Download Jinnah Institute Blasphemy Laws and the Quran Introduction: The

Jinnah Institute
Blasphemy Laws and the Quran
Introduction:
The Blasphemy Laws (comprising of several sections of the Pakistan Penal Code and the
Pakistan Criminal Procedures Code) have been grossly misinterpreted in Pakistan and have
been used as a tool to persecute minorities in the country. In the past, any move to amend the
laws has been met with severe resistance from religious and right-wing parties.
It is commonly believed that these laws are based on the Quran, the Holy Book of Islam. This
belief is, however, erroneous. Religious scholars believe that the Blasphemy Laws and the
sentence of the death penalty, as laid out in Section 295 of the Pakistan Penal Code, for
committing blasphemy against the Prophet Muhammad (peace be upon him), have no basis in
the Quran and Hadith.
Blasphemy, the Holy Quran and the Prophet
The Quran mentions several incidents, according to eminent Muslim scholar Dr. Javed Ghamdi1,
where people insulted the Prophet, came to the Prophet’s gatherings and abused him or
twisted his words. In this scenario, Allah told believers to not use any such words from that
could be misinterpreted [Qur'an; 2:104].
Insulting the Holy Prophet (pbuh) is a grievous sin. According to Ibn Tahmiyya, this sin amounts
to kufr [the act of not believing in Allah]. Throughout history, there have been incidences of
Muslims being ridiculed and insulted. The Quran mentions the most important case of
blasphemy ever committed against Mohammad (pbuh).
Surah Al-Massad:
“The power of Abu Lahab will perish, and he will perish. His wealth and gains will not exempt
him. He will be plunged in flaming fire. And his wife, the wood-carrier, will have upon her
neck a halter of palm-fibre.”
Surah Al-Ahzab, verse 57:
“Lo! those who malign Allah and His messenger, Allah hath cursed them in the world and the
Hereafter, and hath prepared for them the doom of the disdained.”
These incidents would have been the ideal opportunity to reveal a law that would bind
followers to execute such people, but none exists.
Dr. Khalid Zaheer, a noted scholar, says that the Quran mentions acts of blasphemy committed
against the Prophet (pbuh) and the message of Islam, three of which are more important than
the others. However, says Dr. Zaheer, “none of these passages contains any indication that
those found guilty of blasphemy ought to be killed”.2
According to Dr. Ghamdi, there is no ‘Sahih’ (verified) Hadith where execution is recommended
as a punishment against blasphemy. The incidents that are used to justify the basis of the
Blasphemy Laws and on the basis of which the Federal Shariat Court made the death penalty
1
http://www.siasat.pk/forum/showthread.php?50390-Blasphemy-Law-Javed-Ghamidi-Vs-Mufti-MuneebUr-Rehman
2
http://tribune.com.pk/story/96867/the-real-blasphemers/
mandatory in cases of blasphemy offenses were not mentioned until the time of Ibn Taymiyya.
Imam Malik, Imam Bukhari and Imam Muslim have not mentioned these incidents.
Dr. Khalid Masud, former head of the Council of Islamic Ideology and an eminent Islamic
scholar, also says that in his study of the Qur’an and hadith, no clear ruling for this punishment
has been laid out for blasphemy. “Blasphemy does not find a place in the Islamic lexicon. The
closest thing it comes to is the word 'sabb' meaning to abuse. Sabb pertains to all things
considered sacred,” says Dr. Masud.3 “In the Quran, sabb is mentioned with reference to
deities, where Muslims are forbidden to revile deities as it may cause others to revile Allah.
“Revile (sabb) not ye those whom they call upon besides Allah lest they out of spite revile
Allah in their ignorance. Thus have We made alluring to each people its own doings. In the
end will they return to their Lord and We shall then tell them the truth of all that they did.”
[Surah Al-Anam Verse 108].
The Qur’an does not use this term (sabb al-nabiyy) for the Prophet (pbuh). This verse, in fact,
requires Muslims to be careful about statements that may instigate others. There is no verse
that justifies punishment on 'tauheen-e-risalat' (blasphemy against the Prophet (pbuh)).
However, this is not to suggest that it is condoned or pardonable. What has been said is that
God will punish those who insult the Prophet (pbuh), therefore the matter must revert to Him.
