The liabilities of our state

Courtesy Daily Times

The state is not only negligent of its duty in protecting the faith of the Ahmedis, it is directly criminally liable under its own Blasphemy Law every time it prints a passport or an identity card application

A first information report, commonly known as an FIR, has been lodged in Lahore against Facebook under section 295 C of the Pakistan Penal Code (PPC). Legally, this raises some very poignant questions about the criminal liability of a corporation, i.e. a business with legal identity.

The issue has been the subject of much litigation, most notably and recently the Citizens United v Federal Election Commission, 558 US 50 (2010), in which the US Supreme Court held that any limits on a corporation’s political funding would be tantamount to a violation of the first amendment to the US constitution. It remains to be seen, of course, if the corporations are going to get the right to vote as well but needless to say, this judgement has, for all practical purposes, created room for all sorts of mischief, including criminal liability for a corporation. Therefore, a criminal case against Facebook, absurd as it may seem, is legally possible, thanks to the landmark American judgement above, amongst other things, even if the established Pakistani case law might exempt it on other grounds.

What I am interested in, however, is not Facebook, which is, after all, a foreign company, but the criminal liability that may now also be extended to the ‘state’ in Pakistan, which is also, like a corporation, a legal artificial person. That a sovereign state — yes we do love the word sovereign, do we not? — is a legal person under the law is an undisputed fact. This primarily means that the state in Pakistan is collectively bound by the laws of Pakistan, including but not limited to the PPC. Now consider Section 295-A of the PPC, which states: “Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs: 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 the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to 10 years, or with fine, or with both.”

Now let us here revisit some facts. The Second Amendment has, quite regrettably, laid down in no uncertain terms that members of the Ahmediyya sect, of either the Qadiani or Lahori jamaats, form a separate religion, with distinct religious beliefs. Now, with that in mind, let us dwell upon the declaration that every Pakistani Muslim is asked to sign when getting either his national identity card or his passport:

“I consider Mirza Ghulam Ahmad Qadiani to be an imposter prophet…” I spent some time looking for a positive meaning of the word ‘imposter’ or ‘impostor’ but found none whatsoever. The meanings I did find were: one who fakes, charlatan, fake, faker, fraud, humbug, mountebank, phoney, pretender, quack. If this is not ‘insulting’ and a ‘deliberate’ and ‘malicious’ act to outrage the feelings of a community then I do not know what is. Now clearly, constitutionally recognised Muslims in the territories of Pakistan do not believe that Mirza Ghulam Ahmad Qadiani was a nabi or a prophet. Those who believe in his prophethood are no longer recognised, according to the Second Amendment of the constitution of the Islamic Republic of Pakistan, as Muslims. Yet, it goes without saying that in doing so and admitting that they form a separate faith unto themselves, there are constitutional and legal protections that apply to the Ahmedis and their faith. The state is not only negligent of its duty in protecting the faith of the Ahmedis, it is directly criminally liable under its own Blasphemy Law every time it prints a passport or an identity card application. It goes without saying that no petitioner is going to petition, no lawyer is going to take the case and no judge is going to rule according to the law in this matter. Moral courage is lacking in our country, especially when it comes to enforcing the rights of minorities.

However, does the state not have any responsibility to at least attempt to abide by its own laws? Parliament recently restored the word ‘freely’ to the Objectives Resolution as it forms the substantive part of Pakistan’s constitution under Article 2-A. Even without the word ‘freely’, the resolution promised that “adequate provision shall be made for the minorities to profess and practise their religions and develop their cultures”. On the contrary, the state has made every provision to hamper the profession and practice of the Ahmedi minority’s religion. It has, indeed, through Ordinance XX of 1984, clamped down on and, for all practical purposes, criminalised the Ahmedi mode of worship.

Pakistan recently ratified the International Covenant of Political and Civil Rights. Article 18 of the said covenant — which may not be derogated — lays down:

“1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion, which would impair his freedom to have or to adopt a religion or belief of his choice.” In Pakistan, after Zaheeruddin v the State, there is no scope for the implementation of this covenant, regardless of the good intentions of the present government. So long as Pakistan does not return to Jinnah’s original conception of an impartial state based on justice, fair play and complete equality of citizenship, it is bound to rank amongst the worst human rights violators and abusers in the world.

