Tayyaba is ‘make or break’ case for justice system

TayyabaThe Tayyaba case is a disturbing mirror turned on the face of our society. In it we are forced to face the realities of child labour, child abuse, and abuse of power by state authorities. Privately, we know that this is not the first case of its type. But maybe it could move us away from this reality. Because it has received global attention through social media, there may be a possibility to turn the tide toward reforming one part of our broken justice system.

The most shocking part of the Tayyaba case is, sadly, not the child abuse which is known as a rampant problem in our society. It is the fact that the torture and abuse was allegedly done by Sessions Judge, Islamabad, Raja Khurram Ali Khan, who sought to escape justice himself by getting ‘forgiveness‘ from the father of the victim. This brought outrage among the public who saw a clear abuse of power and attempt to escape justice by the judge. Thankfully, the Supreme Court has declared that it is taking suo moto notice of the case, which gave some hope for justice. Then, almost predictably, a new twist was introduced when young Tayyaba disappeared.

Last month, we learned that no less than former Chief Justice Iftikhar Chaudhry was openly defying the Court and refusing to return a taxpayer owned bulletproof car that had been loaned to him while he was serving his country. Now we are witnessing a case where a Sessions Judge is trying to escape justice by turning to legal loopholes and other tricks.

The Supreme Court should take a lesson from former COAS Gen Raheel who dismissed 6 officers over corruption. By holding his own men to account, he strengthened the integrity of his institution in the eyes of the people. If the Court is unable to hold its own people to account, faith in the justice system will continue to erode, which is a disaster we cannot afford.

Tsunami 2: Holes In The Plot

Imran Khan terms Iftikhar Chaudhry as incorruptible

2014 has been termed as a ‘year of sequels’ for the movie industry, and it appears that politics will be following suit. First we saw the release of ‘TUQ-TUQ 2’, and now comes announcement of ‘TSUNAMI 2’, opening in Islamabad on 14th August. The latest Imran Khan production, however, includes some very large holes in the plot that make it hard to appreciate.

Director Imran Khan has been very inconsistent between the story lines in his 2013 blockbuster 2013 and his latest sequel. Just last year, the PTI Chairman termed the elections ‘victory for the democratic system‘. Even in April this year Imran Khan said that he accepted the elections

There is also the problem with the role of Najam Sethi. In the first ‘Tsunami’ drama, Najam Sethi was a good guy! Imran Khan endorsed Najam Sethi as Caretaker CM Punjab and held private meetings to discuss poll administration with not only Imran Khan but PTI leaders Javed Hashmi, Shah Mehmood Qureshi, Naeem-ul-Haq and Jahangir Khan Tareen also. In that version, Imran Khan was all smiles and handshakes.

Imran Khan and Najam Sethi discuss 2013 poll administration

It was also Imran Khan who requested polls under the judiciary since at the time he was Chief Justice Iftikhar Chaudhry’s biggest defender. Actually, it was Imran Khan who termed Iftikhar Chaudhry as ‘incorruptible and a man of high integrity‘.

Sequels are not known for being most creative. They are often little more than a repackaging of old characters into same old plot lines. With Tsunami 2, however, Director Imran Khan is using the worn out cliche of turning yesterday’s good guys into today’s goondas, with only himself as the pure and noble hero. If this is the ‘Naya Pakistan’ he has been promising, expect ticket sales to be very low.

Musharraf Trial: A Case of Selective Justice

Iftikhar Chaudhry and Gen Musharraf

Missing his second court date in two days, former dictator Gen Pervez Musharraf has termed the accusations against him as ‘politically motivated‘. In a certain way, they are – and should be – politically motivated: A demonstration that politically ambitious officers cannot undermine democratic rule, abrogate the constitution, and usurp power. Gen Musharraf is accused of doing each of these, and with the preponderance of evidence behind these accusations, a trial is certainly warranted. In another way, Musharraf’s insinuation is correct – Of everyone who was involved in these crimes, why is he being singled out for trial? The question we should be asking is not whether or not it is fair to try Musharraf. There can be no doubt that the answer to that question is yes. The question we should be asking is why there aren’t more people being tried with him.

