| 07 March 2004 | Sunday | 15 Muharram 1425 |
Sectarianism and state policy
Some exponents of liberal democracy assume that men are "endowed by their Creator with inalienable rights," and that they did not surrender these to government when they created it to remove certain inconveniences and provide named services. This premise, elegantly stated first in the American Declaration of Independence, later formed the basis of the first ten amendments to the American constitution (known as the Bill of Rights), and much later led the United Nations to adopt the Universal Declaration of Human Rights in December 1948. Since then several nations have included a list of "fundamental rights" in their constitutions.
In the American case the rights were affirmed in unequivocal language and placed beyond easy encroachment by governments. The first amendment, for instance, lays down that: "Congress shall make no law ... abridging the freedom of speech, or the press; or the right of the people peaceably to assemble." None of the other rights (relating to religious belief and practice, privacy, trial by jury, double jeopardy, searches and seizures, deprivation of life, liberty, and property without due process of law) is hedged by qualifications that might have the effect of negating it.
Fundamental rights are reasonably secure where democratic values are firmly entrenched in the relevant political culture. This is not the case in the subcontinent. The constitutions of both India and Pakistan provide for fundamental rights but in each case the accompanying reservations have the effect of virtually nullifying the award.
The rights to have privacy of home, own and hold property, profess and preach one's religion, move freely within the country, assemble peacefully, form and join associations may be placed under "reasonable restrictions" imposed by law for one or more of the following considerations: public interest, public order, morality, decency, sovereignty or integrity of the state. Additional grounds for restricting the freedom of speech and expression, and that of the press, derive from the state's interest in the "glory of Islam" and its relations with foreign nations. (Constitution of Pakistan, Articles 10, 14-17, 19-20, 23)
The requirement that a person under arrest must be informed of the grounds for his arrest ("as soon as it may be"), and that he is to be produced before a magistrate within twenty-fours hours, does not apply to persons held under a preventive detention law. The chapter on fundamental rights in our Constitution provides considerable detail on the subject. Laws providing for preventive detention may be made to deal with persons who are likely to act in a manner prejudicial to the country's integrity, security, defence, public order, or external relations.
A person held under such a law may be kept in detention for a period of three months and, subject to the concurrence of a review board, for longer periods; eight to twelve months in cases of a presumed threat to public order. The government may, or may not, disclose to him, or even to a review board, the facts supporting the charge if the detaining authority believes disclosure would hurt the public interest.
Laws may be made specifically to provide for preventive detention, such as the Preventive Detention Act of 1950 in India, but provision for such detention may also be written into laws dealing primarily with other subjects; more often those relating to security and public order. Defence of Pakistan Rules, a variety of central and provincial "safety acts," the Security of Pakistan Act, the Maintenance of Public Order Act, Terrorist Affected Areas (special courts) Ordinance (1991), and the Anti-Terrorism Act (1997) belong to this category. Similar laws exist in India and Bangladesh.
These laws, being "preventive," are invoked to arrest and detain persons before they have actually committed a crime. This happens if a designated official "believes," "suspects," or has formed the "opinion" that the persons concerned are likely to violate the law. The grounds for action can be insubstantial and nebulous.
In the case of India, an amendment to Article 22 of the constitution took care of this problem by providing that a detention order would not be deemed invalid if one or more of the grounds were found to be non-existent, vague, irrelevant, or otherwise inadequate. It is enough that the detaining authority is "satisfied" that they are sufficient. This may not have been done formally in Pakistan, but we can be sure that the actual practice here is essentially the same.
It is noteworthy that opposition parties in the subcontinent condemn preventive detention laws and promise to repeal them if and when they come to power. But the laws have remained in force regardless of who governed. Whatever their main concern, they have been used on a large scale to put away the regime's opponents. In Bangladesh the Awami League and the Bangladesh Nationalist Party, when in power, have detained thousands of the other party's activists under the Special Powers Act (1974), which was passed, professedly, to curb black marketeering.
The Indian government has kept many thousands of dissidents in Kashmir, and quite a few elsewhere, in preventive detention. It is likely that the number of political prisoners in Pakistan at any given time is also substantial.
Grounds for restricting the exercise of fundamental rights and freedoms, and those for preventive detention, in both Pakistan and India can be imprecise, even frivolous. As such they admit of virtually unbounded arbitrariness on the part of executive officials and an enormous amount of abuse. Granted that anyone advocating a constituent unit's secession, organizing a mass movement or raising an armed force to bring it about, is threatening the security and integrity of Pakistan. But is someone, like Mr Mumtaz Bhutto, who would convert Pakistan into a confederation, doing the same?
