The Fatwas That Can Change Pakistan's Blasphemy Narrative

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This article is the second in a five-part series on the untold story of Pakistan’s blasphemy law. Read the first part here.

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Pakistan's blasphemy law continues to sustain popularity and credence, with death being considered not only the most appropriate retribution for offenders, but the only one. This ideology is embraced most wholeheartedly when it comes to non-Muslims charged with blasphemy.

In my previous article when I spoke of the authentic Hanafi position on the permissibility of pardon for all blasphemers (Muslims and non-Muslims), the overwhelming response supported such a pardon for the likes of Junaid Jamshed (a ‘fellow Muslim brother who had offended some by mistake’) but held that the same principle of pardon could not be extended to non-Muslim offenders such as Asia Bibi.

This is largely reflective of the predominant public narrative on blasphemy.

Those who dissent – who speak of pardon and of waiving the death penalty, particularly for non-Muslims – are seen to be speaking from borrowed western ideologies or from a faith deemed too weak to be seen as a credible authority for the public. This has made it convenient for citizens to largely ignore those who plead for clemency, reducing these voices to a small, ineffective and irrelevant force, at best.

There was a time when this was not so – in fact, at one point, the most revered ulema (religious scholars) of South Asia had rallied together to defend the position that non-Muslims could not be awarded the death penalty for blaspheming.

This occurred in the late 19th century, when the South Asian ulema (the overwhelming majority of whom belonged to the Hanafi school of thought) were under ideological attack from the Ahl-e-Hadith.
 
The Ahl-i-Hadith originated as a movement influenced (and later funded) by the Wahabis of the Arabian Peninsula. This movement challenged the established Hanafi rulings on various issues, including blasphemy, alleging that these were based on opinion (ra`y) and Greek influenced analogy-driven reasoning (Qiyas), rather than on prophetic tradition (Ahadith).

In particular, they took exception to what they perceived as Hanafi lenience towards non-Muslims blasphemers (i.e. not prescribing a fixed death penalty and the provision for pardon) which they viewed as incompatible with Ahadith.

The exact position of Abu Hanifa (the founder of Hanafi School) that ends up being a source of contention for the Ahl-i-Hadith.

These criticisms roused the Hanafi ulema to an impassioned rebuttal.

Many of them targeted the Ahl-e-Hadith from within their own framework, deconstructing several Ahadith that formed the basis of these criticisms.

One such example is a monumental, 21-volume commentary, the I'la al-Sunan (the exaltation of the normative practices [of the Prophet]) by Maulana Zafar Ahmad ‘Uthmani, aiming to demonstrate, against the charges of the Ahl-i-Hadith, that the legal doctrines of the Hanafi school were in fact solidly based in traditions of the Prophet (PBUH).

Despite monolithic individual efforts of such stature, the most profound and relevant in terms of blasphemy, in my view, was Fath Al Mubeen Tanbeeh Al Wahabin (an explicit victory and a warning against the Wahabis).

This contains a fatwa (see below) that clearly states that a non-Muslim blasphemer cannot be killed unless he/she is habitual in the offense.

This last part is an important qualifier because it differentiates single acts of blasphemy from multiple and deliberate attempts, in fact from what is considered politically rebellious blasphemy.

The monumental fatwa endorsed by 450 scholars that shows that killing is not permissible unless adat (habituality) and kasrat (high frequency) of offenses are established.

The Ahl-e-Hadith, in challenging the Hanafi position on blasphemy presented a compilation of Ahadith which supposedly showed that blasphemous offenders (including non-Muslims) were in fact killed, and that therefore the Hanafi ruling was erroneous in this regard.

In the rebuttal, the fatwa pointed to an important flaw in the Ahle-Hadith argument — that the Ahadith thus presented all pertained to cases of repeat or habitual offenders.

 

There is not a single case where a non-Muslim was ever killed for committing a singular offense of blasphemy.

