| 10 August 2004 | Tuesday | 23 Jamadi-us-Saani 1425 |
Balochistan: dialogue not force
Missing a very old point
Bangla book on history launched
Studying the oil spill: Campus round-up
The right to free expression and the right to reputation are both cherished rights. Inasmuch as the law of defamation seeks to strike a balance between the two, it tends to be restrictive of the freedom of the press and other media, the instruments of mass publicity.
And if it is intended to be amended without reference to any lacuna discovered in the process of its implementation by courts of law or problems faced by the litigants, it is bound to arouse suspicion.
The proposed amendments to the Defamation Ordinance of October 2002, which attempted to codify the hitherto unwritten civil law of defamation, are apparently meant to remove certain anomalies in the parent law.
But they also increase, needlessly and unreasonably, the minimum amount of 'compensatory damages' payable by a defamer to the person defamed from Rs 50,000 to Rs 300,000. Under an original provision of the ordinance, where defamation is proved, damages shall be presumed and would follow automatically.
In default of payment, the defamer or the judgment debtor shall have to suffer (simple) imprisonment for one year instead of three months as initially provided.
Concurrently, the court may also pass an order directing the defendant to tender an apology, if acceptable to the plaintiff, and publish the same in similar manner and with the same prominence as the impugned defamatory statement without extinguishing the claim to 'compensatory damages'.
Additionally but by the same decree, the defamer may be asked to pay 'special damages' for the actual loss suffered by the plaintiff in his calling or business as a result of his defamation. No minimum or maximum amount has been specified in this respect and the special damages will vary from case to case.
Journalists, publishers and human rights organizations are rightly perturbed over the heavy burden placed on their shoulders. The ordinance, coupled with the proposed amendments, tips the balance in favour of the right to preserve and enjoy one's reputation at the cost of freedom of expression.
The quantum of punishment seems all the more excessive as the defamer's culpability under the criminal law remains intact. He can be punished with simple imprisonment for two years or with fine or with both under the Pakistan Penal Code.
The aggrieved person may proceed civilly for damages (or jail, in default) and criminally for punishment of the worngdoer with jail and fine simultaneously. (This principle of concurrent civil and criminal liability is well recognized in Britain, India and other common law countries and the USA.
An individual's right to his or her reputation is treated as quite as precious as his or her property, and its infirngement is both a public and private wrong, though it has to be reconciled with another basic, constitutionally-guaranteed right - the freedom of expression).
As for the liability of the printer, publisher, editor, reporter and distributor of a libellous statement, it has always been there. In fact, the amendment bill, which has been referred to a standing committee of the National Assembly, fails to address, rather compounds, a basic flaw in the ordinance of 2002.
It leaves out 'the author'- the originator or maker of the impugned statement - from its purview. 'Defamation' has been defined to include slander (oral or transitory defamation) but 'Actionable Defamation' has been confined to 'the publication of defamatory matter'.
Though 'publication' means 'communication of words to at least one person other than the person defamed', neither the original ordinance nor the proposed amendments specifically list 'the author' among the persons liable and assign him with any responsibility.
Actual legal proceedings are inconceivable without impleading 'the author'. The author's omission is notwithstanding the fact that the reporting and publication of substantially true accounts of certain proceedings and statements have duly been exempted and he remains exclusively responsible for his utterances.
The failure to specify the author's liability, combined with the loosely-drafted definitions of 'defamation', 'actionable defamation' and 'publication', make the law media specific. It is evidently applicable to cases wherein the press and electronic media themselves are the originators or makers of libellous comments or remarks.
As for the other proposed amendments, they are more procedural than substantive. For instance, the district and sessions judges have exclusively been conferred the jurisdiction to try suits for defamation.
The provision sought to be replaced stipulated that 'no court inferior to that of the district judge shall have jurisdiction to try cases under the this ordinance', which expression could have been construed to include high courts.
The Sindh High Court has already assigned defamation cases to the district judges irrespective of the amount involved. The amending bill upholds this interpretation of the provision.
Similarly, the trial period is to be reduced from 'six months' to '90 days'. An appeal shall lie to the high court only against the final order and within 30 days of its pronouncement. The maximum period for disposal of appeals by the high courts has been extended from 30 to 60 days. In practice, such time limits are treated as directory rather than mandatory and proceedings linger for years.
A suit under the ordinance must be instituted within six months of the defamatory publication coming to the plaintiff's knowledge. The plaint should be preceded by a 14-day legal notice to be served on the defendant within two months of the publication.
