Maria Zulfiqar Khan's Illegal and unconstitutional raid

By Yasser Latif Hamdani

It is a tragedy that seemingly reasonable young women in the media have taken to acting like vigilantes. I do not wish to comment on what compulsions there exist for these women to resort to such behavior, but I will comment on the patent illegality of TV Vigilantes.

First of all these actions of TV Vigilantes violate Article 14 of the Constitution of the Islamic Republic of Pakistan. Privacy of a private premises is inviolable under the constitution as well as under Islam.  The Supreme Court of Pakistan had struck down on the Hasba Bill on the grounds that it violated human dignity, liberty and privacy. In what is a landmark judgment on privacy rights,  the Supreme Court ruled that an Islamic state has no mandate in infringing personal space, liberty and privacy. Maria Zulfiqar Khan not only violated the privacy of what was a private premises but enlisted the help of the state i.e. police officials in doing so.

Pakistan and the global blasphemy law

The miscreants who attacked a Hindu temple in Karachi to prove their religious bona fides have been charged under Section 295-A of the Pakistan Penal Code. It is about time. Now let us also consider the state of that forced minority the faithful love to hate, i.e. the Ahmedis. Who is going to bell the cat and charge the passport offices of the country under Section 295-A for routinely abusing this community?

The state, with deliberate and malicious intent, through words written describes the founder of the Ahmaddiya Jamaat as an ‘imposter’ and a ‘liar’. The state must realise that it cannot have it both ways. It cannot declare an entire community non-Muslim and then deny them the protections that are granted to other religions. If Ahmedis constitute a religious minority, then its founder falls squarely within the ambit and scope of Section 295-A. Ahmedis may be considered non-Muslim, but does that mean they are to be considered non-citizens as well?

New Provinces

By Yasser Latif Hamdani


The emergence of new provinces holds out the most exciting promise of uniform development in our history. It also presents a constitutional solution to the lopsided federation that has existed so far. The number one issue in Pakistan that threatens the fabric of this nation state that exists today in the region is that of the inability of the central state structure to harmonise contending notions of identity working at cross-purposes. Therefore, the creation of new provinces is a welcome step in the right direction — the de-centralisation and rebuilding the state on the idea of unity in diversity. 

The first outcome of this development is the re-configuration of the Senate. Inevitably, this means a reduction of seats allocated to each province in the Senate. This obviously means that Punjab as it stands today will triple its representation in the Senate but given that there is no guarantee that the three provinces replacing the main big province will act in unison, the situation should be acceptable to the smaller provinces. This may however serve as an example for other provinces, which may be tempted to maximise control and representation by choosing voluntary division.

Judgments for Section 26 of the General Clauses Act 1897

I.                  Supreme Court of Pakistan

1.      Muhammad Noor v. Member Board of Revenue; PLD 1985 SC 335

In this case the petitioner had been tried and convicted under Section 302 of the PPC for murder. The Deputy Commissioner presiding over the Criminal Tribunal constituted under Criminal Law (Special Provisions) Ordinance II had sentenced him to 14 years rigorous imprisonment. The petitioner appealed this before the Commissioner Makran Division who was also hearing the confirmation reference for the aforesaid conviction. Commissioner accepted the reference and dismissed the said appeal. The petitioner then filed a revision petition before Member Board of Revenue, which was also dismissed at which time Mr. Noor moved the High Court through a Constitutional Petition taking the ground that his case was triable under Sections 15 and 17(4) of the Offence against Property (Enforcement of Hadd) Ordinance 1979 as Harabba and not under the aforesaid Criminal Law Ordinance II. It is pertinent to mention here that the police had submitted another challan under the aforesaid Property (Enforcement of Hadd) Ordinance and Section 393 of the PPC. Held that Section 403 of the Criminal Procedure Code 1898 (“Cr.PC”) and Section 26 of the GCA provide that “if an act or omission constitutes offence/offences under two or more enactments, then the offender though can be prosecuted under either or any of those enactments, but cannot be punished twice for the same offence.“ (See third last paragraph on Page 340).

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.

Ehteram-e-Ramadan Ordinance is unIslamic and unconstitutional

COMMENT: There is no compulsion in religion —Yasser Latif Hamdani

A thousand years before the age of enlightenment and before the idea of religious toleration took root in the west, the Holy Quran said, “There is no compulsion in religion” (2:256).

