Saturday, December 04, 2010

Ruminations 35: Blaspheming Law

(Pix, Arsalan Iftikhar, Pakistan should abolish overly-abused blasphemy laws, The Washington Post Aug. 27, 2012)

Rule of law ideology masks the possibility of inversion inherent in the law-state and law-norm framework on which the "rule of law" reality has been built--social will through law. If law is used in the service of the dignity of religion against others, then the "rule" of law is that of the religion whose dignity is the object of the domestic legal order.  The form of a secular rule of law system, then, masks its functional objective to protect the privilege of a dominant religious group.  Theocracy can, then, adapt the structural forms of rule of law systems in its own service.

It has long been supposed that law--understood as binding pronouncements from some apparatus of state legitimately vested with the power to make such pronouncements, and enforce them--is successfully implemented only with the collusion of the population that is the object of its command.  Theories of non-violent revolution are grounded on this insight.  The study of the management of the legitimacy of law, and its relationship to the management of the legitimacy of the state apparatus has long been popular among political and legal theorists.  That, in part, might be a function of the popularity, in turn, of the instrumentalist view of law, and the insistence on a connection, sometimes an exclusive connection, between law and the state apparatus.  

Yet the collusive element of law remains under-appreciated.  Part of the difficulty may lie in the connection between popular collusion and customary norm structures.  As laudable as the Enlightenment idea of progress may be--and it remains a potently valuable insight for human organization and development--those who embrace progress tend to be embarrassed by their origins.  Much like the well educated and conventionally successful children of working class parents in mid-twentieth century England, Enlightenment grounded law theorists view custom as primitive and unscientific.  Customary systems of law are the sort of state organization that progress impels society to grow out of.  Organic and reflective, customary law systems cannot serve the instrumental and managerial purposes necessary to the appropriate functioning of the scientifically structured law-state.  It is not for nothing that even purported traditionalists like the American Supreme Court Justice Antonin Scalia could declare that Common Law has no place within the legal structures of the American Republic.      

The collusive element of law is also problematic because it suggests that law cannot live up to its own conceptual  framing.  The idea of the law standing alone as a positive instrument of the state apparatus deployed for the management of the masses (under whatever political theory that management is understood) is deeply embedded in  the political construction of law.  Law is understood as self referencing, as sufficient of itself to suggest its own meaning and the obligations imposed by its command.  Law expresses both authority and its operation.  Law both constitutes the state and the legitimating form through which the state acts.  Outside of law there is nothing but behaviors, habits, morals, and other systems that may be potential objects of management through law.  Not law, these rule systems are not privileged--unless they are superior to law, in which case, law is ruled thereby and must reflect its premises and substantive framework.
Yet that simplistic view, as complex and nuanced as its various theoretical expositions have become over the course of the last two centuries)  masks the possibility of inversion inherent in the law-state and law-norm framework on which the "rule of law" reality has been built.  Even conceding that law can be understood  in its positivist and instrumentalist form, it is also possible to understand that, perhaps more often than not the reverse is also true:  rule of law might as usefully by understood as social will through law, providing the formal structure within which customary law can be embedded and practiced within and beneath the law-state.  Law serves as a formal construction through which  the customary framework of social organization can be furthered.  Law is a veil that provides a sometimes thin cover over, and protection for, the implementation of social norms.   "The law creates this legal infrastructure which is then used in various informal ways to intimidate, coerce, harass and persecute."  Ali Dayan Hasan, senior South Asia researcher for Human Rights Watch, quoted in Karin Brulliard, "Both Sides in Blasphemy Case Pressure Zardari," The Washington Post, Nov. 26, 2010 at A6. A recent episode from Pakistan serves as a useful illustration of this point, one lost on the reporters and actors who have been playing important roles in the progress of events. The specific context is blasphemy, but the insight is broader. 

