7 January 2002
Dear Mr. Genser,
I would like to refer to the thirty-second session of the Working
Group on Arbitrary Detention, in which the Working Group adopted
several Opinions on cases of detention submitted to it. The Working
Group decided, inter alia to transmit its Opinions, after having
transmitted them to the governments concerned, to the sources of
information which had submitted the cases for the Group.
In accordance with the Working Group's decision I am sending you,
attached herewith, the Opinion No. 25/2001 submitted by your organization.
This Opinion will also be reproduced in the Working Group's report
to the fifty-ninth session of the Commission on Human Rights.
Yours sincerely,
Miguel de la Lama
Secretary
Working Group on Arbitrary Detention
Attached: Opinion No. 25/2001 (Pakistan)
Mr. Jared Genser
President
Freedom Now
P.O. Box 30126
Bethesda, Maryland 20824-0126
United States of America
OPINION No. 25/2001 (Pakistan)
Communication addressed to the Government on 18 October
2001
Concerning: Ayub Masih
The State has not signed nor ratified the International Covenant
on Civil and Political Rights
1. The Working Group on Arbitrary Detention was established by
resolution 1991/42 of the Commission on Human Rights. The mandate
of the Working Group was clarified and extended by resolution 1997/50,
and reconfirmed by resolution 2000/36. Acting in accordance with
its methods of work, the Working Group forwarded to the Government
the above-mentioned communication.
4. In the light of the allegations made, the Working Group welcomes
the co-operation of the Government. The Working Group transmitted
the reply of the Government to the source. The latter provided the
Working Group with its comments. The Working Group believes that
it is in a position to render an opinion on the facts and circumstances
of the case, in the context of the allegations made and the response
of the Government thereto.
5. According to the information submitted to the Group Ayub Masih,
citizen of Pakistan who is a Christian, was arrested on 14 October
1996 by police. No arrest warrant or decision was presented at the
moment of detention.
6. According to the source, Mr. Masih's family had applied for
land under a Government program that distributes parcels of land
to provide housing for homeless people. The local landlord and other
residents of the village apparently resented this prospect as previously
Christian families lived on land provided by Muslim landowners in
exchange for labor. Implementation of the Government's land allocation
program would have deprived the village landowners of the benefits
of Christian labor.
7. It is submitted that Mr. Masih was arrested when a Muslim neighbor,
Mr. Muhammad Akram, told Police that Mr. Masih had offended him
by stating that Christianity was "right" and suggesting
he should read British author Salman Rushdie's Satanic Verses. Mr.
Masih denied all these accusations. On the same day of his arrest,
the other villagers forced the entire Christian population of the
village (14 families) to leave their home and abandon their belongings.
Authorities allocated Mr. Masih's house to the complainant Mr. Akram,
who has apparently been living there ever since. Bishop John Joseph
of Faisalbad, observed that Mr. Akram's allegations against Mr.
Masih were motivated by a dispute between Muslim and Christian villagers.
He pointed out that neither Mr. Masih nor the complainant could
read English and would know little about the Rushdie's book.
8. On 6 November 1997, the complainant Mr. Akram injured and shot
Mr. Masih in the halls of the Sahiwal Sessions Court, after which
the trial was held in camera. The Police reportedly refused to register
a complaint against Mr. Akram, despite eyewitness testimony by family
members. The trial began on 8 January 1998. On 20 April 1998, Judge
Khan sentenced Mr. Masih to death and to a fine of 100,000 Rupees.
Mr. Masih immediately filed an appeal before the Multan Bench of
the Lahore High Court. On the day of the verdict, extremists near
the Court threatened Mr. Masih's lawyer with dire consequences for
pursuing the case.
It is reported that on 6 May 1998 Bishop John Joseph of Faisalbad
shot and killed himself in front of the court to protest against
Masih's conviction.
9. In January 1999, Mr. Masih was allegedly attacked and injured
in the prison by four other inmates. No action appears to have been
taken against the attackers. In April 1999, the Multan Bench of
the Lahore High Court denied Mr. Masih's application for medical
treatment.
10. The source reports that on 24 July 2001, the High Court finally
heard Mr. Masih's appeal, over three years and three months after
being convicted. On the day of the hearing, the courtroom was filled
with extremists who made death threats against the Court and Mr.
Masih's lawyer. Shortly thereafter, Justices Naeem, Ullah Khan Sherwani
and Khawaja Muhammad Sharif affirmed the judgment. Mr. Masih's case
is currently on appeal to the Supreme Court of Pakistan.
11. The law giving rise to the sentence, the Pakistan Penal Code
§ 295C the pertinent text of which was reproduced by the source
reads as follows: "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 (PBUH). . .shall be punished with death, or imprisonment
for life, and shall be also liable to fine."