Three or four hadiths comprise the discussion on this matter, none of which prove that this is a
punishable act.
According to the Quran, says Dr. Khalid Zaheer, “Believers, don’t make such individuals from
amongst the people of the book and the disbelievers (of Makkah) your friends, who tease and
make fun of your religion. And fear Allah if you are true believers. When you are called for
prayers, they make it an object of ridicule. This they do because they are a group of people who
don’t know (the truth),” (Quran; 57-58). Had the intent of the Divine Law been to kill those who
made fun of religion, this passage would have been an appropriate occasion to make this fact
unambiguously clear. Instead, believers were asked to ignore ‘blasphemous remarks’ and were
told to refrain from befriending these people.4
Islamic Jurisprudence (Fiqh)
Even in Islamic jurisprudence, says Dr. Ghamdi, the law has not been presented in the way that
Pakistan’s Blasphemy Laws have presented it. Additionally, Islamic jurists do not accept the
Blasphemy Laws the way they have been presented by Pakistan’s ulema.
According to Dr. Masud, there is a wide-ranging discussion on the subject of blasphemy in
Islamic jurisprudence. “For anybody to claim that there is consensus of all scholars (including
the many schools of fiqh – Shi'a, Hanafi, Hanbali, etc) on what constitutes blasphemy is
completely incorrect.”
If we look at the collections of Fatawa by the Muftis of these groups in the recent past, e.g. alMuhannad, Deobandi, Barelvi and Ahl al-Hadith, they have been accusing each other of
committing blasphemy. The concept of blasphemy in these fatawa is closely linked with
apostasy and that is why they stress on punishment of death for blasphemy.
Elaborating, Dr. Masud says, “Apostasy as a crime was not included in the 1979 Hudood
Ordinance, and hence is not a Hadd crime in Pakistan. It is included in the Ta'zirat which are
3
4
Speech at the Jinnah Institute Seminar-Blasphemy Laws: A Call for Review, Nov 30, 2010
http://tribune.com.pk/story/96867/the-real-blasphemers/
subject of state legislation. Islamic Jurisprudence is very careful about the death sentence
because it is a Hadd punishment, [and] it cannot be pronounced in Ta’zir crimes. Contrary to
the offence of blasphemy, the law of apostasy in Islamic jurisprudence is only applicable to
Muslims; non-Muslims are not subjected to the law of apostasy. In Islamic jurisprudence, nonMuslims in a Muslim state are 'under a covenant', and are free to believe in and practice their
religion. The Hanafi fiqh (pertinent to the majority of Muslims in Pakistan) further distinguishes
between an apostate woman and an apostate man. The Hanafi jurists do not prescribe death
sentence to an apostate Muslim woman. Al-Marghinani, the author of al-Hidaya (one of the
most authoritative texts of Hanafi Fiqh) explains this point as follows:
“As to the apostate woman she shall not be awarded death sentence. Shafi’i [the
founder of the Shafi’i School] ruled that she [an apostate woman] shall be sentenced to
death as mentioned earlier. [He explains that] death sentence for an apostate man is
justified because it is a grave offence and therefore attracts grave punishment. Apostasy
of a woman is similarly grave and therefore the punishment should also be the same.
For us [Hanafis, however] the reason [the ground for distinguishing between the
punishments for men and women] is that the Prophet, peace be on him, forbade killing
women. [Also, the Hanafi] principle is to defer punishment to the hereafter because
hastening [punishing in this world] violates the meaning of trial [in this life]. [The
punishment of death sentence for an apostate man is] an exception from this rule
because [death sentence] prevents the imminent evil, namely the rebellion [after
apostasy]. This is not likely in case of women because they do not have that capacity like
men.” (Al-Hidaya, chapter on rules of apostates.).
Al-Hidaya also notes a difference of opinion between the Hanafi and the Shafi’i School and
among the Hanafi jurists on the possible respite given to the offenders to repent. Imam Shafi’i
prescribes three days respite before sentence. He explains that a Muslim may commit apostasy
on the basis of some apparent doubt and hence he must be given time to think it over. Abu
Hanifa and Abu Yusuf agree and add that regardless, whether an apostate requests or not, he
should be given time. Other Hanafi jurists do not allow this respite (al-Hidaya).
