The 1974 NA proceedings on the Ahmadi issue
Judiciary: Judgment days
Debt recovery law faces due-process challenge in Pakistan
Opinion: A Case of High Treason?
Opinion: Defending the Constitution
Opinion: Labour Rights?
Opinion: The Power of Judicial Review
Opinion: Understanding Qisas and Diyat Laws
Opinion: Unpacking the Mukhtaran Mai Judgement
Opinion: Where Is Justice?
The Crisis of Legal Aid in Pakistan

The 1974 NA proceedings on the Ahmadi issue

Consider the role of Pakistan People’s Party’s (PPP) in 1974 when it declared Ahmadis to be out of the fold of Islam

The Supreme Court judgment in the Asghar Khan case has exposed the deep state completely. The deep state seeks to control the electoral process to an extent that only those suitable to it and its interests can come forward. The Asghar Khan case is just the tip of the iceberg. I am sure. Asghar Khan himself was part of the nine-star alliance called the Pakistan National Alliance along with a rag tag outfit of mullahs and even liberals, which too must have been brought together by similar manoeuvring to oust Zulfiqar Ali Bhutto in 1977.

While the deep state is recognised and rightly so for its nefarious role in keeping the general will of the people subservient to the vested interests of those who hold the strings, it must also be stated that some of our worst decisions have had nothing to do with the deep state. Consider the role of Pakistan People’s Party’s (PPP) in 1974 when it declared Ahmadis to be out of the fold of Islam, which has since created sectarian monsters in Pakistan of which there seems to be no solution any more. The in-camera proceedings of the National Assembly — especially the cross examination of the two Ahmadi delegations, one from the Qadiani Jamaat and the other from Lahori Jamaat — are now common knowledge thanks to a public interest writ petition no. 7283/2010 by one Bashir Ahmad Khan adjudicated by his Lordship, Ijaz Chaudhry, then of the Lahore High Court. This report is an eye-opener as to how far the ‘liberal’ PPP went in its efforts to declare an entire community out of the pale of Islam.

The argument of both Ahmadi delegations was simple and straightforward: whatever the personal views of a sect within Islam, the state had to remain neutral and respect each sect’s interpretation. In other words, if a person professes to be a Muslim, the matter becomes one between him and God Almighty. The first Ahmadi delegation led by Mirza Nasir Ahmad forthrightly put forward that there were two definitions of Muslims: one, the political category whereby all sects should be considered within the ‘Millat-e-Islamia’ and the second, a religious category that is to be left to each Muslim sect and would not be the business of the state. Only this way can an endless conflict with regards to takfir after takfir could be avoided and political unity of the Muslim peoples be ensured.

Instead of addressing these issues, Yahya Bakhtiar, the then attorney general, repetitively attacked Ahmadis on essentially two counts, i.e. Ahmadis’ views on other sects and on Ahmadis’ insistence on being counted as a separate sect or group of Muslims. By making the whole proceeding about Ahmadis’ religious beliefs and not the question of law, i.e. whether the state had any right to interfere in the individual’s religious beliefs, Mr Bakhtiar and the PPP conceded a point that hitherto the Pakistani state had refused to concede to the clergy, i.e. a majority can decide the beliefs of a minority constitutionally. This is hogwash and a throwback to the days of the execution of Sir Thomas More, who was executed in 1535 for his ‘Catholic’ beliefs in a Protestant England or earlier the Council of Nicaea in 325 AD. The problem with that is — other than the fact that we do not live in antiquity or even the Middle Ages — Pakistan’s National Assembly is constitutionally not the religious assembly of all the Islamic world. Islam does not recognise a clergy and finally, and most importantly, Pakistan is not self-avowedly a sectarian Sunni or Shia Muslim state, which Protestant England was, and the United Kingdom in theory still is. Indeed, even if we concede that Pakistan is an Islamic state, its constitution takes pains to establish Islamic provisions are to be interpreted and applied according to each sect.

The second plank of Mr Bakhtiar’s argument was that Ahmadis had submitted themselves to a separate community and therefore it was alright to declare them out of the fold of Islam. He relied heavily on the fact that at the time of partition, the Ahmadi community gave a separate representation before the boundary commission, overlooking the fact that the Muslim League had given time from its own allotted time to the Ahmadi community to give its representation, which was a supplemental representation given to counteract the Sikh case for Nankana Sahib. The proceedings also contain absolute historical untruths by leaders like Mufti Mehmood, the father of Maulana Fazlur Rehman, against Ahmadis to the effect that Ahmadis somehow were opposed to the creation of Pakistan. On the contrary, Ahmadis, as a jamaat (party), had been instrumental in the Muslim League’s victory in the 1946 elections, and this was duly recognised by Quaid-e-Azam and the Muslim League. It is for this reason that Jinnah had chosen Zafrullah to plead the Muslim case before the Boundary Commission. Meanwhile, Mufti Mehmood had been until partition a leading worker for the Jamiat-e-Ulema-Hind and the Congress, having opposed the creation of Pakistan throughout, as did most of the Islamic divines who in 1974 deposed against the Ahmadis.

The 1974 proceedings expose the dual-faced bigotry of the mullahs and their ability to lie blatantly. The same mullahs, of course, later became the recipients of the funds that were released by Messrs Beg, Durrani and Younas Habib. In many ways, the proceedings are also a damning indictment of the PPP and its liberal protestations. Far from being liberal or secular, the PPP comes across as a prejudiced and biased majoritarian party. In retrospect, the decision by Ahmadis to even submit themselves to such examination and exercise in futility was a tactical mistake of immense proportions. Perhaps they assumed that reason might still prevail over ignorance and bigotry. They were wrong.

In the end, it must be stated — as a disclaimer — that this author has never subscribed to any of the Ahmadi religious beliefs. This is necessary because it seems that anyone who speaks out for the cause of justice for this patriotic and honest Pakistani community is automatically branded as one of them. If I was one, I would proudly say so. However, my interest in this subject arises mainly out of my concern as a Pakistani on what this crass and crude exercise in sectarianism has led this country to.

Judiciary: Judgment days — Yasser Latif Hamdani

Yasser Latif Hamdani on role of judiciary in Pakistan

The judicial history of Pakistan is as patchy as the political history of the country. What started as an impartial and secular institution imbued with the finest British traditions of justice and fair play has given way to a politicised theocratic institution vying for political power, while retaining some of the trappings of colonial grandeur (we still address the judges as "my lords" or "your lordships"). The evolution of Pakistani judiciary has to be seen in the context of three other factors in Pakistan's institutional structure-the parliament/executive, the army and religion.

In the early years of the new republic the secular and modernist character of judiciary as an institution was self-evident in many landmark decisions, as in the case of the proceedings of the Court of Inquiry constituted in 1954 under Punjab Act II of 1954 to investigate into the disturbances in Punjab in 1953, which had been undertaken by religio-political parties such as Majlis-e-Ahrar and Jamaat-e-Islami, which had been routed in the 1946 elections, against the Ahmadiyya Muslim sect in order to undermine the Muslim League government. Sir Zafrulla Khan, the foreign minister in the League cabinet and one of the founding fathers of Pakistan, was an Ahmadi and a target of agitation by the Islamist parties.

The Court of Inquiry conducted a mammoth inquisitorial proceeding where the two judges, Justice Munir and Justice Kayani, interviewed Muslim scholars of every conceivable sect in Islam. Conclusions of this report make interesting reading. The judges were forthright in declaring that: 1. Pakistan was conceived as a secular state by Muhammad Ali Jinnah. 2. An Islamic state is a mirage not worth chasing. 3. There is no universal definition of who is a Muslim and it logically should not be the business of the state. 4. The agitation was the result of petty politics played by regional politicians to undermine the Muslim League government.

A judicial report of this kind of would be inconceivable today when Pakistan has established its own narrative of an ideological Islamic state as raison d'etre for the creation of Pakistan and has constitutionally declared Ahmadis to be non-Muslims for the purposes of law and constitution.

The earliest blow to democracy in Pakistan was dealt by the judiciary through the Tamizuddin case reported as PLD 1955 FC 240, the ratio of which practically set off a downward spiral for the country. The point on which the case turned was essentially a technical one. In 1954 the Governor-General of Pakistan, Ghulam Muhammad, had dismissed the Constituent Assembly and replaced it with a council of ministers. Against this action, Tamizuddin Khan, the president of the dismissed Constituent Assembly, filed successfully a writ at the Sindh High Court under Section 223-A of the Government of India Act, 1935. Section 223-A had been inserted by the Pakistani legislature to provide for writ jurisdiction of the high courts. The Federation appealed to the federal court which, after tracing the history of dominion constitutions in the British Empire and Commonwealth, concluded that since the governor-general had not given his assent to the passage of Section 223-A, writ jurisdiction was not vested with the high courts.

