Contradicting the Constitution (il)legally

Published: September 14, 2014

These are just a few examples of laws directly or indirectly contradicting the Constitution, thereby raising a mentality of impunity towards those who oppress and commit heinous crimes against the constitutionally safe-guarded and “depressed minorities” PHOTO: AFP

“Wherein adequate provision shall be made for the minorities freely to profess and practice their religions and develop their cultures… Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes… No person shall be deprived of life or liberty save in accordance with law… All citizens are equal before law and are entitled to equal protection of law… There shall be no discrimination on the basis of sex… No child below the age of 14 years shall be engaged in any factory or mine or any other hazardous employment… The State shall safeguard the legitimate rights and interests of minorities, including their due representation in the Federal and Provincial services…”

My question to you is where are these words from?

But before I answer, I have a confession – I am a conformist. I am a shameless conformist. No, not because I am without opinion but because my personal struggle has made me a conformist towards everything impersonal. I never have had the luxury of time or felt the duty to be a nonconformist.

But today I refuse to conform because the silence is deafening. There have been too many incidents in Pakistan, incidents that do not correspond to being human.

I question myself – I am no one, will my opinion matter?

But today, I will not let this old conformist thought get in my way because those who have taken the oath to be nonconformist are all but mute. Those who have the duty to be vocal have all but sold their souls for a paisa. Our leaders, our administrators, our legislators, our citizens and our voices have all but forgotten the spirit of tolerant Pakistan.

The love of money, power, family and self has blinded the “creme de la creme” into conformism. Pakistanis who have the collective acumen to instigate a healthy and effective debate are instead busy sipping imported coffee and discussing fashion trends. Our engrossment in outliving our ‘friends’ has blinded us to the injustices happening around us. There is mass conformism.

Tolerance was a founding principle of Pakistan. So why have we dilapidated to where a pregnant woman is literally stoned to death in a major city while waiting to appear in court, a doctor doing voluntary work is murdered in cold blood while leaving a cemetery and another physician, also doing voluntary work is shot dead in Hassanabdal. Where is our humanity when we riot and cheer the burning of houses with humans? We cheer for suffering and death.

The absence of humanity and tolerance is maddening. This silence of conformism is deafening.

Here is the conundrum though: Pakistanis are generally extremely charitable and humane, right?

Just look at the prevalence of philanthropy at every level, charity given to feed the hungry, shelter the homeless, heal the sick and help the helpless. But this humanism somehow fails to translate to tolerance for anything different from the majority “us”.

Is all lost?

Scepticism (or reality) aside, I know that there is a lot of goodness in Pakistan; albeit, the goodness is at best, asleep.

Globally, it is nothing new that Pakistan is a synonym for extremism, suicide bombers and corruption. Our national treasures are all but forgotten because of conformism. Is it not time to speak up and speak louder than the bigoted voices? Renounce the sleep of conformism. Let us talk about the shortcomings our nation is facing just like we discuss the numerous shortcoming of every other nation ad-nauseam. Introspection is in tall order. And so is bravery.

Now back to the question about the quotation at the beginning of this post. Those words are not from some far land of ‘Utopia-istan’ but indeed from the Constitution of the Islamic Republic of Pakistan.

A constitution, the parent of all laws, is written to protect its every citizen – whether a part of the majority or the minority. However, constitutions are most needed to protect the rights of minorities, the downtrodden, who are left unprotected by the majority.

The preamble of the Constitution includes,

“…Wherein adequate provision shall be made for the minorities freely to profess and practice their religions and develop their cultures…Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes…”

Part two of the Constitution addresses fundamental rights such as freedom of association, freedom to profess religion and to manage religious institutions, equality of citizens, rights to education, safeguard against discrimination in services, etcetera. You may be surprised to read the fundamental rights awarded to all Pakistani citizens in the Constitution since these critical protections are violated each day every day without much fanfare or protest. Reproduced below are some excerpts of the Constitution that deserve a quick read and are ripe for discussion in the current climate:

Inviolability of dignity of man, etcetera.

14. (1) The dignity of man and, subject to law, the privacy of home, shall be inviolable.

Freedom of speech, etc.

19. Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, (commission of) or incitement to an offence.

Freedom to profess religion and to manage religious institutions

20. Subject to law, public order and morality,

(a) every citizen shall have the right to profess, practice and propagate his religion; and

(b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.

Safeguards as to educational institutions in respect of religion, etc.

22. (1) No person attending any educational institution shall be required to receive religious instruction, or take part in any religious ceremony, or attend religious worship, if such instruction, ceremony or worship relates to a religion other than his own.

(2) In respect of any religious institution, there shall be no discrimination against any community in the granting of exemption or concession in relation to taxation.

(3) Subject to law,

(a) no religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any educational institution maintained wholly by that community or denomination; and

(b) no citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth.

