A little learning

Columnist

A little learning

   By Ardeshir Cowasjee

   Sunday, 11 Jul, 2010

Zulfikar Ali Bhutto brought in seven amendments, three concerned with ‘fixing’ the judiciary to his liking, two with furthering the cause of preventative detention, and one transforming a community of the majority into a minority, i.e. shaving it of its rights. — File Photo.

It is said to be a dangerous thing. And we in this Islamic Republic know better than many that it indeed is. However, having said that it is always good to pick up bits of knowledge along the way and learn — and we need never stop learning.

A.G. Noorani, political analyst, advocate of the Supreme Court of India, writes for this newspaper. His column of July 3 dealt with the doctrine of the ‘basic structure of a constitution’ and how this cannot be changed by amendments. It was relevant to our constitution and the present matter in the Supreme Court of Pakistan dealing with the issue of the 18th Amendment to the 1973 constitution, during the hearings of which our learned justices referred to its ‘basic structure’ but did not define it.

To some, the basic structure is embodied in the fundamental rights guaranteed by a constitution, to others it is the form of government — parliamentary or presidential. What was the basic structure of the 1973 constitution when it was promulgated?

Well, if it was the fundamental rights (Articles 8 to 28), then the basic structure was changed within four hours of its promulgation on Aug 14, 1973 when a presidential order declared that the state of emergency imposed in 1971 would continue for an unspecified period and that 10 of the guaranteed fundamental rights stood non-justiciable, i.e. suspended. So decreed Zulfikar Ali Bhutto, maker and promulgator, and his president had no qualms in signing the order. (Fundamental rights were twice suspended subsequently, by Ziaul Haq and Pervez Musharraf.)

Bhutto brought in seven amendments, three concerned with ‘fixing’ the judiciary to his liking, two with furthering the cause of preventative detention, and one transforming a community of the majority into a minority, i.e. shaving it of its rights.

From this we must assume that our ‘basic structure’ is not fundamental rights. So what is it? Well, come 1985 and Ziaul Haq brought in his Eighth Amendment which totally changed the form of government from parliamentary to quasi presidential, and introduced into the constitution matters of religion — his own unique brand of religion — which impinged on 59 articles and sub-articles of the constitution, thus debasing its tenor and spirit.

He made the Objectives Resolution an annex to and substantive part of the constitution, thus further betraying the desire and objective of the founder-maker of the country, Mohammad Ali Jinnah, who had unequivocally instructed his constituent assembly that “You may belong to any religion, or caste, or creed — that has nothing to do with the business of the state.”

Would one not say that any basic structure was thus completely undone?

Now, this present government, with much trumpeting, has introduced the 18th Amendment which it declares falsely has ‘restored’ the original 1973 constitution. One must ask the legislators, and also our honourable Supreme Court justices, how this has possibly been achieved when the constitution remains littered with the religious aspects of the Eighth Amendment? Is parliament not misleading the nation, is it not collectively conniving in an untruth?

In his column, Mr Noorani told us that the author of ‘the basic structure’ doctrine was Prof Dietrich Conrad who headed the law department of the South Asia Institute of the University of Heidelberg from its founding in 1963 to his retirement in 1997 (he died in 2001). According to Mr Noorani, he “single-handedly inspired a revolution in constitutional law,” namely the ‘basic structure’ limitation on powers to amend constitutions.

Indian lawyers took note of the doctrine in 1965 and it was laid down by the Supreme Court in the Kesavananda Bharati case in 1973. Courts in Pakistan have wavered in their position on the question and fallen shy of expressing an opinion (can someone tell me otherwise?). According to Conrad “there are, beyond the wording of particular provisions, systematic principles underlying and connecting the provisions of the constitution … [which] give coherence to the constitution and make it an organic whole.”

As to the 1973 constitution, or more precisely the 1985 constitution which is what we toil under today, what is it that gives it coherence and makes it an organic whole? Can any man answer this? Abdul Hafeez Pirzada can certainly answer on behalf of what was the 1973 constitution, and my old friend, the Jadoogar of Jeddah, Sharifuddin Pirzada, could undoubtedly enlighten us on the 1985 version. We need them to speak up. The cause of anxiety about the 18th Amendment is clear — it is how it affects our judiciary.Whilst Conrad was examining the emergency provisions of the Indian constitution and their use he correctly asserted that emergency powers were never intended to be used to improve the economy of a country. Provisions for the imposition of a state of emergency, in any part of a country, were unsound and its use would lead to the generation of a feeling of alienation among the people of that part of the country.

