(Pix from "Pakistani Christian woman Asia Bibi may flee Pakistan amid Islamist threats after blasphemy acquittal," CBS News 8 Nov. 2018)
Since 2010, I have been following the quite ruthlessly interesting (on the level of bloodless theory), and quite savagely tragic (on the level of the individual and the local community), saga of the way that the Pakistani dar al-Islam has sought to define itself by reference to the "other," in this case a Christian peasant woman Asia Bibi (Ruminations 35: Blaspheming Law; Democracy Part XXII--Vox Populi in Pakistan and Substantive Values in Constitutionalism). Now that tragedy appears to be nearing its end--with the determination by the Pakistani supreme court that overturned Bibi's blasphemy conviction (here), the resulting expression of outrage that the rule of Islamic law had been in consequence defiled (here). "In a statement shortly after the hearing, Khadim Hussain Rizvi, head of the hard-line Sunni group Tehreek-e-Labaik Pakistan, said no blasphemer could escape punishment regardless of the verdict. Anyone who attempts to save a blasphemer would face the wraith of the public, he said, implying vigilante justice could supplant the court’s decision if the appeal goes in Asia Bibi’s favor." (here). That in turn produced the not unanticipated rush to effect the evacuation of Bibi and such of her family as it was possible to transport to the West (here, here, here, here, and here).
The personally tragic has been easy enough to document. That personal tragedy is the end result of a slow motion of grinding of the individual within the relentlessly self interested gears of multiple legalities that converged on this woman. This started in the most banal of ways--an invective laced dispute among individuals at a communal physical intersection point--a place for drawing water--that also exploded along the fault lines of a conceptual point of intersection--religion. The initial interaction was banal in the ways that such inter-sectional exchanges tend to be everywhere, including United States for example (e.g., At
the Front Lines of Contemporary Intersectionality: A Side Dish of Life
in a Fast Food Restaurant ("'F*** you, you white piece of s**t': Burger
King employee is FIRED after shocking video shows her unleash racist
rant against a HISPANIC couple")). And it ended with her conviction for blasphemy; "it sparked two successive assassinations of top government officials as well as a hanging" (here), the strengthening of religious parties, the eradication of the Christian community in her village, and reports of her fleeing Pakistan for the West (perhaps in the Netherlands here) to avoid the full effect of the penalties assessed through the application of non-state rule of law systems (here).
The tragedy of theory has been less often considered. Mostly, that is understood in the "clash of civilizations" mode, premises on the notion that there is only one superior domain for democratic expression within rule of law structures, and that it is to the state that all communities must look for the protection and implementation of that view. Yet at its heart are the limiting cases for both democratic theory (and its contradictions), popular reaction to decisions thought unjust (in this case the decision to void the blasphemy charges), and the intersections of law within multiple overlapping governance spaces. Yet it is that very perspective, so dear to Western intellectuals that serves as the foundation for the tragedy of theory that the personal tragedy of Asia Bibi represents. This post considers this idea in the reflections that follow.
At the level of theory, the personal tragedy of Asia Bibi illuminates quite starkly the fracture that appears to define the fundamental ordering characteristics of the rule of law, legalism, and the democratic will in this first stage of the post-state global order. Asia Bibi effectively sits at the cross roads of three quite distinct ordering of rule of law. The first is national, and in the case of Pakistan, a mixed secular-religious system. Within it the state of Pakistan has sought to manage a decreasingly multi-religious and multi-ethnic society according to law, but one that privileges the sensibilities and normative approaches of a favored form of Islam in that construction. The second is international. Pakistan is as much a captive and beneficiary of the deeply embedding normative global system that emerged after 1945. It has profited famously from behaving within its discursive and normative parameters—to the extent those with an interest in disciplining such conformity have cared to enforce such parameters. These networks of human rights and economic law and norms have anchored Pakistan within the global discourse on rule of law, democracy and basic human and property rights, but ones that do not privilege a particular religious perspective. The third is religious. Pakistan sits at the center of one of the two great (and contending) pillars of Islam. Islam is understood here not merely as a religious community in the Western sense, but as a comprehensive system of law and norms that is both self-referencing and self-enclosed. It is one that might overlap in terms of effects with other systems, but does not require law other than its own to order and manage quite sophisticated economic, political, and social communities. But Pakistan is also home to communities who may also adhere to the rule of law systems of other religions, religions whose legal mandates much be subordinated to the privileged rule of law systems of Islam.
