Politics of religion in Pakistani law [1st edition.] 9789695624166, 9695624162

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Politics of religion in Pakistani law [1st edition.]
 9789695624166, 9695624162

  • Commentary
  • This book is about critically analyzing those laws of Pakistan which we have made apparently in accordance with Islam. The study is meant to consider as to whether we have done it well or not? Have we put reason in the service of religion or against it? Can the laws based on Islam, the religion of reason and nature, be unreasonable? Societies take positions according to their circumstances, which they later have to vary in accordance with the needs of the time. This happens when intelligentsia of the society comes out with novel ideas, which in time get accepted by the society. Such ideological transformations, however, cannot take place if a stance is legalized. Legalizing a social stance is like fossilizing it. This situation produces a scenario where society, even if it decides to evolve with the changing times, has to carry the burden of such time-frozen concepts.

Table of contents :
1. Marriage : the laws of mating 2. Death penalty : medical or legal? 3. Worst among equals : Ahmadis of Pakistan 4. Shufa : a dead law walking

Citation preview

Politics of Religion in Pakistani Law

Tipu Salman Makhdoom

2nd Edition 2016 Copyright © 2016 All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the Author. ABOUT AUTHOR

Author is Advocate of Supreme Court of Pakistan and also teaches law. Along with law, he is interested in history, philosophy, literature, science and art. He has extensively written in newspapers and journals on law, politics and art. He has also been trying to learn music and painting; to quite disastrous results!

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Contents Preface …………………………………………….……………….6 Chapter 1 MARRIAGE: The Laws of Mating 1. Marriage as a Control of Biology: ………………………………… 10 2. Legal License to Impunity: Marriage ………………………………13 3. Economics of Marriage: ……………………………………………..34 4. Conclusion: …………………………………………………………...38

Chapter 2 DEATH PENALTY: Medical or Legal? 1. Introduction: …………………………………………………….……39 2. Punishment & Its Evolution: …………………………………….….41 2.1. What is Punishment? ………………………………………...……43 2.2. Historical Development of Punishment: ………………………...44 2.3. Philosophical Basis of Punishment: ………………………………45 2.4. Justification of Punishment: ……………………………………….46 2.5. Punishment: What and How Much? ……………………………..48 3. Philosophical Justification of State Killing: ………………………..50 3.1. Utility of Death Penalty: ………………………………………...…54 3.2. European Union & United States of America: …………………..59 4. Concept of Human Rights: ………………………………………….62 4.1. Human Rights Are Basic Rights: ………………………………….63 4.2. Origins and Evolution of Human Rights: ……………………..…64 4.3. Second World War Human Rights: ………………………….……68 4.4. Postmodern View of Human Rights: …………………………..….69 5. Human Rights in Pakistan Constitution: …………………………70 5.1. Pakistan & Islam: …………………………………………………….72 6. Legal Fiction-Medical Death VS Legal Death: …………………….77 7. Conclusion: …………………………………………………,,,,.……..81

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Chapter 3 WORST AMONG EQUALS: Ahmadis of Pakistan 1. Introduction: …………………………………………………………..84 2. Politics of Religion: …………………………………………………..86 3. Ahmadis: Legality of Spirituality: ………………………………….89 4. Constitution, Penal Code and UDHR ……………………………….97 5. Conclusion: ……………………………………………………………103

Chapter 4 SHUFA: A Dead Law Walking 1. Who are we? …………………………………………………………..105 2. Right, Law & Property: ……………………………………………..106 3. Fundamental Right & Property: …………………………………..107 4. What is Pre-Emption Anyway: ……………………………………109 5. Why Do We Have this Law? ………………………………………111 6. This is Islamic Right as Well! ……………………………………….113 7. How Did It Land with Us? …………………………………………116 8. We still have It? …………………………………………………….118 9. Do We Need this Law? …………………………………………….119 10. Why Can‘t We Get Rid of It? ………………………………………121 11. The Way Forward: …………………………………………………124

Bibliography ……………………………………………………..128 Dedication …………………………………………………………....140 Acknowledgements …………………………………………………141

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Preface It is mind boggling as to how Indian Muslims voted secular Muhammad Ali Jinnah and his political party Muslim League in 1946, for creation of an Islamic state when such Muslim stalwarts as Maulana Abul Kalam Azad and Maulana Abul Ala Maududi were against it? It is also awkward to reason as to why suddenly Indian Muslims found Indian Hindus their uninhabitable neighbours when they were living amicably for the last one thousand years? It is also disturbing to encounter sudden vanishing of socialist movement from Pakistan in the decade of 1970s. Such questions arise in mind because they are not addressed in the history books that we are made to read in our curriculums; even to the master‘s level. These questions, though intriguing, yet are not the subject matter of this book. The issues being addressed in this book, however, are not unrelated altogether. This book deals with four major issues which are in fact social issues but have been locked into legal chains. Theme of this book is that societies take stances on several issues according to the needs of the time. However since, as they say, there is nothing constant but change, societies keep on varying their stances, again, in accordance with the needs of the time. This happens when circumstances change and the intelligentsia of the society come out with a new thought which in time gets accepted by the society. Such ideological transformations cannot however take place if a stance is legalized. Legalizing a social stance is like fossilizing it. In some such cases we have even taken another step; we have Constitutionalized some of our issues. Interestingly, perhaps given the situation that we do not consider Constitution as a very stable document, we have further Islamicized some of such issues. This situation has produced a scenario where society, if it decides to evolve with the times, has to carry the burden of such time-frozen concepts.

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The argument being developed here is that it is not healthy for the natural growth of the society as it gives rise to anomalies. These anomalies, in time not only affect the area of these fossilized concepts but play their role in the development of the society as a whole. Idealism as an ideology has to play its part to give a direction to the society. This direction envisages moving in a higher direction. If by some sheer good luck, or perhaps bad luck, an ideal of the society is achieved, it is time to be imaginative and produce new and further higher ideals to be achieved. What we have done is quite the opposite. After achieving rather an unachievable goal in the shape of creation of Pakistan, we got nervous and insecure. Instead of leaving the burden of our past ideologies in the echelons of history, we got boggled up in the criticism of our idealism which we had already managed to achieve. Whether the idea of Pakistan in the shape of division of India in the name of Islam was right or wrong is no more a live question. It is now more of an academic question; to be sought answer of by the coming generations to discover, analyze and decide whether it will be a good idea to repeat it anywhere in the world in future, or not. The answer to this question, either way cannot have any implication on Pakistan movement or for that matter on Pakistan itself. Even if it is proved, for the sake of argument, that the creation of Pakistan was not the right decision, nothing is going to happen to the state of Pakistan. Emergence of Pakistan was based on the success or failure of the Pakistan ideology but the existence of Pakistan is not. Proof of redundancy of the Pakistan ideology, even if achieved now, will neither wipe out the state of Pakistan nor will it merge Pakistan back into India. There is no need to get touchy about it. Yet we are! We have taken the Pakistan ideology on our shoulders and made it a reality. It was a great achievement. Now, however, it is no more required to keep the burden. But we have failed to shed it. We have clung our identity with the ideology of

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Pakistan, with the idea that India should have been divided on religious basis. We have to accept that this is not the base of our identity, not any more. On the creation of Pakistan, an ideal was achieved. After this we proved to be unimaginative and insecure. We have failed to create new ideal, new identity and new world view. Our world view is still imprisoned in the idea of a Muslim nationality as against the Indian nationality. No one is interested in this particular identity of ours any more. Specially uninterested is future history. Whether we were a different nation in united India, on the basis of our religion, or not was relevant before 14th of August, 1947. After this day, with the creation of Pakistan, it has become irrelevant for our future existence. What is now relevant is how we behave in our present scenario. Track record of our post-independence behavior is bleak. We have not done anything to be proud of. We failed democracy and repeatedly entertained martial laws. We failed federalism and thus lost our eastern wing, now the sovereign state of Bangladesh. We failed socialist movement and declared leftist liberals as traitors, great poet Faiz Ahmed Faiz included. We failed education and science and shunned away such giants as Eqbal Ahmad and Pakistani Noble Laureate Dr. Abdas Salam; who remains the only Noble prize winner in the field of hard core sciences not only in Pakistan but in the entire Muslim world (although he is not a Muslim according to our Constitution), even till today. We failed peace and sided with religious fundamentalism and in its name, terrorism. Pakistan ideology was not wrong; we are! In order to become a healthy progressive society, we need to mend our ways. Our thinking is often a botched up affair. This is the result of low standard of education, even at the highest level in our Schools and Universities, and over emphasis on religious morals in our routine thinking. While rotten education system has produced a generation of incompetent

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Civil Servants, Military Officers, Judges, Doctors, Lawyers and Engineers, etc, it has also produced a whole general of incompetent teachers. The result is that our educational institutions have been turned into cramming centers and even the Masters and Doctorate degrees are awarded on the basis of memorizing information instead of gaining and producing knowledge. Interpreting religious morals as rules which cannot be changed and thus are beyond the reach of reason and reality only reinforces this disastrous mindset. Over the decades we have created an education system which systematically destroys critical abilities of the students. Instead of teaching reason and logic to the students, education engrains in them blind following of authority. Result is a society teeming with literate and illiterate ignorant and idiots, many of whom are occupying positions of extreme power and authority. This has now created a vicious circle of ignorance and perverseness. Truth, by its very definition, is that which is in accordance with reality. Any information, conception or ideology devoid of reality has to be false. And any behavior based on any such antireality information, conception or ideology will certainly be destructive. In order to dig out our reality; the reality of our identity and the reality of our circumstances, we need to think deep. Deep, hard and harsh. This book is about critically analyzing those laws of Pakistan, which we have made apparently in accordance with Islam. The study is meant to consider as to whether we have done it well or not? Have we put reason in the service of religion or against it? Can the laws based on Islam, the religion of reason and nature, be unreasonable? Makhdoom Tipu Salman e-mail: [email protected] http://tsmthinkingloud.blogspot.com

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Chapter 1

MARRIAGE The Laws of Mating 1. Marriage as a Control of Biology: Sex is good for health. Very good in fact. Not only for body, but also for brain, which incidentally is the largest sex organ in human body. Scientific studies in this regard have been voluptuous. One set of studies shows that men who reported highest frequency of orgasm enjoyed life expectancy 200 percent more than those who lagged behind? Another set indicates that men who had sex at least 3 times a week slashed their heart attack risk to half. Yet other studies demonstrate that frequency of sexual activity is directly proportional to the lower risk of breast cancer in women and that of prostate cancer in men.1 But sex has been a major social challenge since the dawn of civilization. In order to avoid social disruption resulting from individual friction, society has always striven to tame & control individual social behavior; primal being male desire to have indiscriminate sex, even with the females of other males. For centuries men were considered polygamous, if not cheaters, by nature. Accepting this evilness as a part of their natures, a compromise was struck by the social morality. Thus social norms were devised and red light areas were tolerated to satisfy men‘s unruly disposition at the cost of keeping the fabric of society. Though traditional wisdom was perhaps right about the natural inclination of men to cohabit more and more women, they were wrong about the cause of it. Modern evolutionary theories indicate that this adulterous behavior of men can be networked in their 1

Daniel G. Amen, M.D., Making A Good Brain Great, Three Rivers Press, New York, 2005, 134-135.

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genes, with an evolutionary cause, if not a justification. Survival is a universal natural drive found in every life form. With the emergence of the bulging logical brain, the frontal lobe in humans, this drive is thought to have developed into a desire for immortality. While the intellect tries to achieve immortality of its ideas, biology‘s goal is immortality of its genes. The best way for such an immortalization in case of ideas is to make them interesting and useful, and in case of biology is to make sure that the genes are transferred in the children. Since man and woman contribute differently in procreation, their strategies for ensuring the transference and survival of their genes in next generation also evolved on different lines. A woman ensures transference of her genes in the next generation by getting the genetically superior sperms for fertilization of her egg so that her genes are transferred in a ‗survival of the fittest‘ kind of next generation who survives and with whom her genes also survive. For this she needs to be choosy and select the best of all available males, best in terms of survivability. Next she has first to keep her children in her womb for quite a long time and also has to take good care of them even after birth as unlike most animals, a human baby does not get ready for independent survival until after several years of birth. This forces a woman to get commitment and loyalty from her sexual partner so that, with his help, she can ensure the survival of her kids till the point that they stand on their own two feet. This very well explains the loyalty driven demands of women in romantic relationships. On the other hand, a man can ensure survival of his genes by fertilizing maximum number of his sperms with maximum number of eggs thereby increasing the statistical chances of his gene survival. This he can achieve by cohabiting with as many women as he can. This tendency has been observed in many animal males2 and very well explains the adulterous nature of the man. This however, could not be understood by the Church in the middle ages. Considering this biologically enshrined psychological nature of man as essentially evil, medieval Church tried to purify him by promoting monogamy with its typical religious zeal and raising the standards of morals, especially sexual morals, ever

2

Jared Diamond, The Rise and Fall of the Third Chimpanzee, Vintage, 1992, 77.

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higher, though seldom with much success.3 Although without much success in case of men, this purification drive was a great success in case of women. Male dominated Church which was already biased against women, taking the trail from the myth of original sin, was forced by men to solve the problem of parental identity of children. This was achieved by the application of strictest moral code on women, especially regarding sexual behavior. After all no man wants to invest his time, effort and resources in children which do not carry his genes. So while adulterousness of men with prostitutes was tolerated, as it did not disturb the certainty of parentage and genetic identity of children, every effort was made by man dominated society and Church to snub the sexual drive of women. After all any sexual adventure by women in those dark ages of scientific knowledge would have brought genetic identity of children in jeopardy leaving bewildered men without any means of making sure that the child being described by the mother as theirs was actually— genetically—theirs. This resulted in creation of such religious morality and social norms which inculcated deep rooted fear in women‘s minds regarding sex and a consequent psychological inhibition developed in the female minds against losing virginity before getting married. It is even believed that whatever general intellectual inferiority of women is there today, it has resulted from the restraint upon curiosity imposed by the fear of sex.4 Sadly, this medieval trend has seeped-in the modern times. Religious leaders are still fighting against such sins as intercourse before marriage, infidelity, homosexuality, and abortion.5 In globalization of culture, when traditional or fundamental societies receive western liberal and progressive moral values, their religious monopolists call for crusades in order to protect their future generations from the evil of corrupt moral values.6 But moralists always forget that ‗[u]nderestimating the novelty of the future is a time-honored tradition‘ of the human society.7

Will Durant, The Story of Civilization: 4, The Age of Faith, Simon and Schuster, 1950, 76. 4 Bertrand Russell, Marriage and Morals, Routledge, 1929, Reprint 1991, 181. 5 James Lull & Eduardo Neiva, The Language of Life: How communication Derives Human Evolution, Prometheus Books, 2012, 97. 6 Al Gore, The Future, WH Allen, 2014, 132. 7 Daniel Gilbert, Stumbling on Happiness, Vintage Books, 2007, 124. 3

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2. Legal License to Impunity: Marriage People in their teens should be thankful to our legislature that masturbation is not a crime. Before I proceed with my rather scandalous prose, let me point out that masturbation is a normal and recognized word of English language which describes a phenomenon that is common in people of all ages and gender but is considered popular among the teenagers. What I am saying in essence is that if my prose looks vulgar, think again. The word masturbate has been defined by Oxford English Dictionary8 to mean to ―arouse oneself sexually or cause (another person) to be aroused by manual stimulation of the genitals.‖ If you still find me indecent, blame Standard English Dictionaries, not me. And by the way, our concept of decency is totally messed up. For instance, in our culture, a woman finds it very embarrassing and people find it quite vulgar for a woman to go to pharmacy and ask a male salesman for condoms. It is considered that by committing this sin, a woman basically invites a stranger to think about her having sex. On the other hand, it is considered normal if a woman introduces his child and husband to a stranger male. I think this is quite illogical. Nothing definite is pointed in a demand for condom which can lead one to think that perhaps the woman asking for condom wants to use it for sex or maybe she is taking it for her sister or a friend and she is not going to use it herself. But telling someone that they were her child and husband conveys it most certainly that she had sexual intercourse with this man which resulted in her pregnancy and later birth of this child. There is nothing vulgar or indecent in this for sure; but so is the case with the previous example. Still, somehow, we find the first instance an indecent one but not the second one. A book talking about sex in simple words, i.e., referring sex as sex, is generally considered indecent. However, our laws talk about sex openly, frankly and in simple words i.e., sex is referred as sex. Laws are published by government and every citizen is required to know them by heart, ‗ignorance of law is no excuse‘ being one of the fundamental principles of our law. A glaring example is

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The Concise Oxford Dictionary of Current English, Clarendon Press, 9 th Edition, 1995.

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the provision prohibiting fornication9 which states that ―A man, and a woman not married to each other are said to commit fornication if they willfully have sexual intercourse with one another.‖ After this rhetoric, meant to convince you to keep reading my vulgar prose, let‘s come back to masturbation. It just occurred to me one day that law controls almost every aspect of our life. This includes even the most colorful aspect of our life, sex; making love, to use the literary-cum-romantic phrase. We cannot make love with whomever we like. We cannot make love wherever we like. And we cannot even make love in whichever way we like (more on this later)! If we do, we are liable to spend many years of our lives behind the bars. But sex, I mean the act of having sex, involves two persons. Is masturbation prohibited as a single person sex? Islam, which is our state religion,10 does not prohibit it; perhaps not. While Imam Malik and Imam Shafi regard masturbation completely against Islam, Imam Ahmed bin Hambal proves very progressive and considers it a natural and a completely lawful act. Imam Abu Hanifa, followed by the huge dormant majority of Pakistani Muslims, on the other hand takes a middle way considering it bad but probably a forgivable mistake.11 So much for religious morality, what about positive law? Starting from the start, I scanned the criminal code12 to see if it defines masturbation as a crime. Pleasantly, could not find it. But the excitement proved short-lived. As usually happens with our negativity prone thought process, soon I started having second thoughts. Perhaps the decency of our legislature forced it from referring such a shameful act so openly; in such simple, shameful, indecent terms. After all indecency is a crime in itself and uttering an obscene word can entail a prison sentence of up to three months.13 In our Country, criminalizing masturbation by our conscientious legislature in some obscure Arabic term can‘t be Pakistan Penal Code, 1860, section 496-B. Constitution of Islamic Republic of Pakistan, 1973, Article 2: Islam to be State Religion. Islam shall be the State religion of Pakistan. 11 Muhammad Aftab Khan, Ph.D, Sex & Sexuality in Islam, Nashriyat, Lahore, 2006, 685. 12 Pakistan Penal Code, 1860. 13 Pakistan Penal Code, 1860, Section 294: Obscene Acts and Songs: Whoever, to the annoyance of others, (a) does any obscene act in any public place, or (b)sings, recites or utters any obscene songs, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both. 9

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ruled out. Crimes like ―Itlaf-i-udw‖14 which in fact is amputation and is punishable with up to 10 years prison sentence, or ―Isqat-ijanin‖15 which simply put, is abortion and is punishable with up to 7 years in jail support my insecurity. Or maybe, I thought, Masturbation could emerge as a crime of consequence—a byproduct crime—an act which becomes crime only if done while committing another crime; takes me back to Safia Bibi, a blind girl who lodged complaint against her rape and ended up in jail on the charge of adultery. The case attracted international coverage in early 1980s when Safia Bibi an 18 years old blind domestic servant of a landlord was raped by her employer and his son. Her father lodged an FIR16 for the rape of her daughter against the landlord and his son. What turned out under the Islamic laws17 imposed on Pakistan by its pious dictator, the self proclaimed soldier of Islam,18 late General Muhammad Zia ul Haq, was disturbing. Trial court acquitted both the accused of the charges of rape because of insufficient evidence but convicted Safia for public lashing & 3 years‘ imprisonment on the ground that she herself confessed of committing the crime of fornication as she admitted to have illicit sex with her rapist. It proved too much for some. Media took up the case aggressively and it was mainly because of the extensive media coverage that Safia‘s case was later reviewed and she too was acquitted.19 I think Safia will definitely like this beautiful literary description of Zia‘s hotly contested and aggressively out-poured piousness:

Pakistan Penal Code, 1860, section 333: Itlaf-i-udw. Whoever dismembers, amputates, severs any limb or organ of the body of another person is said to cause Itlaf-i-udw. 15 Pakistan Penal Code, 1860, section 338-B: Isqat-i-Janin. Whoever, causes a woman with a child some of whose limbs or organs have been formed, to miscarry, if such miscarriage is not caused in good faith for the purpose of saving the life of the woman, is said to cause Isqat-i-janin. Explanation. A woman who causes herself to miscarry is within the meaning of this section. 16 Abbreviation for ―First Information Report‖, which is the jargon for the crime complaint lodged with the police under section 154 of the Code of Criminal Procedure, 1898. 17 Offence of Zina (Enforcement of Hudood) Ordinance, 1979. 18 Hamid Khan, Constitutional and Political History of Pakistan, Oxford University Press, 2nd Edition, 2009, 323. 19 Taimur-ul-Hassan, The Performance of Press During Women Movement in Pakistan, South Asian Studies, A Research Journal of South Asian Studies, Vol. 25, No. 2, July-December 2010, 311 to 321, 314. 14

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The generals who had called Zia a mullah behind his back felt ashamed at having underestimated him: not only was he a mullah, he was a mullah whose understanding of religion didn‟t go beyond parroting what he had heard from the next mullah. A mullah without a beard, a mullah in a four-star general‟s uniform, a mullah with the instincts of a corrupt tax inspector.20 The haunting vague impressions of this case have left a lasting imprint on my childhood mind; law is such a cunning monster! So I decided not to take chances. I checked again, more carefully this time. None, to much relief. Yet another agonizing thought. We live in a common law country, which means that law is theoretically written in statute books, but it ―means‖ what our judiciary says it ―means‖. Law often proves to be more complicated than it looks. It‘s a common experience of lawyers that reading the plain language of law, which itself is often quite obscure and sometimes even self-contradictory, a normal man understands one thing but when a case goes to court on the basis of such a law, it turns out, many a times surprisingly, sometimes shockingly, that court understands something quite different from the same language. An interesting example is the excitement that was generated among lawyers on initiation of DNA testing in medical investigation of crimes. This feeling of euphoria was less because of technological advancement of our system of criminal administration of justice and more because of that agonizing uncertainty that a lawyer sometimes feels while, say, representing a by rape victim when during evidence he figures out that the story he was told by his client was not making sense and may be, just maybe, he was soon going to be a part of a dirty plot to entrap an innocent man in jail for a decade. Our law of evidence21 has a very progressive provision which provides that any futuristic techno evidence which is not defined in law but will become available in future owing to technological progress is to be deemed as defined in law.22 On the eve of initiation of DNA evidence it was a common understanding that Mohammed Hanif, A Case of Exploding Mangoes, Random House Inida, 2008, 32 Qanun e Shahadat Order, 1984 22 Qanun e Shahadat Order, 1984, Article 164: Production of evidence that has become available because of modern devices, etc. In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques. 20 21

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this scientific certainty will end many of such frivolous cases which have become a haunting reason for the rottenness of our lethargic legal system. However, a full bench23 of Supreme Court refused bail to an accused rapist, although the DNA report in his case said that the sperms found on the body of the rape victim were not his. The Court held that DNA report of the sperms found on the victim in a rape case should only be considered evidence if there is no reliable eye witness; and even then it would be treated as of secondary nature.24 Since rape victim in that case had alleged the offence on that particular accused, court preferred word of the victim on the word of DNA. Words of a rape victim often fall heavy on legal ears. A scary thought came to mind, what if some judgment had made masturbation a crime while interpreting some other sex related case? Searched again and failed. May be our legislators have grown modern, like some of Islamic scholars who have even allowed the use of vibrators for female masturbation.25 So, at least I could masturbate with impunity. It means that police cannot break into my house, on secret information, in order to catch me redhanded in my wash-room, masturbating. Even a magistrate cannot A Full Bench of a Court is a bench consisting of three judges. Aman Ullah Vs. State, PLD 2009 SC 542, 543. ―3. According to medico-legal examination of the prosecution namely, Mst. Gulshan Bibi, she was about 18 years of age at the time of occurrence; her hymen was found torn at multiple places which bled on touch and the vagina admitted two fingers but rightly and painfully. From this medical evidence, it is obvious that sexual inter-course had been freshly committed with the said lady and further that she was not a female of easy virtue and was not used to committing sexual intercourse. No reasons could be offered to us to explain the alleged substitution of Amanullah [bail] petitioner with the person who had actually committed the sexual intercourse with the said lady. According to the police file, the petitioner had been declared innocent and his discharge had been recommended only because the C.A.M.B. Forensic Services Laboratory had found, after the D.N.A. test, that the traces of semen found in the vaginal swabs of the prosecutrix were not those of Amanullah petitioner. Such-like reports of the so-called experts are only corroborative in nature and are required only when the ocular testimony is of a doubtful character. In the present case, as has been mentioned above, no reasons could be offered as to why the prosecutrix who had admittedly been subjected to sexual intercourse, should have spared the actual offender and should have, instead substituted the petitioner for him. In the circumstances, at least prima facie and for the purpose of this bail petition, it could not be said that the testimony offered by the prosecutrix could admit of any doubt.‖ 25 Muhammad Aftab Khan, Ph.D., Sex & Sexuality in Islam, Nashriyat, Lahore, 2006, 185: A divorced woman is allowed to use a vibrator to satisfy her sexual desire if it is the last resort instead of committing fornication. 23 24

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issue a search warrant to the police officers to search my home, looking for evidence pointing me conducting—or more precisely committing—masturbation. Even my S.H.O.26 cannot call me to police station, on the complaint of my neighbor, to investigate if I do masturbate in my wash-room at night—alone of course. It seems that I actually have some freedom. So teenagers in my country (and also non-teens) can masturbate without fear of ‗Chappa‘—a Police raid in local slang. But what are the legal options available to a teen who is bored of masturbating and wants to have sex with a partner. By the way the latest research on teenagers‘ concepts about ‗having sex‘ shows that while almost all of them consider penile-vaginal intercourse to be sex, most of them also consider penile-anal intercourse as sex. And while many include manual and oral stimulation in sex, some even consider kissing, dating and touching the breasts as falling in the definition of having sex.27 But whatever he thinks, a local internet-connected global teen can‘t have sex with his or her pet, no matter how lovey-dovey they may be, because the punishment is up to life imprisonment.28 Without going into rather awkward discussion of whether sex with an animal ‗should‘ have been criminalized or would it have been better to let the social morality deal with it, we will definitely enjoy scrutinizing the interesting contours of vagueness of the provision which actually criminalizes sex with a pet; which otherwise should have been a straight forward simple task of legal drafting. What this ―anti-pet‖ law in fact prohibits is ―unnatural sex‖, which it defines as the act of sex ―against the order of nature‖ with any man, woman or animal. This unromantic provision clarifies that unlike most of the contemporary teens, by having sex it simply means penetration for purposes of getting sexual pleasure.