Then came the Dosso case PLD 1958 SC 553, which arose out of the status of the Frontier Crimes Regulations in Baluchistan, challenged legitimately as being ultra vires the Constitution of 1956, and which laid the basis for the doctrine of necessity which has plagued the country's constitutional history ever since. The Supreme Court through this decision legitimised General Ayub's military coup against the civilian government on the basis of Kelsen's theory of revolution and legal positivism which saw revolution as a legitimate means of changing the government. General Ayub Khan believed that parliamentary democracy was not suited to the genius of the people of Pakistan and that the country needed a presidential form of government where the President of the Republic was to be elected through a group of electors called "Basic Democrats". Basic democracy system was essentially a constitutional cover to the existing feudal social order as Basic Democrats inevitably were elected from rural notables and would inevitably support the status quo and the powers that be. In 1962, Ayub Khan enacted a presidential constitution embodying this complex system. The tumultuous events of 1969 and 1971, which led to the independence of Bangladesh, buried this constitution and its system, bringing the parliamentary form of government back in Pakistan.

The Dosso judgment was overturned in the Asma Jillani case PLD 1972 SC 139, which annulled Kelsen's theory of revolution as a valid legal principle. Unfortunately the triumph in this case was short-lived. General Zia-ul-Haq mounted a coup against Zulfikar Ali Bhutto's democratic government and this coup was legitimised through the doctrine of necessity or Id Quod Alias Non Est Licitum, Necessitas Licituin Facit-spelt out in those terms for the first time but in essence a variant of Kelsen's legal positivism-in the Nusrat Bhutto case PLD 1977 SC 657. In 1979 the judiciary presided over the judicial murder of Zulfikar Ali Bhutto.

General Zia needed Islam to legitimise his illegitimate rule and one change so effected was the creation of the Federal Shariat Court through a presidential order in 1980. This constitutional amendment made through presidential decree was later saved by the 8th Amendment to the Constitution. The Federal Shariat Court now exists as a parallel judicial track that deals with matters of Shariat. The establishment of this institution and the inability of other institutions to challenge the arbitrariness with which this court was introduced has legally and constitutionally established a theocracy in Pakistan. The impact of these fundamental changes in the nature of judiciary vis-avis the role of Islam in the state can be seen in two landmark judgments of shame-Qazalbash Waqf case PLD 1990 SC 99 and Zaheeruddin case 1993 SCMR 1718. Qazalbash Waqf case outlawed land reforms on the touchstone of Islam and Zaheeruddin vs the State legitimised violence by constitutionally ordained Muslims against constitutionally ordained non-Muslims, the Ahmadis.

The 1990s saw a tug-of war between the democratically elected governments of Benazir Bhutto and Nawaz Sharif and the judiciary with the Al Jehad Trust Case PLD 1996 SC 324 establishing judicial independence by making seniority of judges a key factor and defining "consultation" by the Chief Justice in appointment of high court and Supreme Court judges as a veto the Chief Justice could exercise in such appointments. When General Pervez Musharraf mounted Pakistan's third military coup in 1999, the judiciary legitimised it and even gave Musharraf the arbitrary power to amend the Constitution. It was business as usual with the judiciary acting as a rubber stamp for the military ruler till in 2007 Chief Justice Iftikhar Chaudhry refused to resign despite pressure, leading to the so-called "Lawyers Movement". Chief Justice Chaudhry was restored on March 16, 2009, by the democratically elected government of former prime minister Yousuf Raza Gilani. Chaudhry's restoration started a fresh bout of tug-of-war between the judiciary and the executive in the form of the famed NRO Case, reported as PLD 2010 SC 265.

The NRO case pertained to the National Reconciliation Ordinance, 2007, which had given indemnity to certain persons from previous court cases, including President Asif Ali Zardari, and which was struck down by the Supreme Court. The Supreme Court then ordered the prime minister of Pakistan to write a letter to Swiss authorities to revive a case against President Zardari, which was not fulfilled by the then prime minister on the ground that it violates the immunity granted to the president of the republic under Article 248(2) of the Constitution. In 2012, this led to the Supreme Court's disqualification of the prime minister as the member of National Assembly and thereby effecting what many have described, justifiably, as a judicial coup against a democratically elected prime minister. The new prime minister, Raja Pervaiz Ashraf, has also refused to obey the order thus far and the coming days will determine whether Prime Minister Ashraf survives the onslaught of the judiciary or if he too is made to pack up and go home.

Pakistan's judiciary, with very few exceptions, has been a reactionary institution with very little to show by way of advance of civil rights of the citizens of Pakistan. On the contrary, it has legitimised military coups, dismissed and hanged prime ministers, overturned religious freedom, hindered redistribution of income and land and has been at the forefront of persecution of minorities in Pakistan. In recent years, the judiciary has grown more confident and is now a real threat to the functioning of democracy in Pakistan, heralding fears that the country is now heading towards the infamous Bangladesh model which has been tried and which failed in that country.

Debt recovery law faces due-process challenge in Pakistan

Question of applying due process guarantees to commercial laws will impact the banking industry

B.N. Rau, Constitutional Adviser to the Constituent Assembly that was drafting the Constitution of India (“the Indian Constitution”), travelled to the U.S.A, where he met U.S. Supreme Court Justice Felix Frankfurter. The latter advised him against including the phrase ‘due process’ in the Indian Constitution, and hence, in 1949, the phrase was not included in the text of the Indian Constitution. Indian courts, however, repeatedly located ‘due process’ in Article 14 of the Indian Constitution instead. One could, without exaggeration, describe the Pakistani legal tradition as India-lite (with a flavour of Islam). The Constitutions of 1956, 1962, and 1973 all avoided the use of the term ‘due process’ in keeping with the Indian tradition. In 2010, when Pakistan’sParliament passed the Eighteenth Amendment to the Pakistan’sConstitution, a new article - Article 10-A - was introduced. It reads:

“Article 10-A: For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to fair trial and due process.” This opened the door for litigious challenges to existing statutes that provided for a summary procedure. Chief amongst these is theFinancial Institutions (Recovery of Finances) Ordinance, 2001(“the FIO”). The FIO is a banking recovery law that was promulgated by the martial law regime of General Musharraf, which was saved by the Seventeenth Amendment to the Constitution. Briefly, it was Musharraf’s main financial guru Shaukat Aziz, formerly of Citibank, who had pushed for a law that would enable the banking sector to recover outstanding debts speedily. The FIO requires the defendant to seek leave to defend a suit, which can be denied by the presiding judge on the basis of validly filed statements of accounts by a financial institution. It is therefore a bankingspecific variant of Order XXXVII (Summary Procedure) of the Code of Civil Procedure, 1908 (“the CPC”), which Indian readers may be quite familiar with.

In several challenges before the Sindh and Lahore High Courts, petitioners have argued that Article 10-A creates a new fundamental right to fair trial and due process because of which the summary procedure under the FIO has become unconstitutional. The contention of the petitioners was that since the rights contained in Article 9 (such as the right to life) were limited to personal rights and not property rights, Article 10-A had introduced a new right. In rebuttal, the lawyers representing the banks have argued the following: a) Presumption of constitutionality attaches to each piece of legislation enacted by a legislature.

b) Article 10-A is a declaratory right introduced to acknowledge and recognise existing rights afforded to citizens and persons under the Constitution of Pakistan, especially under Articles 9 and25. For this proposition, advocates relied on the landmark Sharaf Faridi case, PLD 1989 Karachi 404 and the Jamaat-e-Islami case, PLD 2000 SC 111. c) ‘Due process’ has been recognised by precedent (Manzoor Elahi Case, PLD 1975 SC 66 and the Liaqat Hussain Case, PLD 1999 SC 505 at page 652).

d) In India, the right to a fair trial was located by the Supreme Court of India within Article 14 of the Indian Constitution (which is in pari materia with Article 25 of Pakistan’s Constitution) in the judgment of Dwarka Prasad Agarwal v. B.D. Agarwal, (2003) 6 SCC 230 at pages 245 to 246.

e) Article 9 is in pari materia with Article 21 of the Indian Constitution and judgments under Article 21 of the Indian Constitution have defined ‘due process’. Therefore Article 10-A is merely a declaratory insertion into the Constitution.

Further, relying on the Chenab Cement case, PLD 1996 Lah 672 at pages 684 to 685, the lawyers representing the banks urged that it was incorrect to say that Article 9 is limited to personal and not property rights. On the other hand, the reason for the inclusion ofArticle 10-A was that it was better to have an enumerated right to fair trial and due process than have it reside in the penumbra ofArticles 4, 9, and 25 of Pakistan’s Constitution. The petitioners argued, relying on the judgments of the European Court of Human Rights in Dombo Beheer, Stran Greek Refineries v.Greece, and Ruiz Mateos v. Spain (Application no. 12952/87), that where oral evidence was not allowed and cross-examination was not undertaken, it would be a violation of Article 10-A’s principles of fair trial and due process since the principle of equality of arms was not respected.