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Supreme Irony

We are entering what promises to be an entertaining period in the history of the judiciary. The IHC has revoked Gen Musharraf’s bail and ordered his immediate arrest as the SC resumes treason hearings against the former dictator. This all sounds fairly straight forward, but as with so much in life, here too there is a twist.

The Supreme Court is considering charges of treason against Gen Musharraf due to his suspending the Constitution on 3rd November 2007. The question is an important one because it goes straight to the heart of whether Pakistan is a country of laws or a country of men. In other words, is the law supreme, or can a single man be considered as higher than even the Constitution itself? Do we have rule of law or not?

However important this question is, though, it is also curious in the way it is being addressed by the Court. After all, the 2007 PCO was not the only time that Gen Musharraf declared a state of emergency and suspended the Constitution. Actually, it was the second time. He did the same also in 1999 when he carried out a military coup d’etat against the democratically elected government of Nawaz Sharif.

So why is the SC only asking about the second and not the first act also? It might be because the first act received the help of some powerful people.

On 26th January 2000, all Supreme Court Justices were asked to take an Oath not under the Constitution, which was suspended, but under Musharraf’s Provisional Constitutional Order justifying his abeyance of the Constitution and swearing not to challenge his decisions as dictator. Six judges, including Chief Justice Saeeduzaman Siddiqi, refused to swear an oath to the dictator. These judges were quickly dismissed and replaced with others who were willing to allow the Constitution to be held in abeyance and the whims of a dictator to be made the supreme law.

Iftikhar Chaudhry and Gen Musharraf

In 2011, without a hint of irony, Chief Justice Iftikhar Chaudhry declared that “PCO judges do not have legitimacy and they could not claim themselves to be the judges of the superior courts”. Now the same Chief Justice is presiding over a Court that is considering whether suspending the Constitution itself is an act of treason.

A friend forwarded me another tale of judicial introspection, this one coming from a court in Michigan, USA. During a recent hearing, the judge accidentally poked a button on his phone causing it to start making noise. Known for strictly enforcing rules of etiquette in the courtroom by holding in contempt anyone whose phone interrupted a hearing, the judge was burning with embarrassment. But rather than threaten journalists for reporting anything that could embarrass the court, the judge did something extraordinary. He filed a Contempt of Court notice against himself!

Judge Voet, who is not only chief but the only district judge of Ionia, said he’s surprised by how much attention his story has gotten since the local Sentinel-Standard reported on it Friday. The self-flagellation was out of self-interest, he said: “It’s a small county. Your reputation is important. I wanted to make sure anyone who had a phone taken by me knew that I lived by the same rules.”

A judge who holds himself to the same rules as everyone else? How ironic.

Jinnah’s Pakistan cannot be abandoned

The following article is reproduced with permission of the Jinnah Institute. The original article can be read on the Jinnah Institute website by clicking here.

This August has been cruel. Haunting images of Sindhi Hindus, essential to the cultural reality and demography of the province, leaving the country [i] shook those who believe that Pakistan belongs to all Pakistanis. This year’s minorities’ day – August 11 – inspired by the famous speech [ii] of Pakistan’s founder, Mohammad Ali Jinnah, on a secular vision of Pakistan was dogged by the controversy of Hindu pilgrims leaving for India, perhaps never to come back.

August 11 1947 was the day when pragmatic leader Jinnah, the architect of a contested idea, “Pakistan”, set a new and indiscriminately inclusive direction for the newly created state. His earlier references to the “Two Nation Theory” (of Hindus and Muslims being two distinct nationalities in British India) employed as a political instrument to carve a separate country, required re-calibration and a governable definition. 1947 was not a straightforward or a linear event. It was a sum total of several accidents, failed negotiations and the inability of Indian National Congress and Muslim League to agree on a federal power-sharing formula.

The television footage of bullock carts carrying the belongings of Sindhi Hindus reminded one of the Partition’s most heart wrenching scenes. Those frozen black and white moments of mass migration, captured with monochromatic cameras, denoting misery, up-rootedness and uncertainty are all too familiar. For similar scenes to be re-enacted and televised in the information age are chilling; they indicate that the messy after-effects of the Partition continue to bedevil us even today.

It must have been a humid August day when Jinnah uttered these words in 1947, extempore, standing before the Constituent Assembly: “… and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual, but in the political sense as citizens of the State” [iii]. Sixty-five years later, Pakistan’s Hindu community feels insecure and many reportedly want to leave the country. Have we betrayed Jinnah, our history, our future?

