| June 25, 2002 | Tuesday | Rabi-us-Sani 13, 1423 |
Achieving educational targets remains a dream: DATELINE ISLAMABAD
To grant Tangier international status defies logic
Text of SC order on Riba petitions
Relief adds to grief: SINDHI PRESS DIGEST
THE Weimar Constitution that Adolf Hitler inherited in 1933 had packed in everything good and sacrosanct in a democracy. In fact, on hindsight, the German Constitution did read very much like India’s own grandiloquent contraption, or perhaps even a Pakistani version whenever one is available there in good season.
WE are a nation fond of experiments. We have been experimenting for the past five-and-a-half decades — from political systems to educational policies. Yet we seem to be more directionless today than we were 55 years ago. This is because our experiments seem to have been leading us into vicious circles rather than towards social development and economic progress.
THE INTERNATIONAL Cricket Council (ICC) in a self-contradictory policy granted international status to Tangier (Morocco) to host international events.
KAWISH writes that the Sindh government’s declaration of the calamity-hit areas and relief measures for them have added to the woes of the growers of the areas. According to the notification, orders have been issued for recovery of agricultural taxes for the current Rabi and Kharif crops while recovery of the dues outstanding on July 31, 2001, and before that, instead of being remitted, has been postponed for a year.
“All Germans are equal before the law. Personal liberty is inviolable. Every German has a right (to) express his opinion freely. All Germans have the right to form associations or societies. All inhabitants of the Reich enjoy complete liberty of belief and conscience.”
That was the Constitution of Germany. Look what happened there. And if people are still so blind as not to be able to see what is happening here, in India, then let them ask Iftikhar Gilani, the Kashmiri journalist who is languishing in Tihar Jail (where Prime Minister Vajpayee was bundled in exactly 27 years ago under Mrs Indira Gandhi’s June 25 Emergency). Gilani’s charges are evidently as laughable as those held against Vajpayee were in 1975, as we shall soon see.
If a Kashmiri journalist is a bad source because he is deemed to be party to the anti-India tirade in the Himalayan region, then ask Alex Perry, the American Time Magazine writer. He is paying dearly for apparently innocently mistaking Prime Minister Vajpayee’s weakness for Bacchanalian delights as a latter day avatar of Omar Khayyam (not underneath a bough, but a nuclear mushroom, more likely)
Or ask Anand Patwardhan, acclaimed peace activist and film-maker whose celebrated documentaries have lucidly located the epicentre of much of that is evil in India — from communal horrors to nuclear terror — to the rise of Hindu fascism.
Patwardhan submitted his latest film on Indian and Pakistani nuclear madness to the Censor Board. The regional officer of the Censor Board in Mumbai boasted to him that he would stop the Kolkata screening of the film. The next day while other films which had no censor clearance were shown, the inaugural film “War and Peace” was withdrawn.
Reproduced below are excerpts from Patwardhan’s exasperated petition after the examining committee of the Censor Board finally saw the film on June 6.
“After the screening, though I was present, I was informed that contrary to norms, the committee members would not discuss anything with me as they could not reach consensus,” says Patwardhan. The following week the final outcome was given to him in writing. It makes remarkable reading. Hold your breath. These were:
“Cut No.1: Delete the visuals of burning Indian flag”. This scene depicting Pakistani jingoism balances sequences of Indian jingoism. But obviously the Censor Board has no objection to scenes showing the burning Pakistani flag. “War and Peace” consistently exposes war-mongers and applauds peace lovers on both sides of the border. This is clearly not something the Censor appreciates.
“Cut No. 2: Delete the entire sequence with visuals and dialogues spoken by the Dalit leader” refers to a sequence in which a Dalit neo-Buddhist argues that it is a travesty that nuclear tests were carried out on Buddha’s birthday and that the Buddha’s name was used as a military code to mark the tests despite the fact that the Buddha has always been unarmed.
“Cut No. 3 is a demand to cut a Dalit song which describes the killing of Mahatma Gandhi by a Brahmin. So now the Censor feels bold enough to muzzle the voices of those whom our caste system oppressed for centuries, even when they merely make factual statements !
“Cut No.4 is an order to cut a sentence by a leading scientist stating that ‘China is our next possible enemy’. This common justification for our nuclear weapons was endlessly repeated in the media by our politicians, including, most famously, by our defence minister.
“Cut No.5 is a predictable though thoroughly unjustifiable demand: “Delete the visuals and dialogues of entire Tehelka episode wherever it occurs in the film.”
Over four hours of these Tehelka tapes showing hidden camera footage of corrupt arms deals were broadcast nationally at prime time. The tiny extracts I used are a mere reference to what the public saw at length on almost every channel. Again, the Censor Board’s bias is clear. Tehelka is not allowable because it depicts members of the ruling coalition, but my reference to the Bofors arms scandal is deemed OK as it indicts the Opposition!
Cut No.6 is the clincher. Under the heading GENERAL is the amazing diktat: “Delete the entire visuals and dialogues spoken by political Leaders including Minister and Prime Minister.” The censor board has deemed it unnecessary to pinpoint exactly which leader’s visuals and dialogues they disliked so much that the public should be protected by suitable deletions.
The heading GENERAL applies to all. The Censor Board deems it illegal to report the speeches of Ministers, Prime Ministers and all Political Leaders. Do we have a new Secrecy Act?
Should Messrs Vajpayee, etc wear a mask from now on, and speak only in code? Or should only those who elevate every word of politicians into gospel and visualize these politicians only when they are the politician’s wearing halos, be allowed to film?
In a canny way Patwardhan’s censor board story resembles the burning of the Hindi satire on Mrs Gandhi, a film called Kissa Kursi Ka, which was incinerated on her son Sanjay Gandhi’s orders.
In fact the present round of attacks on the media bear a sharp resemblance to the experience of 1975-77.
As The Indian Express reported a few days after Iftikhar Gilani’s arrest, the Special Branch of the Delhi police admit they are nervous about the Official Secrets Act (OSA) case they have booked him under. They have reason to.
For, although the military intelligence is said to have claimed that the papers found on Gilani are highly sensitive and indicate espionage, it has added that it can’t classify them since they aren’t part of its records.
The 12-page document, a copy of which is widely available, is little more than yet another version of what is typical Pakistan propaganda on the break-up of troops in the Valley. Sourced to the Ministry of Foreign Affairs, Islamabad, it is titled A review of Indian repression in Kashmir, and lists what it claims is the deployment of Indian security personnel in the Valley.
