Another Plea to the Chief Justice of Pakistan

By Anjum Altaf

Once upon a time there was an amenity plot assigned as a playground to a school in a central part of Karachi. Then, one day, the Government of Pakistan (GoP) took it over and handed it to the Ministry of Defence (MoD) which turned it to commercial use prompting the late Ardeshir Cowasjee to direct “A plea to the Lord Chief Justice” which appeared in this newspaper on 14.6.2009.

Lo and behold, the Lord Chief Justice took note, the case was brought to court, and a judgement pronounced on 18.12.2009 by Justice Jawwad S. Khawaja. What follows from court documents is a summary of this astounding land grab and an update of its status following the judgement.

According to the citizens the 5 acre plot was transferred by GoP to the City District Government Karachi (CDGK) on 12.8.1976 for the Lines Area Redevelopment Project and designated in the Master Plan as an amenity plot to be used as playground. It was subsequently claimed by GoP that while contiguous land was indeed transferred to CDGK, this particular plot was excluded and remained part of the Karachi Cantonment.

Following this reclamation, General Musharraf, the then military ruler, granted on 19.12.2002 a 90 years lease on the plot to the Army Welfare Trust (AWT) at the nominal yearly rent of Rs. 6,020 only. The court noted that contrary to its name that suggests some institutional affiliation with the Pakistan army, the AWT was registered as a Non-Government Organization, a private society, under the Societies Registration Act. It was however a fact that General Musharraf was at the time the ex-officio Patron of the AWT in his capacity of COAS.

On 31.7.2006, the AWT in turn transferred the land to a private party (Makro-Habib Pakistan Limited) by way of a sub-lease for an initial term of 30 years receiving an advance rent of Rs. 100,000,000 based on a variable annual amount of at least Rs. 17,500,000 and a maximum equivalent to 1% of the annual turnover of Makro-Habib which was initially incorporated as a joint venture between SHV, a Dutch multinational, and the House of Habib, a Pakistani corporate group. SHV held 70% of the equity in the venture but later divested its share to the House of Habib with permission to use the ‘Makro’ brand name. After the execution of the sub-lease, Makro-Habib constructed a wholesale centre on the plot.

Following a meticulous examination of the argument advanced by GoP, AWT, and Makro-Habib that the playground was not transferred to CDGK, the Court concluded it was “wholly untenable.” Based on this finding that the land was not the property of the MoD, both its lease of the land to AWT and the subsequent sub-lease to Makro-Habib were declared null and void. Makro-Habib was allowed “three months from the date of the judgement, to remove its structures and installations from the playground, restore it to the same condition as existed on the date of the sub-lease and hand over its vacant possession to the CDGK.”

The Court was also “led to the inescapable conclusion that Government land was virtually thrown away at great financial loss to the Government and in utter disregard of the CLA [Cantonment Land Administration] Rules.”

In addition, the Court referred specifically to a paragraph in a Ministry of Defence Summary for the Chief Executive dated 20.9.2002 which read as follows: “Since Rules do not permit leasing out defence land free of cost, MoD supports payment of nominal premium and rent by AWT, being a welfare organization.” With reference to this paragraph, the Court observed: “We have also noted the cynical play with the CLA Rules” and that the document “presents a damning indictment of dictatorial one man rule.”

The aggrieved parties filed a review petition against the decision which was dismissed by the Supreme Court on 27.8.2015. But even after the dismissal of the review petition, the orders of the Court remain outstanding. The Makro-Habib structure continues to stand although without transacting any business. The result is a lose-lose proposition in which a valuable property is fulfilling neither its original nor its engineered purpose.   

This unsatisfactory outcome prompts the following questions: How is it possible that a judgement of the Supreme Court can remain unimplemented for nine years? What is the recourse for citizens if Supreme Court judgements can be stonewalled even after the dismissal of review petitions? Why does the Supreme Court not have the powers to have its judgements implemented?

These are important questions and deserving of another plea to the Lord Chief Justice: Please take suo moto notice of why judgements on prior suo moto notices cannot be implemented. And if they cannot, to explain why the practice deserves to continue in the future.

This opinion appeared in Dawn on April 10, 2018, and is reproduced here with permission of the author. The author is indebted to Dr. Syed Raza Ali Gardezi for his critical review of the facts presented in this opinion. Dr. Gardezi continues to represent the citizens in this case.

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If I Were a Christian

By South Asian

What would I be thinking if I were a Christian in Pakistan today after yet another incident that has victimized the members of my community? What would I be asking of those who are my fellow citizens?

I use the term ‘fellow citizens,’ knowingly because I am asking for a reciprocal recognition of my rights as a full citizen of this country. These include my civil rights, the protection of my life and property, which are guaranteed under the law.

I would urge my fellow citizens to understand the nature of the incident in which the houses of an entire community have been burned for the alleged transgression of one member of that community.

This is not a natural disaster; it is not an earthquake or a flood that is indifferent to caste, creed or color. This is a deliberate, calculated infliction of terror and violence on a specific subset of fellow citizens in the country.

