Age of intolerance
Rashid Rehman’s brutal killing — for doing his duty as a lawyer — must be viewed along with the (similar) assassinations of Justice (R) Arif Iqbal Bhatti, Governor Salmaan Taseer, and federal minister Shahbaz Bhatti. A judge, leading members of government, and now a defence counsel have been killed for trying to ensure that no citizen of Pakistan should be denied his right to be treated according to law.
The accumulated result of these murders is that judicial officers, particularly at the subordinate level, are unable to proceed according to law, powerful and quite loquacious political authorities have lost the courage to utter a word of sympathy for the victims and lawyers are afraid to defend persons accused of offences relating to religion. The entire population is in the grip of fear and people are asking one another to disappear in holes where they can be safe.
The surrender to mob rule is complete. A person is accused of an offence relating to religion and immediately a cry of ‘blasphemy’ goes up; though most of the offences listed in Chapter XV of the Pakistan Penal Code do not fall in the category of blasphemy. The police do not agree that an offence has been made out. They are ‘gheraoed’ by a violent mob and have to register a case. The matter goes to a court. The presiding officer, in many cases, is not convinced of the accused’s guilt but the fear of the mob that attends his court more regularly than its functionaries, forces him to award the accused the maximum punishment.
Besides, there have been judicial officers whose keenness to punish the accused bolsters the labours of the complainant and the prosecutors. No superior authority has taken note of punishments awarded contrary to law in cases relating to belief, except in appeals. The rate of acquittal at higher levels alone is sufficient to confirm the unwelcome effects of mob rule over subordinate courts.
The extent to which mob violence is making a mockery of law can be gauged from the most ridiculous — and frightening — case just reported from Jhang. No less than 62 lawyers have been booked under Sec 298-A, for using derogatory expressions against a high Muslim personage. The story, as far as one can make out, is that the lawyers had a grievance against a police officer named Umar Daraz and they called him names. That was taken as constituting insults to the second caliph. The police were not prepared to concede that any offence had been committed and they resisted mob pressure for charging the lawyers for quite a long time till the violent crowd presented them with the threat of a sectarian riot. Then they chose the ‘lesser evil’.
It is also perhaps time that the Law Commission undertook a study of the belief-related cases decided since the Ziaul Haq period to ascertain the degree of compliance with due process, especially the application of the Islamic tests to determine anybody’s guilt, namely the intent to commit an offence and evaluation of evidence under the principle of tazkiatu-shuhood.
Those who have been following blasphemy cases were convinced quite some time ago that, in such cases, fair trial had become impossible. Now the situation has further deteriorated. If a blasphemy accused cannot have the services of a defence counsel — and that is the message Rashid’s killers have been sending out to the lawyers — then it means he cannot have any trial; he will have no possibility of challenging the evidence produced against him; he will not be able to expose the prosecution’s flawed assumptions; and he will not be able to protest against the court’s bias or deviation from due process.
This is an extremely dangerous situation that will seriously affect the justice system, undermine the government’s title to rule, and lower Pakistan’s standing in the comity of nations.
The government must realise that under Article 4 of the Constitution, it has a clear obligation to ensure there is no violation of a citizen’s inalienable right “to enjoy the protection of law and to be treated in accordance with law.” Further, denial of a person’s right to be defended by a lawyer is a violation of the newly crafted fundamental right to fair trial (Article 10-A), and the government’s duty to ensure compliance cannot be over-emphasised.
The government is also obliged to guarantee all citizens the right to adequate defence and fair trial under the International Covenant on Civil and Political Rights (Article 14), to which Pakistan has become a party. Although compliance with the Covenant’s provisions will be one of the basic conditions for the enjoyment of the fruits of the GSP Plus status with the European Union, it would be a matter of great shame for the state of Pakistan if it cared more for the profits of the textile tycoons than the lives and rights of its citizens.
The government surely has the resources to find out what it can do in the matter. It should, to begin with, tell the police not to yield to mob pressure, that they should refuse to register cases related to belief if they are not convinced of an offence having been committed. (The mobs will continue harassing the police unless they are firmly dealt with.) No case may be registered without the permission of a high police officer. At the same time, measures should be taken to protect judges, lawyers, and witnesses in all cases that professional mischief-makers wish to exploit for their sadistic pleasure.
More importantly, the government must realise that belief-related cases are no ordinary legal matters. These cases have now become instruments of discrimination against a large category of people — religious minorities, smaller Muslim sects, and propertied and successful people envied by their competitors/rivals. These cases are also being used to gain political advantage by silencing all opposition and dissent and, thus, clear the way for establishing an obscurantist oligarchy.
The authorities may gather the religious scholars to discuss whether Islam permits the kind of intolerance and blood-letting that is being done in its name. Today, more Muslims are accused of belief-related offences than non-Muslims. Why is it that such cases occur only in Pakistan — and here too mostly in Punjab — and rarely in other Muslim countries, many of whom have non-Muslims living side by side with Muslims?
It is also perhaps time that the Law Commission undertook a study of the belief-related cases decided since the Ziaul Haq period to ascertain the degree of compliance with due process, especially the application of the Islamic tests to determine anybody’s guilt, namely the intent to commit an offence and evaluation of evidence under the principle of tazkiatu-shuhood. There should be no doubt in anybody’s mind that mob-management of belief-related cases amounts to a sabotage of the justice system.
More essential than anything else, the citizens as a body must find ways of freeing themselves of the fear that is eating into their vitals. If they fail to speak out against evil that is done before their eyes they will save nothing; they will only condemn their coming generations to a situation in which the living will envy the dead. No society can survive, and certainly not with dignity, if its members, especially the poor and the marginalised, cannot enjoy their basic freedoms and the due protection of civilised and just laws. This is the verdict of history and no people can escape it.
There is an urgent need to take stock of the situation, calmly and dispassionately. Human rights activists have no quarrel with anybody’s faith. All people have a right to follow their belief but no one has a right to impose his belief on others. Whoever does that will be resisted. What is happening is that certain power-hungry groups are trying to hijack the ordinary people’s creed for ulterior motives. Every effort should be made to wean them away from their path of violence and if they are not amenable to reason let the law take its course. The community must unitedly tell the custodians of power that the lesser the amount of innocent persons’ blood on their hands the better. For them too!