PETITION TO:
UNITED NATIONS
WORKING GROUP ON ARBITRARY DETENTION
Chairman/Rapporteur: Mr. Kapil Sibal (India)
Vice Chairman: Mr. Louis Joinet (France)
Ms. Soledad Villagra de Biedermann (Paraguay)
Mr. Tamás Ban (Hungary)
Ms. Leïla Zerrougui (Algeria)
COMMISSION ON HUMAN RIGHTS
ECONOMIC AND SOCIAL COUNCIL
In the Matter of
Ayub Masih,
Citizen of Pakistan
v.
Government of Pakistan
_______________________
URGENT ACTION
REQUESTED
And Petition for Relief Pursuant to Resolution
1997/50 and 2000/36
Submitted By:
Jared Genser
Freedom Now
P.O. Box 30126
Bethesda, Maryland 20824-0126
United States of America
Telephone: (001) 301-279-9536
jared_genser@freedom-now.org
8 October 2001
BASIS FOR "URGENT ACTION" REQUEST
Mr. Ayub Masih, a Pakistani Christian,
received a sentence of death for allegedly violating Pakistan Penal
Code § 295C (blasphemy law), which imposes death on persons who
"directly or indirectly defile[] the sacred name of the Holy
Prophet (PBUH[1])."
Mr. Masih's case is currently on appeal to the Supreme Court of Pakistan[2]
and he faces execution if that appeal is denied. Mr. Masih's case
has brought significant negative attention to the Government of Pakistan.
Most notably, Pakistani Bishop John Joseph of Faisalabad committed
suicide in May 1998 to protest the death sentence imposed on Mr. Masih.[3]
Mr. Masih has been imprisoned since his arrest on 14 October 1996
and is currently being held in solitary confinement in Multan, Pakistan,
200 miles southwest of Lahore, where the daytime temperature in his
small cell often exceeds 49 degrees Celsius (120 F).
[4]
He
has been the subject of several violent attacks from his accuser and
from fellow prisoners. First, the complainant Mr. Muhammad Akram shot
and injured Mr. Masih in the trial court at Sahiwal on 6 November
1997. Despite eyewitness testimony by family members, the police refused
to register their complaint against Mr. Akram.[5]
Subsequently, four other inmates sentenced to
death attacked and injured Mr. Masih. No action appears to have been
taken against his assailants.[6]
The Government of Pakistan has been unwilling and/or unable to provide
Mr. Masih with protection to prevent such attacks. Given this ill-treatment
while in the custody of the Government of Pakistan, Mr. Masih's parents
are deeply concerned about their son's health and safety.
Accordingly, the Petitioner hereby requests the Working Group consider
this Petition pursuant to the Working Group's "Urgent Action"
procedure.[7] In addition,
the Petitioner requests that this Petition be considered a formal
request for an opinion of the Working Group pursuant to Resolution
1997/50 of the Commission on Human Rights as reconfirmed by Resolution
2000/36.
MODEL QUESTIONNAIRE[8]
I. IDENTITY OF THE PERSON ARRESTED
OR DETAINED
1 & 2. Family Name: Masih
First Name: Ayub
3. Sex: Male.
4. Birth date or age (at time of detention): 26-years-old.
5. Nationality/Nationalities: Citizen of Pakistan.
6. Identity documents (if any): Identity Document of
Pakistan.
7. Profession and/or activity (if believed to be relevant to
the arrest/detention):
Arrest and profession are unrelated. Mr. Masih was a bricklayer.
8. Address of usual residence: Mr. Masih does not have an address
of usual residence as his home was allocated to the complainant and
Mr. Masih has been in prison since his arrest.
II. ARREST
1 & 2. Date and Place of arrest: Mr. Masih was arrested
on 14 October 1996 in Chak, Arifwala in the Sahiwal District (southern
Punjab). See "Statement of Facts" below.
3. Forces who carried out the arrest or are believed to have
carried it out: Pakistani police.
4. Did they show a warrant or other decision by a public authority?
No. There was, however, an investigatory warrant or First Information
Report ("FIR") issued which was # 505/96. The FIR is in
essence a statement of charges but it does not constitute an arrest
warrant.
5. Authority who issued the warrant or decision: As
noted above, no warrant or decision was presented.
6. Relevant legislation applied (if known): See "Detention,"
below.
III. DETENTION
1 & 2. Date and duration of detention: The Petitioner
has been incarcerated since his arrest almost five years ago.
3. Forces holding the detainee under custody: Pakistani
police.
4. Places of detention (indicate any transfer and present place
of detention): Currently, the Petitioner is being held in
Multan prison.
5. Authorities that ordered the detention: Judge Abdul
Ghaffar Khan, Sahiwal Trial Court. This judgment was affirmed by Justices
Khawaja Muhammad Sharif and Naeem Ullah Khan Sherwani of the Multan
Bench of the Lahore High Court.
6. Reasons for the detention imputed by the authorities:
The petitioner is alleged to have blasphemed the Holy Prophet (PBUH)
in violation of Pakistan Penal Code § 295C. See "Statement
of Facts" below.
