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Huzaima Bukhari & Dr. Ikramul Haq
Legal historians in Pakistan are bewildered as day by day the society is wrangling with legal shenanigans starting from serious constitutional issues to enforcing ban of kite flying and meals on wedding parties. In a country where a general in uniform wants to stick to power keeping both the posts of president and army chief, the prime minister proudly tells people that price hike of petroleum and gas products is in the best “national interest”, religious schools defy the registration law, the government fails to table a bill for amendments in controversial Hudood [prohibition] laws, provincials governments are warned by the apex court to strictly enforce its decisions regarding ban on kite flying and serving of meals on wedding functions and where most undesirable customs of karo kari (honour killing), vani and swara (cruel customs where women are given in marriage as a form of compensation) are still in practice, quest for a true constitutional democracy and rule of law appears a farfetched idea. The single most negative factor is that people in power are themselves the worst law offenders.
In 2005 the most controversial move by the government of NWFP was introduction of Hisba Bill 2005 [“Hisba,” an Arabic word, which in plain language means “to count” or “accountability” or “to prohibit from evil things]. The move by self-righteous elements to enforce moral dictates alarmed many sections of the society, compelling the President to refer the matter to Supreme Court under Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973. The most important question raised before the apex court was whether “Whether the Hisba Bill or any of its provisions, would, if enacted; be violative of the fundamental rights guaranteed in Part-II, Chapter 1 of the Constitution, including but not limited to Articles, 9, 14, 16 to 20, 22 and 25 thereof”?
On 4th August 2005, a 9-Member Bench of Supreme Court of Pakistan unanimously declared that section 10 (Bey), (Jeem), (Dal); section 12(1), (Alif), (Bey), (Jeem); section 23(1), (2), (3), (5), (6), (7), (12), (14), (27); section 25(1), (2) and section 28 of the ‘Hisba Bill’ 2005 were ultra vires the Constitution of the Islamic Republic of Pakistan, 1973. The honourable apex court held that “above referred sections of the Hisba Bill being vague, overbroad, unreasonably based on excessive delegation of jurisdiction, denying the right of access to justice to the citizens and attempting to set up a parallel judicial system are violative of Articles 2A, 4, 9, 14, 16, 17, 18, 19, 20 and 25 as well as 175 of the Constitution”. The crux of historic decision by the apex court was that “private life, personal thoughts and the individual beliefs of citizens cannot be allowed to be interfered with”.
This decision of the apex court saved the lives of millions who could have suffered irreparable loss in terms of human freedom had such an erratic and draconian law been enforced. Behind the whole bizarre episode lurks a continuous struggle between the forces of obscurantism and enlightenment. It is very unfortunate that forces of obscurantism are getting support of masses merely for the reason that unrepresentative rulers are following the agenda of USA and its allies that is detrimental to the interest of the Muslim World as a whole. Denying the establishment of a true democratic structure and freedom of judiciary are in fact strengthening the hands of forces of obscurantism. The so-called advocates of enlightenment should consider this point if they want to make this society a place worth living. If they continue to resist the establishment of a true democratic culture in society the forces of obscurantism will continue to thrive.
The government during 2005 failed to deliver anything positive about “moderation and enlightenment”. The role of National Assembly as legislative body was disappointing. The government on some occasions had to eat a humble pie when its motions were rejected by majority opposition legislators in the National Assembly. The chagrin was digested by scores of treasury lawmakers including federal and state ministers, parliamentary secretaries and MNAs. For example, the motion on delay of the report on changes in the Decorations Act 1975 was opposed even by many treasury members. Raza Ahmed Manika, chairman of a standing committee, wanted to move the motion but the House rejected it with 81 opposition votes against 78 of the Treasury’s.
A leading journalist of Islamabad aptly commented on the sorry state of affairs as under:
“…. after its restoration through elections of 2002, this National Assembly is yet not able to connect with our people. An overwhelming majority of them perceive it as an elitist club, where the rich and powerful gather to rubberstamp the doings of General Musharraf and his praetorian guards; while, the legislators excluded from the power table burn all their energy in desk thumping and shouting the slogans of “go-Musharraf-go; no-Musharraf-no. Parliaments all over the world assert and sustain their relevance by focusing on the fundamental function of such institutions, i.e., legislation. And our elected houses are seldom seen doing that. There was some “legislative business,” the Musharraf-Aziz government would not feel comfortable without, if it really wanted to make the world believe as if a vibrant parliament decides for Pakistan”.
