Pakistan's Blasphemy Law-B 2.0 THE RATIONALE IN FAVOR OF BLASPHEMY LAW
2.1 Argument# 1: The Precedence
It is a universally accepted principle of jurisprudence that a law enacted by a person or entity of authority can only be repealed or changed by a person or entity that has equivalent or higher powers than that of the person who enacted the law in the first place. This principle is applicable everywhere in our daily lives. For example a disciplinary instruction given by a professor in his class to his students can only be over-ruled by a vice chancellor of the university or an entity that has authority equal to or greater than that of the professor. But a student or a lecturer cannot change it. Similarly, in the matters of governance the legislature or the President have the authority to change an executive order issued by President. This principle of jurisprudence applies equally to the canonical laws as well and has far reaching effects. Hence an order given by God can only be changed by God Himself and not by any other entity. Similarly a Prophet may enact a law on his own prerogative, based on his own Ijtehad (logical reasoning), in the absence of a revelation, and as long as God does not change his law, no one else has an authority to change it unless there is another Prophet who may come and change that law. [Ref: 2]
One must understand that the Islamic law did not descend upon us in just one day; rather it was revealed to us gradually and it took 23 years to complete the message. So a question arises, naturally, as to what was the Islamic law during that interim period. Based on the evidence from Qura'n and history of the Prophet's time we can say with certainty that whatever was the tradition, or custom or law of the Meccan or Medinite societies became the Islamic law, initially. For example, the prohibition of liquor came years after Prophet's migration and some of his companions are known to have imbibed before prohibition. [Ref: 2]
Keeping the above discussion in mind, please refer to the Qura'nic verses Al-Anaam (Cattle) 6:83-90, in which after mentioning the names of approximately 20 prophets and messengers Allah states that "……..these are they whom Allah guided, therefore follow their guidance. Say: I do not ask you for any reward for it; it is nothing but a reminder to the nations." [Ref: 6; tr:Yousafali]
This is an extremely important verse and early jurists in their books on jurisprudence refer to it extensively as "Shara-e-Qable-na" meaning, the law of the previous people (prophets) [Ref; 2]. Through this verse we get an important guiding principle i.e. if the authenticity of previous books (Psalm, Torah and Bible) is confirmed, and neither God nor his Prophet (pbuh) has instructed us otherwise the law stated in those books is our law. We have an obligation to follow it, because of verse 6:90.
Now let's see what was the law of the previous people, i.e. Jews and Christians regarding blasphemy. We find out that both Old Testament and the New Testament explicitly stipulated capital punishment for blasphemy. It is evident through several books and several verses, which cross-refer with each other [Ref: 4]. For example:
Leviticus 24:16 states: "And he that blasphemeth the name of the LORD, he shall surely be put to death, and all the congregation shall certainly stone him: as well the stranger, as he that is born in the land, when he blasphemeth the name of the Lord, shall be put to death." The verse cross refers with New Testament: Matt 26:66, John 19:7 .
Acts 6:8 & 7:60 Stephen, a Christian, was found guilty of blasphemy and stoned to death.
It is interesting to note that Jesus (pbuh), himself, was crucified because of his "crime" of blasphemy under Jewish law. See King James Bible; Matt 26:65-67 "Then the high priest rent his clothes, saying, He hath spoken blasphemy; what further need have we of witnesses? behold, now ye have heard his blasphemy. What think ye? They answered and said, He is guilty of death. Then did they spit in his face, and buffeted him; and others smote him with the palms of their hands"
Also keep in mind that in earlier books the punishment for apostasy is prescribed as death, as well. [Ref: 5]
The discussion so far, establishes that there is “precedence” for the penal aspect of blasphemy. Please bear in mind that "precedence" is a universally accepted rule/practice of jurisprudence, where jurists look for previous laws and regulations to form new ones. [see Ref: 3 for basic principles of Islamic Jurisprudence]
2.2 Argument# 2: Estehsan i.e. the Logical Equivalence
If we further this discussion we come across another principle of Islamic (and Secular) jurisprudence, which is called Estehsan, translated as 'Logical Equivalence'. It can be explained by an example: In Islamic law the punishment for theft is the Hudd (penalty prescribed by Almighty Himself) of amputation of a hand (limb) of the perpetrator. If we look at this crime closely, we find out that this human behavior is not black and white; there are several gray areas. For example, the statement of penalty of this penal law is specific about the penalty of amputation of a limb but the statement of offence is not clear about what specifically is theft. Should we amputate the hand of a robber who enters into a house by force, holds people in the house hostage on gun point, assaults them and then takes away all their possessions; is the crime of a person who just sneaks into someone's house while the people of the household were asleep and steals their valuables, equivalent; or a person who is hungry for the past two days and steals a loaf of bread just to satiate his appetite, is he as much culpable as the former two? What about the wife who helps herself every now and then with husband's wallet? Should their punishment be one and only i.e. amputation? What about coffin thieves or computer hackers; there is nothing specifically written in Qura'n about them either.