 

(Further, according to Imam Abu Hanifa, the death penalty is awarded in cases where it is categorised as siyasa (political) punishment, as opposed to sharia (divine) punishment, against elements openly rebelling against the Islamic state, using habitual blasphemy as a tool).

This legal position was approved and signed by no less than 450 of the most prestigious names in the Hanafi ulema, not just from South Asia, but around the world.

It is difficult to come up with a case study of a bigger systematic consensus (ijma) than this one. Hundreds of leading ulema of their time from South Asia have declared that non-Muslims cannot be killed for a single offense for blasphemy and their pardon is acceptable unless it becomes a habitual and high frequency offense.

But to really appreciate the magnitude of this ruling for a country like Pakistan, we must look to some of the key signatories of this stance — one of them being Ahmed Raza Khan Barelvi.

Many readers might know that Ahmed Raza Khan Barelvi was the founder of the Barelvi school of thought, one of the two predominant Hanafi groups, and the religious orientation to which groups like Sunni Tehreek subscribe. The founder is considered a Pir, Saint and a most revered figure, amongst his followers, and the general populace.

Ironically, four years ago this month, Punjab Governer Salman Taseer was assassinated by Mumtaz Qadri, for pleading for pardon for Asia Bibi.

Mumtaz Qadri, who is a devout Barelvi, would be surprised, I am sure, to learn that the founder and most respected figure of his sect had endorsed pardon for non-Muslim blasphemers, and the view that non-Muslims cannot be killed for a single offense of blasphemy.

Incidentally, the co-founder of the other of the two Hanafi groups (Deoband), Mahmood Hassan Deobandi – also known as the Sheikh al Hind – is also a signatory on the above.

A partial list of signatories fath al mubeen showing the endorsement of founder of Barelvi and Deobandi thought.

Both the founders of Deoband and Barelvi have endorsed the position that a non-Muslim cannot be killed for a single offense of blasphemy and therefore must be pardoned.

It is interesting to note that as per the Hanafi thought, we might be talking about no jail time/punishment for the first offense.

The Hanafi position clearly stating that first time offenders will only be warned, meaning that may not even be subjected to jail time.

Quite apart from this fatwa, there is another key scholar of immediate relevance in the minds and hearts of the nation who has echoed the same position as these revered names.

Maulana Maududi is a household name across the country and is the founder of Jamaat-e-Islami, one of the main religio-political parties in Pakistan.

Readers might be surprised to know that Maulana Maududi has also said that an act of blasphemy does not leave non-Muslims liable to capital punishment by the state.

The rights of dhimmi (non-Muslims) living in a Muslim state include protection of his life even in instances of blasphemy as per Maulana Maududi.

All this nuanced handling of the issue is a far cry from the reality of its application today, where a single unfortunate, ill-informed, ill-judged alleged utterance can lead to a conviction under the law, and the death penalty.

Our law in letter and in its judicial interpretation prescribes a hudd punishment for a single offense of blasphemy.

It makes no distinction between Muslims and non-Muslims, repeat vs single offences, siyasa vs sharia punishment.

It goes against hundreds of top South Asian ulema and it goes against the founders of the predominant religio-political groups in Pakistan.

The idea that the current interpretation of this law is based on a complete consensus in the religious tradition is a myth.

This is especially crucial for those currently charged under the law, held in jail and fighting for their lives, as in the case of Asia bibi.

She is not guilty of multiple offences of blasphemy.

She has begged for pardon multiple times.

According to the rulings of founder of Hanafi School, founder of Deoband thought, founder of Barelvi thought and the founder of Jamaat-e-Islami, Asia Bibi should be given a pardon.
 
What punishment then, would our clergy, our Mumtaz Qadris, and our vigilante mobs, like to prescribe for their revered religious figures, the founders of their sects and 450 of the most prestigious scholars in South Asia and around the world, for allowing pardon for non-Muslims?