Station House Officer, the officer in-charge of a Police Station. Richard M. Lerner & Laurence Steinberg (Ed), Hand Book of Adolescent Psychology, John Wiley & Sons, Inc, 2nd Ed, 2004, 194 28 Pakistan Penal Code, 1860, section 377: Unnatural Offences. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which shall not be less than two years nor more than ten years, and shall also be liable to fine. Explanation. Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this selection. 26 27

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A series of very intriguing questions arise; whether penetration in this provision means penetration of penis or does it criminalize penetration of any body part into the body of another? This is ambiguous. Does law intend to criminalize penetration of tongue into the mouth of the partner? And by the way which body part of the receiving partner will constitute the penetration, vagina, anus or mouth? Will a girl penetrating her finger in the mouth of a boy can be booked under this offence? I had never thought about it; what really is the sex ―in the order of nature‖? Mind boggling. It seems that the ―naturalness-of-the-sex‖ in the traditional wisdom is tied up with its functionality; procreation. So the penile-anal, animal or ―same-sex‖ sex is considered ―unnatural‖ as it cannot produce babies. Lately, however, a challenge to this traditional concept of ―naturalness-of-sex‖ is gaining popularity. According to this new view, instead of functionality, naturalness of sex should be gauged on the basis of its observance by the number of animal species in nature. On this criterion, homosexuality seems very popular, perfectly normal and quite natural as it has been observed that at least 1,500 animal species, including lions and dwarf chimpanzees practice homosexuality regularly.29 However, our courts have crystallized this Hegelian law of the naturalness of the sex. A larger bench30 of Supreme Court declared that sex against the order of nature means penetrating penis in the anus.31 So far so good, it seems that oral sex is not a crime. By the way oral sex is also allowed in Islam. Muslim jurists have considered this question deeply and realistically and concluded that for the husband to perform cunnilingus on his wife or for the wife to perform fellatio on her husband is completely Islamic and there is no sin in it. However, couples are advised to take care as if while the wife is performing oral sex on her husband and during sucking

1,500 animal species practice homosexuality, October 23, 2006, www.news-medical. Accessed on 13th of January, 2016: ―The most well-known homosexual animal is the dwarf chimpanzee, one of humanity‘s closest relatives. The entire species is bisexual. Lions are also homosexual. Male lions often band together with their brothers to lead the pride. To ensure loyalty, they strengthen the bonds by often having sex with each other.‖ 30 A larger bench is a bench of the court consisting of more than 3 judges. 31 Sain Vs. The State, 2007 SCMR 698, 703: The offence consists of penetration by the penis into the anus, and the merest penetration suffices to establish the offence. Proof of ejaculation is not necessary for conviction. 29

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husband comes and semen are released, such oral sex is considered Makrooh (blameworthy), though still not illegal.32 But the naughty mind doesn‘t stop here. Another series of new questions arise (I hope these questions are not initiated in the Police mind). Does this offence of unnatural sex, which is committed when a man penetrates his penis in the anus of a man, animal or a woman imply that an act of man having vaginal sex with a female monkey, or the act of a monkey having a vaginal sex with a woman, is legal? As the law stands now, it pretty much seems like that! But what does ―stands now‖ mean? What you are thinking might be out-right weird, but it is right; unless a case of a lovey-dovey human and, his closest living cousin, monkey couple comes to court and court decides whether or not to extend the meaning of this obscure provision to the monkey genitals, we are forced to keep our fingers crossed. Same is the case with oral sex. Unless police arrests a couple having oral sex red-handed and puts the court in the awkward position of deciding the legality of intimate personal sexual positions and practices, we are not sure if it‘s a crime too! Logic cannot come to our rescue here as the great judge Holmes rightly said in 1881 that ―[t]he life of the law has not been logic: it has been experience.‖33 If the naughty mind is not controlled, a stream of dirty thoughts continues. The above two inter-specie cases would not even constitute the crimes of fornication34 or adultery35, both of which require both partners of sex to be humans and inclusion of an animal partner will take the act out of the ambit of this crime. Same is the case with rape law which cannot be committed unless both the rapist and the victim are humans.36 On serious reflection however, I figured that this law of ―unnatural sex‖ is in fact very feminist; and discriminatory too. To start with, if its discriminatory its illegal because every discriminatory law is out right violation of Article 25 of our grand Muhammad Aftab Khan, Ph.D., Sex & Sexuality in Islam, Nashriyat, Lahore, 2006, 184. 33Oliver Wendell Holmes, The Common Law, The Belknap Press of Harvard University Press, 2009, 3 34 Pakistan Penal Code, 1860, section 496-B. 35 Pakistan Penal Code, 1860, section 497. 36 Pakistan Penal Code, 1860, section 375: Rape. A man is said to commit rape who has sexual intercourse with a woman under circumstances…….. 32

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law, the Constitution itself which forbids legislature from enacting any law which would create discrimination on the basis of sex.37 Keeping in mind this provision criminalizing only that sexual act which involves penetration of penis of one partner into the anus of another, it is clear as a bright sunny day that whereas a gay couple will fall squarely within its ambit, booked for a hell of a life imprisonment, a lesbian couple will go scot free. Obviously, in lesbian sex there is no—there cannot be, by the very definition of it—penetration of penis. It seems that by not prohibiting lesbian sex in fact our law has legalized it, as the basic principle of our Constitution says that what is not prohibited by law is presumed to have been allowed.38 Thus by criminalizing sex between two male citizens while legalizing sex between two female citizens the legislature has discriminated between gays and lesbians and thus violated its own mother, the Constitution. Coming back to our frustrated teen, who desperately wants to have sex but cannot do so with his pet or with a same sex friend. What could he do? Having sex with an opposite sex friend sounds a good idea. After all every teen in the western world does it. Well, some don‘t, and they are normally referred to psychologists for being so ―unnatural‖! It seems even the biological-psychological naturalness is ordained largely by culture--postmodernism. My suggestion to such bored teens is to be sensitive to their own cultural subtleties because the western ―naturalness‖ can put them behind the bars for up to five long years as having sex without getting married is a serious crime here.39 Don‘t even think about it. Constitution of Pakistan, 1973, Article 25: Equality of citizens. (1) All citizens are equal before law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex. (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children. 38 Constitution of Pakistan, 1973, Article 4: Right of individuals to be dealt with in accordance with law, etc. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. (2) In particular: (a) no action detrimental to the life, liberty, reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do. 39 Pakistan Penal Code, 1860, section 496-B: Fornication. (1) A man and a woman not married to each other are said to commit fornication if they willfully have sexual intercourse with one another. (2) Whoever commits fornication shall be 37

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When in Rome, do as Romans do; simple, get married before you fuck dude!40 ―Fuck‖ used to be a very offensive word and it would never be used is decent writing. If at all, it used to be referred as the ―Fword‖. This however is changing. Not only standard dictionaries have started defining it without any warning, there are actually serious articles written on it. For instance, Law College of Ohio State University published a 74 page article on it, titled ―Fuck‖.41 Back from the epistemology to the physics of fuck; marriage. Marriage is generally seen as a civil contract.42 A contract is defined in our law as a legally enforceable agreement, 43 where agreement is a set of mutual promises.44 A legally enforceable agreement is the one which has been entered after fulfilling the conditions laid down by law. Main such conditions are, that: (a)- Agreement should have been made by the parties who are legally competent to do so, i.e., they should have

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punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees. The Concise Oxford Dictionary of Current English, Clarendon Press, Oxford, 9 th Edition, 1995 defined ―fuck‖ as an act of sexual intercourse. However, before the next word, fuck-up, there is a section on usage, which says, ―Although widely used in many sections of society, fuck is still generally considered to be one of the most offensive words in the English language. In discussion about bad language it is sometimes referred to euphemistically as the F-word.‖ However, this passage of usage is not there in Oxford Advanced Learner‘s Dictionary of Current English, Oxford University Press, 8 th Ed, 2010 which simply defines ―fuck‖ as ―to have sex with s[ome]b[ody].‖

Christopher M. Fairman, Fuck, Public Law and Legal Theory Working Paper Series No. 59, Center for Interdisciplinary Law and Policy Studies Working Paper Series No. 39, The Ohio State University, Moritz, College of Law, March, 2006, 174, 11: ―Linguists studying fuck identify two distinctive words. Fuck1 means literally ―to copulate.‖ It also encompasses figurative uses such as ―to deceive.‖ Fuck2, however, has no intrinsic meaning at all. Rather, it is merely a word of offensive force that can be substituted in oaths for other swearwords or in maledictions.‖ 42 The Right Honourable, Sir Dinshah Fardunji Mulla, Principles of Mahomedan Law, Revised by M. Hidayatullah, Mansoor Book House, Lahore, Reprint 2011, section 239: Definition of Marriage. Marriage (nikah) is defined to be a contract which has for its object the procreation and the legalizing of children. 43Contract Act, 1872, section 2. In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context: ….. (h) An agreement enforceable by law is a contract…. 44 Contract Act, 1872, section 2 (e): ―Every promise and every set of promises, forming the consideration for each other, is an agreement.‖ 41

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attained the age of 18 years, should be of sound mind, etc. (b)- Agreement should have been entered between the parties with their free consent i.e., neither by coercion, nor by fraud, etc. (c)- Agreement should not have been entered to achieve any illegal object, for instance an agreement to commit robbery will not be enforced by our Courts.45 As a conceptual limitation, breach of a contract between two private parties is never interfered by the police force of state which always results in a monetary compensation, not in arrest and a prison term.46 If marriage is a contract, why has its violation been criminalized? To be honest, marriage does not fit-in as a contract. If the act to be done is illegal, doing of that act, whether before or after entering into a contract will be a crime. A good example is murder. If, however, the act is legal, for example sale of my house, it will be legal if done through a contract and any breach of this sale contract will entail monetary compensation, no offence. On the other hand, if I will sale my house without entering into a legal contract, law will simply ignore my act of sale as if it never happened. No offence. Looking in this background, sex is not an illegal object to be achieved. In fact it is considered a sacred act and Contract Act, 1872, section 10: All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in [Pakistan], and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents. 46 Contract Act, 1872, section 73: When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract. Explanation – In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account. Illustrations…….. 45

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our Constitution proclaims to protect it.47 But doing of this legal act, without fulfilling the procedural requirements of contract is not simply ignored by the State as it does in cases of such ignorance of procedural law in other private contracts. Nor the breach of the contract of marriage results in monetary compensation, like all the other breaches of contracts. Marriage does not fit into a contract, and sex into a lawful object. In order to make sense, perhaps we should see sex and marriage from a fresh angle; from the angle of a license. Even though Article 18 of the Constitution empowers the legislature to regulate only a ‗trade‘ or a ‗profession‘ by a licensing system,48 people generally see Nikah Nama (marriage certificate) as a license to have sex and produce babies. Perhaps Pakistanis generally view sex as a trade and producing babies as a profession. Seeing marriage as a license is not that unreasonable after all. Marriage makes a lot of sense as a license to have sex and make babies. This means that sex is a state controlled act; it is allowed only with a permit (called marriage certificate) from the state, without which it is a crime, and you a criminal. Licenses under the law are issued on the basis of proved qualifications. For instance, license to practice law is issued after proving that you have acquired the requisite legal education and done the initial practice under the supervision of a qualified legal practitioner. Similar is the case with license to practice medicine. License to practice law is issued under the Legal Practitioners‘ Act,49 while license to practice medicine is issued under the Medical Council Ordinance;50 and both these laws lay down the qualifications which need to be proved before a license under these Constitution of Pakistan, 1973, Article 35: Protection of Family, etc. The State shall protect the marriage, the family, the mother and the child. 48 Constitution of Pakistan, 1973, Article 18: Freedom of Trade, Business or Profession. Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful trade or business: Provided that nothing in this Article shall prevent: (a) the regulation of any trade or profession by a licensing system; or (b) the regulation of trade, commerce or industry in the interest of free competition therein; or (c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, or any trade, business, industry or service, to the exclusion, complete or partial, of other persons. 49 Legal Practitioners and Bar Councils Act, 1973. 50 Medical and Dental Council Ordinance, 1962. 47

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laws can be granted. But which law controls our marriages and what are the qualifications that this law requires before issuing the marriage-license? The law defining and controlling our marriages is Islamic law or ‗Shariat‘. The Shariat Application Act51 in its section 2 says, “Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages or institutions, including waqfs, trusts and trust properties, the rule of decision, subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in case where the parties are Muslims.” Thus unless legislature passes an enactment which over-rides Muslim Personal Law, Shariat is the applicable law. So although Shariat does not require registration of Nikah (marriage) but Family Laws52 do, therefore it is required. A simple question; we can find the legislative enactments in the statute books published and maintained by the state, where does we find ‗Shariat‘ or ‗Muslim Personal Law‘? Answer is not that simple; in the opinions of scholars. And the shades of ambiguity multiply when you also take into consideration the fact that ‗Shariat‘ for each sect of the Muslims is different and in any given case, ‗Personal Law‘ of that particular sect will be applied. That‘s pretty messy. No wonder lawyers charge so much. So, after figuring out which law defines and controls our marriages we come back to our question of what are the legal qualifications for getting the marriage-license. Under our ‗Shariat‘ or ‗Muslim Personal Law‘ proof of being able to physically perform the act of sexual intercourse is not required, nor that of actually producing babies, nor even that of being able to maintain the wife. Even holding of a good moral character is not a pre-requisite for getting marriage-license. Interesting, but then what are actually the qualifications that are required? Before you can get the license to have sex and make babies you need to prove that you have

51 52

The West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 Muslim Family Laws Ordinance, 1961

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attained the requisite age,53 posses requisite faith,54 have legal capacity to get this license (not-married if you want the license as a wife and married to a maximum of 3 women in case you applied for license as a husband)55 and that you are not mad; although lunatics can legally get married through their guardians.56 Pretty interesting. Now let‘s see how does law deal with the marriage culprits; those who violate the marriage-license law and make ‗unlicensed love‘. Let‘s look at Rape first. It is the case where a person has sex with a woman without her consent.57 It is an outrageous violation Child Marriage Restraint Act, 1929, section 2. Definitions. In this Act, unless there is anything repugnant in the subject or context, (a) ―child‖ means a person who, if a male, is under 18 years of age, and if a female, is under 16 years of age. 54 The Right Honourable, Sir Dinshah Fardunji Mulla, Principles of Mahomedan Law, Revised by M. Hidayatullah, Mansoor Book House, Lahore, Reprint 2011, section 248: Difference of Religion. (1) A Muslim male may contract a valid marriage not only with a Muslim woman, but also with a Kitabia, that is, a Jewess or a Christian, but not with an idolatoress or a fire-worshipper. A marriage, however, with an idolatoress or a fire-worshipper, is not void, but merely irregular. (2) A Muslim woman cannot contract a valid marriage except with a Muslim. She cannot contract a valid marriage even with a Kitabia, that is, a Christian or a Jew. A marriage, however, with a non-Muslim, whether he is, a Kitabi, that is, a Christian or a Jew, or a non-Kitabi, that is, an idolator or a fireworshipper, is irregular, not void. 55 The Right Honourable, Sir Dinshah Fardunji Mulla, Principles of Mahomedan Law, Revised by M. Hidayatullah, Mansoor Book House, Lahore, Reprint 2011, section 244: Number of Wives. A Muslim may have as many as four wives at the same time, but not more. If he marries a fifth wife when he has already four; the marriage is not void, but merely irregular. Section 245: Plurality of husbands. It is not lawful for a Muslim woman to have more than one 56 Contract Act, 1872, section 11. Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject. However, under Islamic Law a lunatic can also get married. The Right Honourable, Sir Dinshah Fardunji Mulla, Principles of Mahomedan Law, Revised by M. Hidayatullah, Mansoor Book House, Lahore, Reprint 2011, section 240: Capacity for marriage. (2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians. 57 Pakistan Penal Code, 1860, section 375: Rape. A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions,--(i) against her will; (ii) without her consent; (iii) with her consent, when the consent has been obtained by putting her in fear of death or of hurt, (iv) with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or (v) with or 53

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of the marriage-license law and thus is dealt with strictly. On filing of complaint, police does not need a warrant from magistrate before arresting the accused and the punishment is anywhere from 10 years in jail to straight away death.58 However, one interesting aspect of this law is that the offence of rape is ‗male‘ specific. Section 375 of Pakistan Penal Code, 1860 clearly states that ‗A “man” is said to commit rape who has sexual intercourse with a “woman”…‘ This means that this crime can only be committed by a man. A woman can never commit an offence of rape, even if she has sexual intercourse with a man without his consent and even against his will. So a man who has been raped by a woman has no legal remedy. Law does not recognize such an act as an offence. Any woman can do it with complete impunity. She can even claim that she has been allowed to do so by law! Now think about this, when a woman is raped by a man, the minimum punishment that the rapist gets is 10 years.59 But when a man is raped by another man, the minimum punishment that the rapist gets is just 2 years.60 Mathematically speaking, we can say that on the scale of 10, where a woman‘s sexual sanctity is 10, a man has zero sexual sanctity as against a woman and a sexual sanctity of just 2 against another man. So the scheme of our sexual law is that if a man has sexual intercourse with another man, he is booked for up to 10 years in prison under the offence of ‗unnatural offences‘61 and if he has an intercourse with a woman without her consent, he is booked for up to death under the offence of rape.62 But if a woman has sexual intercourse with a man without his consent, she goes scot free and if she has sex with another woman, again she goes scot free!

without her consent when she is under sixteen years of age. Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. 58 Pakistan Penal Code, 1860, section 376: Punishment for rape. (1) Whoever commits rape shall be punished with death or imprisonment for either description for a term which shall not be less than ten years or more than twenty-five years and shall also be liable to fine. (2) When rape is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death or imprisonment for life. 59 Pakistan Penal Code, 1860, section 377. 60 Pakistan Penal Code, 1860, section 376. 61 Pakistan Penal Code, 1860, section 377. 62 Pakistan Penal Code, 1860, section 376.

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So much for unlicensed sex against nature and without consent. Now something about the unlicensed-sex, pure and simple. Although Islam is very strict about singing, dancing and fornication, state had been historically taking liberal view on it.63 However, with the orthodox interpretation of Islam getting dominance during the state sponsorship of Afghan Jihad against Soviet Union, illegal sex is being seen very strongly by the orthodox scholars.64 Law is also strict about illicit sex. It says that whoever will have sex without first getting married can be sentenced to imprisonment for up to 5 years.65 However, there is confusion here. Law talks about two types of un-licensed sex, fornication and adultery.66 Oxford English Dictionary67 defines fornication as having sex with somebody that you are not married to while the same dictionary defines adultery as sex between a married person and somebody who is not their husband or wife. Simply speaking fornication is unlicensed sex between an otherwise unmarried couple while adultery is unlicensed sex between a couple at least one of whom is married to someone else. Our criminal code defines fornication as an offence which is committed when a man and a woman not married to each other have sexual intercourse.68 Adultery, on the other hand, is a crime which is committed when a Louise Brown, The Dancing Girls of Lahore, Perfectbound, 2005,, 28: Orthodox Islam forbids singing and dancing on the grounds that it may lead to a loss of selfcontrol and then to debauchery and fornication. The Mughals, the Muslim rulers who controlled large parts of India between the sixteenth and eighteenth centuries did not see entertainment this way. Dancing and singing were considered to be forms of refined culture, and patronage of the arts was a symbol of Mughal status. 64 Louise Brown, The Dancing Girls of Lahore, Perfectbound, 2005, 64: Islam is very positive about sex, provided it takes place within marriage. The problem is that attraction between men and women is considered so inevitable and so uncontrollable that it will lead to chaos if it isn‘t regulated. Separating the sexes is essential to prevent fornication and maintain social order. Men and women have to live in separate worlds. 65 Pakistan Penal Code, 1860, section 496-B. 66 Pakistan Penal Code, 1860, section 497. 67 Oxford Advanced Learner‘s Dictionary of Current English, Oxford University Press, 8th Ed, 2010. 68 Pakistan Penal Code, 1860, section 496-B: Fornication. (1) A man and a woman not married to each other are said to commit fornication if they willfully have sexual intercourse with one another. (2) Whoever commits fornication shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees. 63

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person has sexual intercourse with a woman whom he knows to be the wife of another man.69 It is clear that our law does not restrict the crime of fornication for an otherwise unmarried couple. The language of section 496-B70 is clear, it says: ―A man and a woman not married to each other are said to commit fornication if they…… have sexual intercourse…...‖ Whether both or any one of these accused is married or not is not a fact law is bothered about. If they are not married to each other, they are covered under this law. And punishment is meant for both the partners; subsection 2 of this provision says: ―Whoever commits fornication shall be punished with imprisonment……‖ So far so good. Now let‘s see the provision dealing with adultery. It is section 49771 and says: ―Whoever has sexual intercourse with a person who is…..wife of another man…..is guilty of the offence of adultery, and shall be punished with imprisonment…..‖ For the purposes of adultery, therefore, it does not matter if the man is married or not but woman has to be otherwise married to someone else. This generates the confusion because the case of unlicensed sex by a married woman has already been covered under the provision of fornication.72 What is the use of this provision? There is more to come. It is clear from the plain reading of this provision that in the offence of adultery, woman is not a criminal and she cannot be punished. A woman is not punished in case of rape, although that is also an unlicensed sex, but there sexual intercourse is committed without her consent. Here however, she is the consenting party. But still, she is not liable to be punished. Why? This section is the original section which was enacted by the British Raj in 1860. It is said that it was thought that Pakistan Penal Code, 1860, section 497: Adultery. Whoever has sexual intercourse with a person who is and who he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the shall wife shall not be punishable as an abettor. 70 Pakistan Penal Code, 1860. 71 Pakistan Penal Code, 1860. 72 Pakistan Penal Code, section 496-B. 69

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Indian women had no free-will and were practically the properties of their husbands. That‘s why this provision of adultery also talks about the consent of the husband of the adulteress. It says: ―Whoever has sexual intercourse with a person who is….wife of another man, without the consent…..of that man….‖ So conceptually speaking, it was enacted to punish a person (Adulterer) for violating rights over the property (wife) of a person (husband). I am not shocked because it was enacted more than a century and a half ago. Obviously the social structure and moral values of our society were not similar to what they are today. But what surprises me is the fact that this section73 was deleted by the so-called Islamic regime of General Zia by virtue of Hudood Ordinance.74 So section 497 was deleted in the year 1979. However, in the year 200675, it was again inserted back in the criminal code, as it is—that is, just as it was in the year 1860. Has our legislature reached the conclusion that contemporary Pakistani wife, who had acquired a free will and had become an independent citizen of the country in 1979, has once again become a property of her husband lacking any free will in 2006? And by virtue of the same law76 which re-inserted the old adultery provision, offence of fornication77 was added. Now if a couple is charged for illicit sex where the woman is otherwise married, and they are booked under the offence of adultery, it will make the man liable for a prison sentence for up to 5 years while the woman will go scot free. The man will certainly protest as to why should the woman also not get punished as she was party in the crime as much as he was, and will ask the police, or the court, to book them under the provision of fornication78 which will also be equally applicable and under which both the man and the woman will be liable for a prison sentence of up to 5 years. At this stage the woman will protest that when a provision of law, which is equally applicable in the case and in which her liberty is not hindered, is available, why should that provision be not applied to her? Pakistan Penal Code, section 497. Offence of Zina (Enforcement of Hudood) Ordinance, 1979, section 19. 75 Protection of Women (Criminal Laws Amendment) Act, 2006. 76 Protection of Women (Criminal Laws Amendment) Act, 2006. 77 Pakistan Penal Code, 1860, section 496-B. 78 Pakistan Penal Code, 1860, section 496-B. 73 74

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I have no idea what the court, in such an eventuality will decide, and on what grounds? Certainly it will be confused. But more confusing thing at the moment is how can a law, a properly legislated law79, which is drafted by the specialized draftsmen of law ministry, is then presented before the National Assembly of 332 elected representatives80, who discuss and debate over it for days and weeks and voted upon, is then sent to the upper house, the Senate, consisting of 104 elected representatives81 as well as technocrats, is again discussed and debated for days and weeks, and only then passed and sent for assent of the President, make such blunders? Much of this mess that I have created above can be cleaned up if, and only if, offence of Adultery82 is simply removed from the statute book. This will leave an open field to the offence of fornication83 to cover all cases of illicit sex, without any overlapping and conflicts. To be honest, even otherwise, the law of fornication has been enacted quite progressively. In fact it has been enacted in a much more modern way than most of our criminal laws. Its procedure84 categorically takes away all powers of arrest and investigation from police. So now, since the year 2006 of our lord, when the Protection of Women Act was passed, if a complaint regarding commission of fornication is lodged with the Constitution of Islamic Republic of Pakistan, 1973, Article 70: Introduction and Passing of Bills. (1) A Bill with respect to any matter in the Federal Legislative List may originate in either House and shall, if it is passed by the House in which it originated, be transmitted to the other House; and if the Bill is passed without amendment by the other House also, it shall be presented to the President for assent. (2) If a Bill transmitted to a House under clause (1) is passed with amendments it shall be sent back to the House in which it originated and if that House passes the Bill with those amendments it shall be presented to the President for assent. (3) If a Bill transmitted to a House under clause (1) is rejected or is not passed within ninety days of its laying in the House or a Bill sent to a House under clause (2) with amendments is not passed by that House with such amendments, the Bill, at the request of the House in which it originated, shall be considered in a joint sitting and if passed by the votes of the majority of the members present and voting in the joint sitting it shall be presented to the President for assent. (4) In this Article and the succeeding provisions of the Constitution, ―Federal Legislative List‖ means the Federal Legislative List in the Fourth Schedule. 80 Constitution of Islamic Republic of Pakistan, 1973, Article 51. 81 Constitution of Islamic Republic of Pakistan, 1973, Article 59. 82 Pakistan Penal Code, 1860, section 497. 83 Pakistan Penal Code, section 496-B. 84 Criminal Procedure Code, 1898, section 203-C. 79

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police, it cannot do anything, unless authorized by a court of law. 85 The law requires that keeping in view the dignity of man and privacy of home,86 which is the fundamental right of everyone, court will not even entertain the complaint87 regarding fornication unless such complainant and two-eye witnesses of the offence appear in the court in person and swear an oath that they saw the act of fornication with their own eyes.88 If the court will find their statements reliable, it will issue summons to the accused to appear and defend their case—no police, no arrest.89 However, if the Court does not find the initial statements of the complainant and his witnesses truthful, it will dismiss the Complaint straight away.90 Not only this, but if the dismissing Court will find that the Complainant and the witnesses were knowingly bringing false charges of fornication, it can forthwith convict such Complainant and all his/her witnesses without any other proof and can send them to prison for up to 5 years.91 This is a very effective tool to curb the misuse of the law and checking the coming up of false

Criminal Procedure Code, 1898, Schedule II, section 496-B, Column 3. Constitution of Islamic Republic of Pakistan, 1973, Article 14: Inviolability of dignity of man, etc. (1) The dignity of man and, subject to law, the privacy of home, shall be inviolable. 87 Criminal Procedure Code, 1898, section 203-C (1): No Court shall take cognizance of an offence under section 496-B of the Pakistan Penal Code, except on a complaint lodged in a Court of competent jurisdiction. 88 Criminal Procedure Code, 1898, section 203-C (2):The Presiding Officer of a Court taking cognizance of an offence shall at once examine on oath the complainant and at least two eye-witnesses to the act of fornication. 89 Criminal Procedure Code, 1898, section 203-C (4): If in the opinion of the Presiding Officer of a Court, there is sufficient ground for proceeding, the Court shall issue summons for the personal attendance of the accused. 90 Criminal Procedure Code, 1898, section 203-C (5): The Presiding Officer of a Court before whom a complaint is made or to whom it has been transferred may dismiss the complaint, if, after considering the statements on oath of the complainant and the witnesses there is, in his judgment, no sufficient ground for proceeding and in such case he shall record his reasons for so doing. 91 Pakistan Penal Code, 1860, section 496-C: Punishment for false accusation of fornication. Whoever brings or levels or gives evidence of false charge of fornication against any person, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees: Provided that a Presiding Officer of a Court dismissing a complaint under section 203-C of the Code of Criminal Procedure, 1898 and after providing the accused an opportunity to show cause if satisfied that an offence under this section has been committed shall not require any further proof and shall forthwith proceed to pass the sentence. 85 86

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charges of fornication for settling private scores and defaming others. A move for similar amendment in the blasphemy law,92 prescribing up to death penalty for defiling the sacred name of the Holy Prophet Muhammad (Peace be upon him), a move which was meant to discourage the rising trend of misusing this provision to settle personal scores,93 however, was rejected by the Council of Islamic Ideology.94 Council of Islamic Ideology is a Constitutional body,95 which is not only the ultimate arbiter of ―Islamic-ness‖ of a proposed law96 but is also responsible to act as the ―Islamic mentor‖ of the legislatures.97

3. Economics of Marriage: 92

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95

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Pakistan Penal Code, 1860, section 295-C: Use of derogatory remarks etc., in respect of the Holy Prophet. Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammd (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine. Gleanings, Into the Fiery Furnace: Christian Couple in Pakistan Burned for „Blasphemy‟, November 6th, 2014, www.christianitytoday.com/gleanings/2014/november/into-fiery-furnacechristians-pakistan-burned-blasphemy. Accessed on 13th January, 2016. The Express Tribune, September 20, 2013, Advice to Legislature: No Need to Amend Blasphemy Laws, says CII, tribune.com.pk/story/606884/advice-to-legislature. Accessed on 13th January, 2016. Constitution of Islamic Republic of Pakistan, 1973, Article 228: Composition, etc., of Islamic Council. (1) There shall be constituted within a period of ninety days from the commencing day a Council of Islamic Ideology, in this Part referred to as the Islamic Council. (2) The Islamic Council shall consist of such members, being not less than eight and not more than twenty as the President may appoint from amongst persons having knowledge of the principles and philosophy of Islam as enunciated in the Holy Quran and Sunnah, or understanding of the economic, political, legal or administrative problems of Pakistan. Constitution of Islamic Republic of Pakistan, 1973, Article 229: Reference by Majlis-e-Shoora (Parliament), etc., to Islamic Council. The President or the Governor of a Province may, or if two-fifths of its total membership so requires, a House or a Provincial Assembly shall, refer to the Islamic Council for advice any question as to whether a proposed law is or is not repugnant to the Injunctions of Islam. Constitution of Islamic Republic of Pakistan, 1973, Article 230: Functions of the Islamic Council. (1) The functions of the Islamic Council shall be: (b) to advise a House, a Provincial Assembly, the President or a Governor on any question referred to the Council as to whether proposed law is or is not repugnant to the Injunctions of Islam.