It also lists torture cells in Indian-held Kashmir in 1992 as per a French human-rights group’s estimates. All information, in the document, even the one about additional inductions in the last two months, is shown as dating back to Aug 1995.
In fact, the Delhi police have now written to the Ministry of Home Affairs asking that the MEA should establish whether Pakistan’s Foreign Office indeed published the data.
Besides being a stringer for The Nation and The Friday Times, Iftikhar is also the Bureau Chief of the Jammu-based Kashmir Times.
Said its editor Prabodh Jamwal: What relevance does this information have to the current situation? We will put up our case that no OSA case is made out. Jamwal admits that Iftikhar told him he neither remembers who gave him the original five-page fact-sheet which his wife found, nor does he remember for which paper he was preparing an article for when he copied data on deployment from it.
Now how many times have visiting journalists and politicians from India been given propaganda literature by their Pakistani hosts? How many Pakistanis have we in India given the visitors our own version of the Kashmir tangle with details about Pakistan- inspired terrorism in the Valley.
Do we check these usually foolish attempts to indoctrinate us before chucking the literature into the dustbin? Not worth the effort. Apparently Iftikhar did keep some of the propaganda bumf in his drawers or in his computer.
Meanwhile, the prime minister’s office has shot off a letter to Time magazine protesting against Perry’s unflattering portrayal of Mr Vajpayee in his article titled Asleep at the Wheels in the June 17 issue of the magazine.
In its rejoinder, the PMO has apparently found the report to be one-sided and in poor taste. The PMO has also pointed out that Vajpayee is 77 years old and not 74 as mentioned in the report. It has also clarified that Vajpayee doesn’t drink alcohol. Perry’s claim was that Vajpayee drank heavily in his prime and still enjoys a whiskey or two at 74.
As for the PM’s three-hour snooze every afternoon on doctors orders, the PMO has clarified that a post-lunch siesta is nothing unusual. If Perry is deported, the governments act will only reinforce fears of an authoritarian rule coming. Ironically it was his own magazine that wrote in its June 25 Pacific Edition something similarly chilling about old Indian habits.
There are politicians and the usual rent-a-mob in India who want Katherine Frank’s Indira: The Life of Indira Nehru Gandhi (HarperCollins; 567 pages) banned. It doesn’t matter that most haven’t read it. They were told it was a scurrilous and offensive biography written by a foreigner.
Now they want to keep it off the shelves because they fear its revelations challenge the reputation and status of Indira Gandhi, Prime Minister of India for 15 years, until she was assassinated by her bodyguards in 1984. At stake is the perpetual myth of Indira Gandhi, goddess and mother of India.
Whatever be the merit of that book review, Atal Behari Vajpayee cannot be Indira Gandhi. History repeats itself, they say, first as a tragedy, the second time as a farce. And it may be getting too late to say honestly which is which.
The education sector is recognized today as the key to development and progress. However, past experiments in this sector have led to nowhere but stagnation in our literacy rates and general rot in our public schools, colleges and universities. Yet new experiments in this sector continue to be unveiled, with all the desired targets seeming to be as elusive as before.
The present government has been particularly active in revamping the education system and has launched a series of measures. These include the compulsory education ordinance, the school adoption programme whereby NGOs and private concerns may ‘adopt’ and run public schools, and raising the number of years of study in getting a bachelor’s degree — from 14 to 16 years.
There is nothing wrong with all these measures per se except perhaps for their practicality. Too many drastic changes are being introduced in too short a period, all aiming at achieving very ambitious targets — targets which the country has been unable to achieve in five-and-a-half decades.
Take for instance, the target of universalization of primary education. This is not a new target. It has been the target of all our five-year plans in the past. Yet its achievement remains a dream.
This government aims at achieving the target of universalization of primary education with the help of the compulsory education ordinance, which again is not a new concept. The only thing new perhaps is that the ordinance provides for penalties in the form of fines for parents for not sending children of the primary age group (five to nine years) to school as well as fines for employers for employing children of this age group. The major hurdle is in the very implementation of this ordinance.
Provincial governments have told their district governments to achieve the target by 2004-05. This means that by 2004, all children of the primary age group should be attending school. In many areas of the country, this does not seem possible.
The reason is inadequate infrastructural facilities and lack of trained manpower. In some places, there are simply not enough schools. In other places where there are schools, they lack physical facilities: some don’t even have buildings and some have only one classroom. Many primary schools in the rural areas and even in some urban areas are beset with problems like shortage of trained and qualified teachers, teacher absenteeism, and the lack of motivation, dedication and interest in their profession. Another major problem, specially in rural areas, is the lack of motivation to send children to school, particularly girls whose enrolment is low (about one-third) as compared to boys’.
As with many governments before, this government has also made 100 per cent literacy its target and to help achieve this, it is introducing its own crash literacy scheme. The scheme, sketchy details of which were made known last week, involves the setting up of a new literacy department at the district level and the appointment of 105 new literacy officers in all 105 districts of the country. Can this new literacy scheme achieve what previous experiments in literacy have failed, and not end up where past literacy programmes have ended up?
The National Literacy Commission, the Prime Minister’s Literacy Commission, the literacy centres established during the 1980s which were later replaced by the Nai Roshni schools, and the Iqra Pilot Project in Islamabad/Rawalpindi districts, have all ended up in the dustbin of history. Not only have they achieved very little success but billions of rupees have been squandered in their implementation. Short-cuts to literacy like the Iqra Pilot Project proved to be an ill-conceived scheme that was not only expensive but susceptible to misuse and corruption: the scheme had involved rewarding Rs1,000 per new literate to the volunteer teachers.
This government’s adult literacy scheme, like all others before, aim at overcoming the huge backlog of adult literacy through crash programmes. But as with previous governments, there seems to be little recognition of the fact that success in this kind of crash programmes can only be achieved if the number of literates produced every year is not nullified by the number of new entrants into illiteracy produced by high population growth and poverty, the compulsory education ordinance notwithstanding.
Besides, turning all existing adult illiterates, the majority of whom are women, into instant literates involves addressing the problem of “gender gap”, specially in rural areas. This requires the government to focus on expanding educational opportunities for women in particular and overcoming the prejudices and stereotypes that limit women’s access to adult education.
