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. 

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.

Institutional Balance

By Yasser Latif Hamdani
Many eminent jurists and  legal minds have weighed in on the issue of the Supreme Court’s recent judgements, including the National Reconciliation Ordinance (NRO) judgement and the subsequent painting of the prime minister prima facie as dishonest and in violation of his oath. There are, however, far simpler issues that a humble observer and student of political science and law may raise as to the recent goings on.
The first and foremost issue to my mind is the separation of powers and how the recent rulings of the Supreme Court of Pakistan have affected it.

Persecution of Ahmadis in the Islamic Republic

The basic premise on which we won ourselves Pakistan was that a permanent majority cannot and should not dominate a permanent minority on account of numeric strength. Yet contrary to that founding logic, Pakistan is today legally a totalitarian fundamentalist theocracy

A fresh round of hate has been unleashed against the hapless Ahmediyya community once again. A young woman has been expelled from her university for daring to stand up to hate speech against her community on campus in Lahore. In Rawalpindi, ignorant and boorish mobs have been agitating to close down an Ahmedi ‘place of worship’ for being ‘unconstitutional’. In other words, practising their own faith in their own space is deemed unconstitutional by a mob that has probably never opened the constitution. All the while this community goes on praying and fasting for Pakistan, where a majority continues to persecute them for believing differently.

Much Ado About Article 6

By Yasser Latif Hamdani

In the course of the Memogate scandal, a lot has been written and said by shrilled-voiced commentators on the application of Article 6 of the Constitution of 1973. To me this comes as a surprise because there is no way that anyone who has read Article 6 can imagine that it can be applied in any form to the Memogate scandal.

What does Article 6 aforesaid say? It reads:

“High treason. (1) Any person who abrogates or subverts or suspends or holds in abeyance, or attempts to hold in abeyance or attempts or conspires to abrogate or subvert or suspend or hold in abeyance the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason. (2) Any person aiding and abetting or collaborating the acts mentioned in clause (1) shall likewise be guilty of high treason. (2-A) An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any Court including the Supreme Court and a High Court. (3) Majlis-e-Shura (Parliament) shall by law provide for the punishment of persons found guilty of high treason.”

My Arguments before His Lordship Umar Ata Bandial in PTA-Blackberry Case 28.11.11

          In the Honourable Lahore High Court at Lahore

                             Yasser Latif Hamdani v. PTA and one other

______________________________________________________________________

Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973

______________________________________________________________________

ARGUMENTS

RESPECTFULLY SUBMITTED:

1. Article 19 of the Constitution of the Islamic Republic of Pakistan, 1973, reads :

Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence.

Submission:

1. Possible restrictions on freedom of speech, constitutional or unconstitutional, may be divided into two categories : 

a.       Restraints on freedom of speech and expression prior to an exercise of the same.

b.      Restraints on freedom of speech and expression after the exercise of the same.

The narrowest view of freedom of speech and expression is that of William Blackstone. In his commentaries on freedom of expression, Sir William Blackstone took the view that the terms freedom of speech, expression and press were aimed at liberating the individual from fetters of the first kind. In chapter XI of his famed Commentaries on laws of England, Sir William lays down his view:

The Road to hell

By Yasser Latif Hamdani

Thanks to Pakistan Telecommunication Authority (PTA), we are now a pornography-free society. Now our young boys and girls will grow up to be good Muslims unhindered by the evil temptations that the internet provided, especially boys. This is precisely what Pakistan needed — lots more testosterone and not outlet. We are now dynamite-like and on a very short fuse. Soon the whole world will know that we are all ticking time bombs. The porn-free Pakistanis will be a formidable force but for what? That bit we have not determined yet.

1973 Constitution is theocratic in form and substance

By Yasser Latif Hamdani (courtesy Daily Times)

While there is no consensus on whether Pakistan was envisaged as an Islamic or a secular state, there is remarkable consensus that Pakistan was not meant by the founding fathers to be a theocracy. Indeed, most Pakistanis insist that Pakistan was not envisaged as and is not a theocratic state but as a modern Islamic democratic state.