aasia-bibiThe family of Asia Bibi is waiting anxiously for the Supreme Court to announce her appeal in a case that has been ongoing for over six years.

Asia Bibi, a Christian mother of five, has been on death row since 2010. She was accused of committing blasphemy in 2009. A trial court had found her guilty of the crime and awarded her the death sentence. The Lahore High Court (LHC) upheld the sentence.

In 2011, former Punjab governor Salman Taseer, who spoke out in support of Bibi, was gunned down in broad daylight in Islamabad. His assassin Mumtaz Qadri was executed earlier in 2016 after the court found him guilty of murder.

The lawyers of Bibi have approached the SC as a last resort, seeking repeal of her sentence.

A day before the hearing of Asia’s final appeal challenging her conviction and death sentence for blasphemy before a bench of the Supreme Court, [International Commission of Jurists (ICJ) released Questions and Answersabout the case.

The Q&A explains the allegations against Asia Bibi and describes her blasphemy trial and appeal before the LHC.

What are the allegations against Asia Bibi and when was she convicted?

Asia Bibi was convicted for blasphemy under section 295-C of the Pakistan Penal Code for allegedly defaming Prophet Muhammad (PBUH). The offence carries mandatory death penalty under Pakistani law.

The allegations against Asia Bibi are that she made three “defamatory and sarcastic” statements about the Prophet (PBUH) on June 14, 2009, during an argument with three Muslim women while the four of them were picking fruit in a field.

Read more: The untold story of Pakistan’s blasphemy law

The prosecution also claims Asia Bibi “admitted” making these statements at a “public gathering” on June 19, 2009 and asked for forgiveness.

A trial court convicted Asia Bibi for blasphemy in November 2010 and sentenced her to death. The Lahore High Court (LHC)upheld her conviction and confirmed her death sentence in October 2014.

The Supreme Court (SC) admitted her appeal in July 2015. The first hearing of the appeal before the SC was scheduled to take place on October 13, 2016.

What was the evidence in support of the allegations against Asia Bibi?

The prosecution presented seven witnesses to support the allegations of blasphemy against Asia bibi.

Two eyewitnesses, Mafia Bibi and Asma Bibi, claimed they heard Asia Bibi make the allegedly blasphemous remarks, and later “admit” to making the statements during a “public gathering” a few days later.

Other witnesses included the complainant Qari Muhammad Salaam, a local cleric, who claimed he heard about the alleged blasphemous statements from Mafia and Asma and got a criminal complaint for blasphemy registered with the police; three police officers who registered and investigated the case; and a local resident, Muhammad Afzal, who alleged he heard Asia Bibi admit to making “blasphemous remarks” and seek pardon at the “public gathering”.

What was Asia Bibi’s defense?

Asia Bibi stated she had a “quarrel” with Mafia and Asma on June 14, 2009, over their refusal to drink water brought for them by Asia Bibi because she was Christian.

She claimed “some hot words were exchanged” during the argument, after which Mafia and Asma, alongside Qari Muhammad Salaam and his wife (who taught Asma and Mafia the Quran), fabricated the blasphemy case against her.

Asia Bibi also stated that she had “great respect and honour for the Holy Prophet (PBUH) and the Holy Quran” and never made the alleged blasphemous remarks.

What are some of the problems with Asia Bibi’s conviction?

In its judgment in Asia Bibi’s case, the LHC conceded “the defence has not defended its case with the required seriousness…”

Yet, despite acknowledging possible violations of the right of a fair trial, particularly the right to an adequate defense, the court went on to uphold Asia Bibi’s conviction and death sentence.

Further, the trial court used Asia Bibi’s statement as an admission of guilt, finding that the “hot words” exchanged between her and “the Muslim ladies” were “switched into a religious matter”, and concluding that the “hot words” must have been “nothing other than the blasphemy”.

Curiously, however, the trial court rejected the notion that the altercation over water was a possible motive for the prosecution eyewitnesses to falsely implicate Asia Bibi for blasphemy.

The LHC too did not probe further into Asia Bibi’s statement, and held that there was no possible “ill will” between the eyewitnesses and the accused for them to fabricate the blasphemy allegations.

Both courts also disregarded discrepancies in the accounts of the witnesses regarding the “public gathering” where Asia Bibi allegedly “admitted” her guilt.

These discrepancies included significant differences in the number of people allegedly present at the “public gathering” (ranging from 100 to 2,000 in the different testimonies); how Asia Bibi was brought to the “public hearing”, and how long the “hearing” lasted.