The voices of these scholars are key for the change in narrative around the blasphemy law, opening space for conversation and debate, in building tolerance, in honouring the real voices of those who have dedicated their lives to studying these positions.

Most importantly, referencing these scholars ensures that no grave injustice occurs in the fair name of our Prophet (PBUH) — an act of devotion we sorely need.

The Untold Story Of Pakistan’s Blasphemy Law.

Junaid Jamshed asks for forgiveness in a video

A few days ago, a video of erstwhile pop icon and widely heard Islamic evangelist, Junaid Jamshed went viral on the Internet, in which his remarks were perceived as blasphemy against the Prophet Muhammad (PBUH) and his wife, Ayesha (RA).

 

By the time of the writing of this article, he has been charged under the Blasphemy Law (clause 295-C of the Pakistan Penal Code). The clause reads:

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.

The law prescribes a fixed death penalty for all those who are found guilty. The option of life imprisonment was made defunct after a 1991 Federal Shariat Court judgement.
 Junaid Jamshed has already responded with a public repentance, re-affirmation of his faith and a plea for pardon. 

Unfortunately, for Junaid Jamshed, the dominant religious narrative in the country holds that blasphemy is an unpardonable offence.


Junaid jamshed apology about his recent speech

Simply put – you blaspheme, you die.

 

No ifs, ands or buts about it. The credibility of this assertion is built on an apparently universal consensus (ijma) on the subject across all four Sunni schools of thought. By maintaining this front of scholarly consensus, the religious leadership disallows any concept of an alternative position.

This idea of a unanimous scholarly endorsement of an unwaivable death penalty for blasphemy has been relentlessly repeated: in the Federal Sharia Court Judgment on the blasphemy law in the ‘90s, in the Parliament, in the popular print and oral narrative on television channels, and has seeped deeply into the consciousness of the Pakistani population.

In the collective imagination of mainstream Pakistan, blasphemy is not a pardonable offense and anyone who believes otherwise is also committing blasphemy, and must similarly pay with their life.

Junaid Jamshed’s plea for mercy has raised a question about whether or not a repentant blasphemer may indeed be pardoned.

This is also not the first time the issue is coming under inspection.

The question was asked centuries ago by Hanafi Jurists such as Abu Hanifa, his student Abu Yusuf in Kitab al-Kharaj, Imam Tahawi in Mukhtasar al-Tahawi, Imam Sufyan ath-Thawri, Imam Abu Bakar Ala al-Din Kasani in Bada'i as Sanai, Taqī al-Dīn al-Subki in al-Sayf al-maslūl ‘alā man sabba al-Rasūl, and a vast number of other eminent Hanafi scholars.

All were led to the question that Junaid Jamshed is currently plagued by:

Is blasphemy a pardonable offense?

 

The answer, it is clear, was a categorical yes.

The stance that ‘blasphemers who ask for a pardon would be spared the death penalty’ has already been established by the founder of the Hanafi school of thought, Abu Hanifa.

Within the Hanafi position, it simply does not go higher than Abu Hanifa, and it is the Hanafi school of thought that is foremost in significance, in terms of religio-legal debates in the Supreme Court, the Federal Sharia Court and the Council of Islamic Ideology.

Moreover, a long line of students and followers of Abu Hanifa, legal heavyweights of their respective eras, further corroborated this position in many of their works. Centuries of Hanafi scholarship have maintained the same categorical answer to our original question: Yes, blasphemy is a pardonable offense.
 
Keep in mind: as per the principles (usul) of the Hanafi jurisprudence, a consensus of Abu Hanifa and his students cannot now be challenged.

This is one of the primary principles of taqlid in traditional Islamic legal thought.

The letter of the law 295-C makes no mention of the permissibility of pardoning a blasphemer.

In fact, it is a Federal Sharia Court interpretation of the law that serves as the operational blueprint of the application of the law, which rules out pardon.