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Problems of sex-with-men, sex-with-animals and sex-againstthe-order-of-nature are not the only ‗sexual problems‘ of our legal system. In the year 2012 a new section was added in the criminal code98 which has criminalized the act of marriage with Quran. Haven‘t we already seen that law criminalizes unnatural marriage? Not actually. Technically speaking, what we saw as crime is ―unnatural sex‖, not ―unnatural marriage‖. Thus our law does not criminalize any kind of marriage, not even a marriage with the ‗word of God‘; until the year 2012. But the question is why would anyone marry the Holy Book? More than religion, this has to do with the economics; the economics of marriage. Marrying their daughters and sisters with the Holy Book is a tradition followed in many feudal families of Pakistan.99 More than marriage, this is a holy vow on the Holy Quran, forcefully extracted from the poor bride, of not to marry any one in her life time. Families enforce such a ―marriage‖ on their girls in order to check seepage of their properties through inheritance, to the lineage of their future son-in-laws. Lineage and property are closely linked in our world view. Despite of the fact that Holy Christ had no father and our Holy Prophet (pbuh) had no male descendant, we insist that lineage runs through males; so inherited property should be distributed among sons only. But our faith poses challenge to our world view. Daughters also inherit property according to Islamic principles, to defeat which, we devised a tool—Marriage with Quran. This marriage ensures that the bride dies issue-less and thus whatever she inherits from her father, is ultimately inherited back by her brothers and their children. Finally, law made anyone facilitating such a marriage punishable with up to 7 years of imprisonment,100 a counter tool which is focused more on economic rights of women than restoration of Islamic ideals. Pakistan Penal Code, 1860. Daily Times, March, 13, 2007,‖ Prominent families in Sindh and marriage to the Holy Quran.‖ 100 Pakistan Penal Code, 1860, section 498-C: Prohibition of marriage with the Holy Quran. Whoever compels or arranges or facilitates the marriage of woman with the Holy Quran shall be punished with imprisonment of either description which may extend to seven years which shall not be less than three years and shall be liable to fine of five hundred thousand rupees. Explanation. Oath by a woman on Holy Quran to remain un-married for the rest of her life or, not to claim her share of inheritance shall be deemed to be marriage with the Holy Quran. 98 99

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Devising of ways and means to swindle devolution of inheritance on daughters is an old age tradition, dowry being its one manifestation. Use of dowry to enable the newlywed couple start a household is understandable in the societies where marriages take place in early age. 101 However, this is not the only established use of this custom. Many a times, dowry functions as a pre-mortem inheritance to the bride.102 This implies that in our culture, in order to combine the benefits of keeping the property within the lineage and of marrying off daughters, people give heavy dowries to their daughters in lieu of their future inheritance share. While doing so nature of inheritance and that of inheritor is kept in mind. Since marriage has made woman a ―movable‖ member of the family, she only gets movable property; money, furniture, jewelry, etc, not land.103 Incidentally such a mode of restricting inheritance in certain communities has become an unbearable menace for many communities. The custom of giving dowry to daughters crossed all reasonable limits, especially for the class which would not have much to offer the bride in inheritance. Half a century ago uncontrolled limits of dowry became such a social evil that law had to be passed to curtail it. This law passed in the year 1976 provided a prison sentence of up to 6 months.104 This punishment 101

102

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Encyclopedia Britannica, Dowry, www.britannica.com/EBchecked/topic/170540/dowry. Accessed on 13th January, 2016. Jack Goody, Stanely Jeyaraja Tambiah, Bridewealth and Dowry, Cambridge University Press, 1973, 1. Veena Talwar Oldenburg, Dowry Murder; The Imperial Origins of a Cultural Crime, Oxford University Press, 2002, 20. Dowry and Bridal Gifts (Restriction) Act, 1976, section 9: Penalty and procedure.(1) Whoever, contravenes, or fails to comply with, any provision of this Act or the rules made thereunder, shall be punishable with imprisonment of either description for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both, and the dowry, bridal gifts or presents given or accepted in contravention of the provisions of this Act shall be forfeited to the Federal Government to be utilized for the marriage of poor girls in such a way as may be prescribed by rules made under this Act: Provided that if both the parents of a party to the marriage contravene, or fail to comply with, any provision of this Act or the rules made thereunder, action under this section shall be taken only against the father: Provided further that if the parent who contravenes, or fails to comply with, any provisions of this Act or the rules made thereunder, is a female, shall be punishable with fine only. (2) An offence punishable under this Act shall be triable only by a Family Court established under the West Pakistan Family Courts Act, 1964 (W.P. Act No. XXXV of 1964). (3) No Family Court shall take cognizance of an offence punishable under this

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is meant for anyone who will give or receive dowry worth more than 5,000 rupees.105 That‘s true, the law says that dowry to a bride will not exceed an amount which is something like US dollars 50. Just to keep things in perspective, a locally made bi-cycle today costs more than that. The rampant violations of this law are a matter of ceremony. During the entire six months of winter season, thousands of marriages take place in Pakistan, most of which are celebrated with fan fare. This includes open, many a times publicly boasted, transfers of dowries worth hundreds of thousands, if not millions of rupees. But since a purchase receipt does not mention if it was issued against a dowry purchase, nor people maintain account books of dowry, despite being an open secret, it is difficult to find records of dowries. However, it becomes an interesting matter when during or after divorce, a woman files case in the court for recovery of dowry articles. Literally in every case, the woman and her family members file affidavits and swear on oath in the witness box that they gave dowry worth millions of rupees. The courts, instead of punishing them with 6 months‘ imprisonment, pass orders for recovery of the dowry (or part of it, depending on the evidence). In one such case, Lahore High Court while repelling the argument of the counsel for the groom that bride, which was demanding dowry worth hundreds of thousands could not have given it because of the legal restriction, held that ―in spite of the restriction imposed in section 3106 [of the Dowry and Act except upon a complaint in writing made by, or under the authority of, the Deputy Commissioner within nine months from the date of nikah, and if rukhsati takes place some time after nikah, from the date of such rukhsati. (4) While trying an offence punishable under this Act, a Family Court shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 (Act V of 1898), for the trial off offences by Magistrates. 105 Dowry and Bridal Gifts (Restriction) Act, 1976, section 3. Restriction on dowry, presents and bridal gifts. - (1) Neither the aggregate value of the dowry and presents given to the bride by her parents nor the aggregate value of the bridal gifts or of the presents given to the bridegroom shall exceed five thousand rupees. Explanation. The ceiling of five thousand rupees specified in this sub-section does not in any way imply that the dowry, bridal gifts and presents of a lesser amount may not be given. (2) No dowry, bridal gifts or presents may be given before or after six months of nikah and if rukhsati takes place some time after nikah, after six months of such rukhsati. 106Dowry and Bridal Gifts (Restriction) Act, 1976, section 3. Restriction on dowry, presents and bridal gifts. - (1) Neither the aggregate value of the dowry and presents given to the bride by her parents nor the aggregate value of the bridal gifts or of the presents given to the bridegroom shall exceed five thousand rupees.

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Bridal Gifts (Restriction) Act, 1976], a bride is the owner of the dowry and wari [gifts presented to bride from groom‟s side] articles irrespective of their values and she is entitled to retain it forever and to claim its return or the value thereof, if the same is kept back by her husband or any other person.‖107 This is despite the fact that law calls for confiscation of any dowry beyond the legal limit.108 Neither anyone was tried for violating the Dowry and Bridal Gifts (Restriction) Act, 1976 from the bride‘s side nor from the groom‘s side; neither before this judgment nor afterwards; just like thousands of such cases that are decided every month. To bring the open, public and blatant violations of this law even more apparent, another of its provisions restricts that the total expenditure on a marriage ceremony shall not exceed Rs. 2,500; which is equal to US dollars 25.109 Traditionally, there are at least three marriage functions110 which basically include dinner for the guests. The number of guests normally invited in marriages can be accessed from the capacity of the marriage halls, which, on average, caters for 500 guests.111 In such like halls, the normal per head meal charges for a marriage guests is Rs. 2,000.112 This means that if this law is followed, even the bride and groom cannot be served dinner on their wedding ceremony. I am not sure if the ceremonial and constant violations of this law should be more shocking or the unrealistic demands of it. But well, none is there; and no one is shocked.

4. Conclusion:

Explanation. The ceiling of five thousand rupees specified in this sub-section does not in any way imply that the dowry, bridal gifts and presents of a lesser amount may not be given. (2) No dowry, bridal gifts or presents may be given before or after six months of nikah and if rukhsati takes place some time after nikah, after six months of such rukhsati. 107 Gul Sher Vs. Mst. Maryam Sultana, 2011 YLR 1000, para-5. 108 Dowry and Bridal Gifts (Restriction) Act, 1976, section 9. 109 Dowry and Bridal Gifts (Restriction) Act, 1976, section 6. Expenditure on marriage. - The total expenditure on a marriage, excluding the value of dowry, bridal gifts and presents, but including the expenses on mehndi, baarat and valima, incurred by or on behalf of either party to the marriage shall not exceed two thousand and five hundred rupees. 110 Mehndi, Baraat and Walima. 111 www.hotelandhalls.com/shalimar-marriage. Accessed on 2nd of March, 2015. 112 Web address: http://he.com.pk/featured-posts/best-marriage. Accessed on 2nd of March, 2015.

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Whether its murder of the ―love-marriage‖ couple by the family in the name of family honour or flouting of dowry law, what we see is tussle between the law and our social values. In the name of pure faith, we have been induced by the conservative cultural values of the Arab peninsula. So now we are at war with ourselves. We are a five thousand years‘ old civilization with our established culture and very sophisticated values. And thus our interpretation of Islam had been very liberal and progressive. Development and popularity of Sufism stands witness to this fact. However, just a few decades ago, using us as mercenaries for its proxy war with Iran and Shia Islam, Arab Petro-dollars initiated a propaganda campaign telling us that we fools are nobodies to understand or interpret Islam; it can only be done by the people of the sacred land. We bought it for a time and got messed up. And now we are at war with ourselves, trying to figure out who knows our faith right; our hearts or our lords! Be that in the shape of orthodox interpretation of Islam, as in Hudood Ordinance, or in the expression of progressive interpretation of Islam, as in Family Ordinance, Dowry and Women Protection Acts, what our laws are trying to achieve are the ideals set by Islam. The question is, are we utilizing reason and logic to accomplish this sacred goal?

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Chapter 2

DEATH PENALTY Medical or Legal? 1. Introduction: History of Pakistan would have been different had it abolished Death Penalty before 1979. Zulfiqar Ali Bhutto,113 the democratically elected Prime Minister of Pakistan, who was hanged in 1979 in a politically maneuvered decision, would have been released after review of his case in 1988, when his ousting dictator General Zia ul Haq perished in an air crash and his daughter was elected as Prime Minister. “The most famous death row inmate, former Prime Minister Zulfiqar Ali Bhutto, was executed on 4 April 1979 on the charge of conspiring to murder a political opponent, after what was widely held to be an unfair and politicized trial. Bhutto‟s appeal to the Supreme Court was rejected by 4 judges out of 7; one of the 4 stated in hindsight that the death penalty should not have been awarded, and that he regretted his decision to condemn Bhutto to death, which was due mainly to the massive pressure he had been subjected to.” 114 Many people claim that Bhutto would have been to Pakistan what Nelson Mandela had been for South Africa and what Aung San Suu Kyi is for Myanmar; if, and only if, Pakistan did not have the harsh, brutal and irreversible penalty of killing people officially i.e., under the authority of law! This chapter looks at different philosophical, moral and utilitarian aspects of death penalty and sees whether it goes with our current values of collective conscience? Death penalty in many 113 114

Father of former Pakistani Prime Minister Benazir Bhutto. International Federation for Human Rights & Human Rights Commission of Pakistan, Report Mission of Investigation, Slow March to the gallows, Death Penalty in Pakistan, 2007, 17. Available at:http://www.fidh.org/IMG/pdf/Pakistan464angconjointpdm.pdf . Accessed on 13th January, 2016.

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countries is awarded for a number of different crimes ranging from murder to blasphemy to rape. As a test case, this chapter analyzes the justifiability of death penalty in cases of murder only. If death penalty cannot be justifiably awarded for murder, it cannot possibly be awarded for any other crime. A large majority of Pakistanis believe that death penalty is not only a just punishment for murder, it has a high degree of utility in terms of effectiveness. They argue passionately that in our socioeconomic conditions it is the only option available to keep an effective check on the homicide rate. It is the only punishment which creates special deterrent effect in the minds of the potential future murderers. Moreover, it is the only mode by which victim‘s death can be reattributed. Relying heavily on the notion that knowledge is by no means a product of presumptions115 and that truth lies in the mind of the beholder,116 this chapter analyzes viability of the major arguments in favour of retaining death penalty as a possible punishment for murder. Going one step further, the chapter argues that legal, ideological and Constitutional obstacles in abolishing death penalty from Pakistani jurisprudence can be overcome by utilizing the age old tool of legal fiction. To put the argument in perspective, the next section will take a glance over the creation and development of the concept of punishment in general.

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Steven Connor, Postmodernist Culture, An Introduction to Theories of the Contemporary, Blackwell, 1989 reprint 1994, 3, ―Knowledge, it is often claimed, can only be gained and enjoyed about what is in some sense over and done with.‖ Slavoj Zizek, Living in the End Times, Verso, 2010, xiv, ―Though one may be tempted to oppose these perspectives—the dogmatism of blind faith versus an openness towards the unexpected—one should nevertheless insist on the truth contained in the second version: truth, as opposed to knowledge, is, like a Badiouian Even, something that only an engaged gaze, the gaze of a subject who ―believes in it,‖ is able to see.‖

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2. Punishment & Its Evolution: Conceptually speaking, punishment is a society‘s reaction to crime.117 It used to be official revenge on victim‘s behalf which later on developed into a means to keep society safe of criminals: by reformation, isolation or termination. Claiming its justification originally from moral values, punishment, crossing the domain of divinity, landed in the realm of law. Law has its roots in the collective value system of the society.118 In the form of written word of statutes and judicial decisions, law is the executed expression of society‘s political decisions based on its collective conscience. But translation of political decisions of the society into executable legal decrees is not the only mode in which law functions. Many a time‘s law can be used as a tool to bring change in social values. When some of society‘s social values go rotten and require consciously engineered change, people who are placed by the society at the helm of its affairs are responsible to evaluate situations & issues rationally, and take pragmatic decisions leading to practical solutions, often violating and in the long run altering the social morality. Historically, institution of punishment came into being with the formation of first formal societies; the tribes.119 Benefits of keeping people together in the shape of a tribal society gave rise to the need for social order. Based on its immense utility, the rule of ‗officially‘ punishing rowdy tribesmen was ingrained in the moral fabric and later in the religious philosophy of the ancient societies. Thus, in time, backed by religion, institution of punishment became the foundational basis of tribal community‘s peace & order. In those primitive societies, barring few punishments which were executed directly on the orders of the tribal chief, rest of all the punishments were inflicted indirectly (by allowing the victim party to take its revenge) and were justified on the basis of Edwin H. Sutherland & Donald R. Cressey, Criminology (J.B. Lippincott Company, 1978) 301. 118 Al Gore, The Future, WH Allen, 2014, 363, ―Behaviors that bring rewards become more common. Those that don‘t diminish. The elements of our nature that are activated by rewarded behaviors gain strength. Social groups establish values that reflect both the behaviors they wish to reward and those they want to discourage. These values become embedded in tribes, communities, nations, economic systems, institutions, and cultures.‖ 119 Edwin H. Sutherland & Donald R. Cressey, Criminology (J.B. Lippincott Company, 1978), 305-308. 117

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retribution.120 Gradually, with the advent of modern society and development of social contract theory, state usurped complete authority of deciding the quantum and mode of punishment along with the sole responsibility to inflict it. And so rationality seeped in the criminal law.121 Admittedly, the modern criminal legal system is not an end in itself but is simply a means to achieve peace and order in the society.122 In contrast to ancient legal systems which were mainly based on the concepts of divine guidance and retribution, modern legal systems‘ objectives of criminal law are to prevent the commission of crime, discouragement of the potential criminals and isolation of criminals from society in order to keep the community safe of them.123 Thus, in terms of utility, punishments can aim for deterrence, isolation, reform, retribution or a combination of above.124 Punishment, to say the least, is horrible;125 a conscience and deliberate infringement of rights of a person, on behalf of the society. Just as in a living body—a biological society—a cell loses its individuality and is liable to be eliminated if it starts working against the living system of which it is a part; so does a person loses his individuality in a human society and is liable to infringement of his rights (punishment) if he starts working against the political decisions of the society. The institution of Punishment, however, raises extremely difficult, though very interesting, intellectual and philosophical Katherine S. Williams, Textbook on Criminology, 3rd ed, Blackstone Press Limited, 1997, 1. 121 Katherine S. Williams, Textbook on Criminology, 3rd ed, Blackstone Press Limited, 1997, 1. 122 J.C. Smith & Brian Hogan, Criminal Law, Butterworth & Co. (Publishers) Ltd, 7 th ed, 1992, 3. 123 J.C. Smith & Brian Hogan, Criminal Law, Butterworth & Co. (Publishers) Ltd, 7 th ed, 1992, 3. 124 J.C. Smith & Brian Hogan, Criminal Law, Butterworth & Co. (Publishers) Ltd, 7 th ed, 1992, 4. 125 J.M. Coetzee, Disgrace (Vintage, 1999) 219. ―What the dog will not be able to work out (not in a month of Sundays! he thinks), what his nose will not tell him, is how one can enter what seems to be an ordinary room and never come out again. Something happens in this room, something unmentionable: here the soul is yanked out of the body; briefly it hangs about in the air, twisting and contorting; then it is sucked away and is gone. It will be beyond him, this room that is not a room but a hole where one leaks out of existence.‖ 120

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questions. Is it justifiable for the non-victim to inflict pain on the offender? Should Punishment be inflicted as a means to an end or is it an end in itself? What is the objective criterion for coming up with a punishment which is equal or appropriate to the crime in question; the ―just Punishment‖? Starting with the pre-historic concept of Punishment, we will have a bird‘s eye view of different dominant arguments about the justification of the institution of Punishment and will then take a glimpse of various objectives that societies define as a goal of inflicting punishment.

2.1. What is Punishment?: Though punishment in general terms is a social term and in popular meanings varies from the wrath of gods to the scolding of a caring parent, its legal meanings are precise and definite. In legal parlance, Punishment can be simply described as a society‘s reaction to crime.126 Although the concept of crime is also an interesting subject to discover in its own right, we cannot go into such details and will take crime, for the purposes of our present discussion, in its generally accepted legal meanings. While Paton defines crime as a breach of public law,127 Salmond considers it to be an act deemed by law to be harmful to society in general.128 A workable definition of Punishment is ―infliction of hard treatment by an authority on a person for his prior failing in some respect (usually an infraction of a rule or command)‖.129 Not only is there a great confusion regarding the concept of punishment in its various social facets, but the scholars are not agreed even about a legal definition of punishment. Thus, there is a lot of debate about the nature and exact definition of Punishment, especially regarding its murky boundaries with tort. In this scenario, Hart130 Edwin H. Sutherland & Donald R. Cressey, Criminology (J.B. Lippincott Company, 1978) 301. 127 David P. Derham, A Text-Book of Jurisprudence by G.W.Paton (Oxford University Press, 1964 reprinted 1967) 317. 128 P.J. Fitzgeral, Salmond on Jurisprudence (Sweet & Maxwell, 1966); Reprinted by National Book Foundation of Pakistan, 92. 129 Joel Feinberg, Doing and Deserving (Princeton, N.J.: Princeton University Press, 1970); from Joel Feinberg & Hyman Gross, Philosophy of Law (Wadsworth Publishing Company, 1991) 635. 130 H.L.A. Hart. 126

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gives us a rather precise and comprehensive definition. Hart defines Punishment in terms of five elements that it must involve pain or other consequences normally considered unpleasant, while it must be for an offence/crime against legal rules. Furthermore it must be of an actual or supposed offender for his offence/crime, must be intentionally administered by human beings other than the offender, and it must also be imposed and administered by an authority constituted by a legal system against which the offence is committed.131 In addition to above elements, however, achievement of specific objectives, such as revenge or reformation, also seems to be a vital aspect of the punishment. Thus confinement of a psychotic person by legal order of an authority, although involves suffering of the confined which can be for inflicting injury to someone and thus breaking law, yet it is done neither as a result of guilt of the psychotic (revenge) nor considering that this will reduce the incidence of psychoses in the community (reformation);132 and so is not a punishment.

2.2. Historical Development of Punishment: Punishment, like crime, is an age old institution. We can safely say that the institutions of crime and punishment are as old as the institution of law, rather the institution of society itself. There has been a gradual evolution of concept of punishment. This evolution has been less entwined with the concept of crime and more with the perspective of intellectuals about society and the place of a citizen in it. Historically, three types of crimes followed by three types of punishments are found in the non-literate societies. The most serious category of offences, such as treason, would result in death penalty. Death penalty would be justified on the grounds that offender was pollution for the tribe and his elimination was required for the hygiene of the tribe as well as sacrifice to god. The second category of crimes were injuries inflicted by one family H.L.A Hart, Punishment and Responsibility (New York and Oxford: Oxford University Press, 1968); from Joel Feinberg & Hyman Gross, Philosophy of Law (Wadsworth Publishing Company, 1991) 657. 132 Edwin H. Sutherland & Donald R. Cressey, Criminology (J.B. Lippincott Company, 1978) 305. 131

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member to a member of another family of the same tribe. Such injuries including murder and theft were considered private injuries and punishment of the offender was the revenge taken by the victim party directly, without the intervention of the tribal society as a whole. Third group of offences were the injuries, including murder & theft, committed by a person against another member of his own family in the tribe. Such offences were punished only through expression of social disgust on the ground that physically punishing the offender will further weaken the victim family. With the rise of Kingship and institution of formal Courts backed by the central authority of State, crime and Punishment became public matters. ―It was not until the modern period that the clearly punitive reaction to crime-the purposive infliction of pain on the offender because of some assumed value of the pain-became popular.‖133

2.3. Philosophical Basis of Punishment: Punishment can be look at from two different aspects. Either it can be regarded as a method of protecting society by reducing the occurrence of criminal behavior, or else as an end in itself.134 The living legend John Rawls, maintains that there are two justifications for inflicting punishment i.e., Retribution and Utilitarian. Retribution entails that punishment is justified on the moral ground that a person who does wrong should suffer in proportion to his wrongdoing.135 Utilitarian view, on the other hand, holds that punishment is only justified if it effectively promotes the interests of the society. According to Rawls, whether one holds Retributive or Utilitarian view depends on the perspective from which punishment is looked at. Thus while a Retributionist would ask why ―J‖ was sent to jail, a Utilitarian would ask why do people put other people in jail? Thus Retributionist will get the answer that ―J‖ committed a crime, was caught, tried and was found guilty in trial which ended him up in the gallows. On the other hand, the answer to the question of a Edwin H. Sutherland & Donald R. Cressey, Criminology (J.B. Lippincott Company, 1978) 305-308. 134 P.J. Fitzgeral, Salmond on Jurisprudence (Sweet & Maxwell, 1966); Reprinted by National Book Foundation of Pakistan, 94. 135 John Rawls, Two Concepts of Rules, The Philosophical Review, Vol. 64 (1955) pp. 313, reprinted in Ethics by Lawrence M. Hinman, University of San Diego, 2. 133

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Utilitarian would be very different from the first answer as this question is not trying to understand the nature of an event, but the nature and the underpinnings of a phenomenon; a whole institution. Thus the Utilitarian answer would be that the ―J‖ was sent to jail in order to isolate him so as to protect good people from the bad ones. 136 At this stage, although briefly, yet it is essential that we have a taste of Islamic concept of punishment. The Islamic view of punishment is very different from the Western concept because western concept of punishment is based on a crime which is seen as a secular act of violating a social law. In contrast to western view, Islamic philosophy of punishment is very different as in Islam the concept of crime and sin are intertwined. Thus Islamic philosophy of punishment, although containing tinges of other aspects too, is overwhelmingly based on Deterrence (Zajr). As according to most of the Islamic Jurists, threat of punishment in the After-Life does not sufficiently deter people from committing crimes, which makes punishment in this world a necessity.137

2.4. Justification of Punishment: It seems that like every other field, the combat here too is between idealists138 and realists.139 Idealists see a situation or a problem from the point of view of a perfection to be achieved, no matter how difficult or unachievable it seems. On the other hand, realists see a problem with the sole purpose of solving it within the available and possible resources. Thus, while idealists relate punishment to guilt and moral liability of the offender, realists bind it to controlling the incidences of crimes in the society. The classical school of Rousseau, Montesquieu and Voltaire maintained the doctrine of psychological hedonism which stated 136

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John Rawls, Two Concepts of Rules, The Philosophical Review, Vol. 64 (1955) pp. 313, reprinted in Ethics by Lawrence M. Hinman, University of San Diego, 3. Rudolph Peters, Crime and Punishment in Islamic Law—Theory and Practice from Sixteenth to the Twenty-frist century (Cambridge University Press, 2005), 30. ―A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and wellarranged must be reformed or abolished if they are unjust.‖ John Rawls, A Theory of Justice (Oxford University Press, 1971) 3. ―Never forget that everything Hitler did in Germany was legal. Martin Luther King, Jr.‖ Rosemarie Jarski, A Word from the Wise (Ebury Press, 2006) 290.

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that individual calculates pleasures and pains in advance and regulates on the basis of his such calculations. They justified punishment by arguing that punishment tilts this calculation in favour of obeying laws. Like earlier period, issue of individual responsibility was not considered.140 After the classical school, at the time of French revolution, evolved the neo classical school. It maintained that there are exceptions to psychological hedonism. Such recognition of the exceptions meant that individual responsibility was to be taken into account. Later on, neo classical argument became the basic principle of the judicial and legal system of the western civilization during the last century. In the next step arose the positive school, which maintained that punishment can be justified only as a measure of self protection of the society from the criminals.141 The two basic philosophies or approaches to Punishment are, and have been, Retributive and Utilitarian.142 The Retributionists claim that the concept is different from revenge. While the revenge is personal and not proportional to the wrong done to the victim, Retribution is on behalf of whole of the society and inflicts punishment proportional to the crime. The rationale of the Retribution is based on three elements. Firstly, that committing a crime amounts to violation of the Social Contract143 and thus society gets the right to punish the culprit for such a violation. Secondly, that criminal deserves the punishment as he is guilty of an act which is not only wrong but is against the collective good and interests of the society. And thirdly, that punishing the offender is entwined in the very nature of the human being and thus is an essential feature of the society without which the social fabric cannot be maintained.144 On the other hand, the rationale of Punishment according to Utilitarianism is based on the principle that Punishment is a tool to keep the crimes in the Edwin H. Sutherland & Donald R. Cressey, Criminology (J.B. Lippincott Company, 1978) 308. 141 Edwin H. Sutherland & Donald R. Cressey, Criminology (J.B. Lippincott Company, 1978) 309. 142 Joycelyn M. Pollock, Prisons Today and Tomorrow (Jones and Bartlett Publishers, Inc, 2006), 3. 143 The famous theory that society is created through a contract by every member of the society thereby trading part of his liberty for the protection by the society. 144 Joycelyn M. Pollock, Prisons Today and Tomorrow (Jones and Bartlett Publishers, Inc, 2006), 4-5. 140

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society to the minimum.145 While an interesting realist view of the matter claims that state‘s justification of inflicting punishment on the offenders flow out of the moral outrage that citizens express against the crimes.146 Thus according to this view, the current reason d‘être behind the punishment is not objective reasoning, but emotional vigour which is hard-wired in the genetic system of the human being.

2.5. Punishment: What and How Much?: It has been argued147 that there are no objective rational criteria for measuring the ―just-ness‖ of a punishment inflicted for a particular crime; neither can it be! The decisions of the legal and the penal institutions of the society, regarding the mode and extent of punishment, are irrational. The decision that a particular act falls in the category of a crime148 and the consequent decision as to what punishment is to be awarded justly in a particular case, is essentially a moral decision and there being no criteria for taking such decisions, they are made arbitrarily.149 It has even been argued that incapacitation and rehabilitation do not fall in the definition of Punishments at all.150 A latest view on the subject states that ―[w]e do not punish on the basis of deliberative probability analysis. Rather, we punish in response to visceral, deeply held, and sometimes difficult-to-explain intuitions. Moreover, the degree of sanction is driven by moral outrage and various cognitive biases, not by scientific calculations of optimal

145

146

147

148

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Joycelyn M. Pollock, Prisons Today and Tomorrow (Jones and Bartlett Publishers, Inc, 2006), 5. Miriam H. Baer, Choosing Punishment, Boston University Law Review (2012) Vol.92, 577, 579. J. Charles King, A Rationale for Punishment, Journal of Libertarian Studies ( Spring 1980), 151-165. Miriam H. Baer, Choosing Punishment, Boston University Law Review (2012) Vol.92, 577, 596. But criminal philosophy has yet to distill, in a concrete and usable fashion, an objective means for identifying the quantum and nature of conduct that ―deserves‖ punishment. J. Charles King, A Rationale for Punishment, Journal of Libertarian Studies ( Spring 1980), 151-165, 161. Joycelyn M. Pollock, Prisons Today and Tomorrow (Jones and Bartlett Publishers, Inc, 2006), 7.

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deterrence.151 ―In addition, we are attracted to punishment‘s false promises of certainty and security. Individuals interpret factual situations in order to reduce ambiguity. Punishment deconstructs complex factual situations into easily digested narratives by soothing the public‘s psyche with reassurances that matters are relatively simple, attributable to identifiable actors, and best of all, avoidable in the future. Although much of this discussion pertains to laypersons, the same considerations affect public actors as well. First, public actors are human and therefore share the same emotions and intuitions as laypersons. Second, public actors maintain self-interested motives to enact policies that garner public support. Even for unelected public officials, public support translates into prestige, power, and financial resources. Punishment is therefore valuable.‖ However, it is also a fact that due process and fair trial clauses are meant to make the punishment just and fair. In United States of America, for instance, jury system is not only a constraint against the dictatorship of judges, it is also a tool to ensure that a random sample of society directly participates in inflicting the mode and degree of punishment on the offenders so as to give it an additional tinge of ―just-ness‖. While it is neither easy to philosophically justify having an institution of punishment nor to justify that there should be none, it is easy to see that it is pragmatic to have such an institution. Whether we call the jails ―prisons‖ or ―correction centers‖ or ―reformation centers‖, they seem to be indispensable. Just as society cannot work without formal laws, it seems that offenders being the essential part of the society, legal and punishing institutions are also universally required. The next question then arises that if it is indispensable to punish, what should be the objective of the punishment? Should we punish because it is morally correct to punish or should we punish in order to eradicate crime? Again, if we decide to punish morally, should we punish to balance the guilt or to comfort the victim? And if we decide to punish in order to control crime, should we punish to deter other potential offenders or should we

151

Miriam H. Baer, Choosing Punishment, Boston University Law Review (2012) Vol.92, 577, 588.

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design the punishment as a therapy to reform the criminal and treat him so he abstains from committing crimes in the future? All these approaches are possible and all these approaches are or have been applied in different legal systems of the world. Their results have been variant in different times at different places. While punishment, in contrast to private revenge by the victim, is indispensible, effectiveness of its mode and degree depends on time-space scale of each society. What matters in the time-space scale of a given society is its dominant moral philosophy. Thus we can conclude that as the rate and severity of crime are directly proportional to the standards of morality of a society, so are mode and severity of society‘s reaction to it i.e., punishment. Having discussed the concept of punishment in detail, we now narrow down our argument to the specific punishment with which we are primarily concerned in our thesis, the Capital Punishment.