I understand the impulse to organize relief but that is not an adequate response. I expect a defense of my rights as a citizen. I want an environment in which I would not need relief. I want a space in which I can live without fear of violence because of who I am. I want a commitment that I would be judged for what I have done under the law that is the same for all.

I would like my fellow citizens to be asking the following questions:

Who has violated my rights as a citizen?

Who is responsible for the protection of my rights as a citizen?

Who will raise a voice for the recognition of my rights as a citizen?

What are the actions that will help attain the protection of my rights as a citizen?

There have been many failures in this incident. It is clear it was known in advance the community was to be attacked as the residents had been warned to flee. Why was the area not protected in that case? Who was responsible for that failure of protection? Have those who failed in their task to protect the rights of citizens resigned or been asked to resign? If not, why not?

I would call upon my fellow citizens to ask, in turn, those who are in charge of governance and its administration in the city to account for their failures. I would ask for a court of citizens to demand the governors and officials in charge testify and give an account of their actions. I would urge my fellow citizens to pass civil verdicts based on the evidence presented. I would expect my fellow citizens to withdraw cooperation from these offices till an acceptable resolution to the failure to protect civil rights is found.

I would ask my fellow citizens to stand up for my rights. I would ask them to help me not by providing compensation and relief but by ensuring that I am never in need of them. I have a right to that as a citizen of this country. You have a responsibility to ensure that right as fellow citizens of this country.

If I were a Christian, I would be asking these questions.

I am asking these questions. I am a Christian as long as this struggle has to be waged.

 

Two Fires

By C. M. Naim

On Tuesday, September 11, 2012, a horrific fire in a garment factory in the Baldia Township in Karachi killed at least 259 persons, male and female. As I read about it on subsequent days I was reminded of another fire that occurred a century earlier—to be exact, on Saturday, November 25, 1911—in New York City. It too was in a garment factory, and took 146 lives, mostly young females. Named after the shirtwaist factory where it occurred, it is known in American history as the Triangle Fire. To refresh my memory I took to the books, and soon realized that the Triangle Fire had a few lessons for the present day Pakistan.[1]

Informal Labour at the Root of Corporate Corruption

By Dipankar Gupta

If bribe giving is legalized will that ground the bribe taker for good? This suggestion was made recently by Kaushik Basu, the Prime Minister’s Economic Advisor. Sadly, such low cost, budget one-liners invariably fail to fly. Eager to clean up the corporate sector, Narayana Murthy, of Infosys, initially endorsed this suggestion, but later found faults with it. The bribe giver could rat on the bribe taker, but it would not be worth the halo. Word would go around and that person would be singled out forever in the real world of give and take.

Under current conditions, but for a handful of companies in IT, telecom and financial services, it is hard for business to play clean and be above board.

On the Inhumanity of Humanity

By Anjum Altaf

I had been intending to explore why, throughout history, man has been the perpetrator of so much inhuman behavior and what, if anything, could be done about it. My plan was to substantiate the claim of inhumanity with some examples before moving on to a discussion of the possible remedies.

It is a coincidence that between the intention and the execution, I chanced upon a poem by Josh Malihabadi (1898-1982), a poet held in high regard in Urdu poetry. This poem written in 1928 (Fitrat-e Aqvaam – The Character of Nations) makes a much better case than I could have and I offer it here (with a rough translation by myself) in lieu of the first part of the intended article.

Islam: Moving On

By Anjum Altaf

Religion is so central to life that its impact on society needs to be studied quite independently of the beliefs of the analyst.

Religion has both individual and collective dimensions. At the individual level, it can provide a sense of meaning and predictability and be a source of comfort and solace. The individual dimension can cast its shadow on the collective depending on selective emphasis by those who interpret God’s will on the religious tendencies of resignation or revolt (qana’at versus jihad, for example).

At the collective level, religion inevitably gets intertwined with politics and more often than not ends up as a tool subservient to larger political objectives. Any objective analysis of the history of religion has to record the terrible costs inflicted upon society by this combination.

It was a realization of these costs that spurred the European movement to separate Church and State – to free politics from the ill effects of religious factionalism while retaining the positive contributions of religion at the individual level.

This movement has been largely successful but there is still a strong residual effect in the US where the religious lobby has a significant bearing both on domestic issues and on foreign policy. Outside of the religious lobbies, there is general acceptance of the view that the impacts on foreign policy are negative for global peace and human welfare.

In this framework we can look at some aspects of the impact of Islam in Pakistan. One can easily identify areas where the interpretations of Islam and its use in the socio-political arena have stymied progress and development. All one has to do is to step into any of the issues deadlocked by the Islamic/un-Islamic controversies.

The point to note is that while these controversies impact events in Pakistan, they are by no means new. Is interest Islamic or un-Islamic? Is contraception Islamic or un-Islamic? Is suicide bombing Islamic or un-Islamic? Is gender equality Islamic or un-Islamic? Is music Islamic or un-Islamic? These have been open questions for hundreds of years and they are no closer to a resolution today than they were when they were first posed.

