IRD Occasional Paper No: 4
Pakistani Blasphemy Law between Hadd and Siyasah “A Plea for Reappraisal of the Ismail Qureshi Case”
Author: Muhammad Mushtaq Ahmed
The Pakistani law on offences against religion (Pakistan Penal Code Sections 295-298C), often termed as blasphemy law, has been the subject of much controversy in the recent past. The present paper traces the historical development of the Pakistani blasphemy law and then examines the various issues relating to this law from the perspective of the Hanafi Jurisprudence. The Federal Shariat Court (FSC) in its landmark judgment on blasphemy, Ismail Qureshi v The Government of Pakistan, primarily relied on the principles of Islamic law regarding apostasy, while a non-Muslim cannot be deemed to have committed apostasy. Significantly, the Hanafi jurists discuss the consequences of blasphemy committed by a non-Muslim under the concept of the termination of the contract of aman (peace). Unfortunately, these aspects of the issue have been overlooked by the court. The paper, therefore, makes a case for reappraisal of the Pakistani law on blasphemy in the light of the principles of the Hanafi School.
Before entering into detailed discussion about blasphemy law, it may be noted that “blasphemy”, in the Judeo-Christian tradition and because of its influence, generally in the Western legal systems-basically involves an irreverent statement or attitude toward God.
In Pakistan, however, the discussion on “blasphemy law” generally revolves around the issue of derogatory remarks against the prophet (peace be on him). That is the reason why in the Pakistani context “blasphemy” is generally translated as tanbin-i-risalat or “ridiculing prophet hood”.
Significantly, the Pakistani Statute Book has no provision specifically dealing with “blasphemy against God”. Therefore is one specific provision (i.e., Section 295B) about desecration of a cop of the Qur’an or an extract thereof and, as the Qur’an is Spoken Word of God according to Muslim belief, this provision definitely falls within scope of the “blasphemy law”. Surprisingly, however, most of the authors in Pakistan writing about blasphemy law concentrate only on Section 295C, which penalizes derogatory remarks about the Prophet (peace be on him). Moreover, although the offences under Sections 295B and 295C are of the same nature from the perspective of Islamic law, yet Pakistani law has prescribed different punishments for these offences. However, the issue has been raised before the FSC or debated as such by scholars in Pakistan.
In this paper, blasphemy against Allah, against the Quran, and against the Prophet (Peace be on him) and the rules and principles of Islamic law elaborated in this paper are equally applicable to all the three offences even if most of the times the discussion is presented in the context of blasphemy against the Prophet (Peace be on him).
The Paper first gives an overview of the historical development of the Pakistani law on blasphemy and then focus on the following questions: What is the scope of blasphemy in Islamic law? Whether the punishment is for blasphemy per se or for blasphemy as a form of apostasy? If it is a form of apostasy, whether repentance by the convict saves him from punishment? If blasphemy by a non-Muslim cannot be considered an act of apostasy, what is the nature of this offence committed by non-Muslim? Finally, whether blasphemy violates the personal right of the Prophet (peace be on him).
The Federal Shariat Court has addressed some of these questions in its landmark judgment, Ismail Qureshi v the Government of Pakistan, but it could not apply a coherent legal theory. Instead, it mixed up the opinions of the various jurists while the fact remains that these various opinions are based on different principles which sometimes are not compatible with each other. Moreover, the court sometimes referred to the views of the Hanafi jurists but the decision is not based on the official position of the Hanafi School. The paper, therefore, digs out the manuals of the Hanafi School for a detailed analysis of the principles of the school.