3. Philosophical Justification of State Killing: Even on the philosophical plane, it is very difficult to justify a state‘s right to kill. The notion of a state having a right to kill provides no logical support to the notion that a state is right in killing.152 Arguing otherwise is a sure trap to Petitio Principii—the logical fallacy of circular argument. State gets right to kill simply by declaring so. The only condition on this unbridled power of the state is that this declaration should be made following the prescribed law making procedure. Thus a state would claim its right to kill as legal and valid if declaration to this effect has been made in accordance with the legal procedure. Therefore this killing right, although would have ample support of procedural compliance, would not be able to claim any moral or rational justification per se. The fact that a statute has been enacted by following the prescribed procedure correctly cannot justify the claim that it ‗should‘ have been enacted in the first place.153 So 152Hugo

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Adam Bedau, Death is Different: Studies in the Morality, Law, and Politics of Capital Punishment, Boston, Northeastern University Press, 1987, 46-63. Quoted in Joel Feinberg & Hyman Gross (ed), Philosophy of Law, Wadsworth Publishing Company, 1975, 4th ed, 1991, 778. Hugo Adam Bedau, Death is Different: Studies in the Morality, Law, and Politics of Capital Punishment, Boston, Northeastern University Press, 1987, 46-63. Quoted in Joel Feinberg & Hyman Gross (ed), Philosophy of Law, Wadsworth Publishing Company, 1975, 4th ed, 1991, 778.

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state‘s justification to kill cannot be derived from legality or validly of its ‗death statutes‘. It will have to be looked for in the depths of ethics and rationality. One argument equates state and its citizen thereby holding that destroying state‘s peace and order amounts to killing it; which grants the state a right to kill such criminal citizen in self defence. Even without going into the fallacy of equating state with its citizen, it is evident that an attempt to level state‘s right of granting death penalty with a citizen‘s right of self defense is naïve, to say the least. Citizens are given right to kill in self-defense on the basis of special circumstances where a citizen‘s life comes under serious and imminent threat of being taken without the authority of law, where there is not enough time for law to take appropriate action, and where there is no alternative except to kill the attacker in order to save a life being taken unlawfully. Although a murderer violates the laws of the State and thus, in a sense, attacks its existence, neither such action poses any serious and imminent threat to State‘s existence nor is there any shortage of very feasible alternatives.154 A powerful argument of retentionists‘ is based on retribution; claim that emotional satisfaction of the victim‘s family, by doing unto the criminal what he did unto the victim, is essential to attain social peace and ideal justice. Now if it is claimed that law wants to equal scores with the murderer on the basis of tit-for-tat, ideally speaking murderer should be awarded death penalty in exactly the same manner, however brutal and inhuman that may be, in which he had killed the victim.155 But for that, civilization is claimed to have grown too mature.156 A heavy weight view against retaining death penalty is that not only it psychologically places ‗killing in

Hugo Adam Bedau, Death is Different: Studies in the Morality, Law, and Politics of Capital Punishment, Boston, Northeastern University Press, 1987, 46-63. Quoted in Joel Feinberg & Hyman Gross (ed), Philosophy of Law, Wadsworth Publishing Company, 1975, 4th ed, 1991, 781-782. 155 Hugo Adam Bedau, Death is Different: Studies in the Morality, Law, and Politics of Capital Punishment, Boston, Northeastern University Press, 1987, 46-63. Quoted in Joel Feinberg & Hyman Gross (ed), Philosophy of Law, Wadsworth Publishing Company, 1975, 4th ed, 1991, 786. 156 The State Vs. T Makwanyane and M Mchunu, Constitutional Court of the Republic of South Africa, Case No. CCT/3/94, decided on 06.06.1995, Para-233. Available at: http://www.saflii.org/za/cases/ZACC/1995/3.html. Accessed on: 13th January, 2016. 154

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retribution‘ on the legal plane,157 it also lowers the moral code of the society resulting in extinguishing of community‘s respect for life and brutalization of collective values of the society.158 Though punishment has always been a social necessity, and still remains so; death penalty, although has always been an essential, rather popular punishment in ancient legal systems, is no more essential. Proportionality and utility of punishment are at the base of contemporary legal systems; that is why mens rea is an essential element in modern concept of crime. It is utilized in order to objectively ascertain the intention and circumstances of the crime committed, so that accidental criminals can be suitably punished, mainly as a warning to them as well as others, and then assimilated back in the society while the habitual trouble makers can be marked and quarantined. Ancient mode of permanently getting rid of the dangerous trouble makers has always been execution. However, one rather humane way of keeping the society safe and free of trouble makers is to sentence them to long imprisonments, which can be made to last, say, till the natural death of the convict. In this respect, however, the argument for abolition of death penalty is not based on the ground of granting lesser penalty, since very long imprisonments, like the ones lasting till the natural death of the prisoner or comparable, can be anything but punishments ‗lesser‘ than execution. The case for abolition of death penalty is also not based on the premise of having any kind of sympathy with the murderer, rather it is based on the concept that death penalty is no longer consistent with our self-respect.159 Recognition of global value against retention of death penalty is evident from the fact that more and more countries are abolishing it. Since the start of this millennium, at least 18 more John Lamperti, Ph.D., Does Capital Punishment Deter Murder? A Brief Look at the Evidence, 2010, 8. Available at: https://www.math.dartmouth.edu/~lamperti/my%20DP%20paper,%20curren t%20edit.htm. Accessed on 13th January, 2016. 158 Furman Vs. Georgia, United States Supreme Court, 1972, 408 U.S. 238 (1972). Quoted in Joel Feinberg & Hyman Gross (ed), Philosophy of Law, Wadsworth Publishing Company, 1975, 4th ed, 1991, 766. 159 The State Vs. T Makwanyane and M Mchunu, Constitutional Court of the Republic of South Africa, Case No. CCT/3/94, decided on 06.06.1995, Para-189. Available at: http://www.saflii.org/za/cases/ZACC/1995/3.html. Accessed on: 13th January, 2016. 157

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countries have abolished death penalty from their law codes.160 Moreover, even Rome Statute of the International Criminal Court and the Unites Nations Security Council resolutions establishing the International Criminal Tribunals for former Yugoslavia and Rwanda, though established to try most heinous crimes, do not allow infliction of death penalty on the convicts.161 Death penalty is a punishment which is irreversible immediately and completely and in case of conviction of an innocent, if discovered later on, there is no way of undoing the wrong, even in part. It was precisely for this reason that in the year 2003, Governor Ryan of the State of Illinois in the United States of America imposed a moratorium on the death penalty after discovering that 13 of the 167 convicts on the death row were innocent.162 By any standard, there is more than fair chance that our system of criminal justice will produce a much higher ratio of innocent convicts, if proper audits are carried out. We do not allow abortion at any stage of the conception, although we are not sure at which stage life begins in the fetus, because we consider human life too sacred to be terminated unnaturally by humans. We do not allow euthanasia, although we may be certain that there is no chance of recovery and that patient is undergoing an agonizing torture, again because we consider human life too sacred. But we do not consider human life sacred enough to abolish death penalty and opt to continue to kill people, calculatedly and legally, basically for two reasons: firstly to do unto them what they have done unto others, and secondly, to

International Commission against the Death Penalty, The death penalty and the “most serious crimes”, A country by country overview of the death penalty in law and practice in retentionist states, January, 2013, 7. Available at: http://www.icomdp.org/cms/wp-content/uploads/2013/02/Most-seriouscrimes_final_6Feb2013.pdf. Accessed on 13th January, 2016. 161 International Federation for Human Rights & Human Rights Commission of Pakistan, Report Mission of Investigation, Slow March to the gallows, Death Penalty in Pakistan, 2007, 10. Available at:http://www.fidh.org/IMG/pdf/Pakistan464angconjointpdm.pdf. Accessed on 13th January, 2016. 162 International Federation for Human Rights & Human Rights Commission of Pakistan, Report Mission of Investigation, Slow March to the gallows, Death Penalty in Pakistan, 2007, 9. Available at: http://www.fidh.org/IMG/pdf/Pakistan464angconjointpdm.pdf. Accessed on 13th January, 2016. 160

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‗scare‘ others. The chances of innocents being executed in this process by mistake are considered ‗collateral damage‘! After analyzing the concept of death penalty from philosophical angle and considering if state can justifiably claim to have a right to kill its rowdy citizens, the next section will look at the issue empirically and will examine whether the experimental data supports the argument that death penalty in fact plays a role in lowering the homicide rate?

3.1. Utility of Death Penalty: Death is one of the oldest punishments in legal history. However, this reminiscence of the past is still very rampant in the modern day world. By the figures covering period up to 2010, criminal justice system of 102 nations of the world have death penalty for different crimes while 95 nations have abolished it.163 This means that our globe, in terms of number of states, is roughly divided equally on the question of justifiability of death penalty. So here is a live and a lethal issue on which the world is divided equally. This sounds challenging; both ways! Modern day proponents of death penalty invoke all the aims of punishments in their favour; all but one—reformation. First of all it is claimed that death penalty is ‗the‘ most effective deterrent against a crime, and thus is justified as an appropriate punishment for heinous crimes like murder. Thus, on the basis of utility it is the most useful and beneficial punishment for the greatest good of the greatest number of people in the society. This argument, strong as it is, has one inherent weakness; it is based on a premise that can be verified empirically. And so was it done, over and over again. The hypothesis: ―Does death punishment provide a better deterrent to murder than long punishment?‖ was repeatedly verified by empirical data.164 163

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David Garland, Why Does the U.S. Have Capital Punishment? Published 2012, 2. Available at: http://photos.state.gov/libraries/amgov/133183/english/P_You_Asked_Why CapitalPunishment_English.pdf. Accessed on 13th January, 2016. John Lamperti, Ph.D., Does Capital Punishment Deter Murder? A Brief Look at the Evidence, 2010, 1. Available at: https://www.math.dartmouth.edu/~lamperti/my%20DP%20paper,%20curren t%20edit.htm. Accessed on 17th August, 2014

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Apparently there were some states imposing death penalty which had higher murder rate than those which had abolished it.165 Moreover, many states in USA abolished death penalty and after few years re-introduced it. This provided a golden opportunity to conduct specific empirical studies on the reliable and comprehensive data. All the changes in homicide rate after abolition of death penalty and also after its re-introduction were duly recorded and scientifically studied. However, no deterrent effect of death penalty on homicide rate could be detected.166 Even a niche argument that death penalty has special deterrent effect in cases of murder of police and prison staff, failed the scientific test.167 A critical study of data and methods used for extracting and verifying empirical evidence in support of deterrent effect of death penalty on homicide rate was conducted by Donohue and Wolfers concluding that death penalty is not a major influence on the murder rate of a state.168 In 1972 Federal Supreme Court of United States of America held that169 death penalty was violative of U.S. Constitution. The view was over ruled by the Supreme Court in 1976. This period of (https://www.dartmouth.edu/~chance/teaching_aids/books_articles/JLpaper .pdf . Accessed on 13th of January, 2016). 165 John Lamperti, Ph.D., Does Capital Punishment Deter Murder? A Brief Look at the Evidence, 2010, 3. Available at: https://www.math.dartmouth.edu/~lamperti/my%20DP%20paper,%20curren t%20edit.htm. Accessed on 17th August, 2014 (https://www.dartmouth.edu/~chance/teaching_aids/books_articles/JLpaper .pdf . Accessed on 13th of January, 2016). 166 John Lamperti, Ph.D., Does Capital Punishment Deter Murder? A Brief Look at the Evidence, 2010, 4. Available at: https://www.math.dartmouth.edu/~lamperti/my%20DP%20paper,%20curren t%20edit.htm. Accessed on 17th August, 2014 (https://www.dartmouth.edu/~chance/teaching_aids/books_articles/JLpaper .pdf . Accessed on 13th of January, 2016). 167 Baily & Peterson, Murder, Capital Punishment and deterrence: a review of the evidence and an examination of police killings, Journal of Social Issues, 1994, 53-74. Quoted in John Lamperti, Ph.D., Does Capital Punishment Deter Murder? A Brief Look at the Evidence, 2010, 5. Available at: https://www.math.dartmouth.edu/~lamperti/my%20DP%20paper,%20curren t%20edit.htm. Accessed on 17th August, 2014 (https://www.dartmouth.edu/~chance/teaching_aids/books_articles/JLpaper .pdf . Accessed on 13th of January, 2016). 168 John J. Donohue and Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 Stanford Law Review, 791-846, 2006, 841. 169 Details below.

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unconstitutionality of death penalty provided remarkable opportunity to the researchers to collect data and scientifically study the deterrent effects of death penalty on murder rate.170 Despite performing thorough statistical studies on the data for the period before 1972, when the death penalty was legal, from 1972 to 1976, when the death penalty was abolished, and for the period after 1976, when the death penalty was re-instated in those states, no evidence could be found to support the hypothesis that death penalty is more effective deterrent than long imprisonment sentences.171 This scenario, however, is not United States specific. For instance, Canada abolished death penalty in 1976 and in next 25 years its homicide rate fell to almost half. On the other hand, as of year 2000, homicide rate of USA, where in majority of states death penalty is applicable, was almost 3 times higher than Canada. Not only that, but European Union countries, where abolition of death penalty is a pre-condition to join the Union, have much lower crime rate than USA.172 A very persuasive argument by the third world countries in favour of retaining death penalty is the difference of socioeconomic conditions between developing and the developed nations. It is argued that due to difference of such socio-economic conditions, other penalties may have proved to be sufficient deterrence in developed nations but in developing countries death penalty is the only effective deterrent.173 Nevertheless, in support

Tammra Hunt, Does Death Penalty Deter Murder? Research Methods in Economics, Fall 2004, 8. Available at: http://www.bus.ucf.edu/faculty/rhofler/file.axd?file=2011%2F2%2FHuntDeath+penalty.pdf. Accessed on 17th August, 2014. 171 Tammra Hunt, Does Death Penalty Deter Murder? Research Methods in Economics, Fall 2004, 13. Available at: http://www.bus.ucf.edu/faculty/rhofler/file.axd?file=2011%2F2%2FHuntDeath+penalty.pdf. Accessed on 17th August, 2014. 172 International Federation for Human Rights & Human Rights Commission of Pakistan, Report Mission of Investigation, Slow March to the gallows, Death Penalty in Pakistan, 2007, 8. Available at: http://www.fidh.org/IMG/pdf/Pakistan464angconjointpdm.pdf. Accessed on 13th January, 2016. 173 The State Vs. T Makwanyane and M Mchunu, Constitutional Court of the Republic of South Africa, Case No. CCT/3/94, decided on 06.06.1995, Para-116. Available at: http://www.saflii.org/za/cases/ZACC/1995/3.html. Accessed on 13th January, 2016. 170

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of this argument no material from any country of the world including the developing ones, could ever be produced.174 Arguing for abolishment of death penalty does not mean that penalty for murder is to be made softer or lesser.175 It is just a question of change of mode of punishment without compromising on its quantum, harshness or proportionality. As a matter of fact, the actual deterrence is the certainty in the mind of the criminal that he will be arrested, convicted and punished promptly; not that the punishment prescribed, however remote the possibility of its actual infliction may be, is harsh.176 Thus it has been concluded by United States of America‘s National Academy of Science that 10% increase in the probability of arrest and conviction would lower twice as many crimes as would be lowered by a similar increase in the severity of punishment.177 Moreover, when state kills a person to deter others, it uses a human being as a tool to achieve its administrative goals. Such a calculated killing in cold blood, to serve state‘s administrative objectives, strips the offender of his humanity and lowers the dignity of a human being to the scale of a mere tool.178 A valid question arises that if the empirical evidence is so clear that death penalty has no special deterrence against crime, why is it so difficult to convince peoples and authorities to abolish it? US Presidential election campaign for the year 2000 may shed some The State Vs. T Makwanyane and M Mchunu, Constitutional Court of the Republic of South Africa, Case No. CCT/3/94, decided on 06.06.1995, Para-146. Available at: http://www.saflii.org/za/cases/ZACC/1995/3.html. Accessed on 13th January, 2016. 175 The State Vs. T Makwanyane and M Mchunu, Constitutional Court of the Republic of South Africa, Case No. CCT/3/94, decided on 06.06.1995, Para-123. Available at: http://www.saflii.org/za/cases/ZACC/1995/3.html. Accessed on 13th January, 2016. 176 The State Vs. T Makwanyane and M Mchunu, Constitutional Court of the Republic of South Africa, Case No. CCT/3/94, decided on 06.06.1995, Para-122. Available at: http://www.saflii.org/za/cases/ZACC/1995/3.html. Accessed on 13th January, 2016. 177 International Federation for Human Rights & Human Rights Commission of Pakistan, Report Mission of Investigation, Slow March to the gallows, Death Penalty in Pakistan, 2007, 8. Available at: http://www.fidh.org/IMG/pdf/Pakistan464angconjointpdm.pdf. Accessed on 13th January, 2016. 178 The State Vs. T Makwanyane and M Mchunu, Constitutional Court of the Republic of South Africa, Case No. CCT/3/94, decided on 06.06.1995, Para-316. Available at: http://www.saflii.org/za/cases/ZACC/1995/3.html. Accessed on 13th January, 2016. 174

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light on this phenomenon. In the earlier part of the year 2000, US Attorney General Janet Reno stated, ―I have inquired for most of my adult life about studies that might show that the death penalty is a deterrent, and I have not seen any research that would substantiate that point.‖ However, later that year, in Presidential debates, George W. Bush stated that death penalty ―saves other peoples‟ lives.‖179 Thus the political questions which need to be settled by public through vote are still settled by popular slogans and presumptive beliefs, without least reference to the empirical evidence or logical arguments. Another argument in favour of retaining death penalty is retribution. Vengeance is one of the basic human instincts, much like love, they say. Therefore, in order to satisfy the basic emotional need of the victim‘s family, punishment should be inflicted on the criminal to avenge the crime. In case of murder, therefore, vengeance demands that murderer should be murdered to keep the scores even. Powerful though it is, this argument confuses positive and negative human instincts. In addition, it ignores thousands of years of development of human conscience, social values and human civilization. Death penalty is a fossilized punishment of an ancient system of criminal administration of justice based on vengeance. Civilized justice has arisen above this outmoded and brutal notion of retribution by adopting symbolic yet proportional punishments180 which need not repeat the crime for doing complete justice.181 The point here is not to deny the righteous anger of the murder victim‘s family or abhorrence of society for this heinous crime, but to stress that capital punishment is not the only appropriate way available to the society for expression of its moral John J. Donohue and Justin Wolfers, The Death Penalty: No Evidence for Deterrence, The Berkeley Electronic Press, Economists‘ voice, 2006, 1. Available at: http://www.deathpenaltyinfo.org/DonohueDeter.pdf. Accessed on 13th January, 2016. 180 International Federation for Human Rights & Human Rights Commission of Pakistan, Report Mission of Investigation, Slow March to the gallows, Death Penalty in Pakistan, 2007, 9. Available at: http://www.fidh.org/IMG/pdf/Pakistan464angconjointpdm.pdf. Accessed on 13th January, 2016. 181 The State Vs. T Makwanyane and M Mchunu, Constitutional Court of the Republic of South Africa, Case No. CCT/3/94, decided on 06.06.1995, Para-197. Available at: http://www.saflii.org/za/cases/ZACC/1995/3.html. Accessed on 13th January, 2016. 179

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outrage at this vile crime. We neither put out the eyes of a criminal who has blinded another nor sentence the rapist to undergo rape. ―The state does not need to engage in the cold and calculated killing of murderers in order to express moral outrage at their conduct. A very long prison sentence is also a way of expressing outrage and visiting retribution upon the criminal.‖182 Although retribution does not make a powerful argument for the biblical notion of an eye for an eye, it does make a good case for a proportionally harsh sentence. But an argument for abolition of death penalty is never based on getting soft on the murderer notion. It will be hard to argue that a sentence of 100 years of rigorous imprisonment would in any way be less harsh than death penalty, for instance. Lastly comes the case of isolation. The oldest argument employed in support of death penalty by the ancient tribal societies, other than God‘s injunction, was hygiene. Offenders were considered filth to be permanently removed from the society. In times when human intellect had not created institution of prison, death penalty would have been the only way to attain this goal. However, very long prison sentence can provide a viable alternate to achieve this end in the modern day system of administration of justice. A need to permanently eliminate a murderer from society can be achieved by putting him in prison, permanently. After dealing with conceptual basis of the argument, and before indulging into the issues involved in the Pakistani jurisprudence of capital punishment, next section will take the overview of death penalty jurisprudence in European Union and United States of America.

3.2. European Union & United States of America: In Pakistan, it is a general perception that Western world is itself convinced of the utility of retaining death penalty but push 182

The State Vs. T Makwanyane and M Mchunu, Constitutional Court of the Republic of South Africa, Case No. CCT/3/94, decided on 06.06.1995, Para-129. Available at: http://www.saflii.org/za/cases/ZACC/1995/3.html. Accessed on 13th January, 2016.

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third world countries, especially the Islamic countries and specifically Pakistan to abolish it, in order to create anarchy therein. Therefore it would be useful to see what exactly is the stance versus situation of the European Union and specially United States of America to understand whether they are justified in lobbying for abolition of death penalty or are they simply using it as a tool to put pressure on other countries for some covert purposes? The position of European Union is clear; it encourages states to the point of pushing for abolition of death penalty because it has abolished it on the ground of being immoral, brutal and below human dignity.183 The position of United States of America, however, is complicated. While USA campaigns for abolition of death penalty, in majority of its constituting states184 death penalty is legal. In USA authority to legalize death penalty or to abolish it lies with the legislatures of its federating states. Only condition on them is that it should not violate any provision of federal Constitution. A question came up before the federal Supreme Court of USA in 1972 as to whether the imposition of capital punishment amounts to cruel and unusual punishment, which has specifically been prohibited by the Constitution of USA.185 Holding that death penalty was an awesome punishment, US Supreme Court held it violative of the federal Constitution in the manner in which it was being executed.186 However, in the 1976 case187 US Supreme Court, in the background of a nationwide reaction to the Furman Case,188 over-ruled that decision and held that if a state decides to legalize death penalty with some procedural checks, then the death penalty will not be violative of the US Constitution.

International Federation for Human Rights & Human Rights Commission of Pakistan, Report Mission of Investigation, Slow March to the gallows, Death Penalty in Pakistan, 2007, 8. Available at: http://www.fidh.org/IMG/pdf/Pakistan464angconjointpdm.pdf. Accessed on 13th January, 2016. 184 37 States by the figures of 2008. 185 Furman Vs. Georgia, United States Supreme Court, 1972, 408 U.S. 238 (1972). 186 Furman Vs. Georgia, United States Supreme Court, 1972, 408 U.S. 238 (1972). Quoted in Joel Feinberg & Hyman Gross (ed), Philosophy of Law, Wadsworth Publishing Company, 1975, 4th ed, 1991, 764. 187 Gregg Vs. Georgia, United States Supreme Court (1976), 428 U.S. 153. 188 Furman Vs. Georgia, United States Supreme Court, 1972, 408 U.S. 238 (1972). 183

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“The most marked indication of society‟s endorsement of the death penalty for murder is the legislative response to Furman. The legislatures of at least 35 states have enacted new statutes that provide for the death penalty for at least some crimes that result in the death of another person. And the congress of the United States, in 1974, enacted a statute providing the death penalty for aircraft piracy that results in death……But all the post-Furman statutes make clear that capital punishment itself has not been rejected by the elected representatives of the people. In the only statewide referendum occurring since Furman and brought to our attention, the people of California adopted a Constitutional amendment that authorized capital punishment, in effect negating a prior ruling by the Supreme Court of California…..that the death penalty violated the California Constitution.” 189 While political support shown by the majority of Americans in favour of retaining death penalty is often cited as the major factor behind US Supreme Court‘s over-ruling Furman Case190 in its Gregg judgment of 1976,191 there is a strong possibility of another very dangerous factor, and that is mis-representation of empirical evidence. When in its 1972 Furman decision192 US Supreme Court held that the then existing state statutes providing death penalty were violative of US Constitution, Isaac Ehrlich published his analysis of national time series data claiming that his analysis proved that each death penalty saved 8 lives by creating a very special deterrent effect which no other punishment was able to produce. Solicitor General pleading in US Supreme Court next year, for a decision in favour of death penalty, in Gregg‘s case193 did cite Ehrlich‘s analysis as a piece of scientific evidence proving utility of Gregg Vs. Georgia, United States Supreme Court (1976), 428 U.S. 153. Quoted in Joel Feinberg & Hyman Gross (ed), Philosophy of Law, Wadsworth Publishing Company, 4th ed, 1991, 772. 190 Furman Vs. Georgia, United States Supreme Court, 1972, 408 U.S. 238 (1972). 191 David Garland, Why Does the U.S. Have Capital Punishment? Published 2012, 3. Available at: http://photos.state.gov/libraries/amgov/133183/english/P_You_Asked_Why CapitalPunishment_English.pdf. Accessed on 13th January, 2016. 192 Furman Vs. Georgia, United States Supreme Court, 1972, 408 U.S. 238 (1972). 193 Gregg Vs. Georgia, United States Supreme Court (1976), 428 U.S. 153. 189

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death penalty. It is claimed that this must have a persuasive effect on the Supreme Court. However, as the situation unfolded, Ehrlich‘s analysis was found incorrect and this led to US National Academy of Sciences to issue its 1978 report clarifying that there was no valid empirical evidence to support special deterrent effect of death penalty.194 Although all the empirical evidence collected by the US intelligentsia points towards the non-existence of any special deterrent effect of death penalty and it is making a case for abolition at home and abroad, the popular belief there still is that it does. So death penalty in US has two faces: popular and intellectual. While the popular belief in US is still faithful to the divine utility of the biblical notion of an eye for an eye, the rationally considered opinion is striving hard to claim its place in the social horizon. In the back drop of popular political rhetoric, to say the least, this sounds familiar in Pakistani situation as well. But before turning our focus to Pakistani Constitutional context, let‘s first grasp the emergence and developments of the postmodern concept of Human Rights.

4. Concept of Human Rights: ―[W]ar crimes are being committed in special women‟s concentration camps where little girls, girls and women are being raped in the presence of their parents, brothers and sisters, husbands or children. After that, according to witnesses‟ statements, the raped persons are further brutalized and even massacred, their breasts are sliced off and their wombs are ripped out….The young girls couldn‟t physically survive the rapes and quickly died…..[O]ver 300 young girls in The Home for Retarded Children were raped.‖195 Such incidents were not as rare as the conquest of Troy through Trojans‘ horse. These brutalities and inhumanities had become part of everyday life of sizeable portion of human civilization; civilization that is nearest to us in historical time and was at the zenith of its intellectual triumph in the turbulent times of the catastrophe that engulfed the entire world for more than half 194

195

John J. Donohue and Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 Stanford Law Review, 791-846, 2006, 792. Stephen Shute and Susan Hurley (Ed), On Human Rights, The Oxford Amnesty Lectures, 1993 (Basic Books, A Division of HarperCollins Publishers, 1993) 2.

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the decade and is now remembered as the Second World War. It was in fact this height of inhumanity by the humans which became the catalyst for the emergence of Human Rights. This part of the chapter will start with general introduction of rights in a politico-legal system from where a historical string of different philosophical approaches to inherent natural rights of men will be traced. Thereafter emergence of Human Rights as a result of atrocities committed in the Second World War will be analyzed ending on the postmodern panoramic view of the reality and Human Rights. This will provide the back-ground against which Pakistani Constitutional principles should be interpreted.

4.1. Human Rights Are Basic Rights: A loosely defined set of values and a general perception of goodness in a society, which the society is ready to force upon its members by showing its displeasure but without the use of any organized force, is called its morality. Law, on the other hand, is the set of political decisions of the society which are implemented by the organized arm of the society i.e., government. In this state of affairs, a right is a social privilege which a person is entitled to claim against other members of the community. If the force behind this claim is the general social will of the community, the privilege is known as moral right. However, if the force behind the protection and enforcement of such a social privilege is the legal force of the polity, the privilege is called legal right or simply the right. In all the developed legal systems, especially the ones based on written constitutions, there are at least two hierarchies of rights; legal rights and fundamental or constitutional rights. Legal rights are the privileges which cannot be taken away from the citizens unless a majority of the representatives of the whole of the society votes in favour of such a lapse. This is called the democratic protection of the citizens‘ legal rights and in this respect these are much secure than an individual member‘s moral right, the snatching of which is absolutely free of any such procedural requirements. Constitutional rights, on the other hand, are considered even more secure because written constitutions are normally rigid and require more than simple majority of the polity before these can be amended. Thus a right which has been given

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by a Constitution cannot be taken away by simple majority vote and is more secure than a mere legal right. Likewise, a Human Right is a right which has been bestowed upon every person of the world by the international community of states and has been enshrined in the Universal Declaration of Human Rights of 1948. In that sense a Human Right cannot be snatched away from a person even by the unanimous decision of his society or state. In this view of the matter, a Human Right is a very special kind of a right. There are several popular definitions of Human Rights, but the one given by the Nobel Laureate Amartya Sen is simple and specific. He defines Human Rights as those rights which every person anywhere in the world, irrespective of citizenship or territorial legislation has, and which others are obliged to respect.196

4.2. Origins and Evolution of Human Rights: Human civilization has a long tradition of recognizing that human beings get certain rights by virtue of their species i.e., being humans. This idea has been recognized by both religious as well as secular scholars. In terms of philosophy, these rights are often called natural rights.197 Natural rights are a product of natural law tradition, which is a phenomenon of classical era of philosophy. For the Classical world view, universe was based on basic eternal principles, be they religious doctrines of Judaism, Buddhism or Christianity, or the ultimate truths of the Greek philosophers like Justice and Goodness. The idea was that just as the working of the universe was based on the ultimate principles, so the natural working of the social and individual human life is also based on the ultimate and eternal principles. In order to lead a just and happy individual as well as social life man had only to discover and follow these eternal Grund norms. Natural law world view maintained that human beings have a certain definitive character or nature which obligates that certain Amartya Sen, Elements of a Theory of Human Rights, Philosophy and Public Affairs [Fall 2004] 315-356, 315. 197 Jonathan Crowe, Explaining Natural Rights: Ontological Freedom and The Foundations of Political Discourse, New York University Journal of Law & Liberty [2009] 70111, 71. 196

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privileges should always remain available to every human being, above and beyond circumstantial realities.198 Unless recognized by a certain politico-legal system as rights, the status of these rights, for a given politico-legal system, remains that of a moral right. This moral character of natural rights takes them above the recognition mechanisms of a particular politico-legal system and makes them available to every member of the human species, irrespective of sex or ethnicity. In this sense, natural rights rightly claim to be predecessors of modern day concept of Human Rights.199 The history and development of natural rights can be traced all the way back to the start of recorded history; and interestingly, their assertion and development, in one form or another, have always been enshrined in the human thought. Thus Code of Hammurabi (Babylon-Iraq, 1795-1750 BC), in its preamble defined the fundamental function of government as: ―to bring about the rule of righteousness in the land, to destroy the wicked and the evil-doers, so that the strong should not harm the weak……and enlighten the land, to further the well being of mankind.‖ Then came the Egyptian civilization of Pharaohs which defined the main purpose of its law as to ―make sure that all is done according to the law, that custom is observed and the right of each man respected.‖ Persian civilization under Cyrus the Great recognized liberty and security, freedom of movement and religious belief and property rights for all. Judaism provides, in Old Testament, Isaiah 58:6-7: ―undo the tongs of the yoke, let the oppressed go free…..share your bread with the hungry, and bring the homeless poor into your home.‖ Vedas of Aryan Civilization of India provide ―noninjury is not causing pain to any living being at any time through the action of one‘s mind, speech or body‖. Buddhism, from the land of great Indus Valley Civilization provides dignity of all forms of life and duty of all of compassion and charity to others irrespective of sex or ethnicity. Confucianism from the lands of China proclaims that ―within the four seas all men are brothers‖ and further ―do not impose on other what you yourself do not desire.‖ Greek philosophy developed the idea of natural law which included the concepts of equal respect for all citizens and equality 198

199

Susan Muaddi Darraj, The Universal Declaration of Human Rights (Chelsea House Publishers, An imprint of Infobase Publishing, 2010) 24. Robert P. George, Natural Law, Vol. 31 Harvard Journal of Law & Public Policy, No. 1 [2008] 171-196, 174.

