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DAWN - Opinion; June 8, 2003

June 08, 2003

Another fling at Shariat

By I.A. Rehman


THE shock waves generated by the adoption of the Enforcement of the Shariat Act by the Frontier Assembly can easily be appreciated. Apart from what the act proposes in the immediate or the long term, it raises very fundamental questions about the enforceability of the Shariat by a state authority, the desirability or otherwise of uniform codes of law and policies in the state, and the relations between the federation and its units. These are serious issues that need to be discussed in a manner unaffected by dogmatic stubbornness or arrogance of power.

The act in one part is a declaration of intent to the effect that the Shariat will be enforced in the Frontier province and, in another part, it lays down the process for realizing the declared objective. More legislation will follow in the light of recommendations of commissions on Islamization of education, economy, and the judicial system in PATA (provincially administered tribal areas). Some other objectives, such as projection of Islam by means of mass communication, protection of life, liberty and property, eradication of bribery, social evils, shamelessness and vagrancy, are presumably to be realized through administrative measures. The real issue is how this act is going to be interpreted and implemented.

In a sense, the Frontier law is meaningless and superfluous. It is a literal translation into Urdu of the Enforcement of the Shariat Act adopted by the federal parliament and gazetted on June 18, 1991. While the provincial enactment does omit some provisions of the federal act, it does not go beyond the latter. It also concedes (Section 15) that “regardless of what the Act says all legislation under it will be done in accordance with the Constitution of the Islamic Republic of Pakistan of 1973”.

Article 143 of the Constitution quite clearly lays down that if a matter is covered by federal legislation and a provincial law both, the former shall prevail and the provincial law, to the extent of inconsistency with the federal law, shall be invalid. Thus, if the Frontier act, or subsequent laws and measures adopted under it, merely say what is already there in the 1991 act or is covered by measures taken under it, the exercise becomes redundant, and if anything inconsistent with the federal law is attempted, that too will be invalid. That makes the Frontier act, at least at present, meaningless in legal terms.

At the same time, the constitutional validity of the measure is questionable. The act refers to subjects that do not appear to be within the province’s legislative domain. For example, it talks of a provincial commission’s reform of the “fiscal laws, and laws relating to taxation, insurance or banking”, which do not clearly fall within the provincial jurisdiction of law-making. It is possible that this aspect of the matter was blotted out of the Frontier regime’s view by its decision to copy the 1991 act. Similarly, the act refers to reform of the judicial system in PATA and ignores the possibility of enlarging the discrepancy in laws meant for FATA and PATA.

The first question therefore is: Why did the Frontier government consider it necessary to undertake this legislation? Three answers are possible and each leads to a disturbing controversy.

The first reason could be that the provincial government did not look at the 1991 federal act, or was unaware of it. This assumption cannot be seriously entertained because the Frontier text is a translation of the 1991 enactment. Even otherwise, provincial law-makers are supposed to ascertain, before embarking on any new legislation, whether any identical law already exists on the statute book and also whether the matter falls within its legislative jurisdiction.

The second explanation possible is that the provincial regime responded to the lack of implementation, real or perceived, of the 1991 act. That opens up the issue of options before a federating unit in case it finds that a federal law, on which it places high value, is not being fully implemented. It should be possible for the provincial government to approach the federal authority to rectify its lapse. The provincial assembly could pass a resolution requesting the federal government to ensure enforcement of the laws in question.

The matter could be raised at the Council of Common Interest. The alliance in power in the Frontier has a strong presence in the federal parliament and could use its representatives there to raise the issue. There is no evidence that the Frontier MMA leaders held any consultations with their colleagues in the federal legislatures. The enactment of a provincial law of doubtful validity was not the sole option available to them.

The third explanation is that the MMA legislators in the Frontier were aware of the superfluous nature of their piece of legislation and the lack of constitutional sanction for it but chose to proceed with their plan in order to secure two objectives — firstly, to assume the role of a vanguard in a new attempt to make Pakistan a theocratic state and, secondly, to create space for imposing socio-cultural codes of their choice on the population of the province. This explanation is the most convincing one.

