The Sharing Group Discussion on Blasphemy Laws

بِسۡمِ ٱللهِ ٱلرَّحۡمَـٰنِ ٱلرَّحِيمِ

The following was posted, by me, on The Sharing Group, on the 06th March 2016: “Considering developments in the Muslim world in the last few days, is there a place for blasphemy laws in a modern, secular state?  Are blasphemy laws in accordance to the values that the Prophet (s.a.w.) taught us?”

Brother Nick Orzech: I do not have an easy answer, but I will say that from my experiences, I have much greater respect for critical and scholarly rabbis in their approaches to religious law than I do for many of the fuquha’ these days.  My gut says no because the context is simply not there anymore and, frankly, that seems to be a part of the shari’ah that is contingent, in that it is subservient to the higher maqaswid which are simply not being met in many Muslim societies.  They say that only ‘urf rulings are subject to change with time but I find that to be a load of nonsense.  We do not need to throw out any of our texts and we should never ever do so, but we can be critical and scholarly in the way we study the diyn and assess how we can best work towards a just society based on the ideals of the faith.

Brother Christopher Santoro: Render unto Caesar …; the separation of church and state.  We should let secular societies determine what is best for them, and let religious organisations decide what is best for their own followers within a secular society.  Unless, of course, you believe that everybody must follow one specific religion, and only one specific branch of said religion, in which case there is nothing separating the two.

Brother Terence Helikaon Nunis: Perhaps we should define what exactly is blasphemy, and how the Prophet (s.a.w.) addressed it.

Brother Nick Orzech: I think a good parallel is the concept of apostasy and its associated rulings.  We all know what people like Shaykh ibn Bayyah and others have said about that, and even if a particular thing was considered blasphemy in the Prophet’s (s.a.w.) time, but it does not mean that it is the same in a modern context, just as apostasy is not a political act these days.  I guess a liberal interpretation of the source material would indicate actively preaching disobedience or rebellion against one of the parts of the orthodox creed.  Not simply private statements of belief to my understanding. Again, somewhat like treason or inciting stuff.

Brother Christopher Santoro: Agreed, but it is a fine line between secular laws that are beneficial for society overall, and religious laws that are not universally shared, or even necessary for a society to function.  For a very simple example, some religions prohibit eating pork, others prohibit eating beef, some have no prohibitions, and still others prohibit eating any kind of meat.  These dietary prohibitions, in my opinion, which play a role in religious belief systems, have no place in secular law.

Brother Domenyk Eades: Suppressing criticism on any matter not only provides the tools for corrupt religious leaders to manipulate public opinion, but also sends a message that Muslims are unable to defend their religion in an open environment.  It inculcates a mentality of “might is right”, which weakens the society morally and intellectually.  Having said that, I support limits on hate speech, i.e. the spread of propaganda against Muslims and other minorities, which is a separate issue.

Sister Shahbano Aliani: Shaykh Javed Ahmed Ghamidi says that there is no basis for a blasphemy law, or, in fact, an “islamic state” or a khilafah, or the imposition of shari’ah law.  I am not a scholar myself, but I do respect and defer to Shaykh Ghamidi’s opinion on many issues.

In terms of the sunnah, we know that the Prophet (s.a.w.) did not react with anger, hatred, abuse or violence when he personally faced such behaviour from others.  We are also told that when people abused him, and his companions asked him if they could retaliate, he forbade them from punishing such people. but we are also told that if one of his companions reacted with violence to such abuse towards his person, the Prophet (s.a.w.) forgave that companion.  Taking all this into consideration, it seems to me that a blasphemy law that punishes people, especially non-Muslims, for abusing the Prophet (s.a.w.) has little basis in the Qur’an and sunnah, and Allah (s.w.t.) Knows best.  But as Brother Domenyk Eades says, secular laws that protect freedom of speech must regulate hate speech and speech that incites violence.