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of all before law. The Great Chinese General Sun Tzu in his world renowned treatise of war The Art of War (4th Century BC) directs that an obligation exists to care for the wounded and prisoners of war. The edicts of Asoka the Great (India, 300 BC) guaranteed freedom of religion and other fundamental rights for all. The great Indian laws of Manu prohibit killing of anyone who is sleeping; who is unarmed; the one who is naked; anyone who is deprived of his weapons; one who is only looking on and not fighting, and also not to kill anyone who is engaged in fighting with another person. Prisoners of war, the sick and the wounded were also to be well treated. Great Roman senator Cicero maintained that each person had inherent dignity which obliges others to respect it. Christianity in New Testament ordained that ―there is neither Greek nor Jew, nor slave nor free, nor man nor woman, but we are all one in Christ‖ and also to ―do unto others as you would have them do unto you.‖ Islam is also a prominent proponent of natural rights wherein the sacred book Quran proclaims sanctity of human life, freedom, mercy, compassion and respect for all the human beings without regard to race or sex. The Common law milestones of Magna Carta (1215), Petition of Rights (1628) and Habeas Corpus Act (1679) assures that ―no freeman shall be arrested, or detained in prison or deprived of his freehold…..except by the lawful judgment of his pears or by the law of the land. Hungarian King Andras (1222 AD) recognized the rights of the citizens to disobey royal acts not conforming to the rule of law. British Philosopher John Locke in his Second Treatise of Government (1690 AD) declared that every human being, even in the state of nature and before existence of any organized political government, possessed certain natural rights which are intrinsic to him being the member of human species. In French Revolution, Declaration of the Rights of Man and Citizen (1789) proclaimed that ―all are born and remain free and equal in rights.‖ A popular leader of American War of Independence, Thomas Paine, in his all time best-seller The Rights of Man (1791) introduced the expression ―human rights‖ in the concrete form for the first time in history. The famous French philosopher Jean Jacque Rousseau declared that man is born free with intrinsic worth.200

200

Dinah Shelton, An Introduction to the History of International Human Rights Law, The George Washington University Law School Public Law and Legal Theory

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The most popular natural law advocate of modern era was British Philosopher John Locke (1632-1704). He popularized the view of social contract in political philosophy and maintained that people form societies, and in turn political governments so that their government could protect their natural rights as a community. According to Locke, citizens had every right to disobey and challenge their government if it fails to protect these natural rights.201 Modern day natural law theorists expanded natural rights to overflow from the reign of morality to legality. They developed the argument that since natural rights are inherent in all the human beings by virtue of their being humans, social and political justice demands that their such rights be respected and protected not only by other individuals but also by governments; natural rights, thus, became one of the basic ingredients of ultimate and timeless principle of ideal justice.202 With the start of second half of the last millennium, human intellect progressed from classical to modern era. The modern age of human civilization was triggered by the scientific discoveries through which man realized that universe was in fact governed by logic, and thus same should be true for social and individual human life. Therefore, according to modern world view, social and individual life of men should be conducted in accordance with logic and reason. In law, this triggered the concept of positive law which meant that in tackling its realities, whatever a polity would decide, will become law. Thus modernism‘s idea of finding solutions to social problems through application of universal reason replaced the classical ideal of doing the same through discovering and following pre-determined rigid and stagnant principles.203 Though this certainly did not mean the death blow to the concept of natural rights, it definitely did throw it out of the Working Paper No. 346, Legal Studies Research Paper No. 346, Working Paper (August 2007) 1-30, 1-7 201Bureau of International Information Programs, U.S. Department of State, Human Rights in Brief [2014] 3-4. Available at: http://photos.state.gov/libraries/amgov/30145/publicationsenglish/humanrights_brief.pdf, last accessed on 13th January, 2016. 202 Robert P. George, Natural Law, Vol. 31 Harvard Journal of Law & Public Policy, No. 1 [2008] 171-196, 172-173 203 Alan M. Levine American University & Darren M. Staloff, City College of New York and City University of New York, Enlightenment Critics of Natural Law, 1. Available at: http://www.nlnrac.org/critics/enlightenment-critics. Accessed on 13th January, 2016.

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main stream; and along with it the prospect of any principle being higher than the State and consequently any possibility of challenging the State‘s order, no matter how cruel or wrong, on any ground whatsoever.

4.3. Second World War and Human Rights: More than 100 million people died in two World Wars of the last century; three quarters of which were slaughtered in Second World War. The Six Years‘ Great War, popularly known as 2nd World War (1939-1945 AD) was unique not only because of the number of states and continents that were involved in the fighting, but was also matchless in the brutality that was thrust upon by rational men over their rational brethren. The horrible face of the modern concept of rational positive law was exposed in what is remembered as Holocaust committed by Nazi Germany in the Second World War. More than 10 million innocent and unarmed civilians, mostly Jews and Gypsies, were killed brutally and mercilessly by the German army, in the name of ethnic cleansing.204 This shook the conscience of human race, at last. Transcending from the Greek notion of justice being to give everyone his share to St. Thomas Aquinas‘ concept of right being inherent in every human being and reducing law to a mere instrument to protect these inherent rights, man reached to Rene Descartes‘ modernity—cogito ergo sum—reality is rational and rational is reality. From unity in faith modern man moved on to unity in universal common human reason. The modernity that had thrust the natural rights behind the scenes became the sole reason, thanks to the brutality committed to human race by it‘s ‗the Sovereign State‘ based on unrestrained positivist rational law, for their powerful comeback as Human Rights.205 Experience taught us that when people have defensible rights—when their agency as individuals is protected and enhanced—they are less likely to abuse and oppress. Human Rights was a response to the craziest brutalities that can happen when the Westphalian state was accorded unrestrained Susan Muaddi Darraj, The Universal Declaration of Human Rights (Chelsea House Publishers, An imprint of Infobase Publishing, 2010) 16-18. 205 Romuald R. Haule, Some Reflections on the Foundation of Human Rights—Are Human Rights an Alternative to Moral Values?, Max Planck Yearbook of United Nations Law, Volume 10 [2006] 367-395, 370 to 379. 204

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sovereignty resulting in lack of criteria for its citizens in international law to disobey their state‘s legal but immoral orders. Thus Universal Declaration of Human Rights is a major fire-wall created against any future acts of state barbarism against humanity. The scenario of pre-Second World War, where citizens were literally helpless on the face of barbaric orders of their state was changed topsy-turvy and international law, in the shape of Universal Declaration of Human Rights of 1948, granted individuals the rights that they could now exercise to challenge and resist the unjust and oppressive laws or orders of their state. The atrocious acts of Nazi and Fascist states during the Second World War forced mankind to demand legitimacy under the umbrella of which individuals can refuse to obey the legal but inhuman state laws and orders. International community provided this source to the citizens of the world, in the shape of Universal Declaration of Human Rights of 1948.206

4.4. Postmodern View of Human Rights: The European culture is historically a product of biblical idea of human nature; humans are created in the image of God, but are not gods, humans can reason but not beyond a point, from where only divine revelation can take them on the right path, the path leading to the Kingdom of Heaven. Despite these short comings, because humans are an imperfect image of God, they do possess certain intrinsic dignity which comes with certain inherent rights as a package deal. And that classical-biblical view was the foundation of the theory of natural rights of the mankind. Modernists parted company with this medieval outlook on life. For the modernist, man was a purely rational animal which did need truth, but this truth, according to him, could be crafted independent of divine revelation, solely through reason. In the modern view, self was autonomous. By autonomous was meant that individual self was the ultimate existence of the self and the community of individuals i.e., society, was an ultimate self surviving unit which was all powerful over it members. The idea 206Michael

Ignatieff, I. Human Rights as Politics, II. Human Rights as Idolatory, The Tanner Lectures on Human Values, delivered at Princeton University [April 4-7, 2000] 285-349, 288-297. Available at: http://tannerlectures.utah.edu/_documents/a-to-z/i/Ignatieff_01.pdf. Accessed on 13th January, 2016.

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was that reason being a universal and common faculty of human race, all rational people will come to same rational conclusions and thus if human race can effectively use its faculty of reason, it can live in peace and harmony. This idealist view was completely shattered in the brutalities of the Second World War which lead to the revival of idealism of Classical period and the re-emergence of inherent, eternal and universal natural rights in the shape of Human Rights. However, in the decades following the end of the Second World War emerged what is now known as the ―Postmodern‖ world view. According to postmodern view, not only is there no ultimate truth to be discovered, there is absolutely no concept of universal reason even. In fact there is no objective reality. And since there is no objective criterion to be used as a bench mark, there exists no universal reality; all reality is relative. In other words, every human concept is a social construct and every human thought has contextual meaning.207 Thus although origins of Human Rights was in the natural law concept of universal rights inherent identically in every human being, their actual effective globalization is the result of their getting local.208 Getting embedded in each social context according to its needs and sensitivities is the actual triumph of Human Rights today. Now is the time, with all this conceptual background in mind, to turn our attention to the values and results contained in our most sacred Politico-legal document, the Constitution of the Islamic Republic of Pakistan, 1973.

5. Human Rights in Pakistan Constitution: In the Classical period of human intellect, main thrust of the man was to understand the world and him within the four corners of divine revelation. Based on the notions that God created universe and also created man in His image, the idealist view of 207

208

Jim Leffel, Engineering Life: Human Rights in a Postmodern Age, CRI Statement DE311, 1-8, 2. Available at: http://www.equip.org/PDF/DE311.pdf. Accessed on 13th January, 2016. Michael Ignatieff, I. Human Rights as Politics, II. Human Rights as Idolatory, The Tanner Lectures on Human Values, delivered at Princeton University [April 4-7, 2000] 285-349, 290. Available at: http://tannerlectures.utah.edu/_documents/a-to-z/i/Ignatieff_01.pdf. Accessed on 13th January, 2016.

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the time was that life is governed by divinely ordained universal principles and the only requirement to lead good life was to discover these ultimate principles and follow them. This gave rise to the idea that in addition to the social, moral and legal rights, individuals also have some God given rights which are inherent in every human being and since these are divine, they are sacred and can only be taken away by God Himself; these would be called the natural rights of men. With the turn of the 15th century AD came the triumphant discoveries of science and technology and man realized that life is being governed by reason and reason alone. This realization replaced divine sacredness with sacred reason. Now the life-blood of universe was reason and everything had to conform to hard-core reason. This concept faded away the God given natural rights of men and replaced them with positive rights which were squarely dependent on the sweet will of the state. The limits of this theory showed its ugly face during the Second World War which cost mankind more than one hundred million lives. The initial reaction of human race was to fall back on the idea of natural rights which were re-named as Human Rights and the basis of which, instead of divine grant, was made the universal reason of the collective conscience of the world community. However, with further progress of the human intellect, modern world view is giving way to the postmodern world view. According to postmodernists, there is neither any universal principle in the world nor any universal reason at the base of it. According to postmodernists, there does not exist any universal reality. In other words there is no possibility of any concept of universally acclaimed Human Rights. The real success of Human Rights in today‘s world is based on the fact that individuals in today‘s world need juridical resources to stand up when the state ordered them to do wrong and this need has been fulfilled by the Universal Declaration of Human Rights, 1948 which is being interpreted in every society according to its cultural context to make it effectively implementable. Constitution of the Islamic Republic of Pakistan, 1973 has enacted many of the Human Rights in the shape of Fundamental Rights which are contained in its Articles 8 to 28. The primary of these Fundamental Rights is the Right to Life contained in Article 9 of the Pakistan Constitution in the following words:

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“No person shall be deprived of life or liberty save in accordance with law.” Now in the context of postmodern concept of Human Rights, we have to see whether the interpretation of Pakistan Constitution‘s right to life requires amendment or at least interpretational development or not? The next section will now take a look at the law and the facts and figures in Pakistan in relation to death penalty. The arguments that are advanced by the fundamentalist/conservative faction of religious scholars in favour of death penalty will also be examined before taking up the task of suggesting the possible ways to wriggle out of the situation without really getting into it.

5.1. Pakistan & Islam: In 2006, due to negligence of the registrar‘s office, appellate court‘s orders of suspension of death penalty of a convict were not transmitted to the jail authorities. The man was hanged from the neck till death while the court was preparing to check the genuineness of his guilt.209 The country in which this poor man was hanged mistakenly, is Pakistan; a country which ranks among the countries of the world with highest death penalty awarding ratio.210 As of June, 2012, some 8,500 persons were on the death row in Pakistan.211 While at the time of creation of Pakistan in 1947 only homicide and treason were punishable with death; today there are more than two dozen crimes which carry death penalty, including International Federation for Human Rights & Human Rights Commission of Pakistan, Report Mission of Investigation, Slow March to the gallows, Death Penalty in Pakistan, 2007, 18. Available at: http://www.fidh.org/IMG/pdf/Pakistan464angconjointpdm.pdf. Accessed on 13th January, 2016. 210 International Federation for Human Rights & Human Rights Commission of Pakistan, Report Mission of Investigation, Slow March to the gallows, Death Penalty in Pakistan, 2007, 16. Available at: http://www.fidh.org/IMG/pdf/Pakistan464angconjointpdm.pdf. Accessed on 13th January, 2016. 211 International Commission against the Death Penalty, The death penalty and the “most serious crimes”, A country by country overview of the death penalty in law and practice in retentionist states, January, 2013, 27. Available at: http://www.icomdp.org/cms/wp-content/uploads/2013/02/Most-seriouscrimes_final_6Feb2013.pdf. Accessed on 13th January, 2016. 209

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sabotage of railway system,212 blasphemy, and stripping a woman of her clothes in public, etc.213 This is a country which, except for few procedural and formal amendments, has not changed the basic structure of the legal system that it inherited from its colonial masters.214 Pakistani society has been criticized even otherwise for not showing any substantial progress since its independence some 7 decades ago.215 A country adversely affected by botched police investigations and unfair trials216 where only 1.5 murder trial judges are available for 100,000 people,217 there always is an extremely high probability of miscarriage of justice. Yet, in International Federation for Human Rights & Human Rights Commission of Pakistan, Report Mission of Investigation, Slow March to the gallows, Death Penalty in Pakistan, 2007, 17. Available at: http://www.fidh.org/IMG/pdf/Pakistan464angconjointpdm.pdf. Accessed on 13th January, 2016. 213 Pakistan Penal Code, 1860, S. 295-C: ―Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.‖ S. 354-A: ―Whoever assaults or uses criminal force to any woman and strips her of her clothes, and in that condition, exposes her to the public view, shall be punished with death or with imprisonment for life, and shall also be liable to fine.‖ 214 Osama Siddique, Pakistan‟s Experience with Formal Law, An Alien Justice, (Cambridge University Press, 2014), 8. ―If Jeremy Bentham‘s preserved, albeit headless, body at University College London—the so called ―Auto-icon‖—was to be miraculously resurrected and induced to visit a contemporary Pakistani Court, he would be well within his rights to feel a certain sense of de ja vu. After all, he famously prophesied acting as the ―dead legislative‖ of British India, with James Mill acting as its ―living executive.‖ If his brilliant disciple Thomas Babington Macaulay were persuaded to undertake a similar escapade, he would be somewhat taken aback. He would discover that his great handiwork, the Indian Penal Code of 1860, is still en vogue, its original spirit intact beneath the veneer of periodic piecemeal amendments. Both time travelers could be excused for thinking that they had not travelled at all.‖ 215 Ilhan Niaz, The Culture of Power and Governance of Pakistan 1947—2008, Oxford University Press, 2010, ed. 2011, ix. ―One went so far as to declare that if we were to take away the much derided ‗colonial legacy‘ all that we would be left with are shrines, some palaces and a few cultural and aesthetic refinements.‖ 216 International Federation for Human Rights & Human Rights Commission of Pakistan, Report Mission of Investigation, Slow March to the gallows, Death Penalty in Pakistan, 2007, 6. Available at: http://www.fidh.org/IMG/pdf/Pakistan464angconjointpdm.pdf. Accessed on 13th January, 2016. 217 Osama Siddique, Pakistan‟s Experience with Formal Law, An Alien Justice, (Cambridge University Press, 2014), 20. 212

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Pakistan, pleading for abolition of death penalty is not only difficult, it‘s actually dangerous. Pakistani pro-death penalty voices, which are often aggressive and usually fundamentalist, invoke Islamic law, retribution and deterrence, in order of priority, as the justification for penalty of death. While the rationality of historical trends indicates that a considerable portion of Islamic law was developed very progressively by the Islamic scholars218 on utilitarian basis, very pragmatically,219 it was only in later centuries that religious fanaticism seeped in and the whole system based on dynamism and innovation was frozen in the medieval space-time. Today there certainly is a dire need to develop Islamic law on modern lines as is being done in some other Islamic countries. “Another telling example of judicial articulation of a nation‟s core values is the central role played by Egypt‟s Supreme Constitutional Court in dealing with the core question of the status of Shari‟a rules—arguably the most controversial and fundamental collective identity issue troubling the Egyptian polity. Since the 1979 establishment of judicial review in N.J. Coulson, A History of Islamic Law, Edinburgh University Press, 1964, 1st Indian Reprint, Universal Law Publishing Co. Pvt Ltd, 1997, 50 ―A conservative attachment to tradition is the hallmark of the early Medinan jurists, while their Kufan colleagues, living in a newly formed society which had no such roots in the past, were animated by a spirit of free enquiry and speculation.‖ Noel J. Coulson, Conflicts and Tensions in Islamic Jurisprudence, The University of Chicago Press, 1969, 4 ―The first 150 years of Islam were characterized by an almost untrammeled freedom of juristic reasoning in the solution of problems not specifically regulated by divine revelation. Such rules of law as the Qura‘n and the sunna established were regarded simply as ad hoc modifications of the existing customary law. This existing law remained the accepted standard of conduct unless it was expressly superseded in some particular by the dictates of divine revelation. And when new circumstances posed new problems, these were answered on the basis simply of what seemed the most proper solution to the individual judge or jurist concerned. In the expression of his personal opinion, known ra‟y, the individual was free to take into account any factors he deemed relevant. In short, in these early days law had a distinctly dual basis. It was a compound of the two separate spheres of the divine ordinance and the human decision.‖ 219 Joseph Schacht, An Introduction to Islamic Law, Oxford University Press, 1964, 1 st Indian Reprint, Universal Law Publishing Co. Pvt. Ltd, 1997, 15 ―In the field of penal law, the first caliphs went beyond the sanctions enacted in the Koran by punishing with flogging, for instance, the authors of satirical poems directed against rival tribes, a form of poetic expression common in ancient Arabia.‖ 218

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Egypt and the 1980 constitutional amendment that made Islamic Shari‟a the principal source of legislation in that country, the court has increasingly been called upon to determine the constitutionality of legislative and administrative acts on the basis of their adherence to the principles of the Shari‟a. “The question before the Court in all of these cases has been which principles of the Shari‟a possess determinative and absolute authority.” To address this question in a moderate way, the court developed a complex interpretative matrix of religious directives—the first of its kind by a nonreligious tribunal. It departed from the ancient traditions of the fiqh (Islamic jurisprudence or the cumulative knowledge/science of studying the Shari‟a) schools, and has instead developed a new framework for interpreting the Shari‟a. Specifically, the court has developed a flexible, modernist approach to interpreting the Shari‟a that distinguishes between “unalterable and universally binding principles, and malleable applications of those principles.” Legislation that contravenes a strict, unalterable principle is declared unconstitutional and void, while at the same time, ijtihad (contemplation or external interpretation) is permitted in cases of textual lacunae, or where the pertinent rules are vague or open-ended. Furthermore, the government has been given broad legislative discretion in policy areas where the Shari‟a is found to provide unclear or multiple answers, provided that that legislative outcome does not contravene the general spirit of the Shari‟a. This interpretative approach has marked a true shift in the paradigm for legitimizing government policies based upon a moderate, fairly liberal interpretation (ijtihad) of the Shair‟a.” 220

However such trends, arguments and needs are conveniently denied by many in Pakistan, for the most part on the strength of religious fundamentalism. Even the argument that bulk of Pakistani law has been very progressively developed and the trend should be continued, for instance, where it provides prison sentence for theft while in Islamic law punishment for theft is

220

Ran Hirschl, The New Constitution and the Judicialization of Pure Politics World Wide, 75 Fordham Law Review, 2006, 721-753, 737-738.

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cutting of a hand,221 falls on deaf ears. Their simple yet powerful rhetoric is that biblical notion of an eye for an eye is part of Islamic law which, according to the Constitution,222 is the supreme law of the land. Thus death penalty for a murderer is ordained by God and God‘s injunction is based on the utility of retribution and deterrence. Although it is not only difficult, but is actually dangerous in Pakistan now-a-days to question the religious fanatics‘ distorted argument of the divine wisdom, yet there is a very strong and persuasive logic against this age old rhetoric of ideological fundamentalism. In Islamic law, in case of murder, there is a possibility for the murderer of paying monetary compensation in lieu of death penalty. This possibility available for a rich murder convict of buying out his life and in fact all the punishment and going scot-free the moment he pays the blood money, destroys the fanatics‘ arguments of both retribution and deterrence223 and should have forced them to seriously consider the possibility of replacing death penalty with some other proportionate penalty. But the dead-end response from this quarter is always based on the notion of religion being a phenomenon beyond and above reason. The next section will consider the ideological as well as constitutional checks that are the actual jurisprudential challenges to the abolition of death penalty and will also suggest a possible solution to overcome these checks by differentiating legal death

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Holy Quran, English translation by Marmaduke Pickthall (Pak Company, Lahore Pakistan, 2005), Chapter 5 (The Table Spread) Verse 38: ―As for the thief, both the male and female, cut off their hands. It is the reward of their own deeds, an exemplary punishment from Allah. And Allah is Mighty, Wise.‖ Pakistan Penal Code, 1860, Sec. 379: ―Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.‖ Constitution of Islamic Republic of Pakistan, 1973, Article 2: ―Islam shall be the State religion of Pakistan.‖ Article 203-D (3): ―If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam, (b) Such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect.‖ International Federation for Human Rights & Human Rights Commission of Pakistan, Report Mission of Investigation, Slow March to the gallows, Death Penalty in Pakistan, 2007, 20. Available at: http://www.fidh.org/IMG/pdf/Pakistan464angconjointpdm.pdf. Accessed on 13th January, 2016.

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from medical death and using legal fiction to replace medical executions by legal executions.

6. Legal Fiction-Medical Death VS Legal Death: In Pakistan death sentence cannot be abolished easily even if it is accepted that it should be. There are checks stronger than the ones which can be overcome by simple legislation; Constitutional and ideological checks. The Preamble of the Constitution224 makes it abundantly clear that the Sovereignty in Pakistan‘s legal system belongs to God alone. This settles the ideological formation providing the fundamental basis to the Constitutional structure of this first modern ideological state of the world. Not only this ideological basis is expressed in its name viz., Islamic Republic of Pakistan225 but also in the operative Articles of its Constitution. Thus Article 2-A of the Constitution makes the concept and claims enshrined in the Preamble of the Constitution as integral part of the Constitution.226 Article 2 sets it abundantly clear that Pakistan is not a secular state but has a religion. Consequently, Constitution declares that Islam is the State religion of Pakistan227 while it also defines who is a Muslim and who is a non-Muslim.228 The matter does not end here. Seven years after enactment of the Constitution, it was amended and a precise and very elaborate mechanism was added in the Constitution, by creating a special limb of higher judiciary with specific and exclusive jurisdiction to declare all the laws which are in conflict with Islamic injunctions as null and void and non-existent.229 Since death penalty is an integral part of the

Constitution of Islamic Republic of Pakistan, 1973, Preamble, ―Whereas sovereignty over the entire Universe belongs to Almighty Allah alone……..‖ 225 Constitution of Islamic Republic of Pakistan, 1973, Article 1(1): ―Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan, hereinafter referred to as Pakistan.‖ 226 Constitution of Islamic Republic of Pakistan, 1973, Article 2-A: ―The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly.‖ The Preamble of the Constitution is derived from this Objectives Resolution. 227 Constitution of Islamic Republic of Pakistan, 1973, Article 2: ―Islam shall be the State religion of Pakistan.‖ 228 Constitution of Islamic Republic of Pakistan, 1973, Article 260(3). 229 Constitution of Islamic Republic of Pakistan, 1973, Article 203D(3): ―If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam, 224

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Islamic law, its abolition by simple legislation will violate the express provisions of the Constitution. So in Pakistan death penalty cannot be abolished simply by amending statutes, it requires Constitutional amendment. However, this problem cannot be solved by amendment of Constitution even as such an amendment will violate the basic structure and the very ideological and foundational basis of the Constitution. “……freedom bestowed upon the Parliament in clause (6) of Article 239 after amendment does not include power to amend those provisions of the Constitution by which would be altered salient features of the Constitution, namely federalism, Parliamentary Form of Government blended with Islamic provisions. As long as these salient features reflected in the Objectives Resolution are retained and not altered in substance, amendments can be made as per procedure prescribed in Article 239 of the Constitution.” 230 Supreme Court of Pakistan has held that the Constitution of Pakistan is more than a random, or even serial and somewhat systematic compilation of articles; rather it is not only a structured document but a document based on a well defined structure. One integral and a significant part, a salient feature, of this structure— the basic structure of the Constitution—comprises of different articles spread all over the Constitution imparting Islamic theme therein. And this ‗salient feature‘ cannot be amended by the assembly even if it follows the procedure provided in the Constitution itself for its amendment. The Supreme Court has held this and this is good law in Pakistan. Now this ‗is‘ a problem! Such problems arise seldom from the internal conflict in a legal system but usually when there is a conflict between a dogmatized legal system and the development of dynamic collective conscience beyond that dogmatized system. It is the problems like these that have been arising in different legal systems of the world, challenging the jurists in history and shook them out of their deep slumbers of following the traditions and forced them to come up with new and innovative responses. Such had always been the out of the box responses aimed at meeting the (b) Such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect.‖ 230 Mahmood Khan Achakzai Vs. Federation of Pakistan, Supreme Court of Pakistan, PLD 1997 SC 426, 459.

