The Lahore High Court in a 2006 photo.
The Lahore High Court in a 2006 photo. (John Milton via Flickr; CC 2.0)

The Pakistan court that a month ago said Aasiya Noreen, a Christian, must die for the crime of insulting Islam, based its ruling on a legal technicality that it now wants to eliminate.

The Lahore High Court, an appeals court for Pakistan’s largest province, had decided Oct. 16 that it would let stand the 2010 conviction of Noreen, a day-labor berry picker whose argument with a Muslim coworker blew up into a highly charged test of the country’s anti-blasphemy laws, which are widely criticized abroad but popular among voters in the Muslim-majority nation.

The appeals judges now explain they had no choice, given the way Pakistan’s laws are written, and have turned to lawmakers to craft legislation that would empower trial courts to apply a test that would make future blasphemy convictions much more difficult to achieve.  That test was not in place when Noreen, popularly known as Asia Bibi, was tried.

The High Court’s detailed legal reasoning, as well as its intention to close the loophole through which it says Noreen has fallen, is contained in a Nov. 5 written decision that was not available on Oct. 16 when the court ruled from the bench that her original conviction will stand. In Pakistan, blasphemy against Mohammed, the prophet of Islam, carries the requirement of the death penalty, though it has never been carried out.

The written judgment was released the day after a Pakistani Christian couple was brutally murdered after an alleged blasphemy.

“The bench has referred the case to the executive for consideration after identifying a legal glitch,” said Abid Saqi, former President of Lahore High Court Bar Association.

That glitch, he said, involves a legal principle found in Islamic law called tazkiya al shuhood. It requires accusers to meet strict standards of Islamic piety, and it came into play when Noreen’s lawyer, Naeem Shakir, embarked on an unconventional legal strategy: To attempt to subject his Christian client to Islamic law rather than Pakistan’s secular laws.

Pakistan’s Federal Shariat Court, which determines whether the country’s laws comply with the principles of Islam, declared in 1990 that insulting the prophet qualifies as hadd – a category of crimes and punishments prescribed in the Qur’an and the tradition of the Prophet. Accordingly, the only acceptable penalty is death, the Shariat Court ruled.

And that, in turn, requires the strictest standards of evidence, or tazkiya al shuhood, Shakir argued to the Lahore High Court in October. He pointed to a 1992 decision by the Pakistan Supreme Court, which ruled that “[w]hat the expression tazkiya al shuhood signifies and connotes is to require elaborate enquiry into the piety, uprightness and integrity of the witness from the men of the same virtues.”

Those stringent barriers were not used at Noreen’s 2010 court trial, rendering the conviction invalid, Shakir argued.

In their written ruling released Nov. 5, High Court judges Muhammad Anwaarul Haq and Syed Shahbaz Ali Rizvi upheld Noreen’s conviction and death penalty based largely on a shoddy trial defense that failed to cross-examine prosecution witnesses. Left unchallenged, the prosecution’s case prevailed by default, the appeals judges said.

Noreen’s trial lawyer, S.K. Chaudhry, who also was present at the appeal hearing, had previously said he dared not speak the allegedly blasphemous remarks to Noreen’s accusers in court, lest he be accused of blasphemy himself.

The High Court’s ruling brushed aside the 1992 Supreme Court guidance on tazkiya al shuhood, saying the accused in that case had been acquitted on the merits of the evidence even without the benefit of the stricter standards, leaving open the question of whether those standards ought to be employed generally.

The ruling was silent on the question of hadd in Noreen’s case and whether the attendant higher legal barriers to prosecution ought to have been employed.  The judges did, however, suggest the trial court could have made that determination if it had been equipped with guidelines for applying the legal test:

“In the absence of any corresponding amendment in procedural law for testing credibility of a witness at such a higher standard, the principle of Tazkiyah al Shuhood cannot be applied in other cases,” the ruling said. It expressed the “utmost necessity for necessary corresponding amendments in procedural law for the proof of an offence where only sentence provided is death.”

The judges ordered that the Ministry of Law, Justice and Human Rights transmit the court’s request to the Pakistan government.

If the government complies with the High Court’s request – a separate matter entirely — blasphemy defendants in Pakistan theoretically could place nearly insurmountable barriers in front of accusers. Those barriers might have prevented a Lahore trial court from handing down a death sentence in March to Sawan Masih, accused of insulting the Prophet during a night of drinking and conversation with a Muslim friend in 2013. Two days after their conversation, thousands of Muslims looted and torched Christian homes and churches throughout Lahore’s Joseph Colony, displacing hundreds of families.

Drinking liquor is punishable under Islamic law. The tazkiyah al shuhood standard, demanding strict adherence to Islamic principles from witnesses, presumably would have disqualified the testimony of Masih’s accuser.

Placing the matter in the hands of Pakistan lawmakers opens the possibility of renewed public debate over an extremely sensitive issue for the country. Politicians have been killed for speaking out in favor of reform.

Hafiz Tahir Ashrafi, a staunch supporter of Pakistan’s anti-blasphemy laws, nonetheless told World Watch Monitor he views the High Court’s request favorably. “In all cases, the evidence must meet the standards prescribed in the Islamic jurisprudence,” said Ashrafi, chairman of the Pakistan Ulema Council, a body of Islamic clerics and scholars.

However, Ghulam Mustafa Chaudhry, a lawyer who represented Noreen’s accuser, said there’s no need to expand the application of tazkiyah al shuhood.

“The current anti-blasphemy laws were perfectly fine and there is no need to introduce any procedural amendment in them,” Chaudhry told World Watch Monitor.

Chaudhry, president of the Khatme Nabuwat (Finality of Prophethood) Lawyers’ Forum, said in death penalty cases, a superintendent of police is appointed to collect evidence. “Junior officers can do hanky-panky but not senior officers of the SP post. So enquiry by them already means a high standard of evidence,” he said.

“If one really insists on the tazkiyah al shuhood standard of evidence then it shouldn’t just apply on witnesses, the [judge] should also be appointed based on the Islamic standards not the way our current judges who are selected by political parties,” Chaudhry said. “Even the entire society must operate on Islamic principles rather than just cherry picked laws that suit to the interests of certain people.”