Unholy Speech and Holy Laws: Blasphemy Laws in Pakistan – Controversial Origins, Design Defects and Free Speech Implications
83 Pages Posted: 26 Jan 2013
Date Written: 2008
Pakistan is currently a front-line state confronting the brunt of internationally escalating trends of religious extremism and related terrorism. As a nascent and fragile democracy, with a large and diverse population facing challenges of economic growth, political stability and civil harmony – the world’s seventh nuclear power is at important crossroads with highly divergent options. It can progress towards becoming a robust, pluralistic democracy or descend into anarchy. In many significant ways, what happens in Pakistan increasingly matters to and impacts its neighbors, the region and indeed the world. Two of Pakistan’s primary challenges since its emergence as a nation-state sixty years ago have been: the sustenance of democratic governments in the wake of several praetorian interventions; and the nurturing a pluralistic, participatory and progressive governance ethos as opposed to becoming an outright theocracy. The immediacy and import of these challenges is underlined by rapidly growing obscurantist and volatile forces in the region, which threaten destabilization.
More so than various other manifestations, Pakistan’s existing dilemmas are encapsulated in certain highly controversial laws that were introduced during the eleven-year dictatorship of General Zia-ul-Haq. Most significantly, Pakistan’s blasphemy laws, which have been widely condemned both domestically and internationally, epitomize legislation that is tainted by absence of democratic credibility, that suffers from several design and drafting defects, and that has caused several miscarriages of justice over the past two decades. Equally importantly, these laws have provoked and promoted acts of religious intolerance and extremism, invited blatant abuse of the law and have lent further force and justification to a growing culture of bigotry and violence. Furthermore, they pose dire implications for the future of free speech in the country, which is a vital prerequisite for a true democracy. In many ways, the future of these laws is determinative of the country’s choice of its future. The choice is drastically becoming that of a future of growing fragmentation of society and abuse of law as an instrument of state and private coercion, or a future of greater social harmony, tolerance, dialogue, debate, consensus-building, sustainable growth and just development.
In this seminal article, we conduct the first exhaustive and analytical review of Pakistan’s highly controversial blasphemy laws – their genesis, their defects, the overall legal, political and social environment in which they operate, the extent and nature of the injustices perpetrated by them, their implications on free speech and also their future. We highlight the additional problems created by the prescription of the death penalty under one of these laws, against the backdrop of the emerging international position on capital punishment. We conduct this analysis while looking at the nature, application and impact of blasphemy laws in other jurisdictions, as well as the jurisprudence on free speech in other legal systems, most notably the United States. We attempt to gauge blasphemy as a form of hate speech, as opposed to it being exclusively regarded as a religious offence, and try and determine whether Pakistani courts have attached a premium to speech carrying social value and also followed internationally recognized speech protection principles while upholding blasphemy laws and proscribing speech. We then evaluate the overall relationship between and the impact of Pakistan’s blasphemy laws vis-à-vis its endeavor to emerge as a modern, progressive democratic state. In that sense our analysis is also highly relevant to the challenges being faced by other developing Muslim countries, which have similar laws and resultant predicaments.
Keywords: Blasphemy, blasphemy laws, rights of minorities, religious persecution, majoritarianism, rights protection, hate speech, free speech, design defects, Pakistan, Pakistani laws, Pakistani blasphemy laws, Pakistani courts, vigilantism, legal coercion
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