 | Monday, June 21, 2010 |
VIEW: The liabilities of our state — Yasser Latif Hamdani
The state is not only negligent of its duty in protecting the faith of the Ahmedis, it is directly criminally liable under its own Blasphemy Law every time it prints a passport or an identity card application
A first information report, commonly known as an FIR, has been lodged in Lahore against Facebook under section 295 C of the Pakistan Penal Code (PPC). Legally, this raises some very poignant questions about the criminal liability of a corporation, i.e. a business with legal identity.
The issue has been the subject of much litigation, most notably and recently the Citizens United v Federal Election Commission, 558 US 50 (2010), in which the US Supreme Court held that any limits on a corporation’s political funding would be tantamount to a violation of the first amendment to the US constitution. It remains to be seen, of course, if the corporations are going to get the right to vote as well but needless to say, this judgement has, for all practical purposes, created room for all sorts of mischief, including criminal liability for a corporation. Therefore, a criminal case against Facebook, absurd as it may seem, is legally possible, thanks to the landmark American judgement above, amongst other things, even if the established Pakistani case law might exempt it on other grounds.
What I am interested in, however, is not Facebook, which is, after all, a foreign company, but the criminal liability that may now also be extended to the ‘state’ in Pakistan, which is also, like a corporation, a legal artificial person. That a sovereign state — yes we do love the word sovereign, do we not? — is a legal person under the law is an undisputed fact. This primarily means that the state in Pakistan is collectively bound by the laws of Pakistan, including but not limited to the PPC. Now consider Section 295-A of the PPC, which states: “Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs: Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of the citizens of Pakistan, by words, either spoken or written, or by visible representations insults the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to 10 years, or with fine, or with both.”
Now let us here revisit some facts. The Second Amendment has, quite regrettably, laid down in no uncertain terms that members of the Ahmediyya sect, of either the Qadiani or Lahori jamaats, form a separate religion, with distinct religious beliefs. Now, with that in mind, let us dwell upon the declaration that every Pakistani Muslim is asked to sign when getting either his national identity card or his passport:
“I consider Mirza Ghulam Ahmad Qadiani to be an imposter prophet…” I spent some time looking for a positive meaning of the word ‘imposter’ or ‘impostor’ but found none whatsoever. The meanings I did find were: one who fakes, charlatan, fake, faker, fraud, humbug, mountebank, phoney, pretender, quack. If this is not ‘insulting’ and a ‘deliberate’ and ‘malicious’ act to outrage the feelings of a community then I do not know what is. Now clearly, constitutionally recognised Muslims in the territories of Pakistan do not believe that Mirza Ghulam Ahmad Qadiani was a nabi or a prophet. Those who believe in his prophethood are no longer recognised, according to the Second Amendment of the constitution of the Islamic Republic of Pakistan, as Muslims. Yet, it goes without saying that in doing so and admitting that they form a separate faith unto themselves, there are constitutional and legal protections that apply to the Ahmedis and their faith. The state is not only negligent of its duty in protecting the faith of the Ahmedis, it is directly criminally liable under its own Blasphemy Law every time it prints a passport or an identity card application. It goes without saying that no petitioner is going to petition, no lawyer is going to take the case and no judge is going to rule according to the law in this matter. Moral courage is lacking in our country, especially when it comes to enforcing the rights of minorities.
However, does the state not have any responsibility to at least attempt to abide by its own laws? Parliament recently restored the word ‘freely’ to the Objectives Resolution as it forms the substantive part of Pakistan’s constitution under Article 2-A. Even without the word ‘freely’, the resolution promised that “adequate provision shall be made for the minorities to profess and practise their religions and develop their cultures”. On the contrary, the state has made every provision to hamper the profession and practice of the Ahmedi minority’s religion. It has, indeed, through Ordinance XX of 1984, clamped down on and, for all practical purposes, criminalised the Ahmedi mode of worship.
Pakistan recently ratified the International Covenant of Political and Civil Rights. Article 18 of the said covenant — which may not be derogated — lays down:
“1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion, which would impair his freedom to have or to adopt a religion or belief of his choice.” In Pakistan, after Zaheeruddin v the State, there is no scope for the implementation of this covenant, regardless of the good intentions of the present government. So long as Pakistan does not return to Jinnah’s original conception of an impartial state based on justice, fair play and complete equality of citizenship, it is bound to rank amongst the worst human rights violators and abusers in the world.