This view receives strength when we look at what the Frontier law-makers have omitted from the 1991 Act. These omissions are: 1. Section 3(2) of the 1991 act protected the country’s political system (parliament, provincial assemblies, the system of government) by putting it outside the scope of the enforcement of the Shariat. No such reservation has been made in the new Frontier act. The implication is obvious. If the MMA jurisconsults so decide, they may abolish the assembly and the franchise system. The act of 1991 also protected international financial obligations and other existing obligations (sections 18 and 19). Perhaps it was decided that once you accept the supremacy of the Shariat (sec 3 in both the 1991 act and the Frontier act), such protective provisions become empty rhetoric, if not hypocritical.

2. Section 20 of the 1991 act, which protected the rights of women as guaranteed by the Constitution, has not been included in the Frontier act. One obvious conclusion is that the MMA leaders are not shy of proclaiming their resolve to keep women in bondage and are not prepared to save the constitutional guarantees available to them.

3. A minor but significant omission is that while in the 1991 act, jurists (along with ulema and other experts) were entitled to be nominated on the commissions for Islamization of education and the economy, the Frontier act has excluded them from the commissions envisaged under it. That may be taken in accord with the MMA’s view of the judiciary.

A major issue that must be faced now is whether the units of a federation can have different legal, economic and educational orders? The matter requires extended discourse. A great deal can be said about provincial rights in a democratic context, but religious purists are unlikely to respect these rights to the extent democrats do. They may not accept provincial demarcations either. Whether the Pukhtuns are prepared to lose their identity under the spell of the MMA is for them to ponder, but other provinces may have ideas of their own. However, matters relating to citizenship and criminal laws cannot be put on different levels in different parts of the federation.

An even more fundamental issue that can no longer be ignored concerns the status of the Constitution once the Shariat is proclaimed the supreme law. Common sense tells us that you can have either the constitution or the Shariah, you cannot have both. The earliest law-makers in Pakistan carefully kept the constitution out of clauses that obliged the state not to make any law that was repugnant to Islamic injunctions. A distinction between the constitution and the sub-constitutional legislation was manifest. This distinction is now threatened with erosion.

In this regard the difference between the traditional definition of Shariat and the one used in the Frontier act may be noted.

The 1991 act followed the Ziaul Haq formula while defining the Shariat as Injunctions of Islam as laid down in the Holy Quran and Sunnah, and the opinions of recognized schools of jurisprudence were to be taken into consideration. That amounted to binding the Muslims of Pakistan down to what Iqbal described as a ‘frozen fiqh’ and militated against the spirit of Islam, as understood by scholars outside the obscurantist lot.

The Frontier act defines Shariah as “injunctions mentioned in the Quran and Sunnah or derived from them”. This suggests a contemporary process of deriving injunctions from the Quran and Sunnah, which could possibly be a good thing if the interpreters of the scriptures were liberal, or turn out to be a prescription for further regression if the task was entrusted to traditionalist.

In short the Frontier assembly has thrown a challenge to undo the state as it has so far existed. This is the inevitable result of the policy of appeasing the clerics followed till 1999 and of colluding with them since then. The remedies do not lie in federal misadventures against an elected provincial government. The only way out is a return to democratic rule, freedom of the political process, and an end to the treatment of popular political leaders as pestilential, to quote a phrase aptly used by Mr Suhrawardy.

From intrigue to elections

By Kunwar Idris


WITH every passing day a haunting feeling hardens into belief that even if political bargaining were to end the current constitutional impasse, it wouldn’t end the agony of the people. Worse still, there is a growing concern whether the much-amended 1973 Constitution, with or without its LFO, can at all fulfil the expectations of the people and meet the more daunting challenges that loom ahead.

The scepticism about the constitutional compromise arises from the common knowledge that, if at all reached, it will be rooted in personal ambitions and spoils of power and not in the welfare of the people. The coalition will grow larger but weaker. The quid pro quo for supporting the Musharraf presidency and legal framework will be to condone some more crimes and loan defaults.

