Discretion and valour

Published: February 4, 2013

The writer is a partner at Bhandari, Naqvi & Riaz and an advocate of the Supreme Court. He can be reached on Twitter @laalshah

The decision by the Supreme Court to order the registration of an FIR for blasphemy against Sherry Rehman has lead to much outrage and alarm amongst Pakistan’s small and perpetually beleaguered group of liberals. The alarm is justified. Frankly, so is the outrage.

Before I explain myself, a brief summary of the facts. Sherry Rehman appeared on television on January 19, 2011, in a show broadcast by Dunya TV from Islamabad. During that show she elaborated her views as to why the blasphemy laws of this country needed to be amended. Subsequently, a gentleman by the name of Muhammad Faheem Akhtar Gill saw the programme at his house in Multan. He came to the conclusion that Ms Rehman’s comments were tantamount to blasphemy and accordingly filed a complaint at a police station in Multan seeking the registration of a criminal case against Ms Rehman. The local police station refused to register the FIR on the grounds that the crime, if any, had occurred in Islamabad and that Mr Gill should therefore go to Islamabad to pursue his grievance. Both the sessions court (to whom Mr Gill first went) and the Lahore High Court at Multan (to whom Mr Gill appealed the decision of the sessions court) agreed with the local police. Mr Gill therefore took his grievance to the Supreme Court.

The main issue discussed by the Supreme Court in its order dated January 17, 2013, is that of territorial jurisdiction. In other words, the only question seriously examined by their Lordships was whether the FIR was to be filed at a police station in Multan or a police station in Islamabad. In this connection, their Lordships decided that the right analogy for determining jurisdiction in blasphemy cases was that of defamation. And the law provides that if a defamatory statement is reproduced or distributed in a particular city, then a criminal case for defamation can be filed in that city (even if the original statement was made elsewhere).

So far as black-letter law goes, there is nothing wrong with the order of the Supreme Court. On the other hand, so far as a basic understanding of today’s Pakistan is concerned, there is much to be worried about.

The first point to note is that while the Supreme Court may have reached the correct decision on merits, it is an elementary principle of natural justice that no one should be condemned unheard. In this case, the Supreme Court of Pakistan decided the issue of territorial jurisdiction without giving any notice to or ever hearing Ms Rehman. She was therefore condemned unheard.

The legal reply to Ms Rehman in this context would be that she has not been ‘condemned’, since the Supreme Court has only ordered the registration of a case against her, i.e., the initiation of investigative proceedings, not her conviction. However, this is where some knowledge of the world outside the four corners of a courtroom comes in useful. Ms Rehman now stands formally accused of blasphemy. Whether or not she is eventually acquitted is not her problem. Her problem is avoiding assassination by some self-appointed executioner as a consequence of the allegation levelled against her. Proceedings for blasphemy are therefore not like other criminal proceedings.

Let us also look beyond the facts of Ms Rehman’s case to the larger picture. As a consequence of the Supreme Court’s order, our current jurisprudential situation is that any person with access to a television can now impose a virtual death sentence on any person with an opinion. Even if one disregards the term ‘death sentence’ as mere hyperbole, the fact remains that any person watching a television talk show can now initiate criminal proceedings against a talk show participant merely because the person watching is aggrieved by something the participant said. In order to avoid arrest, the accused will most likely have to appear in criminal investigative proceedings in the place of residence of the aggrieved person. Similarly, the accused will also have to challenge those legal proceedings at the place of residence of the aggrieved person. Talk about a chilling effect on free speech!

Presumably, the defence from the Supreme Court is that courts don’t make law; they merely implement the wishes of the legislature. That argument would make some sense if our courts had shown any fealty to the concept of judicial restraint. However, over the past five years, the Supreme Court of Pakistan has effectively rewritten the jurisprudence of this country and chucked the concept of judicial restraint into the wastebin. Whether one agrees with that philosophy is another matter. But the fact remains that having rewritten the law books in the single-minded pursuit of effective justice, it ill behooves our judiciary to seek refuge in technicalities.

What then should the Supreme Court have done? So far as I can see, the Court had at least two other options. The first is that it could have ignored the issue and let it stay pending. Yes, I understand that justice delayed is justice denied. But if the Supreme Court lacked the desire to confront all the issues involved in the Sherry Rehman matter, then the least it could have done is to politely shove the file into a corner and let it stay there.

The second option for the Court was to have actually examined the issue of blasphemy in the context of other human rights. It doesn’t take a degree in rocket science to realise that the blasphemy law is being abused at present. It also doesn’t take a degree in rocket science to realise that our political representatives are far too scared to say much about the law. Frankly, given what happened to Salmaan Taseer, I don’t blame them. My point is instead that the reason why we have fundamental rights in the Constitution and the reason why we have an independent judiciary with security of tenure is so that our judges can examine our laws with a vision unclouded by populist pressures.

This Supreme Court has set a high standard for itself in relation to the protection of human rights. That standard has not been met in Sherry Rehman’s case. Sometimes discretion is not the better part of valour.

Published in The Express Tribune, February 5th, 2013.

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Reader Comments (30)

  • Osama Siddique
    Feb 4, 2013 - 11:13PM

    Excellent Feisal. It is high time that those entrusted with the protection of fundamental rights and constantly proclaiming themselves to be holier than thou in such matters stopped pussyfooting on this issue. Such meekness is hardly acceptable in a milieu where obscurantism is rife and endangers so many. The coercive potential of this and other egregious laws is plain for everyone to see. Those in power – including judicial power – need to take a resolute stand against this or at least stop making ridiculous comparisons with Caliph Omar, as is their wont.

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  • gp65
    Feb 4, 2013 - 11:16PM

    By accepting Sherry’s case, the Supreme court has given a clear signal that anyone who even talks about reforming the current blasphemy law’s implementation can be tried for blasphemy. How then can anyone ever make any attempt to reform this man made law? Every reasonable person will admit that this law is abused by land mafia to grab land making false cases as was observed in Rimsha Masih case or for people to settle their disputes as happened to the Doctor who threw the pharma rep’s card in trash but the rep’s name was Mohammed or to torment minorities as happened to Asiabibi and the young Ahmadi girl who made a spelling mistake.

    Judges who rule that a person is acquitted face the wrath of people and even if someone is acquitted they are then killed outside the court by someone who believes they had blasphemed anyway. The only reason Rimsha escaped was due to the international visibility of her case because she was a minor and because someone actually came forward and testified to the accuser himself burning pages of Quran and adding it to the pile that Rimsha had burnt. Asiabibi is still in jail. When there is no hurry to rule on her case, why the hurry to rule in Sherry’s case? Is there no pendency in Supreme court at all – are all previous cases already disposed off?

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  • John B
    Feb 4, 2013 - 11:32PM

    I find the entire article blasphemous against the spirit of blasphemy law and by writing this opinion the author has showed contempt of the highest court of the land. Since the PAK SC has ruled that jurisdiction applies to where ever the blasphemous content is distributed, on behalf of PAK righteous citizens, I will file charges against the ET and the author!

    What free speech; there is only one opinion and everyone should follow that.

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  • Parvez
    Feb 4, 2013 - 11:36PM

    Completely agree with your thinking.
    Lets just hope that through this case the court manages to balance the wrong being committed under this law.

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  • Mirza
    Feb 5, 2013 - 12:00AM

    This is a great Op Ed that deals with the basic problem associated with the abuse of the blasphemy laws imposed by Gen Zia. It is revealing that only one person in the country felt aggrieved by the TV show. Yet the Session and HC took the case and gave undue importance but made the right decision. In most countries the HC (hence called HC) are the final decision makers. The SC does not even accept for hearing most of the cases unless there is a case of national importance and significance. Yet our SC is too available for these types of cases as if they have nothing better to do.
    The establishment has been handling defense, US and Indian policy and they do not want too independent ambassador in the US. The first one to go was HH but S. Rehman is also independent and there is not a big change for the comfort of establishment, hence case against S. Rehman also! All the known and unknown terrorists are released by the court for the lack of proof and their basic rights even self confessed killer Qadri is living a VIP life in protective custody and there is no sign of any progress in his case. The families of hundreds of innocent civilians are grieving at their loses but there is no justice for them. It appears Moulana Iftikhar is eyeing for the next president with the help of rightwing parties.