They considered the same sources as listed above, and somehow reached the opposite conclusion: that the authoritative position of Imam Abu Hanifa and his students is that blasphemy is not, in fact, a pardonable offense.

How could this possibly have happened? How could such a clearly stated position, maintained for centuries, be so misinterpreted?

In my pursuit of answers, I discovered that in the 15th century a Hanafi scholar, Al-Bazzazzi, misquoted the Hanafi position on pardon that had been established since the time of Abu Hanifa.

It is important to note that he was not offering an alternative stance; he meant to describe the original position but erroneously ended up misrepresenting it entirely. It is baffling to consider how he could have strayed so far from the original position.

Imam Ibn e Abidin, one of the most revered scholars in South Asia, chancing upon his erroneous depiction, was moved to write an impassioned critique of this divergent position – not only explaining Bazzazzi’s error as a 'misreading of two important works' (Al Sarim-ul-Maslool ala Shatim-ur-Rasool by Ibn Taymiyyah and Al Shifa by Qadi Iyad), but also summarily dismissing the idea that blasphemy is unpardonable as “ridiculous”.

 

Excerpt from translated summary of Ibn Abidin’s Radd al-Muhtar ala al-Dur al-Mukhtar.

 

Excerpt from Ibn Abidin’s Radd al-Muhtar ala al-Dur al-Mukhtar in Arabic.

One of the most important scholarly figures in Islamic legal tradition, and one of the most revered figures in Deobandi madrassahs across Pakistan, Imam Ibn Abidin had the wisdom and foresight to warn that these competing narratives, if allowed to exist, would create undue confusion and chaos. He counseled the scholars to be meticulous in their research on the referencing of primary resources.

Where Pakistan's laws came from

 

Advocate Ismaeel Qureshi, the architect of the blasphemy law, apparently did not get the memo.
In his best-selling book on blasphemy and his petition, Qureshi apparently built his case of an irrevocable death penalty, with no scope for pardon on the works of leading Hanafi authorities, and ironically, Imam Ibn Abidin himself.

In an a case of history repeating itself, he followed in Al-Bazzazzi’s footsteps in erroneously subverting the position of Imam Ibn Abidin.

At one point, in Fatawa e Shami, Ibn Abidin takes Bazzazzi’s claim – ‘the punishment for blasphemy is death, it is unpardonable and anyone who disagrees is also guilty of blasphemy’ – dissects it and goes on to criticise it for the next six pages.

Advocate Ismaeel Qureshi, grasping the first thing he saw, slaps Imam Ibn Abidin’s name on to the very position that Abidin so passionately refuted right after quoting the original problematic claim.

Excerpt showing Advocate Ismaeel Qureshi incorrectly attributed Bazzazzi's position to Ibn Abidin.

Advocate Ismaeel Qureshi incorrectly attributed Bazzazzi's position to Ibn Abidin.

 When I learnt of this, I approached Advocate Ismaeel Qureshi with the primary text and showed him the counter-evidence to his assertions.

Qureshi acknowledged that mistakes had been made in the research upon which the judicial interpretation of Pakistan's blasphemy law now rests. The history and process of how the events transpired to produce the law in its current form therefore, reads like a series of unfortunate errors.

The repercussions for those caught in the crossfire, are however, far more deadly than just 'unfortunate'.

Why does no credible source from the mainstream religious leadership then step forward and set the record straight?
 
It seems to be of greater importance to withhold the facts of the case, as a more open dialogue may also incidentally amount to collusion with the secular position – surely, the worst of crimes.
In the midst of all this chaos and misinformation, there is still hope for the likes of Asia Bibi and Junaid Jamshed.

There is no need to change the letter of the blasphemy law for Junaid Jamshed and Asia Bibi to get their pardon. All that is required is to revisit the judicial interpretation, and rectify the erroneous conclusion of the Federal Sharia Court that was reached on the basis of dubious research.

The blasphemy law, according to the Hanafi position, allows for pardon.

That is all that Imam Ibn Abidin pointed out.