Shaykh Javed Ahmad Ghamidi wrote, in his “Islam and the State: A Counter Narrative”, “It has been repeatedly pointed out by this writer that when in a Muslim society anarchy is created on the basis of religion, then the remedy to this situation is not advocacy of secularism.  On the contrary, the solution lies in presenting a counter narrative to the existing narrative on religion.”

He continued that the message of Islam is primarily addressed to an individual.  The directives it has given to the society are also addressed to individuals who are fulfilling their responsibilities as the rulers of Muslims.  Hence, it is baseless to think that a state also has a religion and there is a need to Islamise it, and that it must be constitutionally bound to not make any law repugnant to the Qur’an and sunnah.

It can be the dream of every person that countries in which Muslims are in majority should unite under a single rule and we can also strive to achieve this goal, but this is no directive of the shari’ah.  Neither is “khilafah” a religious term nor its establishment at the global level a directive of Islam.

The basis of nationhood in Islam is not Islam itself, as is generally understood.  At no place in the Qur’an and ahadits has it been said that Muslims must become one nation.  On the contrary, what the Qur’an Says:

سُوۡرَةُ الحُجرَات
إِنَّمَا ٱلۡمُؤۡمِنُونَ إِخۡوَةٌ۬ فَأَصۡلِحُواْ بَيۡنَ أَخَوَيۡكُمۡ‌ۚ وَٱتَّقُواْ ٱللَّهَ لَعَلَّكُمۡ تُرۡحَمُونَ (١٠)

The believers are but a single brotherhood: so, make peace and reconciliation between your two (contending) brothers: And recognise Allah that ye may receive mercy. (Surah al-Hujraat:10)

Thus, the relationship between Muslims is not based on nationhood; it is rather based on brotherhood.

If some Muslims of the world acknowledge themselves as Muslims, in fact, insist on this and adopt a belief or deed which is not approved by one or more scholars or the rest of the Muslims, then this deed or belief of theirs can be regarded as incorrect and even a deviation and departure from Islam, yet these people cannot be regarded as non-Muslims or disbelievers (kuffar) because these people adduce their views from the Quran and Hadith. For the ruling of God on such beliefs and deeds, we must wait for the Day of Judgement. Their proponents in this world in accordance with their own acknowledgement are Muslims, must be regarded as Muslims and must be dealt with in the same way as a Muslim is dealt with. It is the right of the scholars to point out their mistake, to invite them to accept what is correct, to regard what they find as constituting polytheism and disbelief in their ideology and also inform people about all this. However, no one has the right to declare them as non-Muslims or to ostracize them from the Muslim community because only God can give this right to someone, and everyone who has knowledge of the Quran and Hadith knows that God has not given this right to anyone...

Polytheism, disbelief and apostasy are indeed grave crimes; however, no human being can punish another human being for these crimes.  This is the Right of God Alone.

Centuries before the thinkers of the present age, the Quran had declared:

سُوۡرَةُ الشّوریٰ
وَٱلَّذِينَ ٱسۡتَجَابُواْ لِرَبِّہِمۡ وَأَقَامُواْ ٱلصَّلَوٰةَ وَأَمۡرُهُمۡ شُورَىٰ بَيۡنَہُمۡ وَمِمَّا رَزَقۡنَـٰهُمۡ يُنفِقُونَ (٣٨)

Those who harken to their Lord, and establish regular prayer; who (conduct) their affairs by mutual consultation; who spend out of what We bestow on them for Sustenance. (Surah ash-Shura’:38)

It holds and should hold the final authority in the system of state.  People do have a right to criticise the decisions of the parliament and point out their mistakes; however, no one has the right to disobey them or rebel against them.  Neither scholars nor the judiciary is above the parliament.

