The threat of resignation

A FEW weeks ago the Muttahida Majlis-i-Amal (MMA) threatened to withdraw from the National Assembly if it passed the government’s version of the Protection of Women Bill, framed to amend the controversial Hudood Ordinance. I had the occasion to bring out some features of this ordinance last Sunday, but there is more to it, which needs to be spelled out, if we are to have a fuller understanding of the MMA’s stand.

Allow me to recapitulate briefly the argument I made earlier. First, the Hudood Ordinance is for the most part unenforceable, for the evidence (four pious male witnesses) it requires to establish guilt is virtually impossible to produce. Why then have a law that cannot be enforced? I suggested that the relevant Islamic law had two objectives: one, to discourage false accusations of sexual misconduct against chaste women; second, to forbid sexual intercourse in public places.

I suggested also that it is not God’s design to get the state and its agents involved with sexual relationships in society. Let these be a matter between the parties concerned and God. Nevertheless, if a Muslim state determines that it must police these relationships, it may do so under its own, lesser, laws and leave the “hudood” alone. A few additional observations may be in order.

The ordinance stresses the vital distinction between voluntary and coerced actions. It is a case of rape if sexual intercourse was forced upon a woman, or if her consent was obtained through coercion or deception. The ordinance also makes the distinction between the offender and his victim. But then it obliterates these distinctions when it comes to prescribing penalties. Instead of vindicating the victim, it intends to punish her as much as the rapist.

The victim under this ordinance is allowed no redress. If she goes to the police, they ask her to bring four male witnesses to the event, which she evidently cannot do. Treating her report as confession of involvement in sexual wrongdoing, they send her to prison and prosecute her. It is surely inconceivable that God in His infinite wisdom and mercy could have intended this atrocity to result from the application of His law. And, it is most deplorable that our ulema do not wish to remove this abomination.

The committee of the ulema, which reviewed the government’s draft of the Protection of Women Bill, is said to have recommended that adultery be treated as “lewdness” and punished under a provision to be placed in the Pakistan Penal Code, prescribing imprisonment up to five years plus fine. Reports saying that the MMA had accepted this committee’s suggestions are to be doubted, for it could not have agreed to a mere five-year imprisonment for adultery (instead of stoning).

The MMA, on its part, reportedly wanted to add provisions to this bill that would: (1) protect women’s right to inheritance; (2) stop forced marriages; (3) outlaw instantaneous divorce (“triple talaq”); (4) ban marriage with the Quran; (5) and forbid sale of women. These proposals are all progressive and, needless to say, they deserved to be supported.

As mentioned above, the MMA threatened to resign its seats in the National Assembly (66 of them) if it passed the bill under reference. It would do so to dissociate itself from a body that had adopted a measure contrary to the Quran and Sunnah.

This is not good reasoning. The MMA has been a part of the present National Assembly for more than three and a half years. It has been opposed to many of the things the Assembly did, and it has shown its disapproval by speaking and voting against them. It could have done the same with regard to the Protection of Women Bill. It could have denounced the bill and voted against it when it came before the House. That would have been dissociation enough, and it would have been in keeping with normal democratic process.

Considering that the government did not believe the bill violated the Quran and Sunnah, one may wonder why it did not bring the bill to the floor, open it to debate, put it to a vote, and use its clear majority in the house to pass it. Chaudhry Shujaat Hussain would appear to have believed that the issue, being Islam-related and therefore sensitive, required consensus, rather than majority approval, to settle. But consensus would not have been reached even if the government had accepted all of the MMA’s demands. Many PML-Q members, the PPP parliamentarians, and the MQM were strongly opposed to these demands. The quest for consensus is hardly ever feasible, which is why majority rule, rather than consensus, is the generally accepted norm of democratic decision-making.

There may also be another explanation of Chaudhry Shujaat Hussain’s course of action. It is possible that he was unsure in his own mind of the propriety and wisdom of amending the Hudood Ordinance. It may well be that he feels more comfortable with the traditional and conservative interpretations of Islamic injunctions. One may recall in this connection that when he was looking for partners to form a ruling coalition after the 2002 election, he declared repeatedly that his party (PML-Q) and the MMA were “natural allies.”