Pakistan is a country that occupies a dynamic space somewhere between transnational theocratic constitutionalism. See, Larry Catá Backer, Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering. Indiana Journal of Global Legal Studies, Vol. 16, No. 1, 2008; Islamic Law and Law of the Muslim World Paper No. 08-44. Pakistan the best of both worlds but appears instead to have embraced some of their excesses.It is a state whose political order is derived from a divine source, to be exercised within limits prescribed by God, as understood by Muslims, it is organized to observe "principles of democracy, freedom, equality, tolerance and social justice" Pakistan Constitution, Preamble.  Pakistan is meant to constitute itself as a territorially defined political space within which "the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah" but also where "adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures." Id. These sentiments provide the foundation for the law structure of the Pakistani state apparatus.Islam is the state religion.  Pakistan Constitution, art. 2. Simultaneously, "the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan." Id., art. 4(1).  The protection of rights to practice, profess and propagate religion are broad (Pakistan Constitution Art. 20), "[s]ubject to law, public order and morality."  Id.

The nature of that limitation is made clearer within the criminal law of Pakistan.  Pakistan's criminal code, with relevant portions enacted well before independence and the constitution of the modern Pakistani state, provides a law basis for the management of this law-state structure. 

PakistanPenal Code
295. Injuring or defiling place of worship, with Intent to insult the religion of any class:
Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction damage or defilement as an insult to their religion. shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

295-A. Deliberate and malicious acts intended to outrage religious feelings of any class by insulting Its religion or religious beliefs:
Whoever, with deliberate and malicious intention of outraging the 'religious feelings of any class of the citizens of Pakistan, by words, either spoken or written, or by visible representations insults the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.

295-B. Defiling, etc., of Holy Qur'an:

Whoever wilfully defiles, damages or desecrates a copy of the Holy Qur'an or of an extract therefrom or uses it in any derogatory manner or for any unlawful purpose shall be punishable with imprisonment for life.
295-C. Use of derogatory remarks, etc., in respect of the Holy Prophet:
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.

296. Disturbing religious assembly:
Whoever voluntarily causes disturbance to any assembly lawfully engaged in the performance of religious worship, or religious ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

297. Trespassing on burial places, etc.:
Whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or on any place of sculpture, or any place set apart for the performance of funeral rites or as a, depository for the remains of the dead, or offers any indignity to any human corpse or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

298. Uttering words, etc., with deliberate intent to wound religious feelings:
Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both.

298-A. Use of derogatory remarks, etc., in respect of holy personages:
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 any wife (Ummul Mumineen), or members of the family (Ahle-bait), of the Holy Prophet (peace be upon him), or any of the righteous Caliphs (Khulafa-e-Rashideen) or companions (Sahaaba) of the Holy Prophet (peace be upon him) shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

298-B. Misuse of epithets, descriptions and titles, etc., reserved for certain holy personages or places:

298-C. Person of Quadiani group, etc., calling himself a Muslim or preaching or propagating his faith:
Any person of the Quadiani group or the Lahori group (who call themselves 'Ahmadis' or by any other name), who directly or indirectly, poses himself as a Muslim, or calls, or refers to, his faith as Islam, or preaches or propagates his faith, or invites others to accept his faith, by words, either spoken or written, or by visible representations, or in any manner whatsoever outrages the religious feelings of Muslims shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
Whatever one thinks of the merit of provisions like these, it appears clear that the structure of these prohibitions provide the exclusive context within which inter-religious conflict can me mediated through the criminal law.  It serves the traditional purposes of law as positive and instrumental.  Beyond its proscriptions, the state would appear to have an obligation to protect all parties.  But the reality of "law" in Pakistan appears to paint a different picture, one in which the law of the Penal Code is merely the first layer of a multilayer system of law for which the penal code provides the context and language but neither its substance nor its limit. The collusive element of the blasphemy law provides both its extraordinary popular support and shapes the "rule" by which the "law" is constructed and implemented.

