The Ilam Din fiasco and lies about Jinnah

Monday, November 29, 2010

VIEW: The Ilam Din fiasco and lies about Jinnah — Yasser Latif Hamdani

Jinnah’s record as a legislator tells us a different story altogether. He was an indefatigable defender of civil liberties. He stood for Bhagat Singh’s freedom and condemned the British government in the harshest language when no one else would

In the recent debate over the blasphemy law, a group of Jamaat-e-Islami-backed right-wing authors have come up with an extraordinary lie. It is extraordinary because it calls into question the professional integrity of the one man in South Asian history who has been described as incorruptible and honest to the bone by even his most vociferous critics and fiercest rivals, i.e. Mohammad Ali Jinnah. The lie goes something like this: ‘Ghazi’ Ilam Din ‘Shaheed’ killed blasphemer Hindu Raj Pal and was represented by Quaid-e-Azam at the trial who advised him to deny his involvement in the murder. ‘Ghazi’ and ‘Shaheed’ Ilam Din refused and said that he would never lie about the fact that he killed Raja Pal. Quaid-e-Azam lost the case and Ilam Din was hanged.

To start with, the story is entirely wrong. First of all, Jinnah was not the trial lawyer. Second, Ilam Din had entered the not guilty plea through his trial lawyer who was a lawyer from Lahore named Farrukh Hussain. The trial court ruled against Ilam Din. The trial lawyer appealed in the Lahore High Court and got Jinnah to appear as the lawyer in appeal. So there is no way Jinnah could have influenced Ilam Din to change his plea when the plea was already entered at the trial court level. Nor was Ilam Din exactly the ‘matchless warrior’ that Iqbal declared him to be — while simultaneously refusing to lead his funeral prayers. Indeed Ilam Din later filed a mercy petition to the King Emperor asking for a pardon.

The relevant case — in which Jinnah appeared — cited as Ilam Din vs. Emperor AIR 1930 Lahore 157 — makes interesting reading. It was a division bench judgement with Justice Broadway and Justice Johnstone presiding. Jinnah’s contention was that the evidence produced before the trial court was insufficient and the prosecution story was dubious. To quote the judgement, “He urged that Kidar Nath was not a reliable witness because (1) he was an employee of the deceased and, therefore, interested. (2) He had not stated in the First Information Report (a) that Bhagat Ram (the other witness) was with him, and (b) that the appellant had stated that he had avenged the Prophet. As to Bhagat Ram it was contended he, as an employee, was interested, and as to the rest that there were variations in some of the details.”

The court rejected this contention. The judgement continues that “Mr Jinnah finally contended that the sentence of death was not called for and urged as extenuating circumstances, that the appellant is only 19 or 20 years of age and that his act was prompted by feelings of veneration for the founder of his religion and anger at one who had scurrilously attacked him.” The court rejected this contention as well referring to Amir vs. Emperor, which was the same court’s decision a few years earlier. Interestingly, the curious reference to 19 or 20 years deserves some attention. Why did Jinnah as one of the leading lawyers refer specifically to an argument that had been exploded by the same court only two years earlier? That only Mr Jinnah can answer and I do not wish to speculate. Perhaps he was trying to argue what Clarence Darrow had argued successfully a few years ago in the famous Leopold and Loeb case involving two 19-year old college students who had committed the ‘perfect crime’. Clarence Darrow’s defence converted a death sentence to a life sentence.

Another corollary of the argument forwarded by our right-wing commentators is that since Jinnah defended Ilam Din in this murder trial, he favoured the ‘death sentence for blasphemy’. It is an odd derivative even for average intellects that most Pakistani ultra-rightwingers and Islamists possess. First of all, it is quite clear that Jinnah did not defend the actions of Ilam Din. He had attacked the evidence on legal grounds. Second, it is clear that there was no confession and Jinnah did not ask Ilam Din to change his plea. Third, when the court rejected Jinnah’s contentions, Jinnah’s argument was simply that a death sentence was too harsh for a man of 19 or 20, with the obvious implication that sentence should be changed to life imprisonment.

We can only conjecture as to what Jinnah’s reasons as a lawyer and politician to agree to be the lawyer for the appellant before the high court were. In any event, a lawyer’s duty is to accord an accused the best possible defence. Just because a lawyer agrees to defend an accused does not mean that the lawyer concurs with the crime. One is reminded of the famous Boston Massacre in 1770 when British soldiers opened fire and killed five civilians who were protesting against them. The British soldiers hired John Adams as a lawyer, who got five of the accused acquitted, arguing that a sentry’s post is his castle. Does that mean that John Adams was in favour of British rule in the US? If so, it is rather ironic that he was the prime mover and the guiding spirit behind the American declaration of independence. Similarly, when Clarence Darrow defended Leopold and Loeb, was he in any way suggesting that the crime that those two young men had committed was justified?

Jinnah’s record as a legislator tells us a different story altogether. He was an indefatigable defender of civil liberties. He stood for Bhagat Singh’s freedom and condemned the British government in the harshest language when no one else would. In the debate on 295-A of the Indian Penal Code, a much more sane and reasonable law than our 295-B and 295-C, Jinnah had sounded a warning against the misuse of such laws in curbing academic freedoms and bona fide criticisms. I have quoted that statement in my previous two articles.