From the above discussion we can infer three ideas:
1. The concept that there are various degrees of severity of an offence, which may be categorized as a felony or a misdemeanor. The secular and common law jurisprudence also recognize that.
2. The second concept that we learn here is that for a jurist it is absolutely necessary to delve deeper into a certain human behavior i.e. he must philosophize this behavior to postulate the statements of offence and prescribe punishment.
3. The concept of Estehsan (the Logical Equivalence) gives us an important tool to formulate new laws, as the human society progresses and faced with new predicaments.
Qiyas (Hypothesis and Postulation) is an important element of Islamic as well as secular jurisprudence, which helps in the process of Estehsan [Ref: 3]
Keeping the above discussion in mind now we shall examine the Blasphemy Law in the Islamic jurisprudence. The Muslim jurists of all Sunni & Shiite schools of thought have argued since the earliest times, that blasphemy is a prosecutable offence and prescribed capital punishment for it. Their argument is based on the precedence from "Law of the Previous Books". They also equate blasphemy with apostasy through logical equivalence. It is logical, because a person who commits an act of blasphemy, in fact renounces his religion, thus he is an apostate. But the severity of the offence of blasphemy exceeds apostasy in the sense that it is not only an offence against Almighty and his Prophet but a crime against society as well. An apostate may quietly change his religion but blasphemy indicates the malicious intent of the perpetrator towards society. It is not difficult from the following two verses to see how the capital punishment for apostasy was derived. Allah commands his Apostle (pbuh) in surah Al-Nisa (The Women) 4:88-89
“Why should ye be divided into two parties about the Hypocrites? Allah hath upset them for their (evil) deeds. Would ye guide those whom Allah hath thrown out of the Way? For those whom Allah hath thrown out of the Way, never shalt thou find the Way. They but wish that ye should reject Faith, as they do, and thus be on the same footing (as they): But take not friends from their ranks until they flee in the way of Allah (From what is forbidden). But if they turn renegades, seize them and slay them wherever ye find them; and (in any case) take no friends or helpers from their ranks". [Ref: 6; tr: Yousafali]
The background [Ref: 7] of these two verses is that there was a group of hypocrites (people who with their tongues used to say that they were Muslims but their hearts were somewhere else; and in fact they tried everything possible to harm Muslims) who refused to go on a Jihad expedition. The true companions of Prophet (pbuh) were divided on the issue of as to how to deal with them. One group stressed that those hypocrites should be killed, whereas other group was of the opinion that they be spared. The Qura'n then guided the Prophet through these two verses and explained that the call for Jihad is a litmus test to identify the hypocrites among his group. These are the people who accepted Islam on their own accord but at the time of test and tribulation they reverted away from Islam.
Further in verse 4:91 Allah says "Others you will find that wish to gain your confidence as well as that of their people: Every time they are sent back to temptation, they succumb thereto: if they withdraw not from you nor give you (guarantees) of peace besides restraining their hands, seize them and slay them wherever ye get them: In their case We have provided you with a clear argument against them." [Ref: 6; tr:Yousafali]
But not just the call for Jihad is the litmus test, when these people openly renege and renounce faith, but Qura'n further elaborates on the behavior of these people in the time of peace. The background of verse 4:91 is as follows: there were some people in Medina who belonged to the tribes of Assad & Azzan who apparently accepted Islam at the hand of Prophet but when these people used to go back to their own tribes and their people used to ask them as to what was their faith, they used to say that they have their faith in monkeys and scorpions. Their purpose was to keep their espousal on both sides. [Ref: 7]
When we philosophize and infer the basic principles from these two verses (4:88-91), it is not hard to conclude that the punishment for apostasy is death and we can deduce that blasphemy, which is more aggressive form of apostasy, bears the same punishment.
