By Agha Faisal
May 03, 2014
When future historians look back at Pakistan as it was in the early 21st century they will observe that this period was unparalleled when it came to repression of minorities.
The tyranny did not confine itself to the lives of members of minority communities but remained peppered with instances of firebombing churches, demolishing temples and other instances of destroying or misappropriating communal properties of minorities. Some future historians may conclude that the inspiration for the repression of minorities was in fact the greed for their lucratively situated communal properties.
On November 30, 2012, a century-old temple in Soldier Bazaar was razed to the ground, ostensibly to make way for yet another increment to the concrete jungle of Karachi. Earlier the same year the present Chief Justice of the Sindh High Court, Justice Maqbool Baqar, took notice of encroachments on the oldest temple in Karachi, the Shri Laxmi Narayan Temple at the Native Jetty, and ordered that no obstacle, hindrance or difficulty should be caused to pilgrims and visitors so that the religious rites according to the Hindu faith may be carried out and that no activity other than Pooja shall be carried out within the temple.
The Church, and its properties, has experienced similar treatment. While we mourn the tragic loss of life that took place when a church in Peshawar was bombed in September last year, we must not forget what transpired in Khanewal in October 2011.
Twenty-five year old Saqib Masih was shot dead, his family tortured and their livestock stolen, when a mob of over 50 armed men attacked the home of a Christian family over a land dispute. The church land in question was reportedly reserved for construction of an orphanage.
The Zoroastrian community of Karachi has been fighting to save its communal properties from destruction for over a generation now. The Karachi Parsi Cooperative Housing Society is an island of serenity amongst the concrete chaos of Bunder Road. The society was formed in 1920 with the primary objective to provide housing facilities for the Zoroastrian community, so that they may conduct their lives, within the precincts of the Society, in accordance with their religious and cultural practices and traditions.
It was with this object that the eminent philanthropists, Sir Cowasjee Katrak and Jamshed Nusserwanjee Mehta Esquire (the first elected mayor of Karachi), had approached the government with a request for a piece of land. And so 96,000 square yards of undeveloped land was granted to the society in 1924.
The society, through its own funds coupled with the labour of love, built all the roads, lanes, drains, culverts and dwellings within the society for the use of its members. The only thing it did not build was a tower of silence. However, the absence of a tower of silence does not mean that there are no vultures in the vicinity. The predator threatening the society is the land mafia. One by one, its properties are being targeted for misappropriation.
The government of Sindh declared the properties in the society to be heritage properties back in 1999. Two years later the decision of the Sindh government was rightfully upheld by the federal government. However, despite the protection afforded to heritage properties under the law the land mafia continued to chip away at the society on a piecemeal basis.
In order to buttress the society against unlawful predatory activities, the Military Estates Office issued a circular in the year 2001 mandating that no transfer of any constituent of the society’s land would be admitted without a no-objection certificate from GHQ and a sanction from the Ministry of Defence. Even this proved insufficient to deter the predators.
The members of the society have moved heaven and earth to protect the legacy of their ancestors and – despite the magnitude of the odds stacked against them – have managed to thwart every transgression against their communal property in the courts of law, and that too from their personal resources.
The transgressors, having failed to dislodge the society from its legal and moral high ground in the battle for protection of its communal property, have now resorted to the much in vogue manoeuvre of terming the society’s actions to be contrary to their self-serving interpretation of religion.
The transgressors have assailed the principle that the society and its communal property is meant for the benefit of the Zoroastrian community. The transgressors seek the same to be judicially declared as discriminatory and hence contrary to the injunctions of our religion as enshrined in our constitution. This argument has elicited no subscribers in the judiciary as of now as the argument is as mendacious as the nefarious designs of the land mafia.
The very concept of a cooperative housing society envisages the principle of restricted membership. The idea is that the immovable property continues to belong to the society and its members obtain occupancy rights therein under certain prescribed limitations.
The first essential of a housing society is that there should be a bond of common habits and usage among the members. The by-laws of a society are required to conform to the prescribed model by-laws, which mandate that all members belong to a certain caste, race or profession.
These principles applied when the first housing society was registered back in 1915 – the Saraswati Co operative Housing Society in the heart of Mumbai. And the same principles govern every cooperative housing society that is either registered or subsists under the Cooperative Societies Act, which is the governing and supervising law.
So the argument that the concept of restricted membership is discriminatory and hence unconstitutional is rather unsubstantiated in law. On the contrary the Supreme Court of Pakistan had issued a sparkling pronouncement back in 1993 where it upheld the concept of restricted membership in cooperative housing societies.
This pronouncement was made by a bench consisting of Justice Naimuddin and Justice Ajmal Mian, in the case of the Karachi Catholic Cooperative Housing Society Limited.
Despite the steadfast efforts of our judiciary and the federal and provincial governments, all measures taken in response to misappropriation of communal properties were purely post facto curative. Since the remedy in such cases fell into the realm of civil law, the lack of any penal consequences did little to deter the predatory land mafia from targeting such properties for misappropriation. But all that changed last year.
The Sindh Protection of Communal Properties of Minorities Act 2013 was passed by the Sindh Assembly. This act stipulates that “Whoever buys, sells or transfers any property belonging to a minority community meant for its communal use … shall be punishable with imprisonment of either description which may extend to seven years and shall also be liable to fine which shall not be less than one hundred thousand rupees and the sale or transfer transaction shall be of no legal effect”.
If the crowning piece of legislation of the last Sindh Assembly was being debated, my vote would be for this enactment. In one fail swoop our parliament has empowered the law to take punitive measures against those who seek to suppress minority communities and usurp their properties.
Now the perpetrators of transgression against communal properties of minorities stand warned that the consequences of their misdeeds shall include punitive reprisals. In addition to jailing the perpetrators, no long-winded civil suits will be required to undo the transgression upon such properties as the proceedings under the Sindh Protection of Communal Properties of Minorities Act 2013 shall be sufficient to declare any such effort illegal.
The legislators of Sindh must be given a standing ovation for taking us one step closer to Jinnah’s idea of Pakistan, “where you are free to go to your temples, you are free to go to your mosques or to any other place of worship ... You may belong to any religion or caste or creed … where there is no discrimination, no distinction between one community and another, no discrimination between one caste or creed and another.”
Agha Faisal is a barrister-at-law.