The threat of resignations on this particular occasion forms part of a pattern. The MMA first threatened to resign its assembly seats when General Musharraf, having been confirmed as president with its support, went back on his promise of giving up his army post. That was two years ago, and no resignations have surfaced. Then it was said to be considering resignations following the killing of Akbar Bugti. But nothing of the kind has happened. Its most recent threat was linked with the Women’s Protection Bill, and Chaudhry Shujaat Hussain may have taken it off the hook this time.

Could it be that the MMA’s talk of resignations has always been more a bluff than a serious threat? Possibly, but available information suggests also that there may be a split within the alliance. Qazi Hussain Ahmad is believed to have been serious in advocating resignations and then organising a mass movement to bring about the present regime’s ouster. He and his party (JI) do not have much of a stake in the status quo. But Maulana Fazlur Rahman and his party (JUI) do. Theirs is the dominant group in the government of NWFP and they share power in Balochistan. They like what they have: salaries, privileges, perks, influence, and jobs for their friends and followers. They have never had it so good.

Maulana Fazlur Rahman appears to be more pragmatic than Qazi Hussain Ahmad. Pragmatism may be a part of his inherited tradition. His father, the late Maulana Mufti Mahmood, formed a coalition with Abdul Wali Khan’s professedly socialist Awami National Party and served as the chief minister of NWFP. After the PNA’s anti-government movement in 1977 subsided, he was ready and willing to make a deal and work with Zulfikar Ali Bhutto.

Chaudhry Nisar Ali Khan (PML-N) says that all of the opposition leaders, with the exception of PPP, favoured the idea of resignations at a meeting held at his house in Islamabad (August 31, 2006) . But they too have little stake in the present dispensation and little to lose if their members in the assemblies (whose numbers are very small) resign.

The MMM’s latest position (September 21, 2006) is that the MMA legislators will resign only when all opposition parties come together in a “grand alliance,” all of them ready to quit the assemblies en bloc. This alliance is not going to materialise. Benazir Bhutto is in no hurry to withdraw her people from the assemblies. But more important is the fact that she does not want to join hands with the MMA in any venture. The same holds for the Sindhi and Baloch “nationalist” groups. They and the PPP declined to invite the MMA to their recent meeting in Quetta (September 19). The MMA’s decision to make further action contingent upon the formation of a “grand alliance” may then be simply a way of telling us that no action is planned.

But let us, for the sake of argument, consider the possibility that all of the 142 opposition members in the National Assembly may resign. What will happen then? It will depend partly on when the resignations are tendered. Article 224 of the Constitution implies that bye-elections are to held if seats are vacated at least 120 days before the Assembly’s term is due to expire. In other words, bye-elections will not be held unless the opposition members’ resignations become effective before June 15, 2007 (or thereabout).

A few weeks ago a member belonging to BNP resigned and a bye-election was scheduled. The same would happen if 10 or 20 members resigned. But what if 142, nearly 40 per cent of the Assembly’s total membership, left? It would surely be a dramatic event, bringing forth a lot of critical comment in the domestic and foreign media. But General Musharraf’s government has not been deterred by adverse media comment before, and the likelihood is that it will remain undaunted if the event in question does take place. It will schedule bye-elections and in the meantime the National Assembly will keep going as if nothing has happened.

Even now, while the opposition is still around, more than half of the Assembly’s membership is absent from the floor at any given time, but the “show,” such as it may be, goes on. Nor, in my reckoning, will the opposition’s departure impair the Assembly’s legal status as a competent law-making body.

Resignations and the launching of a mass movement to oust the present government have no necessary connection; one can proceed without the other. But what happens if the projected movement succeeds? Who takes charge, by which process and means, and will he hold the fair and honest election we all want? We will have to defer these issues to another time.

Email: anwarsyed@cox.net

Setting standards for lower courts

PAKISTAN’s superior judiciary has more than one side to its work and responsibility. It is, of course, the final arbiter of the Constitution and the rights of the people.

But a lesser known, though but more exacting, part of its work is to ensure that thousands of subordinate courts all over the country act justly and speedily. It is exacting not for the volume alone. It also imposes a moral responsibility. The superior courts have to set the standards that the subordinate courts follow.