Jinnah believed that modern secular democracy was compatible with and inherent to the Islamic teachings and that a federal, plural Pakistan could easily blend the two. But his successors defeated and defiled this vision, settling for a mighty post colonial state reinvented for the native civil-military bureaucracy that despised the ‘elected’ political elites. These elites also considered democracy ill-suited for Pakistan, for Pakistanis and a federalist structure an anathema for the centralized ‘nation state’. Almost all of these dilemmas continue to date, with the most worrying prospectbeing treatment of the religious and ethnic minorities, which may continue to utterly baffle the course of inclusive democracy in Pakistan.

The only exception in recent times was Mohtarma Benazir Bhutto, two-time former Prime Minister of Pakistan, who articulated a similar vision as the great ‘Quaid’ Jinnah. Her last book “Reconciliation: Islam, Democracy and the West” [iv] argued that in several Muslim-majority countries, democracy failures were due to political rather than religious reasons and in most cases the ‘West’ played a problematic role. Islam per se was not antithetical to a democratic system of governance. Is it surprising then that Bhutto was brutally murdered in 2007 by extremists and their patrons?

The major exodus of Hindus from Pakistan took place around the Partition years. Hindus were nearly 16 percent of Pakistan’s population in 1947. With the separation of East Pakistan (now Bangladesh) the numbers declined further, and now Pakistani Hindus comprise 1.6 percent of the country’s total population [v]. In terms of numbers, however, they are still a large community; over 2.8 million Pakistanis are Hindu [vi]. According to the 1998 census, there were over 3 million Hindus living in Pakistan with most residing in Karachi, Mirpurkhas and Sukkur regions of Sindh [vii].

Pakistan’s gradual evolution into a hybrid-theocratic state [viii] – with parts ruled under secular laws, parts ruled by traditional customs, and yet other parts under the yoke of one version of ‘Islamic law’ or another – has been a tragic consequence of the nation-state using religion as the sole marker of its identity, especially during the Zia regime, when a military dictator misused Islam and conservative elements of society so as to garner legitimacy to govern the country.

It all began with the ‘Objectives Resolution’ that declared the character of the state as Islamic without defining which Islam was it referring to [ix]. This becomes problematic considering that there are more than 73 sects or variants of the religion itself, some of which consider the others as non-Muslims [x]. The continuous adventures of the security establishment and Pakistan’s frontline status in fighting the Soviet Union during 1980s, through jihad or holy war, led to one particular version of Islamic jurisprudence guiding changes in Constitution, laws and cultural mores. The Arabisation and Wahabbisation of Pakistan since 1970s, in the wake of the Bhutto and Zia-led waves of Islamisation, have created generations of young Pakistanis believing in a monolithic Sunni state as the equivalent of an Islamic Republic [xi]. Thus, the constitutional freedoms and guarantees to the minorities are now subject to the cultural onslaught via the education system, ascendant seminaries and the media, which regurgitates this regressive, and exclusionary worldview day in day out. The Islamic Republic riddled in these pursuits has also turned blind to the diversity within Islam.

It was no mistake when the former Chief Justice of the Lahore High Court, Khwaja Muhammad Sharif, reportedly commented in 2010 that “Hindus” were responsible for terrorism in Pakistan [xii]. Later, the Court staff clarified that the judge meant Indians, but the deep identity of a ‘Muslim’ Pakistan and ‘Hindu’ India hides all the diversity in the two countries where millions are trapped between such Kafkaesque visions of nation states. Our judges on different occasions have also expressed their outrage at the idea of Pakistan going ‘secular’. According to DAWN newspaper, the present Chief Justice, rhetorically asked the following question during court proceedings: “Should we accept if tomorrow parliament declares secularism, and not Islam, as the state polity?” In its astute commentary, the newspaper published the following in its editorial:

 

“…Secularism is not ladeeniat [xiii], it is not anti-religion, as has been the claim of religious conservatives since the 1960s. It is one thing for Islamic parties to make that deliberately false claim, quite another for it to have apparently gained traction in the highest court of the land. Secularism is a very specific and narrow concept the separation of religion and the state. Rather than being anti-religion, secularism is religion neutral. Standing in the way of those claiming that secularism is anti-religion and even vaguely anti-Pakistan at some level is one giant Mohammad Ali Jinnah. The speech that the Quaid made from the floor of the constituent assembly in 1947 was a clarion defence of secularism, notable both for the occasion and the powerful oratory … Perhaps the SC should ponder this question would a constitutional amendment passed on the basis of the Quaid`s speech be declared against the `basic structure` of the constitution?” [xiv]

Jinnah’s successors have been clearly defying the August 11 vision of an inclusive and neutral state.