To distinguish between apostasy and Sabb al-Nabi [blasphemy], the Hanafi jurists observe three
important exceptions: [See for details, Ibn Abidin, Hashiya Radd al-Muhtar, Vol.4, pp. 416-19.
The following is a summary.]
Since the basis for punishment of a Muslim and non-Muslim in this case differ [namely a Muslim is
charged for apostasy but a non-Muslim cannot be charged for apostasy], a Muslim is punished
under Hudud and a non-Muslim under Ta’zir. This means that a non-Muslim cannot be sentenced to
death, strictly from the perspective of Shari’a. The jurists have agreed to sentence a non-Muslim to
death on the basis of Siyasa [public policy], which is the prerogative of the state, and in that senses a
secular law, not Shari’a law.
Professor Hashim Kamali, an Afghan scholar of Islamic law and chairman of the Institute of
Advanced Islamic Studies, Malaysia, notes "the absence of a specific definition for blasphemy in
the works of Fiqh" and" especially with reference to non-Muslims" is part of the difficulty
(Mohammad Hashim Kamali, Freedom of Expression in Islam, Kuala Lumpur, 1998, p. 213).
According to him, blasphemy should have been in principle separated from apostasy. He
observes that "Ibn Taymiyya and others have attempted to distinguish blasphemy from
apostasy, but the majority of jurists subsume blasphemy under apostasy" (Kamali, p. 215).
Kamali observes that Muslim jurists are not unanimous, for instance, on the question whether a
blasphemer has the right to retract and repent.
"While the Hanafis maintain that it is recommended to ask the blasphemer to repent
and return to Islam, Imam Malik has considered it to be unnecessary. The Shafi'is and
Hanbalis have each recorded two different views, one which corresponds with that of
the Hanafis and other with that of Imam Malik. The majority opinion thus stipulates
istitaba [repentance] as a requirement prior to the enforcement of punishment; over a
period of three days, the convict should be asked whether he or she wishes to repent."
(Kamali, p. 233.)
The majority view is based on the report from Ummul Mu'minin A'isha that a woman
renounced Islam on the day of the battle of Uhud and the Prophet, peace be on him, ordered
that she should be asked whether she wished to repent (Kamali, p. 233, citing Ibn Qudama, alMughni, Vol. 10, pp 74ff, al-Shawkani, Nayl al-Awtar, Vol. 7, p. 221).
According to Dr. Mohammad Taqi5, for each incident of execution of blasphemers — usually
reported on weak authority — there are two other examples where the Prophet (pbuh)
tolerated and indeed pardoned insults against him.
Dr. Ghamdi says that not a single incident can be cited from the Sirah traditions where charges
of blasphemy were filed, a trial held and the punishment meted out.
The History of the Punishment for Blasphemy
According to Abdullah Saeed and Hassan Saeed’s book Freedom of Religion, Apostasy and
Islam6, the basis for the punishment does not come from clear Quranic instructions, nor is it
stated clearly by the Prophet (pbuh). Instead, the basis for the punishment is based on reported
incidents in the lifetime of the Prophet (pbuh). No references can be found to a punishment in
the Quran. Muslim jurists constructed and legitimated the offence after the death of the
Prophet (pbuh), which is based on reports of hadith literature. “Several reports in the hadith
literature indicate that when such people [those who had committed blasphemy] were killed,
the Prophet (pbuh) declared that their blood was split in vain.”
There are a limited number of verses in the Quran that deal with laws that form the basis of
Islamic laws – the reason, as stated in the Quran, is not to impose a great burden on believers. 7
The Quran says:
“O you who have attained faith! Do not ask about matters which, if they were to be made
manifest to you [in terms of law], might cause you hardship; for, if you should ask about
them while the Quran is being revealed, they might [indeed] be made manifest to you [as
laws]. God has absolved [you from any obligation] in this respect: for God is much-forgiving,
forbearing. People before your time have indeed asked such questions – and in result thereof
have come to deny the truth.”