The convergence of these three rules of law domains produce the dissonance that makes the personal tragedy of Asia Bibi also a tragedy of theory. The marker of that tragedy is fracture. Where once a community of states were constituted to develop a unifying (though flexible) set of core principles that would drive the unification of rule of law premise and the construction of normative elements of constitutional systems (e,g., here) now multiple communities have arisen with equal and comprehensive pretensions to control and management of individuals, communities, states, and inter-state activities. The result are the movement toward fugue states for political communities like Pakistan. To remain viable Pakistan must simultaneously effect a fidelity to the premises of rule of law and democratic legitimacy of an international community, and a greater fidelity to the expression of democratic will (in the streets” as well as to the pronouncements of those who drive religious rule of law systems.
The fugue state is the only possible way one territorial community can remain viable in the face of multiple simultaneous and incompatible assertions of rule of law and democratic normativity. The fugue state permits Pakistan to adhere to Western values in its outbound relations—that is to walk away from its Islam—when it interacts with the international community that requires conformity to global standards (at least as its members would see it interpreted). At the same time it permits Pakistan to adhere to national values in its political relations –that is to walk away from internationalism and strict religious rule of law premises (of the privileged sect at least) to continue the post 1947 project of constructing a viable political entity (Pakistan) from out of the bits and pieces of the South Asian sub-continent from which it was cobbled. And at the same time, the fugue state permits Pakistan to adhere to the rule of law of Islam as expressed locally—that is to walk away from both national aspirations and internationalism in the construction of a normatively legitimate state in favor of the older and more powerful ties of the dar al-Islam as expressed locally. The resulting fracture produces uncertainty in law. Yet perversely perhaps, it also produces the certainty that power relations and bargaining will effectively determine the outcome of collisions among these three rule of law domains. But for states like Pakistan, it also produces a contingency that is hidden behind aggressive and belligerent action by a state apparatus caught in multiple middles.
That dissonance is fueled by an insistence on the embrace of particular forms of democratic expression that themselves augment the likelihood of domain clashes between which individual tragedy will likely increase. I have considered that aspect—the role of democratic theory in the construction of battle grounds for domain collisions in the context of Asia Bibi in other writing (“The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective: Religion, Rule of Law, and Democratic Organization of Religion Privileging States,” Cornell Journal of International Law 48:51-104 (2015)).
The tragedy of theory has been less often considered. Mostly, that is understood in the "clash of civilizations" mode, premises on the notion that there is only one superior domain for democratic expression within rule of law structures, and that it is to the state that all communities must look for the protection and implementation of that view. Yet at its heart are the limiting cases for both democratic theory (and its contradictions), popular reaction to decisions thought unjust (in this case the decision to void the blasphemy charges), and the intersections of law within multiple overlapping governance spaces. Yet it is that very perspective, so dear to Western intellectuals that serves as the foundation for the tragedy of theory that the personal tragedy of Asia Bibi represents. This post considers this idea in the reflections that follow.
