Injustice by law – the case of Junaid Hafeez

In 2013, Junaid Hafeez, a 26 year-old Fulbright scholar and a lecturer at a university in Multan, was arrested on unsubstantiated allegations of blasphemy, including “liking” a “blasphemous” Facebook page.

His lawyer, Rashid Rehman, faced repeated threats to drop the case. In April 2014, three people, including lawyers for the prosecution, told him in open court that by the next hearing he “would not exist.” The Human Rights Commission of Pakistan urged the Punjab government to provide Rashid Rehman with security. Their call fell on deaf ears. A few weeks later, on May 7, 2014, two gunmen entered his office and shot him five times at close range. Five years later, the killers have still not been brought to justice.

Hafeez was fortunate he was able to engage another lawyer to defend him, something that in the circumstances of the case - and blasphemy cases in general - is nothing short of heroic. His lawyer made an application to the Lahore High Court (LHC), requesting that the trial be moved to Lahore given the hostile environment in Multan and the threats to the lives of Hafeez and his counsel. In September 2014, the LHC refused the application, stating there is “no material in support of the apprehension expressed on behalf of the petitioner” and that they should approach the police in Multan for protection.

Six years later, Hafeez’s trial is still ongoing, and he is still in detention, awaiting justice.

Junaid – a fighter

I met Junaid Hafeez in the summer of 2015. He had already been in detention - much of it solitary confinement - for two years; his previous lawyer Rashid Rehman had been killed; and his trial at that time was still only in its initial stages.

Despite all this, Hafeez seemed hopeful. It was not that he was unaware of the injustice of his situation, but he never for a moment appeared defeated. I remember being in awe of his spirit and thinking he's a fighter; he will pull through this.

He had so many ideas about what he would do when he would be a free person again. And he also had plans about how he would spend his time in detention. He wanted to read as much as he possibly could - everything really, but he said fiction was his favorite.

Out of everything he had been out through, it was the solitary confinement that distressed him the most. “They claim it's for my safety,” he said. “But even if I stay physically alive, what about my mind, my spirit? There are terrorists, serial killers and rapists in the same prison who have more rights than us – they have friends, they can chat over a game of cards or a cup of tea, they can feel the sun and breathe fresh air. Is a mere allegation of blasphemy so much worse than we have been stripped of all our rights? I don’t know how long before our minds start rotting in this environment.”

This is no surprise. Under international standards, such prolonged solitary confinement is considered a form of cruel, inhuman or degrading treatment and is strictly prohibited.

Since 2015, there have been delays in the proceedings, including lack of preparation by the prosecution, frequent adjournments, and repeated transfer of judges. Currently, Hafeez’s case is with the ninth judge since his trial began.

Hafeez struck me as deeply sincere, strong, inquisitive and intelligent. He was, and continues to be, fully involved in his case proceedings and knows every word, every inconsistency of the prosecution’s case and the testimony of the prosecution witnesses.

This fighting spirit seems to run in his family. His parents have tirelessly pursued the proceedings in his case at great emotional, physical and financial cost involving weekly long-distance commute. They continue to be bewildered by how their accomplished, thoughtful son, someone who only wanted to teach and contribute to the academia in Pakistan, can be in detention merely for his alleged online activity. Every Eid since his arrest, they hoped it would be their last without him, and the disappointment year after year is now beginning to take its toll. Yet, they are persisting, doing everything in their ability to ensure their son’s freedom so he can once again live the life he deserves, a life that was tragically stalled due to no fault of his own.

Misuse of blasphemy law

That the blasphemy law is grossly misused is now a settled matter, most recently elaborated by the Supreme Court in its judgment upholding Mumtaz Qadri’s conviction for the murder of former governor Salman Taseer. The Court held in its judgment that people accused of blasphemy “suffer beyond proportion or repair” in the absence of adequate safeguards against misuse the law.

There is ample evidence to back the Supreme Court’s observations. In more than 80 per cent of cases, blasphemy convictions given by trial courts have been overturned on appeal by high courts. In a large majority of cases, the reason for acquittal is that the case was registered maliciously for personal or political interests.

Principle of legality

But the problem with the blasphemy law is not just misuse. The law in itself is fundamentally flawed and its implementation of the law raises serious fair trial concerns.

Section 295-C, for example, criminalizes words, representations, imputations, innuendos or insinuations, which directly or indirectly, defile “the sacred name of the Holy Prophet”. If proven, the offence carries a mandatory death penalty.

The over-broad and vague language of section 295-C goes against the principle of legality, confirmed in the jurisprudence of the Supreme Court, which has held that the “language of a statute, and, in particular, a statute creating an offence, must be precise, definite and sufficiently objective so as to guard against any arbitrary and capricious action on part of the State functionaries”.

In more than 30 years since 295-C was first introduced, there is still no clarity on what constitutes “defiling the sacred name of the Holy Prophet”. The imprecise wording of the provision has allowed a wide range of acts and expressions to be prosecuted, including, for example: using language resembling the Prophet’s name on fabric; placing the Prophet’s name in an allegedly insulting place on an advertisement; disputing Islamic beliefs and rituals; and “liking” an allegedly blasphemous post from a Facebook page.

Right to fair trial

The political and religious interests that back blasphemy prosecutions have significantly jeopardized the right to a fair trial of those who are accused of blasphemy, documented in detail by the International Commission of Jurists (ICJ) in a report released in November 2015.

Members of extremist religious groups often pack courtrooms, particularly in trial courts, creating an intimidating atmosphere for the accused, their lawyers, and for judges. As a result, blasphemy-related trials are often held in jails as opposed to open court.

It is also common for lawyers to be threatened to stop defending those accused of blasphemy. In Rashid Rehman’s case, this threat was carried out and he was killed. Judges who hear blasphemy cases also report being intimidated, threatened and harassed, compromising their independence to decide each case free from external influence.

People prosecuted for blasphemy are also routinely denied other fair trial guarantees: blasphemy-related proceedings are unduly protracted; and prior to trial accused persons are frequently unduly denied bail and are held in custody for extended periods of time awaiting trial. In many cases, blasphemy accused awaiting trial or serving sentences following convictions have been assaulted while held in custody and authorities have failed to protect them. Some have even been killed. In a few cases, police officials themselves have reportedly been the perpetrators.

In his recent visit to the United States, Prime Minister Imran Khan wanted to properly “contextualize” the issue of blasphemy. In Pakistan, this is the context: blasphemy is a “legal” tool for persecution, control and fear, with a mere allegation having the power to ruin lives. Junaid Hafeez is just one of its countless victims.

Yet, the State continues to turn a blind eye to gross injustices that are permitted to take place under the guise of religious diktat. Urgent action at all levels — the executive, parliament, and the judiciary — is necessary to address the glaring perception of the blasphemy law which continues to intimidate, persecute and deny its victims any real chance at defending themselves.

Omer is a legal adviser for the International Commission of Jurists. She tweets @reema_omer

Note: The views expressed are those of the author, and do not necessarily reflect the official policy or position of Geo News or the Jang Group.