7. Relevant legislation applied (if known): The Petitioner
was charged and convicted of blasphemy under Pakistan Penal Code §
295C.
IV. DESCRIBE THE CIRCUMSTANCES OF THE
ARREST AND/OR THE DETENTION AND INDICATE PRECISE REASONS WHY YOU CONSIDER
THE ARREST OR DETENTION TO BE ARBITRARY.
Statement of Facts
This Statement of Facts details what is known about the circumstances
surrounding the arrest, trial, and continuing detention of the Petitioner,
as well as the current political climate in Pakistan.
Current Government of Pakistan
On 12 October 1999, in a bloodless coup, Army Chief of Staff Purvez
Musharraf led the military in overthrowing the elected civilian Government
of former Prime Minister Mian Nawaz Sharif. The previous Government
operated under a Constitution that provided for limited freedom of
religion and safeguarded minority rights and interests.[9]
Upon assuming power, General Musharraf suspended
the Constitution and the freedom of religion embodied in it. He also
took steps to control the judiciary and to remove his regime from
judicial oversight. Subsequently, the Supreme Court of Pakistan declared
the Musharraf Government constitutional and imposed a three-year deadline
to complete a transition to civilian rule. [10]
Background on Pakistan Penal Code §
295C
Freedom of religion in Pakistan has been subject to a range of limitations
both prior to and after the suspension of the Constitution. One such
limitation occurred in 1986, when defiling the name of the Holy Prophet
was made a criminal offense through the enactment of Pakistan Penal
Code § 295C, which states in pertinent part:
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 also be liable to fine.
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.[11]
Furthermore, according to the Pakistan Criminal Proceedings Code,
judges presiding at blasphemy trials must be Muslim. This is the only
section of the Pakistan Penal Code for which the religious qualification
of the judge is prescribed.[12]
The blasphemy charges in "all the cases known to Amnesty International
[including Ayub Masih] . . . appear to be without basis."[13]
The Government of Pakistan has consistently used the blasphemy laws
"to harass, intimidate, and detain members of the minorities
or members of the majority religion who in some way interpret, teach,
or debate religion in a non-orthodox manner."[14]
A common feature of accusations of blasphemy in Pakistan is the manner
in which they are uncritically accepted by members of the criminal
justice system who themselves sometimes face death threats and other
abuse if they do not convict persons accused of blasphemy.[15]
When blasphemy cases are brought to court, religious extremists often
pack the courtroom and make public threats about the deadly consequences
of an acquittal.[16]This
religious extremism and its stranglehold on the Pakistani judicial
system "is derived essentially from the use of religion for the
political purpose of establishing the authority of the religious /
political parties."[17]
As noted by Mr. Abdelfattah Amor, the former Special Rapporteur charged
with implementing the Declaration on the Elimination of All Forms
of Intolerance and of Discrimination Based on Religion or Belief[18]
who visited Pakistan in 1996:
The Special Rapporteur has concluded,
after careful thought . . . [that] blasphemy as an offence against
belief may be subject to special legislation. However, such legislation
should not be discriminatory and should not give rise to abuse.
Nor should it be so vague as to jeopardize human rights, especially
those of minorities. If offences against belief are made punishable
under ordinary law, then procedural
guarantees must be introduced and a balanced attitude must be maintained
. . . [Furthermore] applying the death penalty for blasphemy appears
disproportionate and even unacceptable . . . .[19]
Little has changed in the five years since
Mr. Amor documented these observations and Mr. Ayub Masih's arrest,
detention, conviction, and death sentence should be construed in this
context.
Arrest and Detention of Ayub Masih
Mr. Ayub Masih, a Christian, was arrested on 14 October 1996 when
Mr. Muhammad Akram, his Muslim neighbor, told police that Mr. Ayub
Masih had offended him by allegedly stating that Christianity was
"right" and suggesting he read British author Salman Rushdie's
Satanic Verses.[20]
Mr. Masih denied all the charges.[21]
The Catholic Bishop of Faisalbad, Bishop John Joseph observed that
Mr. Akram's allegations against the Petitioner were motivated by a
dispute between Muslim and Christian villagers.[22]
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.[23]
On the same day Mr. Masih was arrested, the other villagers forced
the entire Christian population of the village (14 families) to leave
their home and abandon their belongings. Thereafter, Pakistani authorities
allocated Mr. Masih's house to the complainant Mr. Akram, who has
apparently been living there ever since.[24]
The Trial
Over a year after his arrest, Mr. Masih was put on trial by Judge
Abdul Khan in the Sahiwal Sessions Court. The case had been transferred
from Arifwala to Sahiwal because of fear of the legal process being
jeopardized by extremist intervention. Yet, Mr. Masih was not safe
in Sahiwal. The complainant Mr. Akram shot and injured Mr. Masih in
the halls of the Court on 6 November 1997 after which the trial was
held in camera.[25]
The police refused to register a complaint against Mr. Akram, despite
eyewitness testimony by family members.[26]
The trial began on 8 January 1998.[27]
On 20 April 1998, Judge Khan sentenced Mr. Masih to death: "[t]he
only reward for those who make war on Allah and his messengers . .
