Dr. Haider Shah

Opinion is the medium between knowledge and ignorance (Plato).


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OVER A COFFEE: Of courts and miscarriage of justice, The Daily Times, November 01, 2014

In Ziaul Haq’s era, insertions were made in chapter 15 of the penal code, categorising offences relating to religion. The non-discriminatory nature of the chapter was changed as the sensitivities of one religious community were valued much more than those of all other minorities

Dr Haider Shah

Recently, the issue of fresh elections came up before the Supreme Court (SC). Proving the pundits of doom wrong, the court trashed all petitions against the election results of 2013 and has hence shut the door for those who wanted to use the judiciary to engineer fresh elections. As the mightiest of Pakistan had a stake in this case, it attracted massive attention. There is another case that no one cares to talk much about as it does not concern any important player in the power game. It, however, threatens the life of an insignificant citizen of the country, a poor illiterate rural woman, Aasia Bibi. She is condemned to death as she was accused of blasphemy by a local maulvi after she picked a fight with bigoted women in her village over some petty water fetching issue. The Lahore High Court (LHC) recently confirmed her death penalty that had been awarded by the trial court on the basis of hearsay evidence. Her appeal now will be considered by the judges of the SC.

Miscarriage of justice is a major concern in societies where the rule of law is considered to be the foundation of their criminal justice system. Bias or fear in the minds of judges are the two main reasons that contribute towards miscarriage of justice. For instance, when the US was suffering from the slavery issue, racism was often cited by independent analysts as a cause behind biased judgements. Pakistan’s judiciary is tainted with judgments passed under the doctrine of necessity. After the restoration of Chief Justice (CJ) Iftikhar Chaudhry, we saw that the superior judiciary began rewriting its role in the public affairs of the country with many bold judgments. However, bias does not enter the judicial system through a single door. Religious faith can undermine the impartiality of a judge and fear of militants can also have a devastating effect.

There are videos available on YouTube where lawyers can be seen garlanding the killer of Salmaan Taseer. Included among those was a lawyer who was later made a judge of the High Court. In a civilised country this would have been unthinkable. How can a person accused of blasphemy ever get justice if presented before judges with such credentials? Browsing the internet once I accidentally stumbled upon a video where Justice (retd) Wajihuddin was addressing a seminar and accusing a fellow judge of being an Ahmedi. If judges carry such strong religious biases, the chances of miscarriage of justice become stronger. It is hoped that the judges in the SC will prove their independence and fearlessness beyond any doubt in cases where the defendant is powerless and a child of lesser gods.

Cases go to the SC on points of law. The Aasia Bibi case raises many such questions and the lawyers must use this opportunity to establish that the blasphemy law in its present shape contravenes our constitution. The Constitution of Pakistan, in its Article 8, declares all laws and usages in Pakistan void if they violate the fundamental rights spelt out by Articles 9-28 of the Constitution. Sometime back I had written a detailed piece on this issue. I will summarise some of the points I had earlier raised in my analysis. Our constitution derives its inspiration from the internationally recognised notion of equality of all citizens before the law. Besides guaranteeing fundamental rights like fair trial, freedom of speech and due process of law, Articles 20-22 guarantee all religious minorities of Pakistan equal rights of professing religion, running religious institutions and no discrimination in taxation matters. The upshot of specific fundamental rights is in Article 25 where all citizens have been declared equal before the law and entitled to equal protection of the law. It is therefore not difficult to conclude that our fundamental rights are based on the principal notion of equality of all citizens and even a hint of discrimination in valuing the life, liberty and dignity of any citizen would make any law, custom or usage void as per our constitution.