One may argue that, yes, he is, for as we know confederations do not last long as states. It is not without reason that no state in the world today is a confederal union. Switzerland is a confederation, but only in name; actually, it is a federal union. But this does not mean that the advocates of a confederal system wish to break up Pakistan. They believe this is a better way of preserving it. The worst that may then be said of them is that they are mistaken.
Public interest, public order, external relations, morality, decency, and the "glory of Islam" are equally infirm as grounds for restricting rights or for authorizing preventive detention. Supposing a non-Muslim Pakistani says that Islam is not necessarily the greatest of all religions. (Being a non-Muslim, what else can he say?) Militants may accuse him of detracting from the "glory of Islam." Arresting and detaining him for that reason is in effect punishing him for being a non-Muslim. Surely that is not a practice we wish to adopt.
The Taliban assaulted Afghan women for violating their notions of morality and decency. Their sympathizers would like to do the same in Pakistan. Many Pakistanis stay cool and calm, perhaps even cheerful, when they see women going about in half sleeves or wearing "shalwars" that show their ankles. It is reckless to use decency and morality as grounds for punitive action unless they are defined in specific terms. It is one thing to say that women are not to appear in public in "two-piece" bathing suits, and quite another to require them to dress "modestly" (which is neither here nor there).
The idea of the public interest also lends itself to numerous interpretations. General Musharraf and his supporters believe that the public interest requires his continuance in office. The Alliance for the Restoration of Democracy (ARD), on the other hand, maintains that his ouster from office as soon as possible is in the highest public interest. There is probably something to be said for both sides. It would then be wrong to place the ARD spokesmen under detention.
Judges in Pakistan have made some effort to reduce the element of vagueness in the grounds for restricting fundamental rights. In 1964 the Supreme Court voided the government's dissolution of the Jamaat-i-Islami, saying that it could not deprive a political party of the right to function merely on the basis of its "opinion" that the party endangered public order. In the Ghulam Jilani case (1967) the court held that the government could not detain him only because it was "satisfied" that his detention served the public interest. Grounds had to be "reasonable."
The court's insistence on reasonableness was not much of an improvement, for the term is equally open to varying interpretations. Its ruling would serve only to transfer to the judiciary the authority to determine the adequacy of the grounds for detention, something that the executive had no intention of allowing to happen. The police and higher civil servants have many ways of ignoring the judges and evading their directives.
Note also that in Pakistan these officials are not the only ones who detain persons deemed to be troublesome. The intelligence agencies have also taken on this mission and, since they and their operations are secret, it is that much easier for them to keep their detainees beyond the reach of the courts.
Wide-ranging authority to restrict the exercise of fundamental rights and to impose preventive detention works to allow, even encourage, arbitrariness on the part of governments and their functionaries. Considering that this authority has been granted by the constitution itself in Pakistan, India, and Bangladesh, one may venture to suggest that the framers in each case did not really want their bestowal of rights to be taken seriously.
They put in a list of them primarily for the sake of appearances. No wonder then that the status of fundamental rights in the subcontinent remains precarious. It is also a testimony to the longevity of its authoritarian tradition that the constitution, in each case, takes away with one hand that which it gives with the other.
The writer is professor emeritus of political science at the University of Massachusetts at Amherst, USA.
E-mail: anwarsyed@cox.net
Sectarianism and state policy
Presumably, the carnage at Quetta must have left the president and the prime minister not just sad but enraged. Only a day earlier they had jointly expressed satisfaction on the state of law and order and preparedness to prevent its breach as the Muharrum mourning reaches its culmination.
The ritual grieving over, the dead buried and compensation paid to the bereaved, the president and the prime minister, before they sink back into their politics of reforms, must ponder long and hard how and why the sectarian strife has become a central feature of Pakistan's life. And how in their time of professedly liberal (not secular, for that is tabooed) outlook it has been aggravating. The Quetta killings of last Tuesday were more numerous and cold blooded than ever seen before. The initial reports suggest there was no provocation not even an argument, it was a one-sided massacre of unwary mourners.