. will be that they will be killed or crucified . . . Therefore the
accused is punished with the death sentence and fine of 100,000 rupees
[$1,000]"[28]
On the day of the verdict, extremists near the court threatened Mr.
Masih's lawyer with dire consequences for pursuing the case. As the
verdict was read out, other extremists in the courtroom shouted that
if the court released the accused, they would not spare him or his
lawyers.[29]
On 6 May 1998, Bishop John Joseph of Faisalbad shot and killed himself
in front of the court to protest Mr. Masih's conviction.[30]
Post-Trial
Mr. Masih immediately filed an appeal with the Multan Bench of the
Lahore High Court. In January 1999, while in prison, Mr. Masih was
reportedly attacked and injured by four other inmates sentenced to
death. No action appears to have been taken against the attackers.[31]
The Multan Bench of the Lahore High Court denied Mr. Masih's application
for medical treatment in April of 1999. Another application for an
early hearing of the appeal was filed on 12 December 1999.[32]
Over three years and three months after being convicted, the High
Court finally heard Mr. Masih's appeal on 24 July 2001. On the day
of the hearing, the courtroom was filled with extremists who made
death threats against the Court and the defendant's lawyers in the
event of a successful appeal.[33]
Shortly thereafter, Justices Khawaja Muhammad Sharif and Naeem Ullah
Khan Sherwani affirmed the judgment.
Mr. Masih's case is currently on appeal to the Supreme Court of Pakistan.
Analysis
For the reasons stated below, the arrest,
trial, and detention of Mr. Ayub Masih violate rights and fundamental
freedoms established in the Universal Declaration of Human Rights[34]
, and the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment[35],
and the Cairo Declaration on Human Rights in Islam.[36]If
the Petitioner is executed, this would further compound the violation
of these internationally-recognized rights.
The deprivation of the Petitioner's freedom falls within Categories
II and III of the Working Group's classification of cases. Specifically,
this case involves Category II because the Petitioner is a prisoner
of conscience who has been falsely accused and convicted largely because
he is a religious minority. The case involves Category III because
the atmosphere surrounding the Petitioner's trial and appeal denied
him any chance of having a fair trial.
I. The Petitioner Was Arrested
Because He is a Religious Minority
Under Article 2 of the Universal Declaration,
"[e]veryone is entitled all the rights and freedoms set forth
in this Declaration, without distinction of any kind, such as . .
. religion."[37]
Furthermore, under Article 7, "[a]ll are equal before the law
. . . [and] [a]ll are entitled to equal protection against any discrimination
in violation of this Declaration." Applying a blasphemy law to
Mr. Masih, a religious minority, differently than to others of the
majority religion violates the rights to non-discrimination[38]
and equal protection[39]
when read in conjunction with the concurrent right to freedom of religion
enshrined in Article 18.[40]
The Petitioner would not face his current
dire predicament were he not a Christian accused by a Muslim complainant.
As described previously, the blasphemy laws in Pakistan are used to
harass, intimidate, and threaten religious minorities.[41]
In addition, the Working Group on Arbitrary Detention has previously
observed a discriminatory application of Pakistan Penal Code §
295C.[42]
More importantly, there is clear evidence to support a finding that
section 295C was applied to Mr. Masih because he was a religious minority:
-
" Mr. Masih was arrested when
his accuser told police he took offense when Ayub Masih allegedly
told him that Christianity was "right" and that he should
read British author Salman Rushdie's Satanic Verses. [43]
-
" 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
private 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.[44]
-
" The same day Mr. Masih was
arrested, the entire Christian population
of the village (14 families) was forced to leave their home and
belongings by the other villagers. The house belonging to Mr.
Masih
was allocated to the complainant, Mr. Akram, by the authorities. [45]
By applying section 295C to Mr. Masih because he is a religious
minority,
the Government of Pakistan violated, and continues to violate,
his right
to equal protection and non-discrimination as guaranteed by Articles
2 and 7 of the Universal Declaration read in conjunction with
Article 18.
II. The Law Under Which Petitioner
Was Arrested Violates Fundamental Freedoms and Rights
Even if arresting, convicting, and sentencing
Mr. Masih was carried out in accordance with section 295C, the Government
of Pakistan still violated Article 18 because the law itself is incompatible
with the Universal Declaration.[46]
In addition, the law is incompatible with Article 18 of the Cairo
Declaration on Human Rights in Islam.[47]
Under Article 18 of the Universal Declaration, "[e]veryone has
the right to freedom of thought, conscience, and religion; this right
includes . . . either alone or in community with others and in public
or private, to manifest his religion or belief in teaching, practice,
worship, and observance."
As described previously, section 295C only prohibits the blaspheming
of the Holy Prophet (PBUH). It does not protect other faiths. After
his visit to Pakistan, former Special Rapporteur Abdelfattah Amor
noted that blasphemy as an offense against belief may be subject to
special legislation; however, such legislation should not be discriminatory
and should not give rise to abuse.[48]
In Pakistan, if a non-Muslim wishes to profess his faith by stating
that his religion is correct, such a person could be subject to the
death penalty under section 295C for blaspheming the Holy Prophet
(PBUH). On the other hand, if a Muslim wished to state his belief
that Islam is correct, such a person would not be subject to the law.