If, at some place, a Muslim government exists, it is generally asked to implement the shari’ah.  This expression is misleading because it gives the impression that Islam has given the right to a government to forcibly implement all the directives of the shari’ah on people.  The fact is that the Qur’an and ahadits do not give this authority to any government.  The shari’ah contains two categories of directives.  The first category comprises directives which are given to individuals and the second category comprises directives which are given to a Muslim society.  The first category relates to directives which are between an individual and God.  In these directives, a person is not responsible before any government; on the contrary, he is responsible before God.  Hence, no government, for example, can force a person to fast or go for hajj or ‘umrah, or to circumcise himself or to keep his moustaches trimmed or in the case of a woman to cover her chest, refrain from displaying her ornaments or to wear a scarf when going out.  In such matters, a government has no authority beyond urging and educating people except if there is a chance of rights being usurped or excesses being committed against the life, wealth and honour of people.  The Qur’an has Explicitly Said that among the positive directives of religion, a state can only forcibly demand from them to offer the prayer and pay zakat.  The Qur’an Says:

سُوۡرَةُ التّوبَة
فَإِذَا ٱنسَلَخَ ٱلۡأَشۡہُرُ ٱلۡحُرُمُ فَٱقۡتُلُواْ ٱلۡمُشۡرِكِينَ حَيۡثُ وَجَدتُّمُوهُمۡ وَخُذُوهُمۡ وَٱحۡصُرُوهُمۡ وَٱقۡعُدُواْ لَهُمۡ ڪُلَّ مَرۡصَدٍ۬‌ۚ فَإِن تَابُواْ وَأَقَامُواْ ٱلصَّلَوٰةَ وَءَاتَوُاْ ٱلزَّڪَوٰةَ فَخَلُّواْ سَبِيلَهُمۡ‌ۚ إِنَّ ٱللَّهَ غَفُورٌ۬ رَّحِيمٌ۬ (٥)

But when the forbidden months are past, then fight and slay the pagans wherever ye find them, and seize them, beleaguer them, and lie in wait for them in every stratagem (of war); but if they repent, and establish regular prayers and practise regular charity, then open the way for them: for Allah is Oft-Forgiving, Most Merciful. (Surah at-Tawbah:5)

So, after their belligerence is stopped, it is incumbent upon the state to leave them alone and not try to enforce anything on them.  As for the second category of directives, they are only given to a government because it is a government which represents a society in collective affairs.

If religious scholars demand from those in authority to obey them, then they certainly will be justified.  In fact, it is their duty in their capacity of scholars to make such a demand.  It should be clear that this demand is the demand to follow the shari’ah.  Implementation of the shari’ah is not the right name for this demand.
Here is Shaykh Ghamidi’s statement on the blasphemy law: Islamic Scholar Attacks Pakistan’s Blasphemy Laws.

Brother Terence Helikaon Nunis: Sister Shahbano Aliani, Shaykh Javed Ghamidi is quite thorough in his refutation of the validity of the blasphemy laws.  Why is it that more people in Pakistan are not relooking it?

Sister Shahbano Aliani: Brother Terence Helikaon Nunis, a space seems to have opened recently, and I pray that Mumtaz Qadri’s execution is a good sign.  Historically the following may be some reasons:

Firstly, the extremists have struck fear into the hearts of people.  After Mumtaz Qadri murdered Salman Taseer; and Sherry Rahman, another former politician, was accused of blasphemy for her criticism of the law; people who had an informed position, especially public figures, were afraid to take a stand on the issue.  Shaykh Ghamidi had to leave for Canada with his family after a bomb was found at his residence.  A close associate of his was murdered subsequently.

Secondly, some of the ‘ulama are deliberately confusing people by equating criticism of the blasphemy law with criticism of the Prophet (s.a.w.).  This is because the blasphemy law allows them political power which they otherwise do not have.  The Pakistani people never vote the right wing religious political parties into power in any significant numbers.  This is a very interesting and often overlooked fact.  With apologies to my Indian friends, we have never had the Pakistani version of the BJP being voted into power ever.

Thirdly, ordinary people do not know the details of the law as it has been formulated and implemented in Pakistan, and the details of a counter narrative such as the one Shaykh Ghamidi presents, even though this stuff is not too complicated. they tend to identify with positions that fit crudely with their identities of “us” and “them”, or else remain confused and silent. for instance, some people think only liberals criticise the blasphemy law and since they believe liberals are America-lovers, unpatriotic or foreign agents, they take the opposite view without being informed.