The lawyers representing the banks contend that the FIO does not stop the defendant from presenting evidence, which was not the case in the impugned legislation from which the Dombo Beheer case emerged. In the Dombo Beheer case, the applicant company’s Director was not allowed to submit evidence at par with the Bank Manager. The issue there was not as much about oral evidence but any evidence. It is wrong to say that in all civil cases, oral evidence is necessary and that there can be no trial unless there is oral evidence and cross-examination. Under theCPC, there can be a trial even prior to the recording of evidence under Order XIV, Rules 2, 6, and 7; Order XV, Rule 2; and Order VII, Rule 11. Under European jurisprudence, as it has developed since the establishment of the European Community, the right to cross-examine evidence is given specifically in criminal trials underArticle 6 of the European Convention on Human Rights. It follows that there is no absolute right to cross-examine in civil cases.

Numerous obstacles exist for the banks under the FIO: a) Banks need to file all statements of accounts since the inception of the account. b) Banks need to file all relevant documents, and this would include documents supporting each and every entry on a balance sheet.

c) Details of finance granted and repaid have to be provided. d) A petition for leave to appear (“PLA”) cannot be dismissed for non-prosecution (Abid Aziz Khan v. BOP, 2007 CLD 997). e) Failure to reply or file counter-affidavit can be a ground for grant of leave. The petitioners, on the other hand, also argued that that the procedure under the CPC ensures a fair trial and that it should be made applicable. To this, the lawyers for the banks argued that the summary procedure is nothing new, especially vis-a-vis the CPC. Order XXXVII is also part of the CPC, and it provides for a summary procedure for negotiable instruments. The West Pakistan Family Courts Act, 1964 excludes the CPC and the Qanune-Shahadat Order, 1984 in Section 17. Other examples include theArbitration Act, 1940 (Section 33), the Punjab Rented Premises Act, 2009 (Section 22), the Companies Ordinance, 1984 (Section 9(3) and Section 424), the Contempt of Court Act, 1976 and even in criminal trials under Sections 260 to 265 of the Criminal Procedure Code. They also point to the fact that summary procedure has been held constitutional in all major democracies of the world including India, the U.S.A., and the U.K. The FIO does not exclude the CPC wholly, but the usual procedure of the CPC is not required given the emphasis on claims being established through documentation.

It was also argued by the petitioners that case law under the FIO does not allow for amendments to a PLA, and therefore, the FIO and the jurisprudence developing from it is unconstitutional. The lawyers for the banks rebutted that an amendment to the PLA had been allowed in Habib Bank Limited v. Bela Automotives Limited, 2010 CLD 1243 at pages 1261 to 1265. The petitioners then argued that no application by the defendant is allowed before the grant of leave, and therefore, the FIO and the jurisprudence under it violate Article 10-A. The lawyers for the banks contended that applications under Section 12(2) of the CPC were held to be maintainable in Muhammad Yaqoob v. United Bank Limited, 2007 CLD 683. Leave is required only to defend. No leave is required to appear. Defendants can appear as a matter of right.

The petitioners also argued that the findings of the court while deciding the PLA operate as res judicata and therefore affect rights to counter-claim and set off. The lawyers for the banks argued that only if the points raised by the borrower in its suit are finally decided or adjudicated by the court at that state would it apply as res judiciata. The borrower’s suit will be decided on its own merits, relying on the Industrial Development Bank Pakistan case, 2002 CLD 369 at page 375. The same approach was also taken under Order XXXVII of the CPC. To the argument that a set off cannot be claimed after the PLA has been dismissed, the lawyers for the banks contended that a borrower’s counter-claim was not germane to the question of leave to defend and will proceed separately. Even otherwise, a set off can only be claimed where the claim is for an ascertained amount. In response to the argument that the consolidation of suits by parties is hit by res judicata of the decision on the PLA, the lawyers for the banks argued that under the FIO, consolidation is possible if there is a basis for it, relying on United Dairy Farms v. United Bank Limited, 2005 CLD 569 at pages 578, 579, and 580 and on M.L. Traders v.Judge Banking Court No. IV Lahore, 2007 CLD 634 at pages 636 and 637. Stay orders and attachments are given which affect the defendants even before a case has been decided against them. These are obtained on separate applications and defendants can file separate replies. These can be argued before the PLA and, in any event, courts usually pass time bound orders in these, such as “till the next date of hearing”.

In the coming months, the judgment on these cases will determine the fate of Pakistan’s banking industry. If history is any guide - for example in UBL v. Farooq Brothers, where the Supreme Court overturned a Shariat Appellate decision that sought to undo interest banking in Pakistan - it is unlikely that the High Courts of Pakistan will strike down legislation that has been pivotal in settling bad debts and helping the banking industry recover amounts due to them. In any event, Article 10-A litigation – which has brought leading corporate commercial litigators to cross swords, is a testament to the sage advice that Justice Frankfurtergave to Dr. Ambedkar all those years ago. Still perhaps, the idea of due process might have operation in fields outside commercial litigation. Pakistan’s marginalised minority communities especially could use the notion of substantive due process to further their rights as citizens of the republic. To this end, it would be instructive for Pakistani judges to follow U.S. precedents, where the application of due process has been applied varyingly and with disparate impact. In other words, strict standards of due process, and especially substantive due process, can be used to address questions that affect religious and ethnic minorities as well as women, but a less rigorous and more laissez faire attitude can be taken in economic matters. That would ensure that we do not throw the baby out with the bath water. Whatever the judgments, the effects of the decisions in these cases will be far-reaching and unprecedented in South Asian legal tradition.

Opinion: A Case of High Treason?

Asghar Khan's petition asks for the trial of former army chief Gen (r) Aslam Beg on grounds of high treason. Is that a fair demand?

Article 243 of the constitution vests the supreme command of the armed forces in the president of the republic. The oath of the members of the armed forces, pursuant to Article 244 read with the Third Schedule, states clearly:

"I do solemnly swear that I will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law."

Air Marshal (r) Asghar Khan's petition - which was taken up by then chief justice Sajjad Ali Shah in 1996 and has finally seen the light of the day - asks for the trial of former army chief Gen (r) Aslam Beg on grounds of high treason. That is a fair demand. Article 6(1) of the Constitution of Pakistan as it stood in the 1990s reads: "Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason."

In theory, Pakistan's constitutional scheme allows only for governance by a cabinet responsible to an elected parliament. The unelected institutions namely judiciary and the civilian bureaucracy are in principle neutral, apolitical and impartial. The military is a subordinate department of the government where professional soldiers are answerable to the bureaucrats in the Ministry of Defence. This is what our form of government envisages. Anything done in contravention of this would amount to a subversion of the Constitution. In 1988 Benazir Bhutto came to power ending 11 years of a brutal military regime.

General Aslam Beg, the chief of army staff who she famously gave a "Tamgha-eJamhooriat" (medal of democracy), became the architect of the army's post Zia strategy, if Gen (r) Asad Durrani's testimony in the Supreme Court last Friday is to be believed. Beg created a right-wing alliance of religious parties and the new Pakistani Muslim League that Zia's loyalists had created in the parliament after the non-party elections of 1985. The IJI alliance, which sought to bring down Benazir Bhutto's first government, was therefore a concocted alliance, planned, funded and executed by serving officers of Pakistan Army. The legal question here would be whether a serving general of the Pakistan Army channeling funds through the Inter Services Intelligence (ISI) and by other means constitutes a subversion of the constitution? The answer to this question should be plainly yes. A serving officer - whether civil or military- is bound by duty not to interfere with the constitutional process.

The reality is a whole different country. Pakistan's military was historically part of the colonial enforcement project and had not been involved in the independence struggle or the movement for Pakistan. Nevertheless having ushered in a national security state very early on in Pakistan's history, the military appropriated a role very similar to the Turkish Army in Turkey ie as the guardian of state's official ideology.

Committed to apparently antithetical ideologies - Kemalism and Islam - the two armies enjoyed a great deal of coordination. Turkish Army's hanging of Adnan Mederes in 1960 no doubt was closely watched by the Pakistani military which would hang Zulfikar Ali Bhutto 19 years later. Unlike Pakistan Army, the Turkish Army was historically involved in the war of independence under Kemal Ataturk and therefore enjoyed far greater legitimacy in its role.

In 2011 the Turks moved decisively against the military's role in politics and governance, when the conspirators of a coup plot dating back to 2003 were tried after being arrested. These included serving and retired generals. In an attempt to pressure the civilian government, all three service chiefs resigned.