It is submitted that in October 1990 the Federal Shari`at Court
ruled that "the penalty for contempt of the Holy Prophet (PBUH)…is
death." Under Pakistani law, the Federal Shari`at Court is
a religious body whose rulings are binding on the Government of
Pakistan. Thus, life imprisonment is no longer an available sentence
for persons convicted of blasphemy under § 295C; the only possible
punishment available for anyone convicted of blasphemy under section
295C is death. Moreover, according to the Pakistan Criminal Proceedings
Code, judges presiding at blasphemy trials must be Muslims. This
is the only section in the Pakistan criminal system for which the
religious qualification of the judge is prescribed.
12. Summarising its position the source points out that the detention
of Mr. Masih is arbitrary. He was accused and convicted largely
because he belongs to a religious minority, on the basis of a provision
of the law which is itself clearly discriminatory. Therefore his
conviction implies a violation of Mr. Masih's rights to equal protection
and non-discrimination.
It is submitted that Mr. Masih requested written documentation regarding
the charges and evidence against him. He was not provided by such
documentation or evidence. During the proceedings he was never informed
of his rights. It is also submitted that by refusing to conduct
and independent investigation and by allowing the testimony of a
single, biased witness, the court shifted the burden of proof onto
the defendant to prove he did not commit the alleged offence. This
burden-shifting was reinforced by the requirement that judges hearing
blasphemy cases be Muslims.
Moreover, the threats and atmosphere surrounding his trial and appeal
denied him any chance of having a fair trial. The source considers
that the courts hearing the case and appeal were unable to make
their decisions in an independent and impartial manner, because
the judges themselves felt their personal integrity and safety was
at risk. The source reminds that Judge Arif Iqbal Hussain Bhatti
was assassinated on 19 October 1997 in his Lahore office after acquitting
two persons accused of blasphemy.
13. The description by the Government of the facts of the case
giving rise to Mr. Masih's conviction ate quite close, but more
detailed than that of the source. According to the Government Muhammad
Akram informed the local Police that on 14 October 1996 at 1500
hours Ayub Masih was sitting in front of the house of Hakim Machhi.
The complainant along with Zulfigar Arshad Bhatti and Muhammad Akram
were also present there. Ayub Masih said that his religion was right
while the religion followed by them was false. Moreover, he stated
that the religion preached by Muhammad (P.B.U.H.) was absolutely
false. He urged that they read the book written by "Salman
Rushdi" in which he has unveiled the true face of Hazrat Muhammad
(P.B.U.H.) and stated that the complainant and witnesses should
accompany him to Karachi so that he could make them read the book
by Salman Rushdie. After reading it, they would understand that
their Prophet about whom they have so much respected preached a
false religion. Then he stated that he wanted to give information
to the complainant and witnesses regarding his own religion so that
they could note the shortcomings of their religion, Islam, and also
realize that they were following the religion preached by a wrong
person. During all this conversation he did not pronounce the name
of the Holy Prophet (P.B.U.H.) with due honour and said that their
prophet was a liar. Upon hearing these derogatory remarks the complainant
was overcome with emotions along with witnesses. He caught hold
of the accused and produced him before Police.
14. The Government did not comment and refute the allegations of
the source on how proceedings against Ayub Masih were conducted.
15. The Working Group finds that the procedure conducted against
Ayub Masih did not respect the fundamental rights of a person charged.
He was not provided with documentary or other evidence against him.
This prevented him to properly prepare his defence; he was not informed
of his rights as an accused. The verdict against him was based on
the testimony of a single, biased witness. The threats by extremists
against him and his defence lawyer during trial and appeal, and
the hostile atmosphere - characterised inter alia by the fact that
the complainant shot on him in the court without apparently being
sanctioned by the court - intimidated accused and counsel alike,
thereby restricting the effectiveness of the defence. All this was
coupled with the fact that under Pakistani law blasphemy cases insulting
the Muslim religion are compulsorily heard by Muslim judges, which
undermines the credibility that a fair and impartial trial is being
conducted. These serious deficiencies in proceedings where capital
punishment is not only provided by law as an alternative penalty,
but compulsory, if the accused is found guilty, basically deprives
the procedure of its requisite fair character.
16. On the basis of the foregoing, the Working Group renders the
following opinion:
The deprivation of liberty of Ayub Masih is arbitrary, being in
contravention of Articles 9 and 10 of the Universal Declaration
of Human Rights and falls within category III of the categories
applicable to the consideration of cases submitted to the Working
Group.
17. Consequent upon the opinion rendered, the Working Group requests
the Government to take the necessary steps to remedy the situation
of Mr. Ayub Masih. The Working Group believes that under the circumstances
either retrial, or granting pardon or commutation would be an appropriate
remedy. The Working Group recommends the Government the consideration
of the ratification of the International Covenant of Civil and Political
Rights.
Adopted on 30 November 2001
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