Religious Tolerance & The Law

By Sailesh Mehta
7 August 2020

Blasphemy was abolished as an offence in England and Wales in 2008, but it remains in Scotland and Northern Ireland. In 2017 Irish police opened an investigation into Stephen Fry after the British comedian called God “stupid” and a “maniac” on an Irish TV show in 2015. There was no prosecution. Ireland has just voted to decriminalise the offence.

The US Commission on International Religious Freedom listed 71 countries that criminalise views deemed to be blasphemous in its 2017 Report. In the Middle East and North Africa, blasphemy is on the statute books in 18 of the 20 countries. Fourteen countries in the region also criminalise apostasy, the act of formally renouncing a religion. Iran and Pakistan formally enshrine the death penalty for the offence.

Blasphemy is punishable by death in six countries. Eighteen countries outlaw ‘apostasy’ – leaving a religious tradition – and in 12 of them it is punishable by death. People can effectively be put to death for expressing atheism in 13 countries.

The Freedom of Thought Report published by Humanist International last year, identifies Saudi Arabia and Pakistan as “perennial” prosecutors for blasphemy and says freedom of thought is particularly penalised by Islamic penal codes and sharia-influenced laws.

There are several countries where freedom of thought on religion is deteriorating:

• Brunei, where a new penal code last year renders blasphemy and apostasy punishable by death
• Mauritania, which introduced a mandatory death sentence for blasphemy and apostasy in 2018
• Indonesia, where high-profile blasphemy prosecutions are cited as a cause for concern
• Iran, where the government has cracked down on demonstrators protesting against forced hijab laws
• India, where prosecutions and inter-communal violence linked to “Hindutva” beliefs are on the rise.

  Blasphemy and apostasy laws are an affront to the fundamental rights to freedom of expression and belief. They are increasingly being used by populist regimes against political opponents or minorities.

  In Pakistan, blasphemy laws have been increasingly used to settle personal and political scores and as a weapon in family squabbles. The religious right has used it as a powerful rallying cry, mobilising large rallies that sometimes become vigilante mobs.

  Section 295-C of the Pakistan Penal Code has a chequered history whose ideology dates back to The Raj. With every iteration, it has become a little harsher over the last 50 years. The death penalty is usually mandatory for anyone who “defiles the sacred name of the Holy Prophet Muhammad (peace be upon him)” by words, imputation or even by innuendo.

  Asia Bibi’s case is unique for many reasons. The mother of 4 children was convicted of making “defamatory and sarcastic” statements about the Prophet Muhammad in June 2009, during an argument with three Muslim women while the four of them were picking fruit in a field. The three women did not want to drink water from Asia Bibi’s glass, as she was not Muslim. She was alleged to have confessed to making these blasphemous statements before a vigilante crowd that gathered at her house a few days later. She remained in custody since her 2009 conviction, having failed in two appeals to higher courts. Two politicians, including the Governor of Punjab, who expressed some sympathy for her situation, were killed following public outcry from religious extremists.

  The Pakistan Supreme Court found that the case was riddled with procedural and evidential problems of a disquieting nature. A lower Court had already said that Asia Bibi had not been defended well. Because this was a death penalty case, the two main witnesses against her should have been, but were not, investigated for their credibility. The lower Court had failed to recognise the problem that the two main witnesses were involved in the squabble which led to the alleged blasphemy. Their testimony was inaccurate and contradicted by their own subsequent statements and were also at odds with important parts of the evidence of other Prosecution witnesses. Alarmingly, the lower Courts had failed to take into account the likelihood that a confession, even if it had been uttered, made before a baying crowd that had assaulted Asia Bibi, was worthless in evidential terms.

  So it was unsurprising that the Court overturned the conviction of Asia Bibi. Any rational analysis of the evidence would lead to that conclusion. Sadly for her, Asia Bibi’s case has become an international cause celebre. The religious right in Pakistan who hold much greater sway in the streets than in Parliament, have made it politically toxic. Such has been the scale of protests in Pakistan that Imran Khan’s Government is said to have agreed with the religious right to not oppose their petition to reverse the Supreme Court’s decision to release Asia Bibi, and agreed to prevent her from leaving the country. Her lawyer is in hiding following death threats made to him and to the Supreme Court Judges.

  This case was a test for the new Pakistan Government led by an ex-cricketer whose previous liberal leanings have been tethered by political expediency. It will be the first of many such tests at a time when the rise of religious polarisation across the sub-continent has skewed politics away from centre ground. Bangladesh has gone in the same direction. The Hindutva movement of the BJP and RSS has moved politics in a similar direction. When political Hinduism and political Islam are on the ascendancy on the sub-continent, alarm bells begin to ring for the apolitical majority who simply wish to co-exist in peace.

  These rumblings are not limited to India, Pakistan and Bangladesh. There has been a notable erosion of civil liberty and human rights as a direct result of religious fervour in the USA, Europe and in Africa. The ability of right-wing populist leaders to meld religion with politics and to get the message across in a way that fires up their supporters has been a growing and frightening international trend. The Asia Bibi story is just one small part of a global phenomenon.

  

  Sailesh Mehta

  Sailesh Mehta is a leading advocate who has defended and prosecuted in some of the most serious and important cases over the last 30 years. His practice ranges from serious and organised crime to high-profile regulatory cases. He sits as a Recorder of the Crown Court.

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