Daily Archives: June 23, 2022

A political storm over the Islamophobic policies of India’s ruling party shows no signs of abating. The hateful remarks made by two officials of Narendra Modi’s BJP have enraged Muslims across the globe. Strategic rivals from Iran to Saudi Arabia are demanding a public apology from Modi himself. We have seen huge street rallies against hurtful remarks of two BJP leaders not only in India, Pakistan and Bangladesh but also all over the Muslim world.

Indian security forces have aggravated matters with a harsh crackdown. Police in the state of Jharkhand had fired on Muslim demonstrators, killing some people, including a 15-year-old student Mudassir Alam. His class 10th result was announced two weeks after his death and he passed with an A Grade. Authorities in parts of India have bulldozed the houses of Muslim Indians protesting against the blasphemous statements. All of this can be seen as the logical result of years of hate speech against Muslims.

Yet even if Modi apologises, that isn’t going to be enough to secure the future of Muslims in India. Nor is Islamophobia an India-specific issue. It is a global problem. A white supremacist killed 10 people in a supermarket in the US city of Buffalo on May 14, leaving behind a manifesto that also bristled with anti-Islamic sentiments (as well as anti-Semitic screeds). Muslims in Canada are still mourning the death of four people targeted for their religion in an attack in Ontario last year. Islamic believers are coping with manifestations of Islamophobia in places from Australia to Brazil.

I know that there are many people in the West who prefer to look away. Blasphemy, some say, is too sensitive a topic. Cracking down on religious hate speech would curtail freedom of expression.

But can we let it go like that? I don’t think so. Dutch lawmaker Geert Wilder had openly supported BJP leader Nupur Sharma for her hateful remarks. Wilder was convicted in the Netherlands for his hate speech in the past. His support for Nupur Sharma was seen as an alliance between anti-Islam elements in the West with Hindu nationalists in the East.

When the news about the protests against blasphemous statements of the two BJP officials broke, I was visiting the University of Oxford, UK. I took part in a debate in the famous Oxford Union about how laws dating back to the days of the British colonial period continue to shape South Asia today.

A portrait of former prime minister of Pakistan Benazir Bhutto is still hanging in the Oxford Union hall. She had presided over many debates in the same hall in the early 70s as the president of Oxford Union.

In her last book “Reconciliation” (published in 2008), she had criticised some American writers like Robert Spencer, who were creating misunderstandings between the east and the west by spreading disinformation about Islam. She had always supported a dialogue to resolve all problems.

I was doing the same in the Oxford Union hall and tried to gather support through arguments. I criticised the British colonial laws like sedition (124 A) introduced to the Subcontinent in 1860 and demanded abolition of colonial legacy. Many Indian speakers supported my stance. Finally, the house passed the resolution that “British Raj still lives on”.

After the debate, a young female student from Bangladesh asked me about Pakistan’s anti-blasphemy law: “Don’t you think that this colonial law should also be abolished?” I explained to her the background of blasphemy laws in Pakistan. I told her that there is no doubt that the blasphemy laws in Pakistan have been misused for the purposes of censorship. I have same experienced it myself. Many state and non-state actors in Pakistan had used blasphemy charges against me, my TV channel and many other journalists just to silence the voices of dissent.

Yet blasphemy – which can be seen as a particularly toxic expression of the broader problem of Islamophobia – is an extremely sensitive issue, and we should treat it very carefully. During my visit to the UK, I met several Muslim members of the British parliament as well as other representatives of the Muslim community. All of them expressed concern about the growing radicalisation of young British Muslims – a process driven, they said, by a rising tide of Islamophobia (sometimes expressed in the form of offensive comments about Islam). Studies have shown that permissiveness about blasphemy can incite violence.

This is one reason why Muslim countries have spent the past decade calling for a global anti-blasphemy mechanism. Blasphemy in the west or anti-Islam actions of Hindu nationalists has always provided strength to extremist forces in Muslim countries who want to push us towards a third world war.

By stirring up passions across the Muslim world, the latest blasphemy incident in India has strengthened the extremist forces who blame the west for Islamophobia. If western societies simply ignore the problem, it will continue to fester. I fear a new storm of extremism if the trend is not addressed.