Protection of minorities

36. The State shall safeguard the legitimate rights and interests of minorities, including their due representation in the Federal and Provincial services.

The Constitution explicitly states, “the dignity of man… shall be inviolable”. And it clearly carves rights for minorities, children, women and the oppressed. These constitutional provisions are the supreme law of Pakistan, are they not? Why are these constitutional rights being infringed upon? Why are these constitutional rights unenforced? The dignity of men and women is in fact violated at the whim of our very delicate sensibilities. Even worse, the numerous constitutional protections offered to the citizens of Pakistan are often violated by the guardians of the Constitution who have the responsibility to protect and enforce the Constitution.

A quick glance at the Pakistan Penal Code (PPC) and ordinances will show a myriad of laws that directly contradict the Constitution. Note that the Constitution provides the necessary framework from where all the laws, rules and regulations are based or derived from. Specifically, no law, rule, ordinance or regulation in Pakistan can be contradictory, directly or indirectly, to any clause of the Constitution of Pakistan.

In fact, Article 8 of the Constitution codifies that any law (custom or usage having the force of law) inconsistent with the fundamental rights granted in the Constitution shall be void. Furthermore, Article 8 of the Constitution explicitly states that the State shall not make any law which take away or abridge the fundamental rights conferred and any law made in contravention… to the extent of such contravention, be void (with some exceptions).

But laws that contradict the Constitution exist and are rampantly abused in violation of the fundamental rights of Pakistanis. PPC (Act XLV of 1860) is the criminal code primarily used for offensive charges. Sections 295-B and 295-C (Ordinance no. XX of 1984) and Sections 298-B and 298-C of the PPC restrict and criminalise (includes fines, imprisonment and death penalty for charges) the constitutional fundamental right to freely profess and practice religion, thereby depriving liberty and defying that all “citizens are equal before law and are entitled to equal protection of law” under the Constitution.

Sections 295-A, B and C and Sections 298-B and 298-C of the PPC are widely misused by disgruntled individuals to bring blasphemy charges against Pakistani citizens with all spectrum of beliefs including, but not limited to, Christians, Ahmadis, Ismailis, lawyers defencing blasphemy defendants, journalists, minors, mentally incapacitated and imbalanced men and women, and just any Muslim.

Unfortunately, there are no procedural safeguards and the evidentiary threshold for guilt is haphazard and extremely low, translating into no or negligible evidence being sufficient for indictments and imprisonment. In addition, because of the ease in filing cases under sections 295-B and 295-C of the PPC, one can see why the intolerant and the angry consider this low-hanging fruit to misuse the law to incriminate individuals for personal vendetta and to settle personal enmity, property disputes and political and religious rivalry.

The Human Rights Commission of Pakistan (HRCP) has reported that the majority of blasphemy cases were filed against Muslims followed by the Ahmadi community. Osama Siddique and Zahra Hayat tallied 41 cases involving Section 295-C of the PPC where the accused in five cases were Christians, the accused in 15 cases were from the Ahmadi community and the accused in 20 cases were Muslims. Given that approximately 97% of the population of Pakistan is Muslim, these numbers illustrate that filings under Section 295 C are disproportionally against minorities in consideration of the total population of Pakistan.

Under many legal jurisdictions, the above discussed sections of the PPC would be unconstitutional because of their vagueness and lack of meaningful warning resulting in arbitrary and discriminatory enforcement, especially because the stakes are high (death penalty under 295-C). Furthermore, these laws contradict Article 19 of the Constitution guaranteeing free speech protection. Some may argue that Article 19 should be narrowly construed because of the “claw back” provisions or caveats (such as public policy, morality and decency) but constitutional interpretation, as held in some cases by the Pakistan Supreme Court, should be inspired to strike a balance to achieve the goals of democracy, tolerance, equality and social justice and not to impede and suffocate religious freedoms.

This issue of blasphemy laws contradicting the Constitution was addressed by the Supreme Court in Zaheeruddin versus State, but the majority, ruling for the State, failed to rely on Article 19 of the Constitution in their opinion. Maybe, future persistent constitutional judicial challenges to these sections of the PPC will help highlight these issues so laws can be reformed and checks and balances can be placed to ensure fundamental Constitutional rights for all Pakistani citizens.

Sections 295 A, B and C and Sections 298-B and 298-C of the PPC are not the only examples of contradictory laws. There are other laws and ordinances that contradict the equal protection clause of the Constitution – Article 25 (1) states all citizens are equal before law and are entitled to equal protection of law and Article 25 (2) states there shall be no discrimination on the basis of sex. But section 320 of the PPC pertaining to the punishment of Qisas and Tazir for Qatl-e-Amd (murder by intent), Section 304 of the PPC providing the proof of offenses, and Section 309 and 310 of the PPC outlining the right to compound the offense by the ‘wali‘ and Qanoon-e-Shahadat 1984 are used to discriminate against and hinder the service of justice for women who are victims of heinous violence and crimes committed in the name of ‘honour’.

