General (retired) Musharraf’s lawyers forwarded an extraordinarily audacious argument recently before the Supreme Court (SC) while seeking a review of the July 31, 2009 judgment. They argued that the 1973 constitution does not exist. Unfortunately, and because the good general suffers on account of bad legal representation, this argument relied on the fact that the constitution was drafted by an Assembly that had been elected by the 1970 elections but was just one part of the Assembly. This is nonsense legally. In 1947, the Constituent Assembly had been similarly bifurcated into its Pakistani and Indian parts, even though they had been elected on the basis of the 1946 elections. That being said, there is one other very good reason why the validity of the constitution of 1973 can be questioned: non-enforcement of the many provisions of this constitution, especially the fundamental rights chapter.
A constitution’s supreme purpose is to delineate the rights of its citizens vis-à-vis the state. The 1973 constitution’s fundamental rights chapter gives several such rights, which are the basic rights of any citizen and, on other occasions, any person who may be living in Pakistan. For example, there is Article 20, which gives every citizen the right to profess and propagate his or her religion. I have, on several occasions, written how this fundamental right is denied to religious minorities and especially that forced religious minority, the Ahmedis. Then there are Articles 10 and 10-A, which promise safeguards with respect to detention and arrest as well as due process and fair trial in the determination of civil and political rights of individuals. These have been repeatedly violated all over Pakistan, especially in Balochistan. Then — perhaps the most fundamental of all these rights — the freedom of speech and expression, which is contained in Article 19, is on the ground non-existent. Indeed the courts are hesitant and even reluctant to enforce this fundamental right in the true spirit of the constitution. Now, if the constitution is a contract between the government and the governed, one can safely say that the denial of fundamental rights — repeatedly and deliberately on the part of government and the failure of the courts to keep the government in check on this count — amounts to nothing less than a breach of contract, rendering the contract void for all practical purposes.
As a lawyer — despite some serious misgivings about many of its clauses — I have respected the constitution of Pakistan as a sacred document. Practical experience with its enforcement in the courts however has left me with a profound sense of disillusionment. It is not that the constitution is unworkable but that there is no will to make it work. Take, for example, the YouTube ban. The YouTube ban is constitutionally unsustainable. You can take a legal opinion from any neutral legal expert anywhere in the world and they will tell you that the YouTube ban is inconsistent with Article 19 of the constitution. First and foremost, in order for a restriction on this right to apply legally, the said restriction has to be through a clear and unambiguous legislative act authorising such a restriction. Section 295-C, the blasphemy law, does not contain any such authority; it seeks to punish an act of blasphemy not create prior restraints on freedom of expression and speech. Secondly, even if such a law were to be enforced tomorrow, it would have to be defended by the government on the touchstone of Article 19. So, unless the government can — in this case — show how the YouTube ban is beneficial or serves the glory of Islam or preserves law and order, such a law, if there were to be one, would be unconstitutional.
That brings us to the important question of whether the YouTube ban in any way serves the glory of Islam. In the case that I filed in the Lahore High Court (LHC) on behalf of Bytes For All, a non-profit organisation committed to internet freedom in Pakistan, precisely one year and 17 days ago today, challenging the YouTube ban, I argued that the YouTube ban in fact does not further the glory of Islam but does precisely the opposite. By banning YouTube, the government has in fact taken away the right of close to 30 million Muslims in this country on the internet to respond to the blasphemous and scurrilous hate-filled propaganda against Islam by certain Islamophobe sections of western society. Furthermore it has crippled the access of millions of Pakistanis to the latest information and knowledge that is available on YouTube. How can stopping the free flow of knowledge, which could help Pakistanis — a great majority of whom are Muslims — ever amount to enhancing or even protecting the glory of Islam?
The Pakistani legal system is held hostage by the religious right in this country, which is incapable of thinking rationally. Consequently, even the most progressive judge, and my case had the most progressive judge in my opinion in all of Pakistan, is hard pressed to uphold the sacred fundamental rights promised to Pakistanis under the constitution. That I have spent over a year contesting a case that should really be an open and shut case in terms of the determination of fundamental rights, is proof enough that the constitution of Pakistan exists only on paper. Expediency and appeasement reign supreme in our courts and halls of government.
Forget the constitution. Imagine the damage we have to done to this country. The tragedy is that this country was founded by a lawyer who believed, above all else, in the fundamental right of speech and expression. Jinnah, speaking in September 1927 on the issue of the blasphemy law, said, “We must also secure this very important and fundamental principle that those who are engaged in historical works, those who are engaged in the ascertainment of truth and those who are engaged in bona fide and honest criticisms of a religion shall be protected.”
Bona fide and honest criticism of religion; surely such a thing is unimaginable in the Pakistan of 2014. While talking about criticism, we are, however, only talking about common sense, a rarity in our republic these days.
Que sera, sera (whatever will be will be, the future’s not ours to see), and that is as far ...