There is a way forward. Earlier this year, the UN General Assembly had passed a landmark unanimous resolution designating March 15 as the “International Day to Combat Islamophobia.” There was a specific rationale for the choice of date. On that day in 2019, a right-wing extremist had killed over 50 Muslims in New Zealand. The resolution was presented by Pakistan on behalf of the Organisation of Islamic Cooperation.

Pakistani leaders Asif Ali Zardari, Shahid Khaqan Abbasi and Imran Khan had repeatedly raised their voices against blasphemy and Islamophobia in the UNGA in their speeches of 2012, 2017 and 2021. Pakistan had introduced its first resolution condemning religious defamation in the United Nations Human Rights Council in 2009.

Some will say that such well-intentioned gestures mean little. I respectfully disagree. The UN-sponsored mechanisms can serve a useful purpose. An international consensus to treat blasphemy as a hate crime can help minimise misunderstandings among civilisations and religions. The UN-approved standards can offer important guidelines to countries that are trying to formulate laws of their own. A few days back, June 18 was commemorated as the International Day to counter Hate Speech by the United Nations. The UN Action Plan against Hate Speech is an effort to counter hatred without creating threats for freedom of speech.

But the world should do more. The international community needs to articulate a new set of principles – a code of behaviour, if you will – condemning violence and discrimination against people of all religions or beliefs, including Muslims. It would call for a global dialogue on the promotion of a culture of tolerance and peace, based on respect for human rights and the diversity of religions and beliefs.

A good model for such an approach already exists. It’s called the Istanbul Process. In 2011, the UN Human Rights Council had passed a resolution that led to an ongoing discussion between Muslim nations and the US, the UK and the countries of the European Union. The countries have been discussing ways to identify tensions to combat the root causes of religious discrimination and criminalise incitement to violence.

I think Pakistan and the other 56 members of the Organisation of Islamic Cooperation should follow the Istanbul Process to create a permanent mechanism against discrimination and blasphemy addressed to all religions.

If Muslims want others to respect their Prophet (SAW), they can start it by following his teachings. The Prophet (SAW) preached tolerance. He asked Muslims to respect other religions. He once allowed a Christian delegation, including a bishop, to pray inside a mosque.

A few days back, some people had attacked a Hindu temple in Karachi, claiming that they were retaliating against the blasphemous statements from India. This attack was a violation of Islamic teachings. Muslim leaders should condemn these attacks against temples and churches very loudly. Muslim majority nations must protect the rights of non-Muslims. They must emerge as a new role model for the protection of human rights under Islam. Respect cannot be demanded by force. It has to be earned by spreading the true message of Islam.

Most importantly, any new code of conduct against blasphemy should not be used to restrict freedom of speech. The OIC can start by addressing worries about the misuse of blasphemy laws. These concerns are not limited to Muslim countries, by the way: A Pew Research Center study in 2019 had found that one out of four countries in the world maintained laws against blasphemy or apostasy.

There is no question that finding the right balance will be a challenge. But the fundamental problem must be tackled. One problem is that western countries have been repealing blasphemy laws even while Muslim countries have been demanding action from the UN on blasphemy. They are going in the opposite direction. This is profoundly dangerous. We must avoid a clash of civilisations. We need a dialogue. The late Benazir Bhutto had proposed an honest dialogue to avoid clash of civilisations. She had concluded her last book by saying “It is time for new ideas. It is time for creativity. It is time for bold commitment. And it is time for honesty, both among people and between people.”

(Hamid Mir works for Geo News @HamidMirPAK )

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What transpired on April 16, 2022 and the events that subsequently unravelled therefrom were bewildering enough but certain intriguing conundrums surfaced that were left forsaken by commentators.

One question that was not taken into consideration in the case of Dua Zehra – a girl who allegedly married out of free will – was whether our justice system should allow women to choose whom they want to spend their lives with or force them back with their parents. Would granting custody of Dua to her parents amount to giving them a licence to pressurize their daughter into a forced marriage, creating a loophole that perpetrators of forced marriages can utilize while victims suffer in silence? How do we draw the lines in the sand in our law’s protection of both child marriage victims and forced marriage victims? In light of the first Dua interview that surfaced recently, this article will attempt to answer these difficult questions.