After all that is how the present governments at the centre and in the provinces came into being. Quite a few ministers came out of jail or from hiding or exile to join the cabinets. Some defected from their parties. The common belief is that all the alliances, whether supporting the government or opposing it, are transient formed only to serve a personal or factional purpose, to escape punishment or to garner fortunes. They will return to pursue their political careers in their own parties as soon as the fear of punishment is averted and political soothsayers and brokers reappear with new hopes and propositions.

In the past few days the focal point of political bargaining has shifted from the LFO to Islamization — from specific to nebulous; from tangible to an elusive ideal. The reasoning of its sponsors, Chaudhry Shujaat and Maulana Fazlur Rahman, that it is more important to have Islamic laws than to compel the president to resign his army commission may or may not inspire people but is bound to cause fissures both in the MMA and in the ruling coalition. An alliance break-up thus is already in sight.

The other parties, like the PPP and Nawaz Muslim League, more vehemently opposed to the LFO, may rethink strategy to take their protest from the parliament to the street. But an outcome more fateful for the country would be if President Musharraf and Prime Minister Jamali were to succumb to the Shujaat-Fazlur Rahman scheme to tide over the crisis.

A parallel and related development has been the introduction of the Sharia law in the NWFP by the MMA government in which Maulana Fazlur Rahman is the dominant force. An irked federal government is said to be contemplating action against the defiant NWFP which could be as stern as the dissolution of the assembly or a mere reprimand or counsel for restraint or, half way between the two, a proclamation of emergency (governor’s rule) to assure America and the rest of the world that the introduction of the Taliban-like code will not create a haven for the resurgent Afghan terrorists in the province.

Now, one apprehension is, and the utterances of some leaders lend support to it, that the Musharraf-Jamali government, egged on by Chaudhry Shujaat, may agree to promulgate yet another national sharia law and admit Maulana Fazlur Rahman’s JUI in the ruling coalition.

The other apprehension is that the federal government may dismiss the NWFP government for promulgating the sharia law unilaterally and in haste only to give a reactionary image to the country at a time when it desperately stands in need of international goodwill, especially America’s, in the impending talks with India.

The action of the federal government in dealing with the LFO imbroglio at the centre and with Sharia in the Frontier should be exactly opposite of what is being contemplated. While the NWFP government should be left to pursue its own vision and devices, the MMA or any of its constituents should not be admitted in the federal government.

The reasons for this recommendation are obvious and cogent. The NWFP’s Sharia Act (it is more a statement of pious intentions than a code of law) contains no idea or element for the safety or well-being of the people. Its emphasis is all on reforming the people’s morals or compelling them to follow the Islamic rituals. In that they do not need any lesson or coaxing from the government. They already practise a conservative brand of Islam, perhaps, more diligently than any other people on earth. In turn they show little concern for the belief or morals of the rulers so long as they respect them and do their job well. The sect or ethnic origin of an administrator there matters much less than in Punjab or Sindh.

The Sharia or Hisba enforced by the government authority thus would make no difference to their lives nor alleviate their misery caused by poverty and backwardness. It started with the breaking of hoardings and perhaps would end up with weekly holiday on Friday. The federal government’s intervention would only provide a peg on which the provincial administration may hang the blame of its own failure.

By making the MMA or JUI a partner at the centre and promulgating Sharia at its behest, the federal government would be creating only a Frontier-like confusion and frustration all over without making life less harsh or more tolerable for the people. Yet some lives may be lost or properties destroyed in fanatical assaults. The responsibility for all that will be readily placed on the shoulders of the majority in the coalition by its religious component.

The essence of this argument is that the centre should stay out of the NWFP and keep the religious alliance, or any of its parties, out of the federal government.

The urgency of finding an enduring and democratic solution to the constitutional deadlock, now in its eighth month, however remains. The solution does not lie in bargaining nor in boycott or long march. Even if one is hammered out, it will not be democratic; it will be short-lived and also, very likely, immoral.