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  • afzaalkhan
    Feb 5, 2013 - 12:47AM

    so your argument is since public perception is that she has comitted blasphemy the courts should therefore not allow any FIR? What kinda logic is this, by same token if a murder FIR is registered the accused is automatically guilty and relatives of slain can then kill him? Fear that something might happen has nothing to do with law. Here is my suggestion to all, since your all are such esteemed lawyer, why not file a petition in SC asking to nullify or atleast asked assembly amend either the law or provide some protection.

    But you will never do that cuz that will take away your bread and butter. Shameful,.

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  • Z.Khan
    Feb 5, 2013 - 1:26AM

    “The second option for the Court was to have actually examined the issue of blasphemy in the context of other human rights. It doesn’t take a degree in rocket science to realise that the blasphemy law is being abused at present. It also doesn’t take a degree in rocket science to realise that our political representatives are far too scared to say much about the law. Frankly, given what happened to Salmaan Taseer, I don’t blame them. My point is instead that the reason why we have fundamental rights in the Constitution and the reason why we have an independent judiciary with security of tenure is so that our judges can examine our laws with a vision unclouded by populist pressures”

    Well said. When it came to SR you wrote this way. However when unknown individuals from Ahmadies, Christians and Hindus were involved great writers of your stature preferred silence. Here is the biggest flaw of our society. When any influential is blamed or involved all feel the pinch however when any ordinary individual is brutalised no one pays attention. SC will never re-examine such laws as it is busy in more important matters of getting rid of current ruling elite. Nature reacts to revenge the innocent blood. Warning were given that such discriminatory laws one day will become death traps for those who were passing and enacting these. But when some one is enjoying the taste of power he or she does not bother such warnings. My only fear is that tomorrow some so called “real Muslim” might not assassinate this bold lady.

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  • Falcon
    Feb 5, 2013 - 1:40AM

    A very informative and well articulated op-ed

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  • John B, you're an idiot
    Feb 5, 2013 - 1:43AM

    John B, that was extremely poor attempt at humor, and not a very wise thing to do. You’red an idiot.Recommend

  • sabi
    Feb 5, 2013 - 2:07AM

    This barbaric law, which off course is un islamic,will sink the ship to the bottom of the ocean.of jihalat.Nobody can speak even in favour of quran and sunnah if it dissagree with voilant mullah interpretation of Islam.This land is plagued with intollerance and jihalat.state machinary is in the hands of bigots.open invitation to bloodshed!

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  • gp65
    Feb 5, 2013 - 2:07AM

    @John B:
    Lol. You said what I did but in a much more succint and pithy manner.

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  • gp65
    Feb 5, 2013 - 2:13AM

    @Parvez: “Lets just hope that through this case the court manages to balance the wrong being committed under this law.”

    Actually this case is not for the purpose of reviewing and reforming the implementation of the actual blasphemy law. Rather it is to determine if Sherry who a parliamentarian in 2011 herself was guilty of blasphemy in even suggesting that there should be a review and reform of the implementation aspects f the blasphemy law. Thus the very act of accepting this petition means that no one else will ever dare to raise the topic of reforming the blasphemy law.

    Just today we have some more people allegedly guilty of this law. http://tribune.com.pk/story/502777/ahmadi-literature-printing-press-employees-accused-of-blasphemy/
    The pattern is pretty clear.

