New Age Islam
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The War Within Islam ( 9 Apr 2012, NewAgeIslam.Com)

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Pakistan: Varying Levels of Constitutional Equality

By Yasser Latif Hamdani

In the current atmosphere, standing up to the US and citing due process in defence of Saeed seems like a very attractive idea. A smaller state standing up to a superpower in the name of law and procedure is the stuff of films

A 42-year-old hardworking, honest teacher at a government school in Rabwah was brutally tortured by police. The injuries he sustained led to his untimely demise. His name was Abdul Qudoos. The irony is that this law-abiding citizen for God knows what reason was picked up as a suspect in a murder investigation but was never formally charged. In a blatant violation of the constitutional rights guaranteed to the citizens of Pakistan under Article 10 of the Constitution, which requires production before a magistrate within 24 hours of the arrest beyond which custody is unlawful, Qudoos was tortured for many days and only allowed to go after it looked like he was not going to survive.

‘Due process’ of law you say? What due process of law? Abdul Qudoos was an Ahmadi. In an irony that is reminiscent of Orwell’s Animal Farm, in Pakistan’s ideological dystopia, all citizens are equal but some are more equal than others and others are far less. Ahmedis fall in that latter category. Due process is a fancy term reserved for the high and mighty and for hate-mongers like Hafiz Saeed. From the look of it, Saeed and his ilk have the right to due process in this country. Indeed the use of the words ‘citizen’ and ‘person’ seem entirely superfluous under the circumstances because the very exercise seems prejudiced against other citizens of Pakistan. For Saeed, Pakistan is willing to risk isolation and put the future of its people at stake. The underlying message of the bounty that seems to have evaded our policymakers is that the United States of America considers Pakistan a wilderness and a sanctuary for wanted terrorists. That however is not the point of the article. Even if one was to concede that there was by any stretch of the imagination a possibility that Saeed’s valuable rights are being infringed upon, our state is hardly in a position to debate the merits of the due process of the procedure with which the bounty was declared. Believe it is not, a constitutional challenge in the US — where need I remind our readers that the judiciary is fairly impartial-- precedent shows that a court would most probably uphold the bounty.

Funny term this due process. In1949, Justice Felix Frankfurter of the US Supreme Court advised B N Rao against including the term in the proposed Indian constitution. Historically, the term due process was first introduced through the Fifth Amendment to the US Constitution, further augmented by the 14th Amendment. Over time, the idea of due process took a wider meaning. A thing called “substantive due process” came into action. Through this very important legal doctrine, the SC played an increasingly important role regulating even economic affairs well into the 1930s. Since the 1930s, the application of the substantial due process changed a great deal though. Substantive due process was limited to specific social issues such as gender or race discrimination. The idea was to use this very important rights-based approach to protect minorities and the marginalised sections of society from any infringement because of the tyranny of the majority in the name of ‘democracy’. The term democracy was also widely debated. Frederick Douglass, the grand old man of civil rights from the 19th century was perhaps the first American to suggest that democracy was different from mere majority rule. Democracy was to him about taking turns and creating consensus.

In Pakistan, due process was introduced through the 18th Amendment (even though our case law had recognised due process in the penumbra of other articles of the constitution). Nonetheless, it is precisely the opposite. It seems — though logically inconsistent with Pakistan’s own founding rationale that permanent majorities ought not to oppress permanent minorities — that in this country due process means to protect an overly sensitive trigger-happy religious majority from any exercise of basic and fundamental rights available to minorities as citizens of the republic. Voices of reason amongst the majority are either slain — as in the case of Governor Salmaan Taseer — or are silenced, being driven out of the country — as in the case of Allama Javed Ahmed Ghamidi. Vague notions of fundamental rights and due process in the exclusive service of majoritarianism in the country seem to this writer to be an antithesis of the spirit in which these notions evolved over centuries in law all around the world. Article 19, which grants freedom of speech and expression to every citizen, has been utilised legally to allow hate speech against minorities and Muslim sects that do not conform to the Hanafi Sunni Islamic tradition. Article 20, which gives the right to profess and propagate one’s faith to all citizens, is employed to give cover to those teachers and scholars who preach violence in the pristine name of jihad. Zaheeruddin vs the State, 1993, SCMR 1718 — a judgment I often refer to in my articles — is the best indication of how selectively due process is applied in Pakistan. The majority judge in this case had actually justified violence by the majority Muslims if an Ahmedi were to present himself as a Muslim. In other words, Article 20 was stretched to give protection to even the violent acts of the majority but narrowed down where a hapless minority was concerned.

So how is this relevant? In the current atmosphere, standing up to the US and citing due process in defence of Saeed seems like a very attractive idea. A smaller state standing up to a superpower in the name of law and procedure is the stuff of films. In reality, however, this is a hollow claim at best. Had Pakistan been fair to all its citizens and applied due process to all of them without exception — including Abdul Qudoos — this writer would have taken a bullet defending the due process rights of Hafiz Saeed, however distasteful his ideology. Had hundreds of Pakistanis like Aasia Bibi not been thrown behind bars on trumped up charges of blasphemy under the Zia-made Section 295-C of the Pakistan Penal Code — which is in contravention to Islam according to many Islamic scholars — I would have spoken up for Aafia Siddiqui’s incarceration in a foreign land, however disagreeable I find her actions. It is always the majority that has to start the CBMs. It cannot be any other way. The minorities, I am sure, will stand shoulder to shoulder with their Muslim compatriots on every issue if they were to be ever given a fair deal in this country.

The truth is that Abdul Qudoos was killed, as countless others before him from amongst the minorities, forced and otherwise. The truth is that Aasia Bibi remains behind bars. Those who champion the cause of due process and human rights for the LeT chief do not speak up for the rights of minorities and women. Therefore, this writer cannot be neutral where neutrality is akin to a crime. Selective due process is a curse. Either you have due process in entirety or you have no due process at all. Selective due process is inherently discriminatory to the citizens of Pakistan. The entire human civilisation is based on give and take. So far, there has been take and take and no give. To paraphrase the immortal words of Faiz from his poem Rabba Sachiya (True God): Aye sauda nahin pujda (this deal is unacceptable).

The writer is a practising lawyer

Source: The Daily Times, Lahore