As such, non-Muslims in Pakistan are significantly constrained in
how they may express their beliefs in teaching, practice, worship,
or observance. "Amnesty International is concerned that some
members of the religious minorities [including Christians and Ahmadis[49]
in Pakistan have been held as prisoners of conscience solely for the
peaceful exercise of their right to freedom of religion under laws
that are clearly discriminatory."[50]
Therefore, section 295C violates Article 18 of the Universal Declaration
because it violates the fundamental right to freedom of religion.
III. The Petitioner's Arrest and
Trial Violated Fundamental Freedoms and Rights
Under Article 9 of the Universal Declaration
of Human Rights, "[n]o one shall be subjected to arbitrary arrest,
detention, or exile." Furthermore, under Article 10 of the Universal
Declaration, "[e]veryone is entitled in full equality to a fair
and public hearing by an independent and impartial tribunal, in the
determination of his rights and obligations and of any criminal charge
against him." The arrest and trial of the Petitioner violated
the following rights:
A. No Records Have Been Given to the
Petitioner
Under Principle 12, "(1) There shall be duly recorded: (a) the
reasons for the arrest; (b) the time of the arrest . . . (c) the identity
of the law enforcement officials concerned . . . (2) Such records
shall be communicated to the detained person . . . in the form prescribed
by law."[51]Mr.
Masih requested written documentation regarding the charges and evidence
against him and was never provided such documentation. The only document
issued by the government was FIR # 505/96, which was a statement of
allegations that merely authorizes an investigation - no investigation
was completed and no arrest warrant was issued.[52]
Therefore, the Government of Pakistan violated Principle 12.
B. The Petitioner Was Never Informed
of His Rights
Under Principle 13, "[a]ny person
shall, at the moment of his arrest and at the commencement of detention
or imprisonment, or promptly thereafter, be provided . . . with information
on and an explanation of his rights and how to avail himself of such
rights."[53]
Mr. Masih was never informed of his rights.
C. The Delay Prior to Trial Violated the Petitioner's Right Not
to Be Arbitrarily Detained
Mr. Masih was arrested on 14 October 1996, put on trial over a year
later, and not sentenced until 20 April 1998. Although Pakistan is
not a party to the International Covenant on Civil and Political Rights[54]
, the Covenant may be used to interpret the meaning of the Universal
Declaration. Under Article 9(3) of the Covenant, "[a]nyone arrested
or detained on a criminal charge shall . . . be entitled to trial
within a reasonable time or to release . . . ." In its General
Comment on Article 9(3), the U.N. Human Rights Committee has stated
"[p]re-trial detention should be an exception and as short as
possible . . . ." Here, detaining Mr. Masih for over a year without
adequately investigating the charge against him and unreasonably delaying
his day in court violated his right not to be arbitrarily detained
as enshrined in Article 9 of the Universal Declaration.[55]
D. The Courts were Neither Independent
Nor Impartial
The right to be judged by an independent and impartial
tribunal is one of the most fundamental of rights as enshrined in
Article 10 of the Universal Declaration. Here, there are serious questions
about the independence and inpartiality of the courts that have dealt
with Mr. Masih's case.
Numerous sources have questioned the independence of the Pakistani
judiciary[56] ,
particularly when hearing blasphemy cases. The U.S. State Department
noted "the overall credibility of the judiciary remain[s] low
. . . [t]he judiciary is subject to executive and other outside influences,
and corruption . . ."[57]
Amnesty International observed that "a common feature of accusations
of blasphemy in Pakistan is the manner in which they are uncritically
accepted by members of the criminal justice system who themselves
sometimes face threats and abuse if they do not accept them."[58]
There is also good reason to question the independence
and impartiality of judges in blasphemy cases particularly. According
to the Pakistan Criminal Proceedings Code, judges presiding at blasphemy
trials must be Muslim. This is the only section of the Pakistan Penal
Code for which the religious qualification of the judge is prescribed.
The section is designed to ensure that non-Muslim accused of blasphemy
will start at a disadvantage.[59]
Furthermore, all the evidence in Mr. Masih's case suggests the courts
hearing the trial and appeal were unable to make their decision in
an independent and impartial manner because the judges themselves
felt their personal integrity and safety was at risk:
-
Mr. Masih himself was shot
and injured by the complainant, while present in the trial court
at Sahiwal on 6 November 1997.[60]
-
On the day the verdict was
presented in the trial court, extremists near the court threatened
Mr. Masih's lawyer while other extremists in the courtroom shouted
that if the court released the accused, they would not spare him
and his lawyers.[61] Presumably, the judge would also be at risk.
