Monday, February 6, 2012

Privacy, Media and Pakistani Law

By Yasser Latif Hamdani

Two recent episodes have driven home that the people of Pakistan do not wish to live their lives in fear of misdirected religiosity and misguided zeal. The first one was the incident pertaining to Maya Khan and her ill-advised intrusion into the private lives of citizens. The second incident was where another such vigil-aunty from the Punjab Assembly moved a resolution to ban musical concerts at educational institutions in the province. Both these moves were heavily criticised and were widely denounced by the people.

Maya Khan and her abuse of the medium with which she has been entrusted is indicative of a national malaise whereby the fourth estate, i.e. the media, acts like a ‘shutar-bey-muhar’ (camel without reins) as the saying goes. By going around and asking people for their nikah-namas (marriage certificates), the misguided anchoress assumed the role of the judge, jury and executioner. Her actions are — in the view of this writer — a violation of the principles laid down by Chief Justice (CJ) Iftikhar Muhammad Chaudhry in his judgement in the famous Hasba Bill case, i.e. Reference No. 2 of 2005, which is reported in PLD 2005 SC 873.

Ms Khan, an employee of a private TV channel, pompously purported to act as a parallel judicial system intruding into the personal space of private citizens of Pakistan. In the aforesaid judgement, the honourable CJ lays down in paragraph 24-A that the “private life, personal thoughts and the individual beliefs of citizens cannot be allowed to be interfered with”. He goes on to declare in the unanimous opinion of Islamic jurists the only two articles of faith that even the state could enforce are ‘zakat’ (alms) and ‘salat’ (prayers) and even that as far as salat is concerned the only way is through “taaleem, tableegh, talqeen and targheeb” (education, preaching, advice and guidance).

Perhaps the most relevant part of that judgement is given in paragraph 51 where the honourable CJ said, while addressing the monitoring of ‘iftar’ and ‘traveeh’, “[The] said provision of law is not only vague but violates right of freedom of religion of citizen under Article 20.” Similarly in paragraph 60, the judgement states: “The provincial assembly failed to define expression ‘un-Islamic’. If the possibility of the unanimity amongst different sects, on a preliminary or basic concept, is not possible, as observed hereinabove, with reference to enquiry report of former Chief Justice of Pakistan Mr Justice Muhammad Munir, that religious jurists, who appeared before the Enquiry Court could not develop consensus on definition of Muslim, then how it is possible that there would be consistency between them on the definition of ‘un-Islamic’ or ‘in-human’ customs. In this country, as far as another segment of society, i.e. non-Muslims (minorities), is concerned, it is not clear whether they are also bound to follow Islamic and human customs?”

Then in paragraph 70 the judgement contends that the Hasba Bill could not survive constitutional scrutiny for violation of Article 2-A of the constitution, which guarantees fundamental rights of equality before law, freedom of thought, expression, belief, faith, worship and association subject to law and morality as well as the independence of the judiciary. It goes on to state that “by ousting the jurisdiction of courts, the rights of the citizens have been curtailed and the right of access to justice has also been denied”. The reason for enumerating various legal points of this judgement is that it operates as a bar on the state to infringe upon the privacy of the citizens of Pakistan. Therefore, the privacy of a citizen, his religious beliefs and his personal thoughts are paramount and inviolable under Pakistani law. This privacy can certainly not be breached by a private channel through an overzealous and misguided anchor.

Now we come to the issue of a similarly oppressive resolution forwarded by one Seemal Kamran and passed by the Punjab Assembly last week. It is true that the subsequent resolution sought to redress some of the ill-effects of this particular resolution. It is also true that a resolution is not a law but merely an expression of the House’s opinion. Be that as it may, the resolution operated, in stealth mode, to stifle musical concerts in educational institutions. After all, which educational institution is going to now consider holding a musical concert? Given that there are no commercial concerts happening, the concerts at educational institutions are the bread and butter for Pakistan’s musicians. In other words, the “expression of the opinion of the House” serves to limit freedom of trade, i.e. Article 18 of the constitution and freedom of expression, i.e. Article 19 of the constitution, both of which are fundamental rights. Perhaps the genius who devised this ridiculous resolution would mind explaining how this resolution addressed the Alhamra tragedy, which supposedly was the reason why this happened. It is tragic that logic and commonsense are so rare amongst our esteemed representatives of the provincial assembly.

Housewives and begums who have made it to the House through guaranteed women’s representation have done nothing to forward the cause of women’s rights but have come up time and again with ridiculous resolutions such as this. Not long ago, another shortsighted ‘legislator’ was up in arms against the Muslim Family Law Ordinance 1961, perhaps the only progressive piece of legislation in our legislative history, for being against Islam. At the time, she had also claimed that she would happily permit her husband to marry again and again. Perhaps it is time we considered putting some qualifications about who should be nominated on reserved women’s seats for women of the Punjab Provincial Assembly have proved that their presence is counter-productive and utterly harmful for the rights of women in Pakistan.

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