After the partition of India in 1947, both India and Pakistan adopted the same criminal code as one of the primary pillars of their legal systems. The chapter on religion-related offences was in line with the fundamental rights enshrined in the constitutions of both countries. Sections 295-298 of the penal codes made no distinction on the basis of religious faith and applied equally to all religious communities. They, therefore, reflected the spirit of non-discrimination guaranteed by the constitutions of the two countries. When Bangladesh came into being it also adopted this penal code and retained the same non-discriminatory provisions about religion-related offences. In Ziaul Haq’s era, insertions were made in chapter 15 of the penal code, categorising offences relating to religion. The non-discriminatory nature of the chapter was changed as the sensitivities of one religious community were valued much more than those of all other minorities. The rational scheme of one to three years of imprisonment also got lost by introduction of harsh punishments like death and life imprisonment.

Aasia’s lawyers’ prayer should ask for a declaration that the blasphemy law in its current shape is discriminatory and hence unconstitutional. The law should revert to its original shape.


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After ‘Gangnam style’ revolution ends! , Daily Times, 19/1/2013

OVER A COFFEE : After ‘Gangnam style’ revolution ends! — Dr Haider Shah

Now as the marchers have decamped and the dust has settled, we can heave some sigh of relief that the infant democracy has finally learnt how to stand on its own feet

Addressing the ‘inqilab’ (revolution) chanting crowd upon reaching Islamabad, Dr Tahirul Qadri sounded like Maximilien Robespierre of the French Revolution. It seemed that soon after the fall of the Bastille (Islamabad), ‘guillotines’ would be erected in the streets of all major cities of Pakistan, as the leader of the revolution announced the dissolution of the Assemblies. Gradually, the dharna (sit-in) turned into a camping site of holidaying families and, by the third day one could easily feel Dr Qadri pleading desperately, ‘I am a celebrity, get me out of here.’

Just as Altaf Hussain’s ‘drone’ proved to be a damp squib, Dr Qadri’s march fizzled out without achieving anything. Social media sites, including our rationalist society group, began making fun of the accord reached inside a dabba (box), so phrases like ‘dabba revolution’ and many cartoons pooh-poohed the revolutionary leader. The three days might not have shaken the world but it would also be unfair not to appreciate some positive outcomes that intentionally or unintentionally were achieved by a very unique experiment carried out by a very controversial personality of our public life. The peaceful manner in which the protest took place is a pleasant break from our past experiences. Never before did we see a crowd of this size behaving in so orderly and decent a manner. Even if religious devotion is cited as the organising force, the crowd at no moment looked outlandishly parochial. They were mostly lower middle class families and did not behave or sound like the activists of sectarian outfits or the Taliban. They seemed to be enjoying themselves while facing bravely the hardships thrown at them by the inclement weather. The active participation of women in the protest should inspire those women who always moan about gender discrimination but never leave the comfort of their living rooms to organise a suffragist movement. Towards the end, in an ironic twist, I began to like Dr Qadri. With the massive weight of Canadian nationality tied around his neck, and despite a hostile media after him constantly, he remained steadfast and singlehandedly held the whole country to ransom for so many days. Not everyone can do this.

At no moment was anyone under any illusion that Dr Qadri could pose any serious challenge to the government. On his own, Dr Qadri was more of comic relief. He, however, generated concerns and fears on two accounts. Our political history created a perception that he might be acting as a Trojan horse and would soon be followed by the real demolition squad. Both Altaf Hussain and Imran Khan kept lurking in the background as if getting ready to begin phase two of the plan. When the arrest order of Prime Minister Raja Pervez Ashraf was splashed as breaking news by the national media, my first thought was, “Et tu, Chief Justice!” The second concern was on account of the prevailing security situation of the country. A gathering of thousands in the capital is a very attractive target for any terrorist, as it would provide maximum publicity and cause serious damage to the writ of the state. Thankfully, neither fear turned into a reality in the end. Now as the marchers have decamped and the dust has settled, we can heave some sigh of relief that the infant democracy has finally learnt how to stand on its own feet and not become a bespoke suit that is regularly altered to fit the music director.

