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DAWN - Opinion; October 04, 2007

October 04, 2007


A facility for fraud

By I. A. Rehman

AS the life of the National Assembly born in 2002 comes to a close, a review of its performance is in order. This Assembly, the more powerful of the two Houses of parliament, was born with a disability. The condition that only graduates were eligible to sit in it had eroded its representative character. Besides, this condition proved to be a facility for fraud and subversive of representative rule and justice both.

In the theory of democratic governance, elected representatives are not expected to be experts who can be hired on the market; they are only required to be aware of their electors’ needs and aspirations.

Thus, the dominant view is that anyone qualified to vote can be a candidate for elective office subject only to restrictions of age. The assemblies elected before Independence did pretty well although the highest educational qualification required of a poor voter (and a legislator or minister) was matriculation, while taxpayers and propertied people were not required to be literate at all.

The BA degree does not make anyone an expert. Most graduates in Pakistan know less of life and the world than a hari or a cobbler or a factory worker, and their false notions of superiority over the illiterates prevents them from appreciating the reality, except for their limited bread-and-butter concerns. Experience of the 2002-2007 parliament does not show that its members proved to be any better upholders of democratic, responsible rule than their less academically qualified predecessors, or even more efficient in a technical, purely clerical sense.

Above all, the graduation condition opened the way to corruption and crime. Court records confirm many politicians’ efforts at buying and forging degrees. And the scheme to admit madressah certificates as graduation degrees led to perhaps the greatest electoral fraud in the subcontinent’s history. The deception was detected within months of the 2002 polls, but the huge wrong has not been remedied to this day. The story of this case made the argument for abolishing the degree condition incontrovertible.

A challenge to the election of 68 parliamentarians, 65 belonging to the MMA and three to the PML (Q), was mounted in the Supreme Court in June 2003 by Advocate Aslam Khaki, who contended that the madressah sanads (certificates) the respondents had relied upon were not equivalent to graduation. The court admitted the petition and ordered notices to the Election Commission and the respondents through the Senate chairman and speakers of the national/provincial assemblies.

The petition aroused great interest as the respondents included most of the MMA members of the National Assembly. Only a couple of MMA leaders would have retained their seats if the petition was accepted.

The matter became more serious when an election tribunal of the Peshawar High Court nullified Kohat MNA Mufti Ibrar Sultan’s election, saying his sanad was not equivalent to graduation. Quite a few legal stalwarts had led arguments. The petitioner was a former federal law minister, and the attorney-general and the provincial advocate-general were summoned to assist the tribunal. The former firmly declared that madressah sanads were not equivalent to graduation and the latter agreed with him.

The Election Commission immediately called for a by-election. Although the MMA had decreed against litigation on the issue it ignored Mufti Ibrar Sultan’s petition to the Supreme Court. The court reinstated the MNA and clubbed his petition with that of Advocate Khaki. That was in July 2003.

The issue in the case was quite simple. There was no dispute about the decisions by various educational authorities that the madressah sanads had been declared equivalent to secondary board/university degrees only for teaching jobs and for no other purpose. The problem was that the Election Commission had held some sanads equivalent to graduation. Thus, the issue that needed to be determined was whether an Election Commission decision, even if made in good faith, could make lawful something that was quite unlawful.

Between July 2003 and September 2006, a number of similar cases came up before the courts. The situation became bizarre in 2005 when high courts disagreed among themselves on the eligibility of sanad-holding candidates for the offices of nazim/naib nazim. Eventually the Supreme Court ruled in August 2005 that mere sanad-holders could not become nazims.

When the Khaki case came up for hearing in September 2006 the Supreme Court ordered fresh notices to the 68 respondents through parliamentary offices. (That notices issued by the highest court could not be served for years on people who were known public figures is another matter that reflects on a major deficiency in the country’s justice system).

On this occasion Parliamentary Affairs Minister Sher Afgan caused a big surprise by appearing in the court determined to argue against the respondents and later on declared that they had absented themselves because they knew they would lose. Recently, he moved the court for early hearing.The MMA leaders did not appear in the court but frequently broadcast their views on the subject. They first said the Supreme Court had become an unconstitutional institution in view of the LFO amendments to the Constitution. Maulana Fazlur Rahman, one of the respondents, declared: ‘We, along with the religious institutions, will go to the people’s courts since we do not expect justice from “these” courts.’

An MMA leader said after the 2005 Supreme Court ruling that the verdict would not hit its MNAs because if they were disqualified the validity of the Seventeenth Amendment would become questionable. Hafiz Husain Ahmad added the MMA would not be bound by any Supreme Court verdict until the Chief Justice and other judges had taken a fresh oath under the 1973 Constitution.

It may not be proper to speculate on the judiciary’s possible role in allowing a large number of parliamentarians to unlawfully hold their seats, except for making a humble submission that the non-disposal of the sanads case is one of the most glaring examples of justice delayed amounting to justice denied. However, there are strong grounds to suspect an unholy compact between the regime and the MMA.