On the concept of the rule of law, Conrad had it that this could not be attained unless the judicial machinery was reformed to provide expeditious and effective remedies against the violation of laws. He also stressed that the right to basic necessities of life be judicially enforced, and that the existence of different personal laws be re-examined in the light of the right to equality under the constitution.

The 18th Amendment has not only irritated the judicial appointments issue, it has also done little to ensure the right to equality for the country’s citizens.

arfc@cyber.net.pk

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URL: www.dawn.com/wps/wcm/connect/dawn-content-l...-little-learning-170-hh-05

In our beginning is our end

Columnist

.

In our beginning is our end

   By Ardeshir Cowasjee

   Sunday, 20 Jun, 2010

Whatever progress we have made in Pakistan’s 63 years of life has been on the negative side, writes Ardeshir Cowasjee. — Photo by Reuters

We must read to remember. The early days of Pakistan were far from halcyon, though those of us who lived through them look back with some nostalgia. Whatever progress we have made in this country’s 63 years of life has been, as it turns out, on the negative side.

Where have we progressed in leaps and bounds? Well, in the scale of wholesale corruption, political and administrative ineptitude, and bigotry and intolerance and their accompanying violence — they were all there at the beginning which was in itself violent.

Perhaps the presence of founder-maker Mohammad Ali Jinnah for the first year of Pakistan’s life kept things somewhat in check, though his loyal lieutenants did take advantage of his state of health. His exhortations of Aug 11, 1947 to his constituent assembly were in vain.

All that he laid down — tolerance, equality of citizenship, the shunning of corruption, nepotism and jobbery, and above all that law and order was the first priority of any government — was all lost. It was never digested, the quality of manpower saw to that.

Having dipped into an OUP 2010 publication, The Culture of Power and Governance of Pakistan 1947-2008 by Ilhan Niazi, it has sadly dawned upon me how misplaced was the early enthusiasm for the new country and the belief that the words and teachings of Jinnah would prevail.

In January 1949, governor of the Punjab Francis Mudie sent a note to Prime Minister Liaquat Ali Khan complaining that Punjab Chief Minister Mamdot was one up on the centre and even Jinnah “every time that they have intervened and the feeling is growing that the centre is powerless even when the government is hopelessly corrupt and the administration paralysed … no questions of policy are even contemplated”.

The services were demoralised, ministers were interfering in the administration, “becoming more and more rapacious”. Land grabbing was the fashion from the start — the Punjab chief minister was described as “lazy, inefficient and a liar”, his main interest being the acquisition of evacuee land out of which he and his family and followers had all done splendidly.

The same applied to many other politicians and administrators whose main focus was the abandoned evacuee properties — buildings and land.

In March that same year, the ulema, who even in those days wielded far more influence than they should have done and were mainly comprised of groups that had opposed the creation of Pakistan, scored a famous victory.

The Muslim League, led by Liaquat Ali Khan, turned its back on Jinnah and his avowal to the world that Pakistan was not to be a theocratic state led by priests with a divine mission, and pushed through the constituent assembly the Objectives Resolution which put paid to any hope of freedom of worship, of the fundamental principle that all citizens are equal and above all of Jinnah’s promise to his people: “You may belong to any religion or caste or creed — that has nothing to do with the business of the state.”

In 1952, Interior Secretary G. Ahmed sent to Prime Minister Khwaja Nazimuddin a note on the internal situation. He reported a loss of public confidence in the weak and far from competent government. The country was on the downgrade, provincial and political disharmony was on the increase, and there was an undercurrent of restlessness.

The cause: the mindset of the politicians and their medieval attitude towards the acquisition and exercise of power — politicians at all levels used and abused the state as a personal estate, and were adept at playing games with the religious fundamentalists for short-term political benefit.

Well, all of the above is an apt description of what has transpired each year of Pakistan’s life — the generals had not by 1952 reared their heads, but the accusation against the politicians has also applied equally and fairly since 1956 to the generals of our army and to vast numbers of corrupt and venal administrators who have been willing tools in the hands of whatever masters they have served in servile manner.

Come 1953, and the ulema flaunted their powers. In January they issued an ultimatum to Prime Minister Nazimuddin that unless he declared the Ahmadis to be a non-Muslim minority and sacked all Ahmadis in key state posts they would resort to ‘direct action’. This they did in March, the prime minister having ignored them.

Widespread disturbances, killings and rioting broke out in Punjab leading to the imposition of a local martial law. In 1954 Justices M. Munir and M.R. Kayani presented their report on the disturbances in which they famously declared that, after having heard various members of the ulema, it was impossible to define a Pakistani Muslim.

Their final sentence to the report is one of the saddest truest comments ever made on this country: “But if democracy means the subordination of law and order to political ends — then Allah knoweth best and we end the report.”