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  • Mirza
    Feb 5, 2013 - 2:25AM

    @John B: Hi Jonny Boy, good one!
    Regards,
    M

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  • Tas
    Feb 5, 2013 - 2:38AM

    The main conclusion that I draw is that the judges are afraid and taking decisions under populist pressures when it comes to religion related matters. In the same way, hardly anybody in Pakistan clearly condemned the murder of Salman Taseer and the populist pressure was constantly present to shut the mouths of all those who would dare to even discuss the situation on the Blasphemy Law. What a pathetic situation.

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  • Mj
    Feb 5, 2013 - 3:10AM

    The inquisitors and heresy hunters of old would find themselves at home in Pakistan, and indeed in many other muslim majority countires despite a difference of several centuries. One should not be so insecure in faith so as to rely heavily on government and society to enforce religious orthodoxy and thought control.

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  • gp65
    Feb 5, 2013 - 3:10AM

    @afzaalkhan:
    You are saying that the parliament should change blasphemy law. Do you know that is exactly what she was trying to do through a private member bill? The very act of trying to amend the law is being described as a blasphemy. Who then can dare to try to reform the law?

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  • John B
    Feb 5, 2013 - 3:50AM

    @Mirza: @gp65:
    Thanks. what can I say, every day the news items in PAK gives me materials for civic lesson, governance, ethics, natural law, absurdity, stupidity, apathy, sympathy, righteous vengeance, guilt, and self reflection.

    About four years ago we donated some money for Ms.Rehman’s foundation. Sad to see that PAK is becoming a prisoner of its own making.

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  • Ali Tanoli.
    Feb 5, 2013 - 4:18AM

    slap on the faces of librals beghairath.

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  • sabi
    Feb 5, 2013 - 4:49AM

    @Ali Tanoli.:
    “slap on the faces of librals beghairath”.
    Beware of iron fist defaming the faces of ghairat brigade.which is just a matter of time.

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  • gp65
    Feb 5, 2013 - 5:29AM

    @Ali Tanoli.: Ali, you are back! Hadn’t seen you in so long. Welcome back.

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  • Varun
    Feb 5, 2013 - 9:09AM

    The author allows for politicians running scared of meddling with contentious laws for the sake of life and limb. However, he has not explained why he does not offer the same courtesy to the judiciary.

    Should it be axiomatic that judiciary alone should brave bullets for a society which has already buckled under?

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  • observer
    Feb 5, 2013 - 10:04AM

    the reason why we have an independent judiciary with security of tenure is so that our judges can examine our laws with a vision unclouded by populist pressures.

    And what if the Supreme Court itself is the source of ‘populist pressure’ or fervor , if you please.

    The SC did say, while hearing the 18th, that they will not be mute witnesses if the Islamic character of the state is sought to be changed by the Legislative. And it exerted itself to put some apprehended danger to the ‘security of Pakistan’ above the rights of a citizen- namely Mr Haqqani, in the Mansood Ijaz letter case. And it did find underage Hindu girls ‘converting and marrying’ of their own ‘free will’- Armed abductors not withstanding.

    I rest my case.

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  • Afzaal Khan
    Feb 5, 2013 - 11:13AM

    @gp65

    Nope I suggested the writer and others who have an issue approach the SC and files a petition against the law. The writer admits that court ruling was not on nature of complaint but only that an complain under defamation can be filed against a person in certain location or not and court dealt only that qts. I suggest u read the article again even writer can’t deny that.

    Now since every one on ET loves to preach every pakistani civility, democracy etc etc here is my suggestion, either file a direct petition in court regarding review of the blasphemy law, or like other “civilized countries” do take up the case of Ms. Rehman and take it all the way to SC. Ms. Rehman is not some poor destitute person, she can very well defend herself and ofcoz with the help of civil society and everyone who wants the law aboloished she can plead the case and take it all the way to SC. She and her freinds have means and lawyers of eminent skills like the authors so she won’t be under represented, make this case the test case that will change the law. Otherwise its all talk to make money not a legitimate cause to alter the law.

