickly and its eradication needs a long period and often demands heavy sacrifice. The fight against religious intolerance will be long and hazardous. The first task is to realise the gravity of the challenge. The people of Pakistan must know they will have no future if the monster of bigotry and obscurantism cannot be laid to rest. What they face is not merely a law and order problem and therefore they will get nowhere by addressing symptoms alone. The mindset that has developed over six decades will have to be purged of all traces of abuse of religion.
What Pakistan needs is both reformation and renaissance. Nothing less can save it. And that is going to be a back-breaking process of learning and unlearning and redefining the role of religion in private life and in politics and excluding it from the affairs of the state.
It is sad to see the aftermath of murder of Salmaan Taseer, governor of Punjab, by his official police guard over the issue of blasphemy laws. The killer-Mumtaz Qadri later confessed that he had killed Taseer in front of the court and gave a 40 page statement to justify his act. The killer is being portrayed as a hero in the name of religion. Qadri’s followers and religious parties have not only refused to accept the death sentence awarded to the killer and have been protesting against the decision but some have also announced head-money for the judge who awarded punishment to Qadri. A group of lawyers in Rawalpindi attacked his court room while district bar council passed a resolution threatening of dire consequences if the judge was not transferred from Rawalpindi. It seems that Mullahs surge for radicalism and intolerance in society is unchallenged, especially in a situation where political parties choose to stay indifferent.
It is pathetic that the killer of Salman Taseer is honored by the educated section of the society. Khawaja Sharif ex-chief justice of Lahore High Court is defending him. On the other hand the parliament of Pakistan has condemned Taseer’s murder. There was no serious concern expressed over the assassination of Shahbaz Bhatti. A Hindu parliamentarian from Sindh had migrated to India after receiving life threats. Najam Sethi, a senior journalist is forced to go into self-exile because he talks about the issues which mullahs and establishment dislike. Dozens of people are being killed only because of their faith and no serious voice is being raised condemning these killings in Quetta.
There are many who do not endorse the point of view of religious radicals but they do not have the courage to speak against it because ordinary citizens are incapable of confronting the radicals. They need a platform which can only be provided by political parties. But even the more secular parties like the PPP and the ANP are silent over these issues. ANP that contested the 2008 general elections on the slogan of fighting terrorism and extremism in the society is considered the most vocal party against extremism in society. But, spokesperson of ANP senator Zahid Khan refuses to comment on the issue. “Go and ask the PPP about this entire phenomenon” he says. Haji Adeel, senior vice president of ANP however is kind enough to elaborate his party’s point of view on the issue. “All those people who have been staging protest against the death sentence of Qadri have the right to do so peacefully. As far as Salmaan Taseer is concerned, he belonged to the PPP and was a staunch supporter of Kalabagh Dam project. I would say that tolerance is being shrunk from both right and left sides,” he says.
PPP on the other hand sees it with a different lens. “PPP does not believe in confrontation. The situation will be out of control if we tried to counter it. One should criticize the PPP if it was in opposition right now and did not respond the situation” says Ch Manzoor Ahmed, central leader and among the most liberal voices of PPP. “The most disturbing thing for me is that nobody in our society is ready to fight out this mindset of intolerance. Political parties are also responsible for it but dictatorships played the most important role to nourish this mindset. It will take time to prepare people but it will come with education,” he says.
Only some small parties like Labour Party Pakistan that neither have resources nor outreach are vocal against the shrinking space for reasoning in society and openly condemn all those acts directed to convert Pakistani society in a fanatic one. “There is already no space for reasoning or difference of opinion in our society. Our mainstream political parties by keeping mum on the issues of the right, are not only endorsing mullahs’ point of view but also strengthening them”, Farooq Tariq, spokesperson of Labour Party Pakistan tells TNS. “I am so disappointed with PPP after Salmaan Taseer’s murder. They have not even supported the judge who awarded death sentence to the killer,” he says.
Ayaz Amir, columnist and MNA PML-N, says that political parties should raise their voice against intolerance in our society. “It is true that they do not speak against this madness. It has become very difficult to talk about certain issues in our society. Political parties like all other segments of society fear the violent militants,’’ he says.