For example, some of these PPC sections are misused by allowing compounding of murder committed in the name of ‘ghairat’ or ‘honour’; or by waiver of the right to Qisas by one of the victim’s legal heirs; or by allowing compounding of offense by one of the victim’s legal heirs when the crime is alleged to be committed in the name of ‘honour’. These laws, as they stand and their implementation denies the constitutional fundamental right of all citizens being equal before law and entitled to equal protection of law but I digress, this is another contradiction for another discussion.

These are just a few examples of laws directly or indirectly contradicting the Constitution, thereby raising a mentality of impunity towards those who oppress and commit heinous crimes against the constitutionally safe-guarded and “depressed minorities” including, but not limited to, women, religious minorities, children, and the handicapped.

Let us take it upon ourselves to dissect our collective mentality and culture of impunity affirmed by the laws, rules and regulations that contradict the Constitution. There is no singular solution to correct all injustices but introspection and non-conformism may be an urgently needed starting point. Yes, injustices may occur everywhere anyway but we all will be damned if these injustices are endorsed by the Constitution and the letter of law continues to be written by bloody ink.

“The most foolish notion of all is the belief that everything is just which is found in the customs or laws of nations. Would that be true, even if these laws had been enacted by tyrants? … What of the many deadly, the many pestilential statutes which nations put in force? These no more deserve to be called laws than the rules a band of robbers might pass in their assembly. For if ignorant and unskilful men have prescribed deadly poisons instead of healing drugs, these cannot possibly be called physicians’ prescriptions; neither in a nation can a statute of any sort be called a law, even though the nation, in spite of being a ruinous regulation, has accepted it.” – Cicero

Faryal Malik

Faryal Malik

An Intellectual Property attorney by profession and an avid backpacker by passion. She aspires to be kind, humble and generous to attain peace in the journey of life. She tweets @desinewyorkers

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.

  • Prashant

    A good one Faryal.

    Recommend

  • Parvez

    A bit highbrow but very correct…….and it is deliberately kept like this by all parties concerned because they are the beneficiaries of this warped system.
    The body that makes laws is the Parliament and to expect them to make laws that benefit the people is wishful thinking…..but when it comes to making laws to benefit themselves, all differences are forgotten and the law passes without delay.
    The sad part is that our judiciary seem to be complicit in this charade because they too are major beneficiaries of the same warped system.Recommend

  • legal_eagle

    Very well written! Recommend

  • vaqaa

    How depressing to see not a single comment for an eye opening piece. My ignorance is no excuse for the ways this country has legalized injustice. I hope people start standing up against these draconian laws, and with all the oppressed. Live and let live.Recommend

  • ishrat salim

    Thank you Mam….it must have crossed over the heads many literate people who still thinks that IK / TuQ is wrong. Their dharnas against violation of the constitution have opened the eyes of many sleeping soul. It is a ” national awakening “. IK / TuQ has opened the can of worms & unveiled the abhorrent practices of the people in power . They are having sleepless nights due to this ” national awakening “. The never expected it…
    Aristotle had said & quote ” where laws do not rule, there is no constitution “..is this not true TODAY ? CHANGE is in the air, no one now can STOP this.Recommend

  • Striver

    LAW MAKING PROCESSES
    What contradictions are not restricted to the ones mentioned in the article. I have no doubt the author is aware of other contradictions. The only way to remove them is by taking away some of the powers of of law making these “parliamentarians” and using technically proficient law draftsmen who point out contradictions before a a draft becomes a law.

    I have not seen one tax case brought before the courts that has been won on technical grounds. Recommend

  • Ali

    Great piece. Actually learned something.Recommend

  • Iftikhar Ali

    Awesome LadyRecommend

  • Hassan

    Found it extremely informative and thought provoking. Good job!Recommend

  • LawWard

    Good words Recommend

  • DOC_US

    A blog with good research. I want to read more of these kinds of articles. Justice is for all.Recommend

  • Maheen

    A very well written piece. Good job Ms MalikRecommend

  • Talented

    You have made good points. There is too much other political drama always so no one cares about laws. Recommend

  • Ayesha

    Nice Mam.Recommend

  • Zara

    A very well written piece.. Keep up the good work and keep more stuff coming!Recommend

  • Zia
  • Rafay

    What an extraordinary piece of writing ! Hope we can learn a thing or two from it. We need more people to think like you Faryal Malik, and Pakistan will most certainly be a changed country.
    KUDOS to you ! Recommend

  • lawprofessor

    You write with passion and conviction. Thank you for raising voice on a controversial subject. Taboo really.Recommend