The courts also failed to apply “tazkia-tul-shahood” (inquiry undertaken by the court to establish the credibility of witnesses), without which defendants cannot be convicted or punished in hadh (capital punishment) cases for certain offences under Pakistani law.

During the entire course of the proceedings, neither court considered which of the three statements attributed to Asia Bibi were “blasphemous” and why, or what was the “reasonable person” standard in the interpretation of section 295-C to meet the threshold of blasphemy.

Additionally, both courts did not consider whether Asia Bibi possessed the requisite criminal intent to commit the crime of blasphemy, despite the Federal Shariat Court’s ruling that blasphemy is an “intentional or reckless wrong”.

The prosecution’s failure to prove all elements of the offence, including the requisite intent to defame Prophet Muhammad (PBUH) calls into question the convictions by the trial court and LHC.

How does the application of blasphemy laws violate Pakistan’s human rights obligations?

The application of Pakistan’s blasphemy laws has been denounced for a variety of reasons.

Last year, the Supreme Court of Pakistan held that individuals accused of blasphemy “suffer beyond proportion or repair” in the absence of adequate safeguards against misapplication or misuse of such blasphemy laws.

Confirming the SC’s findings, ICJ’s 2015 study on the implementation of blasphemy laws in Pakistan found that more than 80 per cent of convictions by trial courts are overturned on appeal, very often because appellate courts find evidence and complaints fabricated based on “personal or political vendettas”.

The ICJ further found the following systematic and widespread fair trial violations in the application of the blasphemy laws, which also apply in Asia Bibi’s case:

  • Intimidation and harassment of judges and lawyers that impede on the independence of the judiciary and the right to a defense;
  • Demonstrable bias and prejudice against defendants by judges during the course of blasphemy proceedings and in judgments;
  • Violations of the right to effective assistance of counsel;
  • Rejection of bail and prolonged pretrial detention;
  • Incompetent investigation and prosecution that do not meet due diligence requirements under the law;
  • The prosecution and detention of people living with mental disabilities;
  • Inhumane conditions of detention and imprisonment, including prolonged solitary confinement; and
  • Vaguely defined offences that undermine the rule of law because they leave the door open to selective prosecution and interpretation.

The ICJ opposes the criminalisation of the exercise of the rights to freedom of expression and religion or belief in Pakistan in the shape of the blasphemy laws and considers them a flagrant violation of Pakistan’s international human rights obligations, including its obligations to respect the rights to freedom of thought, conscience and religion; freedom of expression; and equal treatment before the law.

Furthermore, mandatory death sentence — including under 295-C of the Penal Code — violates Pakistan’s obligations to respect the rights to life, to a fair trial, and to prohibit torture and other cruel, inhuman or degrading treatment or punishment.

Judges manipulate adjournment of Asia Bibi’s appeal

As expected, the Judiciary has again stalled resolution of the blasphemy case of Christian woman Asia Bibi when her hearing came up before the Supreme Court. In doing so, the Judiciary continues to bow down to Muslim fundamentalist groups, and fails to provide justice to vulnerable members of society.

Two days prior to the hearing of Asia Bibi’s appeal in the Supreme Court, fundamentalist organisations published advertisements and video clippings, warning the Judiciary not to accept Bibi’s appeal. The Judiciary received the message loud and clear.

The appeal was adjourned after one of the judges, Iqbal Hameedur Rehman, refused to hear the case.

She filed a review petition before the Supreme Court against her death sentence by the Lahore High Court in 2014, and it was kept pending for two years. It finally came up for hearing in the highest court on October 13. The judges surprised no one in ensuring the whole matter remained in abeyance. In fact, one of the judges, Justice Hamid-ur Rehman, has taken this opportunity to recuse himself from the three-member bench hearing the appeal, on the grounds of “conflict of interest”.

The message from fundamentalists and from proscribed terrorist organizations appears to have suddenly activated the memory of the judge. Their threat appears to have reminded Justice Rehman that he was a part of the Bench that was hearing the case of Salmaan Taseer. Justice Rehman informed the court that Asia’s case relates to that of Taseer. The court was later adjourned indefinitely. Asia’s lawyer, Saiful Mulook, said it would probably take weeks or months for a replacement judge to be found and for the appeal to be rescheduled.