The challenge to the sanad-carrying parliamentarians came in the summer of 2003 while the opposition was still campaigning against General Musharraf’s election and the amendments to the Constitution vide the LFO.

The MMA played a lead role in the fierce controversies that raged throughout 2003. No reference was made to the MMA’s need of safeguards against the Damocles’ sword hanging over its leaders’ heads. It was only towards the end of the year that the government and the MMA signed an agreement in mutual interest, an agreement that must rank as one of the most curious accord documents in the world.

The result was the adoption of the Seventeenth Amendment before the year ended. The LFO received constitutional sanctity, the government agreed to constitute a National Security Council under an Act of Parliament, objections to General Musharraf’s election melted away and the MMA parliamentarians were spared an eligibility test.

Going by the Supreme Court judgment of 2005 regarding local government polls and the judgment of the Peshawar High Court Election Tribunal of 2003, which has not yet been overturned, one can say that the parliament during the Musharraf republic had more than three scores of members who were not qualified to be there, or at least whose entitlement to be in parliament was not clear beyond any shadow of doubt. And all this because of the absurd condition that candidates for election to legislatures must have somehow secured a graduation degree.

That the parliamentarians concerned might have won their seats without their certificates is most probably true. That only magnifies the establishment’s guilt in polluting public life and compromising the position of parliamentarians by insisting on a requirement that was and is totally indefensible.

Protection for women?

By Hilda Saeed

PAKISTANI women have taken giant leaps forward on the path to progress — of that, there is no doubt. Which makes it all the more reprehensible that the disturbing problem of violence and abuse of women persists, even after 60 years of nationhood.

Struggle against such violence has been ongoing: the promulgation of the Women’s Protection Act (WPA) 2006, was, therefore, welcomed by women and human rights activists with hope, but also caution. Many of us are familiar with the Islamisation process which was forced upon the nation from 1979 onwards with the introduction of the Hudood Ordinances, which prescribed barbaric punishments including public floggings and executions. Mercifully, the continued struggle against this gradually succeeded in lessening the worst impact of these laws.

Those years saw a public furor against forced conservatism. Nevertheless, conservatism spread and even little girls were covered in enveloping chaddars. Sports for girls and mixed gatherings were frowned upon. Minorities lived in fear of bigotry. Discriminatory attitudes towards women and the minorities intensified and crimes against them increased.

Sexual harassment and abuse registered an increase as well; women were reluctant to move about freely. Conception and pregnancy as a result of rape was considered evidence of adulterous behaviour. The first case to be tried under the new dispensation was that of Fehmida and Allah Bux who married against the wishes of their parents.

The consequence: a sentence of 100 lashes for Fehmida and stoning to death for Allah Bux was pronounced. More cases followed, the most unbelievable of which was that of Safia Bibi, a blind maidservant, who was raped by her employer. Her pregnancy was interpreted as evidence of adultery, and she was prescribed 100 lashes.

Those repressive laws remained firmly entrenched, and were protected by the country’s moth-eaten Constitution. In their wake, innumerable innocent women were victimised; jails became overcrowded with their implausibly large numbers. In 2005 alone, 4,621 women were imprisoned under discriminatory laws (HRCP 2006).

Unfavourable international publicity was inevitable. According to Amnesty International, ‘While a few positive changes have taken place in the arena of women’s rights, the state in Pakistan still, by and large, fails to provide adequate protection for women against abuses in the family and community.’

Human Rights Watch echoed those views: ‘Rather than responding actively to violations of women’s right to life, to security of person, the government has acted, through its police, medico-legal, prosecutorial and judicial systems to block access to redress and justice for victims of violence.’

Finally, national re-thinking, and activism by human rights, women’s rights and PPP activists, lawyers, independent jurists and journalists led to the achievement of the WPA 2006.

The act rectified one of the most conspicuous injustices of the controversial Zina Ordinance, which covered rape, gang rape and adultery. It also reduced the likelihood of false accusations of zina. Although the evidence of four adult Muslim male witnesses is still necessary to prove rape, they are now required to give evidence in court, under oath.

Rape is now also provable by circumstantial and medical evidence. As a further deterrence to child marriage, sexual intercourse with a girl, with or without her consent, is interpreted as marital rape.

Regrettably, the WPA remains within the stranglehold of the legal framework of the Hudood Ordinances. ‘The act has not challenged the role of the mullah in his efforts to institutionalise his particular brand of Islam within Pakistan’s legal system. The WPA has addressed some, and by no means all, of the glaring discriminations and injustices meted out to women by the promulgation of the Hudood Ordinances in 1979’ (HRCP 2007).

The retrogressive focus of the Hudood Ordinances seriously undermines national efforts for progress. By retaining the evidence given by four adult Muslim males, the WPA fails to recognise the status of women and minorities as equal citizens of this nation. It thus negates the efforts for gender equality by the National Commission for the Status of Women, and programmes such as the Gender Reform Action Plan.Asma Jehangir of the HRCP, states: “This act is in no way a salute to dictatorship” — rather, it is the continued struggle of human rights and women’s rights activists, and those of the PPP, which have ensured even these limited changes.