Not a routine enquiry with its long course and uncertain outcome but a fundamental change in the state policy will reverse the rising tide of this bloody sectarianism. No enquiry howsoever high its level or severe its indictment has prevented the recurrence of religious violence in the past nor will it this time round for the hatred and suspicion which nurture it are built into the legal, electoral and political systems of the country. The enquiries inspire no confidence among the victims nor would deter the assassins of the future.
In 1947 we started with the resolve that the first duty of the newly-independent state would be to maintain law and order so that the life and property of its citizens are safe and, secondly, religion will have nothing to do with the business of the state. This was not a mere resolve but an article of the state policy spelled out by the founder of Pakistan himself to the people and makers of the basic law.
In 57 years we have turned this principle upside down. Law and order has become the last duty of the state and religion its first business. It is continuing neglect of law and order by the state and burgeoning fanaticism under its patronage which has spawned religious hatred. The Quetta massacre is the latest and most tragic manifestation of this policy both in brutality and loss of life - quite a few among the 50 or so dead and a large number wounded were children.
There are many claimants to power and privilege that flow from control over the law and order institutions but no one is willing to own responsibility or to receive blame for lawlessness and disorder. It is no longer a view of the cynics alone. The Chief Justice of Pakistan, too, in a recent obiter dictum has affirmed that the arrangement for law and order introduced under the new local government and police laws has made it worse.
The intervention of the government in matters religious has weakened the writ of the law and entry of the clergy in politics has diminished its moral influence over the community. The government, at one time or the other, tends to become an ally of religious parties which are essentially parochial in character for their hard core arises from a particular sect or school of thought. The institutions of the state thus get involved in sectarian politics.
The long running civil war in Afghanistan pitched Pakistan against the predominantly Shia north. The international pressure and national interest persuaded the government of Pakistan to switch its support from the militant Taliban to moderate Northern Alliance but not so persuaded were the religious elements dominating the Balochistan government.
The Shias, it seems, have become the victims of religious politics that straddles the frontiers of Pakistan and Afghanistan. In recent months it is their third massacre in Quetta alone. Nothing whatever came out of the executive action or judicial enquiry that followed the previous two incidents, nor would in this one.
The perpetrators of numerous other random or targeted killings of the members belonging to other sects and religions have similarly gone untraced and unpunished. The government and the people are left only to wait and see how soon and severe is the next round of killings. The assurances coming even from the highest level that the culprits will be given exemplary punishment thus are meant to be shrugged away for the culprits have to be caught before an example is made of them. That rarely if ever happens.
In its short history, Pakistan has experienced a variety of stresses which in course of time have tended to subside or, at least, lose their violent edge. The sentiments of race, region, language and profession persist and the deprivations related to them do lead to outbursts which can be angry but seldom bloody.
The religious or sectarian sentiment however tells a different story. The doctrinal differences overlaid by dogma and bigotry are a source of perennial and growing stress on national life. Violence is never far from the surface and the toll of life and property it takes is heavy.
In a manner of speaking, the religious elements in politics have held the peace and progress of the community hostage under every government to a varying degree. Every government either dithered or balked at acting against them for it needed their support in countering the aspirations of the progressive sections of society.
Ziaul Haq's policy made clerics and seminarians into fighters. The weapons and money they acquired are now being used against their sectarian rivals. The age-old schism thus has been converted into warfare inflicting enormous pain and grief on a people who feel the government should worry about their welfare and not about their religious belief.
The involvement of the state in religion has inevitable bearing on the working of the bureaucracy and its more independent institutions like the judiciary and the election commission. At present the civil servants in NWFP, for instance, cannot be seen to be acting in the same manner and pursuing the same policy as their colleagues in Sindh would be doing. The neutrality of civil servants, already under siege, is thus exposed to greater danger.
More worrying however is the effect on the courts and election machinery. The trials under the blasphemy, Hudood and posing-as-Muslim laws enacted by Ziaul Haq and the murder of the alleged offenders and dissenters, in prisons or on the streets, before judicial verdicts, all have lowered the dignity and fairness of our judicial system.
Likewise, the election commission agreeing under the pressure of some religious groups to prepare a separate roll for a minority group when all citizens irrespective of their belief have to vote for the same candidate and can also contest from the same constituency is legally absurd and morally reprehensible. The world has not failed to make a note of it.
Lastly, because of religion weighing heavily on its domestic policies and international obligations, Pakistan remains for ever vulnerable to the charge of terrorism and now also of nuclear proliferation. That is just a step short of being a pariah. The moment has now arrived to keep the government and religion apart. It will do good to both.