The most deleterious impact of this irresolution is the arbitrariness and uncertainty it imposes on society. Every political leader finds it possible to find a religious authority that would justify his or her personal interpretation and legitimize its imposition on the country. A new leader can just as easily find support to reverse this interpretation. The net result is a hodge-podge of institutions and practices, endless controversy, and frozen development.

Islam is peculiar amongst religions in this regard because it has no unified Church and no single source of religious interpretation. Some authority can always be found in support of any one interpretation and there is no process whereby the conflicting interpretations can be resolved to the satisfaction of all. Hence the phenomenon of fundamental questions remaining open for centuries.

One can see this in everyday discussions in Pakistan. One can find individuals aggressively challenging each other on their reading of the Quran and labeling the others source of interpretation as either ignorant or an agent of external powers. Not a single one of these heated discussions every ends in agreement.

Given the above and given that it is not possible to separate Church and State in Pakistan, how does one overcome this overwhelming barrier to development? Ironically, the very source of the problem suggests a solution.

There is agreement in Pakistan that no measure that violates an Islamic injunction can be included in the Constitution or be a part of public policy. This could be modified to state that all legislation and public policies would be in accordance with religious edicts on which there is consensus amongst the major schools of Islam.

This would put the onus on the religious authorities and force them either to find acceptable solutions to the open questions or step out of the way of policy making. Factions would no longer enjoy the luxury of arbitrarily holding up one measure or the other in opposition to other religious factions, a process that inevitably leads to the dominance of street power over reason. It would also take away the opportunity for political leaders to advance their personal religious preferences by taking advantage of favorable theological interpretations.

One can return to music as a relatively innocuous topic to concretize this discussion. Even the major Sufi orders, quite at odds with the traditional Ulama, differ amongst themselves on the religious legitimacy of sama’. Till such time as the various parties reach agreement, it would make sense for the State to take an agnostic position while allowing the adherents of the different orders and traditions to act in accordance with their interpretations as long as they do not cause harm to others.

It would make sense to require a consensus on religious edicts before they can be incorporated in state policies. Till such time, laws and policies can be formulated on the basis that is standard practice in the modern world – that of advancing the welfare of all the citizens of the state.

An earlier post on the functions of religion can be accessed here. Students of South Asian history will find a foreshadowing of these issues in The Mughals, The Sufi Shaikhs, and the Formation of the Akbari Dispensation by Muzzafar Alam.

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Laws and the Rule of Law

By Anjum Altaf

What have we learned from our discussion of the laws of inheritance?

First, that laws pertaining to the same issue can differ across societies and over time.

Second, that laws need not be divinely ordained and fixed for all times and places. The law of primogeniture was introduced in England in 1066 after the Norman invasion because the Norman knights who were awarded land grants did not wish their estates to be diluted by divisions.

Third, laws can have negative and positive effects. The law of primogeniture was unfair because it deprived all heirs except the eldest son from a share in the wealth of the father.

Ghalib Says – 4

This week’s she’r is the following:

shar-o-aaiin par madaar sahii
aise qaatil kaa kyaa kare koii

Even on the basis of religious law and secular law
What can anyone do with such a killer?

An earlier she’r in this series on the subject of faith and faithfulness (Ghalib Says – 2) prompted a reader to refer to the Shah Bano case – was it right to be unjust while claiming to be faithful to a set of beliefs? We referred the issue to the scholar Dr. Asghar Ali Engineer who pointed out the distinction between Diin and Sharia’h – faith and law. In secular matters, it is law that should govern and the law should be in harmony with the changing times (see comments on Ghalib Says – 2).

This exchange led us quite naturally to the she’r under discussion this week which refers to religious and secular law – shar-o-aaiin. Commentary on the she’r is available at Mehr-e-Niimroz.

The accepted interpretation of the she’r is quite unambiguous. The novelty of thought is Ghalib’s reminder that there are things that are beyond the grasp of both religious and secular laws – there is no mechanism to hold responsible a (metaphorical) murderer who slays with just a glance of the eyes. What law can you apply to such a murderer?

Our objective in this project is not to restrict ourselves to the meanings that might have been intended by Ghalib but to reflect on the questions that come to our minds on reading his verse. We draw out the questions that seem important in the context of our times.

In this perspective, there is something that jumps out to those who are familiar with the history of Pakistan. A murderer can certainly be beyond the grasp of religious and secular laws (like Ghalib’s beloved) but there could also be a murderer who elevates himself or herself out of the reach of religious and secular laws. What are we to do with such a murderer?

Let us take an example with which Pakistanis are very familiar. A dictator removes a legitimately elected government by force, changes the constitution (aaiin) to provide a cover for his actions, appoints new judges to legitimize his changes, and declares that he will follow the amended constitution from then on.

Is such a person a murderer (of the constitution) and what is to be done with such an individual?

It should be noted here that a lot of Pakistanis, including its leading opinion makers, have more than once welcomed such individuals and reposed their hopes in them.

Is it wise to expect a person to respect the law who starts out by violating it?

These are important issues that bear on the destinies of millions who are never consulted when murders of this type are committed and legitimized by the ex-post manipulation of the law.

It would be a better world if the only murderers we had to contend with were ordinary criminals or the beloveds of Ghalib.

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