The ordinance overrides the provisions of the Limitation Act and other laws without a 'non abstante' clause. But a special law prevails over general provisions even otherwise.
Among the defences made available to the defendant by the ordinance are that the defamatory matter is a fair comment published in public interest and in good faith and as an expression of opinion rather than as an assertion of fact; that it is based on truth and was made for public good; that the plaintiff had assented to its publication; that the defendant was ready to tender a proper apology and publish the same but the offer was declined by the plaintiff; that the matter complained of is a privileged communication such as between a lawyer and a client; and that the matter is covered by absolute or qualified privilege.
Absolute privilege extends to legislative and judicial proceedings and reports at various levels. Any fair and accurate publication of parliamentary or judicial proceedings which the public may attend and statements made to proper authorities in order to procure the redress of public grievances shall have the protection of qualified privilege.
The codification of an unwritten law is generally welcome, for it makes the law and the rights and liabilities accruing under it certain. The ordinance would have been a step in the right direction had it been issued after careful consideration.
The proposed amendments do little to remove the confusion created by its provisions. The lawmakers should avail of the opportunity to revise and streamline the entire ordinance after a detailed discussion of its provisions and bring it in conformity with the socio-economic conditions prevaling in the country. Practically speaking, the ordinance has made no impact on the country's defamation regime so far.
Balochistan: dialogue not force
Commenting on the situation in Balochistan, Kawish writes that tension between the federal government and Baloch nationalists is increasing with the passage of time.
The federal cabinet has decided to use force if political efforts fail to solve the law and order problem in the province, whereas Akhtar Mengal has warned of resistance, saying that a military crackdown will not be something new for Balochistan.
The daily says that it is the responsibility of the government to maintain law and order but a sensitive situation requires an unusual approach. It adds that methods used to combat international terrorism may not be equally effective to deal with a local problem.
There is a difference between the situations in Wana and Balochistan: Wana involves a handful of foreigners who believe in and practise violence, whereas the latter situation concerns leaders who enjoy massive political and tribal support.
The paper says that the experience of East Pakistan and also of Balochistan prove that military operations have never resolved an issue. Before deciding to launch an operation in Balochistan, the government should consider whether it will be appropriate to open another front while it is engaged in the war on terrorism.
It should also be kept in mind that the target of such an operation will be a small province which already suffers from a feeling of alienation which will be intensified by the operation.
Kawish recalls that when President Gen Pervez Musharraf assumed power, he accepted that there was a sense of deprivation among small provinces and promised to take corrective measures. It was followed by a debate over provincial autonomy on the official TV channel.
The paper welcomes reports suggesting that the government plans to initiate a process of dialogue with Baloch leaders and says that it can defuse the tension. The daily also urges the government to consider nationalists' reservations over certain official policies.
Ibrat takes up the plight of women living in the Hyderabad Darul Aman and says that women in Sindh suffer from cruel customs like karo-kari in their homes and those who take refuge in a government-run shelter are subjected to atrocities.
It says that the abuse of women in Darul Aman is not a revelation because similar incidents have been reported earlier from different cities, including Hyderabad and Sukkur.
However, authorities have never taken any action against people running such shelters and done nothing to help the inmates. When the situation became unbearably harsh, seven women escaped from Darul Aman in Hyderabad.
Awami Awaz points out that Sui gas companies have asked the Oil and Gas Regulatory Authority to increase tariff and a decision in this regard is expected by the end of August or in the beginning of September.
Missing a very old point
On Dec 13, 2001, a meeting of Saarc writers was under way at Delhi's India International Centre. President K.R. Narayanan was to present the awards. And then he was abruptly asked by the security-men to leave the place quickly.
Some armed men had attacked the parliament house, he was told. President Narayanan remained unfazed and stayed on to make a small speech. He gave away the awards and left very quietly.
As the news sunk in, I turned to Mahasweta Devi, the stormy petrel of Bengali literature, who was seated next to me. Far from showing remorse over the unfortunate incident, the 78-year old lady thumped me hard on my back and admonished me.
"What is wrong with you? What is there to be sad about? I thought these boys were going to cleanse the parliament of all those rogues out there." Her impish grin was genuine and uncomplicated.
Aug 9 marks the end of UN-sponsored Decade of the Indigenous People. For a good reason I associate this day with Mahasweta Devi, a strong campaigner for the rights of India's indigenous tribes-people.
When it was inaugurated 10 years ago, the UN's idea for observing the decade was to focus on the plight of the indigenous people across the world that were devastated, trampled and dislocated by colonialism.