The only answer lies in the president and the parliamentarians both going back to the people. The election and the referendum both were of doubtful validity and the reforms on which they were based are giving rise to ever new conflicts. The groups and the individuals who were forcibly excluded from the electoral process are challenging, not without justification, the legality and representative character of the new institutions.

Even the parliamentarians whom the new dispensation enabled to win or get nominated for their education or gender have been declared “uncivilized.” The assemblies are up in arms against the presidency and the local councils against the provincial governments.

All executive authority in the field vests in the police. The federal, provincial and district governments all pretend to control the police force and hold it accountable but in fact none does.

General elections should be called afresh in which all citizens except convicted felons and confirmed lunatics should be able to take part on an equal footing. The national and provincial legislatures should continue to work under the Constitution as it stands now till all the five assemblies and the Senate (also to be directly elected) should collectively determine the relationship of the president with the parliament and that of the provinces with the federation.

A form of government that has not worked, or has not been allowed to work, for 55 years would not work in the future either, for the ground realities have not changed. The hybrid system General Musharraf tailored is faring even worse.

The 1973 Constitution has suffered any number of amendments, and the reversal of many, yet it has held sway for less than one-third of its 30-year life span. What a system and its sanctity! It leaves one wondering whether the “vested interest” lies in the change as Dr. Aftab Ahmad suspects (Forget Presidential System — Dawn of May 26) or in the status quo.

Nuclear age amnesia

MEMORIALS in Hiroshima and Nagasaki eloquently testify that nuclear weapons are not simply a bigger, better version of conventional explosives. Yet the haze of passing time seems to have dulled congressional understanding of the ghastly difference.

Last month, the Senate bowed to Bush administration wishes and voted to repeal a 10-year-old congressional ban on the development of small nuclear weapons for tactical use on battlefields. The Senate also gave preliminary approval to $15 million for further research on a nuclear “bunker-buster” that would explode underground with yields far greater than the bomb dropped on Hiroshima. It allocated more millions for nuclear testing, in case the Pentagon decides to resume the programme suspended by President Clinton. That authorization vote, to be confirmed in later appropriations bills, puts the United States on a backward path.

The Pentagon says research is not the same as development, testing, deployment or use. All true. But once a new weapon is developed, pressure to test it and then to verify that it actually works in battle becomes great.

The military’s trumpeted success with existing precision weapons in Afghanistan and Iraq undercuts arguments that more nuclear arms are needed. Consider what the reaction of Iraqis and the world would have been if one of the precision bombs aimed at Saddam Hussein had been a small nuke.

Washington should not be showing the way to new atomic weapons that are easier to use. Anything that spurs nuclear competition will increase the number of bombs _ and bomb developers _ that can fall into the hands of an Al Qaeda. Beyond that, the world should fear an arms race that produces more nuclear weapons in perennial enemy states like India and Pakistan and unpredictable nations like North Korea.

The United States has disposed of most of its smaller, tactical nuclear weapons and has agreed with Russia to destroy many larger strategic ones as well. Pledging support for the Nuclear Nonproliferation Treaty, as the administration does, is inconsistent with developing new weapons.—Los Angeles Times

India today

By M. P. Bhandara


THERE are a multitude of similarities, yet significant differences, in common occurrences between Pakistan and North India. On differences, for example, it is nice to see women riding cycles, mopeds and motorcycles in sleeveless blouses in Amritsar, 50 miles away from Lahore but many more miles away psychologically.

The “billion bulge” of India is quite visible in the teeming bazaars, parks and almost everywhere. Even though India’s per capita income at $ 500 is about twenty or thirty dollar per capita higher than ours (We used to be per capita about a $120 higher than India in the late 1980s. This alone is a measure of how much India has gained over us economically in the past decade), yet, I think I saw more people without shoes in Delhi than in Lahore.