Political analysts term these conditions pathetic for the progress of society. “This is political expediency,” says prominent political commentator Rasul Bakhsh Rais. “Political parties in Pakistan are looking only for short term interests. They want to retain power at any cost. It is their duty to promote tolerance in society and to support law-bound decisions of courts. Political parties need to take bold steps. They should protect the civil rights and provide intellectual space in society. They should not allow murderers to decide their fate,’’ he says.
The News on Sunday: In one of your recent articles, “Why not free Qadri” you seem to have lost hope in the state’s capacity to deliver justice or protect its own laws. If, for argument’s sake, the state were to do that for all such people, where does that leave the liberal and progressive people? Is immigration to the West the only solution?
Ayesha Siddiqa: It takes a while to build capacity of any sorts. Instead of building our capacity to fight extremism we have strengthened sources of radicalism and militancy. Our law enforcement agencies and the judicial system are also infested with radical elements. I remember talking to two civil judges: one of them was amongst the first few who had handled Malik Ishaq of LeJ. When I asked him about what he thought of the case and terrorism in general, he began a long tirade on how in his view terrorism in Islam started with beginning of shiaism. There are many trends that seem to be coming together — some with names and faces, others without it. There are the religious parties, then non-party structures like Tableeghi Jamaat and Al-Huda, then there are the militant outfits and to top it all new entrants like Hizb-ut-Tahrir and Zaid Hamid and his friends.
The issue here is not of liberalism but creating an all inclusive space. The formula for establishing a khilafat will create greater chaos in the Muslim world, especially Pakistan which is the target of such a plan. The reason is that it will divide us further. Can someone, for instance, explain what norms will we follow once there is khilafat? Which school of thought will we follow? I don’t think that all those who want a larger space for expression can run away to the West. That’s certainly not the solution. What we need is the struggle to create a new discourse that allows all other elements of the society to coexist. It also means that the state will have to enhance its capacity to govern. Without that we are not going anywhere.
TNS: We grew up hearing about the street power of the religious right (we saw it in the Nizame Mustafa Tehreek in 1977) but it is after a long time that we are seeing it at play again. Has it already rendered the parliament irrelevant or can the parliament retrieve its lost ground?
AS: How can a parliament that continues to concede space to the religious right (sometimes in the shape of JUI-F) become relevant in changing the order of things? We have a history of conceding space to the religious right. It was done even by the most liberal governments so why cry now?
TNS: What is stopping the liberals to unite the way mullahs are — the state, the political parties or the fear of backlash from the radical elements in society?
AS: The liberals do not have a discourse. They pretend that religion does not exist even though they make use of it every day. The use of religion to create bad politics has to be separated from having faith and religion as a cultural norm. The other problem is that our liberals are not politically liberal. Most do not, in any case, see the connection between militancy and its source—the deep state. So, while they want military means to be used against militants they don’t want to enhance space for an all-inclusive politics. There are many contradictions within.
In a nutshell, the inner contradictions amongst the liberals do not enable them to argue the larger rightwing mantra that religion and politics are combined in Islam. It takes knowledge of religion to argue that it is actually not.
TNS: Is the liberal progressive pluralistic thought a minority thought and the transformation of society into a bigoted, retrogressive one already complete?
AS: To be honest our liberal forces are also bigoted in their own ways. As mentioned earlier, they are not politically liberal. Also, unless they have an alternative narrative which is politically inclusive and calls for major social changes, we cannot move forward. For instance, have you ever heard of a liberal media group owner conceding to the demand of their workers for a fair wage-award? And what makes us think that these owners are not part of the vested interest that keeps religion in its very exclusive forms mainstream? The same goes for other power groups.
TNS: Aren’t the political parties shirking from playing their due role in giving direction to people and in organising them along the right issues?