Postscript: In my letter to the editor ‘Two Nation Theory’ (Daily Times, July 17, 2010), the name of the great H V Hodson was inadvertently printed by Daily Times as ‘H V Hudson’. H V Hodson was an extraordinary writer and a figure of international renown given his close association with all major luminaries of British India, including Jinnah and Gandhi. Therefore, a corrigendum is necessary.

Yasser Latif Hamdani is a lawyer. He also blogs at https://pakteahouse.wordpress.com and can be reached at yasser.hamdani@gmail.com

5 Comments

Filed under Pakistan

5 responses to “The liabilities of our state

  1. MOHAMED BOODHUN

    Dear Yasser:

    You made a very important and sensible legal point in your article.

    Given that you are a lawyer, could you please enlighten us, the ahmadi muslims, how to follow the law of the land when that law asks us to declare what we do not believe ourselves to be?

    Would you also enlighten us how not “to pose like a Muslim”. What should the Pakistani Ahmadi Muslims do so that they leave the rest of the pious pakistani musalmaans/momins with the impression that they acted like a non-muslim?.

    What does “not posing like a muslim” imply? Does that imply that we should start lying, embrace indecency, fornicate, commit adultery, burn our own buildings when we are angry at others….?????

    I know that you did not create that law, but I would like to know your view point of how the Ahmadis should behave as to please the religious ulemas and guardian of the faith of the Pakistani muslims?

    Lastly, since Amadis still offer salat facing Mecca, fast for 30 days during Ramadan, pay the zakat, recite the Kalima and perform Hajj if allowed…these ahmadies are not following the law. The government is not punishing them for that!!! Is it okay then, for the citizens to take the law into their own hand?

    MOHAMED bOODHUN
    NEWFOUNDLAND, CANADA

  2. yasserlatifhamdani

    What can I say … It is a stupid law… Which doesn’t make religious, moral or legal sense.
    *** This Message Has Been Sent Using BlackBerry Internet Service from Mobilink ***

  3. Keeping Honest

    Dear YLK:
    Way back in late 1980s, I challenged ‘Declaration for a Muslim’ in Pakistani Passport in Federal Ombudsman court/ office in Islamabad. At that time Sardar Iqbal was the ombudsman. I even suggested to him to make ‘Oath of Office of President of pakistan’ (given in 1973 constitution) in lieu of ‘Declaration for a Muslim’. Instead he started asking me if I am a “Lahori-Ahmadi”. My reply was, “My religion is Islam, and I’m a Muslim”. I further informed him, Islamic history tells us that in time of Holy Prophet Muhammad pbuh, there was a claimant of prophethood Masleema Kazzab. Still Holy Prophet Muhammad pbuh did NOT demand from those who were converting to Islam to curse ‘Masleema’. All he asked them to recite Kalima-Shahada. Anyway, judge said he would send me the judgment. Which was like this: “Your issue is outside my jurisdiction”. My plan was to file writ petition in Rawalpindi High Court. But then I decided to not pursue the issue. My time was precious for me.

  4. Mansoor Tahir

    Dear Yasser,

    It’s so sad to read an analysis of the legal dead end for the state of Pakistan. I really appreciate the key point you have suggested for coming out of this downward spiral of sectarian violence and ever increasing militancy in the name of religion. Unfortunately as a nation we have been proven crooks, our leaders shamelessly doctored the most sacred charters for their own political gains in the name of so called Islamization. It is pity that these dictators and so called democratic leaders fell in the trap of same forces which opposed the very creation of Pakistan and forgot the time and again reminders of the Quaid e Azam when he laid the foundation of nascent state. He warned and depicted the picture of clearly separated Church/Mosque and state. What was stopping him when he appointed the first law minister, foreign minister and chief justice from among the people irrespective of their religious affiliations? I guess we have regressed so much that it seems a hopeless case. We have seen the parade of political leaders with big slogans and a little is done in essence to alleviate the suffering humanity. May Allah bless this nation…