That is where Pakistan’s judges failed to live up to the colonial traditions of judicial conduct. Understandably, if a judge at the top of the ladder lets state necessity (as he views it) override the law, surely necessities — less awesome but more compelling — also arise for the judge at the bottom of the court hierarchy. The exigency of necessity prevailing over the rule of law, thus, has done enormous harm to the integrity and dignity of Pakistan’s judicial system.

The story is told of a district judge in colonial Bengal, Aubery Pennel by name, who sentenced two Englishmen (one a police official and the other an engineer) to prison terms for beating a native shirker at a flood dyke. Having passed the sentence order with biting criticism of the executive officials who had tried to use their positions to save their two colleagues from the legal consequences of their misdemeanour, he set sail for a distant island in a country boat carrying the case record with him. He thus made himself inaccessible not to intruding peers alone but also to the appellate courts.

That the coolie slept while the rising tide threatened the dyke was not considered by Pennel a justification enough for the English supervisors to violate the law and also the general maxim that no Englishman should ever physically strike a native. The Calcutta high court upheld Pennel’s order but condemned the language he used and his subsequent behaviour. His punishment was transfer to unattractive Noakhali.

Aubery Pennel may have been an eccentric but he also represents the tradition coming down from colonial times that judges must go by the law and shun socialisation. This tradition lingered for some time after independence. Pakistan’s first chief justice, Sir Abdur Rashid, declined invitations to social functions from Prime Minister Liaquat Ali Khan and Justice Cornelius lived long reclusive years in Lahore’s Faletti’s hotel. Justice Kiyani attended the dinner of the CSP association once in a year but not at the Governor House.

Even at the subordinate level the civil judges generally led a socially detached life. One wonders if this is the case any more.

Over half a century, Pakistan’s superior courts have ruled on the justification of the army coups and, surely, will be called upon to do so again one day notwithstanding Gen. Musharraf’s confidence that his contrivance of a National Security Council has blocked their way for all times to come. Even if it has, one wonders how it would be any different from a coup if the army commanders sitting in the NSC were to decide to take over the government.

The doctrine of necessity may thus hold sway in the future as it has in the past for the alternative to it is none other than the charge of treason which state authority may not be able to enforce, nor has ever felt compelled to enforce, even after constitutional rule has returned. That is how the progenies of past coup leaders are not only prospering but are permanently embedded in the political power structure.

Coups and their aftermaths apart, the duty of the superior courts to safeguard the fundamental rights and to strike down laws which militate against them remains paramount in all regimes and circumstances. The courts are dutybound not to let these rights become a pawn in the politics of power. In other words, human rights are not subject to the doctrine of necessity.

The laws relating to blasphemy, desecration, women and Ahmadis are being widely debated but only for their political implications. They avoid the essential question whether they conform to the standards of human rights set out in the Constitution and in the Universal Declaration of Human Rights which Pakistan has signed and is thus bound to honour.

One feels compelled to call upon the Supreme Court now to review these laws in exercise of its suo motu jurisdiction as an issue of human rights. For the governments and the oppositions it is no more than an issue of political expediency.

The chief justice of Pakistan encourages people to bring to his notice instances of delay, corruption and harassment in the lower courts. No chief justice had done this before him. This measure is as admirable as it is unique but the demand on the complainants to produce evidence has reduced it to an empty gesture.

He can find ample evidence of all the evils that he wishes to see eradicated if he examines at random the record of a few cases investigated and tried under the Hudood Ordinance and under the penal code’s sections 295-B (defiling the Holy Quran), 295-C (defiling the sacred name of the Holy Prophet) (PBUH) and 298-B and C (Ahmadis posing as Muslims or using Islamic terms). Judicial scrutiny would also serve the higher purpose of whether these laws meet the objectives of human rights and Islamic justice.

Bush’s conception conflict

IT was, I believe, Rep. Barney Frank who first made the excellent, bitter and terribly unfair joke about conservatives who believe in a right to life that begins at conception and ends at birth.