5
Dr. Mohammad Taqi: Blasphemy laws: what does the Quran say?
http://dailytimes.com.pk/default.asp?page=2010\12\02\story_2-12-2010_pg3_2
6
Freedom of Religion, Apostasy and Islam, 2004
http://books.google.com.pk/books?id=HzFZKWc9SCgC&lpg=PP1&dq=Freedom%20of%20religion%2C%
20apostasy%2C%20and%20Islam&pg=PA32#v=onepage&q&f=false
7
th
S. Iftikhar Murshed, “Blasphemous Distortion of Islamic Law” – The News, 28 Nov. 2010
According to S. Iftikhar Murshed, “The obvious implication is that believers should not try to
deduce additional laws from the injunctions clearly spelt out in the Quran and by Prophet
Muhammad (pbuh), as that “might cause you hardship”. However, “this is precisely what has
happened through the centuries, as a consequence of which burdens have been imposed on
believers far beyond the actual stipulations of the Quran or the authentic pronouncements of
the Prophet.”
The Quran on Punishment of Execution
The punishment of execution is valid in only two circumstances. According to Dr. Ghamdi, the
Quran states two crimes for which you can execute someone: if he has killed someone else, or
if he instigates rebellion.
There are two categories of punishments in Islamic jurisprudence: Hadd (unalterable
punishment) and Tazeer (discretionary punishment). Some schools of Islamic jurisprudence
believe that the death penalty is a ‘Hadd’ punishment. Dr. Khalid Masud says that the jurists
define ‘Hadd’ as a fixed punishment mentioned in the Quran and Sunnah. “In fiqh, those who
prescribe death punishment for blasphemy do not explicitly base it on explicit text from the
Qur’an and hadith. They argue on the basis of implicit meanings. The Hanafis distinguish
between the punishment for blasphemy applied to a Muslim and applied to a non-Muslim; they
call it hadd in case of Muslims and Ta’zir in case of non-Muslims. This distinction is based on the
analogy of apostasy.”
Dr. Kamali analyzes Qadi Iyad (d. 1149), a Malik jurist in Spain, and Ibn Taymiyya (d. 1328), a
Hanbali jurist in Syria, who wrote exclusively on blasphemy and observes that "even Ibn
Taymiyya, having written so profusely on blasphemy, is at pains to establish that the death
penalty for blasphemy is a Qur'anic dispensation" (Kalamali, p. 237). For example, Ibn Taymiyya
cites the following verse: "And smite them above their necks and smite all their fingertips
because they opposed God and His Messenger, and those who oppose God and His Messenger
[should know that for such] God is strict in punishment" (al-Anfal, 12-13). Kamali notes that
"The occasion for the revelation of this text is well-known to have been the battle of Uhud",
and that Ibn Taymiyya himself tends to suggest that the text is quoted merely to compare the
key words hadd and shaqq in the verse to conclude that both words mean dissension,
opposition and antagonism. According to Kamali, the Qur'anic passage from which Ibn
Taymiyya drew his main conclusion, namely that the death penalty for blasphemy, is a Qur'anic
dispensation and that it’s prescribed punishment is the following: "Verily, those who
insult/annoy God and His Messenger in this world and in the Hereafter, and He has prepared
for them a humiliating punishment. And those who insult/annoy believing men and women
without due cause bear on themselves a calumny and a glaring sin” (Al-Ahzab, 57-8).
Ibn Taymiyya argues that "This verse makes obligatory the death penalty for one who insults
God and His Messenger" (Kamali, p. 240, citing Ibn Taymiyya, al-Sarim al-maslul. p. 40).
Kamali summarizes Ibn Taymiyya's argument as follows. "God most high has cursed the
perpetrator of blasphemy. “Cursing is the opposite of mercy”, Ibn Taymiyya quotes a Hadith, in
which it is declared that ‘cursing a believer is tantamount to killing him’. Ibn Taymiyya goes on
to conclude that one whom God has cursed is also liable to the death penalty: “It is thus known
that killing him is permissible” (Kamali, p. 241).
According to Dr. Taqi, almost all the proponents of severe or capital punishment for blasphemy
quote Verse 33 of Surah Al-Maidah in support of their argument:
“The punishment of those who wage war against Allah and His Messenger, and strive with
might and main for mischief through the land is: execution, or crucifixion, or the cutting off of
hands and feet from opposite sides, or exile from the land: that is their disgrace in this world,
and a heavy punishment is theirs in the Hereafter.”