In order to address the aforementioned questions, one must first comprehend the ‘how’ and the ‘why’, as well as the underlying rationale behind the decisions of the Sindh and Lahore high courts.

Dua had suddenly vanished from her parent’s house in Karachi. Her parents were unaware of her whereabouts until April 25, 2022 when they discovered that Dua had married one Zaheer Ahmed in Lahore, Punjab.

It is a matter of grave concern that allegedly a 14-year-old opted to exercise her free will and elope. The question this raises is: can a girl of this age be deemed to have acquired a sufficient level of maturity, understanding, and in the least contemplate the significance of the institution of marriage? The answer is it is highly unlikely, even if we justify her actions under the guise of a toxic parental atmosphere and lack of ability to exercise free will.

Due to her alleged minor age, Dua’s case is different from the routine runaway marriage court case controversy, something that substantially complicated the courts’ decision. Dua claimed to be a major, whilst her parents maintained that she was underage. To resolve this controversy, the Sindh High Court ordered the authorities to conduct an ossification test, the result of which seemed to go with Dua’s stance as her medical tests provided that her age is 16 or 17.

Under our existing laws and judicial prescriptions, a sui juris – as in a major Muslim woman – is competent to contract a marriage out of her own free will without consent or permission from a guardian (Hafiz Abdul Waheed vs Mrs. Asma Jehangir, PLD 2004). Marriage under Islamic law is a civil contract and an adult Muslim girl is competent to enter into a marriage contract (Malik Wajid case, 2020). The term ‘adult’, according to Section 251 of Muhammadan Law by D F Mulla means “a person being a male, has attained the age of eighteen years or, being a female the age of sixteen years, or has attained puberty”. In other words, Muslim marriage is a civil contract and every Muslim of sound mind, who has attained puberty, can enter into it.

Leaving that aside, there were also allegations that Dua was abducted by a child trafficking gang who kidnapped her and decamped to Punjab. First, our police and intelligence agencies did a commendable job by acting promptly and with diligence to secure Dua and verify the veracity of these allegations. Second, before deciphering whether this was a case of abduction or not, if Dua were forced into marriage or abducted by gangs, which is alleged, then in that particular arc can criticism of our justice system for failing to protect innocents be justified. With all the ramped-up security and an overzealous media, Dua’s statement before the Sindh High Court was: “I got married of my own free will, no one kidnapped me; I want to go with my husband Zaheer and do not wish to see my parents.”

The implications of her statement tied the judge’s hands. To explain this, it would be advantageous to look at para 13 by Justice Muhammad Ali Mazhar in the Muhammad Asif Arain case (2012 P Cr L J 1553 KAR) wherein his lordship held that: “a major Muslim woman like a major Muslim such is sui juris and entitled to the same rights and liberties. There is no law that a female on the mere ground of her sex must invariably be treated as a person under some sort of disability.” Similarly, in Mst Saima Mai v DPO, Khanewal (2022 CLC 134 LAH) while referring to a plethora of precedents, the court held that “Article 9 of the constitution has strenuously vouched for the protections of right to life of every person and it is the duty of the constitutional courts to protect and safeguard all the fundamental rights … Therefore, it remained a consistent practice of this court to issue appropriate directions to secure right to life… and also provide safeguards to their (matrimonial) lives.”

Meaning that a sui juris means a person who has attained the age of majority and has independence and the capacity to hold full social and civil rights, and can therefore exercise the right to enter into a contract of marriage which shall be valid.

Taking that into consideration, we now see the decisions of both the courts in the Dua Zehra case.

To be continued

Khadija Siddiqi is a barrister-at-law who practises human rights law. She tweets @khadijasid751

Amad Tahir is a criminal lawyer. He tweets @klMkLOz_4

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Across Lahore, and all the areas where large houses stand and chandeliers, marble finishing or other signs of luxury in worth can be spotted in the rooms downstairs, there quite often stands, a totally different kind of accommodation. This is apparently intended for domestic staff or ‘servant’ or perhaps more than one servant, and often consists of nothing more than the tin shack on the roof where the unfortunate individual who can manage nothing better and is compelled to work to feed himself or his family must live often with barely a pedestal fan in place and no windows or other amenities.