Were any lessons learnt? No. In 1974, Prime Minister Zulfikar Ali Bhutto, bowing, it is said to external and internal pressures excommunicated an entire community, declaring the Ahmadis a minority. Ziaul Haq in 1984 declared the Ahmadis to be non-Muslims and into the Pakistan Penal Code inserted sections 298-B and 298-C prohibiting them from referring to their place of worship as a masjid, from referring to the call to prayer as the azan, from ‘posing’ as a Muslim, or from referring to their faith as Islam. The punishment was a fine and up to three years imprisonment.

And so, on to May 28 2010. Where do we go from there?

arfc@cyber.net .pk

©2010 DAWN Media Group. All rights reserved

URL: www.dawn.com/wps/wcm/connect/dawn-c...ur-beginning-is-our-end-060

Minority affairs’ minister sees blasphemy law revision this year

---Daily Dawn, Pakistan

Pakistan

Minority affairs’ minister sees blasphemy law revision this year
Sunday, 07 Feb, 20107

WASHINGTON: Pakistan plans within this year to revise its laws against blasphemy, which have long been criticised as a way to abuse minorities, a government minister said.

Shahbaz Bhatti, minister for minority affairs, said religious reconciliation was a little-noticed priority for President Asif Ali Zardari’s civilian government in Pakistan, which lies on the frontline of the US-led war against extremism.

Bhatti, a long-time Roman Catholic activist whose position was given full cabinet status for the first time, said he was speaking with political parties to present revisions to the blasphemy law by the end of 2010.

“This is a democratic government which has a commitment to repeal all the discriminatory laws affecting the rights of minorities,” Bhatti told AFP in an interview in Washington.

“We are using military action to fight terrorism and we are using economic opportunities, but another thing which is important is that we are pursuing interfaith harmony,” he said.

Bhatti said that while he did not envision an immediate repeal of blasphemy laws, the revision would require judges to investigate cases before they are registered — creating oversight of the police, who are often accused of abuse.

The revised law would also assign punishment equivalent to that under the blasphemy laws for anyone who makes a false complaint, he said.

Bhatti was in Washington to attend the National Prayer Breakfast, an annual Christian-organised gathering drawing national leaders. He also met with US lawmakers, the US Commission on International Religious Freedom and Richard Holbrooke, the US special envoy to Afghanistan and Pakistan.

Pakistan’s law against blaspheming Islam carries the death penalty. While no one has ever been sent to the gallows for the crime, activists say the law is used to exploit others out of personal enmity or business disputes.

In June last year, blasphemy allegations led to mob violence against Christians in Punjab that caused hundreds to flee, according to the US State Department’s annual report on religious freedom around the world.

The report said there was particular discrimination against the Ahmadiya community, which Pakistan considers non-Muslim as adherents do not believe Mohammed was the last prophet.

In another incident in September, a 25-year-old Christian jailed on blasphemy allegations died in prison. Activists suspected he was tortured, but authorities said he committed suicide.

Pakistan, founded in 1947 as a Muslim homeland during the bloody partition of British India, is overwhelmingly Muslim. Religious minorities however form some five per cent of the population, according to government figures.

Among Muslims, strong tensions also persist between the majority Sunni and the minority Shia sects. Bombings on Friday killed 33 people in Karachi, including an attack near a bus carrying people to a Shia procession.

In UN bodies, Pakistan has butted heads with Western democracies by sponsoring resolutions on fighting “religious defamation.”

But Bhatti vowed to make progress at home.

In December, the government launched a drive to set up more than 120 “district interfaith harmony committees” around Pakistan to help resolve conflicts surrounded minorities.

Bhatti said he has personally visited religious communities around the country including more than 30 madrassas, or Islamic schools, to encourage tolerance.

While he said he met a positive reception, Bhatti was under no illusions about his safety, saying he has faced death threats.

“When I started this struggle I said that I would not compromise on the principle of religious freedom and human equality,” he said.

“These principles are the nucleus of my life. I will live for them and I will die for them.”

©2010 DAWN Media Group. All rights reserved

URL : www.dawn.com/wps/wcm/connect/daw...y-affairs-blasphemy-law-qs-03

Not the business of the state — 2

--- daily DAWN, Pakistan

COLUMNISTS

Not the business of the state — 2
By Ardeshir Cowasjee
Sunday, 23 Aug, 2009 | 09:51 AM PST

On Aug 18, a letter from Citizen of Pakistan Naeem Sadiq of Karachi (naeemsadiq @ gmail.com) was printed in this newspaper of record. The subject was a ‘Request for suo moto notice’ and it was an appeal to the chief justice of the Sindh High Court.

