While upholding the death penalty awarded to Mumtaz Qadri, the Islamabad High Court reaffirmed that “it is established beyond any reasonable doubt that the murder of the deceased [governor Salmaan Taseer] at the hands of the appellant was preplanned, coldblooded and gruesome”.

While the part of the decision that sets aside the conviction for terror has attracted much criticism, scant attention has been paid to the verdict abhorring vigilantism in the name of religion while navigating through an issue as emotive as blasphemy.

Pakistan suffers from inexplicable contradictions.

Read: IHC upholds death sentence for Mumtaz Qadri

Those within the left-leaning PPP who exhibited the courage to speak up against abuse of the blasphemy law, like Sherry Rehman, were left to their own devices when attacked by our well-nourished bigoted brigade. Governor Taseer was a PPP man. Yet there was an eerie silence in parliament when he was brutally murdered at a time when the PPP held the reins of power. Who amongst those opposed to our growing bigotry and intolerance stood besides the Taseer family during the Qadri trial?

On each hearing of the Qadri appeal hundreds of fierce-looking protesters would turn up and chant pro-Qadri slogans a stone’s throw away from the court. The courtroom would be swarmed with Qadri supporters and the environment would be so tense that lawyers standing outside expressing private views about the matter felt obliged to do so in hushed tones. Why were judges, prosecutors and witnesses not afforded security or anonymity in such a tricky case as is now being arranged for military courts?

Also read: Mumtaz Qadri, Prison King

Before the commencement of appeal hearings one of the judges on the bench was castigated for being a Qadri apologist. Photos were circulated on social media and flashed on national TV portraying him as one kissing Qadri back when he was a lawyer along with others showering petals on the murderer. The court had to clarify that the person in the photo was not the judge in question. But the insinuation was unmistakable: the bench hearing the appeal comprised religious-minded pro-Qadri judges who would come to his rescue.

And what did the bench hold? That Qadri’s act could neither be termed Islamic nor moral.

And what did the bench hold? That Qadri’s act could neither be termed Islamic nor moral, as both Islamic law and our Constitution leave no room for vigilantism. It emphasised that our Constitution is a social contract between the citizens and justifying taking of a life under the garb of one’s religious beliefs, in breach of fundamental constitutional guarantees of life and due process, would result in “anarchy, lawlessness and rule of might is right” and couldn’t be countenanced.

The court further held that no individual has the right to declare another to be a blasphemer. Anyone accused of blasphemy is to be reported and it is only a court that can find someone guilty in accordance with due process. It emphasised that the mere allegation of blasphemy is not to be confused with guilt. And that blasphemy not being a strict liability offence, before finding someone guilty his intent to commit blasphemy must be established.

Setting aside the conviction of Qadri under Section 7 of the Anti-Terrorism Act, the court held that the investigation didn’t conclude that murder was committed with the intent “to create a sense of fear and insecurity within the society” and the prosecution didn’t leave any evidence establishing that Qadri murdered governor Taseer with the intent to instil fear amongst people in general.

The court didn’t say that Qadri couldn’t have been liable for terrorism; only that the prosecution didn’t make out such a case.

Also read: Sit-in against Mumtaz Qadri’s death sentence

In criticising this finding it has been argued that whether or not Qadri’s intent was to engender terror amongst people in general, that has been the effect. By this logic, don’t all honour crimes instil fear within vulnerable segments of the society caught on the wrong side of coercive religious/cultural traditions? If Qadri was to be punished for terror, shouldn’t the prosecution have produced evidence establishing that governor Taseer was murdered with the intent to terrorise and silence those who are critical of the blasphemy law’s abuse?

The other criticism is that murder is a compoundable offence and now the Taseer family will be under pressure from our bigoted brigades to pardon Qadri. Shaan Taseer has already torn into the suggestion, befittingly, that the family should consider accepting blood money. But irrespective of the family’s position, such criticism hardly constitutes a legal argument. Should a court, in dispensing justice in accordance with the law, consider extraneous factors such as the social fallout of its verdict?

Should courts be encouraged to take into account considerations that fall beyond the case file and the evidence presented? What if this particular court had then concluded that Qadri being perceived a hero by a significant chunk of our society — a present-day Ilm Din — ought not be punished at all? Much of the recent criticism directed at our courts is misguided, for judges are being chided for not doing what they must not do, ie cover up failures of investigators and prosecutors to feed public demand for convictions and harsh sentences.

What protections need to be built into the blasphemy law to prevent its abuse is a discussion that belongs to parliament and not our courts. Protecting the Taseer family and others in like circumstances against being pressured into accepting blood money is the executive’s responsibility and not a consideration for courts while passing verdicts. The Lakhvis of our world are not bailed out because our courts are terror-friendly. They are let loose because our state has a duplicitous policy when it comes to good and bad terrorists.

Let us blame our judges for complacently presiding over a badly managed court system and for their resistance to applying to themselves principles of transparency and accountability that they lay down for others. But let’s not blame them for the failings of other institutions. Judges are not and are not meant to be social reformists. They are not and are not meant to be legislators. They must not be expected or encouraged to produce social and political consequences instead of simply deciding cases on merit.

The writer is a lawyer.

sattar@post.harvard.edu

Twitter: @babar_sattar

Published in Dawn March 16th , 2015

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