One of the nicest things to observe in India is that the ruling classes are far less ostentatious and pretentious than here. Simplicity is a way of life. The upper crust competes in homespun furnishings, decorations and local artefacts; many of the best houses in New Delhi have simple tiled brick floors. By contrast, the same class in Pakistan would be glorying in lodes of Bohemian glass, Chinese landscape and mother of pearl-looking white marble floors. Not surprisingly, the saving rate in India is said to be between three to four times ours.

Islamabad has more sparkle and polish than New Delhi; the magnificent British structures there — a cross between Roman, British and Mughal imperial styles — have not crumbled; they still look magnificent. The builders of Islamabad have created their own genre of imperial architectural style.

Take for example our parliamentary lodges, the Punjab House in Islamabad and the prime minister’s secretariat on Constitution Avenue. The sheer waste of space, opulence of fixtures, furniture, fabric and wholesale use of rarest marble suggest that the architect(s) must have specialized in building palaces for Saudi Arabian princes. If Pakistan was a failed state in the ‘democratic’ 90s, here is the proof in concrete. The percentage of people living below the poverty line almost doubled between 1988 and 1999 just when these structures — eyesores on the landscape — were being built. A bird’s eye view of the members’ car parks outside the Lock Sabha and our National Assembly shows up the difference even more starkly.

Churchill once famously remarked, “We make our buildings and then our buildings make us.” It appears our lawmakers in Islamabad consider it their birthright to live beyond their means and that too on a foreign overdraft.

In marked contrast to us, Indian bookshops are stacked with quality books written, and printed in India, print quality being comparable to UK standards. The best English language newspapers such as the The Statesman, Hindu and The Telegraph are sold, believe it or not, at prices between two to three rupees.

Indian software export, now in the region of ten billion dollars per annum, is the well-known success story of the past decade. But I think an even a greater success story is the Indian pharmaceutical industry, which is based largely on indigenous basic research and generic descriptions. The cost of most medicines is between 40-60 per cent of our retail chemist store price equivalents. The normalization of our trade relations under the Saarc agreements may bring down the cost of medicines and perhaps even newspapers. If the Chandigarh ‘Tribune’ be available in Lahore early morning at three rupees (sold in Amritsar at two rupees), a number of our readers of English newspapers might consider switching their newspaper allegiances.

Mahatma Gandhi is virtually forgotten in India. Forgotten in the sense that his philosophy of non-violence and truth is regarded as irrelevant to present times. He is an icon in much the same way as the Quaid and his parliamentary address of Aug. 11, 1947, are in Pakistan. The ruling BJP, which allies with radical right-wing parties such as the Shiv Sena and Vishwa Hindu Parishad and the RSS, have a strong aversion to Gandhi’s legacy. They hold him responsible for the creation of Pakistan. The Mahatama has not been forgiven for his last fast-unto-death to force the Nehru government to hand over 550 million rupees of Pakistan’s share of cash assets at the time of partition, which it was holding back.

It may be recalled that Nathu Ram Godse, Gandhi’s assassin, was a committed RSS man. India has turned right-wing. Khushwant Singh says it is India’s fascist face; I think it will remain this way for the foreseeable future. The BJP relates to the Mahatma’s legacy in much the same way as the Jamaat-i-Islami relates to the Quaid. The respective Fathers of the Nation are the skeletons in their cupboards — best consigned to benign neglect. No history book in Pakistan mentions Mahatma Gandhi’s sacrifice for Pakistan after its creation which cost him his life and perhaps the same may also be true in India; such is the fate of men of peace.

In New Delhi, the Pakistani parliamentary delegation, which recently visited India, had the honour of being invited to dinner by Mr Inder Kumar Gujral, 84-year-old (but looking more like 70), former Prime Minister of India. Born in Jhelum, he graduated from my old college: the Hailey College of Commerce in Lahore. His father was a member of Pakistan’s first Constituent Assembly (as was my father). Mr Gujral, spry with his trademark Trotsky beard, looks and talks like an academic. I don’t suppose any politician in India can remain in business if he does not accept the ‘non-negotiable’ status of at least that part of Jammu and Kashmir which is in Indian possession. Pakistan’s support for terrorists in the last decade has alienated people like Gujral, who might otherwise be more comfortable as part of a pro-Pakistan lobby.