At the level of theory, the personal tragedy of Asia Bibi illuminates quite starkly the fracture that appears to define the fundamental ordering characteristics of the rule of law, legalism, and the democratic will in this first stage of the post-state global order. Asia Bibi effectively sits at the cross roads of three quite distinct ordering of rule of law. The first is national, and in the case of Pakistan, a mixed secular-religious system. Within it the state of Pakistan has sought to manage a decreasingly multi-religious and multi-ethnic society according to law, but one that privileges the sensibilities and normative approaches of a favored form of Islam in that construction. The second is international. Pakistan is as much a captive and beneficiary of the deeply embedding normative global system that emerged after 1945. It has profited famously from behaving within its discursive and normative parameters—to the extent those with an interest in disciplining such conformity have cared to enforce such parameters. These networks of human rights and economic law and norms have anchored Pakistan within the global discourse on rule of law, democracy and basic human and property rights, but ones that do not privilege a particular religious perspective. The third is religious. Pakistan sits at the center of one of the two great (and contending) pillars of Islam. Islam is understood here not merely as a religious community in the Western sense, but as a comprehensive system of law and norms that is both self-referencing and self-enclosed. It is one that might overlap in terms of effects with other systems, but does not require law other than its own to order and manage quite sophisticated economic, political, and social communities. But Pakistan is also home to communities who may also adhere to the rule of law systems of other religions, religions whose legal mandates much be subordinated to the privileged rule of law systems of Islam.
The convergence of these three rules of law domains produce the dissonance that makes the personal tragedy of Asia Bibi also a tragedy of theory. The marker of that tragedy is fracture. Where once a community of states were constituted to develop a unifying (though flexible) set of core principles that would drive the unification of rule of law premise and the construction of normative elements of constitutional systems (e,g., here) now multiple communities have arisen with equal and comprehensive pretensions to control and management of individuals, communities, states, and inter-state activities. The result are the movement toward fugue states for political communities like Pakistan. To remain viable Pakistan must simultaneously effect a fidelity to the premises of rule of law and democratic legitimacy of an international community, and a greater fidelity to the expression of democratic will (in the streets” as well as to the pronouncements of those who drive religious rule of law systems.
The fugue state is the only possible way one territorial community can remain viable in the face of multiple simultaneous and incompatible assertions of rule of law and democratic normativity. The fugue state permits Pakistan to adhere to Western values in its outbound relations—that is to walk away from its Islam—when it interacts with the international community that requires conformity to global standards (at least as its members would see it interpreted). At the same time it permits Pakistan to adhere to national values in its political relations –that is to walk away from internationalism and strict religious rule of law premises (of the privileged sect at least) to continue the post 1947 project of constructing a viable political entity (Pakistan) from out of the bits and pieces of the South Asian sub-continent from which it was cobbled. And at the same time, the fugue state permits Pakistan to adhere to the rule of law of Islam as expressed locally—that is to walk away from both national aspirations and internationalism in the construction of a normatively legitimate state in favor of the older and more powerful ties of the dar al-Islam as expressed locally. The resulting fracture produces uncertainty in law. Yet perversely perhaps, it also produces the certainty that power relations and bargaining will effectively determine the outcome of collisions among these three rule of law domains. But for states like Pakistan, it also produces a contingency that is hidden behind aggressive and belligerent action by a state apparatus caught in multiple middles.
That dissonance is fueled by an insistence on the embrace of particular forms of democratic expression that themselves augment the likelihood of domain clashes between which individual tragedy will likely increase. I have considered that aspect—the role of democratic theory in the construction of battle grounds for domain collisions in the context of Asia Bibi in other writing (“The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective: Religion, Rule of Law, and Democratic Organization of Religion Privileging States,” Cornell Journal of International Law 48:51-104 (2015)).
Perhaps Pakistan shows us the face of popular democracy triumphant, the "day after." The recent popular execution of former Punjab governor Salman Taseer, a high government official opposed to the severe application of the blasphemy laws in the Islamic Republic, reminds us that popular democracy, and the will of the people, raises fundamental issues of sovereign will and universal values with respect to which no consensus appears likely.
The repercussions have been severe and overtaken by the mass democratic mobilizations that have emerged around both the blasphemy law and governmental suggestions that it might be softened for infractions against Islam (no one speaks of the effects of blaspheming or insulting Christianity, Baha'i, Hinduism, Buddhism, Judaism or the like), and popular action against government officials who support this change in the blasphemy laws (or defend the Christian peasant women condemned to death for insulting Islam). "The blasphemy laws have been in the spotlight since the murder last week of Salmaan Taseer …who was shot by a member of his security detail. The shooter, Mumtaz Qadri, later said he killed Mr. Taseer because of the politician's opposition to the laws. Mr. Taseer was a member of the Pakistan People's Party, which runs the governing coalition, and was close to President Asif Ali Zardari."