It is often forgotten, when we speak of Islam, that Islam’s approach was reformist. For example, the punishment for stoning to death for adultery existed long before Islam but Islam set the bar for evidence so high that it became virtually impossible for anyone to be stoned for adultery. For slavery, Islam created obligations on slave owners in terms of treatment of slaves and encouraged slaves to be mandatorily freed on the flimsiest excuse. Similarly, Islam strictly regulated the prevalent practice of polygamy by limiting it and further setting a standard for equal treatment that is hard to achieve.

Now our mullahs have forsaken substance and adopted form. Whereas Islam sought to civilise a tribal society, our mullahs’ take is to tribalise all civilisation. Where Islam sought to regulate polygamy and eradicate its social evil, our mullahs’ take is that marrying more than once is a necessary part of faith — ironically a Mormon idea. Whereas Islam humanised and rationalised existing customs and tribal traditions such as rajm (stoning) by introducing strict proof, our mullahs want to de-humanise all laws and while Islam spoke of equality of all mankind and religious freedom at a time when these concepts were unheard of, our mullahs want to end equality and religious freedom in the information age.

The closest precedent for Ehteram-e-Ramzan Ordinance comes not from Islam but from Christian fundamentalists in the Midwest who had enacted the ‘Blue Laws’ that forbade selling of non-essentials on Sunday out of respect for the Christian Sabbath

Debt recovery law faces due-process challenge in Pakistan

By Yasser Latif Hamdani

B.N. Rau, Constitutional Adviser to the Constituent Assembly that was drafting the Constitution of India (“the Indian Constitution”), travelled to the U.S.A, where he met U.S. Supreme Court Justice Felix Frankfurter. The latter advised him against including the phrase ‘due process’ in the Indian Constitution, and hence, in 1949, the phrase was not included in the text of the Indian Constitution. Indian courts, however, repeatedly located ‘due process’ in Article 14 of the Indian Constitution instead. One could, without exaggeration, describe the Pakistani legal tradition as India-lite (with a flavour of Islam). The Constitutions of 1956, 1962, and 1973 all avoided the use of the term ‘due process’ in keeping with the Indian tradition. In 2010, when Pakistan’s Parliament passed the Eighteenth Amendment to the Pakistan’s Constitution, a new article - Article 10-A - was introduced. It reads:

“Article 10-A: For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to fair trial and due process.”

Read more here.

Legal Minds of Pakistan

Book recommendation: Before Memory Fades - An Autobiography


By Yasser Latif Hamdani

Any legal scholar picking up jurisprudence in Pakistan would be under the impression that Pakistan and India never separated. The reliance Pakistani jurists, judges and lawyers place on Indian judgements and case law is phenomenal. Indian precedents are not just persuasive – as in the case of English judgements and some American ones – but are given the status of near-law. This is hardly surprising, of course, given that most of the laws in Pakistan and India predate independence and very few, if any, have been updated in Pakistan. What is definite, however, is that Indian jurists and lawyers are certainly far superior as a whole when it comes to expounding law.

Defending the Constitution

Book recommendations:
1. Crossed Swords: Pakistan, Its Army, and the Wars Within (Oxford Pakistan Paperbacks)
2. Military Inc.: Inside Pakistan's Military Economy

By Yasser Latif Hamdani

Pakistan’s armed forces are a wing of the Federal Government of Pakistan, which controls defence (through Chapter 2 of Part XII of the Constitution of 1973 and the federal legislative list) as a purely federal subject. The chairman of the Joint Chiefs of Staff Committee, and the army, air and navy chiefs are appointed public servants carrying out responsibilities that fall in the purview of defence.

Labour Rights and 18th Amendment

Book recommendation on the greatest lawyer for labour in history: Clarence Darrow: American Iconoclast

By Yasser Latif Hamdani

The 18th Amendment to the constitution was welcomed by all who want to see Pakistan a truly federal, progressive and democratic state where the federating units and the centre are balanced in terms of power and rights. Pakistan vests residuary powers in constituent units but the net thrown by the federation – federal and concurrent legislative lists – was so wide that residuary powers amounted to very little. The abolition of the concurrent list devolves real powers to the provinces.

Presumptions and Due Process

Book recommendation: Due Process of Law: A Brief History

By Yasser Latif Hamdani

18th Amendment introduced Article 10-A to the Constitution of Pakistan. Consequentloy we have seen litigators in Pakistan challenging the Financial Institutions (Recovery of Finances) Ordinance 2001 on the ground that sections 9 and 10 of the statute attach a presumption of accuracy to bank's documents. It is therefore not out of place to consider how US- where due process comes from (see 14th Amendment of the US Constitution) - has tackled the challenge to the law of presumptions: