[sacw] SACW #1 | 19 May 02 [Pakistan Special]

[Harsh Kapoor]

South Asia Citizens Wire Dispatch #1 | 19 May 2002
http://www.mnet.fr

__________________________

1. Pakistan: The April Fool Referendum (Asma Jahangir)
2. Pakistan: Karachi, capitale =E9conomique et vivier du terrorisme=20
islamiste au Pakistan (Fran=E7oise Chipaux)
3. Pakistan: Homegrown terrorism - 2 (Ardeshir Cowasjee)
4. Pakistan: Tyranny of Hudood Laws (Farzana Bari)
5. In Pakistan, Rape Victims Are the 'Criminals' (Seth Mydans)
6. Law of Libel in Pakistan (AG Noorani)
7. Pakistan: My reasons for dissent (Naeem Sadiq)

__________________________

#1.

[5/12/2002]

The April Fool Referendum
by Asma Jahangir

It is the last opportunity for the military to institutionalize its=20
predominant power in the country for decades to come and the only=20
chance for the people to save themselves from being ruled through the=20
barrel of a gun. The military may win this battle but it will destroy=20
the very nation it is so proud to rule

General Pervez Musharraf and his coterie may pretend to have won the=20
April 30 referendum but they will find it difficult to sell that=20
'win' at home or abroad. The people of Pakistan have matured enough=20
over the years and cannot be fooled in this manner. Besides, the=20
rigging was so brazen that it will embarrass any foreign government=20
to accept the exercise and its result as a democratic process.

The actual turnout will remain a mystery but the disinterest of the=20
people was quite apparent from the deserted look at polling stations=20
across the country. The people's decision to stay away was regardless=20
of the boycott by the opposition parties. Most non-voting people=20
interviewed during the course of the day expressed their disgust over=20
the expense incurred on an exercise whose results were predetermined.=20
Their apprehension proved right as the referendum was flagrantly=20
rigged and planned in a way that made the secrecy of the ballot a=20
farce.

Many polling stations were strategically placed to ensure that=20
"captive" voters had no choice but to cast their votes. Polling=20
stations in jails produced 100 per cent turnout. Labourers working in=20
factories, where the polling stations were situated within the=20
premises of their workplace, were monitored to vote by their=20
employers. Government employees were given no choice and had to vote.=20
For example, the polling station in the Punjab Secretariat left no=20
option for an employee to stay away from the ballot. Since there were=20
no electoral lists, categories of citizens by profession were marked=20
as "captive" voters. Doctor, lawyers and teachers in government=20
services were all targeted. Nothing was left to chance. Secret ballot=20
was cast only in exceptional cases.

By and large, the voters were seen stamping the green circle for=20
"yes" in public. Every polling station had an earmarked supervisor,=20
and in a number of places their names were printed on a banner=20
hanging outside the polling station. In most cases it was the=20
toughest and roughest councillor from the new crop of local=20
government leaders. In other places, a political party was made=20
accountable to ensure a decent turnout. At Adabistan-e-Sufia near=20
Mozang, the banner said "Zair-e-nigrani Muslim League" (under Muslim=20
League's supervision) and it certainly was. Mr Akhtar Rasul and=20
Khawaja Riaz, former admirers of Nawaz Sharif, were seen busy=20
supervising the voting in the school, where three polling stations=20
were set up side by side for easy multi-voting facility. Buses full=20
of Okara residents arrived after 3 p.m. to pull up the number of=20
votes cast in these polling stations. This, too, did not seem to=20
achieve the planned target because by 6.30 pm the presiding officer=20
was complaining that the cronies of the Muslim League had crossed all=20
limits.

They had supervised multiple voting but eventually resorted to=20
stuffing ballot boxes while the helpless election staff looked on. In=20
another location, eleven polling stations stood side by side from=20
station no. 2215 to 2226, where the cronies of Nazim Tariq Sana Bajwa=20
slapped a professor of FC College, Lahore. Some women complained that=20
the polling was taken over by councillors and the election officers=20
on duty were being intimidated. These women simply wanted to get=20
away. At Union Council 81 polling station 3774, we were told at 7=20
p.m. that 930 votes were cast. Within 5 minutes, the number rose to=20
1200, with only 7 voters in sight. This polling station was being=20
supervised by the traders of Chauburji Board who were distributing a=20
press release inside the polling station, hailing the outcome of the=20
referendum. Voters in the factory premises were not marked with=20
indelible ink as required. The reason given for dispensing with this=20
formality was that they were not permitted to leave the premises and,=20
therefore, not likely to re-vote.

A supervisor-councillor explained the violation of the secrecy=20
provision as a mark of patriotism. Councillors had distributed blank=20
photocopied verification of voters which were being filled out inside=20
the polling stations. Workers of the traders in Gulberg complained=20
that they were expected to vote in three places; at Liberty, main=20
market and M M Alam road. Votes were seen taken to the very doorstep=20
of tardy voters. A woman employee of Camp Jail was seen with a copy=20
of votes walking towards the residential quarters of jail staff.=20
Voters were photographed removing the ink inside the polling=20
stations. In Model Town, councillor Gogi Shah was rotating voters=20
from polling station to polling station. A woman admitted that she=20
was compelled by him to cast her vote.

Women's participation was extremely low. Some women workers from the=20
Municipality Committee were driven around to cast votes. The bus=20
driver unhesitantly showed an order from the Superintendent of Police=20
authorizing the use of his vehicle for referendum duty. The=20
visibility of women was very low and at many polling stations there=20
was hardly 3-5 percent turnout of women in comparison to male voters.=20
There was, admittedly, some enthusiasm for the referendum among the=20
minorities and they did vote in significant numbers; understandably,=20
they were keen to participate in a national activity after being=20
sidelined for over two decades. The expenses for this humiliating=20
referendum must be staggering. Presiding election officers were=20
promised a payment of Rs.650 and their assistants Rs.575. In every=20
polling station, there was one presiding officer and at least 2=20
assistants.

According to the Election Commission, 87274 polling stations were set=20
up throughout Pakistan, thereby incurring a minimum expenditure of=20
around Rs 160 million only for the payment of election staff-which is=20
a small fraction of the expenses for the referendum. The tall claims=20
of high turnout and overwhelming support to the referendum will only=20
distance the rulers from the people. Widespread and institutionalized=20
rigging is hard to conceal. It was a farce played on the very people=20
who are now being persuaded to believe in its validity. Such=20
humiliation is bound to be counterproductive.

There is a genuine worry that if this pattern repeats itself in=20
October, where polling agents of all parties are present, violence on=20
a large scale cannot be ruled out. This referendum has given the=20
worst elements within our society a political space to prove their=20
worth. Under the patronage of the government they will make life=20
miserable for an ordinary person living under their shadow. From now=20
until October, Pakistan once again lives an unstable life full of=20
apprehensions. The stakes get higher and higher. It is the last=20
opportunity for the military to institutionalize its predominant=20
power in the country for decades to come and the only chance for the=20
people to save themselves from being ruled through the barrel of a=20
gun. The military may win this battle but it will destroy the very=20
nation it is so proud to rule.

Asma Jehangir is a former chairperson of the Human Rights Commission=20
of Pakistan and a United Nations Raporteur

_____

#2.

Le Monde | 16.05.02

Karachi, capitale =E9conomique et vivier du terrorisme islamiste au Pakista=
n
Fran=E7oise Chipaux
http://www.lemonde.fr/article/0,5987,3210--276027-,00.html

_____

#3.

DAWN
12 May 2002

Homegrown terrorism - 2
By Ardeshir Cowasjee

First and foremost, our sympathy must now be with the bereaved=20
families of the Frenchmen and our own Pakistani citizens who were=20
blown up last Wednesday by this novel form of terrorism which has now=20
arrived amidst us - the unstoppable suicide bomber.
The original Thunderer, The Times of London, in an editorial on May 9=20
has correctly opined that governments that care little about losing=20
their own citizens are forced to crack down more heavily if=20
foreigners are murdered.
When foreigners are specifically targeted it provokes confrontation=20
between embarrassed governments and foreign capitals. As for=20
President General Pervez Musharraf, he "must hold his nerve, while=20
foreigners hold their breath. There may be more to come."
Our own thunderer, Dawn in its editorial of May 11 has it that=20
"Pakistan's enemies are both international terrorists and those=20
operating at local levels to settle sectarian and factional scores."
Shortly after Musharraf took over, he tried to lessen the scope of=20
mischief caused by our local level operators by making an=20
administrative amendment in the prevailing blasphemy laws which have=20
evoked much international and national disgust and criticism. But, he=20
was prevailed upon by his so-called advisers not to rock the boat, so=20
he backed down. Now that he is more secure, ostensibly, with a firmer=20
hand at the controls, having been recruited by the powers of the=20
world to join them in their battle against international terrorism,=20
surely he is better equipped to tackle terrorism at home.
As one step towards doing so, he should revert and make an=20
administrative amendment in the blasphemy laws as previously=20
suggested. Before an FIR can be filed against anyone under these=20
dreadful laws and all other laws that lead to religious persecution,=20
the police must have the prior written sanction of the=20
advocate-general of the province.
Dr Younus Sheikh, now in the death cell, Circle 3, Central Jail,=20
Rawalpindi, where he has been since he was sentenced to death in=20
August 2001 having been charged under the iniquitous section 295-C of=20
our blasphemy laws, has again written to me: "I draw your attention=20
to religious terrorism, violations of basic human rights [and]=20
transparent injustice being perpetrated under the notorious lynch=20
law, the Blasphemy Law 295-C PPC, in our beloved Pakistan.
As you are well aware, religious fundamentalism, fanaticism and=20
Taliban-style Nazi organizations exist in Pakistan, and these evil=20
organisations are led by the fanatic and extremist mullahs who have=20
abused this law to the extent and in a style that it may be called=20
'religious terrorism through the abuse of the blasphemy laws.'
"Like the infamous Indian law, Poto, our Pakistani law, 295-C PPC, is=20
wide open to abuse through and by the miscreant mullahs for=20
political, religious, sectarian, repressive and vindictive purposes=20
on the pretext of undefined wording of this law.
"Its abuse is indeed a sign of the creeping onslaught of malevolent=20
and fascistic mullahism and religious fanaticism at social, political=20
and cultural levels, a rising wave of aggressive ignorance,=20
incivility and intolerance as well as the abysmal mediaeval=20
theocratic darkness."
Dr Sheikh's trial was held in camera inside the Rawalpindi Central=20
Jail after the mullahs of the Aalimi Majlis Tahafuz Khatam-i-Nabuwat=20
Pakistan had issued their usual threats. The petrified judge, in=20
order to preserve his life, pronounced the death sentence, as writes=20
Dr Sheikh "without good evidence. The facts of the case being that=20
there was no tangible proof against me and all the oral or=20
documentary evidence on court record pointed to my innocence."
An appeal has been lodged, which has resulted in a fatwa of apostasy=20
being issued against Dr Sheikh and threats being issued against the=20
lives of his lawyers and their families.
Dr Sheikh quotes one definition of 'terrorism' from an official US=20
document: "the calculated use of violence or threat of violence to=20
attain goals that are political, religious or ideological in nature=20
carried out through intimidation, coercion or instilling fear."
Perhaps the community most prone to the religious persecution form of=20
terrorism is that of the Ahmadis, as can be seen from a summary of=20
cases registered against members of that community from April 1984 to=20
April 1999: 189 for blasphemy, punishment mandatory death sentence=20
plus fine ; 10 for allegedly burning copies of the Quran, punishment=20
life imprisonment; 378 for posing as a Muslim, 93 for praying, 27 for=20
celebrating the Ahmadiya Centenary, 50 for celebrating the Centenary=20
of the Eclipses of the Sun and Moon, 748 for displaying the Kalima,=20
all crimes punishable with three years imprisonment plus fine.=20
Seventeen cases have been registered against the Khalifa-tul-Masih=20
charging him in absentia with blasphemy, punishment mandatory death=20
sentence plus fine.
As many as 1,296 members of the community have been charged with=20
various other crimes.
On December 15 1989 the entire population of Rabwah (some 35,000=20
persons) was charged under Section 298-C of the Pakistan Penal Code,=20
which reads: "Person of Qadiani group, etc, calling himself a Muslim=20
or preaching or propagating his faith : Any person of the Qadiani=20
group or the Lahori group (who call themselves Ahmadis or by any=20
other names), who, directly or indirectly poses himself as a Muslim,=20
or calls, or refers to his faith as Islam, or preaches or propagates=20
his faith, or invites others to accept his faith, by words, either=20
spoken or written, or by visible representations, or in any manner=20
whatsoever outrages the religious feelings of Muslims, shall be=20
punished with imprisonment of either description for a term which may=20
extend to three years and shall also be liable to fine." This section=20
was inserted in the PPC 'by the Anti-Islamic Activities of Qadian=20
Group, Lahori Group and Ahmadis (Prohibition and Punishment)=20
Ordinance XX of 1984.'
The FIR was prepared, lodged and filed by Mohammad Ashiq Marath,=20
Station House Officer, Rabwah.
The 35,000-plus were collectively charged with the crime of having=20
inscribed the Kalima Tayyaba and other Quranic verses on their=20
graves, buildings, offices of the community, places of worship and=20
business centres. They were also charged with having said Assalamo=20
Alaikum to Muslims, for having recited the Kalima Tayyaba, and for=20
having repeatedly indulged in similar Islamic activities.
Persecution under these laws is widespread. In Sindh, three years=20
ago, Ayub Khoso, a young poet, writer and teacher at a school in=20
Jhudo, near Mirpurkhas, was sentenced by the Mirpurkhas=20
Anti-Terrorist Court to serve seventeen years in jail for allegedly=20
having written a blasphemous column in the Sindhi newspaper Alakh=20
(now closed down).
He has no means left to him to engage a lawyer to file an appeal. He=20
needs help.
Most amazing of all these cases is perhaps that of another young man=20
of Sindh, 17-year old Nazir Ahmad Khoso, an Ahmadi, charged with=20
injuring the religious feelings of Muslims, and a series of other=20
related charges.
On December 14, 2001 the Anti-Terrorist Court in Hyderbad sentenced=20
him to a total term of 118 years imprisonment sentences to run=20
consecutively.
The matter was referred to the High Court, which remanded the case=20
back to the AT court, and this court very considerately amended its=20
judgment and reduced the sentence to 60 years imprisonment. He is now=20
in Hyderabad jail and his appeal is pending.
Whereas the thunderers thunder and groan, our other newspaper, 'The=20
Nation' of Lahore printed a highly apt quote from Iqbal's=20
'Baal-i-Jibreel', on its back page on May 8, the day of the Karachi=20
suicide bombing: "I happened to be there - I could not control myself.
When Providence ordered Mullah a place in Paradise. 'Excuse me for=20
being impertinent,' I interrupted the Lord Divine, 'This person is=20
not compatible with Houries, [gardens] and wine. Paradise is not the=20
right place for a quibbler of precepts.
"This man of Allah argued and discussed, did nothing except preach=20
malice to nations and sects - If you ask - In Heaven there is neither=20
Temple, [nor] Church, nor Mosque'."

_____

#4.

The News, May 14, 2002

Tyranny of Hudood Laws

Farzana Bari

[The writer is Acting Director, Centre for Women's Studies,=20
Quaid-e-Azam University, Islamabad]

Rape victim Zafran Bibi was sentenced to death by stoning by a=20
session court in Kohat under Hudood Laws for alleged adultery. This=20
tragic case once again exposes the tyranny of Hudood Laws for women.=20
Ever since its promulgation in 1980, the law has been subject to=20
gross misinterpretation and misuse due to its inherent flaws and the=20
misogyny of our judiciary and the society.

Thousands of women have suffered from the discriminatory legislation=20
that was introduced to sanction the Islamisation drive of the=20
military dictator Zia-ul-Haq. Through these laws, the legal basis for=20
gender discrimination and to punish women for asserting their own=20
will and choices was created by the state. The law is extremely=20
unjust and gender biased. It equates rape with adultery and extends=20
the requirement of four adult Muslim male witnesses to prove adultery=20
to the cases of rape as well. This means in practice that the law=20
protects rapists. Also, it excludes the testimony of women and=20
minorities in awarding Hadd punishment. It does not recognise the=20
rape of a minor wife as an offence and removes the legal protection=20
given to children and makes them liable for punishment of these=20
offences under the law.