The Federal Minister for Law, Justice and Human Rights claimed that during the 100-day rule of Mr. Shaukat Aziz as Prime Minster, as many as 22 different laws, including amendments, had been passed. He was of the view that this showed that the government was mitigating sufferings of the common man. “There is no precedent in history of the country to pass such number of laws during the short span of time, and it is a record”. This shows the level of complacency in governmental quarters. The government nets Rs. 25 per litre on petroleum products, and instead of enforcing a fair consumers’ rights law, is taking pride in setting some meaningless records.
No serious governmental efforts were made to explore factors behind the large-scale killings in the name of honour, vani punishments, and rape cases against women which persist with impunity in a seemingly modern state such as Pakistan. It is sad to note that Criminal Law (Amendments) Act passed by National Assembly on October 25, 2004, which provides punishments for those involved in Karo Kari, Siyah Kari, tantamount to adding insult to injury as it failed to address the issue of the Wali as the arbitrator of the murder. The Wali, though not the accused, continued to be the central lynchpin of justice and retribution. This law has not upset the influence of the middlemen and the tribal chiefs. The overarching Walis remain and so, murders continue to be condoned by the law.
Since the passing of this law, several more women and men have been killed and the proverbial Walis, feudal, tribal, or the next-of-kin of the victims, have reached settlements by taking fines, properties, heads of cattle and what not. Criminal justice institutions such as the police and the courts, in the absence of a legal framework that could deliver, and in a political system that exacts private service from them, are hardly able to deliver. Communities can use the jurisdictions of different courts, Islamic courts, family courts, or even tribal chief mediation to attain the kind of justice that best suits them. In Pakistani context justice then becomes subservient to power and negotiation, and punishments or acquittals can be bought and sold, increasing the corruption of the system. The daunting challenge to undo this ugly situation has not been accepted by the government in 2005.
The government instead of tackling the vital challenge of fair, equitable and quick dispensation of justice concentrated all its efforts in tackling the issues of “registration of deeni madrassahs [religious schools. In all there are about 14,000 Madrassahs] and filing of accounts by them by 31st December 2005and establishment of federal court in Islamabad.
Idea of the federal court was coined when Prime Minister Shaukat Aziz in his first broadcast to the nation since taking his office in August 2004 had announced to set up a federal commercial court in Islamabad to deal with financial disputes involving business, federal taxes and investment. To be called the Federal Court Act 2004, the court was to be led by a chief judge while its strength would have to be determined by the president in consultation with the prime minister. The federal court would have original and appellate jurisdiction on laws involving Imports and Exports (Control) Act, the Copies Rights Ordinance, the Customs Act, the Drug Act, the Emigration Ordinance, Oil and Gas Regulatory Authority Ordinance, Industrial Relations Ordinance under which the high court hears appeals against the decisions of courts and tribunals and banking courts, drug courts, income tax tribunals and customs tribunals.
The religious parties and controllers of deeni madrassahs have kept onopposing the government tooth and nail. The same fate met the proposed federal court bill as the legal fraternity rejected it being unconstitutional. The madrassahs are reluctant to disclose details of donations and funds. But at the same time they do not want to invite further displeasure of the government and the West. The redeeming fact was at least they agreed on the registration. It is, however, not yet clear whether registration alone will dispel the impression among the Western countries that they are teaching literature, which promotes militancy, sectarianism, and religious hatred. The government remained in a difficult position to deal with them as Mufti Muneebur Rahman, President, Ittehad Tanzeemat Madaris Dinya Pakistan (ITMDP) asked the government to extend the date for Deeni Madaris Registration by another six months, from December 31, 2005 to June 30, 2006. The policy of appeasement towards these forces of obscurantism in the past is now becoming a major headache for the government.
For the media people the year 2005 did not bring any good news and they expressed concerns that freedom of expression in Pakistan remained a circle of myth and reality with open government restrictions based on the pretexts of ‘national interest’ and ‘restrictive press laws’. The questions of restrictive laws curbing freedom of expression and victimisation of journalists loomed large in the discussions at various forums. The participants of the discussions and debates stressed that the series of press ordinances related to media betrayed the vital attributes of freedom of expression.