Yet another ambitious target of this government is to upgrade the quality of public tertiary education by bringing our bachelor’s degree — at present considered only equivalent to the British ‘A’ levels — at par with international bachelor’s degrees. The government plans to achieve this target by increasing the duration of study towards a bachelor’s degree by two years. This would mean increasing both the FA/FSc programme and the BA/BSc programme by one year each from the current two to three years.
This exercise of reducing and increasing the duration of study first began in the 1950s when the high school certificate study duration was reduced from 11 to 10 years. Then in 1962, the duration of the bachelor’s degree programme was increased from two to three years. This, however, only lasted briefly because student agitation forced the government to overturn its decision and the bachelor’s degree programme was reduced back to the original two years.
The present government’s decision to increase the number of years for getting a bachelor’s degree from 14 to 16 amounts to a rollback of the decision of the 1950s plus a return to the original 1962 decision. Had the government in the mid-1950s not reduced the high school certificate programme from 11 to 10 years, and had the 1962 martial law decision to increase the bachelor’s degree programme from two to three years stayed, we would have had a 16 instead of 14 years’ study duration for getting a bachelor’s degree.
Judging from the present state of our education sector, it will take a lot more than merely increasing the duration of study by two years to bring our bachelor’s degree at par with international standards. The objective cannot be achieved unless we also considerably improve the infrastructural facilities in the education sector, upgrade the teaching staff’s service and work conditions, and revamp the current curricula and syllabi and bring them more up to international standards.
Until now, slogans like education for all, universalization of primary education, 100 per cent literacy and other such noble objectives have remained mere noble objectives. When can these objectives be turned into a reality for the people and become an achievement for the government?
The ICC chief, Malcolm Speed, only last week speaking on BBC Radio had expressed apprehension of corruption at neutral venues and expressed grave concern. He, however, said that the problem was being addressed by the former London police chief Paul Condon’s anti-corruption unit.
If the ICC was so concerned about corruption in cricket and specially on neutral venues one wonders how the ICC gave green signal to Tangier to stage international events with Morocco having no cricketing background.
The idea of having series at neutral venues has just picked up. In fact it is the by-product of Sept 11, 2001 World Trade Centre scenario. Pakistan being an ally of the countries which have vowed to fight terrorism became the first target of international sports. The West Indies which was due to tour Pakistan according to the ICC Test Championship plan chalked out for five years backed out. They showed reluctance to tour Pakistan because of the US led world coalition action in neighbouring Afghanistan. Instead the West Indies and Pakistan decided to play the series in Sharjah which was treated as a neutral venue and the two countries played the Test series in Sharjah for the first time in cricketing history.
As far as Sharjah is concerned one could pacify himself by saying that the work force in UAE mostly comprises Pakistanis, Bangladeshis, Indians and Sri Lankans and since cricket has great following in that part of the world the game can provide entertainment to the expatriates.
It was despite the fact that the whole purpose of holding Test matches between two countries is to promote and popularise the game in those countries. That purpose was served to bare minimum thanks to electronic media. But the real purpose was not served.
The ICC is strict in giving affiliation to cricket playing countries and no country is granted Test status straightaway. It has to go through a system. But it had set the principles aside while granting international status to Tangier where the game is perhaps not played even locally. If at all it is played there it has no significance. Then how come the ICC granted Tangier international status.
There seems to be something seriously wrong at the ICC headquarters where the Condon Committee should start a probe. It will be better if the things are set right before Tangier becomes Las Vegas or Monte Carlo for cricket gambling. From the circumstances under which the ICC has made its commitment, it appears that it has been trapped by some influential people who must be having some ulterior motives. Nobody with a sane mind can think of supporting any place which has no background or history of the game. It is not the handy work of any one individual. It seems that some evil minded people have gathered together to swindle the cricketing world.
I am afraid that Pakistan has committed itself to play in the inaugural tri-nation tournament in August alongwith Sri Lanka and South Africa. Pakistan should have taken a careful stand as Pakistani cricketers were in the front of match fixing at home and abroad and it took them several years to get their names cleared. So much so that two Commissions were set up, one under Justice Qayyum who even took action against some Pakistani players. Former Pakistan captain Saleem Malik was debarred for life while some of the players of the present Pakistan team were fined for not cooperating with the inquiry commission.
Another Commission under Justice Bhandari of the Lahore High Court has just completed its inquiry on the allegation of fixing of matches in the England World Cup and has cleared Pakistan’s cricketers of all charges.
Under the circumstances the PCB should not have gone out of the way to support a venue in Morocco where the game has never been played and no one has heard of cricket in Morocco. The PCB has taken a great risk and one hopes that our cricketers return home unscathed from Tangier.
It is learnt that some people in the PCB who influence the decisions of the PCB Chairman Lt-Gen Tauqir Zia have painted a rosy picture of Tangier’s potential. Tangier is another money spinning venture of CBFS who have now started a sports channel Ten Sports and are assured of generating funds for themselves and come in competition with world’s leading sports channels. What happens to other competing teams is to be seen.
The thing which is beyond comprehension is why the ICC did not suggest places like Dhaka (Bangladesh), Nairobi (Kenya) or any other country. The most suitable of all the venues would have been Dhaka where two good teams can draw capacity crowds and the game can be popularised. Why of all the places Tangier has been selected smacks of some foul play and underhand dealing. The ICC will have to labour a lot to clear its name of indulging in foul play unless it comes out with a clear cut policy.
Can the ICC explain who applied for the Tangier venue. Was the request supported by the Moroccan Government. If not how come the ICC took a decision. If it has erred on any count it is time that it should reconsider its decision and save the world’s cricket body’s integrity.
PRESENT:
Mr. Justice Sh. Riaz Ahmed, C.J. Mr. Justice Munir A. Sheikh Mr. Justice Qazi Muhammad Farooq Mr. Justice Dr. Allama Khalid Mahmood Mr. Justice Dr. Rashid Ahmed Jullundhari
Civil Shariat Review Petition No. 1 of 2000 (On review from the order dated 23rd December, 1999 passed in C. Sh. Appeals No.11 to 19 of 1992)
United Bank Ltd. ... ...
PETITIONERS
VERSUS
M/S Farooq Brothers etc. ... ...