Erdogan and his party - by now in a great deal of control - quickly moved to replace them, thus ending for all practical purposes any chance of a military coup in Turkey. Are we moving in a similar direction? In terms of Pakistani jurisprudence as laid down by the courts, there is no longer any room for the military's direct or indirect intervention in the political system. In the Asma Jillani case (PLD 1972 SC 139), a writ petition under Article 98 of the constitution of 1962 challenging the detention of her father was not entertained by the high court on grounds of jurisdiction, leading subsequently to an appeal in the Supreme Court. The judges laid down very strictly that military usurpers could not be allowed to subvert or abrogate the constitution. In the PCO Judges case decided in July 2009, the Supreme Court declared all military interventions manifestly illegal, unconstitutional and devoid of legitimacy. The established principle in the jurisprudence that is accepted by our courts is that what cannot be done directly cannot be done indirectly.

In the view of this writer, the Asghar Khan petition promises to be the most important constitutional case in our history. A Supreme Court verdict against Gen (r) Mirza Aslam Beg and his co-conspirators - Gen (r) Asad Durrani, Younus Habib and the politicians who received the funds - will go a long way in stamping forcefully the principle of civilian supremacy in Pakistan.

If the Supreme Court does not back down under pressure, it would undo the many wrongs of our history, including the judiciary's collusion with military dictators. May the wise lordships seize this moment of history for the sake of our posterity. If they do not, the same posterity will condemn them as we have condemned those before them.

Opinion: Defending the Constitution

Legally, the armed forces are subordinate to the federal government. The problem with Pakistan's civil-military relations is not legal but purely political

"During my talks with one or two very high-ranking officers I discovered that they did not know the implications of the oath taken by the troops of Pakistan. Of course, an oath is only a matter of form; what is more important is true spirit and heart. But it is an important form and I would like to take the opportunity of refreshing your memory by reading the prescribed oath to you:

‘I solemnly affirm, in the presence of Almighty God, that I owe allegiance to the constitution and the Dominion of Pakistan and that I will as in duty bound honestly and faithfully serve.’ As I have said just now, the spirit is what really matters. I should like you to study the constitution which is in force in Pakistan at present and understand its true constitutional and legal implications.” (Muhammad Ali Jinnah speaking to officers at the Military Staff College, Quetta, on June 14, 1948) Pakistan’s armed forces are a wing of the Federal Government of Pakistan, which controls defence (through Chapter 2 of Part XII of the Constitution of 1973 and the federal legislative list) as a purely federal subject. The chairman of the Joint Chiefs of Staff Committee, and the army, air and navy chiefs are appointed public servants carrying out responsibilities that fall in the purview of defence.

According to Articles 243-245 of the constitution, the president of Pakistan is the supreme commander of the armed forces. He maintains and commissions them, and, on binding advice from the prime minister, appoints the forces chiefs and the chairman of Joint Chiefs of Staff Committee.

Before the 1973 constitution, there existed the office of the Commander in Chief of the Armed Forces, which was discontinued in the aftermath of the 1971 debacle, to bring the army under strict civilian control. The members of the armed forces are also required to take an oath under the constitution which they are required to serve and protect. Contrast this to the contention raised by a writ petition before Lahore High Court by an advocate – quite appropriately named Ghazi Ilmuddin – that the supreme command of the forces be vested with the chief of army staff. A petition that offends constitutional provisions should not have been entertained, and dismissed with extreme prejudice. It is perhaps an indication of the influence that the armed forces exercise on civilian authorities that the presiding judge sent notices to the federal government to respond.

Every member of the armed forces is under a constitutional obligation to defend the constitution against all adventurism, including adventurism of commanding officers. Unfortunately, this oath has been flouted time and again. 1977, 1999 and 2007 are three glaring examples of this failure. A strict application of Pakistan’s main military legislation, the Army Act, 1952, would mean court martial for all personnel who aided General Zia and General Musharraf in their adventurism. Section 31 of the aforesaid act reads: “Mutiny and insubordination: Any person subject to this Act who commits any of the following offences, that is to say, –

(a) begins, incites, causes, or conspires with any other person to cause, or joins in, any mutiny in the military, naval or air forces of Pakistan or any forces co-operating therewith; or

(b) being present at any such mutiny, does not use his utmost endeavours to suppress the

same; or (c) knowing or having reason to believe in the existence of any such mutiny or any intentino to commit such mutiny, or of any such conspiracy, does not without reasonable delay give information thereof to his commanding or other superior officer; or (d) attempts to seduce any person in the military, naval or air forces of Pakistan from his duty or his allegiance to the Government of Pakistan; shall, on conviction by court-martial, be punished with death or with such less punishment as in this Act mentioned.”

But the problem with Pakistan’s civil-military relations is purely political, not constitutional or legal. It is the armed forces in general, and the Pakistan Army in particular, that control important matters such as foreign policy. The way the War on Terror has been conducted over the last 10 years indicates how the armed forces have demarcated a central role – considerably more expansive than the one permitted to them by the constitution – in public policy. It is the position of this author that the armed forces have strategic, tactical and corporate interests that seldom coincide with the interests of Pakistan and its people. Therefore we hear of such fanciful ideas as strategic depth and strategic assets when the priority for the people of Pakistan should be fulfilment of those basic principles of policy that occur right after fundamental rights.

Constitutionally, Pakistan is a social welfare state based on pluralism, democratic principles, religious freedom and Islamic egalitarianism. Yet all this is subject to the availability of funds, which basically means that since Pakistan has been kept – on one pretext or another – in a state of perpetual national security emergency since 1958, social welfare, democracy and egalitarianism can wait.

Much has been written about the duplicity of Pakistan’s armed forces in the War on Terror. It is not as much duplicity as it is complexity. At present, there are two ideological groups within the armed forces of Pakistan. One may loosely be defined as “imperialists” and the other “Islamic nationalists”. Both need each other. Imperialists need the Islamic nationalists to remain useful to the superpower. Islamic nationalists need the imperialists to ensure that the supply of arms and ammunition from the West is not cut off. When it comes to confronting the civilian government they are allies.

Consider for example the statement by the air chief that drones can be shot down if the civilian government wants. He added quickly that this would also open Pakistan to repercussions of such actions as direct US invasion. In other words, while they can dictate Pakistan’s foreign policy, when it comes to taking responsibility for their actions, the blame is laid entirely at the door of the civilians. Therefore to bring about a balance in civilian-military relations, Pakistan needs an immediate correction of its national narrative on military affairs. Following are a few key corrections: 1. Pakistan is a national and not an ideological state.

2. Pakistan’s armed forces are not the forces of Islam. They are part of a nation state’s security apparatus.

3. Pakistan’s armed forces have not performed well – whether in battle or when they have usurped civilian authority.

4. Pakistan’s armed forces are required by the constitution to defend Pakistan’s civil government against all threats, even if such threats emanate from within the armed forces.

5. A member of the armed forces of Pakistan is a Pakistani first, and then a member of the armed forces.

6. Having been founded through the ballot and not the bullet, democracy is the lifeblood of Pakistan. There is no escape from constitutional civilian rule no matter how slow, incompetent or frustrating it is deemed to be.

7. Like all institutions in Pakistan, the armed forces – paid employees of the people of Pakistan – ought to be accountable before the people’s elected representatives in the parliament.

This is a tall order, but one that is necessary for Pakistan to be a civilised democratic state that is respected, not loathed, in the comity of nations.

Opinion: Great Responsibility

Instead of suo motu action on the allegations against Arsalan Iftikhar, the chief justice should have opted for suo sponte recusal from his son's legal matters

The Supreme Court's suo motu notice of allegations of corruption on Chief Justice Iftikhar Chaudhry's son was odd. The presiding judge was the father, and the accused, his son. Many have attempted to justify the action of the chief justice of Pakistan by quoting examples from Islamic history, including that of Hazrat Umar (RA) who sentenced his son. Others have referred to the fictional but more indigenous example of the Anarkali story where Prince Salim was tried for treason by Emperor Akbar. It is unfortunate that substance has always been disregarded in emotive arguments for form.

Although the chief justice eventually did the right thing by leaving the bench - established principles of jurisprudence in most of the world, including in India and Pakistan, do not allow a situation where a presiding judge is intimately aware of the facts or the parties - he should not have taken a suo motu notice in his son's case to begin with. Any such situation merits recusal of the judge from the bench. The tradition of our courts is that a son or a daughter does not even appear as a counsel, let alone a plaintiff/petitioner or a defendant/respondent, before a judge who is their parent.

In India, one can refer to PK Ghosh v JG Rajput AIR 1996 SC 513. Here the Indian Supreme Court held that justice should be done and seen to be done. Therefore any interested judge was declared as disqualified to preside over a case. The highest form of "interest" emanates from filial ties, none so greater than an eldest son's relation to a father. Similarly, in Section 455 of the Judicial Code of the United States of America, it is stated that a judge should recuse himself or be recused on the motion of the party "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding".