    Ms. Rehman has to present a pvt a member bill while being a federal minister, so instead of asking the qts from court may be writer and ilk should be asking their beloved secular and liberal parties coalition that is in power.

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  • Raj - USA
    Feb 5, 2013 - 11:36AM

    If my memory serves me right, is it not the same CJ who just a few months ago, compared himself to some holy personalities in a public lecture? If so, can anyone file a blasphemy charge on him?

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  • Wasif M Khan
    Feb 5, 2013 - 3:59PM

    Since comparisons with historical figures appears to indeed be the SC’s wont, let me suggest two who had, just like our SC and the CJ Pakistan, greatness thrust upon them; Adolf Hitler and Benito Mussolini. After their initial wave of success, that destroyed the lives of millions, they left behind countries that were relics of their once vaunted intellectual and military power. The message is simple; far more essential than anyone’s interpretation of an independent judiciary is the need for a competent judiciary that actually lives and not just espouses integrity. Btw whatever happened to the Sialkot lynch mob?

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  • Ali Tanoli.
    Feb 5, 2013 - 5:56PM

    Thank u gp65.

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  • gp65
    Feb 5, 2013 - 8:58PM

    @Afzaal Khan: No Sherry Rehman is not a poor destitute person and neither was Salman Taseer. He has been shot dead and his son has been kidnapped for how long?

    It is the job of the parliament not judiciary to amend laws and here she is being charged with blasphemy because she was doing her basic function of a parliamentarian i.e. introducing a private member il to reform administrative aspects of the blasphemy bil.

    Over ruling a High Court decision in an appeal should be done in the rarest of rare cases and I don’t know that a parimentarian introducing a bill and answering questions on a TV show about the bil she has introduced meets the threshold of the rarest of rare cases. The Supreme court is not a trial court – it is the highest court of appeal.

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  • afzaalkhan
    Feb 5, 2013 - 9:47PM

    @gp65

    Your whole argument is wrong, the judiciary didn’t initiate case against her, I am going by what authour himself admitted, court never touched the case of blasphemy, the issue before court was whether an FIR can be registered and they have clarified the law accordingly. So stop twisting the verdict and atleast read the article.

    The FIR was not against introducing the bill itself, another of your mischaracterization. The FIR was against what she said in the tv show.

    Overruling High court decision is prerogative of SC and its done all over the world so nothing new or novel there either.

    Bottom line the issue settled by SC has opened up and facilitate to fight defamation. Some one sitting in another city can’t be immune to defamation suit in this day and age when digital media allow spread of message. Thats what SC has decided not the blasphemy law itself.

    What happened to Salman taseer or his son was violation of law, no one filed an FIR against Taseer for blasphemy neither any court called him up for blasphemy. So your analogy is wrong you can’t blame courts for that.

    Bottom line don’t like the law ask the parliment to chnage it, till it get change its the law of the land and if we want rule of law we must obey it. Otherwise as I have stated earlier if you think Parliment can’t change it and law is against constitution and basic human rights feel free to petition the SC.

    Its funny that ppl sit behind computer screen and blast courts, you want change get off the computer and do something about it. Here is another way, use social media and make it cause every political party should be asked what thier stand is on blasphemy law and will they change it, then vote accordingly. On one hand court get bashing for interfering with executive on other hand when they don’t they get bashed why don’t they.

    If none of my suggestions are taken then its clear that the issue is brought because it makes money for opponents they just getting their bread and butter and has zero interest in changing law.

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  • Maula Jut
    Feb 5, 2013 - 10:00PM

    Aah ko chahiya ik umar asar honay tak {It will take a life time for the sigh to be heard}.
    But given the threat to Islam, this liberal’s sigh is inadmissible. Case closed.

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  • Muhammad Tahir Younus
    Feb 8, 2013 - 6:18PM

    @Mirza:
    be objective, stop writing your personal grudges. Maulana Iftikhar bashing may give you some solace,but these forums are not for such things. Free speech proponents should observe reasonable restrictions.

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