AS: Certainly the political parties are responsible but so are others—including this country’s intellectuals, the media and the academia. Remember how everyone came together to form an opinion against Fazlullah in Swat that made room for a military operation. Why can’t opinion be primed against radicalization? We must remember that this is not Islam but a political interest-driven interpretation of Islam that divides rather than unites people. We must highlight the stories of people who have suffered due to violence and a politicised presentation of Islam.
TNS: You specialise in civil-military imbalance in this country. How much of this regressive streak owes itself to the dominant discourse propagated by the military?
AS: The military is central to the empowerment of radicalism and militancy. These elements are the tools of the state that sometimes challenge the state as well. The militants are, what I call, the new feudals since their power is replacing the old feudals and they are backed by the state. Many argue that it is poverty and lack of education that has made militancy fashionable. This is partly true but not entirely because if poverty was the main driver, we would have militancy blazing all over. The fact is that the state, which condones the presence of militants, has given these elements social legitimacy. If I am above board as far as law is concerned then I will be accepted as the power.
TNS: Is there a hope left for any difference of opinion in Pakistan today?
AS: Of course, there is hope only if we come together and make a plan. How can we think of hope when we haven’t done anything to correct the situation?
The interview was conducted via email
The overdose of religion given to young Pakistanis means that bitter sectarian wars are up ahead that will last for decades. Today, Shias are being slaughtered with barely a sign of protest from the Sunni majority. Tomorrow it will be one Sunni faction butchering another. For years, Ahmadis, Hindus and Christians have been desperately seeking to flee Pakistan. They would be foolish to want to stay.
Yet, even as faith-based extremist movements disrupt society, the cry for an ever greater role for religion in public life gets louder. Sharia-seeking Taliban have blown up more than one thousand girls and boys schools since 2005. Yet men like Imran Khan have barely uttered a word of displeasure. For these people, all ills come from the outside.
Religious fascists threaten to drag Pakistan into barbaric medievalism. That Governor Taseer’s murderer is their hero shows just how bad things have become. A confused and frightened state is fighting militants who say this is a conflict of Islam versus America, India and Israel. But, in fact, they are actually waging an armed struggle to remake society and will keep fighting this war even if America were to miraculously disintegrate and disappear.
Created by poverty, a war-culture, and the macabre manipulations of Pakistan’s intelligence services, they want a cultural revolution. This means eliminating music, art, entertainment, and all manifestations of modernity and westernism. Those who claim that Pakistan’s silent majority is fundamentally secular and tolerant are clutching at straws. Take a vote: all who say that every citizen should have equal rights will lose.
of Liberals but why
Some of the main reasons for the seeming retreat of liberals and progressives lie in the intellectual confusion among liberals themselves. Many people appear to be socially liberal, in that they value personal freedoms of dress, food and lifestyle, but are simultaneously politically illiberal, in that they end up supporting military regimes and laws based on inequality, such as the NRO. A number of liberals supported the Musharraf coup and overlooked the terrible dangers of power being transferred from elected representatives to non-representative authoritarian institutions.
Liberal TV anchors have defended the NRO arguing that it ushered in democracy. This contention reduces the meaning of democracy to form — elections, voting and public office. The hallmark of liberal democracy is citizen equality, the value denigrated in the NRO.
In fact the liberal notion of Rule of Law was abandoned by many a liberal reluctant to undo a dictator’s actions of November 2007. A number of liberals challenge basic rights such as the freedom of speech when their favorite political party is critiqued over corruption, graft and nepotism.
Long ago liberals ceded the space of anti-imperialism to the right wing thereby abdicating their own responsibilities.
The religious right took advantage of the liberal retreat from anti-imperial discourses. Critique of the oil wars of the 21st century fell squarely in the lap of the religious right which was earlier hand in glove with imperialism. The moral discourse against corruption and cronyism was ceded to the Right wing which eagerly seized the opportunities offered by a liberalism that descended into anarchy, opportunism and belief in Machiavellian politics. The responsibility for the shrinking of progressive space lies as much on the liberal retreat as on the ferocious advance of the religious Right.
liberals need to make thousands of points of contact
The liberal ideas, values, symbols and some practices are under threat today in Pakistan, because the state has lost the liberal vision of the founders; the ruling political groups that have tainted electoral legitimacy stand on weak moral and political grounds, and they have mixed their politics of gaining advantage with religion. Even some of them have entered into coalition with the religious parties that have supported fanaticism, extremism and have openly defended terrorists, murderers and private enforcements of religious attitudes.