-
On the day of the appeal hearing
in the Multan Bench of the Lahore High Court, extremists threatened
the court itself and Mr. Masih's lawyers.[62]
Unfortunately, it would be impossible for
a judge in Pakistan in a blasphemy case not to take these threats
seriously. Judge Arif Iqbal Hussain Bhatti was assassinated on 19
October 1997 in his Lahore office after acquitting two people accused
of blasphemy.[63]Therefore, Mr. Masih did not have an independent and
impartial trial.
E. The Trial Violated the Petitioner's Right to Be Presumed Innocent
The Government of Pakistan refused to conduct an investigation of
the charges against Mr. Masih.[64]
Mr. Akram, the sole witness against Mr. Masih, was allocated Mr. Masih's
house immediately after the charges were filed. In addition, Mr. Akram
tried to kill Mr. Masih at the trial itself.[65]The
absence of evidence was confirmed by Amnesty International when it
noted, "the blasphemy charges in all the cases [including Mr.
Masih's case] . . . appear to be without basis."[66]
By refusing to conduct an investigation and by allowing the testimony
of merely a single biased witness to convict Mr. Masih, the court
effectively shifted the burden of proof onto the Petitioner to prove
he did not commit the crimes alleged. This burden shifting was only
reinforced by the requirement that judges in all blasphemy cases be
Muslim. Thus, the Petitioner was presumed guilty. Therefore, the trial
court's actions violated Article 11(1) of the Universal Declaration
and Principle 36 of the Body of Principles that enshrine the right
to be presumed innocent.[67]
IV. The Execution of the Petitioner
Would be Cruel, Inhumane, Disproportionate, and Arbitrary
Mr. Masih has been sentenced to death
for blaspheming the name of the Holy Prophet (PBUH) in violation of
Pakistan Penal Code § 295C. In numerous documents, the United
Nations has deemed the death penalty to violate the fundamental right
to life[68] , which
countries are obligated to protect under Article 3[69]of
the Universal Declaration.[70]
The United Nations has also deemed the death penalty to be a "cruel,
inhuman or degrading punishment,"[71]
which is prohibited under Article 5[72]
of the Universal Declaration. Moreover, the Petitioner's crime can
hardly be considered among the "most serious" even accepting
the prosecution's case at face value.[73] As such, sentencing the Petitioner
to death for blasphemy is disproportionate to the crime itself.
Section 295C was applied to the Petitioner and the death sentence
was imposed because Mr. Masih is a religious minority. This analysis
was only confirmed by the urgent appeal sent to the Government of
Pakistan by Ms. Asma Jahangir, Special Rapporteur for Extrajudicial,
Summary, or Arbitrary Executions. Presumably, Ms. Jahangir would not
have sent such an appeal unless she believed that executing Mr. Masih
would, in fact, be a summary or arbitrary execution.[74] Under these
circumstances, carrying out the execution of Mr. Masih would compound
the Government of Pakistan's violations of the Universal Declaration
that began with Mr. Masih's arrest, continued through his conviction,
and has been perpetuated through his prolonged detention.
Conclusion
1. For the reasons stated herein, the Petitioner
should be immediately released from detention.
2. Pending this result, the Petitioner's conviction should be expunged
and a new trial should be conducted in a manner that conforms with
the internationally-recognized rights and fundamental freedoms discussed
above and embodied in the Universal Declaration and Body of Principles.
V. INDICATE INTERNAL STEPS, INCLUDING
DOMESTIC REMEDIES, TAKEN ESPECIALLY WITH THE LEGAL AND ADMINISTRATIVE
AUTHORITIES, PARTICULARLY FOR THE PURPOSE OF ESTABLISHING THE DETENTION
AND, AS
APPROPRIATE, THEIR RESULTS OR THE REASONS WHY SUCH STEPS OR REMEDIES
WERE INEFFECTIVE OR WHY THEY WERE NOT TAKEN.
Mr. Masih was tried before Judge Abdul Khan in the Sahiwal Trial Court.
After being convicted and sentenced to death on 20 April 1998, Mr.
Masih's lawyers appealed the conviction. Justices Khawaja Muhammad
Sharif and Naeem Ullah Khan Sherwani of the Multan Bench of the Lahore
High Court affirmed this judgment on 24 July 2001. The case is currently
being appealed to the Supreme Court of Pakistan.
As described in this Petition, these remedies were ineffective because
Mr. Masih is a religious minority and the atmosphere surrounding blasphemy
trials denies those accused of a fair trial and appeal.
VI. FULL NAME AND
ADDRESS OF THE PERSON(S) SUBMITTING
THE INFORMATION (TELEPHONE AND FAX NUMBER, IF
POSSIBLE).
Jared Genser
Freedom Now
P.O. Box 30126
Bethesda, Maryland 20824-0126
United States of America
Telephone: (001) 301-279-9536
jared_genser@freedom-now.org
[1]
The Holy Prophet (PBUH) refers to Muhammed and
PBUH is an acronym for “Peace Be Upon Him”, a sign of respect.
[2]
Mr. Masih’s initial appeal to the Multan Bench
of the Lahore High Court was denied on 24 July 2001. See
Amnesty International, Pakistan: Blasphemy Laws Should Be Abolished,
News Service #148, ASA 33/023/2001, 21 August 2001.