RESPONDENTS
Civil Shariat Review Petition No. 1 of 2001 (On review from the order dated 14th of June, 2001 passed in C.M.A. No. 1485/2001 in C.Sh.R.P. No. 1 of 2000 in Shariat Appeal No. 11 to 19 of 1992)
Muhammad Iqbal Zahid ... ...
PETITIONER
VERSUS
M/S Farooq Brothers and others ... ... RESPONDENTS
For the petitioner : Raja Muhammad Akram, ASC
(in C.Sh.R.P.1/2000) Ch. Akhtar Ali, AOR
For the petitioner : Mr. Muhammad Ismail Qureshi, ASC
(in C.Sh.R.P.1/2001) Sh. Khizer Hayat, ASC
Ch.Abdul Rehman, ASC
Mr.Maroof Shah Sherazi, Advocate
(Special permission) Mr.Faiz-ur-Rehman, AOR (absent)
For respondents Mr. Makhdoon Ali Khan,
No.8, 10, 19, 34 in Attorney General for Pakistan
C.Sh.R.P.1/2000 Syed Riazul Hasan Gilani, Sr.ASC
Mr.Raza Kazim, ASC
Mr.Mohsin Raza, ASC
Mr.Ali Kazim, ASC
Mr.Amir Hani Muslim, ASC
Syed M.Ayub Bokhari, ASC
Raja Abdul Ghafoor, AOR
Mr.Mehr Khan Malik, AOR
Mr.Khurram Hashmi, ASC
(by special permission)
For Respondent No.17 Mr. M.A. Farani, ASC
For Jamiat Ulema-e- Pakistan Mr.Hashmat Ali Habib, ASC Engineer Muhammad Saleemullah
Dates of hearing: 6th, 7th, 13th, 14th and 17th to 22nd June, 2002.
ORDER SH.RIAZ AHMED, C. J. - The United Bank Ltd. has filed Civil Shariat Review Petition No. 1 of 2000 under Article 188 of the Constitution of the Islamic Republic of Pakistan seeking review of the judgment dated 23rd December, 1999 passed by the Shariat Appellate Bench of this Court in Shariat Appeals No. 11 to 19 of 1992 whereby the judgment dated 14th November, 1991 of the Federal Shariat Court was affirmed and it was declared that Riba in all its forms and manifestations was prohibited by the Holy Quran and Sunnah. In consequence the Shariat Appellate Bench of this Court declared as under: -”(10) The following laws being repugnant to the Injunctions of Islam shall cease to have effect from 31st March, 2000: -
i. The Interest Act, 1839. 2.The West Pakistan Money Lenders Ordinance, 1960. 3.The West Pakistan Money Lenders Rules, 1965. 4.The Punjab Money Lenders Ordinance, 1960. 5.The Sindh Money Lenders Ordinance,1960. 6.The N.W.F.P. Money Lenders Ordinance, 1960. 7. The Balochistan Money Lenders Ordinance,1960. 8. Section 9 of the Banking Companies Ordinance, 1962. The other laws or the provisions of the laws to the extent that those have been declared to be repugnant to the Injunctions of Islam shall cease to have effect from 30th June, 2001.”
Following measures were suggested in the judgment under review for transformation of the existing banking and economic system to the Islamic one: - “(1) Strict austerity measures to drastically curtail the Government expenditure should be adopted and implemented and deficit financing should be controlled as therein lies the solution to economic revival.
(2) An Act to regulate the Federal Consolidated Fund and Public Account, Provincial Consolidated Fund and Public Account requires to be enacted by the Parliament and the Provincial Assemblies respectively. This law will have to take care of borrowing powers, purpose and the scope of monitoring process including all ancillary matters.
(3) Laws providing for necessary prudential measures ensuring transparency be enacted. These laws may include laws like Freedom of Information Act, the Privacy Act and Ethics Regulations of United States, Financial Services Act of Britain.
(4) Establishment of Institution like Serious Fraud Office to control white color and economic crimes.
(5) Establishment of credit rating agencies in the public sector.
(6) Establishment of evaluators for scrutiny of feasibility reports.
(7) Establishment of special departments within the State Bank -
(a) Shari’ah Board for scrutiny and evaluation of Board’s procedures and products and for providing guidance for successfully managing the Islamic economics. (b) A Board for arranging exchange of information, financial institutions about feasibility of projects, evaluation thereof and credit rating of institutions, corporations and other entities.
(c) A Board for providing technical assistance to the financial institutions/banks with regard to the anomalies emerging in the practical operation of the financial institutions or difficulties arising during operation of financial products, transactions or arrangements between the financial institutions and the consumers/ clients. This may also take the shape of Islamic Financial Service Institution. Such institutions will also work in the field of shares and investment certificates, underwriting promotion and market making to help in activation of primary and secondary markets. The rise of such institutions, whose functions include the promotion of financial instruments and to work as their catalysts in the financial market, would be of great help and support to Islamic Banking. Among the factors which would help the creation and spreading of such institutions is the extension of tax incentives to their operation as well as to Islamic banks to benefit from their services.
The establishment of aforenoted Infrastructure is considered necessary by the economists for operation of the Islamic banking system with success.”
Since the transformation of the existing system could not take place instantly, the Shariat Appellate Bench directed as under: - “Keeping all these aspects in view, we have decided to appoint different dates for different phases of the transformation. We, therefore, direct that:-
(1) The Federal Government shall, within one month from the announcement of this judgment, constitute in the State Bank of Pakistan a high level Commission fully empowered to carry out, control and supervise the process of transformation of the existing financial system to the one conforming to Shari’ah. It shall comprise Shari’ah scholars, committed economists, bankers and chartered accountants.
(2) Within two months from the date of its constitution, the Commission shall chalk out the strategy to evaluate, scrutinize and implement the reports of the Commission for Islamization of the Economy as well as the report of Raja Zafarul Haq Commission after circulating it among the leading banks, religious scholars, economists and the State Bank and Finance Division, inviting their comments and further suggestions. The strategic plan so finalized shall be sent to the Ministries of Law, Finance and Commerce, all the banks and financial institutions to take steps to implement it.
(3) Within one month from the announcement of this judgment, the Ministry of Law and Parliamentary Affairs shall form a task- force, comprising its officials and two Shari’ah scholars from the Council of Islamic Ideology or from the Commission of the Islamization of Economy, to: (a) Draft a new law for the prohibition of riba and other laws as proposed in the guidelines above;
(b) To review the existing financial and other laws to bring them into conformity with the requirements of the new financial system; (c) To draft new laws to give legal cover to the new financial instruments.