As to the cases of blasphemy during the days of the Prophet (pbuh), Dr. Kamali observes: "The
recorded instances of sabb al-Rasul, peace be on him, which were prosecuted all occurred in
Medina… this would suggest that blasphemy as a punishable offence materialized in a political
context… " (Kamali p. 246). He argues further that "Of the cases that were brought to the
attention of the Prophet, peace be on him, it appears that the majority were pardoned and only
the most serious cases were prosecuted. It is almost certain that the Prophet, peace be on him,
validated the death penalty in about dozen cases, either directly or by tacit approval that was
given after the event" (Kamali, p. 247).
Abd al-Hakim Hasan al-'Ili, an Egyptian scholar, after examining these cases , reached the
conclusion that the Prophet (pbuh) authorized the death penalty for apostasy in his capacity as
political leader, and he exercised discretionary power in its application; and that as such the
Prophet (pbuh) himself treated apostasy as ta'zir offence (Al-Hurriya al-Ammah, 1983, p. 199).
He mentions the following names of the persons whom the Prophet (pbuh) pardoned: Abd
Allah bin Abi Sarh, Ikrama b. Abi Jahl, Safwan b. Umayya and Hind, wife of Abu Sufyan. Abdullah
b. Abi Sarh was the scribe of the Prophet (pbuh) who renounced Islam, went to Mecca and
maligned the Prophet (pbuh) and the Qur'an. Ikrama and Safwan were known for their
opposition to the Prophet (pbuh). Hind hurt the Prophet (phuh) when she mutilated the body
of His uncle.
Misinterpretation of the Quran:
According to scholar Brigadier (retd.) Nazir Ahmad8, it is an act of blasphemy against the Holy
Prophet (pbuh) to ascribe to him any word or deed which in any way is discordant with the
Qur'an. Clerics who advocate execution in the name of blasphemy must be aware of this.
Execution is not a light punishment; judicial execution, if applied incorrectly, amounts to
murder. The Quran has taken a very serious position on the fate of murderers, therefore, it is
advisable to err on the side of caution and examine the premise of the Blasphemy Laws in
Pakistan.
The Quran’s Solution
The Quran only offers restraint as a solution to the crime of blasphemy:
“Revile not ye those whom they call upon besides Allah lest they out of spite revile Allah in
their ignorance. Thus have We made alluring to each people its own doings. In the end will
they return to their Lord and We shall then tell them the truth of all that they did.” [Surah Al-
8
http://muslim-canada.org/HamdardBlasphemy.html Reprinted from Vol. XXII, No. 1 Hamdard Islamicus,
Karachi, Pakistan © 1998
Anam Verse 108 – translation by Maulana Yusuf Ali]9
"When ye hear the signs of Allah held in defiance and ridicule, ye are not to sit with them
unless they turn to a different theme." [Qur'an 4:140]
"And when they hear vain talk, they turn away therefrom and say: "to us our deeds and to
you yours; peace be to you."” [Qur'an 28: 55]
"Hold to forgiveness, command what is right; but turn away from the ignorant." [Qur'an
7:199]
"Have patience with what they say, and leaves them with noble [dignity]." [Qur'an 73:10]
"And the servants of Allah . . . are those who walked on the earth in humility, and when the
ignorant address them, they say 'Peace'" [Qur'an 25:63].
"Allah is with those who restrain themselves." [Qur'an 16: 128].
"...But they uttered blasphemy…if they repent, it will be best for them, but if they turn back,
Allah will punish them." [Qur'an 9:47]”
The ultimate punishment for Kufr [unbelievers], and for blasphemers is clearly in the Hereafter.
The Quran is clear on the fact that Allah will save their punishment for the very end. Dr. Taqi
writes, “The common theme between the verses noted above is that, while the highest
condemnation has been heaped on anyone reviling or attempting to revile the Holy Prophet
(pbuh) and eternal damnation promised for the perpetrator, neither a direct order (amr) has
been given to impart a punishment nor a set punishment prescribed — not even for Abu
Lahab!”
The Constitution of Pakistan
The most important provision of the Constitution of Pakistan reads “Whereas sovereignty over
the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the
people of Pakistan within the limits prescribed by Him is a sacred trust.”10
According to Brigadier Nazir, the Quran set strict limits on punishment for any and every crime.