If the decision of the lower court is going to be retained and Asia is hanged, she will be the first blasphemy accused to be executed by the State. Most blasphemy accused are lynched by angry vigilante mobs. Proponents of reform in the blasphemy law, including lawyers and judges, have been threatened, attacked, or even killed. Prominent amongst those are ex-Governor Punjab Salman Taseer and ex-Federal Minister for Religious Affairs, Shahabaz Bhatti. They were killed for speaking against the blasphemy law and supporting Asia Bibi.

Orthodox religious zealots have also pressurized the government to deny Asia Bibi her right to medical treatment. Since June 2015, Asia has been suffering from intestinal bleeding. Jail authorities have denied her access to treatment, because extremist organizations are demanding that Bibi be executed immediately. The Judiciary is reluctant to defend Asia fearing dire repercussions from mullahs, who have been allowed full impunity by the State and are used as non-State actors to subjugate the general masses.

Asia’s case is a classic example of a society marked by intellectual bankruptcy, one that manifests a cumulative failure as a nation to protect its vulnerable. The case has already resulted in two high profile murders and one hanging. Yet, it remains in the doldrums and there is no sign of relief for Asia and her family despite a lapse of seven years.

The judges are apprehensive; if they acquit Bibi, their lives, as well as that of their families are in danger. Mob vigilantism is the reality of the country; mobs dispense their idea of instant justice to any one uttering a single word deemed blasphemous.

The mob spares no one, be they young or old, as witnessed in Kasur in 2014, when a Christian couple, along with their unborn child, was burnt alive over alleged blasphemy. No one has been convicted to date for the horrendous Kasur murder.

A criminal justice system rife with loopholes allows anyone to wrongly accuse a person of blasphemy and get away with it. The alleged accused is however made to rot behind bars for years, even if they are innocent. Even when the case does proceed, it takes many years before a judgment is pronounced, and in most of the cases it is not favourable for the accused. This is partly because of the pressure exerted by fundamentalist religious groups and partly because the legal jurisprudence on blasphemy has still not been clearly established, ever since the promulgation of the notorious Section 295 C of the Pakistan Penal Code (PPC).

The miscarriage of justice on the issue is a far cry from the reality of its application, as enunciated by several edicts on the issue, where a single unfortunate, ill-informed, ill-judged alleged utterance can lead to a conviction under the law, and to the death penalty.

Unknown to many contemporary pseudo-religious Scholars, a fatwa (religious edict) issued by more than 450 reputed religious scholars from different schools of thought has clearly stated that a non-Muslim blasphemer cannot be killed unless he/she is “habitual in the offense”. Hundreds of leading ulema from South Asia have declared that non-Muslims cannot be killed for a single offense of blasphemy and their pardon is acceptable unless it becomes a habitual and high frequency offense.

The founder of the sect that Mumtaz Qadri, murderer of Punjab Governor Salman Taseer, belonged to, also endorsed pardon for non-Muslim blasphemers and the view that non-Muslims cannot be killed for a single offense of blasphemy.
Incidentally, the co-founder of the Deoband school of thought, another orthodox group that favors death penalty for the offence, Mahmood Hassan Deobandi, is also signatory to the said edict.

Going by the edict, Asia should have been acquitted, as she has begged pardon a number of time, and is not a habitual offender. According to Asia’s husband Ashiq Masih

“Even if Asia is released, there is a bounty on her head so their lives could never return to how they once were. Thousands have protested against her and said they would kill her if she were ever released – including the imam in her own village.”

The verbal brawl that started seven years ago has destroyed the life of Asia and her five children; the family lives under constant threat and is forced into a fugitive life. Asia herself is kept in solitary confinement; to keep her safe from other inmates who might kill her. As per her lawyers, it has been a year since she has seen the open sky.

By adjourning the cases indefinitely, the judges have tried to avert the pressure on them; however, for Asia, it will mean more years of incarceration and solitary confinement. Her misery has been compounded by the inaction of the Judiciary, which is dragging its feet in her case.

No judge wants to be embroiled in the mess that can ensue following her acquittal. Even on the occasion of the hearing of the case, the government had to deploy thousands of security troops to avert any violence outside the Supreme Court.

The government of Pakistan, in its effort to appease religious fundamentalists and proscribed militant organisations also does not want to appear unjust in the commune of nations; it wants Asia to die in jail rather than to be blamed for hanging her itself.

To date, other inmates or guards on duty in jail have killed five accused of blasphemy on death row. Several rights defenders fear for Asia’ s life. They demand that she must be acquitted of all charges.