The recommendations of the task force shall be vetted and finalized by the “Commission for Transformation” proposed to be set up in the SBP after which the Federal Government shall promulgate the recommended laws.
(4) Within six months from the announcement of this judgment, all the banks and financial institutions shall prepare their model agreements and documents for all their major operations and shall present them to the Commission for transformation in the SBP for its approval after examining them.
(5) All the joint stock companies, mutual funds and the firms asking in aggregate finance above Rs.5 million a year shall be required by law to subject themselves to independent rating by neutral rating agencies.
(6) All the Banks and financial institutions shall, thereafter, arrange for training programmes and seminars to educate the staff and the clients about the new arrangements of financing, their necessary requirements and their effects.
(7) The Ministry of Finance shall, within one month from the announcement of this judgment, form a task force of its experts to find out means to convert the domestic borrowings into project related financing and to establish a mutual fund that may finance the government on that basis. The units of the mutual fund may be purchased by the public and they will be tradable in the secondary market on the basis of net asset value. The certificates of the existing bonds of the existing government savings schemes based on interest shall be converted into the units of the proposed mutual fund.
(8) The domestic inter-government borrowings as well as the borrowings of the Federal Government from State Bank of Pakistan shall be designed on interest free basis.
(9) Serious efforts shall be started by the Federal Government to relieve the nation from the burden of foreign debts as soon as possible, and to renegotiate the existing loans. Serious efforts shall also be made to structure the future borrowings, if necessary, on the basis of Islamic modes of financing.”
2. In the year 2001 two miscellaneous applications (No. 1480 & 1485 of 2001) were filed in the above review petition with a composite prayer for suspension of the operation of the judgment and extension of time for its implementation. After hearing the Federal Government and the parties concerned this Court extended the period for implementation of the judgment till 30th June, 2002.
3. Civil Shariat Review Petition No. 1 of 2001 has been filed by Muhammad Iqbal Zahid and others seeking review of the order dated 14th June, 2001 with the prayer that the said order may be reviewed and recalled and the Federal Government may be directed to promulgate the Ordinance on Riba, which is stated to have been framed to bring all laws in conformity with the Islamic Injunctions.
4. At the commencement of hearing of these review petitions, objection to the constitutionality of the appointment of two of us (Dr. Allama Khalid Mahmood and Dr. Rashid Ahmed Jullundhri, ad hoc members of the Shariat Appellate Bench) was raised. It was urged that their inclusion in the Shariat Appellate Bench was unconstitutional and illegal. Without further going into this question, we may observe that the question of appointment of ad hoc members of the Bench cannot be raised collaterally. Furthermore, both the learned ad hoc members being recognized scholars, are on the panel of Ulema and their appointment meets the requirements of Article 203F(3)(b) of the Constitution. The objection is repelled.
5. In course of hearing of these review petitions, we have had the advantage of hearing M/S Raja Muhammad Akram, Sr. ASC, learned counsel for the United Bank Ltd., Mr. Makhdoom Ali Khan, learned Attorney General for Pakistan, M/S Raza Kazim and Dr. Syed Riazul Hasan Gilani on behalf of the Federation, M/S Muhammad Ismail Qureshi, Sr. ASC and Sh. Khizar Hayat, ASC on behalf of the petitioner in Civil Shariat Review Petition No. 1 of 2001, Mr. M.A. Farani on behalf of respondent No. 17, Engineer Muhammad Saleemullah and Mr. Hashmat Ali Habib, ASC on behalf of Jamiat Ulema-e-Pakistan.
6. Raja Muhammad Akram, Sr. ASC, learned counsel for the petitioner (UBL) placed reliance on verses 2:262 - 282, 3:130, 12:108, 18:49 - 50, 25:73 - 75, 30:39, 34:46 and 73:20 of the Holy Quran and relevant extracts from the books Tarjaman-ul-Quran by Maulana Abul Kalam Azad, Tafseer-ul-Quran by Sir Syed Ahmed Khan and Ma’arif-ul-Quran by Mufti Muhammad Shafi to contend that verses 2:262 - 282 mainly refer to ‘Sadqaat’, i.e. spending in the cause and for pleasing of Almighty Allah. Riba was finally prohibited in verse 3:130 which reads as under:- “130. O ye who believe !Devour not Usury, Doubled and multiplied;
But fear Allah; that Ye may (really) prosper.”
He submitted that this verse does not prohibit what is reasonable and fair and all that it prohibits is ‘doubled’ and ‘multiplied’. In verses 12:108, 25: 73 —75 and 34:46 emphasis has been laid on the use of reason. The word “ bay “ used in verse 2:275 includes sale, business, trade, investment, bargaining, etc., therefore, the present day banking business is covered by the term “bay “. He submitted that the Shariat Appellate Bench has not properly distinguished the terms ‘usury’, ‘Riba’ and ‘interest’. The term ‘Riba’ has not been defined in the Holy Quran and all that has been held in the judgment under review is based on Qiyas (analogy). The word ‘usury’ is a kind of ‘Riba’ whereas the term ‘interest’ refers to ‘profit’. From verses 2:278 - 280 the following principles are deducible, viz. (1) the believers should give up the remainder of Riba and if they do not, it would be war against Allah and the Holy Prophet (PBUH), (2) if the debtor is in financial difficulty, he should be given time, and if it is remitted by way of charity, that is best for the believers. In verse 2:273, it is ordained that Sadqaat (almsgiving) are for the poor and the needy who have been immobilized but they will not beg from all and sundry. Obviously, these principles are not applicable to an industrialist who has taken a loan of millions of rupees but to the poor and the needy. To the similar effect are verses 73:20, 18:49-50 and 2:270. There is a contrast/comparison between ‘Sadqaat’ and ‘Riba’ in the Holy Quran and emphasis has been laid on giving concessions/relaxations to the poor people. The banks cannot make ‘Sadqaat’ in favour of industrialists.
