Saturday, April 28, 2012

SB 1070 : Arizona's controversial immigration law

By Yasser Latif Hamdani

The controversial immigration law - favoured by self styled libertarians- promises to invoke passions that date as far back as the American civil war- the question of the states' right to interpose.

So what does the law say:

For any lawful contact made by a law enforcement official or a law enforcement agency…where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person
Kris Korbach who helped draft this law defines lawful contact in the following terms:
the officer is already engaged in some detention of an individual because he's violated some other law. ... The most likely context where this law would come into play is a traffic stop.

Thursday, April 26, 2012

Making aviation industry accountable

It is tragic that a country this size — of 180 million people, with a reasonably large aviation industry and a history that is the oldest in the region — has no aviation lawyers to speak of. This when the industry is no longer limited to just the state-owned airline, but there are other players involved. The Civil Aviation Authority (CAA), an autonomous public sector body operating under the Ministry of Defence, has no legal process, case law returns and no history of litigation. 

Part of this of course has to do with the underdeveloped field of tort in Pakistan. It has been 13 months since the Air Blue disaster, but there are no class action lawsuits yet. Had we been a ‘civilised’ country, officials of the CAA and the airline in question would have been hauled to court, and someone would have been made accountable. But not so in Pakistan, where civilised norms are and will remain a distant dream, primarily because our priorities lie elsewhere and the will of God remains an easy scapegoat for our own misdeeds and irresponsible conduct.

Our varying standards of constitutional due process

A 42-year-old hardworking, honest teacher at a government school in Rabwah was brutally tortured by police. The injuries he sustained led to his untimely demise. His name was Abdul Qudoos. The irony is that this law-abiding citizen for God knows what reason was picked up as a suspect in a murder investigation but was never formally charged. In a blatant violation of the constitutional rights guaranteed to the citizens of Pakistan under Article 10 of the Constitution, which requires production before a magistrate within 24 hours of the arrest beyond which custody is unlawful, Qudoos was tortured for many days and only allowed to go after it looked like he was not going to survive. 

Is secularisation of Pakistan possible

In view of the Constitution of 1973 and the many authoritative pronouncements of our judiciary regarding Pakistan’s status as an Islamic state, it is logical to question whether secularisation of Pakistan is possible. Opponents of a secular Pakistan claim that since the state itself was founded in the name of Islam, secularisation is antithetical to it. This post hoc view on the raison d’etre of Pakistan is inconsistent with the historical facts leading to the partition of India and should have been void ab initio. However, the enactment of the 1973 constitution has given it the cover of legal fiction, i.e. Islamic ideology, which is said to be the grundnorm of the state. 

Our stock myth is that our society was largely moderate until it was radicalised by the state’s Islamisation in the last few decades, when the reality is the opposite. The state’s Islamisation 1970s onwards was a faithful reflection of the bigotry that was ingrained in our society. The famous Munir Report in 1954 details instances of religious extremism and fanaticism not just in the early years of the new state but also during the British Raj. Parties like the Majlis-e-Ahrar, who paradoxically wanted a united India under the banner of the Congress Party and were dead set against the creation of Pakistan, had been involved in numerous incidents of religious violence in Punjab against Ahmedis, Shias and non-Muslim communities. The urban centres of Punjab had witnessed religious violence between Hindus, Sikhs and Muslims since the early 1900s. The decade of the 1920s saw further deterioration of the communal situation, where firebrand Muslim and Hindu orators were at each other’s throats in public and involved in the so-called ‘pamphlet wars’. The Ahrar particularly benefited from the Shahid Ganj dispute in the 1930s politically. 

Similarly, the anti-Ahmadiyya movement started by the Ahrar was wildly popular in Punjab. Ahrar had used the anti-Ahmadiyya movement both before and after partition primarily to attack the Muslim League that allowed Ahmedis to be members of the party. Shias were also attacked, especially because the key leaders of the Muslim League were and historically had been Shias.

The Punjab Muslim League was not blameless either. In the 1946 elections, it too sullied its good name by resorting to abrasive religious rhetoric against the Unionist Party, which on its part also utilised clerics to denounce Muslim League leaders as kafirs (infidels). After partition, Punjab Leaguers actively encouraged the Ahrar against the central Muslim League leadership in Khawaja Nazimuddin’s tenure. All this is documented in the previously mentioned Munir Report. 

The key difference is that Pakistani leaders before 1970 — more or less unanswerable to the electorate — were better placed to withstand populist sentiments. Very logically, the necessary empowerment of the common people that accompanied Zulfiqar Ali Bhutto’s rise to power also meant those in power could no longer afford to remain ambivalent to the ideas of these new participants in national life. Therefore, since the 1970s, Pakistan has seen a more vocal religious right with greater mob support. The ill-advised Afghan jihad and the state’s co-option of the Islamist sentiment to create warriors of Allah added to this radicalisation. 

Pakistan's violation of its international obligations

The Islamic Republic of Pakistan signed the International Covenant on Civil and Political Rights (ICCPR) in 2008 and ratified it with reservations in 2010. In 2011, the Pakistan government, on instructions from Prime Minister Gilani, withdrew almost all of the reservations. Hence, since July 2011, Pakistan has ratified the ICCPR almost completely. This means that Pakistan has committed itself to upholding the civil rights and political rights of its citizens almost entirely. To get a full sense of the legal position, it is instructive to read an article by Qasim Rashid, a young Pakistani-American lawyer, in the Richmond Journal of Global Law and Business (vol.11/1), which lays down in some detail the history of the ICCPR, Pakistan’s ratification and subsequent lapses.