The democratic aspects of the conversation about the blasphemy laws, the condemnation of the Christian peasant under its terms and the execution of a political figure opposed to the law that led to that condemnation is well in evidence in Pakistan, following a pattern of popular demonstration widely and positively regarded recently when effected against the governments of Egypt and Tunisia. The democratic process has been invoked to ensure that while religion can participate in politics, it is insulated from attack ostensibly on religious grounds. The same, was true, and to good political effect, of Catholicism deployed against the Marxist-Leninist regimes in Poland, especially in the 1980s, and has been used effectively as an intermediary in Cuba.
Participation and privilege invert mass democracy from object to method. This was much in evidence in the use of the techniques of direct democracy to protect religion from the democratic engagement, which is the tool of that effort. About 40,000 people rallied in Pakistan's eastern city of Lahore on Sunday in the latest protest against proposed reforms of a controversial blasphemy law, police said.
Religious groups have held protests in several Pakistani cities since former Punjab governor Salman Taseer vowed to amend the law, that was recently used to sentence a Christian woman to death Taseer's stance enraged the country's increasingly conservative religious base and he was assassinated on January 4 by his own security guard, who has said he killed the governor over his support for reform. Under intense pressure from religious parties, Pakistan's government has since said it had no intentions to amend the law. Demonstrators from religious parties Jamaat-e-Islami, Jamiat Ulema-e-Pakistan and Jamaat-ud-Dawa, a charity linked with 2008 Mumbai terrorist attacks, held banners in support of Mumtaz Qadri -- the police commando who shot dead Taseer. Participants chanted slogans including "Free Mumtaz Qadri," "We are ready to sacrifice our lives for the honour of Prophet Mohammad" and "Changes in blasphemy law not accepted." An AFP reporter saw activists carrying effigies of Pope Benedict XVI and Pakistani minorities affairs minister Shahbaz Bhatti shouting slogans "Allah-o-Akbar."The difficulty of reconciling the application of principles of democratic expression with the operationalization of underlying normative systems expressed through the legitimating methods of rule of law principles pose the gravest threats to the movement toward globally based rule of law and democratic principles in the constitution of political communities composed of diverse elements. It suggests the weak space where the theory of the construction of an institutionally unified diverse society--the desperate mission of the West (as they confront the realities of these societies within their own territories) cannot be underestimated. The weakness produces the sort of fugue state that eventually weakens the state and reduces its utility as an institutional space within which order may be effectuated.
The popular mobilizations of sovereign will suggest at least two issues. The first touches on the nature of constitutional democracy and the role of the popular sovereign. Westerners, and especially Americans, tend to view popular sovereignty in a peculiar way. It is that great spark that extinguishes one set of government and imposes on itself another. Thereafter, and until it acts again, it is constrained by the government it has created, and acts only indirectly--in the election of individuals who represent the popular will. Sometimes both the popular sovereign and its representatives are constrained by substantive norms that are beyond their power to overcome. For example, slavery could not be re-instituted in the United States, the central value of human dignity could not be overcome in Germany, and socialist values could not be rejected in China, without destroying the constitutional order itself.
But an older constitutional tradition does not recognize constraints on popular will other than those self-imposed. In that case, either the people, through plebiscite or through their legislature. In that case, democratic mass mobilization on the streets, or pressure on representatives (acting as the proxy for the popular will) could impose a substantive regime that reflects the current will of the masses. In that case, the popular will could impose anything from the political disability of inhabitants because of religion (France under the Vichy regime), and their segregation and extermination (Nationalist Socialist Germany) as long as the process was lawful and reflected the majority will.
Pakistan suggests an older face of democratic constitutionalism, one in which process merely directs the mechanics of the expression of mass democratic will without constraint. This older approach remains, in vestigial form, in constitutions that may be easily amended by popular action.