The media representatives were of the view that whenever government finds itself cornered it takes cover behind ‘national interest’. Citing examples of deaths and threats faced by journalists in line of their work, they stressed on the need for revising and repealing discriminatory laws restricting the press and provide compensations to the affected journalists in line of duty. They called for protecting journalists from violence and from events endangering the lives of working journalists. The press bodies pointed out the existing Freedom of Information Ordinance, the Press, News Agency and Books Registration Ordinance, the Defamation Ordinance, Press Council of Pakistan Ordinance, the Electronic Media Regulatory Authority Ordinance, the Associated Press of Pakistan Corporation Ordinance and numerous other laws enforced by the government only to pin down the working journalists and implicate them in heinous crimes, such as the Official Secret Act 1952, Security of Pakistan Act 1952, Maintenance of Public Order 1960 and many other sections of Pakistan Penal Code, including Contempt of Court Act and Anti-Terrorism Act. The media representatives stressed on the need for amending these laws and acts to safeguard the rights of media representatives and uphold freedom of expression in its true sense.
The opposition parties and media watchdogs accused the government of attempting to curb media freedoms through the Pemra Amendment Bill 2005 which contained provisions empowering police to arrest broadcasters and licensees. In section 27B, the Pemra law placed an ambiguous restriction on cross-media ownership with reverberating effects on the print media and newspaper owners. Section 21 of the proposed bill infringes on the provincial autonomy by restricting the role of provinces as previously stipulated in the Pemra Ordinance 2002.
The Pakistan Federal Union of Journalists (PFUJ) expressed its concern over the amendments to broadcasting laws through the Pemra amendment bill which threatened freedom of the press and basic fundamental right of the citizen and urged the government not to pass the bill without holding negotiations with PFUJ. The PFUJ demanded that some of the portions of the amendments needed serious debate among the journalist bodies and Pemra should have circulated the same. It said under the amended ordinance, the licensees/broadcasters’ right to be heard had also been withdrawn and the government representation in Pemra had been increased which now also included the CBR chairman as ex-officio member. The PFUJ believed that arrest of any citizen of Pakistan without warrant was a gross violation of fundamental rights. The International Federation of Journalists (IFJ), representing over 500,000 journalists worldwide, had also expressed concerns about the amendment bill which it said could seriously threaten freedom of the press. “It is a matter of immense concern that the bill has already been passed by the standing committee without much debate,” said the IFJ. It said in gross violation of fundamental rights, the proposed amendments empowered police to arrest without warrant any radio or TV broadcaster, accusing him/her of “repeat violation” under the Pemra Ordinance.
The positive move in 2005 was approval of the draft of Law Reforms Bill, 2005 by the federal cabinet aimed at providing inexpensive and speedy justice to people and redressing the outstanding grievances in the administration of justice. The amendments proposed in the bill are aimed at simplifying and modifying the procedure to reduce delay, and serve as a check against frivolous litigations. Through this bill amendments have been proposed in the Civil Procedure Code, 1908, Code of Criminal Procedure, 1898, Special Relief Act, 1877, Power of Attorney Act, 1882, General Clauses Act, 1877, Registration Act, 1908 and Pakistan Penal Code. A provision is being proposed providing punishment for dishonest investigation by the police, which would help in curbing the evil of dishonest investigation resulting in redressing the grievances of the aggrieved.
In order to safeguard the rights of women, the law relating to bail is being amended so that women could be released on bail, except in offences relating to narcotics, terrorism, robbery, dacoity or murder. This would lessen the misery of women, who presently languish in jails without trial. He said the illegal confinement by police is being made an offence punishable with imprisonment up to seven years, and the offender would also be liable to fine.
The proposed law intends to reduce court delays due to non-attendance of witnesses and non-production of documents in criminal cases. It will empower the trial court to take action against the delinquent. The condemned prisoners would not be shifted to the death cells without confirmation of sentence by a high court. A provision is being added providing that a court might consider certain factors while awarding sentence such as age, health, character and antecedents of the guilty.
The Law Reforms Bill, 2005 can bring some meaningful changes in the justice system of the country. Let us hope that its adoption and implementation is achieved in 2006. If it happens, 2005 can prove to be a starting point for the much-needed changes in our legal system, without which we can never claim to be a civilized society.
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The writers, members of visiting faculty of Lahore University of Management Sciences (LUMS), have written many books on Pakistani laws. They work for a multi-disciplinary firm, HUZAIMA & IKRAM (irm@brain.net.pk).