While looking at rental houses, even more shocking is the state of the toilets, which these individuals are expected to use. In some cases, the only way to shower is by standing over the commode itself and there is no availability of flushes or even basic dignities which should be the right of every man. The constitution of Pakistan declares every citizen as equal. Clearly, this is not accepted by the builders and owners of the palatial houses, even though they can easily afford to give another individual or individuals a decent living at the very least.

The problem extends deeper even into the larger colonies run by various building societies in all the towns and cities of the country. Separate laws have been put into place in these societies, some of which banish those whom we call domestic help from visiting parks in the area, simply because their profession is that of a chef or maid, or nurse to a baby rather than a housewife, a doctor, a teacher or someone else who owns the houses where these people work. In some cases, they are not even allowed the right to small windows in their rooms and must live with a tiny slit acting as a ventilator in the rooms, making it extremely difficult either to get any air or to fit up even a small room cooler which may make their life a little more bearable in temperatures with this year have reached a high of 47 degrees centigrade in Lahore and even higher in other cities.

Again, we wonder if the laws in these housing societies, which were formed under their own acts, are a violation of the constitution of Pakistan and if it should be permissible for people to be kept in such inhumane conditions with some obviously more equal than others. Surely, we cannot judge by a person’s profession if he or she is likely to peek into the houses of neighbours, the reason sometimes given for the slit window allowance or act in a rowdy manner in a park. Young men from families with plenty of money are perfectly capable of doing just the same.

This of course, brings us to the overall situation of housing in the country. With an expanding population, indeed an exploding population, there is too little housing to accommodate people and to cater to their needs. The result is that most people in cities live in shanty towns where there are no amenities such as basic sanitation and of course, no clean drinking water. Many survive in structures made of tin or cardboard and nothing more than that, fighting off the elements despite these conditions.

The failure to cater for more housing to accommodate people since the 1950s has now brought about disaster and is likely to bring about even more in the future when the population grows still further. And of course for single women from all class groups, there is very little available in terms of safe housing, with household help unsafe within the homes where they often work up to 12 hours a day and single professional women often unable to find housing even in major cities which can provide them both safety and a place where they can live their own lives without interference from the authorities who run the institution and without snide from neighbours about whatever habits or whatever routine they choose to follow in terms of socializing at night or going about the usual life of young women all over the world.

The question of housing and inequality within it is a pressing one. The problem has to be dealt with. The matter should be taken up in Parliament and discussed in some detail. We must ask if large building societies are to be allowed to put together their own laws and devise their own schemes to turn the giant authorities that they operate. It is true that in many cases, these authorities do offer a better standard of security than others. But the level of discrimination against people should be simply unbearable to the government of Pakistan and to the upholders of the constitution. The fact that no one is bothered about it is disturbing. One look at the rooms built for domestic help would shake most who believe even in the very essential rights of man, leave alone anything that amounts to decency or luxury.

Given the way our society is, we cannot even begin to expect domestic help to live as family members do, although this is the norm in many other countries of the world, including the Philippines, where the help dines with families in many cases. But our social norms cannot change immediately. They were born in colonial times and will remain with us for a far longer period to come. We can however consider some system which allows domestic help to gain at least a degree of dignity through the housing in which they are put and the amenities they are expected to use to meet their basic needs.

The constitution after all declares that housing is the right of all. There should also be phraseology about the decency of the housing and how it is to be built. This applies not just to housing societies, but to shanty towns and other areas all across the country. Too many are in such a poor state that one wonders how anyone can live there at all. But yet people have to. They have no choice.

At the moment the disparities are simply unbearable. It is hard to imagine who would allow any individual to live in the kind of inadequate shelters they have built for them with no provisions for weather conditions or for basic needs, which they require simply to live. Some say that they have no choice but to visit local mosques in order to use toilets. Others even in developed areas use fields or open spaces every morning.