In addition to impoverishment and associated endemic problems, women further suffer sexual harassment, domestic violence, abuse and the stifling hold of tradition. Women continue to be sold, exchanged and killed, as if they were cattle. Swara, vani, jirgas, watta satta and karo kari are still prevalent, particularly in the Fata and Pata regions, and go against justice. There has been no decline in honour killings — 565 people were killed from January to December 2006, 60 of them children.

According to WAR (War Against Rape), the WPA is not being firmly implemented. Will it be yet another toothless law? After repeatedly seeking a meeting with the governor to apprise him of the crimes committed against victims of rape and gang rape, activists and victims want to demonstrate in front of the Governor’s House in Karachi. What is the use of the step forward provided by the WPA, if it cannot ensure justice for women?

A Bill on Domestic Violence against Women was summarily dismissed by the speaker of the National Assembly in 2005; another on karo kari and a third on sexual harassment are pending. In the interests of justice, why cannot these bills be made into law? If women’s views carried weight as equal citizens of this nation, the present sizeable segment of powerful criminal individuals and groups who ensure continuation of injustice would not go unpunished, nor would it be able to exert its bigoted clout.

Pakistan ratified the significant UN treaty, the Convention for the Elimination of all Forms of Discrimination Against Women (CEDAW), in 1996. This treaty can help provide gender justice to women. Eleven years have passed, but after due ratification, the treaty is collecting dust. Pakistan has not adopted any legal framework so far for translating CEDAW requirements into domestic laws. End result: a lack of awareness about the meaning of CEDAW and its outreach for bettering the lives of millions of women.

Constitutional promises of equality before the law for all, including women, ring hollow in the face of the government’s ‘blow hot, blow cold’ approach. The WPA needs to be supported with similar initiatives in combating other repressive, discriminatory laws and customs for which Pakistan has received international scorn, disparagement and contempt. No amount of ‘soft image’ peddling can work as long as such discrimination remains.

Happily, the scenario isn’t entirely bleak. A new emerging trend is that of defiance of tribal traditions. Young women follow the example of the outstanding advocate of women’s rights, Mukhtaran Mai. They refuse to be cowed down into sham marriages enforced by tribal tradition, and recently, a 22-year-old Master’s degree student Amna Niazi and her cousin took their cases to court, refusing to marry illiterate cousins to whom they had been betrothed in childhood.

A holistic approach, with comprehensive policies against discrimination of women is essential. Selective and piecemeal measures will not advance the rights of women, nor will they be effective in ending gender-based violence.

With the promise of fresh breezes of democracy blowing, can we look forward to justice?

Living in an English bubble

By Zahra Chughtai

A CERTAIN class in our society is often accused of living in a bubble. Its members exist in a rarified atmosphere, their only brush with the grimy masses being through their domestic staff. And this disconnect is only growing, not necessarily in material terms but also in a cultural and emotional sense.

Unbelievable as it may sound, a vast majority of the children of these privileged urbanites cannot speak Urdu. For them, clearly, English is their first language while Urdu is a shabby third cousin which is useful mainly for communicating with the hired help. Some very young children may initially prefer to converse in Urdu but they are soon cured of this unacceptable habit by anxious parents who are nervous about impending school admission tests. Because obviously, any school worth its salt demands that the applicant must prattle fluently in English.

An Urdu teacher in one of Karachi’s more prestigious schools once told me, ‘In all my considerable years of teaching, I have never heard two children spontaneously conversing in Urdu with each other.’

This is truly a lamentable state of affairs because no matter how effortlessly we may spout English phrases and idioms, it can never be our mother tongue. English will always remain a foreign language that was bestowed upon us and which has become our most abiding colonial legacy. We can no longer afford to reject this legacy, and mastery over the English language affords a definite edge in a competitive world.But it is not the primordial stuff of our existence. It is not the language in which our history was lived or in which our great grandmothers crooned lullabies. We have long been lamenting the lack of engaging reading material and television programmes for children in Urdu. But it is time to realise our own responsibility and stop blaming the government, society and the educational system for this dismal state of affairs.

After all, there has been a huge resurgence of religious learning for children amongst this same section of westernised urbanites. Children as young as five are flocking to Quran classes where puzzles and stories are employed as tools to draw in young minds and make religious learning enjoyable. (Incidentally, all these classes are conducted in English.) The aim is to strengthen the child’s identity as a Muslim and help him or her establish a firm moral code. These are valid concerns in a world where our children are bombarded with influences which are often difficult to control.

But what about reaffirming our cultural identity as well? What about reclaiming our language which is the most obvious manifestation of that identity? It is not only religious learning that will help preserve traditional values but also a clear sense of who we are as a nation. We must remind our children, and perhaps ourselves as well, that we own a rich heritage in a highly sophisticated language which abounds in literary works of wisdom and beauty.

It is this pride that will help future generations face challenges and carve out productive and rewarding lives. After all, if we cannot appreciate our own identity, no one will.

© DAWN Group of Newspapers, 2007