[3]
Maggie O’Kane, “Two Faiths, One Bullet”, The
Guardian, 27 June 1998.
[4]
See Christian Solidarity Worldwide, Case
Study Pakistan: AyubMasih, <www.csw.org.uk>.
[5]
SeeHuman
Rights Watch World Report 1999: Pakistan
[6]
SeeAmnesty
International, Pakistan: Insufficient Protection of Religious
Minorities, ASA 33/008/2001, May 2001, at 12.
[7]
Report of the Working Group on Arbitrary Detention, E/CN.4/1998/44,
19 December 1997, Annex 1 at ¶ 22-24.
[8]Lack
of regular access to the Petitioner renders it impossible to obtain
all of the information requested in the Working Group’s model questionnaire
at this time. The Working Group has consistently stated that inability
to provide all of the information requested in the model questionnaire
“shall not directly or indirectly result in the inadmissibility of
the communication.”See, e.g., Report of the Working Group on
Arbitrary Detention, E/CN.4/1997/4, 17 December 1996, Annex 1 at ¶
8.
[9]
See Constitution of Pakistan, Art. 20, 36 (1973).Pakistan
is an Islamic Republic in which 95 percent of the population is Muslim.See
2000 Country Reports on Human Rights Practices (Pakistan),
Released by the Bureau of Democracy, Human Rights, and Labor, U.S.
Department of State, February 2001.tn10
[10]See
2000 Country Reports on Human Rights Practices (Pakistan),
Released by the Bureau of Democracy, Human Rights, and Labor, U.S.
Department of State, February 2001.
[11]See
Amnesty International, Pakistan: Insufficient Protection of Religious
Minorities, ASA 33/008/2001, May 2001, at 59; see also
Report of the Special Mr. Implementation of the Declaration on
the Elimination of All Forms of Intolerance and of Discrimination
Based on Religion or Belief, Visit to Pakistan, E/CN.4/1996/95/Add.
1, 2 January 1996, at ¶¶ 14-15. Please note that the fine imposed
by § 295C is not in lieu of the sentence of death.
[12]See
M.L. Shahani, Testimony Before the U.S. Commission for International
Religious Freedom, 18 September 2000, at ¶ 7. Mr. Shahani is a prominent Pakistani lawyer
who formerly served as both Advocate General of Sind and as a Judge
of the High Court of Sind.
[13]Id.
[14]Amnesty
International, Pakistan: Insufficient Protection of Religious Minorities,
ASA 33/008/2001, May 2001, at 3
.
[15]See id.
[16]See
2000 Country Reports on Human Rights
Practices (Pakistan), Released by the Bureau of Democracy, Human Rights,
and Labor, U.S. Department of State, February 2001.
[17]Report
of the Special Rapporteur Mr. Abdelfattah Amor, Implementation of
the Declaration on the Elimination of All Forms of Intolerance and
of Discrimination Based on Religion or Belief, Visit to Pakistan,
E/CN.4/1996/95/Add. 1, 2 January 1996, at 72.
[18]See
G.A. Res. 36/55, 25 November 1981.
[19]Report
of the Special Rapporteur Mr. Abdelfattah Amor, Implementation of
the Declaration on the Elimination of All Forms of Intolerance and
of Discrimination Based on Religion or Belief, Visit to Pakistan,
E/CN.4/1996/95/Add. 1, 2 January 1996, at 82.
[20]Amnesty
International, Pakistan: Insufficient Protection of Religious Minorities,
ASA 33/008/2001, May 2001, at 12.
[21]See
Transcript, Sahiwal Sessions Court, 8 January 1998.
[22]
In addition, the Bishop also pointed out it was highly unlikely the
allegations were based on fact. Neither Mr. Masih nor the complainant
could read English and would know little about the book. See Amnesty
International, Pakistan: Insufficient Protection of Religious Minorities,
ASA 33/008/2001, May 2001, at 12.
[23]See
id.; see also Asian Human Rights Commission Urgent Appeals Program,
Urgent Appeals Desk, Pakistan: Death Sentence for Alleged Blasphemy,
<www.ahrchk.net>, Posted 3 August 2001.
[24]See
Asian Human Rights Commission Urgent Appeals Program, Urgent Appeals
Desk, Pakistan: Death Sentence for Alleged Blasphemy, <www.ahrchk.net>,
Posted 3 August 2001.
[25]
See id; see also Human Rights Watch World Report 1999: Pakistan.
[26]See
Human Rights Watch World Report 1999: Pakistan.
[27]See
Transcript, Sahiwal Sessions Court, 8 January 1998.
[28]See
Maggie O'Kane, "Two Faiths, One Bullet", The Guardian, 27
June 1998.
[29]See
Asian Human Rights Commission Urgent Appeals Program, Urgent Appeals
Desk, Pakistan: Death Sentence for Alleged Blasphemy, <www.ahrchk.net>,
Posted 3 August 2001.
[30]See
Maggie O'Kane, "Two Faiths, One Bullet", The Guardian, 27
June 1998.
