White is black

Pakistan Opinion

White is black

By Amina Jilani
June 05, 2010

The writer is a freelance columnist (amina.jilani@tribune.com.pk)

Has the time finally come for this nation to seriously consider removing the white strip from its national flag? Does anyone know or care what this strip symbolises? It has become obvious that few do, including the various leaderships who have topped us. The white strip, officially “one-fourth of the size of the flag nearest the mast” was added at the behest of the founder of this country to firmly denote the commitment of the nation-state to extending to its minority communities equal rights of citizenship — equal to all intents and purposes. And, remember, white is a call for peace.

Well, the equality was denuded within six months of the Founder’s death when on March 7, 1949, the Objectives Resolution was moved by none other than his loyal successor and chosen prime minister, Liaquat Ali Khan, and passed by the majority in the constituent assembly. Thus was the white strip rendered a joke, thus were intolerance and bigotry institutionalised with intent. Repercussions were not long coming. March 1953 saw the anti-Ahmadi disturbances in Punjab, which led to martial law. From then on, for the citizens of Pakistan equality became a distant dream.

That gentleman of secular tendencies, pseudo-socialist Zulfikar Ali Bhutto, furthered the cause of religiosity and all the rot that goes with it, with his 1973 constitution which apart from being chock-a-block with cynical provisions dictated by the majority religion, had as its preamble the Objectives Resolution, cementing the fact that the white strip was negated. He went a step further in 1974 when at the insistence of the pious Islamist party people he brought in his second amendment and in one fell swoop committed the first act of collective excommunication in the Muslim world — making a minority of those who since the birth of the country had been a part of the majority. The white strip since then is a shame we must all bear.

The massacres in Lahore on May 28 did not come out of the blue – the federal and provincial governments had fair warning. On February 7 the Washington Post carried a report by Pamela Constable relating how “a handful of radical clerics have been whipping up hostility” in Lahore towards the Ahmadis and other minority sects. And then there was the banner hung on The Mall that declared Jews, Christians and Ahmadis to be “enemies of Islam” and a signboard sponsored by the Punjab Government Auqaf Department pronouncing friends of Ahmadis to be enemies of Islam.

Over the past three decades the symbolism of the white strip on the country’s flag has been sullied beyond repair. We are hypocritical to the core. Spates of violence along religious and sectarian lines are the order of the day, yet few object — most ignore what is under their noses, they ignore the murder of citizens of Pakistan by their fellow citizens and jump up and down in what they take to be righteous indignation about wrongs done in foreign lands. The official reaction to May 28 was muted and meaningless, shaming — as were protests by the public in general. Gaza overtook Lahore in a canter, with ease.

There is really no need to schlep off to foreign waters to protest against murder and mayhem — there is more than enough of it here right at home, in the Islamic Republic of Pakistan. Putting our own house in order, ridding our own eyes of multiples motes is a must before we can with any justification adopt outside causes, mostly prompted by an unreasonable and unrealistic hatred for the sole superpower. It’s high time to get real.

Published in the Express Tribune, June 5th, 2010.

URL: http://tribune.com.pk/story/18820/white-is-black/

Legitimate discrimination

---Express Tribune, Pakistan

Pakistan

Legitimate discrimination

By Basil Nabi Malik
May 09, 2010

The writer is a lawyer with Malik, Chaudhry, Ahmed and Siddiqi in Karachi (basil.nabi@tribune.com.pk)

In my preceding article, I talked about the precariousness of defining the terms ‘Muslim’ and ‘non-Muslim’ in the Constitution of Pakistan. This article, in continuation, attempts to follow the unfortunate consequences of doing exactly that.

In addition to Article 260 discussed in the previous article, the constitution also contains Article 20 which guarantees every citizen the “right to profess, practice, and propagate his religion”, whereas it’s sub-article (b) allows every religious denomination and every sect “the right to establish, maintain and manage its religious institutions”. Both are subject to “law, public order and morality”. Looking at the same, one would think that any discrimination on the basis of one’s religion would be a violation of said article.

In addition to this, Articles 4 and 25 of the constitution, which require citizens to be treated in accordance with the law and mandate that everyone be equal before the law, amongst others, also ensure that discrimination on the basis of religion is not allowed. If any discriminatory law is made targeting a group, the said law is liable to be struck down, subject to a “reasonable classification” founded on a reasonable distinction and on a reasonable basis.

And this may very well be the reason that provisions are usually content neutral, meaning that certain actions are made punishable for all and sundry who undertake them, rather than certain groups.

However, the inclusion of Article 260 in the constitution seems to have complicated the situation at hand and made lawful certain provisions which would otherwise be termed discriminatory and illegal.