And thus the story of Asia Bibi. As related by Shabaz Bhatti, a member of the Roman Catholic faith community and Pakistan's Minister of Minorities Affairs
He said that according to his investigation, Bibi drew the ire of fellow farmhands after a dispute in June 2009, when they refused to drink water she collected and she refused their demands that she convert to Islam.
The women reported the incident to a cleric, who concluded that Bibi had committed blasphemy and then gathered a crowd that forced her to the police station, Bhatti said. He said that the police did not investigate and that a court, without hearing Bibi's full account, handed down a death sentence four months later.
Bhatti said he has concluded that Bibi, a mother of five who has been in prison 17 months, never criticized Islam and is innocent. . . .
Bibi's husband and children are now in hiding, Bhatti said. "We are frightened," Bibi's husband, Ashiq Masih, a brickmaker, told reporters in Islamabad on Wednesday. "We are receiving threats, especially from clerics.  (Karin Brulliard, "Both Sides in Blasphemy Case Pressure Zardari," The Washington Post, Nov. 26, 2010 at A6).
But even the mediation of law does not suggest the process of law in the case of blasphemy.  Rather, the law-state framework provides  the structure within which customary norms are given space to be applied.  "People accused of blasphemy are frequently so threatened that they must leave their towns, and several convicted blasphemers have been killed in jail, said Ali Dayan Hasan, a researcher for Human Rights Watch. " Id.  And, indeed, the process of law  moves rapidly from the sophisticated structures of 20th century law-state sensibilities to other forms.  "Though police are supposed to investigate cases, lawyers say that in practice, accusers must do little more than gather an intimidating group to lodge an allegation with police, who typically make an arrest to avert an uprising." Id.

One gets a better sens of this from another version of the story reported in the Western press:
Asia Bibi was convicted of insulting Islam's prophet, Mohammed, while  working in a field with several Muslim women in a village southwest of Lahore.
She told them the Quran was "fake" and made comments about one of  Mohammed's wives and about his health in his final days, the police complaint  against her said.
She said that "the Quran is fake and your prophet remained in bed for one  month before his death because he had worms in his ears and mouth. He married  Khadija just for money and after looting her kicked her out of the house," local police official Muhammad Ilyas told CNN.

The initial complaint against Bibi was filed on June 14, 2009, by a  Muslim cleric, Ilyas said.
Police say the Muslim women reported the incident to Qari Muhammad Salim,  who later filed the police report. The cleric claims Bibi confessed to him and  apologized. (Reza Sayah and Nasir Habib, Christian woman sentenced to death for blasphemy in Pakistan, CNN, Nov. 11, 2010).
The story is interesting as much for what was not done as well as for what was.  The story focuses on  the issue of Bibi's fault--did she blaspheme?  Completely ignored, of course, was the criminal offense of the Muslim women under Criminal Code Section 295A and Section 298.  As reported by the Telegraph, "The court heard she had been working as a farmhand in fields with other women, when she was asked to fetch drinking water. Some of the other women – all Muslims – refused to drink the water as it had been brought by a Christian and was therefore "unclean", according to Mrs Bibi's evidence, sparking a row."    The insult off uncleanliness has old roots among ethnic majorities within the dar al Islam.  It was known, for example, in the Ottoman Empire, for local communities to demand that Jewish residents stay indoors when it rained for fear that their uncleanliness would wash onto Muslims.  The comments of the farm women were meant deliberately to insult the religious sensibilities of Ms. Bibi (with deliberate intent to wound religious feelings, Sec. 298)--an easy prejudice expressed ion the grossest way.  These Muslim women also insulted " the religion or the religious beliefs" of Ms. Bibi (Section 295A).  Yet none of that mattered.  It is the social norms of the community, not the legal norms of the law-state, that found expression through the apparatus of state.  
Where, then, within this complex, can one find the law-state?   It, like, like the formal structures of law, are firmly anchored within national political and juridical institutions.  Pakistan appears as a bifurcated state.  At the local level social norm systems take precedence, even if they are now forced to express their structures through the language of the law codes.  This is the realm of custom, of the precedence of religion, religious law and institutions.  It is the space where custom  prevails, however expressed. At the national level law systems are well maintained--at least as a formal matter. Functionally the Pakistani law-state must exist in a constant state of compromise with the social norm state atop which it sits.  It is for that reason that Ms. Bibi may be pardoned but never vindicated.  And it is even more likely that her fate will be tied to her willingness to accept exile than that of her neighbors to accept her.  But that is precisely the thrust of the social norms within  which she fell.  It is likewise for that reason that the Muslim women who insulted Ms. Bibi's religion will never feel the sting of the Pakistani Criminal Code.   