Despite the media hype created by the march and the dharna, the activity was insignificant in terms of its stated objectives. The year 2013 is very different from the earlier shameful periods of the history of Pakistan. In almost all military takeovers in the past, two favourable conditions were in operation. First, Punjab would generally remain pro-establishment and take no time in embracing the coup. Second, the opposition leaders would become willing collaborators. This time the situation is entirely different. Not only is Punjab not pro-establishment, the opposition leaders are even more united in their condemnation of any unconstitutional move. All provincial governments also remain pro-democracy and, barring a few shady personalities, the media has thrown its weight behind the democratic forces as well. In this environment, the courts will also find it extremely difficult to legitimise any extra-constitutional move by any adventurist. It, therefore, is heartening to see that Pakistan, despite all its problems, is developing democratic institutions. The stronger these institutions become, the more difficult it would be for any adventurist to derail the system.

The demands made by Dr Qadri already enjoyed national consensus. However, it was generally perceived that he wanted some unelected people to use disqualification powers under Articles 62 and 63 of the constitution as a Damocles’ sword to ensure ‘controlled democracy’ in Pakistan. It is worth noting that ‘qualifications’ and ‘disqualifications’ are essentially of two types. The first are verifiable, for example, age, nationality, and bank default as through documentary evidence these can be ascertained by any impartial forum such as the Election Commission or the courts. But the subjective ones, like ‘sagacious’, ‘patriotic’, ‘righteous’, ‘good Muslim’, etc, are non-verifiable and therefore it is better we let the collective wisdom of the electorate decide on these.

When the ‘Gangnam style’ revolution reached its conclusion and the negotiators were exchanging pleasantries, two demons were again raising their heads. In Karachi, an MQM member of parliament was gunned down by the Lashker-e-Jhangvi/Tehrik-e-Taliban Pakistan target killers. And a Supreme Court bench issued an order for the registration of a blasphemy case against Pakistan’s Ambassador to the United States Sherry Rehman for opposing the blasphemy law. When a police commando becomes Mumtaz Qadri, we are rightly worried. And we get more worried when we see lawyers garlanding Mumtaz Qadri. But we would be most worried when Mumtaz Qadri begins wearing the robe as well.

The writer teaches public policy in the UK and is the founding member of the Rationalist Society of Pakistan. He can be reached at hashah9@yahoo.com


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Blasphemy law and fundamental rights — II , Daily Times, 8 Sep, 2012

OVER A COFFEE : Blasphemy law and fundamental rights — II — Dr Haider Shah

It is often argued that people will take the law into their own hands if blasphemy offences do not carry death or life imprisonment penalties. This is an outrageously irrational argument

In the previous part published last week, the premise of this analysis was developed. It was shown that the original chapter 15 of the Pakistan Penal Code dated back to the Indian Penal Code of 1860 and was non-discriminatory towards the religious sensitivities of all communities that lived in Pakistan. The Fundamental Rights in our Constitution also follow the principle of non-discrimination and equality. However, new sections added to the original sections during Ziaul Haq’s period changed the situation completely. Let us examine the effect of these insertions. 

Section 295 declares defilement of ‘any object’ and section 295A declares outraging religious feelings as offences. Important to note is that these original sections use the words ‘any class of citizens’. The original code prescribed two years of imprisonment for both offences, which is understandable as the offence is nothing more than hurting the personal feelings of individuals, which in turn can become a potential threat to public order. In Pakistan’s penal code the first irrational change was increasing the imprisonment term to 10 years under section 295A, thus bringing it at the level of offences that involve grievous bodily harm. Section 295B however changed the whole scheme of non-discrimination by naming one particular object, i.e. the holy book of one religious community, i.e. Muslims, and prescribing the penalty of life imprisonment. This subsection reminds me of the novel Animal Farm where the animals wage a freedom movement under seven commandments, which include ‘All animals are equal.’ Once the revolution is successful, Napoleon, the leader, replaces the seven commandments with a single maxim, ‘All animals are equal, but some animals are more equal than others.’ While section 295 declares that the sensitivities of all religious communities are equal, section 295B makes it clear that Muslims are more equal as defilement of their religious object will result in life imprisonment while a similar offence against other communities will result in two years imprisonment. Similarly, under section 295C, blasphemy in the case of the Prophet (PBUH) of Muslims would result in the penalty of death or life imprisonment while similar offence with regards to the holy personalities of other religious communities would result in the maximum penalty of 10 years under section 295A. 

