Coming close to the edge in Pakistan

By Kishali Pinto Jayawardena

Human rights activists and lawyers in Pakistan are up in arms over recent moves by the Nawaz Sharif Government to impose constitutional reform which they see as having drastic implications for non-Muslims living in the country. A proposed 15th amendment termed as the Shariat Bill is presently before the National State Assembly, which makes the Shariah Law the supreme law of the land, and the Pakistani Constitution unabashedly and dangerously non-secular.

"If this amendment gets through, then it will become supra constitutional and other provisions of the Constitution will become subordinate to it. We see it as an attempt to replace a written constitution with some kind of an unwritten constitution. "It is a very serious matter," says Sohail Warraich, a human rights activist working with Shirkat Gah, one of Pakistan's most well known activist groups. Pakistani activists are opposing the Bill to the full, with public protest meetings being held in major cities.

The opposition parties are also opposing it, while splits in the ruling party over its provisions have led to voting being delayed in the National Assembly. The current thinking is that while the Government might push the law through in the National Assembly, it will be short of the required two-thirds majority in the Senate. That the proposed Bill is being violently resisted is not surprising, given its provisions that are unprecedentedly out of line with modern day thinking. Once passed, the law would have effect nothwithstanding anything contained in the constitution, any law and very importantly, any judgement of any court.

Moreover, though a two-thirds majority is presently required for crucial constitutional amendment, the proposed law allows this to be done by a simple majority, if any amendment is required for the enforcement of any matter relating to Sharia and the implementation of its injunctions. Activists fear that basic rights of the individual such as the right of equality before law, freedom of association, freedom of speech and the right to life of minority communities living in the country will be affected, with the worse hit being women and minority communities.

Again, the amendment allows each sect to have its own interpretation of Sharia which is criticized as encouraging sectarianism. There will be, in effect, no uniform law in the country. The judiciary meanwhile would have minimum control over protection of basic rights of the Pakistani people, as the amendment specifically overrides the judgement of any court. The amendment also is seen as affecting the very spirit and structure of the constitution, as it gives the federal government power to issue directives to enforce the Sharia and take necessary action against state functionaries for non- compliance of its directives. This has led to protest that this transferal of authority to the centre would adversely undermine provincial autonomy.

"We are in the process of getting ready to challenge the law before the Supreme Court. While the Court can strike down certain objectionable provisions of the law such as the relaxed procedure of constitutional amendment, the overriding of the judiciary and the negation of provincial autonomy, it would not be able to change the main thrust of the law that makes Islam the supreme law of the land" predicts Warraich. What would actually happen, of course, remains to be seen. The very fact of its introduction is seen as an example of religious cum political fundamentalism that is foretold as having dangerous implications for the entire region, taken together with the current happenings in Afghanistan.

The question now concerns the extent of religious and personal space that non-Muslims in Pakistan can lay claim to.

That this space is being progressively narrowed by a series of laws enacted in a technically faultless manner is seen by some as comparable to the situation that existed, for example, in Nazi Germany when the rights of Jews were taken away by legislation duly passed and they were ultimately butchered in their millions. This was to later serve as an enduring example of the horrors that could be perpetrated in the name of law, leading to the concept of international human rights and the warning that no state has the unfettered power to decide for itself what fate befalls the people under its care.

That the situation in Pakistan is becoming increasingly out of hand is demonstrated recently in the sentencing to death of a young Christian, Ayub Masih who had been accused of having uttered derogatory words about Prophet Mohammed during a dispute with a fellow villager. The sentence was promulgated under the Blasphemy Laws in the Pakistani Penal Code and led to immediate protests by lawyers and activists both in Pakistan and internationally. Their dissent was based on the argument that the decision by the Court against Masih was only on the verbal testimony of the complainants and that no evidence, circumstantial or otherwise had been proved against the accused.

Matters were further aggravated when a Roman Catholic Bishop of Faizalabad, John Joseph shot himself right in front of the iron gate of the Sessions Court that convicted Masih and sentenced him to death on April 27th 1998. His suicide led to a wave of communal riots and tension in the area, allegedly against the minority Christian community by Muslim fundamentalists. Masih's appeal to the High Court is pending, but his lawyers have expressed disillusion with the entire process, pointing out that given the atmosphere of intolerance, even if his appeal succeeds, there is no guarantee that he will not be killed by extremist elements.

Which is exactly what happened in the cases of others more unfortunate than Masih. One particularly excruciating instance was when three Christians, Salamat Masih, Manzoor Masih and Rehmat Masih were arrested on 11 May 1993.

Manzoor was shot dead outside the court on April 5 1994. Salamat and Rehmat who were sentenced to death on February 9, 1995 were both acquitted by Justice Arif Iqbal Bhatti later in the year and since then took refuge abroad.

Two years later, Justice Bhatti was shot dead at his office by a man believed to have been enraged by his judgement in favour of Salamat and Rehmat. Meanwhile, two religious groups announced a prize of Pakistani Rupees 1.3 million on the heads of Salamat and Rehmat

A leading human rights lawyer in Pakistan Naeem Shakir sums up the situation in his country well when he says that the Blasphemy Laws in Pakistan are so widely phrased that mandatory death penalty is imposed even for alleged "innuendoes and insinuations" that are quite vague in nature. He points out that these provisions are discriminatory as though they are supposedly meant to Islamize the criminal law, these are applicable to non-Muslims as well.

Thus if a non-Muslim professes to express his belief publicly, that would amount to blasphemy according to the law. Once someone is charged with the offence, he is doomed as the offence is non bailable and the death penalty is mandatory in law.