The liberals of Pakistan are in small numbers and hardly find any common forum, platform or party to play an effective role. They are reduced to solitary voices of reason with little impact on the masses or popular public opinion. However, retreat or defeat is not the way out. The way forward for the liberals in Pakistan is to establish the rule of law so that they have protection, neutralise and strengthen state institutions so that they are no longer an instrument in the hands of ruling cliques, and as a long-term strategy support liberal sections of the political parties, seek their alignment on common issues, and encourage them to use the arm of the state against hate mongers and supporters of murderers.
Not everything is lost; there is hope for recovery; these are critical times to make a turn around. One of the core values of liberalism is hope, optimism and belief in the power of the masses. But to harness that power, we need to make thousands of points of contact. The drawing room liberals, or those hiding behind the desk, must bring themselves closer to the people by embracing popular, folk culture, adopting popular symbols and draw themselves culturally closer to the people than stay closer with elite with an elites look and behavior.
for democracy and rule of law
Support for the murderer of Punjab Governor Salmaan Taseer stems from the way ‘religious’ parties have milked the ‘blasphemy’ issue to gain political mileage. They have appealed to the one thing that unites all Muslims regardless of sect—the honour of the Prophet Mohammed (pbuh). Until this issue was brought to the fore, these sects were often at loggerheads—about half of the blasphemy cases are registered against Muslims, by Muslims of a rival sect.
One of the major factors behind their gains in the public space is the state’s weakness in controlling and punishing vigilante violence and murder. Due process of law must be applied to criminal acts regardless of the motive (‘honour’, ‘religious fervour’ etc). Fact-finding reports by human rights organisations show that behind most blasphemy and honour killing cases is personal rivalry or vendetta, or political motive.
Pakistanis must stand their ground and unite for democracy, rule of law and justice. A continuation of the electoral, democratic, political process is what will, in the long run, counter the ‘religious’ frenzy that is hyped up by the media
Lawyers at the Rawalpindi Bar, and religious groups and political parties in general, have reacted strongly against the death sentence awarded to Mumtaz Hussain Qadri, the self-confessing assassin of former Punjab Governor Salmaan Taseer. While the argument against capital punishment remains valid in this case too, what the thinking minds are bewildered at is the reaction of the lawyers. The lawyers, at least the protesting ones, want Qadri acquitted and released because what he did was ‘righteous’. Rawalpindi District Bar Association has asked for the transfer of the deciding Judge Pervez Ali Shah because his continued presence in the court could create law and order situation.
The judge has been transferred since then. People are asking that if the lawyers do not respect judicial verdicts then who will? The judge may never get a posting in the court. In fact, he may have to run away from the country in order to ensure his personal safety like the cleric who led Governor Taseer’s funeral prayers early in January this year.
To the outsider, especially the liberals who supported the movement, lawyers present a curious case. Until some time ago, they were seen as champions of the rule of law. Today, they are seen as part of the threat that is further curtailing the already shrunken space available to the liberal discourse. Even otherwise, they are feared as they have been seen and filmed attacking policemen, courts and judges, and anyone coming their way.
At one level, this may be identified as part of the same trend that we observe in the society in general: rising religious zeal leading to extremist tendencies, ready acceptance of violence as a means to resolve disputes, and acting together like mafias for professional success and monetary gain. At another level, the problem is more about the framework within which the lawyers work, including the post-restoration dynamics of judicial independence. If one connects the dots, all these aspects might appear to be part of a chain.
Most of the lawyers in Pakistan belong to the urban/suburban middle classes who struggle to make a place for themselves in the profession. The profession is heavily male-dominated. The education and training that they are imparted, even at the law colleges, hardly equips them with critical thinking or even the fundamentals of the profession. Out of a rotten educational system, they land in a profession which is largely unregulated, and free of any disciplinary mechanisms. Most of the problems in the legal profession and judiciary stem from this fundamentally flawed scheme. But, at the same time, a lot of lawyers coming from middle class backgrounds bring along ingrained prejudices, religious and social, and are easily absorbed by the freely available anti-liberal yet insecure space in the profession.