This is a state of affairs that cannot continue and which surely needs to be taken up by those who look over the law of the land. We need change and we need to ensure that people are able to live decent lives no matter what their occupation, their class, their standard of education, or where they come from. This, after all, should be the basis in any country and is certainly needed in ours.

Email: kamilahyat@hotmail.com

The writer is a freelance columnist and former newspaper editor.

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Why is curbing sexual and gender-based violence (SGBV) not a priority for the PML-N led government?

Yet another horrifying rape case has sparked outrage across the country. The incident occurred on May 27, 2022, when a young mother was travelling on the Bahaudin Zakaria Express. Memory recalls a previous frightful rape incident that had terrorised the entire nation: the Lahore motorway rape case of September 9, 2020.

However, the legal landscape surrounding both cases has drastically changed. It was in fact the public outrage following the Lahore motorway rape case that caused the then PTI-led government to pass two Ordinances in order to improve the criminal justice system’s (CJS) response to sexual violence.

The Ordinances were passed by President Arif Alvi on December 15, 2020. They were later renewed and then passed as Acts of the Parliament and were enacted into law after receiving assent from the president. These are titled: ‘The Anti-Rape (Investigation and Trail) Act 2021’ and ‘The Criminal Law (Amendment) Act 2021’

Despite the introduction of several survivor-centric mechanisms to ensure expeditious redressal of rape and crimes of sexual violence through special investigation teams and efficacious procedures, the non-implementation of the AntiRape Act continues to re-victimise the survivor/victim of sexual violence as s/ he navigates the CJS for the registration of FIR and Medico-legal Examination (MLE).

The intent behind the introduction of the anti-rape crisis cells (ARCCs) is to provide a multi-coordinated approach to a survivor/victim of sexual violence by placing CJS stakeholders together so that the victim/survivor does not have to travel to multiple locations in a state of vulnerability.

As per Section 4 of the Anti-Rape Act, ARCCs are to be established in public hospitals with adequate medical facilities. The power, duties and functions of the ARCCs are mentioned under Section 5 of the Act. It states that the ARCC shall “… without any delay ensure the following, namely: (a) conduct of a medico-legal examination without any delay; (b) securing, collection and gathering of such evidence as may be expedient; (c) conduct of a forensic analysis or examination; (d) registration of an first information report (FIR) by the police; and (e) performing of any other action as may be necessary.”

However, the ARCCs have not even been established in any province across Pakistan.

In the Bahaudin Zakaria Express rape case, a multi-stakeholder coordinated approach has not been seen. The FIR was lodged with the Karachi police on May 29 (with a delay of two days). The MLE was conducted at the Jinnah Postgraduate Medical Centre (JPMC) in Karachi.

It is of utmost importance that the ARRCs are established in all districts of each city across the country. In many cases that do not receive media highlight, the CJS stakeholders do not provide expedited services. This results in the loss of critical evidence. As a result, many rape cases result in a compromise, even though rape is a non-compoundable offence. According to the ‘Gap Analysis on Investigation and Prosecution of Rape and Sodomy Cases’ (2020) by the Legal Aid Society (LAS), average time taken to report to the police from the date of incident was revealed to be 1.3 months whereas average time taken in MLE was revealed to be 16.03 days.

The important questions that need to be asked are that: where are the ARCCs? Why have they not been established yet despite being mandated by the Anti-Rape Act? Why is curbing sexual and gender-based violence (SGBV) not a priority for the PML-N led government?

Additionally, the police have revealed that they registered a case against the suspects under sections 376 (punishment for rape) and 34 (acts done by several persons in furtherance of common intention) of the Pakistan Penal Code (PPC). However, it is important to note that the Criminal Law (Amendment) Act 2021 inserted ‘375A’ titled ‘Gang rape’ into the PPC. Nevertheless, this section was not utilised. This highlights that despite the enactment of the law, the police force has not been effectively trained on the correct use of the new sections relating to sexual violence in the PPC.

The federal and provincial governments must ensure the urgent implementation of the Anti-Rape (Investigation and Trail) Act 2021 and the Criminal Law (Amendment) Act 2021.

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