Section 298 and 298A further exacerbate the incidence of discrimination. While the original 298 section prescribes one year imprisonment for uttering words to wound the religious feelings of ‘any person’ (i.e. without discrimination), the new section 298A prescribes three-year imprisonment if the offence is in case of holy personalities of Muslims.

There can be two possible arguments offered by advocates of discriminatory provisions in the law. First, since the constitution has declared Islam to be the state religion, the operation of fundamental rights is subject to the injunctions of the Quran and Sunnah. My personal views notwithstanding, since the Constitution of Pakistan places this limitation, we have to honour the law as it stands today. But these advocates need to tell us which verses of the Quran prescribe the penalties of sections 295B, 295C and 298A. A video discussion between a spokesperson of Tehrik-e-Taliban and a common Pakistani is available on YouTube where the spokesperson quotes many citations from scripture and religious discourse to support all acts of extremism. Linking law making with unverifiable traditions of the past is therefore fraught with danger. While we have dispensed with the fundamental right of non-discrimination to impose a law that has no Quranic foundation, there are clearer injunctions of the Quran, e.g. prohibition of ‘riba’ (interest), which we have chosen not to enforce.

The second argument is that the law satisfies the emotional attachment of a section of Muslims. It is often argued that people will take the law into their own hands if blasphemy offences do not carry death or life imprisonment penalties. This is an outrageously irrational argument. In many parts of the country, especially in Khyber Pakhtunkhwa and Balochistan, honour killing is considered a part of local tribal norms. Often persons accused of committing honour-related offences are gunned down by rivals in the premises of courts. Does this mean that a person who is charged with an honour-related offence by a rival should be awarded the death penalty by the courts as he or she is often killed by such lunatics? Those who kill innocent citizens over enraged religious feelings are no different from those who practice honour killing. In both cases, there is a shared sense of loss of honour that instigates the commission of the crime against the body and property of others. If in the case of honour killing, the state has declared its policy of zero tolerance; why should it not show the same resolve in the case of those who take the law into their own hands over matters of religion? 

No doubt, the law alone can never ensure eradication of a social problem, but the law is also a declaration of the intent of the state. For instance, if a law against domestic violence on women or children is passed, it will not end violence overnight. It will however, clearly establish what matters of priority for the state are. The leaders of parliament have been claiming that parliament is supreme and sovereign while the judiciary tells us that it is independent and is a custodian of the constitution. Would parliament show its sovereignty by repealing blatantly discriminatory sections of chapter 15 of the Pakistan Penal Code and would the judiciary perform its custodial role by restoring the essence of equality in the criminal law of Pakistan? Hope I am not told that all are equal, but some are more equal.

The writer teaches public policy in the UK and is the founding member of the Rationalist Society of Pakistan. He can be reached at hashah9@yahoo.com


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Blasphemy law and fundamental rights — I Daily Times, 1 Sep, 2012

OVER A COFFEE : Blasphemy law and fundamental rights — I — Dr Haider Shah

All over the world, absence of discrimination on the basis of religious faith is one of the most important fundamental rights, which is also conspicuous in the Pakistani constitution

When a tree in a jungle is ablaze, no bird in the nearby trees sleeps complacently. But we have developed an uncanny ability of underestimating the nature of an impending trouble, be it a natural calamity or a storm created by our own national folly. Our inaction over blasphemy laws is one such example. In this two-part analysis, I intend to make a case for repeal of those provisions in the Pakistan Penal Code, which were inserted by Ziaul Haq by establishing that they contravene the fundamental rights guaranteed by our constitution.