A first information report, commonly known as an FIR, has been lodged in Lahore against Facebook under section 295 C of the Pakistan Penal Code (PPC). Legally, this raises some very poignant questions about the criminal liability of a corporation, i.e. a business with legal identity.
The issue has been the subject of much litigation, most notably and recently the Citizens United v Federal Election Commission, 558 US 50 (2010), in which the US Supreme Court held that any limits on a corporation’s political funding would be tantamount to a violation of the first amendment to the US constitution. It remains to be seen, of course, if the corporations are going to get the right to vote as well but needless to say, this judgement has, for all practical purposes, created room for all sorts of mischief, including criminal liability for a corporation. Therefore, a criminal case against Facebook, absurd as it may seem, is legally possible, thanks to the landmark American judgement above, amongst other things, even if the established Pakistani case law might exempt it on other grounds.
What I am interested in, however, is not Facebook, which is, after all, a foreign company, but the criminal liability that may now also be extended to the ‘state’ in Pakistan, which is also, like a corporation, a legal artificial person. That a sovereign state — yes we do love the word sovereign, do we not? — is a legal person under the law is an undisputed fact. This primarily means that the state in Pakistan is collectively bound by the laws of Pakistan, including but not limited to the PPC. Now consider Section 295-A of the PPC, which states: “Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs: Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of the citizens of Pakistan, by words, either spoken or written, or by visible representations insults the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to 10 years, or with fine, or with both.”
Now let us here revisit some facts. The Second Amendment has, quite regrettably, laid down in no uncertain terms that members of the Ahmediyya sect, of either the Qadiani or Lahori jamaats, form a separate religion, with distinct religious beliefs. Now, with that in mind, let us dwell upon the declaration that every Pakistani Muslim is asked to sign when getting either his national identity card or his passport:
“I consider Mirza Ghulam Ahmad Qadiani to be an imposter prophet…” I spent some time looking for a positive meaning of the word ‘imposter’ or ‘impostor’ but found none whatsoever. The meanings I did find were: one who fakes, charlatan, fake, faker, fraud, humbug, mountebank, phoney, pretender, quack. If this is not ‘insulting’ and a ‘deliberate’ and ‘malicious’ act to outrage the feelings of a community then I do not know what is. Now clearly, constitutionally recognised Muslims in the territories of Pakistan do not believe that Mirza Ghulam Ahmad Qadiani was a nabi or a prophet. Those who believe in his prophethood are no longer recognised, according to the Second Amendment of the constitution of the Islamic Republic of Pakistan, as Muslims. Yet, it goes without saying that in doing so and admitting that they form a separate faith unto themselves, there are constitutional and legal protections that apply to the Ahmedis and their faith. The state is not only negligent of its duty in protecting the faith of the Ahmedis, it is directly criminally liable under its own Blasphemy Law every time it prints a passport or an identity card application. It goes without saying that no petitioner is going to petition, no lawyer is going to take the case and no judge is going to rule according to the law in this matter. Moral courage is lacking in our country, especially when it comes to enforcing the rights of minorities.
However, does the state not have any responsibility to at least attempt to abide by its own laws? Parliament recently restored the word ‘freely’ to the Objectives Resolution as it forms the substantive part of Pakistan’s constitution under Article 2-A. Even without the word ‘freely’, the resolution promised that “adequate provision shall be made for the minorities to profess and practise their religions and develop their cultures”. On the contrary, the state has made every provision to hamper the profession and practice of the Ahmedi minority’s religion. It has, indeed, through Ordinance XX of 1984, clamped down on and, for all practical purposes, criminalised the Ahmedi mode of worship.
Pakistan recently ratified the International Covenant of Political and Civil Rights. Article 18 of the said covenant — which may not be derogated — lays down:
“1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion, which would impair his freedom to have or to adopt a religion or belief of his choice.” In Pakistan, after Zaheeruddin v the State, there is no scope for the implementation of this covenant, regardless of the good intentions of the present government. So long as Pakistan does not return to Jinnah’s original conception of an impartial state based on justice, fair play and complete equality of citizenship, it is bound to rank amongst the worst human rights violators and abusers in the world.
Yasser Latif Hamdani is a lawyer. He also blogs at http://pakteahouse.wordpress.com and can be reached at yasser.hamdani@gmail.com
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