“Falsely shouting ‘fire’ in a crowded theatre!” was the example offered by Oliver Wendell Holmes Jr. when pushed to explain what a permissible restriction upon freedom of speech might look like. Holmes was using the metaphor rather tenuously as a means to justify the suppression of opposition to the military draft in the United States’ Supreme Court case ‘Schenck v. United States’, 1919. Regardless of his intent, this has sustained as the defining theoretical standard by which all future freedom of speech and freedom of expression limitations would be judged.
The illustration presented by Holmes defines a very narrow scope: a circumstance whereby the statement or expression elicits foreseeable harm to others in a manner that effectively removes their agency, and with it, their moral responsibility. By shouting ‘fire’ in the theatre, the metaphorical culprit is imposing a realisation upon the crowd that they have an unavoidable and immediate decision to make – attempt to evacuate with such haste that other theatre goers are likely to be harmed in the process, or remain in the theatre and die an agonising death.
Central to Holmes’s analogy is this removal of human agency. Whereas, though it might seem reprehensible from a position of common decency and public safety, one cannot necessarily blame the theatre-goers for scrambling to safety without regard for those around them. Thereby, Holmes was deliberate in not providing ancillary protection for any individual merely provoked, persuaded, or enraged into harming others. And, it is here that the preface, ‘falsely’ is important. Not because it is the falsehood of the statement that categorises it as a justifiable restriction upon freedom of speech, but rather because of the optional nature of the statement in relation to the outcome – without which we would simply be talking about a tragic fire within in a crowded space.
This limited framework offers the only permissible infringement that may be imposed on freedom of speech and freedom of expression without conversely infringing upon the basic human rights of all other individuals within the society.
In light of this standard, the criminal case involving Pakistani mother-of-five, Asia Bibi, defies any reasonable claim to justice – she is facing execution for engaging in a religious argument!
Bibi, a farm labourer, found herself involved in an argument with co-workers after they had admonished her for drinking from a communal source. As a Christian she had, in their eyes by merely touching the water, effectively spoilt it for use by all Muslims. By challenging this belief, she seems to have overtly trespassed upon the category of religious offense, as protected by Pakistan’s blasphemy laws.
This charge of religious insult, which she incidentally denies, has seen her imprisoned for nearly four years. In 2010, a Pakistani court found her guilty of blasphemy, a conviction that the Lahore High Court has recently upheld in a decision labelled by Human Rights Watch as a “disgrace to Pakistan’s judiciary”. Her legal team have already indicated that she will now appeal to the Supreme Court – if her case fails there, she will be executed by hanging. David Griffiths, the Deputy Asia Pacific Director for Amnesty International, “Asia Bibi should never have been convicted in the first place — still less sentenced to death — and the fact that she could pay with her life for an argument is sickening”.
The history of the Pakistani blasphemy laws date back to British colonisation. Introduced in 1860, then expanded in the aftermath of religious riots in 1927, the entire sub-continent resided under a criminal code that outlawed “deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religious belief” – a statute that was inherited by a newly independent Pakistan in 1947.
Beginning in 1977, under the military rule of Mohammed Ziaul Haq, a series of supplementary laws were implemented, bolstering the legal protection for blasphemy in all its conceivable manifestations. In 1986, the death penalty was introduced as a mandatory punishment for anyone convicted of defaming the Prophet Muhammad, the categorisation of ‘intent’ was removed as a legal requirement in securing a conviction, and the stipulation was imposed that all such cases must be heard by a Muslim Judge.
This blasphemy legislation is now an expansive and linguistically vague set of protections that includes the incitement of “outrage”, the harming of “feelings”, the “defamation” of icons, the “defilement” of objects, all manner of “insult”, and any “derogatory” behaviour. It is therefore unsurprising that these laws have become a tool for religious conformity and the persecution of minority groups. Muslims have increasingly had the nature and parameters of their faith, down to the most pedantic detail, dictated to them under the threat of death. While the minority sects of Hindus, Sikhs, Buddhists, Parsis, Ahmadis, Bhais, Kalasha, Kihals, Jains, et.al. who are dwarfed in comparison to the 96 percent Muslim majority, are increasingly forced to fashion an existence upon egg-shells, ever-doubting the legality of their behaviour.
In 2005 Younus Shaikh, after writing an academic text that offered historical and analytical challenges to some of the more unpalatable Islamic customs such as the stoning to death of adulterers, was convicted of defiling the Quran and harming religious feeling – he was sentenced to life in prison. In 2000, Dr. M. Younus Shaikh was sentenced to hang for making the empirically true statement in one of his lectures, that the Prophet Muhammad’s parents must have been non-Muslims by virtue of the fact that they died before Islam was founded. In 1996, Ayub Masih was arrested for recommending that his neighbour read Salman Rushdie’s Satanic Verses. The same neighbour later shot Masih during his court appearance on November 6, 1997. And, in 1984, the minority Ahmadi’s were legally excluded as a collective from calling themselves Muslims.
This is an accelerating phenomenon within Pakistan. From the British expansion of the laws in 1927 up until 1985, 10 cases concerning blasphemy were brought before the courts – since 1985, there has been over 4,000 registered blasphemy cases.
In addition, these laws have been applied carte blanche, without discrimination for circumstances that ordinarily would delineate clemency. 70 year-old British citizen Muhammad Asghar and Lahore resident Salma Fatima both found themselves subject to blasphemy legislation for publicly declaring themselves to religious prophets, despite having histories of mental illness (if this were not already evidenced enough by the nature of their crimes). And, Rimsha (Rifta) Masih was charged with desecrating a Quran in Islamabad, despite being only 14 years old, and despite undergoing an evaluation placing her mental age closer to that of an 11 year old.
Yet, the laws remain as undeniably popular fixtures within Pakistani society. Pew Polls show that over 75 percent of Pakistanis believe that the laws are a necessary societal fixture: a fixture whose impact stretches far beyond the legislation itself. Asia Bibi has claimed her case to be entirely constructed, not from religious insult, but from the long-standing personal animosity of her colleagues, “We had some differences, and this was their way of taking revenge”. Indeed, the stigma associated with merely being accused of blasphemy within Pakistan has seen the laws become politicised and appropriated as tools for satisfying vendettas, attacking enemies, ending marriages, forcing business deals, underscoring blackmail attempts, under-cutting rivals, or settling personal disputes.
Worse still, the laws have tended to provide explicit legitimation and, subsequently, tacit protection for acts of vigilante justice and extra-judicial punishment. Asia Bibi’s daughters, due to the allegations against their mother, have been attacked in their village and savagely beaten. Punjab Governor Salman Taseer, after supporting Bibi and advocating for leniency on her behalf, was assassinated in 2011 by his own body guard. Two months later, the Federal Minister for Minorities Affairs, Shahbaz Bhatti, was assassinated on his way to work, after he had publicly recommended Bibi’s release and committed himself to reforming the blasphemy laws.
This sort of violence is not unique to Bibi’s case. In 2010, brothers Rashid and Sajid Emmanuel were shot dead whilst in police custody. In 2006, seven members of the multi-faith organisation Mehdi Foundation International (MFI) were subjected to constant beatings, orchestrated public humiliation, and torture, both before and after their conviction. In 2012, Lahore teacher Arfa Iftikhar, was forced into hiding after local mobs stormed her school in response to a homework assignment she had distributed to her students. In 2009, two Christian teenage brothers accused of blasphemy were forced to flee Pakistan out of fear for their lives. Denied their chance at vigilante justice, local mobs indiscriminately murdered and torched the homes of Christians across Punjab. And, just yesterday, a couple accused of blasphemy in the Eastern Punjab township of Kot Radha Kishan were beaten to death, and subsequently burnt in a brick kiln in an attempt to further desecrate the bodies.
It is often claimed that offense comes in three possible categories: gratuitous, calculated, or unavoidable. With blasphemy legislation as widely interpretable as it is in Pakistan, the vast majority of contextual offense is likely to fall into the ‘unavoidable’ category. The unwitting nature of this criminality makes the Asia Bibi case, and those similar to it, ever more of an injustice, and an indelible moral blight upon Pakistani society.
Despite being one of a selection of member states that have consistently pursued a United Nations General Assembly binding resolution outlawing blasphemy (a non-binding resolution has already been passed), Pakistan is still a signatory to the United Nations Declaration of Human Rights – Article 19 is explicit, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference”. Although criticism of her work has become fashionable, Ayn Rand is an effective populariser of the deontological ethical outlaysimplicit in such human rights standards, “Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual)”.
Above and beyond supplying legitimacy to the oppression of minorities, the absence of comprehensive protections for freedom of speech and freedom of expression necessarily makes societal growth and rational argument restricted by, and held accountable to, petty obstinacy, base fears, and cultural blushing. John Stuart Mill in On Liberty, “there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered”. Freedom of speech and freedom of expression, unavoidably entail the freedom to offend.
This fear of religious offense indicates an insecurity on behalf of Pakistan’s religious establishment. And it is here that the laws begin to make some intrinsic sense. Blasphemy in Pakistan has been conflated to the sort of deeply existential, and agency-removing threat, as that of shouting ‘fire’ in a theatre. A belief that if blasphemy were to be allowed to continue unchecked, then it would precipitate the collapse of Pakistani society – this is what religious immaturity looks like.
As such, it is also here that any reform movement begins to lose traction even before it has begun moving. If an individual’s inherent reason cannot sufficiently overcome their religious convictions in order to distinguish between Holmes’s fire and an act of blasphemy, then what reasoned argument, or what critical response possibly could, without inadvertently crossing into territory that the individual would also consider blasphemous? This hermeneutic nature of blasphemy offers its own self-protection, its own inherent intransigence, and removes the starting point of any such debate.
It is hard to imagine a nation today, despite how liberal leaning it may be, that has not at some point in its history cited ‘offense’ as a means to legitimate the segregation of races, the subjugation of women, the persecution of homosexuals, and the oppression of minority beliefs. The tragedy for Pakistani society is that it is still consumed by these irrational fears, and still holds the causing of offense as sufficient justification for the denial of basic rights. Until this fear is overcome, and its blasphemy laws overturned, Pakistan will remain as a global pariah – and the Asia Bibi’s of this world will be forced to pay the most unreasonable price for the most reasonable of behaviour.