Courtesy: Dr. Mohamed Boodhun

Source: Friday Times

n a recent meeting chaired by Prime Minister Nawaz Sharif, Pakistan’s civil and military leadership unanimously discussed plans to introduce a legislation to ban ‘takfir‘ in order to combat rising sectarian violence – a practice of excommunication, one Muslim declaring another Muslim ‘kafir‘ or an apostate.

While the Government’s commitment to the National Action Plan (NAP) (a coordinated action plan established by the Government of Pakistan in January 2015 to crackdown terrorism following the Peshawar school attack) has been exemplified as a result of the Interior Minister Chaudhry Nisar Ali Khan’s press briefings on the state’s intention to criminalise ‘takfir‘; it appears incomprehensible how such legislation would be practicable in countering sectarian violence in the light of Pakistan’s current legal apparatus.

The 1973 Constitution of Pakistan, Chapter 5, Article 260(3) defines “Muslim” and “non-Muslim” as:

“… (a) “Muslim” means a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified finality of the Prophethood of Muhammad (peace be upon him), the last of the prophets, and does not believe in, or recognize as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad (peace be upon him); and

(b) “non-Muslim” means a person who is not a Muslim and includes a person belonging to the Christian, Hindu, Sikh, Buddhist or Parsi community, a person of the Quadiani Group or the Lahori Group who call themselves ‘Ahmadis’ or by any other name or a Bahai, and a person belonging to any of the Scheduled Castes.”

To state that the proposed legislation will not cover Christians, Hindus, Sikhs, and Parsis would be to underscore the obvious. Additionally, the definitional discernment between “Muslim” and “non-Muslim” in the Constitution of Pakistan is merely a starting point for the ostracisation of certain offshoots of Islam from the proposed legislation, which have conventionally been placed outside the boundaries of Islam as a normative practice, but nonetheless consider themselves Muslim. The evident branches of Islam that the Constitution of Pakistan is underlining as non-Muslim are Ahmadis and Bahais, especially Ahmadis who have been singled out in Pakistan Penal Code 1860, Article 298-C as:

“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.”

To fathom the Government’s intention of tackling sectarian violence is reserved for specific privileged minority groups of Islam, such as Shi’a that are considered theoretically closer to Sunni tradition, is rather unintelligible as well since Pakistan Penal Code 1860, Article 298-A, makes way for persecution of and thus an arguable marginalization of Shi’as from the proposed legislation stating that:

“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.”

Therefore, Shi’a who do not confirm to Sunni views with regards to the traditional Caliphate and companions of the Holy Prophet (peace be upon him), could potentially fall outside the remit of “Muslim” and thereby be inadvertent non-beneficiaries of the proposed ‘takfir‘ regulations.

Consequently, whereas the Government’s announcement to legislate ‘takfir‘ is a progressive step to tackle sectarian violence in Pakistan, the current legal framework would make it unfeasible to implement a legislation that is founded upon subjective assessment of “Muslim” and “non-Muslim unless distinct categories of “Muslim” are added under the Constitution of Pakistan – any such step, however, could have an unintended consequence of promoting religious discrimination and thereby sectarian violence.

Likewise, success of such legislation can be challenged at the outset as it would exclude “non-Muslim” religious minorities who have been subjects of targeted violence on a mass scale. Whilst the Shi’a community has been the main target of sectarian violence, other sects also continue to be victimized. The US Commission on International Religious Freedom statistics indicate that sectarian attacks resulted in nearly 3,000 casualties between the periods of January 2012 to June 2014, out of which approximately 1,050, that is about 30%, can be attributed to the non-Shi’a religious minorities such as Christians, Ahmadis, Sufis, Hindus, Sikhs and other groups.

It can be further argued that provisions that criminalise ‘takfir’ are already prevalent in the current legal structure of Pakistan as in theory Pakistan’s Blasphemy Laws protect all religions – Article 295 of the Penal Code of Pakistan prohibits destroying, damaging or defiling any place of worship and insulting the religion of any class of persons; hence any further legislation on the subject would be redundant unless an overhaul of the existing statues takes place that endorse the ‘takfiri‘ mind-set.

While we must not undermine the optimism of our civil-military leadership to confront sectarian violence, it is one thing to make press statements and another to frame an educated statutory framework that will yield positive results in reducing sectarian attacks. In the words of Dick Cavett “sloppy language leads to sloppy thought, and sloppy thought to sloppy legislation” – instead of piling legislation over legislation, it is perhaps time that the long due modifications to the Blasphemy Laws took place, ideally to what they were before the ascendancy of General Zia-ul-Haq to power.

– See more at: http://blogs.thefridaytimes.com/legislating-takfir-and-combating-sectarian-violence/#sthash.CmCUJuha.dpuf