According to the UN estimates, there are 300 million indigenous people in the world. They include the Indians of the Americas - the Mayas of Guatemala or the Aymaras of Bolivia - the Inuit and Aleutians of the circumpolar region, the Saami of northern Europe, the Aborigines and Torres Strait Islanders of Australia, and the Maori of New Zealand.
This definition of indigenous people is inadequate for it does not include the people who were colonized or enslaved by invading hordes centuries before the advent of European colonialism.
In India, for example, the terms scheduled tribes and scheduled castes, though meant to helpfully enable affirmative action to benefit two seriously disadvantaged indigenous people, betray a brutal past. The 5000-year old caste system is a prototype of sorts of South Africa's more recent apartheid system. Ironically, India's ancient conquerors today deny this.
According to the Hindutva historiography favoured by India's ultra nationalists, Muslim rulers reduced the country's tribes-people and the erstwhile untouchable castes to their present hapless state.
According to this historiography the Dalits and the tribes-people were equal members of the ancient Hindu society, before Muslim rulers packed them off to the forests. To ensure that there is no confusion about who settled in India first, Hindutva historians have given up the description "adivasis", or ancient inhabitants, officially used for India's tribes-people to "vanvasi", or people living in forests.
Mahasweta Devi subscribes to no such sleight of hand. "The tribals are lower than the Hindu lowest class," she says. "I am not counting the privileged groups or individuals from the tribals. The privileged tribals have become like the mainstream where they have not received equal-acceptance and also, have become "detribed".
Devi's history of the more institutionalized brutalization of the tribes-people in fact begins with 1871, when the British Government of India "notified" certain tribes as "criminals" and passed the notorious "Criminal Tribes Act of 1871".
Such people were notified, who, according to the British, were nomadic cattle grazers, wandering singers, acrobats, etc. Of course they also included those who resisted the British aggression from time to time. The logic was simple.
These people lived in forests, or were nomads. Only the criminals would do this, the British concluded. As Indians follow caste professions, these mysterious people must be similarly hereditary criminals, went the logic.
Thus according to Mahasweta Devi, "history's most heinous crime" was perpetrated in this Act. From 1871-1944 the Act was amended, new areas and new communities were roped in. The itinerant traders lost their livelihood with the introduction of railways, roads and outsiders entering their lives.
In 1952, the Government of India officially "denotified" the stigmatized ones, without making any provisions for their livelihood. In 1959, the government passed the "Habitual Offenders Act", which is not much different from the "Criminal Tribes Act, 1871." From 1961, the government, through the state machineries, is publishing state-wise lists of "denotified and nomadic tribes".
The police officers posted in any state come to know who are the denotified ones. Why are the denotified communities those born in 1871? Because, between 1871 and 1952, certain communities came to be known as criminals.
The local people and the police killed them, tortured them, hounded them like beasts of prey. And, after independence, police and the political and non- political power wielders engaged them in criminal activities. They were forced to rob and steal. The police and the stolen good receivers took it all, and often had them killed.
Their stigma is the curse of their life. All over India, the denotified communities are jailed, mob-lynched, tortured to death in police lockups. Worst of all, even India's other tribals treat the denotified tribes as "expendable ones".
As the decade of the indigenous people comes to a close, the plight of India's tribal society reflects a poignant irony. In the tribal society there is no caste division, no dowry system, divorce and widow remarriage is socially sanctioned. If these are all the ideals of a mainstream civil society, in India, strangely enough, the obverse is true.
"The tribes-people are, after centuries of oppression and neglect, still so civilized! says their angry supporter. "Yet we have simply refused to recognize their worth, have made them bonded slaves in the unorganized sectors, have evicted them from land wherever we have founded industries, or built dams."
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TAILPIECE: Mumbai's construction major Shapoorji Pallonji & Co had once financed the Dilip Kumar-Madhubala starrer cinema epic Mughal-i-Azam. Trainloads of cinegoers from Pakistan had come to watch this audio-visual spectacle.
The film had grossed Rs 4 million in the first week. It had had cost Rs 15 million. The movie is now being revived by the third generation Shapoor Pallonji Mistry.
The 40-year old Mistry plans to invest Rs 50 million in the restoration, sound effects and transforming the black-and-white epic into colour! If the news reports are correct that Pakistan will allow Indian films to be shown there, we know where Mughal-i-Azam would be making its colourful splash first.
Bangla book on history launched
KARACHI: Tinkaler Atmaghati Rajniti Ar Mahmud Ali'r Zabanbandi (Three centuries of suicidal politics and Mahmud Ali's evidence), authored by renowned Bengali writer Sarkar Shahabuddin Ahmad was launched by Nazrul Academy, Karachi, at Karachi Gymkhana Club on Monday.
