The views presented in this article do not necessarily reflect the views or opinions of the ABA Refugee Law Committee.
For a young country, Pakistan’s history is fraught with turmoil, change and inequities. Perhaps one of its most glaring inconsistencies lies with its blasphemy laws. By definition, Pakistan is a democratic nation. It is a signatory to the universally accepted Charter of Human Rights. Its constitution also guarantees its people the right to choose and exercise their religion freely. Despite this, the military ruler, President Zia-ul-Haq introduced 295B to the Pakistan Penal Code in 1982.
Blasphemy Laws and Its History
Pakistan Penal Code, section 295B, punishes “defiling the Holy Quran with life imprisonment”.
In 1986, Section 295C mandated the death penalty for “use of derogatory remarks in respect of the Holy Prophet”.
In 1990, the Federal Shari’ah Court ruled that the penalty should be a mandatory death sentence, with no right to a reprieve or pardon. Commonly known as the blasphemy law, section 295C of the Pakistan Penal Code 1860 states that any person who ‘by words, either spoken or written, or by visible representations, or by any imputation, innuendo, or insinuation, directly or indirectly’ defiles the name of the Prophet, Mohammad or other holy personages, is liable for blasphemy.
In addition to a fine, he shall be punished with the death sentence or life imprisonment.
The original blasphemy law dates back to when Great Britain ruled India, and what is now Pakistan. It was intended to prevent Muslims, Hindus and Sikhs from using inflammatory religious language against each other. However, under President Zia-ul-Haq, the law was changed to protect the Sunni version of Islam alone. It has become an effective tool to legitimatize the discrimination and persecution of religious minorities.
Explicit Discrimination of Religious Minorities
The law explicitly discriminates against religious minorities and mentions one group in particular.
An entire section, section 298A-C, is devoted to the minority Muslim sect of Ahmadiyyat. Under this section, an Ahmadi Muslim who practices his/her religion is subject to fines, imprisonment and even death. Such innocuous gestures as using Arabic terminology, saying prayers, attending a mosque, or introducing oneself as a Muslim are grounds for punishment under the blasphemy law. Section 298-C specifically states:
“Any person….(who call themselves Ahmadis or any other name), who directly or indirectly, posses himself as a Muslim, or calls, or refers to, his faith as Islam, or preaches or propagates his faith…, by words, either spoken or written, or by visible representation or in any manner whatsoever outrages the religious feelings of Muslims, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine”.
Since Ahmadis consider themselves to be Muslims, their religious actions are essentially the same as other Muslims. Thus, this law has the effect of a widespread ban on the public practice of their faith. Ahmadi Muslims differ from other Muslims because they believe the promised Messiah has already come in the personage of Mirza Ghulam Ahmad.
However, the rest of the Muslim population rejects him and regard Ahmadis as non-Muslims. Under Pakistan’s blasphemy law, any Islamic action an Ahmadi takes is considered an “insult” to the religion and punishable by arrest. A rough survey shows that more than 3,000 Ahmadis have been charged or arrested for these crimes from 1984 to 2001, under this law.
Numerous others have been killed and forced to seek asylum elsewhere.
Although Ahmadi Muslims have suffered the most under the penal code, they are not the only affected minorities. Recently, cases have emerged of Christians being arrested and sentenced to death for similar offenses. The Pakistani Catholic Bishops’ Justice and Peace Commission in 2005 estimated that since 1988, approximately 650 people had been falsely accused and arrested under the blasphemy law. During the same period about 20 Christians had been killed and 80 were in prison after being accused of blasphemy.
Such cases have led to a widespread belief, both in and outside Pakistan, that the criminal provisions against blasphemy are being abused.
In fact, Amnesty International, Human Rights Watch, the Human Rights Commission and other international organizations have all called for the immediate repeal of the blasphemy law. In response to protests, President Pervez Musharaff promised to modify the laws during the elections of December 2000. However, he failed to fulfill this promise. Thus, the law remains in full force today.
Abuses under the Blasphemy Laws
The Pakistan penal code allows anyone to file a claim of blasphemy against another. To initiate a blasphemy claim, anyone can file a First Information Report (FIR) at the local police station.
Once a charge is filed, the police can arrest the accused and investigate the charge afterwards. Thus, arrests are made without any evidence to corroborate the claim.
As a result, the law is often used against political and personal enemies. It is also used by Muslim fundamentalists or for personal revenge.
Implications for immigration attorneys in the United States
For attorneys practicing immigration law, the issue of Ahmadi Muslims seeking asylum from Pakistan may arise. Given the existence of the Pakistan Penal Code, favorable arguments for asylum can be made. Of course, a practitioner must examine the individual’s facts and assess it according to the requirements outlined in the US Immigration and Nationality Act.
As a brief review, a refugee must prove three things in order to succeed on an asylum case: (1) s/he has a well-founded fear of persecution or has suffered past persecution; (2) that such persecution is on account of race, religion, nationality, membership in a particular social group or political opinion; and (3) that asylum should be granted in the exercise of discretion.
For this purpose, a well-founded fear means a reasonable possibility of persecution.
This can be established by showing:(1) that he or she possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort; (2) the persecutor is already aware, or could become aware, that he or she possesses this belief or characteristic; (3) the persecutor has the capability of punishing the alien; and (4) the persecutor has the inclination to punish the alien. Also, the government must inflict the persecution.
Every asylum case is different, and no outcome is guaranteed. The mere existence of a law cannot guarantee asylum for every Ahmadi Muslim, Christian or other religious minority emigrating from Pakistan. Also, the mere membership in a particular religious group is not sufficient to establish an asylum claim.
However, an understanding of the law and the current state of affairs in Pakistan may help to serve such a client better.
* Farrah Qazi is a human rights attorney, specializing in such women’s issues as global education, maternal health and the trafficking of women and children. She is a writer and public speaker who manages her own law firm and sits on the board of several NGO’s and charitible foundations. She also advocates against the persecution of Ahmadi Muslims, and other minorities, in the Muslim world. She provides pro bono assistance to victims of trafficking and domestic and sexual abuse.
1 See Pakistan Penal Code 295-B.v
2 Pakistan Penal Code 295-C.
3 See Pakistan Penal Code 295-B.
4 Amnesty International. “ Blasphemy Laws should be abolished”, August 21, 2001. Amnesty International states: “ The blasphemy laws of Pakistan are a handy tool to silence debate and dissent. They are also used to detain people when the real motivation includes land issues or professional rivalry. In the interest of justice, the blasphemy laws should be abolished or as a first step amended to prevent abuse.”
5 Human Rights Watch. “Pandering to Extremists Fuels Persecution of Ahmadis”, May 6, 2007.
6 Pakistan Penal Code 298-C.
7 See http://www.alislam.org.
8 United States Commission on International Religious Freedom, Report on International Freedom. May 2001.
9 See www. AsiaNews.it, January 9, 2006.
10 Id, May 2001.
11 Id, May 2001.
12 8 USC §1101(a)(42)(a).
13 INS vs. Cardoza-Fonseca, 480 U.S. 421 (1987).
14 Refahiyat vs. INS, F.3d 553, 557(10th Cir. 1994).