There are no national level statistics available on the number of=20
women who have been affected by these laws. Also no scientific=20
investigation has ever been undertaken to systematically explore the=20
negative implications of these laws on women, nevertheless, there is=20
no shortage of micro-level research studies that provide irrefutable=20
evidence that these discriminatory laws, particularly the Hudood law=20
has unleashed a legalised terror against women in our country.

Hudood laws are clearly in conflict with the principle of gender=20
equality that is enshrined in the article 25 of the constitution that=20
does not permit discrimination on the basis of sex alone. It is a=20
matter of great disappointment that no government after Zia's regime=20
has had the courage to repeal these draconian laws despite a=20
consistent demand of women's rights groups and the grave injustice=20
done to women under these laws. The apathy of the political=20
government towards the issue of the repeal of the Hudood and other=20
discriminatory laws was mainly due to two reasons (a) religious=20
groups despite their limited popular support were the most organised=20
and militant force and trained in terrorist activities. These=20
religious groups had the ability to paralyse governments by creating=20
law and order situations. All political governments feared the=20
backlash from religious orthodoxy, therefore, they were reluctant to=20
touch these laws (b) despite the fact that women constitute fifty=20
percent of the population, they are not a powerful constituency due=20
to their dependent and subordinate status vis-a-vis men. Their=20
electoral behaviour is primarily determined and influenced by the=20
male members of their families. Also, they are not organised as women=20
to be able to influence the politics or policies. So, by ignoring the=20
violation of human rights of half of the female population of the=20
country due to these discriminatory laws was perceived as posing far=20
less political cost and risks for the political parties than to=20
uphold the cause.

Both, Pakistan People's Party and Pakistan Muslim League used=20
delaying tactics in this regard. Both parties set up committees to=20
review these laws to pretend that they were serious about resolving=20
the issue. The report of the Inquiry Commissionstrongly recommended=20
the repeal of Hudood and other discriminatory laws due to its=20
negative implications for women, however, no action was taken to=20
implement the recommendations of the official report by the PPP=20
government. Similarly, during Nawaz Sharif government, instead of=20
implementing the recommendations of the Inquiry Commission, a=20
committee was set-up by the Ministry for Women's Development to=20
review these laws, the report of which was never seen by anyone. The=20
present government did exactly the same and yet the National=20
Commission on the Status of Women to review these laws and give=20
recommendations had formed another committee. The report of this=20
committee also is still being awaited. This shows the lack of=20
commitment on the part of successive governments to address the issue=20
of legal discrimination against women despite their tall claims for=20
working towards gender equality.

The presence of these laws in our statute book continues to strike=20
women in the most inhuman manner due to the patriarchal nature of our=20
society and the judiciary. It is no chance that Hadd punishment is=20
never awarded in other offences such as theft, prohibition and Qazf=20
that are covered under the Hudood Ordinance as the majority who are=20
involved in committing such crimes are men. The Hadd punishment is=20
awarded in cases of Zina and the majority of people who are tried so=20
far under Hudood laws are primarily women. With the exception of two=20
cases (Fahmida-Alla Bukhsh, Shahida Parveen and Mohamad Sarwar)=20
whereby men along with women were awarded Hadd (stoning to death)=20
punishment, only women have been awarded the maximum punishment of=20
adultery by the male judiciary. This includes Safia Bibi who was a=20
blind woman, raped by her landlord and his sons and was sentenced=20
stoning to death because she was not able to provide male witnesses.

It is mind boggling that a society which is so keen to punish females=20
accused of adultery even when there is no substantive evidence or=20
required testimony, conveniently turns a blind eye towards male=20
adulterers who openly commit adultery in our "Muslim" society. There=20
is hardly any city in Pakistan where brothels or red light areas do=20
not exist. The customers of these places are invariably men and=20
commit adultery under the very nose of police authorities and local=20
administration. This is the worst form of hypocrisy and double=20
standards that we have as a nation which is evident in the=20
differential treatment towards male and female citizens who are=20
accused of committing the same "crime" of adultery.