In the opinion of this author, instead of suo sponte or suo motu action on the allegations against Arsalan Iftikhar, the chief justice should have opted for suo sponte recusal from his son's legal matters. In fact, some legal scholars would argue that by hearing such cases, a judge may hinder the due process guaranteed under the law and the constitution. Due process in this case would include prosecution under the National Accountability Bureau (NAB) after due investigation by the Federal Investigation Authority (FIA). This would also have necessitated an investigation into Arsalan Iftikhar's assets. The failure to do so would have violated the spirit of Articles 4, 10-A and 25 of the constitution. Article 4 speaks of the right of every citizen to be dealt with in accordance with law and enjoy equal protection of law. Article 10-A speaks of due process in the determination of civil rights and criminal charges. Article 25 guarantees citizens equality before law.

It is for this reason that Article 184(3) of the Constitution equipping the Supreme Court with the power to take suo sponte action was intended to be limited to questions of public importance that related to fundamental rights of citizens. It is not clear how the Arsalan Iftikhar matter fulfilled this criterion.

Taking Malik Riaz's statement that despite his payments he received no relief from the Supreme Court on its face, the Supreme Court ruled that no misconduct had occurred on the part of the chief justice. The allegations leveled by Malik Riaz against Arsalan Iftikhar are of a serious nature and require proper investigation.

Closely linked to Arsalangate is the Anchorgate fiasco involving two TV anchors who interviewed Malik Riaz. Leaked behind-the-scenes footage of the interview created an impression that questions were being planted. The Supreme Court's reaction to the leak has raised some questions. Critics are asking whether the full court meeting in a committee room reviewing the footage attached undue importance to a trivial matter. The court summoned and reprimanded the Pakistan Electronic Media Regulatory Authority chairman in front of TV cameras.

As the saying goes, "with great power comes great responsibility". The recent political turmoil in Pakistan requires the honorable judges of the Supreme Court to practice restraint and consider the implications of all their decisions.

Opinion: Labour Rights?

Devolving labour to provinces leaves little room for national labour unions that form crucial political counterweight to the industrial and landed classes

The 18th Amendment to the constitution was welcomed by all who want to see Pakistan a truly federal, progressive and democratic state where the federating units and the centre are balanced in terms of power and rights. Pakistan vests residuary powers in constituent units but the net thrown by the federation – federal and concurrent legislative lists – was so wide that residuary powers amounted to very little. The abolition of the concurrent list devolves real powers to the provinces.

Be that as it may, the parliament has erred by devolving the very important subject of labour to the provinces without saving any powers for itself. This has come as a significant blow to the workers. In all democracies – including staunchly capitalistic countries such as the United States of America – national labour unions and associations form a crucial political counterweight to the industrial and landed classes. There is a big question mark on the legal position of All Pakistan Trade Unions. Pakistan needs a constitutional left movement, and by devolving the labour sector to the provinces, the narrow-sighted politicians have ensured that the democratic left – already in the ICU – is euthanised immediately. In doing so, the Pakistan People’s Party has dug its own grave at the national level.

Nowhere has this been more acutely felt than in the province of Punjab, where the provincial government, heavily dominated by big business interests, has enacted a patently anti-labour act called the Punjab Industrial Relations Act 2010 (PIRA). Section 3(1) of the PIRA abolishes the right of workers to form unions in an establishment that employs less than 50 workers. Consider, for example, how many workers a single brick kiln employs. Not only is this law ultra vires section 17(1) of the constitution, but is in violation of Pakistan’s international obligations of labour rights. Even the jurisdiction of labour courts is questionable, as they are appointed by the provincial government without any interference of the provincial high court. Under Pakistan’s separation of powers doctrine, a judicial body has to be appointed through a mechanism that gives the higher judiciary a say. Sooner or later, all decisions by the labour courts will be subject to legal challenge on this ground alone.

Even where there are unions, outside representation on a union’s executive body has been reduced from 25% to 20%. Unions have long relied on ideological and academic support from this section and this has been crucial in union politics. By reducing their number, the provincial government has smoothened the jagged edges for employers. Even more serious is the by-passing of the Collective Bargaining Agent – a central feature of the Industrial Relations legislation in the past – allowing the employer to negotiate directly with an individual worker. In other words, the industrial employers of Punjab have been given a ready made device to divide and rule the workers and defeat any and all moves by the workers to organise for their rights.

The cumulative effect of these changes is that labour rights have been read out effectively from law. Not since the Industrial Revolution has the legal position been so bleak in our part of the world as under this law. The law – as it existed under the various Industrial Relations Ordinances promulgated by military dictators – included an elaborate mechanism which allowed the government, workers and employers to resolve disputes. This too has been omitted. Additionally, there is no mechanism for routine inspections, making enforcement of minimum wage in the province next to impossible.

Pakistan’s constitution talks great game about elimination of exploitation (Article 3), making provisions for securing just and humane conditions for work (Article 37 e), ensuring equitable adjustment of rights between employers and employees (Article 38 a), facilities for work and adequate livelihood with reasonable rest and leisure (Article 38 b), social security and social insurance etc (Article 38 c), and food, clothing, housing, education and medical relief (Article 38 d). But everything the PIRA has achieved is the exact opposite.

Sher Shah Suri – who achieved a level of development unparalleled in his time – had famously said that peasants and workers are the backbone of any empire and should be kept happy at all costs. We have failed miserably to live up to that glorious example from our past. Workers in Pakistan in general and Punjab in particular are the most oppressed lot in all of South Asia. Labour unions are a natural pressure valve for societies. Those who allow this valve to operate properly avoid bloodshed, revolutions and social unrest. Great Britain is perhaps one of the best examples in this respect, where the labour class was coopted and made a stakeholder in national progress, politics and governance.

Opinion: The Power of Judicial Review

"The principle of Parliamentary Sovereignty means neither more nor less than this, namely that Parliament thus defined [ie, as the 'King in Parliament'] has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament" - AV Dicey, Introduction to the Study of the Law of the Constitution, London: Macmillan, 1915

During his confirmation hearings, Judge John Roberts, the Chief Justice of the United States of America, famously admitted that he was aware of the fact that millions of people had elected the US Congress and not even one person had voted for the Supreme Court. More recently, in the now famous Obamacare judgment pronounced on June 28, Roberts declared that it was not the job of the Supreme Court to "protect people from their political choices". Such is the deference for the legislative branch of the government in the country that literally invented the doctrine of judicial review.

Justice Iftikhar Chaudhry, the Chief Justice of Pakistan, recently told his audience at the Karachi registry of the Supreme Court that in Pakistan it is not the parliament but the constitution that is sovereign. Any student of political science or constitutional law will be able to see clearly the fallacy in such a statement. Parliamentary sovereignty and the constitution are distinct concepts and cannot be substituted. Therefore if the parliament is not sovereign as the Chief Justice says, it calls into question the status of the constitution as a higher law. The theory of constitution as higher law rests entirely on the sanction it receives from a pouvoir constituent. Admittedly, in contrast to the English constitution, where there are written constitutions with rigid procedure for amendment, the parliament acts in two capacities - legislative and constituent. The written constitution provides a framework and legislation has to be undertaken in that framework. However, the fact that a parliament can at will amend the constitution makes it sovereign and supreme.

A valid argument against parliamentary sovereignty would be that the constitution is not a higher law and not the fundamental law of the land. The Chief Justice has taken a self contradictory position ie arbitrarily vesting sovereignty and supremacy in a document but putting the parliament that has the power to amend the constitution beneath it. Technically in a pure parliamentary democracy, the only limit on a parliament's power is when it tries to clip its own wings as shown in Jackson and Others v Attorney General [2006] 1 AC 262 [Jackson].

Even in the United States of America, where judicial review first came to the forefront in Marbury v Madison, 5 US 137 (1803), the Supreme Court steered clear of impinging on the role of the Congress, laying the groundwork for broader interpretation of, for example, the commerce clause. The US Supreme Court has - in recent years - struck down laws that affected the civil rights of individuals, but beyond that it has remained out of the Congress' hair. It might also be remembered that unlike our Supreme Court, the Justices of the US Supreme Court are confirmed after proper Senate hearings of a bipartisan committee. In a way hence the US Justices hold office - indirectly - through the will of the people.

This brings us to the question of the basic structure doctrine as it is laid down by the Indian courts. The Indian Supreme Court had sought to protect the fundamental rights enshrined in the constitution by laying down the doctrine in His Holiness Kesavananda Bharati Sripadagalvaru and Ors v State of Kerala and Anr AIR 1973 SC 1461. In essence the Indian Supreme Court ruled that fundamental rights of individuals had been vested for all times to come and these could not be amended out of existence.

So what does that mean for a country like Pakistan which is at best a volatile mix of Westminster Parliamentary System and a belief in Allah's sovereignty over the entire universe? After all the inclusion of Article 2-A in the constitution arguably creates a basic structure for the constitution and that very dangerous argument. The Supreme Court has a power of judicial review to the extent of weighing whether any piece of legislation is ultra vires the constitution. The Chief Justice insists that the power of judicial review extends to Islam as well.