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social requirements which the legal system of the time had failed to come up to. One such innovative response had been tackling of such complex and insurmountable problem by creating legal fictions. A legal fiction is simply a false statement recognized as having utility.231 Thus it were somewhat similar situations which led the jurists to create legal fictions like a distinct legal entity of a corporation where a non-entity gets entity by sheer force of law. Similar is the English concept of adoption where legal fiction replaces adopted parents as natural parents. Law takes control of the situation where it decides to create legal fiction for the betterment of the society and designs the scenario, not according to reality, but in accordance with socio-legal requirements. Thus, law creates an artificial distinction between natural person and legal person and declares to have granted the status of legal person to a corporation by operation of legal fiction. Same can be the case with the concept of death. One constructive way of using legal fiction can be to distinguish between medical death and legal death and replacing all death penalties with legal deaths instead of medical deaths. This should not be too fictitious in the face of modern thinking where there is a dire need to abolish old concepts of death and come up with new ones in the backdrop of modern scientific and technological advances and controversies.232 One aspect of confusion encompassing transformation of life into death has been expressed in following words: The change in status from living person to corpse has not only clinical consequences but also profound psychological, legal, moral, religious, and economic implications. However, the advent of medical technology has raised a new set of troublesome questions about just when the transition between life and death occurs. Thus even when respiration and heart beat were sustained by technology, a person could be declared dead if all brain functions were irretrievably lost. [This is referred to as whole-brain death. The term brain death has become a standard shorthand way of indicating that the death 231

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Nancy J. Knauer, Legal Fictions and Juristic Truth, St. Thomas Law Review, Vol. 23, 2010, 4. Stuart J. Youngner, Robert M. Arnold & Renie Schaprio (ed), The Definition of Death, Contemporary Controversies, The John Hopkins University Press, 1999, xiii

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is determined by neurological rather than cardiopulmonary criteria. However, the term has caused confusion because it is sometimes used to describe the status of the brain as independent of the status of the person. Thus, we read in the newspaper, for example, that the patient is brain dead and death is imminent. Some argue that this usage is unfortunate because it has encouraged the erroneous notion that brain death is different from death. Others maintain that it is a reminder of the persistent ambiguity about the status of the brain-dead patient.] 233 Interestingly, we do not even have a clear definition of life. Defining life in uncertain terms is not possible even today. The first serious consideration of life, on something like scientific lines, was done by the Greek philosopher Aristotle (384-322 BC). In his book called De Anima, Aristotle maintains that life in a body is basically its soul. Death, according to him occurs when soul leaves the body. Human civilization has made enormous leaps in the fields of Philosophy and Science since the times of Aristotle. However till now there is no square definition of life. It is defined by the biological sciences as a package of certain properties. This package consists of six properties, viz., metabolism (chemical processes), growth, energy utilization, preservation of personal information, procreation, and change of hereditary information. As a matter of fact even this open-ended definition of life is not comprehensive and has major grey areas. One popular example of such a grey area are viruses. On the touchstone of above definition of life, it is seriously debatable whether viruses are living things or dead objects because they do not possess all the six characteristics of this life-defining package. Yet, the phenomenon of life is so complex and awe inspiring that scientists have so far failed to come up with a better definition.234 A recent study in the adequacy of traditional definitions of medical death has concluded that in view of development in medical science a statutory definition is essentially required to replace the traditional definition of medical death, which is no

Stuart J. Younger, Robert M. Arnold & Renie Schapiro (ed.), The Definition of Death, Contemporary Controversies, The Johns Hopkins University Press, 2002, 13. 234 Peter Ulmschneider, Intelligent Life in the Universe, From Common Origins to the Future of Humanity, Springer-verlag Berlin Heidelberg, 2003, 79-80. 233

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more adequate amidst modern views of life and death.235 A very convenient way of grasping the concept is by visualizing coma patients. A person in coma, although is alive medically, is practically dead. Similarly, a person locked up in a cage for the rest of his life can be seen as essentially, or to look at it more precisely, socially dead! This will mean that law will consider a certain kind of limited rights to life as a person‘s legal death, which can be awarded and executed without killing that person biologically. Thus, if life of a person, in jail, is termed no-life legally, an imprisonment sentence till his natural biological death becomes his legal death. So the day a person is put in prison never to be taken out alive, becomes the day of his legal death. Such creation of a legal fiction of ‗legal death‘ to replace ‗medical death‘ for the purposes of punishment will solve both angles of the challenge. As Constitutional frame work does not allow abolition of death penalty, it will not be abolished and deserving convicts will continue to be awarded the penalty of death; penalty of ‗legal death‘ to be precise. And since no human life will be terminated by the state as a punishment, there neither will be any degradation of collective values of the society nor will there be any possible innocent executions. If otherwise false statements can be legally taken as true in order to safeguard commercial and social relations, why can‘t same is done in order to save precious human lives?

7. Conclusion: From the brutal ancient concepts of crucifying people in order to give them exemplary punishments, human intellect grew up and matured. The basis of social relations developed from narrowly perceived personal self-interests to collective good of the greatest possible number of people. The basis of law out grown the divine wisdom and entered the era of utilitarian laws. Punishments also left the times of emotional satisfaction and personal vengeance and entered the period of pragmatism. Man started asking if it is alright for a non-victim party like state, to take revenge as an agent? And even if it is alright, is it justifiable to 235

President‘s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Defining Death, A Report on the Medical, Legal and Ethical Issues in the Determination of Death, 1981. Available at: https://repository.library.georgetown.edu/bitstream/handle/10822/559345/d efining_death. Accessed on 13th January, 2016.

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kill a human being on that account? Then the question of scaring potential law breakers by killing people arose. People started thinking if it is just to kill one person to scare another? And further questions were asked; Does killing of a murderer by the state has some special deterrent effect as compared to alternate but proportionally harsh punishment? And it was also asked if the only way to keep a trouble maker out of a society is to murder him under the authority of law? Philosophical deliberations were made on these issues for centuries and in the last several decades, scientific investigations were also conducted to see the empirical evidence supporting these questioned concepts and purposes. The answers that came are over whelming and against death penalty. The question then turned to chalking out some strategy to get the society out of the clutches of its fossilized legal and moral concepts, which it failed to do in its own course of intellectual maturity, and get the death penalty abolished in law. This proved to be a tricky task. While in modern western secular states it requires only a public mobilization and convincing majority of voters, in religious and ideological states like Pakistan it proved to be a task much more difficult. Here, even if the dominant public opinion is developed in favour of abolition of death penalty, it cannot be expressed and executed legally without hitting the very foundational and ideological structure of the state. Thus a technical solution is prescribed. The solution is to use the concept of legal fiction to make a distinction between the concepts of medical and legal deaths. This will serve two purposes: first, it will provide a very harsh punishment to a murderer which will not only satisfy the vengeance needs of the victim‘s family but will also provide enough deterrence to the potential murderers, and second, it will save the brutality of state calculatedly killing a human being under the authority of law. Not only will this stop the official murders at the hands of state, it will be done without violating the ideological basis of the ideological states. Among many other purposes that it will serve, will be a possibility of undoing a wrong committed to an innocent convict, as no realistic system of administration of

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justice to date ensures error free convictions. This discussion has been beautifully concluded by Michael Foley in following words: “I must agree with Justice Blackmun. It is, and will remain, impossible to end the discriminatory manner in which the death penalty is imposed. More important, the death penalty debate has climaxed. There is little new to say about it. I do not believe that the death penalty debate will ever be resolved morally, philosophically, or constitutionally, at least not to everyone‟s satisfaction. It will be resolved only by the maturity of the society that will no longer tinker with the “machinery of death” and by the maturity of the society that discovers that its heart is greater than its hate.” 236

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Michael A. Foley, Arbitrary and Capricious, The Supreme Court, the Constitution, and the Death Penalty, Praeger Publishers, 2003, 208.

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Chapter 3

WORST AMONG EQUALS Ahmadis of Pakistan 1. Introduction: In middle ages, Portuguese law declared Muslims as protected but inferior subjects. They were decreed to live in separate quarters and to restrict their social interaction with Christians.237 At the same time, in the neighboring Spain, similar transition was taking place from a Muslim to a Christian society. “During the war with the Muslims of Granada, Isabella founded the first military hospital in Europe, consisting of six large tents equipped with bandages, medicine, and beds, which were carried from on besieged town to another.”238 However praiseworthy this act of the queen Isabella is, Spanish policies towards minorities viz., Muslims, Jews and newly converted Christians, were inhuman. Inquisition was on the run to check the genuineness of faith of the Christians, especially newly converted Christians. Of many accusations which would be considered grave enough to initiate formal inquisition proceedings was accusation of taking regular baths;239 bath was associated with Muslim and Jewish religious habits and being alien to the routine of Christian monks and priests, frequent bath was considered a sign of heresy.240 Inquisition of Muslims was not contained to their life (and often torturous death during inquisition) but be taken to haunt there generations. Since new converts from Spanish Jews Francois Soyer, The Persecution of the Jews and Muslims of Portugal: King Manuel I and the End of Religious Tolerance (1496-7), Brill, 2007, 59. 238 James Maxwell Anderson, Daily Life During the Spanish Inquisition, Greenwood Publishing Group, 2002, 253. 239 James Maxwell Anderson, Daily Life During the Spanish Inquisition, Greenwood Publishing Group, 2002, 109. 240 James Maxwell Anderson, Daily Life During the Spanish Inquisition, Greenwood Publishing Group, 2002, 56. 237

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and Muslims were the people whose faith was considered most liable to corruption, it were they who faced inquisition generally. Therefore Kings issued orders forbidding anyone from their lineage to hold a public post ever. Even the institution of the Inquisition maintained record of its victims and their families. Before a person could seek office or even marry, records were checked to ensure that he/she does not contain a contaminated blood.241 Recognition of freedom to profess faith according to one‘s unfettered belief is a recent phenomenon. Starting in ancient world as a mode of cooperation, where correcting others‘ faith was considered a social service, this faith therapy reached its zenith in the medieval ages where Spanish inquisitor would torture and kill people believed to be possessing ―incorrect‖ faith, in order to ―force-in‖ the ―true‖ faith in them so that they can be ―pushed‖ in heavens. Innumerable wars and uncountable tortures and murders have been committed on the question of who believes in which God or god and in which manner. This had been a very sad state of affairs. Religions, which invariably came as ―true guidance‖ from ―the compassionate God‖, ended up in the bloody struggle for power with the already established ones. Blinding emotional affiliations of ordinary men and women with religion provided a handy emotional tool to the power brokers of a community. Any political motive of the King or leader presented as divinely ordained mission would become part of faith. Decrees of priestly class would certify that worldly gains of kings will ensure heavenly gains for poor. In modern times, with the dominance of reason over the dogmatic and irrational thinking of humanity, it was slowly realized by masses that it is a very private matter of a person as to what he wants to believe are the metaphysical realities of life and the universe, and as long as he is not hurting others, it is his fundamental right to have whatever belief he wants to have. That any intrusions in such matters of faith amounts to violation of personal and intellectual privacy of a person. This right, which has been famously recognized in the Universal Declaration of Human Rights in 1948 was resisted by 241

James Maxwell Anderson, Daily Life During the Spanish Inquisition, Greenwood Publishing Group, 2002,35.

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many. Most notable among them was the Kingdom of Saudia Arabia, which abstained from voting in United Nations General Assembly in 1948 for the reason that this right included the right to change one‘s belief or religion. Dominant perception of religion was still as a tool to muster political power. Anyone betraying the political community will be stripped of the right to life. Although newly established state of Pakistan did vote in favour of this Declaration, by 1980s it amended its Constitution and the criminal laws to such an extent that a complete and comprehensive denial of this right for the Ahmadi community of Pakistan became an undeniable fact. This foreign funded bloody campaign for the purity of faith is still lurking among the traditional players viz., the thin thinking minority, the thick fanatic minority and the huge docile majority. In this chapter we will first of all have a brief over view of the role that politics play in religion. Then we will comprehend the background of why Ahmadis ended as the sole target of Islamic fundamentalist scholars of Pakistan and in the end we will make a comprehensive analysis and comparison of the right of freedom of religion as enshrined in the Universal Declaration of Human Rights, 1948 and its handling in the Constitution of Islamic Republic of Pakistan, 1973 and the Pakistan Penal Code, 1860.

2. Politics of Religion: ―At a press conference on 12 October 2001, US President George W. Bush stated: „How do I respond when I see that in some Islamic countries there is vitriolic hatred for America? I‟ll tell you how I respond: I am amazed. I just can‟t believe it because I know how good we are.‘242 This eccentric mentality is not limited to the imperialist super power of the world but is prevalent in every power block; be it a super power, a political party or a religious faction. The medieval church, which was the primary leader of the moralists of the time, perceived itself beacon of solitary light in the oceans of moral darkness that had engulfed the world. The focus of morality, however, was, as it still is, on the purity of the soul in 242

Tariq Ali, The Clash of Fundamentalisms: Crusades, Jihads and Modernity, Verso, 2003, ix.

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contrast to happiness of the living bodies. Naturally, aggressiveness of the purists was directly proportional to the increase in the perceived moral decay in the world. However, the priority of moral cleansing was concerned more with sex as compared to social justice. What bothered the church of morality was not the poor dying of hunger but people who were indulging in unauthorized sex. All the decadence that they could see in the world was sexual, not social.243 However, this situation changed drastically with the advent of the modern age. Everything that made the basis of the classical age was transformed. Traditions, morals and religious views, everything changed drastically. This change resulted in large part because of the new discoveries of science which established the practical superiority of the logical view of the world. Observing the world on the touchstone of reason was the primary cause of the Renaissance, the Reformation and the Industrial revolution. And so, it played decisive part in the decay of the institutionalized dogmatic religion.244 Church of the moralists, which was losing ground since modernism, started gaining ground once again with the advent of the twentieth century; Fundamentalism. Fundamentalism is based on fundamentals, a rigid and dogmatic view of the world devoid of reality and reason, clinging to fixed fundamentals of an ideology. Peculiarity of a fundamentalist mind is to close down the open-ended question that is the base of the religion, ―what do I love when I love my God?‖ with the dogmatic answers, thus taking religion out of the realms of spirituality, grace and love to the sphere of force, power, discipline and, resultantly, of authority.245 Fundamentalism is a system of meanings, which are derived entirely from a sacred text. For a fundamentalist, therefore, life can only be understood with relation to the sacred text.246 The term 243

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John D. Caputo, On Religion, Routledge, 2001, Taylor & Francis e-Library, 2001, 103. Louis Greenspan and Stefan Andersson (ed), Russell on Religion: Selctions from the writings of Betrand Russell, Routledge, 1999, Taylor & Francis e-Library, 2002, 153. John D. Caputo, On Religion, Routledge, 2001, Taylor & Francis e-Library, 2001, 108. Peter C. Hill & William Paul Williamson, The Psychology of Religious Fundamentalism, Guilford Press, 2005, 5.

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Fundamentalism originally referred to US Protestants but the Iranian revolution became the defining image linking the term to any group advocating strict application of sacred texts to personal and communal life.247 A fundamentalist approach, therefore, is not only strict but is narrow and exclusive. And naturally, the exclusion is focused less against the other even rival ideologies, being clearly excluded, but more against different, often less fundamentalist versions of its own ideology, seen as confusing and often diluting the ―strictness‖ forming the fundamentals of the fundamentalism. Whatever have been the origins and early formulations of fundamentalism, in a global interdependent world, embracing shared values is the only mode of peaceful existence. Any other mode would lead to conflict and destruction. Mutual respect of all religions and equal rights to all religious minorities is now a globally recognized value. In the Unites States Supreme Court case of 1993 titled Church of the Lukumi Babalu Aye Vs. Hialeah, practitioners of the Santeria religion filed the case for getting the ordinances declared unconstitutional which had outlawed their ritual of sacrificing animals in the city. Although the lower courts held that the ordinances prohibiting this ritual in the city were constitutional, Supreme Court held that these ordinances were unconstitutional because those laws were neither neutral nor generally applicable. Moreover, such laws could only be passed if it could have been shown that there was some general interest in passing of this law which could not have been achieved by any other less intrusive means.248 Article 10 of the European Convention on Human Rights249 provides that everyone has the right to freedom of expression and that this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.250 In a Steve Bruce, Fundamentalism, Polity, 2008, 11. Jonathan A. Wright, Shapers of the Great Debate on the Freedom of Religion: A Biographical Dictionary, Greenwood Press, 2005, 251. 249 Convention for the Protection of Human Rights and Fundamental Freedoms, 1950. 250 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are 247 248

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2005 judgment in the case of I.A. Vs. Turkey251 European Court of Human Rights, while interpreting article 10252 in the context of freedom of religion and expression held that a distinction has to be made between right of expressing beliefs & opinions and making ―provocative‖ opinions and abusive attacks on someone‘s religion.

3. Ahmadis: Legality of Spirituality: Since most of the Sikhs and Hindus had left Pakistan and went to India after partition in 1947, orthodox Muslims of Pakistan were deprived of an infidel target to profess politico-religious campaigns. Ahmadis filled this vaccum and religious fundamentalism, thus turned inwards on itself. Ahmadis emerged on the Indian religious scene in the leadership of Mirza Ghulam Ahmad of Qadian (1835—1908). In the beginning it was ignored as an irritation but as Mirza‘s followers started increasing, many fundamental factions of the Indian Muslims started campaigning against them as heresy, prominent among them were the Muslim religious leaders of the religious school of Deoband.253 Main accusation against Ahmadis was that they violated a fundamental pillar of the Islamic faith by claiming their spiritual leader, Mirza Ghulam Ahmad, as a prophet of Islam.254 At the time of birth of Pakistan on 15th of August, 1947 there were no specific laws targeting Ahmadis. However, campaigns against the Ahmadis gained strength soon after creation of Pakistan, which turned violent shortly. The main argument of the fundamentalist Muslims was that beliefs of the Ahmadis cannot be treated as a different interpretation of Islam but it amounted to an prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. 251 Application No. 42571/98, ECHR 2005-VIII. 252 European Convention on Human Rights—Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 253 Tariq Ali, The Clash of Fundamentalisms: Crusades, Jihads and Modernity, Verso, 2003, 177. 254 Ayesha Jalal, The Struggle for Pakistan: A Muslim Homeland and Global Politics, The Belknap Press of Harvard University Press, 2014, 58.

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altogether different and distinct religion. However, since they claim themselves as Muslims, this creates a violation of Muslim beliefs and is provocative as well as abusive. Consequently, they be declared non-Muslims and a religious minority and granted same rights as those granted to Christians and Hindus, for instance. Moreover, Ahmadis be specifically banned from claiming themselves as Muslims or propagating their beliefs as Islam. A focused and very effective campaign was initiated against the Ahmadis as a joint venture by many religious groups in league with several selfish and ambitious politicians, prominent among them the Oxford educated chief minister of Punjab, Mumtaz Daultana.255 Most prominent people in the forefront of the anti-Ahmadi movement were those who just a few years ago had either supported Congress manifesto of united secular India or had publicly and openly opposed the creation of Pakistan.256 Well known among them was Maulana Abul Ala Maududi (1903— 1979) the founder Chief of the hardliner religio-politcal party Jamaat-e-Islami, who had fiercely opposed creation of Pakistan. Maulana took up the front position against the Ahmadis in the new born Pakistan. In 1953 there occurred a series of closely connected bloody riots covering almost whole of the province of Punjab. Maulana Maududi was at the fore front of these riots which were meant to pressurize the government of Pakistan in submission to the demand of the fundamentalist religious parties to declare Ahmadis as non-Muslims and a religious minority. However, central government courageously refused to submit before the religious fanatics. Consequently, martial law and curfew was imposed and soldiers opened fire on the rowdy mobs. The riots ended within a couple of days and many miscreants were arrested. Prime convict among the arrested was Maulana Maududi who was sentenced to death. This sentence, however, was later commuted to some years in prison. In order to figure out the reason and possible solutions of the riots, a public inquiry commission was established in the Presidentship of Justice Munir with Justice M.R. Kiyani as its other Tariq Ali, The Clash of Fundamentalisms: Crusades, Jihads and Modernity, Verso, 2003, 177. 256 Ayesha Jalal, The Struggle for Pakistan: A Muslim Homeland and Global Politics, The Belknap Press of Harvard University Press, 2014, 59. 255

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member. Both of these High Court Judges were undoubtedly welleducated and progressive persons of very open yet balanced mindset. The inquiry took almost a year and was based on a huge record consisting of 1600 pages of written statements, 2600 pages of evidence, 339 formally proved documents, numerous letters, some of which exceeded 100 pages, and a host of books, pamphlets, journals, and newspapers.257 The crux of their close to 400 page report was rather an eye-opener, which said: ―Keeping in view the several definitions given by the ulama, need we make any comment except that no two learned divines are agreed on this fundamental. If we attempt our own definition as each learned divine has done and that definition differs from that given by all others, we unanimously go out of the fold of Islam. And if we adopt the definition given by any of the ulama, we remain Muslims according to the view of that alim but kafirs according to the definition of everyone else. [page 218]‖.258 Ahmadis might have been heretics for hardliners but they were considered true Muslims by the Muslim League of Pakistan Movement. Before the 1937 elections in the British India Jinnah had flatly refused the religious fundamentalists‘ demand of banishing the Ahmadis from Muslim community. In this backdrop inquiry commission found that in fact it was the passage of the famous Objectives Resolution by the constituent assembly in 1949 which had led the Ulema and the people of Pakistan to believe that the struggle for Pakistan was in fact a struggle for the establishment of a theocracy. Passage of Objectives Resolution was seen as a declaration to that effect and created general expectation that the state of Pakistan was willing to warm heartedly accept all and any demands of the people on the basis of their religious affiliations. Almost all of the Ulemas which were questioned by the commission declared that passing of Objectives Resolution had left no doubt in their minds that creation of Pakistan had the sole purpose of serving Islam which in turn had made it imperative upon them to get the Ahmadis declared non-Muslims.259 It was a Hamid Khan, Constitutional and Political History of Pakistan, 2nd ed, Oxford University Press, 2009, 72. 258 Tariq Ali, The Clash of Fundamentalisms: Crusades, Jihads and Modernity, Verso, 2003, 170-179. 259 Ayesha Jalal, The Struggle for Pakistan: A Muslim Homeland and Global Politics, The Belknap Press of Harvard University Press, 2014, 59. 257

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necessary corollary that fundamentalists were the most suitable ones for this job because Objectives Resolution, which later became the Preamble of the Constitution and ended up being its substantive part, declared that the Sovereignty belongs to God and will be exercised by the people. Since hardliners, of all the people of Pakistan, were the most pious and closest to God, only they were qualified to exercise the Godly power that Constitution talks about. Since de jure claimants of the Godly power had decreed Ahmadis as Non-Muslims, it was obligatory upon the state to follow suit.260 This pragmatic report was the only short term positive result of that mess, otherwise in the long run these riots had a far reaching negative effect on the state of Pakistan and the trend of legislation that developed afterwards. Mumtaz Daultana was not a religious minded person, however, as the Chief Minister of Punjab he was using the Ahmadi riots to gain popularity and engineer his way into the office of Prime Minister of Pakistan. In order to counter this move, Prime Minister Khawaja Nazimuddin outsmarted him and went a step further. He provided a lot of room to the Ulemas and religious people in order to play this effective card. Although he did not succumb to the radicals in declaring the Ahmadis non-Muslims, in order to win them over and downplay his other political rivals who were playing the Islamic card at that point of time, he gave Clerics a greater say in the affairs of the State. Thus a board of five Ulemas was established in order to advise the head of the state as to which law was in accordance with Islam and which was against the injunctions of Islamic law.261 This provided enormous boost to radical religious leaders who were already enjoying the support of anti-socialist forces by issuing fatwas (religious decrees) declaring socialism as an un-Islamic ideology. Fundamentalist support soon promoted from local politicians to international players. In the late 1960s and early 1970s, Iran was the most dominant Muslim player in the region. In Pakistan, Iran 260

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Preamble to the Constitution of the Islamic Republic of Pakistan, 1973: Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust; Ayesha Jalal, The Struggle for Pakistan: A Muslim Homeland and Global Politics, The Belknap Press of Harvard University Press, 2014, 88.

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had quite an influence because of allegiance of Pakistani Shia community, Iran‘s role in RCD (Regional Cooperation for Development) which was established in 1964 between Iran, Pakistan and Turkey and cultural commonality of southern Balochis with their Iranian counterparts. Saudis, who then lately had acquired a heap of petro-dollars, now wanted to counter the Iran‘s influence in Pakistan and establish its own. In order to craft an excuse for entering into the religio-political scene of Pakistan, Saudi ruler Shah Faisal started to project Wahabi ideology of Islam against the Shia ideology. But in order to fund religious elements without overtly offending Iran, it also played the Ahmadi card. Saudia started demands for declaring Ahmadis as non-Muslims and began denying them Haj visas. This turn of events provided the fundamentalists a new life and the antiAhmadi campaign gained a fresh vigour.262 Saudis were so happy with their proxy-war with Iran over the religious scene in Pakistan, that during the Islamic Summit of 1974, King Faisal conveyed to the then Prime Minister of Pakistan Mr. Zulfiqar Ali Bhutto that Saudi aid to Pakistan could be contingent upon Pakistan declaring Ahmadis as non-Muslims. It was in this background that religious fundamentalists struck another blow to the state while Pakistan People‘s Party‘s government had became unpopular for crushing the uprising in Baluchistan. Powered by this Saudi petro-dollar support, Jammat-e-Islami of Maulana Maududi along with other religious parties instigated a fresh wave of violent protests against Ahmadis. Clashes of May 1974 between the students of Nishtar Medical College and Ahmadis at the railway station in Rabwah, Ahmadis‘ spiritual and organizational center, became the excuse for the widespread disturbances. Ahmadis all over Punjab and parts of Khyber Pakhtunkhwa province, were killed, their properties burned and their mosques and graves desecrated.263 This time, however, with the religious fundamentalism playing in the hands of international players and backed by petro-dollars, faithful won over. In 1970 elections Ahmadis had supported Z.A. Bhutto and it was one of the main reasons how Bhutto defeated Allama Iqbal‘s 262

263

Ayesha Jalal, The Struggle for Pakistan: A Muslim Homeland and Global Politics, The Belknap Press of Harvard University Press, 2014, 203. Ayesha Jalal, The Struggle for Pakistan: A Muslim Homeland and Global Politics, The Belknap Press of Harvard University Press, 2014, 205.

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son Javed Iqbal from the Lahore constituency with a huge margin of 40,000 votes. In the Bhutto government, therefore, Ahmadis were rewarded adequately. Aziz Ahmad, the minister of State for defense and foreign affairs in the Bhutto‘s cabinet, was a known Ahmadi. It is a matter of record that by 1972, Ahmadis were in a very strong position in the state of Pakistan. At that time, Ahmadis were commanding in both the air force and the army. In addition to that a dozen Ahmadis were holding important and sensitive positions in army which included the position of corps commander. However, by 1974, all this had changed forever. Religious parties and opposition members of Punjab Assembly were unequivocal that if Bhutto did not take stern action against Ahmadis, he will not remain in power. Mian Tufail, Ameer of the Jamaat-i-Islami and Nawabzada Nasrullah Khan, president of the Pakistan Democratic Party spoke the same language.264 With the support of petro-dollars from Saudia Arabia, the religious fundamentalists had put so much pressure upon Bhutto government that he succumbed and so, national assembly unanimously passed an amendment to the Constitution of Islamic Republic of Pakistan, 1973, on September 7, 1974, categorically pronouncing the Ahmadis as non-Muslims. The fact that Bhutto did this under pressure and not out of some religious zeal can be ascertained from the fact that his Ahmadi minister Aziz Ahmad retained his ministership even after passage of this amendment. However, the case of Nobel prize-winning physicist Mohammad Abdus Salam was different. Dr. Abdus Salam was also a known Ahmadi and was serving as a science adviser to the People‘s Party‘s government. He was overseeing the development of the nuclear weapons program since 1972. On the passage of this antiAhmadi amendment, Dr. Salam, unlike Aziz Ahamd, resigned from his position as a protest.265 Even when Ahmadis were declared as non-Muslims by Constitutional amendment of 1974, communal agitation could not be curtailed. Pakistan‘s government was questioned in this regard from Special Rapporteur on Religious Intolerance. Pakistan government justified its action on the ground that it was necessary 264

265

Hamid Khan, Constitutional and Political History of Pakistan, 2nd ed, Oxford University Press, 2009, 291. Ayesha Jalal, The Struggle for Pakistan: A Muslim Homeland and Global Politics, The Belknap Press of Harvard University Press, 2014, 205-206.