It was against this backdrop that the movement to introduce death penalty for blasphemy in respect of the Holy Prophet (PBUH) was started by a religiously motivated advocate Mohammad Ismaeel Qureshy from Lahore, Punjab. The Punjab factor might actually be much more important or rather crucial in determining the role of lawyers and in curtailing the liberal space for discourse than is usually realised. It may also be recalled that some lawyers had already played active role in the 1977 Nizame Mustafa Tehreek and later many collaborated with Zia for Islamisation of laws.
The first ever Shariat Petition filed before the Federal Shariat Court (FSC) in 1984 by Advocate Qureshy for review of blasphemy laws especially section 298-A PPC and for declaring death as the punishment for blasphemy in respect of the Holy Prophet of Islam (pbuh), under Article 203-D of the Constitution (FSC was established by Gen. Zia under Article 203 of the Constitution) contained 79 names as petitioners out of which 68 were advocates based in Lahore. The non-lawyers included politico-religious leaders like Mufti Mohammad Hussain Naeemi, Maulana Abdul Sattar Niazi, Maulana Ajmal Qadri and Alama Ehsan Ilahi Zaheer whose names were juxtaposed with such names, among others, as advocates Hamid Khan, S. M. Zafar, A. K. Dogar, Syed Afzal Haider (later judge of the Fedral Shariat Court), Mian Nazir Akhtar (later judge Lahore High Court, who became famous for his public remarks to the effect that blasphemy accused were liable to be immediately killed, Z. B. Kaikaus (former judge Lahore High Court) and Chaudhry Ijaz Ahmed (present chief justice Lahore High Court).
While the petition was pending, Qureshy drafted section 295-C and got it tabled through Jamaat-i-Islami’s Apa Nisar Fatima. In 1986, when General Zia was still running the show, the bill became an Act of Parliament in a slightly modified form providing for life sentence as an alternative punishment to death. Dissatisfied with the amendment to the draft bill, Advocate Qureshy again went to the FSC in 1987 and convinced the court to rule against any punishment in cases of blasphemy of the Holy Prophet except death. The FSC verdict came in 1990. It unleashed a flood of violence which now appears unstoppable.
The 1990 FSC verdict was one in a series of those which emboldened the rightwing lawyers. In the latest ongoing round, we see lawyers active in bringing petitions for ban on facebook and internet search engines. They succeed in convincing or put enough pressure on the court (the Lahore High Court, the highest Punjab Court) to not only hear their groundless petitions but also ban the websites. We have also seen, in this very round, that the Lahore High Court in response to a petition practically rendered Article 45 concerning the Presidential power to pardon ineffective to preempt any move in the case of Aasia Bibi.
In September 2010, the present Chief Justice Lahore High Court, shortly before he took charge of the highest judicial office in the Punjab, confirmed the death sentence of a convict under section 295-C in a case filed by Advocate Qureshy. It is a case in which jurists argue, there is not a shred of evidence against the accused, who has already spent ten years in prison. Former Chief Justice of the Lahore High Court, who is now representing Qadri before the Islamabad High Court, once refused to grant bail to accused Martha Bibi when he had already used the same argument in favour of a Muslim accused under the blasphemy law.
The argument in favour of death penalty for blasphemy in respect of the Holy Prophet (PBUH) has not stood the test of time. The first extra-judicial murder of a blasphemy accused under 295-C was committed in August 1992. It was Tahir Iqbal who later became known as Yusuf Kazab whose prosecutors included Advocate Qureshy. About four dozen accused have since been killed, and scores others would never live normal lives.
Can we say that the lawyers and judges who have decided to stay quiet are in effect acquiescing, if not actively collaborating, to further marginalise the already marginalised? The answer is clear.
writer is a Lahore-based lawyer. He can be reached at [email protected]