* * *
The second issue focuses on social will—preserving customary systems against even the limits and constraints of rule of law based substantive limits. It might be possible to suggest an alternative analytical approach. The second issue that the Pakistani mobilization suggests is not so much mass democratic instincts run riot, but the critical role of the masses in guarding the most fundamental normative structures of the constitutional systems under which it has consented to be governed. "Speakers at the Karachi rally sought to justify Mr. Taseer's assassination, saying the killer fulfilled his obligation as a Muslim." The people of Pakistan have declared the fundamental Muslim character of the state and its institutions.
That is not merely an incantation fetish but a shorthand for a set of substantive values and approaches to law, governance and relationships among people grounded in the normative rules of Islam. Jayshree Bajoria notes: "Establishing Islam as the state ideology was a device aimed at defining a Pakistani identity during the country's formative years, wrote Haqqani." But that conflict does not suggest the arbitrariness of the actions so much as the somewhat large abyss separating the normative values of constitutional societies within and outside of Pakistan (or at least some of them). Looking at the popular mobilizations in this respect, one can see them as a force for the protection of the organizing values on which the state is founded against the efforts to undermine that normative framework by the importation of values and sensibilities that are alien to and may threaten the normative structure of Islamic Pakistan, at least as the masses mobilized understand that. We can still goad the butchers on from the fences. For those of us who call ourselves liberal Muslims there is always the option of turning away and holding our noses." If Islam defines the state’s normative parameters as well as its social, cultural, and political values, then popular mobilizations defending it are legitimate and necessary for the state to remain true to its normative constitutional constraints.
However, this also suggests a wide range between those values and the normative constitutional values emerging from international organizations and recognized, to some extent, by international law. Instead of arbitrariness, this range of values indicates a large gap between the normative values of constitutional societies in and outside of Pakistan. Popular mobilizations then may protect the state’s organizing and foundational values. This may also protect against efforts to undermine this normative framework by importing values that may threaten Islamic Pakistan’s normative structure. This is at least how the mobilized masses understand the conflict. Furthermore, expressions of mass will are important in defining a popular sovereign’s belief system. This is disheartening for Westerners and those looking to expand the reach of value systems grounded in international consensus. The internationalist master’s tools are being used to dismantle the master's house and rebuild it in another image. Alternatively, it suggests a need for a limit on legitimizing popular and mass mobilizations. But managing and constraining popular democracy would undermine or redirect the political movement’s trajectory, now over two hundred years old.
A potentially greater and immediate issue is that a common language about democracy, in fact, divides rather than unites the various systems purporting to adhere to some or another version. For example, speakers referring to “democracy”, “democratic values”, “vox populi”, and “substantive values” to manage masses do not understand or hear each other. People may use the same words and mean different things. Furthermore, the West's fixation with using the right words—terms to memorize and recite, but not analyze—advances appearances, but also fails to meet its purpose.
As a result, some suggest Westerners should understand displays of popular will as signs of weakness in Pakistan's democracy. Ironically, this analysis can also lead to the opposite conclusion. Popular mobilizations may serve as a sign of Pakistan’s strength as a direct democracy. However, the values that democratic movement represents are not necessarily compatible with the West’s values. (Ibid., 72-78, footnotes omitted).
This fugue state nicely characterizes the personal saga of Asia Bibi. A personal disputes among village women is escalated by transforming the personal (animosity among peasants) into a form of institutional and representative interaction (the insult by Christianity against Islam) the consequences of which would have to be performed on the body of the offending representative of Christianity in the village (the woman). That transformation was possible because of the alliance of villagers with the local religious power structure invoking ancient rule of law and expressions of popular majority cultural premises and expectations against the representative of a marginalized sect with no religious counter institution to protect her. In the absence of a vigorous Christian rule of law institutional apparatus in Pakistan (contrast India and the inter-institutional contests among Hinduism and Islam) the Christian peasant woman (notice the deliberate use of essentializing terms int a context in which all actions are grounded in the premise that essentializaiton is a necessary predicate to the application of rule of law notions) can rely only on the apparatus of the state. Yet the apparatus of the state is not in a position to defend her, because to do so would require defending her, in part against the state itself.