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to protect majority religious sentiments and also to safeguard the Ahmadis.266 Religious rights of the Ahmadis also became difficult to justify as being protected considering that they believed themselves Muslims agreeing to most of the tenets of Islam yet classified as non-Muslims on their passports, were barred from entry into Mecca and Medina prohibiting them from performing Hajj pilgrimage, a must religious duty on every affording Muslim.267 It is still another story that it was General Muhammad Zia ul Haq which made preaching of religion by Ahmadis a punishable crime.268 According to data collected by unofficial sources and quoted widely, between 1986 and 2006 a total of 695 people were accused of blasphemy in Pakistan. Of these, 362 were Muslims, 239 were Ahmadis, 86 were Christians and 10 were Hindus.269 It is also a matter of record that many members of the Ahmadi community have been sued for naming themselves as Muhammed and inscribing Quranic phrases in their private letters and wedding cards. In 1991 Ahmadis were preparing to celebrate their centenary celebrations. A case was filed in the Court to ban them from such celebrations, arguing that allowing Ahmadis such celebrations would amount to giving them freedom to preach their faith, which is a crime punishable with death. Lahore High Court upheld the ban. Thus the social decree of never accepting the Ahmadis in the society was legalized. In 1995 in the provincial capital city of Peshawar, two Ahmadis who were allegedly preaching their faith and were trying to convert a Muslim were stoned by a crowd, killing one of them.270 In 1991 federal cabinet decided to remove all the Ahmadis from important official posts. Consequently, government demanded details of all officials and after scrutinizing and pin pointing Ahmadis they were removed. Kevin Boyle & Juliet Sheen (Ed), Freedom of Religion and Belief; A World Report, Routledge, 1997, Taylor & Francis e-Library, 2003, 227. 267 Kevin Boyle & Juliet Sheen (Ed), Freedom of Religion and Belief; A World Report, Routledge, 1997, Taylor & Francis e-Library, 2003, 230. 268 Ayesha Jalal, The Struggle for Pakistan: A Muslim Homeland and Global Politics, The Belknap Press of Harvard University Press, 2014, 242. 269 Policing Belief: The Impact of Blasphemy Laws on Human Rights, Freedom House, 2010, 69. Available on https://freedomhouse.org/sites/default/files/Policing_Belief_Full.pdf. Accessed on 13th January, 2016. 270 Kevin Boyle & Juliet Sheen (Ed), Freedom of Religion and Belief; A World Report, Routledge, 1997, Taylor & Francis e-Library, 2003, 230. 266

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Between 1984 and 1992, 30 Civil Servants were sacked from government employment for being Ahmadis.271 On 15th of August, 1947 Pakistan was created as a Muslim state but not as an Islamic Theocracy. Founding father Muhammad Ali Jinnah, in his opening speech to the opening session of the Constituent Assembly of Pakistan emphasized the importance of the freedom of religion in the following words: “You are free; you are free to go to your temples, you are free to go to your mosques or any other place of worship in this State of Pakistan. You may belong to any religion or caste or creed that has nothing to do with the business of the State.”272 However, Islamic law forbids Muslims from changing faith as it is considered apostasy for them.273 Ahmadis consider themselves Muslims by faith and worship as per Muslim rites. However, by law of Pakistan, Ahmadis are prohibited from referring themselves as Muslims or from referring their places of worships as mosques. Moreover, Ahmadis are barred from using the Muslim call to prayer, quoting the Quran, participating in the pilgrimage to Mecca or the rituals associated with the holy month of Ramzan and from distributing any Amhadi literature.274 There is a lot of international pressure on the state of Pakistan to ensure grant of fundamental rights to the Ahmadis. However, instead of taking any steps in this direction, successive governments, hostage to the street power of the fundamentalists, have tried to depict Ahmadi faith as an insult to the religious believes of most of the Pakistanis. That is why Pakistan‘s government supports United Nations Human Rights Council

Kevin Boyle & Juliet Sheen (Ed), Freedom of Religion and Belief; A World Report, Routledge, 1997, Taylor & Francis e-Library, 2003, 230. 272 Policing Belief: The Impact of Blasphemy Laws on Human Rights, Freedom House, 2010, 80. Available on https://freedomhouse.org/sites/default/files/Policing_Belief_Full.pdf. Accessed on 13th January, 2016. 273 Kevin Boyle & Juliet Sheen (Ed), Freedom of Religion and Belief; A World Report, Routledge, 1997, Taylor & Francis e-Library, 2003, 228. 274 Policing Belief: The Impact of Blasphemy Laws on Human Rights, Freedom House, 2010, 81. Available on https://freedomhouse.org/sites/default/files/Policing_Belief_Full.pdf. Accessed on 13th January, 2016. 271

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Resolutions on ―defamation of religions‖, which is meant for protection of religions from insult.275

4. Constitution, Penal Code and UDHR Universal Declaration of Human Rights was voted upon in the United Nations General Assembly on 10th of December 1948 and Pakistan voted in favour of its adoption. Although the present Constitution of the country, the Constitution of Islamic Republic of Pakistan, 1973 was adopted after a quarter of a century of adopting Universal Declaration of Human Rights, there are a number of contradictions between the Declaration and the Constitution. In addition to that, there are a large number of contradictions between the Universal Declaration of Human Rights and many Statutes and Ordinances of Pakistan. Analysis of all the provisions of the Constitution of Islamic Republic of Pakistan and those of hundreds of statutes is beyond the scope of this chapter. However, we can make an analysis of the provisions of the Universal Declaration of Human Rights, Fundamental Rights ensured by the Constitution of Islamic Republic of Pakistan, 1973 and Pakistan Penal Code, 1860 with regard to freedom of religion. The Articles of the Universal Declaration of Human Rights which provide, expand or protect a person‘s right to religious freedom are several. For instance, a leading Article276 of the Declaration says that everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Here it is a whole bundle of rights which have been provided to every human being of the world by virtue of his being human. These rights include right of every person to have absolute freedom of thought, his absolute freedom of conscience and his complete freedom to have whichever and whatever religion he chooses to take. The provision further clarifies that this freedom of choosing and maintaining any Policing Belief: The Impact of Blasphemy Laws on Human Rights, Freedom House, 2010, 72. Available on https://freedomhouse.org/sites/default/files/Policing_Belief_Full.pdf. Accessed on 13th January, 2016. 276 Article 18, Universal Declaration of Human Rights, 1948. 275

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religion, whatsoever, includes a person‘s right to change his religion. Not only this, but he also has the absolute right to make, change or keep his belief with or without religion and if it‘s about religion, whether it is shared by other followers of that religion or not. In addition to that the Article provides that this freedom includes manifestation of his religion or belief by preaching it, teaching it, practicing it, worshipping it and observing it all of which, he has complete right to do either in public or private and also whether alone or along with other of such like followers. Other freedoms complimentary to the religious freedom are contained in different provisions of the Universal Declaration of Human Rights such as in an Article277 which says that in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. This article is squarely based on the principle of common law which has been wittingly described by an English judge as ‗your right to swing your walking stick ends where the nose of your neighbor starts.‗ The very first Article of the Universal Declaration of Human Rights says that all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Then comes another important Article278 of the Declaration, which also, is complimentary to the religious freedoms. It says that everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. There is yet another provision279 which declares that everyone has the right to life, liberty and security of person. After that the relevant Article280 talks about equality before law and discrimination and says that all are equal before the law and are entitled without any discrimination to equal protection of law. Next Article of the Declaration supporting the right and freedom Article 29, Universal Declaration of Human Rights, 1948. Article 2 of the Universal Declaration of Human Rights, 1948. 279 Article 3 of the Universal Declaration of Human Rights, 1948. 280 Article 7 of the Universal Declaration of Human Rights, 1948. 277 278

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to religion is the Article281 which declares that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks upon his honour and reputation. And surely, the Universal Declaration of Human Rights says that everyone has the right to freedom of opinion and expression.282 On the same ground, an Article283 of the Constitution of the Islamic Republic of Pakistan, 1973 says that every citizen shall have the right to profess, practice and propagate his religion and every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions. However, all these rights are subject to open ended limitations of law, public order and morality. Moreover, Article 4 of the Constitution says that to enjoy protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. It further ensures that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; that no person shall be prevented from or be hindered in doing that which is not prohibited by law, and that no person shall be compelled to do that which the law does not require him to do. These Constitutional guarantees in the form of inalienable and fundamental rights mean that there is complete freedom and protection available to everyone to profess whatever religion he wants and in any manner that he finds right, subject to the condition that it does not hurt others. However, when we look at the provisions of the Pakistan Penal Code, 1860 regarding the Ahmadi community, we see that all these rights, freedoms and protections provided by the Universal Declaration of Human Rights are violated and denied to them and for doing this provisions of the Constitution of the Islamic Republic of Pakistan, 1973 are interpreted in such a way that for the purposes of Ahmadis, the rights and freedoms do not exist in their true spirit but are available in a botched up way, which amounts to total denial of their religious freedoms and right to belief.

Article 12 of the Universal Declaration of Human Rights, 1948. Article 19 of the Universal Declaration of Human Rights, 1948. 283 Article 20 of the Constitution of the Islamic Republic of Pakistan, 1973. 281 282

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Pakistan Penal Code, 1860 creates two types of religious crimes. One category consists of community neutral laws from preZia284 era and the other category is Ahmadi specific laws of Zia era. Section 295 of the Pakistan Penal Code, 1860 says that whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both. Another section285 of the Penal Code says that whoever, with deliberate and malicious intention of outraging the religious feelings of any class of the citizens of Pakistan, by words, either spoken or written, or by visible representations insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment for a term which may extend to ten years, or with fine, or with both. Further the Code says286 that whoever voluntarily causes disturbance to an assembly lawfully engaged in the performance of religious worship, or religious ceremonies, shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both. Next section287 of the Code provides that whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or on any place of sepulture, or any place set apart for the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any person assembled for the performance of funeral ceremonies, shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both. Section 298 of the Code provides that whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or The self-proclaimed soldier of Islam General Muhammad Zia ul Haq, Military dictator from 1977 to 1988. 285 Section 295-A, Pakistan Penal Code, 1860. 286 Section 296, Pakistan Penal Code, 1860. 287 Section 297, Pakistan Penal Code, 1860. 284

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places any object in the sight of that person, shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both. Another important section288 of the Penal Code declares in this regard that any person of the Quadiani group or the Lahori group who call themselves Ahmadis, who by words either spoken or written, or by visible representation refers to or addresses, any person, other than a Caliph or companion of the Holy Prophet Muhammad (peace be upon him), as ‗AmeerulMumineen‘, ‗Khalifa-tul-Mumineen‘, ‗Khailifa-tul-Muslimeen‘, ‗Sahaabi‘ or ‗Razi Allah Anho‘; or refers to, or addresses, any person, other than a wife of the Holy Prophet Muhammad (peace be upon him), as ‗Ummul-Mumineen‘; or refers to, or addresses, any person, other than a member of the family (Ahle-bait) of the Holy Prophet Muhammad (peace be upon him) as Ahle-bait; or refers to, or names, or calls, his place of worship as ‗Masjid‘ shall be punished with the imprisonment for a term which may extend to three years, and shall also be liable to fine. Subsection 2 of this section 298-B further declares that where any of the Ahmadis, who by words, either spoken or written, or by visible representation, refers to the mode or form of call to prayers followed by his faith as ‗Azan‘, or recites Azan as used by the Muslims, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. In a criminal case, Lahore High Court held that creation of a Sharaee mosque is not to be proved for constituting an offence under S.298B(1)(d), P.P.C. It is enough if by the words spoken or written or mere visible representation it is conveyed to others that the Quadianis' place of worship is Masjid. Moevoer, if a person belonging to Quadiani or Lahori Group constructs a building, though squarish in shape or like a Christian Church, or a Hindu temple and names or calls same as "Masjid", he would be guilty under S.298-B(1)(d), P.P.C. It was also held that even naming a place showing visible representation of Masjid as Baitul ahmadia, would also, prima facie, fall within the mischief of S.298-B(1)(d), P.P.C.289 The last section of this chapter No XV of the Pakistan Penal Code, 1860, titled ―Of Offences Relating to Religion‖, section 298-C, provides that if any Ahmadi directly or indirectly, poses himself as a Muslim, or calls, or refers to, his faith as Islam, or 288 289

Section 298-B, Pakistan Penal Code, 1860. Atta Ullah Vs. State, PLD 2000 Lah 364.

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preaches or propagates his faith, or invites others to accept his faith, by words, either spoken or written, or by visible representations, or in any manner whatsoever outrages the religious feelings of Muslims, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Despite the narrow focus of these Ahmadi-specific provisions, judiciary, at least the superior judiciary, is trying to instill reason and tolerance in the society. In a leading case, a larger bench of the Hon‘ble Supreme Court of Pakistan held that for an Ahmadi to wear a badge having "Kalma Tayyaba" inscribed on it does not per se amount to outraging the feelings of Muslims nor does it amount to his posing as a Muslim. It was admitted and is common knowledge that those who are Muslim do not, in order to prove their religion of Islam, wear badges of the "Kalma Tayyaba". This is done by those who are constitutionally classified as non-Muslims. Therefore, there should be no element of posing or representation by non-Muslims by wearing the "Kalma Tayyaba" as Muslims. As regards the allegation that on being questioned and interrogated Ahmadis gave the reply that they were Muslims while in fact they were Quadiani or Ahmadis, that too was not considered to constitute an offence under the law. Posing involves voluntary representation. It was held that in giving reply to a question one does not respond voluntarily but under threat or duress. One may hide his religion in public to protect himself physically preferring the lesser evil of criminal prosecution or one may avoid and give an evasive reply. This conduct would not be reprehensible, particularly so when the person asking the question would have no authority in law to ask these questions or to exact a correct reply, nor the statement was being made on oath. The exhibition or use of "Kalma Tayyaba" correctly reproduced, properly and respectfully exhibited cannot be made a ground per se for action against those who use "Kalma Tayyaba" in such a manner. If for ascertaining its peculiar meaning and effect one has to reach the inner recesses of the mind of the man wearing or using it and to his belief for making it an offence then the exercise with regard to belief and the meaning of it for that person and the purpose of using and exhibiting the "Kalma Tayyaba" would be beyond the scope of the law and in any case it would directly infringe the religious freedom guaranteed and

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enjoyed by the citizens under the Constitution, where mere belief unattended by objectionable conduct cannot be objected to.290 It is clear from above that the basic freedom ensured by Universal Declaration of Human Rights to every human being of adopting whatever religious faith he wants, is not applicable in Pakistan in the Spirit of the Declaration.291 Although these freedoms are essentially provided in the Constitutional document of Pakistan,292 these are subjected to undefined and vague limitations of law, public order and morality. Article 260 subarticle (3) of the Constitution provides that a person would be considered a Muslim if he believes that Muhammad (peace be upon him) was the last prophet and no prophet or reformer, etc came after him. This article further defines non-Muslim as a person who is not a Muslim and includes among others a person of Ahmadi community. Several sections of the Penal law293 criminalize various religious rites of the Ahmadis provided these resemble those of Muslims. It does not matter whether they do it mala fidely or in good faith truly believing it to be their religious duty. It also does not matter whether the Ahmadi rite performed is insulting and provocative or not. It‘s a kind of strict liability; intention has been belittled!

5. Conclusion: Religion is a very handy tool to gain political power, especially in less developed societies where general mode of thinking is emotional and rational thinking is considered evil. After the partition of India, when most of the Hindus and Sikhs left Pakistan and settled in the newly freed india, religious leaders of Pakistan lost a historical target. So in order to create a new target for themselves, they focused on Ahmadis. This resulted in the riots of 1953 and later of 1974. Although the state of Pakistan resisted the pressure of these religious orthodox groups, but with the involvement of Petro-dollars from Saudi Arabia, which wanted to hire religious mercenaries for its religious sect and start a proxy war against Iran and Shia Islam on the soil of Pakistan, these Zaheer ud Din Vs. State, 1993 SCMR 1718. Universal Declaration of Human Rights, 1948. 292 Constitution of Islamic Republic of Pakistan, 1973. 293 Pakistan Penal Code, 1860. 290 291

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indigenous fundamentalist groups got strength and in a moment of weakness, state of Pakistan succumbed to their pressure. Thus, the trend became the norm and in addition to amendments in the Constitution of the country, many amendments were made in the penal code which had the accumulated effect of wiping out the freedom of religion in case of Ahmadis, which is a clear cut violation of the Universal Declaration of Human Rights, adopted by General Assembly of the United Nations in the year 1948 with the votes of most of the nations of the world, including Pakistan.

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Chapter 4

SHUFA A Dead Law Walking 1. Who are we? We are not dead but my this unfettered belief is debated by many, quite seriously. Critics claim that we are dead-matter, not biologically though, but intellectually and culturally. They claim that the primary feature of a living culture is that it vibrantly adapts itself with the changing circumstances and an alive intellect grows with the ever changing reality and produces new ideas, ideologies and world views accordingly. And that we most certainly lack this essential qualification of being alive; hence proved that we are dead. I disagree with these critics vehemently. We are definitely not dead. However, had they claimed that we are in a state of coma; I would certainly have got confused. To be honest I am soft on ourselves. I think we are in the state of insanity. Although it is true that we are neither growing nor are producing any ideas, yet we are not docile. On the contrary, we are aggressively reactionary. We have been, and are, successfully resisting any and all the ideas of intellectual and cultural growth. Realities that are imposed upon us by the force of circumstances, we emotionally deny. Anyone trying to accept the truth of reality is mockingly termed Bayghairat or characterless. So, we are against love marriages of our children, we kill them if they dare to. We are dead against marriages of widows and divorcees, we don‘t like using second-hand ‗items‘; our religious principles can go to hell in such cases. In our society stigma of being a rape victim is much bigger than that of being a rapist. Learning, reading or studying for curiosity? Have you gone mad? ‗May the knowledge bring profit‘ is the only prayer for knowledge that we selectively quote from the annals of Islam.

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Our philosophy of life is simple, be practical; and when you can‘t, don‘t bother, this world is a temporary abode anyway. We are a ‗being‘ in the process of being human.

2. Right, Law & Property: Our living together as a society is based on the system of administration of justice which administers our rights and duties inter se. Right is an abstract concept. It is based on the reality that we create; the collective reality that is. Linguistically speaking, right is opposite of left. Interestingly it is also the opposite of wrong. Confusingly, it is the opposite of duty too. What the hell is this right then? First of all right is a concept which is not encompassed by the ‗word-right‘. The word-right only points to it; it‘s simply a symbol. In this particular case, this symbol is used to point to three different concepts, right-left, right-wrong and rightduty. We are talking here about right-duty. Socially speaking right is your power to influence acts of others not because of your own strength but on the strength of the social opinion. Likewise, legal right is your capacity to control others peoples‘ acts with the assistance of state power.294 In its turn, state will assist in controlling other peoples‘ acts only if law ordains so. Your that wish which law decides should be granted to you, is your legal right. Right is the very essence of law. To be honest, the sole reason of law‘s existence is to decide that in a given situation whether the state will provide it‘s helping hand to you or to your opponent?295 Your wish which does not offend law is your legal right and law provides the mechanism to ensure that you get your wish. If someone objects or obstructs the fulfillment of this wish, state machinery, the military arm of the law, will come into action forcing others to agree to your wish. Rights are expressed in many forms, one of which is property. Property is a complex concept. When you say a house is legally your house, it neither means that this house is part of your body 294

295

Sir Thomas Erskine Holland, K.C., The Elements of Jurisprudence, 13 th ed., 1924, Indian Economy Reprint, 2007, Pg. 82-83. Sir Thomas Erskine Holland, K.C., The Elements of Jurisprudence, 13 th ed., 1924, Indian Economy Reprint, 2007, Pg. 87

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nor that it shares a part of your genetic make-up. Then what does it mean to have a house as YOUR house, for instance? It simply means that you have a bunch of legal rights regarding that house; the proprietary rights. This bunch consists of a number of rights, prime among which are your right to have physical possession of this house, your right to use this house and your right to give away this house anytime, at any price and to anyone.296 So basically all the protections and privileges that are ensured to you by the legal system are your rights. Like all social institutions, law is also hierarchical and consequently the rights it creates are also hierarchical. Some rights are more protected than others and thus more powerful, more basic and more fundamental than others.

3. Fundamental Right & Property: Law is a hierarchical structure. On top sits the godly document called the Constitution. It‘s the Constitution which is the originator and the creator of all the other laws which are its creatures and thus are subservient to it. It is this Constitution which provides basic principles of administration of justice and a broad outline of rights and duties. Constitution further creates and authorizes the Parliament to fill in the details of the broad Constitutional structure and the Constitutional rights and duties by enacting ordinary laws. On the same lines, Parliament, through ordinary laws authorizes different institutions to frame rules and fill in further details within the ambit of ordinary laws. A citizen of a state has got many rights in his sleeve. These include such rights as social, political and legal rights. Of these, legal rights are those rights which courts of law are there to ensure. As if this hierarchy is not complicated enough, legal rights are themselves categorized into rights of different kinds and importance. Thus there are such rights as statutory rights, Constitutional rights and Fundamental rights. Statutory rights are those which are granted to a citizen through an Act of Parliament or an Ordinance. One step above the statutory rights are the Constitutional rights which are created and granted through the 296

Sir Thomas Erskine Holland, K.C., The Elements of Jurisprudence, 13 th ed., 1924, Indian Economy Reprint, 2007, Pg. 209-211.

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Constitution. Constitutional rights have a further special category among them, known as Fundamental rights which stand at the tip of this rights-pyramid. About two dozen rights which have been mentioned as such297 in the Constitution are known as Fundamental Rights. These are the rights of extremely high priority and cannot be taken away from a citizen except by amending the Constitution298 itself. Even Parliament has been debarred from enacting any law taking away or even changing these rights. So much so that if any law is made by the Parliament which violates the Fundamental Rights, Courts have been given the authority to discard such a law.299 Fundamental rights are so feverishly protected by the Constitution that neither contract300 nor even law can take them away from you301. Of so many of these Fundamental rights, one is your right to buy any property through legal means; you have a fundamental right to buy any property that a seller is willing to sell to you at an agreed price302. Unlike many other Fundamental Rights, your this Fundamental right, however, is not static. This means that Constitution has only described the spirit of this right but has left the details of its actual implementation in the hands of the parliament. This has been done in order to allow the Parliament to get this right developed in accordance with the changing times and needs through the ordinary laws. So we see that our this Fundamental right has been subjected to two conditions: Articles 9 to 28, Chapter-1, Part-II of the Constitution of Islamic Republic of Pakistan, 1973. 298 Article 8, Constitution of Islamic Republic of Pakistan, 1973. 299 Article 8 of the Constitution of Islamic Republic of Pakistan, 1973. 300 Suo Motu Case No. 13 of 2009 in the matter of Action on press clipping from the Daily "Patriot", Islamabad dated 04.07.2009 regarding Joint Venture Agreement between CDA and Multi-Professional Cooperative Housing Society (MPCHS) for development of land in Sector E-11 Islamabad, referring Moulvi Iqbal Haider Vs. Federation of Pakistan, PLD 2006 SC 394. 301 Article 8 of the Constitution of Islamic Republic of Pakistan, 1973. Article 8: Laws inconsistent with or in derogation of Fundamental Rights to be void--(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void. 302 Article 23 of the Constitution of Islamic Republic of Pakistan, 1973. Article 23: Provision as to property--Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to Constitution and any reasonable restrictions imposed by law in the public interest. 297

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Constitution and reasonable restrictions imposed by law in the public interest. Condition of Constitution has been imposed because Constitution allows the State to compulsorily acquire a citizen's property if it is required for some public purpose. We see such acquisitions happening for widening of roads, etc. However, this acquisition can only be done under the relevant law303, strictly in accordance with procedure provided in it which requires that a citizen's private property can only be acquired by the State if, and only if, it is shown to be required for some public purpose and that too only after giving him the market price of the property. So the condition on this right to property of being subject to Constitution is simple, and fair. But the tricky part is on its way. The second condition that Constitution has placed on a citizen‘s right to buy property, that this right is available subject to any reasonable restrictions imposed by law in the public interest, is not only vast, it raises a number of serious questions. One of these questions is related to the law of Shufaa or Pre-emption304. This law imposes restrictions on a Pakistani citizen of selling his land against the wishes of his neighbor. Thus in order to buy a property in Pakistan, not only its owner but all the neighbours must also consent to the deal. Yes!

4. What is Pre-Emption Anyway: We can get a better understanding of what we are heading to by analyzing a few of the leading provisions of a representative law of pre-emption305. For one, by-passing all the principles of interpretation of laws which are applicable to other laws of Pakistan, this law claims that it will be interpreted according to Quran and Sunnah306 alone. Second, this law claims that it is superior to all other laws and will override them307. The crux of this law is that whoever has this right of pre-emption can annul Land Acquisition Act, 1894. Punjab Pre-emption Act, 1991, Khyber Pakhtunkhwa Pre-emption Act, 1987, etc. 305 Punjab Pre-emption Act, 1991. 306 Punjab Pre-emption Act, 1991. Section 3. Interpretation.— In the interpretation and the application of the provisions of this Act, the Court shall seek guidance from the Holy Qur‘an and Sunnah. 307 Punjab Pre-emption Act, 1991. Section 4. Act to override other laws.— The provisions of this Act shall have effect notwithstanding anything in any other law for the time being in force. 303 304

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any deal of the purchase of any immovable property, no matter who bought it, and buy it instead. If original buyer will refuse to back out from his transaction, pre-emptor can go to court and get the property by force of law308. This means that if you buy an immovable property, it can be got from you, by force of law, by anyone having this right of pre-emption. The million dollar question now arises as to who has this right of pre-emption? All the people who are partners in the property sold, those who have properties which share right to way or water channel with the property sold or all the persons who have properties in the immediate neighborhood of the sold property have got this right of pre-emption over the property.309 All of these persons have this right independent of each other and each of these persons have the complete right to get your purchase deal cancelled by the force of state machinery. Thus unless the owner and all these partners and neighbours of this property agree to your purchase deal, you cannot buy this property; in other words you cannot exercise your Fundamental right—your most precious and most jealously guarded legal right of acquiring and holding any property unless you can please all of this bunch of people. Our Pre-emption law is not simply an ordinary law. It has emanated from Islam, and thus is protected by our Islamic Court, the Federal Shariat Courts. The original law of Pre-emption held that right of pre-emption can only be exercised on the sale of an agriculture land310 and also that pre-emption can only be exercised Punjab Pre-emption Act, 1991. Section 2 (c) ―right of pre-emption‖ means a right to acquire by purchase an immovable property in preference to other persons by reason of such right. 309 Punjab Pre-emption Act, 1991. Section 6. Persons in whom the right of preemption vests.— (1) The right of preemption shall vest— (a) firstly, in Shafi Sharik; (b) secondly, in Shafi Khalit; and (c) thirdly, in Shafi Jar. Explanation.— (I) ‗Shafi Sharik‘ means a person who is a co-owner in the corpus of the undivided immovable property sold. (II) ‗Shafi Khalit‘ means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation. (III) ‗Shafi Jar‘ means a person who has a right of pre-emption because of owning an immovable property adjacent to the immovable property sold. 310 Punjab Pre-emption Act, 1991. Section 2 (a) ―immovable property‖ means immovable property situated in any area other than an urban area or within cantonment limits as declared by any law relating to Local Bodies or Cantonments, as the case may be, for the time being in force. 308

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either out of necessity or to avoid some irreparable loss311. However, interpreting the law in the light of Quran and Sunnah, our moral Courts312 held that right of pre-emption can be exercised on all types of properties including urban and commercial properties. Our Sharia Court further held that there is absolutely no need to show necessity or avoidance of loss to exercise this right; essentially the partner or neighbour can just take over the property, against the same price, from any buyer if they feels like it, even if for no reason at all313. Thus the situation boils down to this: you go and buy a property of your own choice from a willing seller at the agreed price, pay the price and take over possession. But before you could take advantage of your newly bought property, which you thought is your Fundamental right under the Constitution of the Islamic Republic of Pakistan, 1973, you figure out that a neighbour of the seller has filed a suit for pre-emption and you soon find a court decree against you. So, after a few months of buying a property, freely and fairly, you discover that the court of law is giving you back your money and telling you to go home, you can't own that property. Would you be able to buy another property and hold it? Well you never know. May be one of the neighbours of the new seller will also get interested in the property and after getting sale deed registered in your name, you will once again find yourself decreed to get your money back and go home!

5. Why Do We Have this Law? We have this law because we had it in the past. And we had it in the past because we needed it in the past. We have traditionally been an agriculture based economy, in which land ownership system played a central role314. In any typical tribal agrarian society, like the one Indian sub-continent has traditionally been, no one is allowed by the tribal law to sell his land to anyone outside Punjab Pre-emption Act, 1991. Section 6 (2) notwithstanding anything in subsection (1), the right of pre-emption shall be exercisable only in case of ‗Zaroorat‘ or to avoid ‗Zarar‘. 312 Federal Shairat Court. 313 Shairat Appellate Bench of the Supreme Court of Pakistan in Haji Rana Muhammad Shabbir Ahmad Khan‘s case reported in PLD 1994 SC 1. 314 Komol Singha, Economy of a Primitive Tribunal Village in Manipur, Concept Publishing Company, 2011, pg. 35. 311

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the community315. Arthashastra is the oldest treatise on statecraft which was written by Kutliya Chanakya, the prime minister of Great Indian Emperor Chandragupta Murya, in around 300 BC i.e., some two millennia before Machiavelli wrote The Prince. One interesting anecdote regarding Arthashastra is related to Indian Prime Minister Jawaharlal Nehru and Chinese Premier Zhou Enlai. It is said that on his visit to India in 1954, Zhou Enlai asked his hosts for a copy of the book that Nehru was known to keep under his pillow; Arthashastra. And this Arthashastra talks about Preemption. Written sometimes around the lifetime of Aristotle, Arthashastra advises the King to allow his subjects to sell their landed properties but with the restriction that kinsmen would have first right of pre-emption316. The restriction was not without a reason. In traditional societies transactions in land were rare, often forced by the circumstances of dire need of peasant because landholding, in addition to being the only means of earning for the peasant, was also a matter of pride317. Thus an ancient peasant would never have sold its land for profit, only out of extreme necessity. This losing of pride used to become a matter of insult if a person from some other tribe or family would have bought it. Thus, in order to preserve the peace and order of the society, right of pre-emption was created as a useful legal fiction from the very ancient of times. The time however took a slow turn, as always—we only find it taking a sharp one when we fail to notice it taking a slow curve in time—in early modern period when land was started to be seen more and more as a capital attracting increasing rate of land taxation, which increased in Mughal period, increased more in 18th century and even more under the British East India Company318. More on this in a later section. First lets connect Indian wisdom with Islamic virtues.

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Komol Singha, Economy of a Primitive Tribunal Village in Manipur, Concept Publishing Company, 2011, pg. 38. Bikram Sarkar, Land Reforms in India, Theory and Practice: A study of Legal Aspects of Land Reforms Measures in West Bengal, APH Publishing, 1989, 12. D. Narasimha Reddy, Agrarian Reforms, Land Markets, and Rural Poor, Concept Publishing Company, 2009, pg. 4-5. David Ludden, An Agrarian History of South Asia, Part 4, Volume 4, Cambridge University Press, 1999, pg. 130.

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6. This is Islamic Right as Well! We not only have this Pre-emption (Shufaa) law because of our Indian tribal and agrarian past but also because of Islamic jurisprudence. Islamic is a unique civilization in the annals of history which is based on religion. Islam, in its turn, is a unique religion which is based on law. So much so that in Islamic theory, contrary to other legal systems, it is the law which creates ruler (the Caliph) and thus to uphold this law becomes the primary duty of the Islamic ruler—the Caliph. From the modern point of view, there is no distinction in Islam between sacred and secular and man has the absolute duty to obey God in every aspect of life. Consequently, there is no essential distinction in Islam between law and morality. Islam gives more emphasis on discovering and following the commands of God as compared to figuring out the nature and attributes of the Divine. Sharia (Islamic Law) covers all spheres of life, many of which are not regarded as fields of law by the modern legal systems. From incest to the respect to be accorded to elders is thus classified by Islamic law under one of the five legal categories: commanded, recommended, left legally indifferent, reprobated, or forbidden by the God Himself. "Islam is rather unique in its emphasis on the divine character of the law, its immutability—in theory at least, the lack of legislative authority of the ruler, and the absence of any basic distinction between legal and ethical rules."319 Islamic is a legal system based on intestate succession where inherited property of the deceased is devolved to his children jointly. Therefore, the first right of joint owner of buying the rest of the property is common and important right. This has led to the preservation of right of pre-emption in the Middle Eastern legal system320. Muslim Caliphs, until the middle of the 8th century A.D saw themselves as direct agents of God and would personally act as judges (qazis). As judges, they always acted practically, without ever invoking the Prophetic (pbuh) authority. Iyas b. Muawiya, for instance, was Basra's qazi in early 8th century A.D. He expanded 319

320

J.N.D. Anderson, Law as a Social Force in Islamic Culture and History, Pg. 13-14, quoted in Herbert J. Liebesny, The Law of the Near and Middle East: Readings, Cases and Materials, State University of New York Press Albany, 1975, pg. 3-4. Herbert J. Liebesny, The Law of the Near and Middle East: Readings, Cases and Materials, State University of New York Press Albany, 1975, pg. 213.