7. Mr. Raza Kazim, ASC, learned counsel for the Federation argued that in view of the bar contained in Article 203B(c) of the Constitution, the Federal Shariat Court had no jurisdiction to embark upon declaring Riba as Haram i.e. illegal or impermissible inasmuch as by virtue of Article 38(f) of the Constitution a duty had been cast upon the Federal Government and not the Federal Shariat Court to eliminate Riba as early as possible and therefore the Federal Shariat Court as well as the Shariat Appellate Bench of this Court had no jurisdiction to step into the shoes of the Federal Government to eliminate Riba by fixing a time frame. He submitted that in pursuance of the judgment of the Shariat Appellate Bench the Federal Government formed one Commission and two task forces. The Task Force on Government Borrowing was formed in the Ministry of Finance to direct and facilitate the transformation of interest-based government borrowing into Islamic modes of financing. The other Task Force and the Commission were concerned with effecting a transition to compliance with Shari’ah in the financial sector and establishing a legal and regulatory framework to document an Islamic economy. The learned counsel pressed into service two affidavits filed on behalf of the Ministry of Finance and the State Bank of Pakistan. Para 33 of the affidavit filed by the Secretary, Ministry of Finance, at page 14 of the paper book reads as follows: - “That Government of Pakistan has made best possible efforts under Article 190 and Article 203D(3)(a) of the Constitution of the Islamic Republic of Pakistan, 1973 to find ways and means to implement the directives contained in paragraphs (7), (8) and (9) of the Order dated 23.12.1999 of Hon’ble Supreme Court of Pakistan (Shariat Appellate Bench) but has found that implementation of the said directives is not practical or feasible and if attempted will pose high degree of risk to the economic stability and security of Pakistan.”
Para 25 of the affidavit filed by the Deputy Governor, State Bank of Pakistan at page 89 of the paper book reads as follows:- “That having taken a series of steps to promote Islamic banking described in para 21 above, and considering all other practical problems associated with the complete transformation of the financial system discussed herein, it is State Bank of Pakistan’s considered judgment that a parallel approach will be in the best interest of the country. This means that Islamic banking is introduced as a parallel system of which a beginning has already been made, it is provided a level playing field vis-‘-vis the existing conventional banks, and its further growth and development is supported by Government and State Bank of Pakistan through appropriate actions. This approach will eliminate the risk of any major costs/damage to the economy, give a fair chance to Islamic banks to develop alongside the conventional banks, and will provide a choice to the people of Pakistan, and the foreigners doing businesses in/with Pakistan, to use either of the two systems.”
8. Dr. Syed Riazul Hasan Gilani, Sr.ASC, learned counsel for the Federation at the outset formulated his contentions as under: - The impugned judgment has amalgamated legal and moral aspects of Riba. Failure to distinguish between legal and moral aspects of Riba has resulted in violation of the Injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet (PBUH) as well as the juristic opinions of Imam Abu Hanifa and other great jurists;
The enforcement of Makrooh Riba through State apparatus is against the Sunnah of the Holy Prophet (PUBH);
The consolidated definition which covers legal as well as moral aspects of Riba has taken the impugned judgment outside the jurisdiction of this Court;
While trying to define Riba the fundamental rule of Tafseer (interpretation) has been violated in the judgment inasmuch as while defining a negative injunction like Riba the prevalent practice and respective terminology used by the pre-Islamic Arabs is relevant. For that, only the reports narrated by the Sahaba (RA) and Tabi’een are admissible. Juristic inferences in this regard are neither relevant nor admissible;
Failure to define ‘Qarz’ has rendered the entire complexion of the impugned judgment against the Shariat. The English word ‘loan’ is not the exact counterpart of the word ‘Qarz’;
The alternate modes of finance employed in the so-called Islamic banking have been held to be Riba by the most eminent jurists including Abdullah bin Abbas and Abdullah bin Umer. Moreover while suggesting measures for Islamization of the banking system, the views of Syed Muhammad Baqir-as-Sadar who represents Jafri school of thought have been ignored; In the judgment the views on Riba and banking practice expressed by Shaikh Muhammad Abduhu’, Shaikh Rashid Rida, Abdul Razzak Sanhuri, the former Shaikhul Azhar Mahmood Shaltut, Cairo, the present Shaikhul Azhar Dr. Muhammad Sayyid Tantawi, Abdul Wahab Khallaf and Dr. Maroof Daoualibi have been misread;
The law of Riba has wrongly been applied to the non-Muslims. In doing that not only the Holy Quran and the Sunnah of the Holy Prophet (PBUH) but also Fiqah Jafria has been violated;
The judgment under review holds indexation repugnant to the Injunctions of Islam without quoting any material from the Holy Quran and the Sunnah. While doing that, the juristic opinions of A’la Hazrat Maulana Ahmed Raza Khan Barelvi, Syed Muhammad Baqir-as-Sadar and present Sheikhul Azhar Dr. Muhammad Sayyid Tantawi have been ignored; ‘Zulm’ i.e. exploitation/oppression is the ‘Illat’ i.e. cause or essential ingredient of Riba. It has wrongly been held in the judgment that ‘zulm’ is not ‘Illat’ but ‘hikmat’ of Riba. Thus, the express verse of the Holy Quran and juristic opinions of Imam Ibn-e-Rushd and Maulana Ashraf Ali Thanvi have been opposed; Pre-determination of fixed profit is not the only criterion which makes a transaction Riba. It has been stated in the Hedaya and also opined by Maulana Ashraf Ali Thanvi that pre-determined fixed profit in a business transaction is the characteristic of Mudaraba; (12) The judgment under review has not taken note of the transformation of individualistic profit motive and risk factor to the society as a whole by virtue of the corporate business.
9. Mr. Gilani contended that the judgment of the Federal Shariat Court and that of the Shariat Appellate Bench suffered from infirmities, in that, the most important and delicate questions having material bearing on the issues involved in these cases have not been dealt with. He contended that he had raised at least 33 propositions in course of the hearing, which were not attended to by the Shariat Appellate Bench. He argued that the judgment of the Federal Shariat Court is biased inasmuch as Mr. Justice Dr. Tanzilur Rahman, C.J. (as he then was) had delivered the judgment with a predetermined mind because while delivering the judgment he had placed reliance on a report of the Council of Islamic Ideology of which he happened to be the Chairman at the relevant time which is apparent from a perusal of the judgment of the Federal Shariat Court in particular with reference to paragraphs 58, 59, 60, 62, etc. of the judgment. The Shariat Appellate Bench also proceeded to rely upon the said report and the writings of Dr. Tanzil-ur-Rahman. The Shariat Appellate Bench did not consider this aspect at all and proceeded to rely upon the work of Dr. Tanzil-ur-Rahman and therefore the judgment under review as well as that of the Federal Shariat Court lacked objectivity. The learned Judges of the Federal Shariat Court confined themselves to the opinions of a particular group of scholars having a particular viewpoint from whom the author of the judgment (Dr. Tanzilur Rahman, C.J., as he then was) had derived inspiration for producing his works in the Council of Islamic Ideology as well as writing other books on the subject and kept out of consideration the opinions of other eminent jurists such as Shaikh Muhammad Abduhu’, Shaikh Rashid Rida, Abdul Razzak Sanhuri, the former Shaikhul Azhar Mahmood Shaltut, Cairo, the present Shaikhul Azhar Dr. Muhammad Sayyid Tantawi.
10. Mr. Gilani vehemently urged that the alternate banking and financial system proposed in the judgment under review was not at all workable and the government has found it incapable of being implemented. He argued that the Federal Shariat Court did not advert to the question of Riba-al-Fadl and its enforcement-related implications and this glaring omission escaped the notice of the Shariat Appellate Bench. In this context reference may be made to the following observations of the Federal Shariat Court at page 63 of the judgment which reads as under: - “Riba, in law, signifies an excess (increase) in a (loan) contract in which such excess is, stipulated as an obligatory condition on one of the parties, without any return i.e. without any property (Mal), in exchange. (See Book XIV on Sale Chapter VIII on Riba or usury. Hedaya, English Translation by Hamilton, Lahore, page 289), Imam Fakhrud-Din Al-Razi (d. 606 A.H.) in his well known Tafsir al Kabir writes that the meaning of the word Riba is increase but it does not mean that to recover every kind of increase is Riba and is unlawful(???? ). The forbiddance of Riba relates to special kind of contract which was known amongst the Arabs as Riba al Nasiyah (?????????) i.e. increase on debt. (The other kind of Riba called “Riba al Fadl” ( ???????? ) is outside the scope of the present discussion.”
The exclusion of Riba-al-Fadl from consideration was reiterated at page 96 of the judgment in the following words: - “Presently in these petitions we are concerned with Riba-al-Nasi’ah ........ The difference of opinion whatever is found is regarding Riba-al-Fadl and that is out of discussion in the context of Bank interest which is under our consideration.”
It is manifest from the perusal of the above findings of the Federal Shariat Court that the question of Riba-al-Fadl and its legal implications qua enforcement through legislation was kept out of consideration for the reason that the same was never treated subject-matter of the proceedings before it or a controversy to be set at rest. On the other hand, the Shariat Appellate Bench discussed Riba-al-Fadl in its judgment and after dividing it into three categories held that Riba-al-Qur’an and transactions of money covered by the first category of Riba-al-Fadl are more relevant to the modern business. Evidently, the Shariat Appellate Bench could not proceed to determine this issue in the appeals unless there was a finding recorded by the Federal Shariat Court. There is an error apparent on the record inasmuch as the Shariat Appellate Bench considered that the issue to be resolved by them did not relate to Riba-al-Nasi’ah alone but also to Riba-al-Fadl, therefore, they should have refrained from recording any finding on these concepts and ought to have remanded the case to the Federal Shariat Court for determination of the questions which were germane to the issue of Riba-al-Fadl.
11. Mr. Gilani argued that all the Islamic banking system suggested in the judgment under review is a misnomer and except Musharika all other modes of finance are nothing but Heela ( ???? ), i.e. devices to avoid what is otherwise Riba which are in fact more harsh and oppressive having the element of ‘zulm’ and are worst in consequences as compared to the various forms of interest prevalent in the present day banking system which have wrongly been termed as Riba al-Nasi’ah in the judgment under review. This aspect also requires thorough and elaborate research on all its pros and cons and implications by an independent and unbiased mind. The judgment under review omitted to take into consideration the fact that the alternate system is not a consensus oriented system and had been bitterly opposed by many eminent jurists including Abdullah bin Omer and Abdullah bin Abbas.
12. Mr. Makhdoom Ali Khan, learned Attorney General for Pakistan vehemently contended that the Federal Shariat Court as well as the Shariat Appellate Bench did not at all deal with the questions of jurisdiction as well as maintainability of the petitions before the Federal Shariat Court with reference to the provisions of Articles 29, 30(2), 38(f), 81(c) and 121(c) of the Constitution and have only referred to the constitutional provisions relating to jurisdiction of the Federal Shariat Court to examine fiscal laws. We have also noticed that the payment of interest finds mention in Article 161 as well as the definition of the expression ‘pension’ in Article 260 of the Constitution. Regarding the provisions of the Constitution as contained in the Principles of Policy in relation to elimination of Riba it was observed by the Federal Shariat Court that the government did not make any effort to achieve the objective set out therein and the judicial aspect of the case was not taken into consideration. In this behalf, reference may be made to the observations made by Dr. Tanzil-ur-Rahman, C.J. at page 51 of the judgment, which read as under: - “55. As to interest, Pakistan’s Constitution, 1956 provides that the State shall endeavour to eliminate Riba as early as possible (Art.28-F), but no effort was made to realize that objective. In 1962 Constitution, it was, again, provided in the principles of policy (No.18) that Riba (usury) should be eliminated. Similar provision was again made in the Constitution of 1973, (Art.38-F).”
It is also pertinent to mention that even the Shariat Appellate Bench did not examine all the jurisdictional aspects of the case in the light of the above provisions of the Constitution as a whole and confined itself to striking down certain rules relating to operation of the Consolidated Fund.
13. We have noticed that the Federal Shariat Court did not at all deal with question of applicability or otherwise of the prohibition of Riba to non-Muslims and surprisingly the Shariat Appellate Bench proceeded to hold that the prohibition applied to the non-Muslims which was not the issue before it. On this score also, the Shariat Appellate Bench ought to have remanded the case to the Federal Shariat Court to determine this question.
