Discretion and valour

This SC set high standards for itself on protection of human rights. That standard was upheld in Sherry Rehman’s case.

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 5^th, 2013.