Politically, because of post-September 11 scenario, it has become the=20
most opportune time for the government to take a bold initiative and=20
repeal Hudood and all other discriminatory laws while the religious=20
fundamentalist forces are on retreat, and the government is forced to=20
withdraw the patronage, these religious/fundamentalists groups had=20
been enjoying for a long time. The present regime of General Pervez=20
Musharraf has introduced several amendments to the Constitution to=20
implement its reform agenda. In order to implement its gender reform,=20
it is imperative that gender biases in the legal framework of the=20
country is removed. In the presence of discriminatory legislation,=20
the government's commitment to gender equality cannot be realised.=20
Therefore, it is demanded that President Musharraf should take=20
immediate steps to repeal Hudood and other discriminatory laws to=20
ensure gender equality and social justice. It must be remembered that=20
Pakistan being signatory of CEDAW is obligated to bring its domestic=20
law in line with the international covenant. It is high time that we=20
must put a stop to the humiliation and suffering, women are facing=20
due to Hudood and other discriminatory legislations.

______

#5.

The New York Times
17 May 2002

In Pakistan, Rape Victims Are the 'Criminals'

By SETH MYDANS

CHORLAKI, Pakistan =97 The evidence of guilt was there for all to see:=20
a newborn baby in the arms of its mother, a village woman named=20
Zafran Bibi.

Her crime: she had been raped. Her sentence: death by stoning.

Now Ms. Zafran, who is about 26, is in solitary confinement in a=20
death-row cell in Kohat, a nearby town. The only visitor she is=20
allowed is her baby daughter, now a year old and being cared for by a=20
prison nurse.
[...]
Rape itself is a crime under hudood, but it is so difficult to prove=20
that men are rarely convicted. On the other hand, human rights=20
workers say, as many as half the women who report a rape are charged=20
under zina laws with adultery.

"With the men, they apply the principle that you are innocent until=20
proven guilty," said Asma Jahangir, an official of the independent=20
Human Rights Commission of Pakistan and the author of a book on=20
hudood. "With the women, they apply the principle that you are guilty=20
until proven innocent." [...].

Full Text at http://www.nytimes.com/2002/05/17/international/asia/17RAPE.ht=
ml

_____

#6.

EPW, May 11, 2002
Civil Liberties

Law of Libel in Pakistan

The Nation Case

It is heartening to see the apex courts of India and Pakistan=20
agreeing on an aspect of the law of defamation which affects the=20
freedom of the press - that the press is free to comment on the=20
conduct of a public figure and is not guilty of defamation unless the=20
defendant proves malice.
A G Noorani

It is about a decade since the Supreme Court of India began citing=20
judgments of the Supreme Court of Pakistan in its judgments. Courts=20
in Pakistan never hesitated cite rulings of Indian courts. It is=20
heartening to see the apex courts of the two countries agreeing on an=20
aspect of the law of defamation which affects freedom of the press.=20
The press is free to comment on the conduct of a public figure and is=20
not guilty of defamation unless the defendant proves malice - actual=20
or constructive. The latter denotes a reckless disregard for the=20
truth.

In the case of the Tamil weekly Nakkheeran (R Rajagopal vs State of=20
Tamil Nadu and Anr, 1994) (Supreme Court Cases 632) the Supreme Court=20
of India held that it is enough for the defendant to prove that he=20
wrote after a reasonable verification of the facts. It is not=20
necessary for him to prove that what he had written was true. This,=20
of course, is confined to the conduct of a public official in his=20
official capacity. In regard of his private life he enjoys the same=20
protection as any citizen. The court based its ruling on the=20
fundamental right to freedom of speech and expression guaranteed by=20
Article 19(1) (a) of the Constitution.