"And if you are punished, let your punishment be proportionate to the wrong that has been
done to you; but if you show patience, that is indeed the best course. [Qur'an 16:126]
"The recompense for an injury is an injury equal thereto: but if a person forgets and makes
reconciliation, his reward is due from Allah." [Qur'an 62:40]
"Twice will they be given their reward, for that they have persevered, [and] they avert evil
with good." [Qur'an 28:54]
The Constitution of Pakistan is unique in that it allows Muslims to practice their faith in the best
possible way. If the laws of Pakistan were used to misinterpret the Quran then this would
amount to committing blasphemy on behalf of the Muslims of Pakistan. Attempting to usurp
Allah’s power by carrying out an execution that He does not explicitly enjoin upon us is
blasphemy.
Section 295C, the Quran and the Federal Shariat Court
In 1982, Section 295-C of the Pakistan Penal Code was introduced in General Zia-ul-Haq’s
regime, whereby:
9
http://blogs.tribune.com.pk/story/3270/where-did-the-blasphemy-law-come-from/
http://www.pakistani.org/pakistan/constitution/annex_objres.html
10
“Whoever by words, either spoken or written, or by visible representation or by any
imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the
Holy Prophet Muhammad (peace be upon him) shall be punished with death, or
imprisonment for life, and shall also be liable to fine.”11
Following a petition by Ismail Qureshi, an advocate, the Federal Shariat Court in 1990 ruled that
the words “imprisonment for life” i.e. the alternative punishment, be deleted as it was
repugnant to Islam.12
However, the petitioner Mr. Ismail Qureshi too expressed fears that Section 295-C could be
open to abuse. “In my opinion, this Section 295-C needs to be further amended because it is
necessary to bring it in accord with Quran and Sunnah. In the present form it could create
ambiguity and legal complications.” Mr. Qureshi also added that “proof of intent was necessary
to secure conviction [a point also made by the FSC] and that the sentence of death should be
based on ‘tazkiat-ul-shahood’ [unimpeachable evidence].”
Following the Federal Shariat Court’s verdict on Section 295-C of the Pakistan Penal Code, the
government of the time moved the Criminal Law (Third Amendment) Bill 1991. I.A. Rehman, a
leading human rights advocate, cites the report on the bill by the Senate Standing Committee,
headed by PML-N leader Senator Zafarul Haq:
“The Standing Committee on Law and Justice after detailed deliberations decided to
recommend the proposed deletion of ‘or imprisonment of life’ from Section 295-C of the
Pakistan Penal Code. The members, however, observed that there was a need for a more
specific definition of the offence under Section 295 of the PPC which the members were of the
considered opinion was in the present form very generalized. The committee suggests that the
matter may be referred to the Council of Islamic Ideology for suggesting a more specific
definition of the offence falling under Section 295 of the PPC As well as for its opinion as to
whether during the lifetime of the Holy Prophet (pbuh) or during the period of Khulafa-iRashideen or afterwards in any of the Muslim countries, what was the punishment awarded to
the offenders for committing offence falling under Section 295 PPC” (Gazette Extraordinary,
Feb 22, 1992).”
Pakistan, Sunnah, the Constitution and dealing with blasphemers
"My Lord has indeed forbidden trespasses against truth and reason" [Quran 7:33]
If Pakistan is to obey the Sunnah and Constitution – i.e. the Law of Allah – then we must
practice restraint in our dealings with blasphemers. The emphasis in all cases, including murder,
is on forgiveness and reform. Even when dealing with apostasy, Islamic jurists state that anyone
who commits apostasy will be given a chance to repent and explain himself.
However, as religious scholars have pointed out, the Blasphemy Laws in their current form do
not reflect the spirit of forgiveness and restraint that has been laid out in the Quran. Nor do the
11
http://www.pakistani.org/pakistan/legislation/1860/actXLVof1860.html
http://news.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/columnists/i-arehman-the-blasphemy-law-510
12
Blasphemy Laws draw inspiration from the examples of the Prophet Muhammad (pbuh), where
He (pbuh) acted with tolerance and patience with those who insulted him.
Therefore, in a country that is an Islamic republic and its Constitution upholds that the Sunnah
and Quran will be followed, these laws are a transgression against the Quran.