The Constitution of Pakistan, vide its Article 8, declares all laws and usages in Pakistan void if they violate the fundamental rights spelt out by Articles 9 to 28 of the constitution. Comparing the language and tenor of the fundamental rights enumerated in the constitution with those found in democracies such as the US, Canada, India and the European Convention on Human Rights, it is not difficult to see that our fundamental rights derive their inspiration from the modern humanist movement. All over the world, absence of discrimination on the basis of religious faith is one of the most important fundamental rights, which is also conspicuous in the Pakistani constitution. For instance, Article 10A ensures the right to a fair trial and due process of law. Article 14 guarantees inviolability of the dignity of man and Article 19 guarantees freedom of speech. Articles 20 to 22 guarantee all religious minorities of Pakistan equal rights of professing religion, running religious institutions and no discrimination in taxation matters. The last mentioned fundamental right is important in its symbolic value as it does not honour the principle behind jazya — a long-standing usage among Muslim rulers of the past, which historically legitimised higher taxation of non-Muslims. The upshot of specific fundamental rights is in Article 25 where all citizens have been declared equal before the law and entitled to equal protection of the law. It is therefore not difficult to conclude that our fundamental rights are based on the principal notion of equality of all citizens and even a hint of discrimination in valuing the life, liberty and dignity of any citizen would make any law, custom or usage void as per our constitution.

Now let us turn to our Penal Code. Long before Pakistan was created, in the times of the Muslim rulers of India, Shariah formed the basis of the then legal framework. As the imperialism of the Arabs, Afghans and Turks gave way to European imperialism in the 16th and 17th centuries, the British emerged as the new dominant force in India. Clive was not wrong in claiming that with just 2,000 Europeans the whole of India could be subdued. After conquering a new territory and its people, every imperialist tries to develop firm roots by introducing its socio-legal structure to the area. English law, therefore, took centre-stage as the British gradually enlarged their scope from trading to revenue collection, administration and judicial functions. The penal codes today in force in India, Pakistan and Bangladesh have the common origin of the Indian Penal Code of 1860, a masterpiece of the Law Commission headed by Thomas Macaulay. Upon a plain reading of the original code, one can see a very rationalist categorisation of various crimes wherein punishments clearly correspond with the gravity of the harm done by an offence to the body, property or sensitivities of an individual or to the peace and tranquillity of society in general. In India, various religious groups have been living for thousands of years and religious bigotry has often remained a prominent source of communal violence in this part of the world. The penal code therefore contained one chapter, i.e. chapter 15, on ‘Offences relating to religion’. The chapter recognised five types of mischief in this category. First, defiling places of worship; second, hurting the feelings of a religious group by wilful acts of insult; third, disturbing religious assembly; fourth, trespassing on burial places and fifth, uttering words to hurt the religious sensitivities of others. In the common classes of both Hindus and Muslims, it was not uncommon to see that Muslims would slaughter cows in public and Hindus play loud music in front of mosques to hurt each other’s feelings. The chapter on religion-related offences therefore recognised the need for maintaining peace and was applicable to all religious communities without any discrimination.

After the partition of India in 1947, both India and Pakistan adopted the same code as one of the primary pillars of their legal system. The chapter on religion-related offences was in line with the fundamental rights enshrined in the constitution of both countries. Sections 295 to 298 of the Penal Codes made no distinction on the basis of religious faith and applied equally to all religious communities. They, therefore, reflected the spirit of non-discrimination guaranteed by the constitutions of the two countries. When Bangladesh came into being it also adopted the penal code and retained the same non-discriminatory provisions about religion-related offences. In the case of Pakistan, the period of Ziaul Haq is the source of many troubles that we encounter today. Not only was society brutally indoctrinated with jihadi propaganda, the laws of the land were also disfigured. Insertions were made in chapter 15 of the penal code, which had categorised offences relating to religion. The non-discriminatory nature of the chapter was turned upside down by the new insertions. The sensitivities of the dominant religious community were valued much more than those of all other minorities. The rational scheme of one to three years of imprisonment also got lost by introduction of harsh punishments like death and life imprisonment.

(To be continued)

The writer teaches public policy in the UK and is the founding member of the Rationalist Society of Pakistan. He can be reached at hashah9@yahoo.com