The Supreme Court of Pakistan also based its ruling in the case=20
concerning The Nation, a respected Lahore daily edited by Arif=20
Nizami. The conduct of the plaintiff, Sheikh Muhammad Rashid, a=20
former federal minister, was, to say the least, strange. So was the=20
progress of the case. It took a decade and a half to be decided=20
finally. Statements made by one Naveed Malik in respect of the=20
plaintiff were published in some newspapers but not in The Nation=20
apparently. The plaintiff's reply to them was however published in=20
The Nation as was Naveed Malik's rejoinder. The plaintiff did not sue=20
him, only The Nation. Both the plaintiff and Malik belonged to the=20
PPP. The original news item was not brought on the record either. The=20
plaintiff was even approached by The Nation for his response to the=20
rejoinder. He refused.

The Supreme Court of Pakistan's observations on the duty to issue a=20
contradiction and the duty of the press to publish such statements in=20
good faith are very relevant:

Where statements and counter-statements by political leaders are=20
made, which are usually published in the newspapers in good faith, in=20
such occasion presumption of malice is excluded and burden of proving=20
the malice in fact lies on the plaintiff. The allegations made by Mr=20
Naveed Malik were published in the newspapers which could only be=20
controverted by the appellant as he alone was in the knowledge of the=20
correctness or otherwise of the allegations made against him. Since=20
he refused to issue any contradiction, therefore, the same would be=20
deemed to be correct and the respondents cannot be held responsible=20
as they published the statements in good faith in public interest=20
after verifying correctness of the same from the maker of the=20
statements. The plaintiff was required to prove that the statements=20
issued by Mr Naveed Malik were not correct and that the same were=20
maliciously published by the respondents in their dailies. He has=20
neither proved the allegations to be false nor has averred malice in=20
his plaint which is an essential ingredient in every action of libel=20
nor it was proved by him through any evidence that the respondents=20
had maliciously published the statements of Mr Naveed Malik due to=20
spite or ill-will. It was the duty of the plaintiff to substantiate=20
the element of malice by cogent evidence to prove that the defamatory=20
material was published by the respondents maliciously.

No such proof was forthcoming. Naveed Malik appeared as defence=20
witness and repeated his charges on oath in court. He had not been=20
made a defendant, oddly enough.

The Supreme Court of Pakistan based its ruling squarely on the=20
fundamental right to freedom of speech and expression embodied in=20
Article 19 of the Constitution of Pakistan. It is, as in India,=20
subject only to "reasonable restrictions". The law of defamation must=20
be constrained in this light. So, also, of course, the law of=20
contempt of court, for that matter. The court ruled:

In the wrong of defamation the law presumes malice in the sense of=20
wrongful act done intentionally by publishing defamatory matter but=20
there is a lawful excuse for the publication of such matters as in=20
the ordinary case of privileged communication or of fair comments=20
upon a matter of public interest, the onus is upon the plaintiff to=20
establish the fact of malice in order to maintain the action. It=20
means that malice must be proved as a fact irrespective of the mere=20
inference arising from the libellous character of the publication.

The court added:

When the plaintiff fails to prove malice by cogent evidence then he=20
can be non-suited on this ground. The burden of proving express=20
malice both by extrinsic and intrinsic evidence lies on the plaintiff=20
to show that the publications were actuated by some indirect or=20
improper motive.

Interestingly since the bench of two judges of the Punjab High Court=20
differed the issues were referred to a third judge who not only=20
referred to a judgment of the Bombay High Court but the fact that M A=20
Jinnah had appeard for the plaintiffs (Jehangir Pestonji Wadia vs=20
Framji Rustomji Wadia (1928) 30 Bombay Law Reporter 962). As The=20
Nation remarked in an editorial, the very day on which the Supreme=20
Court gave its ruling, the federal cabinet approved promulgation of=20
the Press Council and Press and Publications laws.

____

#7.

My reasons for dissent

The presiding officer frantically shook the PCSIR developed indelible blue
ink bottle, reminding me of the dried up correction fluid "whito" bottle
that one invariably needs to shake before it parts with any meaningful
quantity of fluid. By now his hands were fully soaked with the indelible
ink, and the only dry portion was the tip of the brush that was the
operational component of the applicator. He asked me to put forward my
left hand and after some fumbling drew a line at the base of my left
thumb nail. Not satisfied with the first application, I asked him to repeat
the exercise. He was nice enough to go through the rigorous shaking process
three times, till we both agreed that a significant enough mark had been
made on my thumb to prevent a repeat poll, just in case I changed my mind.