The delegation was also privileged to meet the Grand Old Man of Indian politics — Mr Jyoti Basu, the Marxist legendary chief minister of Bengal — in Kolkata. Said to be 90, he looked at least a decade younger. Very much in command of the situation in this state, one gained the impression that nothing of substance happens in Bengal without his nod. In reply to a question, he said that land distribution to the landless was his greatest contribution to Bengal. On Marxism “it is a science which will develop further in time.”

Mr Basu complained of ISI infiltration in Bangladesh, reaching West Bengal. On the surface of things, Kolkata is a drab, run-down city with poor roads, yet its vibrant culture seeps through. It has been billed as the ‘City of Joy’, but I saw little joy, but may be, the teeming poor have a slightly better deal in Kolkata than elsewhere.

Shikarpur (Sindh)-born Ram Jeth Malani, 80, chairman of the unofficial Kashmir committee is one of India’s top-drawer lawyers that our delegation had the honour of meeting. Jeth Malani, a pre-partition law partner of the late A.K Brohi, is a public-spirited person who reaches out to Kashmiri dissidents (APHC) and even terrorists in search of a modus vivendi in Kashmir. Unlike Brohi who tended to be cold, philosophical and pro-establishment, RJM is warm, avuncular and a defender of public interest. He was active in confronting the authoritarianism of Indira Gandhi and busting corruption in high places (Bofors scandal).

RJM expressed a desire to visit Pakistan and Azad Kashmir. We gained the impression that here was a committed person of high standing, integrity and independence ideally suited to play the role of a high-level mediator or conciliator.

Top-level interlocutors enjoying the confidence of the powers that be are better positioned to grapple with problem solving in the subcontinent than bureaucrats dotting this and crossing that’s.

To sum up: the 1990s were kind to India whereas for Pakistan it was a lost decade. India’s rate of GDP growth of about six per cent was almost double ours. In 1990s Pakistan’s per capita income was $500 versus $390 for India. Today India is around $500 and Pakistan around $470. Hard-core poverty (under a dollar a day) was said to be 17 per cent in Pakistan in 1988 and by 1999 it was around 33 per cent. So much for the conventional wisdom of our ‘intelligent’ think tanks that jihadism would ‘bleed’ India in Kashmir. Apparently, it has only bled us. India today has a middle class which is more than twice the population of Pakistan. It is poised to join the global economy. It has a critical mass in the basic sciences. It has huge shortages of energy which can only be met from Central Asia passing through the continental shelf of Pakistan or its land mass.

Both China and India are poised for mega growth and wealth based largely on domestic savings and basic infrastructure. What should we do? Obviously join this club. But can we with our Taliban-type attitude? Certainly not. Take the case of Saudi Arabia sitting on the world’s largest reserve of oil. It had a per capita income of $ 20,000-plus in the early 1980, it is down to $ 5,000 today. Why? Because its basic attitudes are Taliban-like. Here is living proof that it is not oil and gold that makes a people prosperous but the skill, science and ‘beauties of the mind’. There is simply no way that Saudi Arabia (or even our NWFP) can move towards prosperity if half the population — women — are treated as despised unequal citizens.

Lastly, I draw attention to an Indian success story — story that has an immediacy for us. All public transport in Delhi — buses, taxis, scooters, etc., — operate compulsorily on CNG fuel. This has dramatically reduced vehicle pollution, which in turn has a bearing on the health of millions of people.

This great bonus for the citizenry was brought about by judicial activism of the Supreme Court of India. The moral of the story is that judicial activism in Pakistan too can better protect civil society than the legislature. Women are slaughtered in the name of so-called ‘honour killings’, labour bondage in the brick kiln business is widespread. Our public hospitals, jails, lunatic asylums are cesspools of corruption and filth. Let us learn from the Indian experience in judicial activism.”

The writer is a member of the National Assembly

murbr@isb.paknet.com.pk