This joke has been adapted for use against various Republican politicians ever since. In the case of President Bush, though, it appears to be literally true. Bush, as we know, believes deeply and earnestly that human life begins at conception. Even tiny embryos composed of a half-dozen microscopic cells, he thinks, have the same right to life as you and I do.

That is why he cannot bring himself to allow federal funding for research on new lines of embryonic stem cells or even for other projects in labs where stem cell research is going on. Even though these embryos are obtained from fertility clinics, where they would otherwise be destroyed anyway, and even though he appears to have no objection to the fertility clinics themselves, where these same embryos are manufactured and destroyed by the thousands — nevertheless, the much smaller number of embryos needed and destroyed in the process of developing cures for diseases such as Parkinson’s are, in effect, tiny little children whose use in this way constitutes killing a human being and therefore is intolerable.

But President Bush does not believe that the deaths of all little children as a result of US policy are, in effect, murder. He thinks that some, while very unfortunate, are also inevitable and essential.

You know who I mean. Close to 50,000 Iraqi civilians have died so far as a direct result of our invasion and occupation of their country, in order to liberate them. The numbers are increasing as the country slides into chaos: more than 6,500 in July and August alone. These numbers are from reliable sources and are not seriously contested. They include many who were tortured and then killed, along with others blown up less personally by car bombs and suicide bombers.

The number does not include the hundreds of thousands who have died prematurely as a result of a decade and a half of war and embargos imposed on the Iraqi economy. Nor does it include soldiers on both sides, most of whom are innocent, too. Last week the number of American soldiers killed in Iraq and Afghanistan surpassed the number of people who died in the terrorist attacks of Sept. 11, 2001.

Bush is right, of course, that the inevitable loss of innocent life in wartime cannot be a reason not to go to war or a reason not to fight that war in a way intended to win. Eggs, omelets and all that.

“Collateral damage” should be a consideration weighed in the balance. But there is no formula to determine when you have the balance right. It does seem to me that both our wars in Iraq were started and conducted with insufficient consideration for the cost in innocent blood. Callousness, naivete and isolation — isolation of the decision makers from democratic accountability and isolation of citizens from the consequences, or even the awareness, of what is being done in their name — all have played a role. I don’t see anything coming out of this war that is worth 50,000 innocent lives, although a case can be made, I guess.

But it is hard — indeed, I would say it is impossible — to reconcile Bush’s absolutism over allegedly human life when it is a clump of unknowing, unfeeling cells with his sophisticated, if not cavalier, attitude toward the loss of innocent human life when it is children and adults in Iraq.

In all discussions weighing the cost of something or other in terms of human life, a philosopher pops up at this point and says that the crucial difference is a matter of intentions. Terrorists purposely target innocent civilians. We try hard not to kill innocent civilians, even if we know it can’t be avoided. They’re worse, even if our score is sadly higher.

But are stem cells any different? Stem cell researchers don’t want to kill embryos. They know that the deaths of embryos are a consequence of what they do, and they think that curing terrible diseases is worth it — just as President Bush thinks that bringing democracy to Iraq is worth it. In the case of stem cells, there is the added element that the embryos in question will be killed anyway (or pointlessly frozen indefinitely) if they are not used for research. And — oh, yes — there is still the question of whether a clump of a half-dozen cells you can’t see without a microscope is actually a human being in the same sense as a 6-year-old girl blown up as she skips off to kindergarten in Baghdad.

A commander in chief who must face life-or-death questions such as these deserves a bit of sympathy. I would sympathize more with Bush if his answers weren’t so preening and struggle-free. It is wonderful to be so morally pure that you won’t allow a single embryo to be destroyed in the quest for medical cures that could save lives by the thousands. You are way beyond Gandhi, sweeping the path ahead to avoid stepping on an insect: Insects have more human characteristics than a six-cell embryo.

And regarding Iraq you are quite the man, aren’t you, “making the tough decisions.” A regular Harry Truman, consigning thousands to death in order to bring democracy and freedom and peace to millions. But Truman actually produced democracy and freedom and peace, whereas you want credit for your hopes. That’s not how it works. If you want to be the hard-ass, you get judged by results. And you can’t be Gandhi and Truman at the same time. —Dawn/Washington Post Service