The only competitor running this race, Musharraf comes out as a likeable,
frank and sincere person. One cannot say even this much for many of the
characters who earlier ruled this wonderful country. Why did I then choose
to cast a negative vote. It is sad that I reject a leader who has earned
the respect of much of the western world, and on the face of it seems to
be just about the only pragmatic option. While the consequence of one
negative vote may be insignificant, I must record the reason for my dissent=
,
as it helps to put things in clearer perspective.

For almost three long years the General exercised power far in excess of hi=
s
earlier political counterparts. He did nothing to rein the Jihadi
militants or halt the disastrous Taliban policy till forced to do so by
the events of 11 September. It did not occur to him that thirty thousand
madrassahs were engaged in producing a generation of ignorant religious
zealots, and the credit for this discovery should not have been hostage t=
o
the falling of twin towers. This is not my image of a leader who intends to
lead a modern nation of 150 million people.

A common citizen is not interested in the nature of constitutional
mechanisms. But it matters to him how the state treats him when he has to
get his driving license made, his passport renewed, his bills paid, his
theft reported or his telephone installed. State is the largest provider
of services in this country but treats its customers with contempt,
arrogance and unparalleled incompetence. I am therefore not willing to vot=
e
for any leader who does not understand that his first task is to overhaul
the rusted state machinery so that it can provide fair, equal and efficien=
t
services to its people.

One looks for signs of courage in one's leader. The General voted for the
appeasement of the fanatic Mullahs when he retracted his stand from the
totally unIslamic blasphemy law just a few days after his coming to power.
He did nothing to release dozens of innocent citizens who had been charged
or punished under this barbaric instrument. He therefore acted as a silent
supporter of religious intolerance and bigotry in our country, and does no=
t
deserve the vote of a moderate citizen.

The least that one expected in a military led government was a semblance of
law and order. We had more doctors killed in his tenure than any other tim=
e
in our history. Never a culprit was found and never was one brought to
justice. A state which cannot protect its citizens has no right to rule
them. It must voluntarily hand over or step down instead of seeking anothe=
r
five year mandate.

A leader must develop institutions and not personalities. While the army is
a part of Pakistan, Pakistan is not a part of the army. So why must every
state organisation regardless of its nature, significance or tradition be
run by a retired or serving army general. From the Vice Chancellors of
universities to managers of cricket teams and from water boards to steel
mills one finds a General trying to breathe new wisdom into an area he
knows very little about. I have a strong feeling that the next five years
may see reinforcement of this process of "generalisation of society",
thereby eliminating even the facade of the left over institutions.

One expects some degree of effectiveness if not efficiency in what is
embarked upon by a military government. How come that almost every major
project from de-weaponisation of cities to making of national identity
cards was an utter failure. Does the General have a special knack for
choosing just the wrong kind of project managers. If so I must think thrice
before saying "yes" for him for the next five years.

I will never vote again for BB or NS, for one simple reason. While they
were rich even before becoming prime ministers, they both deprived this poo=
r
country of very large sums which were siphoned off to foreign countries.
The new incumbent has already started on a wrong footing. The state run
organisations were extensively used to mobilise support for the referendum,
private vehicles were forcibly acquired and the ministries and state
corporations put up newspaper ads worth millions of rupees. I do not wish
to vote for a leader who cannot clearly differentiate between public
exchequer and private needs.

The General has hurt his own institution by creating precedence that he
would not himself wish to be followed. Even a first term cadet knows that
politicking and public rallying in uniform is not just unbecoming but als=
o
illegal in the military law. His choice of criminals and supreme court
stormers as his opening batsmen gives one a fair idea of the batting line u=
p
and the centuries they are likely to score. And finally I do not trust a
leader who is into fooling the masses with caps and chadders of various
shades and sizes. People are fed up of symbols and slogans, and are ready
for a change. Unfortunately the leaders are still not.

Naeem Sadiq
Karachi.
30th April 2002

--=20
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