2.3 Argument #3: Philosophical Base I: Reverence of Prophet (pbuh) is an Essential Part of Faith (Qura'n)
When a person insults another person he in fact violates his victim’s sanctity as a human being; it is then up to the victim either to forgive, ignore or to seek retribution. Similarly, when a person blasphemes a Prophet, it is Prophet's prerogative whether to forgive, ignore or seek retribution. But a Prophet is not an ordinary human being. He is a messenger whose words and actions, when he specifies, is the voice of Almighty and become a law for his followers. Moreover there is a special connection, a bond of love, respect, and discipline that binds his followers to him. So when a blasphemer insults a Prophet, not only he violates the sanctity of Prophet but that of his followers as human beings, as well. Thus an act of blasphemy is an offence not only against the Prophet but the society as well. And when a Prophet passes away he cannot forgive, ignore or avenge the offences committed against his sanctity. But the followers can establish measures to at least discourage such behavior. Since different individuals of a society retaliate differently to the same offence, therefore, an explicitly stated law is required to respond to such offences in a uniform fashion, so that it expresses unanimous outlook of the society. As we know that the act of blasphemy is a repugnant behavior, which might create unrest in the society, and society may act in excess towards the perpetrator, hence a law is required. The following verses provide the philosophical base for the blasphemy law by insisting that the reverence of Prophet is an essential part of faith. Therefore when a person blasphemes he actually renounces his faith and hence the penalty of apostasy may be invoked. We can see from the following verses that Qura'n is explicitly insistent upon Muslims to manifest reverence to the Prophet; it is adamant about respecting his decisions; it commands to help him; and it forbids raising voice in front of him. Obeying and respecting Prophet is equated to having strong faith whereas divine retribution is promised for those who disobey and disrespect Allah's Apostle [Ref: 7].
4:65 Al-Nissa (Women):"But no, by the Lord, they can have no (real) Faith, until they make thee judge in all disputes between them, and find in their souls no resistance against Thy decisions, but accept them with the fullest conviction." [Ref: 6; tr: Yousafali]
This important subject is reiterated in the following verses: Al-Fath (Victory) 48.09; Al-Maeda (the table spread) 5:12; Al-Anfaal (Booty) 8:24; Al-Araaf (The Heights) 7:157; Al-Ahzaab (The Coalition); Al-Hujrat (The Private Quarters) 49:1 & 2
2.4 Argument# 4: Philosophical Base II: Disrespect of Prophet Equals Repudiation of Faith (Qura'n)
This argument like argument # 3 also provides the philosophical base to the penal aspect of blasphemy law but with a slight difference. The previous argument was based on the verses that specifically commanded Muslims to obey and respect Prophet (pbuh) whereas this argument is based on the verses, which equate the disobedience and disrespect of Prophet to the repudiation of faith [Ref: 7]. For example, Allah says in verse 2:104 Al-Baqra (The Cow) "O ye of Faith! Say not (to the Messenger) words of ambiguous import, but words of respect; and hearken (to him): To those without Faith is a grievous punishment." [Ref: 6; tr:Yousafali]
At another place in verse 33:57 Al-Ahzaab (The Coalition), Allah (swt) says: " Those who annoy Allah and His Messenger - Allah has cursed them in this World and in the Hereafter, and has prepared for them a humiliating Punishment." [Ref: 6; tr: Yousafali]
The same subject is re-iterated at several places: Al-Tawba (Repentence)9:61, 65, 66; Al-Noor (The Light) 24:62; Al-Hujrat(The Private Quarters) 49:2.
[Ref: 7; also see Ref: 6 for actual text of these verses].
2.5 Argument# 5: Validity of Law through Ahadith (Traditions)
There are more than one traditions (Ahadith) of the Prophet (pbuh) that tell us that the punishment for both apostasy and blasphemy is death. Both Sunni and Shi'a schools of thought seek guidance from the following tradition [Ref: 8] of Holy Prophet (pbuh) where he is reported to have said that: "Whoever changes his Religion, kill him."
There are several other Traditions [Ref: 9] where Holy Prophet (pbuh) is reported to have imparted capital punishment for both apostasy and blasphemy.
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