Indeed, this is not a new development in Pakistan, nor one whose double purpose is unknown. The very minister who is now reviewing the Asia Bibi affairs rose to power in part on the basis of opposition to the double use of the blasphemy law.  "Shahbaz Bhatti founded the Christian-inspired APMA movement in 1985. One of his first battles was against the law on blasphemy, introduced in 1986 and used to repress religious minorities in the country, with particular focus on the Christian community, the one hardest hit by the new norm.Shahbaz Bhatti, a Catholic, is the new minister for the defense of minorities, Asia News,. April 11, 2008.  But as the incarnation of a portion of the Pakistani law-state, Bhatti's fidelity is to the formal structures of the law-state.  And that requires a mediation between the law-state and the social-norm state  of Pakistan.  
The Federal Minister stated that Quaid-i-Azam Muhammad Ali Jinnah had given a clear vision for a democratic, moderate and progressive Pakistan, where minority and majority would live in harmony, equality and peaceful co-existence under the one green and white national flag.   “Minorities are sons of the soil, Pakistan belongs to them and they belong to Pakistan, they have made sacrifices and shed their blood for the creation and development of Pakistan”, Shahbaz Bhatti further said that the white in the Pakistani flag represents the minorities and to protect the life and property of the minorities is the constitutional obligation of the Government and therefore we cannot remain silent spectators on the problems  of religious minorities. (Federal Minister for Minorities condemns Announcement of Reward to Kill Asia Bibi, Online).
He may decry the application of norm-state values, especially to members of his own faith community, but he will serve as the instrument of its application in his role as representative of the state and thus indirectly of the substantive norms of the majority community  expressed through Pakistan's formal law strictures, even as he seeks to use the ultimate power of the law-state to militate the effects of the application of the social-norm State of Pakistan through the power of the law-state of Pakistan. For even as the law-state seeks to manage its population through its own system, the norm-state will apply its own rules, rules consonant with the norm system to which even the State has agreed to submit.    "Minister for Minorities Mr Shahbaz Bhatti has strongly condemned the announcement of reward for the killing of Asia Bibi by a Cleric in Peshawar. The Minister said the announcement made is unethical, immoral, unjust, and irresponsible which should be condemned in the strongest possible manner, as no one had the right to issue the degree of killing against anyone, he further stated that this is not a jungle and we will not allow jungle rule. "  Id.  Which of the states of Pakistan will prevail remains to be seen.  

But the point is still quite powerfully made through the dual centered law regime of blasphemy on Pakistan--the ideology of rule-of-law-states belies the reality of its embedding within norm systems that exist within the state and in the form of religion and ethnic communities, across national borders. To understand Blasphemy within rule of law state systems, one must understand the way in which multiple systems of law-norms co-exist, sometimes unpleasantly within any territorially constituted political unit. Yet it is important to understand that this phenomenon is not merely a function of the operation of Islam through law-states in Asia, or the problem of mediating religion and ethnic disputes through the state system.  Rather, blasphemy provides a window on a larger phenomenon: law is neither the beginning nor the end of regulatory mechanisms within governance systems.  Even within states, governance operates through multiple systems that assert authority in a variety of ways.  The ability to identify and mediate between them, to harmonize their operation, to the extent possible, will mark the frontiers of "rule of law" in this century.

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