14. It was urged before us that the term ‘Qarz’ is confined to that type of transaction which is made in the name of Allah in the form of ‘Sadaqa’, ‘Khairaat’, i.e. almsgiving, etc. It was argued that the present system of bank accounts and investments in various schemes of the government do not involve any transaction of loan, debt or Riba and are investment simpliciter. While entering into such transactions, the investor has no compulsion and he acts voluntarily in investing his money for purposes of security as well as earning of profit and, therefore, the receipt of profit by such a person in the circumstances particularly when there is no element of exploitation (‘zulm’) which is a sine qua non in a transaction of Riba, cannot be termed as Riba. In this behalf, the cases of pensioners, widows, etc. were brought to our notice and it was urged that the continuance of the present day banking system and the government sponsored savings schemes as well as the transactions which lack ingredient of ‘Qarz’ involving ‘zulm’ (exploitation, oppression, etc.) as envisaged by the Holy Quran and Sunnah, was in the larger interest and welfare of the people. It was also urged that in case the judgment is implemented, it would lead to chaos and anarchy in the country and a duty is cast on an Islamic State to take all steps which are necessary in the public interest and the welfare of the people and avoid chaos and anarchy.
15. The Shariat Appellate Bench while proceeding to examine the fiscal questions relating to inflation, indexation, etc. made the following observation at page 734 of the judgment: - “186. In order to solve this problem, many suggestions have been proposed by different quarters, some of which are the following:- (a) That the loans should be indexed, meaning thereby, that the debtor must pay an additional amount equal to the increase in the rate of inflation during the period of borrowing.
That the loans should be tied up with gold, and it should be presumed that the one who has loaned Rs.1,000/- has actually loaned as much gold as could be purchased on that date for Rs.1,000/- and must repay as much rupees as are sufficient to purchase that much of gold.
That the loans should be tied up by a hard currency like dollar.
That the loss of the value of money should be shared by both creditors and lender in equal proportion. If the value of money has declined at a ratio of 5%, 2.5% should be paid by the debtor and the rest should be borne by the creditor, because the inflation is a phenomenon beyond the control of either of them. Being a common suffering, both should share it.
187. But we feel that this question needs a more thorough research which before its, final decision in this Court should first be initiated by different study circles of the country, especially, by the Council of Islamic Ideology and the Commission for the Islamization of Economy. Many international seminars have been held to deliberate on this issue. The papers and resolutions of these seminars should be analyzed in depth.
On the other hand, having held that this question does neither justify interest nor provides a substitute for it in the banking transactions, we do not have to resolve this issue in this case, nor does the decision about the laws under challenge depend on it. We, therefore, leave the question open for further study and research.”
In the face of the above observations and the finding of the Federal Shariat Court on the question of indexation that it was not permissible the Shariat Appellate Bench, before striking down any law, ought to have remanded the case to the Federal Shariat Court to decide the issues of inflation and indexation afresh which according to the Bench itself required elaborate discussion, research, further study and in-depth analysis of the papers and resolutions of international seminars. In this context Mr. Gilani argued that the definition of ‘Ra’sul Maal’, i.e. the principal amount which is liable to be returned in a transaction of ‘Qarz’ must be re-defined keeping in view the scope of its intrinsic value in relation to inflation so that there should be no exploitation as regards the equities of the parties.
16. We may observe here that before the Federal Shariat Court Mr. Khalid M. Ishaque, learned Sr.ASC had raised the following three contentions: - “38. Mr.Khalid Ishaque, Advocate, who appeared on 10.6.1991 on behalf of National Bank of Pakistan and State Life Insurance Corporation, filed interim written reply on behalf of his clients and raised the following pleas:-
The way the Sindh government is dealing with agriculture is very confusing. Only the two districts of Dadu and Tharparkar, as a whole, have been declared calamity-hit. As far as other districts are concerned, only a few talukas or dehs have been declared calamity-hit. It means that Sindh has refused to acknowledge the shortage of water in the canal-irrigated districts.
Most of the areas of Tharparkar and Dadu districts depend on rain for cultivation, but there has been no rain for the last three years. As a result, these areas have been suffering from drought. Moreover, the desert belt in Sanghar, Nawabshah, Khairpur, Sukkur and Ghotki has been experiencing a similar situation. As far as the canal-irrigated parts of the province are concerned, the Sindh government has refused to offer any relief for most of them. Although its different representatives/agencies have admitted that the province has suffered 30 to 70 per cent water shortage this year, which has caused agriculture a great loss.
Moreover, the announcement of relief measures for the calamity-hit areas has not been judicious. First, the announcement has come very late. Then the last year’s dues have not been remitted and the revenue department has been directed to recover them by June 30. Consequently, the revenue officials have gone on a hunt for the growers who are simply unable to pay the dues. It is a universal practice to stop the recovery of government dues and initiate relief measures for those areas which have been declared calamity-hit but the Sindh government has taken no such initiative. It should reconsider its strategy to provide relief to the growers in the areas hit by water shortage.
According to Ibrat, with the advent of the rainy season and some improvement in the availability of water in the canals, a number of breaches have occurred in watercourses. The reason behind these is weak embankments of the waterways which will not be able to withstand any further pressure of water as a result of rainfall in the water-starved province. The irrigation department should take the recent breaches as a wake-up call to strengthen the embankments of the waterways on a war footing.
Tameer-i-Sindh deplores the fact that though the Badin district has been producing almost half of the country’s oil, it remains one of the most backward areas of Pakistan. The government has failed to provide relief to the cyclone-affected people of the district whereas the oil exploration companies do not take interest in launching development projects in the area. The local people have to resort to protests even for petty jobs in the companies which refuse to pay attention to their demands. If these deplorable conditions continue to prevail, the residents of the Badin district might stop feeling proud of their oil-rich area.
Barsat writes that Peerani, the woman who had been condemned under the brutal custom of karo-kari, had requested the DSP, Daulatpur, to protect her from being killed. The DSP, instead of providing her protection, handed her over to her husband, thus paving the way for her killing. Now her grieving mother has been on hunger strike outside the Nawabshah Press Club and has also threatened self-immolation if the persons responsible for her daughter’s death are not arrested.
The daily suggests that a committee should be set up to monitor the working of the police and report daily their inefficiency or excesses, if any, to the governor so that the police performance can be improved.
Sach writes that displaying its obstinacy again, India has refused to remove its troops from the borders whereas Pakistan says that it is ready to call back its army while its neighbour also does so. President Gen Pervez Musharraf has said in an interview that Pakistan cannot afford to withdraw its troops while those of India are present on the border. Reacting to this, the Indian prime minister reiterated that his country is in no hurry for the troop withdrawal. The situation requires that the international community plays its due role in pressing India for the withdrawal, like it did to avert the threat of war in the subcontinent. As long as the troops of the two countries are on the volatile border, Pakistan-India tension cannot end.