Karachi’s Defence Housing Authority in its application form for the allotment of plots in its DHA City scheme has asked those applying to declare their religion and sect. This, states Naeem, is discriminatory and a violation of our fundamental rights. He contends that the intention of the DHA is to make segregated living zones for those of different religions and to further add to this division on sectarian grounds. The demand is at odds with Islam, the Quran and Sunnah making no mention of any ‘sects.’

As he writes: ‘Unless checked, this practice may soon extend to a declaration of religion and sect for other routing commercial transactions, such as buying a PIA ticket or obtaining a mobile telephone SIM.’ So, he has requested the chief justice of Sindh to ‘take suo moto notice and order the DHA to remove the requirement of religion and sect from its application forms and other related documents’.

Absolutely correct — it is not the business of the DHA to delve into the religion and sect of people wishing to purchase plots which it has advertised for sale.

In similar vein, Citizen Sadiq on July 25, 2009 addressed a letter to Chief Justice of Pakistan Iftikhar Chaudhry at Islamabad on the matter of compulsory zakat deductions by the banks of Pakistan, appealing to the Supreme Court in the public interest to take suo moto notice. His letter reads: ‘The Supreme Court of Pakistan in a landmark judgment on March 9, 1999 gave a ruling that members of all ‘fiqhs’ were entitled to exemption from compulsory deduction of zakat, and the federal government had no authority to reject the declaration of any Muslim seeking exemption from zakat, if it was made on a prescribed form. This judgment enables any Muslim to declare his/her ‘fiqh’ and thus seek exemption from compulsory deduction of zakat. De facto, it also recognises the right of individuals to practise their faith according to their own ‘fiqhs,’ and not be dictated by the government’s interpretation.

‘The historic judgment, while so well recognising the right of individuals in matters of their faith, made an irritating mess of how this right was to be practised. Firstly, it requires Muslims to declare their ‘fiqh.’ The great Prophet of Islam (PBUH) did not subscribe to any ‘sect’ or ‘fiqh.’ For his followers to be forced to invent, be branded and be divided by sects and ‘fiqhs’ is therefore an absolutely unethical and undesirable demand on the part of the government.

‘The second irritant relates to the requirement of making this declaration on a prescribed format, thus creating a serious bureaucratic and procedural difficulty for the ordinary citizens. They are required to fill a judicial stamped paper of Rs20 (available for Rs120), have it signed by a notary public and two witnesses before making a completely unnecessary declaration of their ‘fiqh.’ The form is also called CZ-50 affidavit.

‘This anomaly could be easily rectified if the Supreme Court, through a public interest suo moto notice, clarified its original judgment by requiring only those Muslims to give in writing (on a plain piece of paper) who do wish their zakat to be deducted by a bank. This would truly be in keeping with the Supreme Court verdict that all Muslims are entitled to exemption from compulsory deduction of zakat.’

By July 31, Naeem received a letter from the Supreme Court registrar advising him that the chief justice had been pleased to accept the application and ordered that the matter (Suo Moto Case No.12 of 2009) be heard on Aug 10 at Islamabad, and he was required to appear in person.

Two issues were raised at the hearing: (a) that the procedure for exemption from compulsory deduction of zakat was tedious, time-wasting, and cumbersome; and (b) that the state cannot compel its citizens to declare a specific ‘fiqh’ and thus be divided and boxed into one or the other schools of interpretation.

Chief Justice Chaudhry sitting with Justices Jawwad Khawaja and Ijaz Ahmad heard the submission, agreed that it was a pro bono case, and ordered the State Bank and the federation of Pakistan to appear before the court at the next hearing (which is fixed for Oct 5) and explain as to why this procedure cannot be simplified and improved in the light of issues raised by the appellant.

The state of Pakistan is intrusive when it comes to matters of religion. Why? Are we not supposed to all be equal citizens with equal rights as decreed by Mohammad Ali Jinnah, the man who founded and made the country? According to the original constitution as promulgated at noon on Aug 14, 1973 by Zulfikar Ali Bhutto, we were equal citizens of the state, with equal rights. But this equality was done away with in 1974 by Bhutto’s second amendment to his constitution, bending to the obscurantists and bigots, and an entire community was shorn of its rights and declared a minority.

Prior to this, in 1979 the same community was targeted by Ziaul Haq, general of the army and president of the republic, pious and God-fearing. He had decreed that all citizens, regardless of their religion, wishing to obtain a passport must sign a declaration that it is his/her belief that the Prophet of Islam is the final prophet and that any pretender that follows him is false.