Such is the state of affairs that today Hindus are worried about their physical security and cultural space [xv]. Pakistan’s Hindu Council mobilizes rallies for rights but out of fear is quick to pledge undying loyalty to the state of Pakistan. Amid this confusion and fear earlier this year, the former (Acting) Chief Justice of Pakistan, Rana Bhagwan Das made the following remarks:

 

“Article 25 of the Constitution of the Islamic Republic of Pakistan speaks about the equality of all citizens, whereas article 36 provides for the promotion and protection of right and interests of minorities, including their due representation in the legislature. However, under article 41 (2) and 3rd schedule [xvi] to the Constitution, minority groups are not allowed to hold certain public offices such as the president and the prime minister, which is a manifestation of discrimination…” [xvii]

Justice Das has also advocated electoral reforms and the need to increase the representation. The current government has tabled a bill [xviii] that seeks to increase the number of non-Muslim seats in the Parliament – but that may be just one of the many, many reforms needed to be undertaken. Reaching a point where even a conservative (former) functionary of the state had to complain about the level of discrimination and say that Hindus are perceived as “second class citizens” speaks volumes of where we stand today. The good judge also pointed out the insertion of Article 2-A [xix] in our Constitution: “The narrative of the Constitution and legal discrimination in the name of religion through articles 2 [Islam as the state religion], 2-A and article 41 [xx] [stating that only a Muslim can head the state] of the Constitution renders the minorities less preferred citizens…” [xxi]. It is ironic that a constitutional provision – Article 2A – inserted by a military dictator remains in operation and is leading the juridical debates in courtrooms. Legal arguments now cite Article 2-A more often than ever.

This year has seen three disturbing trends. First television anchors in their zeal to sell religion during Ramzan undertook a live conversion of a young Hindu man. [xxii]This was a distressful display of insecurity that grips the public mind about the conspiracies against Islam and Pakistan. That a country with 97% Muslims had to convert one more was nothing but the pursuit of a totalitarian vision articulated by extremists. There is no legislation banning forced conversion in the country

Second, the case of Rinkle Kumari [xxiii] and now Manisha [xxiv] who converted to Islam apparently out of choice to marry Muslim men became communal and legal battles. The cases are still shrouded in mystery and such is the hold of clerics that every individual case turns into a battle for Islam. Human rights activist, MarviSirmed writing on Rinkle’s case had raised a pertinent question:

“The question arises why in last six months, kidnapping of Hindu girls, forced conversions and abduction of Hindu and Christian youngsters and saints is increased. ‘They want us to leave the country. They are forcing us to flee from our motherland. But we will not deter,’ said Amar Lal, Rinkle’s counsel.” [xxv]

The role of the police, courts and other law enforcement agencies was also not satisfactory in the case of Rinkle Kumari. The otherwise activist Supreme Court had to factor in the might of the clerics and treaded carefully while pursuing the promise of ‘complete justice’ enshrined in our Constitution. Sirmed puts it rather bluntly:

Anger and disillusionment after the Supreme Court’s decision on the Rinkle Kumari case is not limited to her family. It seems to be shared by Sindhis in general and Sindhi Hindus in particular…it is not very difficult to see how the entire state structure in collusion with landed influential politicians, religious elite and ‘independent’ media swindled the process of justice.” [xxvi]

Thirdly, there has been a increase in radical outfits and movements in the Sufi-worshipping province of Sindh. For instance, reportedly in district Khairpur, 93 seminaries out of the total 117 are not registered with the government and in the Umerkot district where many Hindus reside, there are more than 400 madrassas [xxvii]. Last year, a Hindu member of Sindh Assembly, Ram Singh Sodho, resigned from his seat and migrated to India after he received threats from militant groups. Yet all of this is not the case of extremism as kidnapping of Hindus for ransom is also the handiwork of criminal networks, which operate independently of militant organisations [xxviii]. A recent story in an Indian magazine looks how the Pakistani Hindus “are crossing over in ever larger numbers” and refuse to leave India even when their visas expire. “They prefer the life of illegal migrants with intermittent employment, and say that it is better than the discrimination and violence they face in their home country” [xxix].