This is incorrect in terms of the theory. The most logical interpretation of the Islamic provisions and Article 2-A of the constitution is to attach the presumption that any legislation undertaken by the parliament cannot be repugnant to Islam. No doubt this is a rebuttable presumption for which the proper forum is the Federal Shariat Court and not the Supreme Court. In the view of this writer, even the existence of a Federal Shariat Court, which was introduced by General Zia, is a fetter on parliamentary sovereignty not just in terms of Westminster theory but the Iqbalian doctrine of Ijtehad through parliament. Simply put, the sovereignty of the parliament may in theory be limited by the Objectives Resolution, but the determination of what constitutes the will of Allah is the exclusive preserve of the parliament and not an unelected institution.

Nevertheless, the Supreme Court's ability to judicially review legislation and interpret the constitution does not extend to overriding the parliament's power to amend the constitution and this is something the Supreme Court has recognized in Pakistan Lawyers Forum v Federation of Pakistan PLD 2005 SC 719 when safeguarding Musharraf's 17th Amendment. Interestingly, the present Chief Justice was one of judges on that bench. Therefore, so far the Supreme Court has not taken the Indian route.

If the constitution is the higher law in Pakistan, the parliament - which is both a legislative and a constituent body (when acts with 2/3rds sanction) - is sovereign because it has the power to amend that constitution and established case law in the field seconds it. The Chief Justice also lashed out at those speaking of parliamentary sovereignty describing the whole idea as obsequious mimicry of colonial traditions. This again flies in the face of reality. The entire freedom struggle - especially that in which the father of this nation participated - was centered on the idea of self-rule through a responsible parliament. Colonial traditions on the other hand centered on bureaucratic rule of unelected institutions. The idea that an unelected institution, like the Supreme Court, can overrule the parliament's sovereignty is therefore more of a colonial tradition. The idea of a cabinet responsible to an elected parliament is the essence of democracy and cannot by any stretch of imagination be described as a colonial tradition.

Given these events, perhaps a Federal Constitutional Court is an idea whose time has come. It must be remembered that the first person from the subcontinent to suggest a Federal Constitutional Court was none other than Muhammad Ali Jinnah who - on October 27, 1932 - spoke of three different courts at the highest level. Jinnah, who was widely recognized as one of the most successful lawyers of India, suggested that there should be a criminal court of appeal, a court of appeal for federal laws and their implementation, and finally a federal constitutional court which would hear constitutional matters including direct petitions from aggrieved persons whose fundamental rights had been violated. By dividing up the apex court into three, the idea was to ensure efficacy of legal remedies as well as a division of power to stop the judicial branch from exerting undue influence on other branches.

Benazir Bhutto and Nawaz Sharif inked the idea of a Federal Constitutional Court when they signed the Charter of Democracy. Both leaders had come to an understanding - after facing hostile Supreme Courts - that an unelected institution would always threaten elected institutions. But things have changed after the Lawyers' Movement. Nawaz Sharif is now too invested in the status quo to support such a proposal.

Opinion: Understanding Qisas and Diyat Laws

The Raymond Davis case has brought Pakistan’s religious right a full circle. When all the heirs of those murdered by Davis pardoned him for badl-i-sulh , the religious right cried foul. Technically there was nothing wrong procedurally and legally with the way Davis’ alleged crime was pardoned under law. The religious right claims that (i) that the heirs of the two victims were pressured into accepting badl-i-sulh , (ii) that Davis should have been convicted for fasad fil arzand (iii) the judge’s decision to impose a fine of Rs.20,000 and time served under Section 13 of the Arms Ordinance of 1965 was far too lenient under the circumstances.

For the first contention, no heir of the deceased has come forward to declare that they were pressured into accepting the settlement. It is now public knowledge that the heirs of Faheem’s widow, who committed suicide, also accepted badl-i-sulh. This law dates back to General Zia’s Qisas and Diyat Ordinance of 1980, as part of a cosmetic process of Islamisation that the said dictator carried out in Pakistan to legitimise his illegal rule on the touchstone of Islam. Zia himself had delayed the enforcement of these laws to ensure that Zulfikar Ali Bhutto would not benefit from them.

It is the common Islamic position, closely held by many scholars of Islam, however, that modern conception of citizenship makes the state an heir as well but this finer point of Islamic law has been bypassed by this ordinance. The most sinister use of this ordinance has been in honour killing cases where a brother or other such male member kills a female relative and is then let off the heirs of his victim. This misuse of Islamic provisions has never offended the sensibilities of our ulema and scholars. They have also never lent any thought to the fact that the law protects, inevitably, the rich who can pay and lets go the poor who cannot. If the state was to assume its rightful responsibility as the heir or at least widen the scope of tazeer – a position that cannot be said to violate Islamic law- to still imprison murderers guilty of qatl-e-amd .

Was Davis guilty of fasad-fil-arz? To prove this, the past record would have to come into play and the prosecution would have to prove that Davis constituted a grave threat to public safety. The Judge, Yousaf Ojla, holds that the f asad fil arz was not in play and there was no previous record of Davis per se that would prove that he would constitute a grave threat to public safety (especially after he left the country). The third contention no doubt holds more water as the maximum punishment of seven years is envisaged under the aforesaid Arms Ordinance. However the provision provides for imprisonment or fine or both. Given that Davis was both imprisoned and fined, this too cannot be argued as being against the letter of the law, even if it does fly in the face of general custom and practice. Needless to say, the operation of this law- though perfectly legal- has brought Pakistan and Islam into disrepute. In American media, it has been described as “effectively a bribe”. The honourable thing to do for Pakistan is to accept that the verdict in Raymond Davis’ case was keeping with the letter of the law (as it exists on the statute books) and to move decisively to revisit the law to bring it in conformity with rational spirit of Islam. Unfortunately, the way Islamic law has been used in Pakistan seems to indicate a propensity to sacrifice the substance for the form.

The right wing agitators of Pakistan need to accept that they failed in their duty when they refused to stand up for the countless victims of honour killings who cry out from their graves. They should forget about deriving political mileage from this unfortunate incident and instead work with other forces in Pakistan to bring about changes that would ensure that murderers do not get to go free after paying the heirs of their victim. Law must not treat murder as a civil wrong or tort. It must treat murder as a crime against the state. To further understand, following are the details of the Qisas and Diyat Laws as per Pakistan Penal Code. Section 310 of the Pakistan Penal Code (PPC) gives wali (heir) of a victim of qatle-amad to compound qisas, a right to demand “death” for such murderer. This Section reads as under:

“(1) In the case of qatl-e-amad, an adult sane wali may, at any time on accepting badal-i-sulh compound his right of qisas: Provided that only giving a female in marriage shall not be a valid badal-e-sulhl

(2) Where a wali is a minor or an insane, the wali of such minor or an insane wali may compound the right of qisas on behalf of such minor or insane wali:

(3) Provided that the value of badal-i-sulh shall not be less than the value of diyat.

(4) Where the government is the wali it may compound the right of qisas:

(5) Provided that the value of badal-i-sulh shall not be less than the value of diyat.

Where the badal-i-sulh is not determined or is a property or a right of the value which cannot be determined in terms of money under shariah the right of qisas shall be deemed to have been compounded and the offender shall be liable to diyat.

Badal-i-sulh may be paid or given on demand or on a deferred date as may be agreed upon between the offender and the wali. In this section badal-i-sulh means the mutually agreed compensation according to shariah to be paid or given by the offender to wali in cash or kind or in the form of movable or immovable property.”

The value of diyat is given under Section 323 of the PPC, which reads “the Court shall, subject to the injunctions of Islam as laid down by the Holy Quran and Sunnah and keeping in view the financial position of the convict and the heirs of the victim, fix the value of diyat which shall not be less than the value of thirty thousand six hundred and thirty grams (30,630 grams) of silver.”

Opinion: Unpacking the Mukhtaran Mai Judgement

The 2-1 verdict raises several important issues regarding how to look at the available evidence The 2-1 Mukhtaran Mai Supreme Court verdict that has rocked the nation was extraordinary given the wide gulf in the approach of the majority and minority opinions to evidence. The issue turned on the following points:

1. Was there enough evidence to convict the accused of gang rape? Justice Saqib Nisar’s majority view held that the prosecution had failed to make its case beyond reasonable doubt, and in particular, the lack of semen and DNA testing was negligence because it could decisively prove or disprove the gang rape allegation. The sole testimony of the prosecutrix was considered insufficient without corroboration. The dissenting judgment, written by Justice Nasirul Mulk, held that the testimony of the prosecutrix was enough. Relying on an Indian judgment Bhupinder Sharma v Himachal Pradesh (AIR 2003 SC 4684) – which had laid down that if a woman of Indian tradition claims such a sordid act, it is enough assurance that she is telling the truth – Justice Mulk contended that to ask for corroboration would add insult to injury. The dissenting judgment said further that “the locale of the bruises indicates physical struggle by the complainant and their healed condition coincides roughly with the timing of the incident”. Unlike other reported cases, Mukhtaran’s rape was not “committed in complete privacy and not for the satisfaction of the lust of the rapist. In the presence and within the view of the members of Panchayat and the witnesses, the complainant was forcibly taken away by the accused to the house of Abdul Khaliq and freed with clothes in her hand and body half naked”.