The consequences were predictable--the ability of the religious apparatus to use the state as a means for operationalizing its governance strictures through law--not religious law, but the comprehensive law of the state (which are premised on the protection of all individuals). That in turn produced a dissonance between this state-religious coupling, and the local-national coupling of law systems necessary to legitimate the authority of state actors both internally and in the global community. The result was the oscillation between application of the law to suit religious rule of law notions and expressions of popular powe rin the streets, followed by calls to apply either national legal standards, or those derived form international consensus. These would be followed by pressure from the threatened domains--riots in the street, political pressure at the national level, pressure at the international level, meanderings through the courts, and then vacillation. And then exile--for Asia and her lawyer: "the lawyer was also forced to flee to The Netherlands last week but has not filed an asylum application to stay permanently in the country" (here).
These layered dissonance in turn produced a further dissonance between the legal structures of Pakistan (blasphemy laws) and the expectations of the community of nations reflected in international instruments and human rights principles. For Bibi that meant prison, a trial, the social extinction of her family and eventually of all Christians in the local community for religious lèse majesté: ""Our entire village swore on the Quran that she insulted the prophet but no one believes us and everyone believes her," said Aman Ali, one of the villagers. "Before this we liked the Christian families. We always got along. But now there is only anger." The village's remaining three Christian families have fled." ("Pakistani Christian woman Asia Bibi may flee Pakistan amid Islamist threats after blasphemy acquittal").
Omar Waraich, deputy South Asia director at Amnesty International, provided a useful expression of the frustrations from the perspective of a solicitous context based globalized norm perspective in an essay for the influential Washington Post:
The crisis has revealed, once again, a deepening fault line that runs through the country: For religious hard-liners, the law only matters as long as it conforms to their brand of Islam. When the two diverge, hard-liners such as Rizvi can bring pressure to bear by casting themselves as Islam’s true representatives.Asia Bibi, then, provides a contemporary face to the transformation of what had once been considered a forward progress toward a unified global normative system within which the operation of all other domains could be managed and mediated. But in place of coordination there is fracture, and the rise of rule of law domains that are neither bound by territory, nor restrained by the normative premises that have driven the international human rights superstructures since the 1940s. How this spattering of rule of law normative domains will now inter mesh--within and beyond territorial states inside and around which they operate--remains to be seen. For the moment
There is nothing that stirs more outrage in Pakistan than the charge of blasphemy. A mere accusation is enough to endanger someone’s life; in Bibi’s case, for example, there is no evidence that she ever made the statement of which she is accused. Judges are terrified of acquitting anyone, lest they become the next target. Defense lawyers have been killed in court. Witnesses and families have to go into hiding. The authorities, instead of standing firm in defending human rights, meekly give ground to those using violence to suppress those rights.
For Rizvi and his supporters, there is no higher calling than to avenge an alleged insult to the prophet Muhammad. In a country where all but three percent of the population is Muslim, he has managed to promote a narrative that insists Islam is perpetually imperiled. He calls on his followers to take matters into their own hands (which can include claiming the lives of others). To maintain this violent hysteria, his supporters always insist an offense was committed and that punishment must follow. They are never relieved to learn that the allegation was false, that the evidence doesn’t exist, and that the accused is innocent.
The passivity of the Pakistani authorities stands in stark contrast with its reaction to the rise of the nonviolent Pashtun Protection Movement, which has been demanding an end to extrajudicial killings and forced disappearances. The authorities have casually spurned the group’s demands, suppressed media coverage of its efforts, banned its peaceful demonstrations and detained its leaders. But when it came to Rizvi and his followers’ use of violence, they can seemingly get a free pass. (Pakistan’s anti-blasphemy movement is showing once again that real power lies in the streets).
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