Fourthly, since the late seventies, the time of the Soviet-Afghan War and the Iranian Revolution, up until recently; the Pakistani military, the most powerful institution in the country, has supported and actively cultivated extremist groups for its campaigns in Afghanistan and Kashmir.  This is a well-known fact. as many of us know, the US gave its full support to this strategy in its initial phases.  Political parties, that are not religious but secular, populist, have also formed alliances with extremist groups during elections and other times to get votes and for other expedient reasons. the funding for many of these groups and right wing religious propaganda and indoctrination has come from Saudi Arabia.  I sense a shift in this decades old nexus and military strategy since last year.  There has been a crackdown on terrorists, terrorist attacks have declined sharply, Pakistan refused to join the Saudi campaign against Yemen, and now Qadri has been executed.  I pray there is, indeed, a shift.  I am neither a historian, nor a political scientist or scholar of any discipline, but this is my perspective based on observations and some study.

Brother Ariffin Yeop: There is no Islamic state anywhere on earth at present, not in the footsteps of the Beloved Prophet (s.a.w.).

Brother Ahsan Razvi: The blasphemy law is very ambiguous in nature.  There are different opinions between the ‘ulama and the fuqaha’ to what constitutes blasphemy.  For the sake of the argument, let us take the example of blasphemy law in Pakistan, 295c of the Pakistani Penal Code.  This law is loosely worded and there are no save guards, and on top of that, it is an offence that could lead to capital punishment.  There is anarchy because of the failure of system, that is, failure of Parliament, the judiciary and bureaucracy.  This gives the government of the day a lethal weapon to divert the attention from the real issues like food, water, shelter and security.

The solution is that there has to be a law to curb hate speech or incitement to violence like in any other moderate country, a law that could work as deterrent.  I think a law under which religious sensitivities of both the majority and the minorities are protected.  Now, whether one is to call it a blasphemy law or by some other name, is a separate matter.  The conversation has to take place on what is considered sensitive or sacred.  Muslims surely hold Prophet Muhammad (s.a.w.) in high regard, and there should be discussion what could be the boundaries.  In India, we have Section 153a of the Indian Penal Code that works pretty much the same way to cut down hate speech and bigotry.

153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. —
(1)   Whoever —
(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or

(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, or

(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both.

Offence committed in place of worship,

(2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.

Brother David Rosser Owen: Law 153 of the Indian Penal Code, on which the Pakistani blasphemy law was based, was enacted by the Viceroy’s Council of British India as a means of dealing with the generators of sectarianism and the communal violence that tended to follow.  It was not intended to replicate the UK’s Blasphemy Act, which in any case only applied to the beliefs of the Church of England.

Brother Terence Helikaon Nunis: In Singapore, we do not have a blasphemy law.  What we do have is a Maintenance of Religious Harmony Act.  This act of legislation makes it a criminal offence to deliberately offend the sensibilities of the religious, but the insult has to be deliberate.  Fair comment, dissension, differences of opinion, and variances in creed within the same religious tradition are not covered under the act.  That is the sensible way to go.

The problem with blasphemy laws is that they are far too easy to abuse for a political or sectarian agenda.  They are also problematic since they are inherently against the tradition of free religious discourse in Islam.  Within the Hanafi madzhab, the blasphemy laws were enacted from the Abbasid times to address the wanton heresy of some quarters to prevent the people being agitated.  But even then, the perpetrators were always brought before the qadhi and given an opportunity to explain themselves, and if required, to repent.

Nowadays, blasphemy accusations are invitations to mob violence.  That is inherently haram.  Also, we live in an age of general ignorance of religion, who is there to decide what is or is not an actual blasphemy?

Brother Ahsan Razvi: I think it is Section 295a of the Indian Penal Code, not Section 153.  I stand to be corrected.

295A. 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 273 [citizens of India], 274 [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to 4[three years], or with fine, or with both.

Brother David Rosser Owen: Could be.  I no longer have a copy of it to check with.


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