There cannot be any question that Jinnah the legislator would have balked at the idea that his defence of a murder convict is now being used by some people to justify a law that is ten times more oppressive and draconian than the one he had cautioned against. To this day, I have only found him alone to have had the courage to state in the Assembly on September 11, 1929: “If my constituency is so backward as to disapprove of a measure like this then I say, the clearest duty on my part would be to say to my constituency, ‘you had better ask somebody else to represent you’.”

The writer is a lawyer. He also blogs at http://pakteahouse.wordpress.com and can be reached at yasser.hamdani@gmail.com

URL: www.dailytimes.com.pk/default.asp?page=2010\11\29\story_29-11-2010_pg3_5

Not the voice of the creator

---Dily Dawn, Pakistan
 
Not the voice of the creator
  By Ardeshir Cowasjee
  Sunday, 02 May, 2010

We inhabit a land where death no longer diminishes us, where those that hand it out do so with impunity, with no fear or trepidation.

Day after dreary day it goes on — a professor, a woman, shot and killed in a rickshaw in Quetta, four policemen blown up in Peshawar, five ‘activists’ shot dead in Karachi, and more, much more.

This land has a helmsman of little consequence and the sub-leadership is habitually frugal with the truth, always hoping that lies will sustain them. The future is hardly exhilarating, and we heedlessly plod on. We are not even told the truth when the latest political ‘triumph’ is bandied about, we are told about the 18th Amendment to the constitution, to many a non-event, to others an affront to democracy, and to those who brought it about a means to survive the parliamentary term extended to them.

The latest amendment has not restored the original 1973 constitution — those that claim that it has cannot be that ignorant, so they are resorting to mendacity in aid of expediency. The constitution is left, post-amendment, with vestiges of the 17th Amendment of military dictator Gen Pervez Musharraf, and with its greatest polluter, the 8th Amendment of military dictator Gen Ziaul Haq, littering its pages.

That being so, credit must be given where due — and due it is as far as one insertion is concerned, though the piece of legislation into which one word was restored should never have come into being. Part of the 8th Amendment was the inclusion into the constitution of the Objectives Resolution by Article 2(A) reproducing it in the annex and making it a substantive part of the constitution — and this notwithstanding the fact that the Objectives Resolution already formed its preamble.

There was one glaring difference in preamble and annex — why and how it came about has never been explained but it must be assumed that it was a mala fide exercise. One principle enunciated in the resolution pertains to the minorities: “Wherein adequate provisions shall be made for the minorities freely to profess and practise their religions and develop their cultures.” Such is recorded in the preamble. But in the annex the word ‘freely’ was omitted, thus altering the entire spirit of the provision. The missing word has now been re-inserted by the 18th Amendment — so on that score, well done!

The Objectives Resolution, legislation which would never have been permitted by the founder maker of this country, Mohammad Ali Jinnah, came into being in March 1949, a mere six months after his death when his loyal lieutenants succumbed to the pressures of the religious right which sought to impose its will on a country, the formation of which it had either opposed or stood by silently while the Muslim League struggled. It negated all that Jinnah had stood for, if we are to take as our guideline his famed address to the constituent assembly of Aug 11, 1947, when he declared that faith, caste or creed were to be put aside and all were to be equal citizens of one country, and, most importantly, that religion was not the business of the state.

The most ominous words spoken that March day when the resolution was passed by the constituent assembly were spoken by Hindu citizen of Pakistan, Sri Chattopadhyay, who represented 25 per cent of the then East Pakistan population.

“I do not consider myself as a member of the minority community. I consider myself as one of seven crores of Pakistanis. Let me retain that privilege.”

“I sadly remind myself of the great words of the Quaid-i-Azam that in state affairs the Hindu will cease to be a Hindu; the Muslim shall cease to be a Muslim. But alas, so soon after his demise what you do is that you virtually declare a state religion.”

“You could not get over the old world way of thinking. What I hear in this resolution is not the voice of the great creator of Pakistan — the Quaid-i-Azam, nor even that of the prime minister of Pakistan, the honourable Mr Liaquat Ali Khan but of the ulemas of the land.”

“This resolution in its present form epitomises that spirit of reaction. That spirit will not remain confined to the precincts of this house. It will send its waves to the countryside as well. I have been passing sleepless nights pondering what shall I now tell my people whom I have so long been advising to stick to the land of their birth.”

“And on the top of this all, by this resolution you condemn them to a perpetual state of inferiority. A thick curtain is drawn against all rays of hope, all prospects of an honourable life. After this what advice shall I tender? What heart can I have to persuade the people to maintain a stout heart?”

The waves indeed swept through the country, the first manifestations of intolerance, bigotry and their accompanying violence coming in 1953 with the anti-Ahmadi riots in Punjab. The rot grew and was given full impetus in 1977 when socialist democrat Zulfikar Ali Bhutto (who throughout his life showed few signs of fanatic zealotry) miserably surrendered to the mullah fraternity in the hope that he could cling on to a fast disappearing power seat. From then on, with the advent of Gen Ziaul Haq and his particular brand of religion, the descent has been swift.

Those who followed either exhibited little will to stem the rot or were hand in glove with the forces of darkness, the enemies of tolerance. Jinnah’s Pakistan has virtually ceased to exist, but there are still some who hope it has not yet been interred for ever.

arfc@cyber.net.pk

©2010 DAWN Media Group. All rights reserved
URL : www.dawn.com/wps/wcm/connect/...he-voice-of-the-creator-250-hh-05

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

URL : www.dawn.com/.../16-not-the-business-of-the-state-689-hs-01