Who are abandoned, condemned, forced to immigrate & forced to survive heartbroken

Some day even the goddess of time will have some pity on us!

May this happen I would ask to exactly this “Have you been forced to immigrate?”

– Halina [xxx]

These trends are inimical to the Sindhi cultural landscape, which has historically been a bastion of pluralism and syncretic belief systems. At the same time, much of Sindh remains a poor province mired by iniquitous land relations, absence of social services, and marginalization. It is not just the Sindhi Hindus who are bearing the brunt of poverty and exclusion; the landless haaris (peasants), the tenants on farms and existence of bonded labour haunt the idea of an independent and equitable Pakistan. In Sindh alone, according to Pakistan Institute of Labour Education and Research, two million households own no land; and 26% of 700,000 households possess the lowest share in land – furthermore, over 80% of rural workers do not own homes and live on farms without the right to shelter [xxxi]. The plight of rural Sindhis (including Hindus) therefore is not only driven by increasing religious intolerance, but it has to do with their status as poor farm workers or tenants trapped in a system that refuses to change.This is another defeat to Jinnah’s vision as articulated by him on August 11, 1947:

“…if we want to make this great State of Pakistan happy and prosperous, we should wholly and solely concentrate on the well-being of the people, and especially of the masses and the poor”.  

Sadly, too much of emphasis has been laid on independence from the Hindu majority in 1947, overlooking the essential fact: independence from extractive, exploitative colonial rule. The agenda of social transformation remains a pending one as the judiciary has reversed the modest land reform of the 1970s (comprising landholding ceilings determined by the Land Reforms Regulation, 1972 and Land Reforms Ordinance, 1977) by deeming them as un-Islamic applying a narrow interpretation of theology on private property. [xxxii]

Jinnah’s words are strikingly relevant today: “I shall always be guided by the principles of justice and fairplay without any, as is put in the political language, prejudice or ill-will, in other words, partiality or favouritism. My guiding principle will be justice and complete impartiality, and I am sure that with your support and co-operation, I can look forward to Pakistan becoming one of the greatest nations of the world.”

Pakistani Muslims and their diversity are under attack by armed militias aiming to purify the land. Thus Pakistani ‘minorities’ are no longer non-Muslim. The Shias, Ahmadis [xxxiii], Hazaras [xxxiv] are all suffering and physically endangered [xxxv] due to the grand departure from the type of Pakistani state envisaged on August 11, 1947. Instead of a neutral arbiter of citizen interest, the state is a partisan and often complicit in persecution of Muslims and non-Muslims alike. Keeping the business of the state focused on welfare independent of religion, sect, ethnicity and other such differentiations of ‘creed’ has been abandoned with tragic consequences.

Pakistan has to take some existential decisions. Its survival now depends on if its state wants to revert to what Jinnah had outlined in terms of justice, equity and retaining the inherent pluralism of Pakistan. A tolerant Pakistan, at peace with its neighbours is vital to achieve progress and ensure the security of its diverse citizenry especially the poor and the marginalised.

There is, alas, no other option.


Endnotes

[i] Web. 10 Aug. 2012. <http://www.bbc.co.uk/news/world-asia-india-19211843>.

[ii] The full text of Jinnah’s speech can be found here: http://www.pakistani.org/pakistan/legislation/constituent_address_11aug1947.html/

[iii] The full text of Jinnah’s speech can be found here: http://www.pakistani.org/pakistan/legislation/constituent_address_11aug1947.html/

[iv] Bhutto, Benazir. Reconciliation: Islam, Democracy, and the West. New York: Harper, 2008.

[v] Library of Congress, Feb. 2005. 10 Aug. 2012. <http://lcweb2.loc.gov/frd/cs/profiles/Pakistan.pdf>

[vi] Ibid.

[vii] Population Census Organization, Govt. of Pakistan. Web. 10 Aug. 2012. <http://www.census.gov.pk/Religion.htm>.