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the right of pre-emption and started granting pre-emption rights to neighbours. Caliph, for practical reasons, did not agree with it. Consequently, Caliph Umar II (717-720 AD) decreed that right of pre-emption be confined to partners in property only, and not to be granted to neighbours.321 There is a possibility that this Caliphal decree arose out of the complaints of the Muslims conquering and settling in the newly conquered areas. The complaints were to the effect that granting of pre-emption rights to the neighbours in conquered areas, which were pre-dominantly non-Muslim areas, was depriving the Muslims of their right to purchase property as the non-Muslim community, in order to keep the conquerors out of their residential areas, would buy any property being sold in the neighbourhood, whether they would need it or not.322 Thus Caliph developed the pre-emption law, very pragmatically, to adjust to the changing needs of the society that he was ruling. However, with the mass conversions of local population over time, the conquered territories changed demographics and nonmuslim majority areas turned into muslim majority areas and the neighbour's right of pre-emption seemed to have seeped in again on the tribal and ethnic basis, which was of prime importance for Arabs. However, when the Islamic laws developed, over a period of some centuries, and differences arose in the crafting of a detailed system of rules and regulations, differences arose among Islamic jurists. These differences gave rise to emergence of different schools of Islamic law or fiqh. Along with other subjects, different schools developed pre-emption law on different and sometimes conflicting lines. While all the schools of Islamic law recognize a right of pre-emption in one form or another, they confine or expand it according to their own deliberations. The Hanafi school of Islamic law, for instance, in sharp contrast to other schools, extended the right of pre-emption to its limits. And by modern standards, it seems that they extended it rather too far. Not only does Hanafi law grant pre-emption right to the immediate adjacent neighbour of the property being sold, it also bestows this right to the property holders who share any property right in common 321

322

Wael B. Hallaq, The Origins and Evolution of Islamic Law, Cambridge University Press, 2005, pg. 43-44. Wael B. Hallaq, The Origins and Evolution of Islamic Law, Cambridge University Press, 2005, FN 46 at pg. 44.

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with the seller; which includes right of common passage. Thus a neighbour who is not an adjacent neighbor of the property being sold but is placed on the same road can also exercise his right of pre-emption.323 This line of reasoning in development of pre-emption law was preserved and developed in all the Arab countries. Thus Article 950 of the Majalla held that "Pre-emption consists of acquiring possession of a piece of property held in absolute ownership which has been purchased, by paying the purchaser the amount he gave for it" while its Article 1009 described the holder of the right of preemption as "[t]he right of pre-emption belongs: First, to the person who is a joint owner of the property sold [,] [s]econd, to the person who is a joint owner of an easement over the property sold [,] [t]hird, to the adjoining neighbour[;] [t]his right of the neighbor exists only in Hanefite law."324 In contrast to Hanafi School of Islamic law, Shia and Shafi Schools of Islamic law are narrowing and thus modern in outlook. In these schools right of pre-emption is confined only to jointowners. Not only this but these schools went even further and additionally confined the right of pre-emption of the co-owners to only those cases where the number of co-sharers was two. These schools do not recognize the right of pre-emption on the basis of owning adjacent properties or even on sharing joint property rights such as passage.325 Many of the modern legal systems of the Arab countries have opted to get rid of this neighbour's right of pre-emption. Thus Jurists drafting modern Egyptian Civil Code of 1948 found removal of neighbour's right of pre-emption an essential land reform.326 But in different periods, various Islamic states, such as Richard A. Debs, Islamic Law and Civil Code: The Law of Property in Egypt, Columbia University Press, 2013, pg. 24. 324 AL-MAJALLA AL AHKAM AL ADALIYYAH (The Ottoman Courts Manual (Hanafi)), the Ottomon Civil Code applied since 1877 to the entire Ottomon Empire which included Middle East. It remained in force in Turkey until 1926, in Albania until 1928, in Lebanon until 1932, in Syria until 1949, in Iraq until 1953, in Cyprus until 1960s and in Palestine and Israel until 1984. 325 M. Raquibuzzaman, Chapter 4, Islamic Perspectives on Territorial Boundaries and Autonomy, Sohail H. Hashimi (ed), Islamic Political Ethics: Civil Society, Pluralism, and Conflict, Princeton University Press, 2009, pg.84. 326 Guy Bechor, The Sanhuri Code, and the Emergence of Modern Arab Civil Law (1932-1949), Brill, 2007, pg. 238. 323

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Iran,327 and Libya328 had different types of pre-emption laws. Interestingly even Swiss law recognizes this pre-emption right, but only and strictly for joint owners of the property and not for the neighbours.329

7. How Did It Land with Us? Islamic law came to India with the conquest of Daibul (Sindh) by Muhammad bin Qasim in 712 AD. Then came the famous 17 attacks of Afghan ruler Sultan Mahmood Ghaznavi (970-1030 AD), followed by annexation of Punjab by his successor, Muhammad Ghori. This annexation was then expanded and made permanent by Slave Dynasty, Delhi Sultanate and Mughals. All these Muslim Dynasties, ruling most of the Indian sub-continent till the middle of the 19th Century applied Islamic laws; sometimes to the entire population and sometimes to muslim part of their subjects. British East India Company was granted monopoly to do business in India through successive charters by British Crown since the year 1600 AD. British thus started business in India during the reign of Mughal emperor Jehangir, son of world famous Mughal Emperor Akbar the Great. With the expansion of its business in India, Company started keeping its private armies. This inevitably resulted in its assuming political power among the weakening central authority of the Mughal Empire and the ever The Civil Code of The Islamic Republic of Iran, 1928. Article 808: When real property, capable of being divided, is held jointly by two individuals, and one of them transfers his share to a third person by way of sale, the other joint owner has the right to give the purchaser the price which he has paid for it, and to take possession of the portion sold. This right is known as the right of preemption (Shufeh). Article 810: If the property of two persons enjoy the right of passage or a waterway held in common, and one of them sells his property together with the right of passage on the road or water, the other one has the right of pre-emption, even though he be not a joint holder in undivided shares in the property itself; but if one of the parties sells the property apart from the right of passage, the other has no right of pre-emption. 328 The Libyan Civil Code, 1954. Article 939: Pre-emption is the opportunity that a person has to substitute himself in a sale of immovable property in the place of the purchaser, in the cases and subject to the conditions laid down in the following Articles. Article 940: The right of pre-emption belongs: a) To the bare owner, in the case of a sale of all or part of the usufruct attached to a bare property, b) To the co-owner in common, in case of a sale to a third party of a part of the property held in common. c) To the usufructuary, in case of a sale of all or part of the bare property which produces his usufruct. 329 The Swiss Civil Code, 1907. Article 682: Co-owners have a right of pre-emption, as against one, not a co-owner, who has acquired a share therein. 327

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feuding independent or semi-independent Indian states or principalities. British East India Company eventually became de jure ruler of the Indian state of Bengal in 1757. This rule kept on expanding to other states. It was then in 1858, following the Indian Rebellion of 1857, that the Government of India Act 1858 was promulgated and British government started ruling Indian subcontinent directly. During the reign of the British East India Company, British Crown was involved in governing India, though indirectly, which is evident, among others, from the Charter of George II, granted in 1753.330 Islamic law was adopted for the Company-ruled India as a result of events of 1772. Total assets of the British East India Company in the year 1772 were around 5 million pounds while its liabilities were around 9 million pounds. Bankruptcy was avoided by provision of finances from the British public funds in return for which British government received regulatory powers and created the post of governor general and a council of officials to be appointed by the British government.331 Policies of Warren Hastings, a Company official and the first Governor General in Council of Bengal, adopted in 1772 permitted the implementation of Sharia in the areas of India under British rule. Thus Regulation II of 1772 provided that "in all suits regarding inheritance, succession, marriage and caste and other usages or institutions, the laws of Koran with respect to 'Mahomadams', and those of Shaster with respect to Gentoos (Hindus), shall be invariably adhered to." It was also decreed by the British that Maulvis would attend Courts in order to help the judges administer justice. Historically, religion has always played a pivotal role in the diverse and complex legal and social traditions of India. Thus Colonial legal system remained sensitive to this complexity and ultimately emerged through the interaction of these indigenous laws and cultures with the Western political philosophies.332

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Justice Shahzado Shaikh, Political History of Muslim Law in Indo-Pak SubContinent, Mission Unto Light International, 2012, pg. 10-11. Ilhan Niaz, Old World Empires; Cultures of Power and Governance in Eurasia, Oxford University Press, 2014, pg. 46. Justice Shahzado Shaikh, Political History of Muslim Law in Indo-Pak SubContinent, Mission Unto Light International, 2012, pg. 10.

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In the second half of the 19th century, the money lenders all over India started grabbing lands of the peasants and thus agricultural land started ending up in the hands of non-peasants on a large scale. This process got hastened with the famine of 1897, which placed three and a half million Indians on famine relief.333 Morover enormous growth of population resulted in sub-divisions of inherited agricultural land. All these factors resulted in a large number of peasants ending up as landless people. These landless and thus unemployed people started turning rogue which enormously increased dacoities in the central districts of Punjab. Thus in order to check money-lenders from collecting agricultural land, which they were neither willing to nor trained for tilling and keep the land within the former community, British Raj to promulgate several laws334 encouraging purchase of agricultural land by the neighbouring peasants. Thus pre-emption law was passed with the dawn of the 20th century in order to ensure that if an agricultural land be sold, it be first offered to its former neighbours so that they can buy and keep tilling it. However, as the situation for which these laws were promulgated got under control, misuse of these laws rose its ugly head. The Pre-emption law in Punjab335 had a devastating effect on sale-purchase of land. Hence, by 1926, the number of pre-emption cases in Punjab were more than half of the total pre-emption cases all over India.336

8. We still have It? Yes, we still have it, in full brutal force. Although other countries also had such laws, but they enacted them to solve some pressing issues and then repealed them as soon as possible. For instance, USA had enacted a Pre-emption Act337 which remained in the field for half a century. It was enacted to provide Pre-emption rights to those settlers who had settled on Federal land. Thus, these settlers were allowed first right to purchase this land before John F. Riddick, The History of British India: A Chronology, Greenwood Publishing Group, 01-Jan-2006, Pg. 84 334 Punjab Pre-emption Act, 1905 and Punjab Pre-emption Act, 1913. 335 Punjab Pre-emption Act, 1913. 336 Matthew J. Nelson, In the Shadow of Shari'ah: Islam, Islamic Law and Democracy in Pakistan, Hurst Publishers, 2008, Pg. 29. 337 Pre-emption Act, 1841. 333

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auctioning it. After having achieved this temporary target, this law, which had been enacted for a practical purpose, was repealed in 1891.Why we had it in the first place is our history. Why are we still living with it is enigma. Changing the course of history is no minor task. Anyone, any idea, any movement cannot do this. It is a Herculean task in true sense of the phrase. To change the course of history requires energy of a giant, will of a warrior and commitment of a fanatic; and on top of it all, a supporting world-view. The energy, will and commitment will ensure that the course is changed while the world-view will decide in which say the course is being moulded. To push and keep the future-history on a reasonable course one needs a rational view of the world and a progressive view of the history. A progressive view of history is one among the three major modern philosophies of history. It states that history depicts continuous progress of mankind due mainly to the struggle of successive generations.338 Western nations generally see the nature and human race working like this and thus analyse the situation realistically and critically, make out plans rationally and then work up to the hilt to achieve their goals. We, on the other hand, are prone to providential view of history according to which philosophy of history all the occurrences are explained in terms of the divine intervention.339 Therefore, according to our world-view, we have pre-emption law because God wanted us to have it and it will remain with us till He will find it appropriate for us. So we don‘t find any reason to think about it rationally as we are not ordained to interfere in the matters of God. We are destined to wait and watch.

9. Do We Need this Law? Right of pre-emption has always played an effective role as a deterrent to the liquidity of land. Only an expression of an intention by a neighbour to exercise his right of pre-emption has been enough to deter potential buyers of the property. This not only makes the sale of the property difficult but also reduces its 338

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Donald V. Gawronski, History: Meaning and Method, Scott, Foresman, 1975, Pg. 22. Donald V. Gawronski, History: Meaning and Method, Scott, Foresman, 1975, Pg. 21.

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value considerably. The results are disastrous in two says. The big landlords in the villages not only get a position akin to a local ruler because of their vast landholdings, in due course of time they attach their egos with their massive lands. Law of pre-emption becomes a very effective and handy ego boosting tool for them. Whenever any farmer tries to sell his land, they announce their intention to exercise their right of pre-emption. This announcement dispels all the serious potential buyers of the property as no one want to get into a purchase deal which will certainly entail and long, laborious and costly duel of litigation keeping his ownership rights in limbo for years. Thus killing the open market competition, the feudal lords buy such lands at less than market prince because ultimately the selling farmer is often left with the potential pre-emptor as the sole buyer or else people are still ready to buy the land keep their pre-emption related stakes in consideration and offer less than market price. The other disaster comes in the shape of accumulation of agricultural land in the hands of such landlords who have vast landholdings and given their feudal mentality, are interested more in maintaining and increasing their holdings than getting the optimum output from them. On the other hand those persons or corporations which are interested and eager to own and till the land on scientific basis for more and better production cannot buy lands. In the end, law of pre-emption snatches the agricultural land from the hands of productive people and gives them to the feudal lords who are not interested in tilling it. Freezing of land market and inefficiency in converting land into capital are the direct consequences.340 When the structures and institutions facilitating the free and easy sale of property are not in place, it inhibits creation of capital341. Clearly, a rigid selling system results into an inactive land market which ensures poverty342.

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Guy Bechor, The Sanhuri Code, and the Emergence of Modern Arab Civil Law (1932-1949), Brill, 2007, pg. 238. James Fulcher, Capitalism: A very short Introduction, Oxford University Press, 2004, pg. 14. D. Narasimha Reddy, Agrarian Reforms, Land Markets, and Rural Poor, Concept Publishing Company, 2009, pg. 264-265.

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10. Why Can’t We Get Rid of It? Losing elections at the hands of massive electoral victory of Zulfiqar Ali Bhutto‘s Pakistan People‘s Party in 1977 the united opposition launched an un-precedent agitation. Although this agitation was against the allegations of massive corruption in the general elections yet, in order to increase its attraction for all sections of the society it was posed as a movement demanding turning Pakistan into an Islamic State. This situation was exploited by the then Chief of Army Staff General Muhammad Zia ul Haq who imposed martial law on the pretext of Islamization of the Constitution of Pakistan, 1973.343 Constitution of Pakistan decrees that Parliament cannot enact any law against the principles of Islam.344 This process got accelerated with the Islamization spree of Dictator General Zia ul Haq.345 Federal Shariat Court was established346 through the Constitutional amendment347 by the Chief Martial Law Administrator348 and since it had the jurisdiction to discard any existing law on the ground of its being un-islamic,349 thousands of cases were filed before it asking for discarding or amending thousands of validly and democratically made Pakistani laws.350 Constitution provides the Federal Shariat Court power to discard any law on the sole basis of Quran and Sunnah of the Holy Prophet (pbuh) and not on the basis of any classical treatise of Islamic law.351 This has been done in order to allow the Court to Sartaj Aziz, Between Dreams and Realities, Some Milestones in Pakistan‘s History, Oxford University Press, 2009, Pg. 55-56. 344 Article 227 of the Constitution of Islamic Republic of Pakistan, 1973. Article 227: (1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions. 345 Marie Lall, Education as a Political Tool in Asia, Edward Vickers Taylor & Francis, 2010, Pg. 184 346 Chapter 3A of the Constitution of Islamic Republic of Pakistan, 1973. 347 Constitution (Amendment) Order 1980 (P.O. No. 1 of 1980), Constitution of Islamic Republic of Pakistan, 1973. 348 General Zia ul Haq. 349 Article 203-D of the Constitution of Islamic Republic of Pakistan, 1973. 350 Muhammad Munir, Islamization of laws in Pakistan with special reference to Punjab Pre-emption Act, 1991, Hamdard Islamicus, Volume XXXVII, No. 4 (October-December 2014), pp. 53-67, pg. 2, available at: http://ssrn.com/abstract=2119960. Accessed on 13th January, 2016. 351 Article 203-D of the Constitution of Islamic Republic of Pakistan, 1973. 343

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undertake fresh interpretation of these sources in accordance with the circumstances and needs of the time. 352 This principle had been recognized by the Pakistan Courts long ago but the compulsory Islamization of this process has made it rigid. For instance, even in a case of 1959 the full bench of the Lahore High Court held that it could adopt an interpretation of the Quran and Sunnah different from the interpretation of the classical treatise of Islamic law. This view was later endorsed by the Supreme Court of Pakistan.353 However, given the precedence of religion in the society, concepts related to Islamic law have always been considered sacred by the Courts. It was on this line of reasoning that in a pre-emption case354 reported in 1960 it was held by the Dacca High Court355 that the law of Pre-emption was based on the saying of the Holy Prophet (pbuh) that ―Neighbour has a right superior to that of a stranger in the land adjacent to him.‖ The Court, however, went on justifying the law by declaring that this principle was introduced to prevent inconvenience resulting from having to have a disagreeable stranger.356 This trend, however, started early in Zia era. In a later leading case, however, the Courts accepted that the concept of pre-emption was prevalent in preIslamic Arab and this local tradition was then adopted by Islam. In the exact words of the judgment:

‫ینعیزامہناجتیلہےکرعباکمانتاورزونیمںیکرخدیورفوتخںیمقحشفعوکمیلسترکےتےھتاور‬ ‫االسمےنیھباسقحوکربرقارراھک۔‬

357

This was held by the religious scholar member of the bench358 constituted under the Zia era Islamic provisions of the Muhammad Munir, Islamization of laws in Pakistan with special reference to Punjab Pre-emption Act, 1991, Hamdard Islamicus, Volume XXXVII, No. 4 (October-December 2014), pp. 53-67, pg. 7, available at: http://ssrn.com/abstract=2119960. Accessed on 13th January 2016. 353 Muhammad Munir, Islamization of laws in Pakistan with special reference to Punjab Pre-emption Act, 1991, Hamdard Islamicus, Volume XXXVII, No. 4 (October-December 2014), pp. 53-67, pg. 8, available at: http://ssrn.com/abstract=2119960. Accessed on 13th January, 2016. 354 Syed Sayeeduddin Ahmed Vs. Haji Iunus Mia, PLD 1960 Dacca 416. 355 The principle Provincial Court of the then province of East Pakistan; now sovereign state of Peoples‘ Republic of Bangladesh since 1971. 356 Syed Sayeeduddin Ahmed Vs. Haji Iunus Mia, PLD 1960 Dacca 416, pg.418. 357 Per Pir Karam Shah, J, the Islamic religious scholar judge in Government of NWFP Vs. Malik Said Kamal Shah, PLD 1986 SC 360, Pg. 383. 358 Of Shariat Appellate Bench of the Supreme Court of Pakistan. 352

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Constitution359 which provides that three Islamic religious scholars at High Court level and two Islamic religious scholars at the Supreme Court level will be the judges of this Constitutional Federal Shariat Court. Principle that the purpose and object of the latest prevailing law of pre-emption360 is to implement the classical Islamic law has also been endorsed by the Supreme Court in its later judgments.361 Even after two decades of embracing of Islam by the Constitution of Pakistan, 1973 at the hands of General Zia, Supreme Court of Pakistan held: “Article 203-D (3)(b) of the Constitution of Islamic Republic of Pakistan does not provide that if any law has been declared against the Injunctions of Islam the proceedings instituted under the said law shall also come to an end on the date fixed by the Court for making such law in consonance with the Injunctions of Islam. At the best its effect would be that the fresh suits of pre-emption after the stipulated date will not be instituted under the law which has been found contrary to the Injunctions of Islam but the claimants would be entitled for the enforcement of their rights under the Mohammedan Law, like the provinces of Sindh and Balochistan where no statutory laws governing pre-emption suits are applicable.”362 A decade before this, Supreme Court held that ―the basis for the right of pre-emption in Islamic law are as substantial as any other right. The old concepts in this behalf no more hold good in so far as the Constitutional dispensation based on Islamic Foundations in Pakistan is concerned.‖363 In another case when a counsel argued that pre-emption law be interpreted strictly as it provides a ―predatory‖ right, the Court took offence and held that ―No doubut there are some judgments to the same effect as pointed out by the learned counsel; but it is now thought to be a view of the old under the newly developing Pakistani Islamic jurisprudence, this derogatory remark about right of pre-emption is not much liked‖.364

Articles 203-C & 203-F of the Constitution of Islamic Republic of Pakistan, 1973. Punjab Pre-emption Act, 1991. 361 Khan Gul Khan Vs. Daraz Khan, 2010 SCMR 539, pg 550. 362 Sarfaraz Vs. Muhammad Aslam Khan, 2001 SCMR 1062, pg. 1071. 363 Master Musa Khan Vs. Abdul Haque, 1993 SCMR 1304, pg. 1307. 364 Ghulam Abbas Vs. Muhammad Ashraf, 1993 SCMR 2289, pg. 2291. 359 360

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11. The Way Forward: Where there is a will, there is a way. But do we have a will? To will or not to will, is the question! One thing that is the biggest stumbling block in abolishing or at least revising our pre-emption law is our emotionally charged affiliation with the concept of the rule of law. In our zeal to protect and promote rule of law we have evolved it from a flexible idea of the system of pragmatic administration of justice to a mechanical god. By the way we have not done this because of some genetic defect but because the events forced upon us by our history; our checkered colonial past. When British colonized Indian subcontinent, they failed to comprehend its system of administration of justice which heavily based on the wisdom and discretion of the judge controlled by social and other subtle limitations. Judging the system on their own rationalized and formally systematic system of justice, they concluded that 18th Century India was operating under a perfect chaos. Resultantly they decided that the only way to ‗civilize‘ the Indian brutes was to give them a comprehensive legal system supported by a rational civil administration system. This resulted in imposition of a totally alien system on a civilization which is more than five thousand years old. In order to push the alien Western system on the indigenous cultures and make it work, colonizers exaggerated its importance creating an illusion of its being a demigod. Thus in the colonial and postcolonial local jurisprudence, compromising even a minor procedural error came to mean an existential threat to the entire legal system. ―The sum effect was that in time deference to law became associated with resisting all novel and unprecedented decisions‖, and adherence to the rule of law put the system out of touch with the needs of a constantly developing society.365 Instances where law needs to grow and change with the changing societies but the democratic institutions cannot change it for any reason are neither non-existent nor insoluble. In such scenarios situation is often saved by what is known as the operation of equity. In sharp contrast to law, which is rigidly based on order, equity is a concept which is based on justice and 365

Lucian W. Pye, Aspects of Political Development: An Analytic Study, Little, Brown and Company, 1966, Pg. 114-115, 123-124.

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provides essential flexibility and dynamism to law. When a law becomes sacred or for some other reason too hard to change through routine democratic procedures, Courts use the device of equity to interpret it, on the basis of reason, pragmatism and justice, adapting its function to the new needs of society.366 The concept of equity was initiated and developed by medieval English jurisprudence through Equity Courts which were dispensing justice parallel to the common law Courts. In order to provide justice in cases where it could not be rendered by strict application of laws by the common law courts, courts of equity jurisdiction developed a more humane and pragmatic system of jurisprudence. Although we don‘t have parallel system of equity jurisdiction yet our law courts are also the courts of equity as our legal system is amalgamation of law and equity.367 Refreshingly it seems, that in order to make law of pre-emption redundant, Courts have lately started adopting an equity like drive to narrow down the impact of pre-emption law by interpreting it too strictly, thus making its implementation extremely cumbersome, if not out rightly impossible. Thus a five member larger bench of the Supreme Court held in a pre-emption case368 that a pre-emptor who wants to exercise his right should immediately make a jumping demand of his such intentions on his very first hearing about the sale of the property. Supreme Court clarified that by jumping demand it means that pre-emptor must prove before the Court that he made this demand immediately on hearing about the sale. Supreme Court classified that if pre-emptor makes this jumping demand not immediately but, say, after a couple of hours, he will lose his right of pre-emption. In other words Pre-emptor has less than two hours to jump! There are two important points involved in this latest trend of judicial narrowing of the right of pre-emption. One is obviously the condition of making a demand immediately, while the second point is that this decision was made by a 5 member larger bench which by law over-rules all the previous decisions369 of any bench consisting of 5 or fewer judges.370 The application of mandatory Sir Thomas Erskine Holland, K.C., The Elements of Jurisprudence, 13th ed., 1924, Indian Economy Reprint, 2007, Pg. 71 367 Benazir Bhutto Vs. President of Pakistan, PLD 1998 SC 388, pg. 465. 368 Mian Pir Muhammad Vs. Faqir Muhammad, PLD 2007 SC 302, para-4. 369 Engineer Jameel Ahmad Malik Vs. Shaukat Aziz, 2007 CLC 1192. 370 National Bank of Pakistan Vs. Nasim Arif Abbasi, 2011 SCMR 446. 366

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condition of making a demand immediately is practically a very difficult one as the decision to buy an immovable property is not an easy decision and can seldom be taken just like that. Making a decision to purchase an immovable property requires a lot of capital. Thus making of such a demand without due consideration, at the spur of the moment is not possible for a lot of potential preemptors. Even more difficult than making an immediate jumping demand is to prove it in the Court of law. When you have to make an immediate demand, you cannot do it in writing. And to prove that you made an oral announcement of your intention to exercise your right of pre-emption you need to produce witnesses in the Court of law which makes the pre-emptor‘s case even more difficult to establish. As they say in adjudication, putting it right is more important than getting it together.371 While there are many ways of changing a law to meet the requirements of an ever changing monster called the society, the best is to get it amended through parliament. If it is not possible to amend a law because of the Constitutional constrains, change the Constitution. After all we have a democratically made Constitution and we can make whatever changes in it that we would want to. We can even discard it completely and come up with a new Constitution based on entirely different and fresh principles. No doubt that this is one hell of a drastic way of doing things; though practical and doable. By the way we have done it many times in our short political history. We had the parliamentary form of Constitution of 1956. Then we had the presidential form of Constitution of 1962. Then we again had the parliamentary form of 1973 Constitution. In 1985 we amended the Constitution372 and transformed it into a semi-parliamentary-semi-presidential form of Constitution373. And then in 2010 we again changed the Constitution and once again turned it into a purely parliamentary form of a Constitution374. We can make any changes in OUR Constitution, but we do not do so because we are not sure about our identity and ideology. We Gerald J. Postema, A Treatise of Legal Philosophy and General Jurisprudence, Vol. 11: Legal Philosophy in the Twentieth Century: The Comon Law World, Springer, 2011, Pg. 538 372 8th Amendment to the Constitution of Islamic Republic of Pakistan, 1973. 373 Article 58(2)(b) of the Constitution of Islamic Republic of Pakistan, 1973. 374 18th Amendment to the Constitution of Islamic Republic of Pakistan, 1973. 371

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remain in a constant fix as to whether we are primarily Muslims or Pakistani or Human beings, or what? As a matter of fact, although we had several democratically elected parliaments, whom we elected through universal franchise evaluating different manifestos of the Political parties taking part in these several elections, some of which manifestos included such drastic programs as creation of Islamic state, yet very prudently, we never elected a Parliament on any such manifestos and thus never allowed our various parliaments to turn our state into a theocracy. It was thus one of our unelected Military Dictator,375 and none of our several democratically elected Constituent and legislative bodies who gave us Constitutional Islam; some people prefer to refer it as Islamic Constitution. In the final analysis democracy could not give us Islam; it was the triumph of a dictatorship which did this to us. But the question now is, once that dictatorship ended and democracy was restored why the dictatorial changes in the Constitution are not being undone? One pressing reason could be the Sharia‘s principle which prescribes death penalty for renouncing Islam—once you embrace Islam, you will die with it, naturally or legally depends on you. But can this principle which is applicable to humans be reasonably extended to documents, institutions and states?

375

General Muhammad Zia ul Haq.

128

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140

DEDICATION

Dedicated to Mr. Raza Kazim, Advocate Supreme Court of Pakistan

A Great Progressive Mind

141

Acknowledgements This book is the outcome of a thought process produced by the influence of a lot of people. The list includes Raza Kazim,

Justice

(Retd)

Jawwad

S.

Khawaja,

M/s.

Humayoun Ihsan, Waqas Ahmad Khwaja, Tariq Zaman, and M/s. Ahmed Awais, Anwar Kamal, Bilal Hasan Minto and Salman Akram Raja, all of whom happen to be Advocates of the Supreme Court. Also included in this list are M/s. Kabeer Khan, Ejaz Ahmed, Ali Sultan, Justice (Retd) Kazim Ali Malik, and M/s. Mubashar Rahman, Saeed Ahmed Cheema, Moeen Ahmed Qureshi, Rai Shahid Saleem Khan, Hassan Awais and Ali Awais, all of whom happen to be Advocates of the High Court at this moment. This list also includes my maternal grandfather Sheikh

Sarshar

Ali

and

my

uncles

(paternal)

Dr.

Muhammad Ajmal (Psychologist) and (maternal) Sheikh Mukhtar Masood (famed writer of book Awaz-e-Dost), both of whom retired as Federal Secretaries; and of course my parents Muhammad Akram Makhdoom and Rukhsana Makhdoom and children Musa bin Salman Makhdoom, Ahaz bin Salman Makhdoom, Talalah binte Salman Makhdoom and Kiyara binte Salman Makhdoom. It is not possible in this space to spell out how they individually

contributed

to

the

development

of

my

thought and the world view. However, specific mention of

142

two names, for their contribution in this particular book, cannot be left out. I am deeply indebted to Mr. Ali Haider, Advocate High Court, my teacher and friend whose initiative and guidance throughout is worth more than words can ever express. I am also indebted to my wife, Sadaf Salman Makhdoom, whose progressiveness, constant support and patience made this humble endeavour possible.

.net/news/2006/10/23/1500-animal-species-practicehomosexuality.aspx.html?paging=off-banquet-halls-in-lahore-forwedding-rates-menu-/2.pdf?sequence=1-no-need-to-amendblasphemy-law-cii/-hall-wah-cantt/