Such is the business of the state.

arfc@cyber.net.pk

©2009 DAWN Media Group. All rights reserved

URL : www.dawn.com/wps/wcm/...the-business-of-the-state-2-3891

Not the business of the state

---daily Dawn, Pakistan

Columnists

Not the business of the state
By Ardeshir Cowasjee
Sunday, 16 Aug, 2009 | 12:53 AM PST

It has taken a mere 62 years — a blip in the life of many a nation, many an empire — for those who pass for politicians, both civil and military, to nearly dismantle Pakistan. Those of little genius have managed to do so to the best of their ability.

In the large it has been brick by brick, though at times large chunks have been done away with in one fell swoop, and on one occasion, back in 1971, an entire wall was demolished to serve the purposes of power-hungry megalomaniacs.

Given all to which it has been subjected, given the warping and distortions of the national mindset, Pakistan is to be congratulated for not only having survived the machinations of its ruling cliques, but to actually still be standing, albeit in a highly wobbly mode, on its mortgaged feet. For all the wrong reasons, it is now a high-profile country in the comity of nations, renowned all over the world for being what it should not be.

Each Aug 14 the nation is expected to honour the memory of the man who made it, Mohammad Ali Jinnah, and to celebrate the being of Pakistan. This year, that was denied in our capital city. From what we have read and seen on our television channels, Islamabad was festooned, not with the national flag, but with the flag of the party in power. Our kings of straw celebrate themselves, not their country and its maker, and they rule over a Pakistan that now has nothing to do with the ideals that gave it birth. However, let us remember the words spoken by Jinnah on Aug 7, 1947 when he landed in Karachi: ‘I never expected to see Pakistan in my lifetime. We must be very grateful to God for what we have achieved.’ One must suppose that we who have survived the 62 years of downgrading must be grateful for what is left to us. But what can one make of a nation many of whose citizens are still debating whether there should ever have been a Pakistan?

Those who quibble over partition should remember that by 1947 Jinnah’s firm and committed conviction was that there was no other possible solution in the face of the end of the empire. For better or for worse, the minority Muslims had to have their own land. A united India could never have worked out.

Days prior to the country’s founding, he urged his people to forget the past, to bury the hatchet, to work together no matter to which community or religious faith they belonged. He told them clearly that a state can progress and thrive only when each man is an equal citizen of the state, with equal obligations, rights and privileges.

He told them that the first duty of any government was the imposition of law and order, he warned against the pernicious subcontinental affliction of bribery and corruption, of nepotism and jobbery, and clearly and emphatically stated that the citizens of his country ‘may belong to any religion, caste or creed — that has nothing to do with the business of the state’.

Once he was dead, those who followed swiftly broke faith with him and it took them but six months to betray both Jinnah and the people of his country. They managed to do everything he had warned them not to do, and those that have followed the followers have succeeded beyond Jinnah’s wildest dreams in converting his country to quite the opposite of what he intended and in polluting the minds of its people. It was not to be for better, but unequivocally for worse.

To say that the leadership the country has suffered over its 62 years has been disastrous is but to overstate the obvious. Sadly, it must be admitted, Jinnah had an inkling that he was bequeathing his country to those who would prove unworthy inheritors of his labours (never did he utter the word ‘sacrifice’).

This newspaper of record which informs us on its masthead each day that it was founded by Mohammad Ali Jinnah, has allowed me to reiterate time and time again words spoken by that great man to his friend, my father Rustom Fakirjee Cowasjee, when one day he remarked, in dismal tone: ‘Mark my words, each successive government of Pakistan will be worse than its predecessor.’ And so it has been — such is our fate.

Though, today, it is difficult to believe that any successor can be much worse than what we now have sitting. But, then, with what we have on the ground which is likely to follow, Jinnah’s prescience might continue to prove to be accurate.

The lethal mixture of state and religion, imposed upon us by the Objectives Resolution of 1949 has ensured that bigotry and intolerance would flourish, that discriminatory laws would be imposed and would be immoveable, that sectarian killings would be a daily occurrence and that the threat of Talibanisation would be a reality with which we must live, though our mighty army has now taken up the fight. The question is, with the deterioration that has set in, can the fight be won?

To end, a quote from an editorial in this newspaper written 20 years ago on the occasion of Jinnah’s birth anniversary: ‘… we have paid ritualistic tribute and homage to the ideals and principles of Mohammad Ali Jinnah without grasping the essence and practical implications of his message and carrying out his behest. All his life he remained a true exponent of liberty and political pluralism and an ardent advocate of the rule of law and a democratic polity….’

arfc @ cyber.net.pk

©2009 DAWN Media Group. All rights reserved

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