2. Delay in FIR: the social context Justice Saqib Nisar upheld the view that the eight-day delay in the first information report (FIR) was suspicious. The majority judgment said the prosecutrix was a divorcee and it was unlikely that she “would be driven by the same consideration of covering up that a young unmarried virgin would have been”, and that since the prosecution said the event was seen by many people, “it would have made no sense to hide it any more”.

Therefore the judges dismissed the social context argument out of hand. They rejected that there were threats to Mukhtaran Mai’s family or that fear was a consideration. The minority judgment held that delay in filing FIRs for rape cases was a universal phenomenon and that the delay could be explained in a social context: the complainants being of weaker social status were forced to remain silent until Maulvi Abdul Razzaq persuaded them to report the matter to the authorities.

3. Bruises and signs of struggle There were no marks of struggle or bruising on the prosecutrix’s body that indicated a physical struggle that would be the usual case in a rape, according to the majority judgment. However, it was not necessarily a disproof of rape. The minority judgment cited medical reports of healed bruises that would indicate a physical struggle and therefore be a corroboration of the prosecutrix’s claim.

4. Time and improbability of positive identification The majority judgment held that given the darkness and the fact that there was no electricity in the village, it was improbable for Mukhtaran Mai to have identified her rapists. The minority judgment is silent on this point.

5. The sodomy of Abdul Shakoor Mukhtaran’s brother Abdul Shakoor denied having any illicit relations with Salma. He said he was sodomised and then locked up with Salma, and that the story of an illicit relationship was concocted to cover up the misdeed. The majority judgment said it did not appeal to reason Salma’s brother was so naïve that he believed Shakoor would not disclose what happened to anyone, “and on his unexpected refusal they took the extreme measure of confining him in his own house along with Salma; risking, endangering and putting at stake, the virtue, the sanctity and respect of a young unmarried sister”.

It was not “incomprehensible”, the judgement said, that his family would become party to such a plan. “This is absolutely not done or conceivable in our rural society, where people are very sensitive about the chastity of their womenfolk, especially young and virgin.” The minority judgment agreed with the majority judgment in that “the sodomy on Abdul Shakoor stands proved, but the reason advanced by the prosecution for his detention by Abdul Khaliq is found preposterous”. “Though it may sound speculative,” the judgement said, “it seems that Abdul Shakoor and Salma were found together in the sugarcane field; taking this as an insult, her brother, Punoo, and his two accomplices first sodomised Abdul Shakoor and thereafter locked him up, leading to the present incident.” But “the incident of sodomy only provides a background to the present occurrence” and “does not have any substantial bearing on the merits of the case.”

6. The role of the Imam The majority judgment attacked the role of the Imam, Maulvi Abdul Razzaq. It upheld the High Court’s view that “it is strange and incomprehensible that being an Imam of the mosque, a mature, responsible, educated person,” Razzaq would announce the incident in a mosque “without even verifying the occurrence from any authentic source” or “from the immediate relations of the complainant” or even asking the family if they wanted it to be announced in a mosque. “It is afterwards that he approached Ghulam Fareed (the complainant’s father), who according to him would not acknowledge the incident at all.”

The minority judgment considered the High Court’s view erroneous, saying it had “placed the entire blame on Maulvi Abdul Razzaq for planning to prosecute the accused”. It added that Razzaq’s civil litigation with Karam Hussain, father-in-law of one the accused, ”would not render him un-credible”. “Had he been ill-motivated on that account he would have implicated Karam Hussain, or member of his immediate family, rather than the son-in-law. No ill will of this witness against the other accused has been shown by the defence.”

7. Did the panchayat order the gang rape? According to the majority judgment, there is no evidence of the Panchayat approving the gang rape, which in its view has not been proven. But according to the minority judgment, “the two prosecution witnesses, Maulvi Abdul Razzaq and Sabir Hussain, testified that the Gujjars’ proposal of swap marriages between members of the two groups was not accepted by the Mastoies Panchayat, who insisted on revenge. This assertion is corroborated by the Panchayat’s conduct when the complainant was brought before it. Its sanction was evident when its 200/250 members remained unmoved when the complainant begged for help while she was being dragged by Abdul Khaliq and others to the house. The presence of such a large number of members of the Panchayat also scared the people accompanying the complainant of making any attempt to save her. The Panchayat thus approved and facilitated the commission of zina-bil-jabr”.

8. Abdul Khaliq’s guilt Majority judgment held that Abdul Khaliq had had sexual intercourse with Mukhtaran Mai and his defence of Nikah was not valid. Therefore the case of Abdul Khaliq is different from the rest.

The minority judgment concurred with the view and rejected Abdul Khaliq’s appeal. 9. Mukhtaran will file a review petition

Meanwhile Aitzaz Ahsan, the counsel for the complainant, has indicated that he will file a review petition. “In drawing their conclusions, the learned majority judges have disregarded cogent evidence,” he said, “and failed to notice actual material on the record and the facts proved thereby.”

Opinion: Where Is Justice?

Independence of judiciary cannot be achieved by protest marches and burning buildings as we naively thought five years ago. It requires a systemic change in the state's self identification as well as in society

A frightening rumour - which was confirmed by a source that at least this author considers quite reliable - is making rounds in legal circles of Lahore. A nominee for the post of a High Court judge who it is said is otherwise known for his financial probity and legal competence has been turned down after the "intelligence agencies" vetted him and found him to be a "non-believer".

Besides the obvious question of discrimination ie are non-believers barred from becoming judges of the high court which is not the subject of this article, the real question is, how can a judiciary that has to be vetted by the "intelligence" agencies be independent? What, may one dare to ask, constitutional or legal role do agencies have in determining the credentials of judiciary? Does it not amount to executive interference into judicial matters and therefore a violation of the principle of separation of powers that is said to be central plank of our system of government?

A mirage was created by the Lawyers Movement five years ago and we -optimists about this country's bright future - have been travelling in wilderness since. We were led to believe that once the judges are restored there would be an impartial and independent judiciary that would stand for rule of law and equality of all citizens. Given the complex power structure and the influence the deep state enjoys in this power structure, an independent judiciary is an impossible undertaking. The role of the judiciary in any civilized democracy is to safeguard the rights of the weak and marginalized sections of society - who have been kept weak and marginalized by the deep state in the first place. To expect justice, equity and impartiality from such a judiciary is to fool ourselves. So what is the report card of our so called independent judiciary? It makes for sober reading indeed. With two exceptions ie the PCO Judges case and the ongoing Asghar Khan petition, many believe that the judiciary has proved itself to be more conservative than expected. Here one does not even need to revisit the NRO case which was mishandled on all sides - or any of the ongoing political cases -since all of them are highly contested. The legislature, executive and the judiciary blame one another for undue infringement on their respective constitutional jurisdictions.

In terms of civil liberties and rights of the people, the present judiciary has to do more to show Pakistanis that it is the protector of citizen rights irrespective of religion and creed. The Supreme Court has practised what at best can be termed selective judicial activism. No suo motu notices have been forthcoming on many issues that plague the country. In August 2009, when the Christian minority in Gojra witnessed one of the worst pogroms in the country's history, the Supreme Court's silence was deafening. When in May 2010, 95 worshippers belonging to a "minority" community were slaughtered during Juma Prayer, the Supreme Court failed to act. It was the same story all over again when this forced minority community faced repeated instances of discrimination and outright persecution in educational institutions and when their places of worship were closed down. Shias are hounded and killed almost every other day. Hindu women are abducted routinely and forcibly converted to Islam. It seems that unless you are a male, Sunni Muslim, your constitutional rights are not a priority in Pakistan.

Sadly, there is also a perception that the superior judiciary has been a proactive guardian of the civil rights of accused whose cases should have received more scrutiny. In the now notorious Mukhtaran Mai judgment, the Supreme Court ruled 2 to 1 to acquit alleged rapists overturning established jurisprudence and setting a new standard of evidence for divorced women seeking to prove that they were indeed raped. In doing so, the honourable judges of the Supreme Court reinforced the already heavily male dominated society's prejudices against women. Maulana Abdul Aziz of the Lal Masjid, who was a main character in an open armed rebellion against the state, was also released by the apex court. Meanwhile banned organizations continue to hold rallies in the name of the defence of Pakistan. Such lawlessness thrives while the judiciary turns the other cheek. In May, 2010 a staunchly independent Justice Ejaz Chaudhry of the Lahore High Court, who has since been elevated to the highest court of the land, banned Facebook for two weeks. This ban further emboldened the regulator of telecommunications industry to keep browsing services on certain smart phones banned for more than one and a half years, violating the constitutionally guaranteed right to freedom of expression. For the sake of fairness it is important to state here that not all is bleak. Thankfully there are still those amongst the judiciary, even if few and far between, who are possessed of reason and commonsense.