"Justice is subject to religious frenzy," he says He is explicit about one case in which he as the defence lawyer appeared for a Christian convert from Islam who suffered from paralysis. Tahir Iqbal was an engine mechanic in the Pakistani Air Force whose conversion to Christianity had annoyed Muslims. A case of blasphemy was registered against him by the Moslem cleric in charge of the mosque of that area alleging that when the call for prayer was recited, Iqbal had reacted by abusing Prophet Mohammed. Other charges against him included the accusation that "he imparts anti Islamic education to children who come to him for tuition, defiles the Holy Quran by underlining with green marker and thus seriously injures religious feelings."

Iqbal was arrested by the police on blasphemy charges and his bail application dismissed by a Sessions judge who incorrectly stated that since conversion from Islam to Christianity was an offence in itself, no bail could be granted. The case was meanwhile fixed for recording of prosecution evidence before Court. However, on the date of hearing, the defence lawyers were informed that Iqbal had died in jail the previous night. The accusations against those responsible for his custody were immediate. Iqbal had been poisoned to death because he had converted to Christianity. Other Pakistani nationals who have been accused of blasphemy have meanwhile fled the country due to their fear that they might suffer Iqbal's fate

The fact that there has been considerable subversion of the country's judicial system in the entire process is perhaps the most disturbing feature of all, with the establishing of a Federal Shariah Court to decide cases on appeal under Shariah law. The Court is empowered to strike down any statute law that may be deemed repugnant to the dictates of Islam. A non Muslim lawyer is meanwhile not allowed to appear as a legal practitioner before this Federal Court even though Shariat laws are applicable to non-Muslims. Again, electoral lists in the country have been separated as Muslim voters and non-Muslim voters. Both cannot vote for each other, and non Muslim citizens have been said to be marginalised under this apartheid mode of separate electorates. Enlightened Muslims in Pakistan point out that current developments in their country contradict the basic tenets of Islam that in fact stipulate a strict protection of the rights of non-Muslims.

The prevailing push in Pakistan towards a pronounced religious and political intolerance has been so far quietly canvassed in international fora including sessions at the UN Sub Commission on Minorities held in Geneva last month. Aware of the extreme dangers of religious fundamentalism and more so in the context of the precarious political state that Pakistan is in presently, protests outside the country have been muted. Whether this selective silence ought to continue in the context of trends that are growing increasingly more evident in the South Asian region remains a moot point.

Child Rights - A case in point

By a Special Correspondent

On the 18th of September, I travelled to Marawila to be present in an M.C. Marawila Case in which the proprietor of a tile factory in the Chilaw district was being charged by the Labour Department under Section 13(3) of the Employment of Women, Young Persons and Children Act (1956) for employing a child of nine years (who had lost his hand while being employed in the factory).

The case is being monitored by ILO/IPEC and PEACE ( an activist group for protecting environmental and children's rights). As the judge in the court in which the case was to be called was on leave, all cases in his court were called in the parallel court. The child was present in court with his father and grandfather. The mother was said to be in hospital. The accused was represented by defence counsel while two lawyers appeared for the Labour Dept. I was told unofficially that since there was a police case with regard to the same matter, there was no question about the accused pleading guilty of violating the labour laws, as this would compromise his position in the police case. On the other hand, the payment of the stipulated fine of Rs 1,000/= was a simple matter for the Mudalali.

The father of the child, according to the Labour Dept. is unwilling to give evidence for the prosecution as he is also in the employment of the accused. His grandmother had told PEACE volunteers that the child is not attending school.

To my unpracticed eye, he seemed undernourished. An expert witness due to appear for the prosecution was absent and the judge warranted all witnesses listed who did not appear in court. The case had to be postponed. However, after a request made by lawyers appearing for the Labour Department that the child was undergoing hardships, the case was fixed for hearing in early October. Whether it will be actually taken up on that day is anybody's guess.

This case illustrates very well, the current weaknesses in the system inspite of ambitious laws that are passed by the country's legislature. Due to absence of coordination between the Police and the Labour Dept, more than one case has been filed with regard to the same matter.

The most obvious and effective procedure would have been to have filed ONE case and have it conducted by State Counsel

The child will meanwhile have to testify in probably three cases, as there is some talk of a prosecution under the Factories Ordinance as well. The Department of Social Services has no involvement in the matter though it has a clear duty to look after the interests of the child.

Expert witnesses including doctors are obliged to travel endlessly to Court and waste valuable time. Postponement of cases due to their absence is all too common.

The case points also to obvious deficiencies in the law.

The recent amendments to the Criminal Procedure Code will not apply in this case as the ( expanded) definition of child abuse in the Code only refers to Penal Code offences and NOT all offences relating to children under other laws. In the instant case, the child apparently has no birth certificate, and the defence will naturally insist on proof of age. It is also high time that the amount of the fine imposed under the Employment of Women, Young Persons and Children Act is revised in keeping with modern day standards. The continuation of the present practice of hearing child related cases in "adult" courts is meanwhile a far from healthy practice and should be subject to revision as it violates the rights of the child under international law, as the Law Commission has recently pointed out.

What was the most ironic fact was that the child himself was unrepresented in this case. The prosecuting counsel was looking after the public interest under the Labour Laws. Likewise, the police and the Attorney General (Where they do appear) would represent not the child but the State. The child, on whose behalf the sleeping machinery of the State was aroused was present as a mere witness and not the central figure in the drama as he should have been.

More Plus * For those in need

Return to the Plus Contents