Mahmud Ali, federal state minister and president of Nazrul Academy, was the chief guest who described the circumstances which led the versatile writer to write this voluminous book in two parts - 700 pages and 1,000 pages - within an year and some months beginning from the historic war of Plassay in 1757 to 1975 when the maker of Bangladesh was murdered in Dhaka.
Dispelling the Indian claim that the two nation theory was dead after the fall of Dhaka and formation of Bangladesh in 1971, Mahmud Ali said that Pakistan and Bangladesh were two states of a single Muslim nation. Had it not been so, the Bengalis in 1971 would have joined West Bengal.
He said that the writer Mr Ahmad had recorded his interviews almost two years back when he had come to attend a conference on Tehrik-i-Takmeel-i-Pakistan and met him in Islamabad.
His versatility in writing the book in such a short period was amazing, the minister said, and informed the audience that a third volume of the book was also going to be prepared in near future which will include the eventful years of the subcontinent up to the present times.
In response to the demand, coming from different quarters, that the book should also be translated into Urdu and English, he said that the author had received, and thankfully accepted, a request for its Urdu translation.
It was also known that the book was lately launched at the Dhaka Press Club and was received well. The speakers, who gave their opinion on the book and expressed their warm feelings for Mr Mahmud Ali, included Anwer Zahid and Nurullah Saheb who had come to Pakistan to attend the launching ceremony.
They lauded Mahmud Ali's efforts in keeping the two parts of Pakistan united. The publication of the book revealing some facts of the most sensitive nature when East Pakistan was in turmoil was more in the interest of Pakistan itself.
Earlier, Khawaja Salman Khairuddin of Nazrul Academy welcomed the guests and gave a brief account of the Academy whose library in Karachi contained 30,000 books on various subjects. Mr Nasim Gandhi of Gymkhana Club thanked the guests.
Studying the oil spill: Campus round-up
While the report of an investigation launched by the federal government about 10 months back to know the extent of the damage caused by the Tasman Spirit's oil spill is still awaited, a separate group of scientists at the University of Karachi has detected migration of oil-pollution towards land along the coastal area close to Karachi.
The Karachi University's institute of environmental studies has recently completed drilling programme of eight bore holes along the city's Clifton beach. The scientists of the institute, who have been financed by the Higher Education Commission, collected samples at the different drill sites.
On average every hole was drilled up to a depth between 70 and 90 feet. In all, 110 samples of soil, rock and water have been collected to check for environmental degradation related to the Tasman Spirit oil spill.
The director of the institute, Dr Nayyar Alam Zaigham, says that the analyses of the collected samples have almost been completed and a report comprising results, their interpretation, pollution models for Clifton beach and recommendations will be out by the end of September.
The initial results of the research aimed at examining the flow of pollutants from the sea towards the land have shown a spread in the pollution caused by the spill.
The study shows that oil has seeped into the sand on the sea floor. Hence, there is a need to monitor the change in environmental conditions and groundwater aquifers and domestic wells in the coastal areas, it says.
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The chairman of the Research Institute of Islamic Banking and Finance, Dr Shahid Hasan, delivered a lecture on economic policies of the government at the department of international relations of the University of Karachi recently.
Discussing Pakistan's economic performance, Dr Hasan said that in view of the institutionalized corruption and structural weaknesses, it was difficult to say whether Pakistan would become an economic giant in the foreseeable future.
Referring to the economic policies of the government, he said that the poverty level had risen considerably, whereas the upper- income groups reaped enormous benefits and gains. He suggested that policies should be formulated with a long-term view to enhance exports, reduce dependence on aid and eliminate corruption.
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The Dow University of Health Sciences (DUHS) has decided to set up an institute of dental science on the premises of the Sindh Medical College. The SMC principal, Prof Noshad A Shaikh, has been appointed the director of the dental health education project.
The institute is likely to become operational later this year, and will initially take in a batch of 50 students. In the meantime, the silver jubilee convocation of the SMC is being held in the Bahria auditorium on August 12, with Sindh governor Dr Ishratul Ibad Khan and Sindh chief minister Dr Arbab Ghulam Rahim expected to attend, according to a college official.
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The duhs held an English proficiency course for FCPS-II trainees recently. The aim of language programme, conducted by retired D. J. Science College teacher Prof Moosa Kamlani, was to improve the standard and quality of postgraduate studies.
The participants of the course were selected after a pre-entry test. According to the DUHS' registrar, Dr Meher Hansotia, the course finished with a final evaluation test.