Unfortunately the present system shows no signs of change until and unless competent people of all shades of opinion are allowed to be elevated without being vetted by the intelligence agencies for their personal views. The right-wards tilt of the deep state which is heavily dependent on extremists as instruments of coercive state policy ensures that most reasonable people would be excluded from superior judiciary for times to come. Even if one or two fall through the filters, they would remain marginalized and helpless. So long as that happens, the judiciary and other unelected institutions of the country will continue to support each other as guardians of the deep state and its outdated ideology that is drifting Pakistan towards disaster.

Independence of judiciary therefore cannot be achieved by protest marches and burning buildings as we naively thought five years ago. It requires a systemic change in the state's self identification as well as in society. Both these things are unlikely to happen in our lifetimes.

The Crisis of Legal Aid in Pakistan

Pakistan is a highly litigious society. However, most of the litigation, it may be emphasized, is not that which deals with the determination of legal and constitutional rights. The courts are used less as an option of last resort and more as a tool for leverage.

Pakistan’s constitution provides, “The State shall ensure inexpensive and expeditious Justice”. However, it is clear when one observes all that goes on in our courts, more often than not, the reality is quite the opposite of this. Much of the criminal litigation in Pakistan is a series of retributive legal actions and as such the courts are left with the onerous and uninspiring task of sifting through the cases to determine which ones are genuine and which are not. Since a very small percentage of litigants are tried for malicious prosecution, the trend of using the law to settle scores is very common and is deployed with great tact and skill. Similarly, arduous civil litigation is made even more cumbersome by the delaying tactics that are employed by lawyers in these cases. As such, civil litigation has become a practice that is widely used by disputing parties as another means of “bargaining”, i.e. the process usually entails favourable status quo orders, followed by a deliberate delay. The Police in Pakistan are notorious for being a bully and a force that is used to control the people instead of protecting them. Historically, the police was used by the colonial administration as a means of implementing its own policy. Inevitably, the victims of police brutality in Pakistan are those without patronage or support of the influential and more often than not, these are the people most in need of legal aid. The limitations in this country with regard to access to legal aid, especially for women, but also more broadly for the poor and vulnerable, are highlighted in recent research by Insaf Network Pakistan, titled “Voices the of Unheard: Legal Empowerment of the Poor in Pakistan.” According to the research, of the poor households surveyed, the percentage that had received free legal aid in each area was: 3% in Punjab, 25% in Sindh, 16% in Balochistan, 5% in Khyber-Pakhtunkhwa and 4% in Gilgit-Baltistan. This situation is further compounded by low awareness of legal rights and procedures, thus the poor and vulnerable find themselves disconnected from the formal justice system resulting in a glaring trust deficit.

It is important to highlight these issues because the entire nature of the legal system as it exists now is attuned towards delaying justice at all costs. This obviously means that the entire definition of what constitutes a good advocate turns on the issue of whether the advocate can curry favour with the judge to obtain a stay order; then, how long the lawyer can delay the matters, in order to force the other party to come to the table. With such schemes in play, the whole edifice of free legal aid collapses. Judges – it must be said, to our collective shame- facilitate the advocates in such endeavours, by granting innumerable adjournments and by showing a willingness to entertain frivolous and often scandalous applications (usually in civil cases) which tend to linger on in the process for a very long time. Similarly, the case load on both civil and criminal sides is so high that most cases are indubitably and inevitably kept in a permanent state of limbo. Consequently, thousands of cases are currently pending before almost every bench of every High Court in the country, without any real end in sight. This is not counting those cases which have become “infructuous” because the litigants have passed away and the cause of action has ceased to exist. These are some of the problems that make justice a near impossibility in our legal system. In short this is the crisis of legal aid in Pakistan.

In 1999 the Pakistan Bar Council amended its Free Legal Aid Scheme of 1988 to include a newly devised set of rules, namely the Pakistan Bar Council Free Legal Aid Rules of 1999 (the “Rules”). The Rules envisage the existence of a system multi-tiered legal aid committees, on a central, provincial and district level, which can call upon members of the bar to take on one case per year free of cost. Under the Rules, to avail free legal aid, a litigant is required to make an application to the district committee and illustrate the need for free legal aid. The schedule to the Rules provides the requisite application form required to be filled out.

Despite the Rules providing for the availability of free legal aid, advocates willing to take up pro bono cases are rare. For this reason, a schedule of fees is appended to the Rules, which provides for very nominal fees, payable to the advocates. For Supreme Court Advocates this fee is Rs. 5,000 (approximately US $50), while those appearing in writ petitions before the High Courts are to be paid Rs. 3,000 (approximately US $30) for a writ petition and Rs. 2,000 (approximately US $20) for a bail. For lower court matters such as bails before the Court of Sessions, the payable fee is Rs. 2,000. These amounts are approved and paid for by the district committee or the committee most concerned with a particular case. It is this point in the process where the seeds of the legal aid crisis in Pakistan can be found. No advocate is likely to represent a free legal aid client with full diligence and commitment, beyond a hearing or two, on the pittance that is paid under the Rules aforesaid. Accordingly, it is reported that only about two to three percent of poor litigants have received legal aid, and that too of a highly in effective quality. As it is, a very significant number of litigants are wary of the legal aid they get even when they have paid for it. The various issues that may be pointed out vis a vis the quality of legal help- both free and otherwise are as follows:

• Capacity constraints of lawyers and judges (to take up cases)

• Corruption of lawyers and judges

• Unprofessional conduct of lawyers and judges

• Lack of security and protection for lawyers and judges in controversial or religiously or politically sensitive matters

• Frequent adjournments and continuances without rhyme or reason.

The need of the hour is to implement a comprehensive strategy in countering the capacity gaps in the legal system. Here are a few recommendations:

• First and foremost, the quality of the legal system must be improved by way of reform. This requires a revamp of the legal system and/or framework, as well as an introduction of the concept of the ‘academic lawyer’. Pakistan woefully lacks good law reviews and journals, tools that can be major contributors to the development and expounding of the law.

• Bar and Bench must unite on the basic principle that the purpose of litigation is justice. Without effective coordination between the two, it is impossible to change the habits that have taken a century to develop.

• The civil society must step up and fund legal aid projects which would bring gainful employment to hardworking and enterprising lawyers, thereby improving the quality of free legal aid available in the country.

• There must be an increase in the promotion and organization of affordable alternative dispute resolution mechanisms that can be set up at the grassroots levels, in order to allow the poor litigants to resolve their issues outside the courts.

There is a lot to learn from how other legal systems have overcome procedural delays and issues. The Woolf Reforms in the United Kingdom are a case in point. The Woolf Reforms gave birth to the Civil Procedure Act 1997, which conferred the power to make the ‘Civil Procedure Rules’ (CPR). Consequently the CPR was designed to improve access to justice by making legal proceedings cheaper, quicker, and easier to understand for non-lawyers. The foremost solution to the crisis of legal aid in Pakistan is a thorough re-vamp of the procedural lacunas that favour delaying tactics and allow delaying tactics as a weapon of choice in the armoury of the unethical practitioner of law. Many such procedural delays have been sanctioned in established case law in the field. This would require the introduction of ‘block trial dates’, a procedure whereby a trial would commence and finish within a period of two weeks (as set aside by the judge), instead of prolonging it over several dates and adjournments. This is – strangely enough- not without precedent in case law in Pakistan. A recent judgment of the Lahore High Court stated: Parties cannot claim adjournment as a matter of right. It is the prerogative and discretion of the Court to grant or refuse adjournment in terms of Order XVII, Rules 1 and 3 of the C.P.C. If sufficient cause is shown, the Court can grant adjournment in terms of provisions of sub-rule (2) of Rule 1 of Order XVII C.P.C. It has been provided that once there is evidence that the case has begun, then the hearing shall continue in day-to-day proceedings until all the witnesses in attendance have been examined. Under sub-rule (3) of Rule 1 of Order XVII C.P.C, when sufficient cause is not shown, it has been provided that the Court shall proceed with the suit forthwith. These provisions are not meant to enable the party to cause improper delay in the proceedings. The other pertinent solution to the problem of provision of free legal aid is to create civil society linkage i.e. to form links with charitable legal organizations which can carry out research and fund litigators to take on cases.

There are very successful examples of charitable legal action firms and organizations, such as Reprieve UK in the West, which are providing this very important social service: getting the legal aid necessary to those who need it, where and when they need it. Insaf Network Pakistan (“INP”) as an organization follows this model; INP works to facilitate other organisations in the provision of legal aid. A prime example of this is INP’s Rule of Law & Legal Empowerment of the Poor in Pakistan (LEP) Programme, set up to ensure delivery of legal services to the most vulnerable sections of society.