[viii] This term has been used by Ayesha Siddiqa, a Pakistani scholar. I have used it narrowly. Siddiqa holds that Pakistan is turning into a hybrid-theocratic state “which encapsulates a mix of economic neo-liberalism, pockets of social liberalism, formal theocracy and larger spaces experiencing informal theocracy.” See: http://www.thefridaytimes.com/beta2/tft/article.php?issue=20120309&page=2

[ix] Full text of Objectives Resolution, now a preamble to the Pakistani Constitution, can be found here:http://www.pakistani.org/pakistan/constitution/preamble.html

[x] Web. 06 Aug. 2012. <http://www.real-islam.org/73_8.htm>.

[xi] For a detailed discussion, see Sadia Toor’s book “The State of Islam”, New York: Pluto Press, 2011.

[xiii] An Urdu mistranslation of the term ‘secularism’ – ‘irreligious’ or ‘anti-religion’ – introduced and popularized by Islamic parties of Pakistan.

[xiv] “SC`s responsibility?”; editorial, Daily DAWN.  http://archives.dawn.com/archives/32294

[xvi] The third schedule has oaths of office where all senior constitutional functionaries such as the President, Prime Minister, Chairman Senate, Speaker National Assembly, and others, have to swear: “That I will strive to preserve the Islamic Ideology which is the basis for the creation of Pakistan”.

[xix] Article 2-A makes the Objectives Resolution of 1949 an operative part of the Constitution and thus justiceable. Prior to this, it was a preamble in all constitutions (i.e. 1956 and 1962) of Pakistan.

[xx] The Constitution of the Islamic Republic of Pakistan, Pakistan’s Legislative History,

[xxi] Web. 10 Aug 2012. <http://www.pakistani.org/pakistan/constitution/>

[xxiv] Rinkle Kumari, a 19 year old Pakistani Hindu, was allegedly kidnapped by one Naveed Shah and forcibly converted to Islam so that they could be married. Eventually, the Supreme Court of Pakistan took notice of the case and sent Kumari – now named Faryal Bibi – to a shelter (forcibly, as Marvi Sirmed claims in her article: http://www.thefridaytimes.com/beta2/tft/article.php?issue=20120413&page=9)

[xxv] In August 2012, a 14 (some reports say 16) year old Hindu girl by the name of Manisha Kumari disappeared from her parents’ home Jacobabad; a few days later, she called her parents and informed them of her ‘voluntary’ conversion to Mahvish, and of her marriage to one Ghulam Mustafa Channa. Manisha’s parents maintain that she was abducted. See: <http://www.thenews.com.pk/article-62900-Hindu-girl,-14,-converts,-marries-Muslim> and <http://hindusofsindh.wordpress.com/2012/08/11/forceful-conversion-yet-another-victim-manisha-kumari/>

[xxvii]  21-27 Oct. 2011. Web. 10 Aug 2012. <http://www.thefridaytimes.com/beta2/tft/article.php?issue=20111021&page=4>

[xxviii] Ibid.

[xxix] 07 Aug. 2012. Web. 09 Aug 2012. <http://fountainink.in/?p=2412>

[xxxii] The decision of Shariat Appellate Bench of the Supreme Court dated August 10, 1989 in Qazalbash Waqf v. Chief Land Commissioner (PLD 1990 SC 99).

[xxxiii] 07 Aug. 2012. Web. 09 Aug 2012. <http://fountainink.in/?p=2384>

[xxxv] According to the “International Religious Freedom Report” for 2011, “the country’s interpretation of Islamic law allows offenders to offer monetary restitution to victims and allows victims to carry out physical retribution rather than seeking punishment through the court system”. See: <http://www.state.gov/documents/organization/193145.pdf> . Shia killings have increased in recent years and banned militant outfits and their leaders have been set free by the courts due to lack of effective prosecution.

This material does not reflect the views of the Jinnah Institute, its Board of Governors, Board of Advisors or the President. This material may not be copied, reproduced or transmitted in whole or in part without attribution to the Jinnah Institute (JI). JI publishes original research, analyses, policy briefs and other communications on a regular basis; the views expressed in these publications are those of the authors alone. Unless noted otherwise, all material is property of the Institute. Copyright © 2012 Jinnah Institute.