[31]See
Amnesty International, Pakistan: Insufficient Protection of Religious
Minorities, ASA 33/008/2001, May 2001, at 12.
[32]See
Asian Human Rights Commission Urgent Appeals Program, Urgent Appeals
Desk, Pakistan: Death Sentence for Alleged Blasphemy, <www.ahrchk.net>,
Posted 3 August 2001.
[33]See
Asian Human Rights Commission Urgent Appeals Program, Urgent Appeals
Desk, Pakistan: Death Sentence for Alleged Blasphemy, <www.ahrchk.net>,
Posted 3 August 2001, citing Nawa-e-Waqt Newspaper, Multan, 26 July
2001.
[34]See
G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948) ("Universal
Declaration").
[35]See
Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment, G.A. Res. 43/173, annex, 43 U.N. GAOR
Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988) ("Body of Principles").
[36]The Cairo Declaration
on Human Rights in Islam, issued by the Organization of the Islamic
Conference at the Nineteenth Islamic Conference of Foreign Ministers,
Muharam 14, 1411 A.H., August 8, 1999 ("Cairo Declaration").
The Cairo Declaration applies to all the countries of the Organization
of Islamic Conference including Pakistan.
[37]The
right of non-discrimination is reiterated in the Cairo Declaration
on Human Rights in Islam. Article 1 of the Cairo Declaration states
"[a]ll men are equal in terms of basic human dignity and basic
obligations and responsibilities, without any discrimination on the
grounds of . . . religious belief . . . ."
[38]See
Universal Declaration, Article 2.
[39]See
Universal Declaration, Article 7.
[40]Article
18 of the Universal Declaration states "[e]veryone has the right
to freedom of thought, conscience, and religion; this right includes
freedom to change his religion or belief, and freedom, either alone
or in community with others and in public or private to manifest his
religion or belief in teaching, practice, worship, or observance."
Similarly, Article 18(a) of the Cairo Declaration states "e]veryone
shall have the right to live in security for himself [and] his religion
. . . ."
[41]See
2000 Annual Report on International Religious Freedom: Pakistan, Released
by the Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, September 2000; see also Human Rights Watch World Report
1999: Pakistan; Amnesty International, Pakistan: Insufficient Protection
of Religious Minorities, ASA 33/008/2001, May 2001, at 59; Report
of the Special Rapporteur Mr. Abdelfattah Amor, Implementation of
the Declaration on the Elimination of All Forms of Intolerance and
of Discrimination Based on Religion or Belief, Visit to Pakistan,
E/CN.4/1996/95/Add. 1, 2 January 1996, at 82.
[42]In
Mr. Habibullah and Others v. Government of Pakistan, the Working Group
found the conviction of members of the Ahmadi minority faith under
§ 295C to be a violation of the right to freedom of religion
and conscience under Article 18 of the Universal Declaration. See
E/CN.4/1997/4/Add.1, Decision No. 10/1996, Adopted 23 May 1996, at
5(e).
[43]Amnesty
International, Pakistan: Insufficient Protection of Religious Minorities,
ASA 33/008/2001, May 2001, at 12.
[44]See
id.; see also Asian Human Rights Commission Urgent Appeals Program,
Urgent Appeals Desk, Pakistan: Death Sentence for Alleged Blasphemy,
<www.ahrchk.net>, Posted 3 August 2001.
[45]See
Asian Human Rights Commission Urgent Appeals Program, Urgent Appeals
Desk, Pakistan: Death Sentence for Alleged Blasphemy, <www.ahrchk.net>,
Posted 3 August 2001.
[46]The
Working Group has held "[a]lthough the detention may be regarded
as being in conformity with national legislation, it is not in keeping
with the relevant standards set forth in the Universal Declaration
of Human Rights." Felix Carcases and Others v. Cuba, Opinion
No. 1/1998, Communication of 11 December 1997, at 13(b); see also
Liu Xiaobo v. China, E/CN.4/2000/4/Add.1, Opinion No. 17/1999, Adopted
15 September 1999, at 11.
[47]Article
18(a) of the Cairo Declaration states "[e]veryone shall have
the right to live in security for himself [and] his religion . . .
."
[48]Report
of the Special Rapporteur Mr. Abdelfattah Amor, Implementation of
the Declaration on the Elimination of All Forms of Intolerance and
of Discrimination Based on Religion or Belief, Visit to Pakistan,
E/CN.4/1996/95/Add. 1, 2 January 1996, at 82.
[49]The
Ahmadi religion, whose members identify as Muslim, was declared in
1974 to be non-Muslim, for proclaiming its faith in a prophet after
Muhammad, and its followers have suffered physical attacks and discrimination
without being protected by the authorities. Mr. Habibullah and Others
v. Government of Pakistan, E/CN.4/1997/4/Add.1, Decision No. 10/1996,
Adopted 23 May 1996, at 5(b).
[50]Amnesty
International, Pakistan: Insufficient Protection of Religious Minorities,
ASA 33/008/2001, May 2001, at 2.
[51]
Body of Principles, G.A. Res. 43/173, annex, 43 U.N. GAOR Supp. (No.