A case in point would be Section 298-B and Section 298-C of the Pakistan Penal Code which relates to Qadianis. According to them, “any person of the Qadiani group or the Lahori Group” cannot refer his or her place of worship as ‘masjid’, cannot call the call to prayer ‘azaan’ or recite it in any way similar to that of Muslims. It is interesting that as per this law, if someone from another group undertook these actions, presumably this section would have no issues with that. As per Section 298-C, with respect to the two groups mentioned above, it would be a crime to ‘pose’ as a Muslim, refer to your faith as Islam, or do anything which “either spoken or written, or by visible representations or in any manner whatsoever outrages the religious feelings of Muslims”.

On the face of it, these two sections of the Pakistan Penal Code seem to be plainly discriminatory. However, it seems that the Supreme Court, in 1993 SCMR 1718, due to Article 260, had no option but to come to a different conclusion. In a majority decision, the Supreme Court in this landmark case held that these sections were legal and in line with the Constitution. Article 260(3) was used as the foundation upon which the said provisions were held to be intra vires of the Constitution, wherein the specifying of certain groups was declared a reasonable classification in terms of the said Article. Amongst other things, it was stated by the Supreme Court that such provisions were “in advancement of the Constitutional mandate and not in derogation of it”.

Hence, in a nutshell, whereas the inclusion of Article 260 in the Constitution of Pakistan was dubious for the many reasons already enunciated, its implications are nonetheless probing in as much as it allows for the propagation of discrimination on the basis of one’s beliefs on the touchstone of the constitution.

In light of this, perhaps the political forces should take some time out of their busy schedules to review the said legal provisions which directly impact the lives of certain segments of Pakistani society, rather than dillydallying on other issues.

URL: http://tribune.com.pk/story/11928/legitimate-discrimination/

A matter of faith

---Express Tribune, Pakistan

A matter of faith

By Basil Nabi Malik
May 03, 2010

The writer is a lawyer with Malik, Chaudhry, Ahmed and Siddiqi in Karachi (basil.nabi@tribune.com.pk)

It is common knowledge that we are duty bound to follow and respect the Constitution of Pakistan and each and every one of its articles. However, the same becomes a tad bit difficult when certain unpalatable clauses are added which really have no business being in the constitution.

For example, if I were to ask anyone as to the definition of a ‘Muslim’, I am guessing the last place they’d look would be in the Constitution of Pakistan. However, lo and behold Article 260 of our constitution actually defines the term. Ironically, all this happened during the time of Zulfikar Ali Bhutto, though he was, of course, pressured to do this by certain religious quarters.

Although it was clearly a political move, the method was unique. Rather than to go into the intricacies and complications of trying to forge a unanimously agreed-upon definition, which many thought was next to impossible and perhaps even unnecessary, he thought it fit to zero in on an exclusionary clause which ‘enlightened’ us on what a Muslim could not be.

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However, clearly, this was the kind of medieval quackery that only ‘scheming politicians’ could think of. It took the likes of General Zia in 1985 to give us an affirmative definition of a Muslim, sans the discussions and attempts at consensus building, which in all likelihood, he probably found irrelevant. He did this in the form of the President’s Order No. 24 of 1985, whereby Article 260(3) was substituted with what can best be described as intriguing definitions of the terms ‘Muslim’ and ‘non-Muslim’.

The word ‘Muslim’ entailed: “a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified finality of the Prophethood of Muhammad (pbuh), the last of the Prophets and does not believe in, or recognise as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad (pbuh)”. General Zia, however, didn’t leave it at that.

For some odd reason, he didn’t feel that the people of the country would actually be able to understand the term ‘Muslim’ and so the definition of ‘non-Muslim’ was also inserted. The term ‘non-Muslim’ was defined as: “a person who is not a Muslim and includes a person belonging to the Christian, Hindu, Sikh, Buddhist or Parsi community, a person of the Qadiani Group or the Lahori Group who call themselves ‘Ahmadis’ or by any other name or a Bahai and a person belonging to any of the Scheduled Castes”.

Effectively, in one stroke, General Zia did what Justice Munir in the Munir Report of 1954 dreaded and forewarned against: the adoption of certain religious worldviews at the expense of others, thereby inducing divisions in society. To be more exact, after asking a variety of the ulema as to what the definition of a Muslim would entail and receiving varying responses, Justice Munir said in the report that: “keeping in view the several definitions given by the ulema [defining the term Muslim], need we make any comment except that no two learned divines are agreed on this fundamental.”

The point is that what business is it of the state to get into this whole matter of defining who is a Muslim and who isn’t. One would have thought that this is a matter best left to individuals themselves and is something to be assessed by their conduct and actions — and in any case it is a private matter for each individual. It’s a pity that the 18th amendment chose to ignore this in the present constitution.

URL: http://tribune.com.pk/story/10274/a-matter-of-faith/