49) at 298, U.N. Doc. A/43/49 (1988).
[52]See
Asian Human Rights Commission Urgent Appeals Program, Urgent Appeals
Desk, Pakistan: Death Sentence for Alleged Blasphemy, <www.ahrchk.net>,
Posted 3 August 2001.
[53]Body
of Principles, G.A. Res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49)
at 298, U.N. Doc. A/43/49 (1988).
[54]G.A.
Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, A/6316 (1966),
999 U.N.T.S. 171, entered into force 23 March 1976 ("Covenant").
[55]
In addition, the Petitioner objects to the length
of time it has taken for his appeal. Mr. Masih was convicted and sentenced
on 20 April 1998 and his appeal was not heard until 24 July 2001 -
a three year and three month delay - during which time he suffered
in prison - and where he remains to this day.
[56]See,
e.g., Report of the Special Rapporteur on the Independence of Judges
and Lawyers, Mr. Param Cumaraswamy, E/CN.4/2000/61, 21 February 2000,
at 299 (describing how judges who refused to take a new oath of office
after the military coup were summarily dismissed).
[57]2000
Country Reports on Human Rights Practices (Pakistan), Released by
the Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, February 2001.
[58]Amnesty
International, Pakistan: Insufficient Protection of Religious Minorities,
ASA 33/008/2001, May 2001, at 2.
[59]See
M.L. Shahani, Testimony Before the U.S. Commission for International
Religious Freedom, 18 September 2000, at 7. Mr. Shahani is a prominent
Pakistani lawyer who formerly served as both Advocate General of Sind
and as a Judge of the High Court of Sind.
[60]
See Human Rights Watch World Report 1999: Pakistan.
[61]See
Asian Human Rights Commission Urgent Appeals Program, Urgent Appeals
Desk, Pakistan: Death Sentence for Alleged Blasphemy, <www.ahrchk.net>,
Posted 3 August 2001.
[62]See
id. citing Nawa-e-Waqt Newspaper, Multan, 26 July 2001.
[63]See
Report of the Special Rapporteur on the Independence of Judges and
Lawyers, Mr. Param Cumaraswamy, E/CN.4/1998/39, 12 February 1998,
at Pakistan 2. Mr. Cumaraswamy also noted that at least seven judges
and lawyers who had provided legal aid to people accused of blasphemy
were reported to have been targeted in drive-by shootings and assassinations.
Among these were Ms. Asma Jahangir, current Special Rapporteur for
Extrajudicial, Summary, or Arbitrary Executions, who had represented
the defendants before Judge Bhatti.
[64]See
Asian Human Rights Commission Urgent Appeals Program, Urgent Appeals
Desk, Pakistan: Death Sentence for Alleged Blasphemy, <www.ahrchk.net>,
Posted 3 August 2001.
[65]See
Human Rights Watch World Report 1999: Pakistan.
[66]
See Amnesty International, Pakistan: Insufficient
Protection of Religious Minorities, ASA 33/008/2001, May 2001, at
12.
[67]Furthermore,
the Working Group has stated the inability of a government to produce
any independent evidence that the defendant has committed the crimes
alleged compels the release of the defendant. See Father Hillary Boma
Awul and Others v. Sudan, Opinion No. 29/1999, Adopted 30 November
1999, at 26(b).
[68]See,
e.g., Report of the Sixth United Nations Congress on the Prevention
of Crime and Treatment of Offenders, A/CONF.87/14/Rev.1 (1981). In
1971, the U.N. General Assembly declared its desire that "this
form of punishment [be abolished] in all countries. G.A. Res. 2857,
A/8429 (1971).
[69]Article
3 states "[e]veryone has the right to life, liberty, and security."
[70]The
former Special Rapporteur on Extrajudicial, Summary, or Arbitrary
Executions, Mr. Bacre Waly Ndiaye, summarized the current state of
international law: "Although the death penalty is not yet prohibited
under international law, the desirability of its abolition has been
strongly reaffirmed on different occasions by United Nations organs
and bodies in the field of human rights, inter alia by the Security
Council, the Human Rights Committee, the General Assembly and the
Economic and Social Council." Mission Visit to the United States
of America, Report of the Special Rapporteur on Extrajudicial, Summary
or Arbitrary Executions, Submitted Pursuant to Commission Resolution
1997/61, E/CN.4/1998/68/Add.3, at 13 (1998).
[71]A/CONF.87/9,
at 98 (1980).
[72]Article
5 states "[n]o one shall be subjected to torture or to cruel,
inhuman, or degrading treatment or punishment."
[73]
While Pakistan is not a party to the International
Covenant on Civil and Political Rights, the Covenant can be generally
instructive as a means to interpret the Universal Declaration. The
Covenant states that the death penalty should be imposed only for
the "most serious" of crimes. G.A. Res. 2200A (XXI), 21
U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S.
171, entered into force 23 March 1976 ("Covenant").
[74]Report
of the Special Rapporteur, Extrajuducial, Summary, or Arbitrary Executions,
E/CN.4/1999/39/Add.1, 6 January 1999, at 179.
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