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November 6, 2018

The compromise


November 6, 2018

After the Aasia Bibi judgement, riots erupted throughout Pakistan which led Prime Minister Imran Khan to promptly address the nation and give a clear message that the state would impose its writ and establish rule of law. This is what he said: “Which government can function when people say kill the judges....let me make it clear to you....the state will fulfil its duty...protect people’s properties and lives...we will not allow any vandalism or blockage of traffic.”

People were sure that this time the government would follow through on its words. But, though the country continued to be held hostage for days, the so-called writ of the state was nowhere to be seen. Ultimately, the state of Pakistan entered into a compromise, leaving us wondering what had happened.

One may rightfully ask: why has all the damage caused to public and private property been forgotten? Will the offenders go unpunished? How can the people who called for mutiny in the armed forces (which is itself treason under the constitution and the Army Act) go scot-free and be forgiven? People are also asking why even the Supreme Court, contrary to its past history, has not taken suo-motu action over the death threats to the judiciary?

It appears as if the state of Pakistan would rather respect an agitation of plunder and loot than a peaceful procession. If this is the case then the former will soon start dictating the state. The argument that dialogue is better than confrontation will only increase the appetite of such minds.

Let me quote from the judgement of Justice Blagden who was trying the case of the attack on Quaid-e-Azam Muhammad Ali Jinnah. His Lordship addressed the accused “However misguided you may be and you may be motivated by good intentions, yet no country can be happy or prosperous which condones murder (or loss of property) for the political purpose or any other purpose. The only result of condoning is to substitute the rule of [the] hooligan for the rule of reason….You and sub-guided people like you have got to be taught the effect by punishment and example of punishment.”

A few words about the so-called agreement, which in itself is unlawful: no one who has been acquitted by a court of law can be placed on the ECL, nor can the government deny Aasia a fair trial by undertaking not to oppose the review application.

The wording of the agreement indicates that the government team was in a hurry to sign a so-called compromise without taking care of the language of the document. Clause 5 of the agreement, which was intended to be an apology in fact means that nothing has been said by the TLP which should hurt anyone – but that if someone is so sensitive, ‘we are sorry’. The word “bila jawaz” meaning ‘unjustified’ turns the apology on its head.

In the document, Aasia Bibi’s name has been deliberately misspelt with the Urdu alphabet ‘aen’ rather than ‘alif’, giving the name ‘Aasia’ a meaning synonymous with ‘sinner’ rather than ‘hope’. The government has been forced to acknowledge this by signing the agreement.

According to the agreement, the government shall take legal action against those (law enforcers) who may have “martyred” (members of the TLP) during the “struggle”, but release those who plundered and damaged properties of innocent citizens and took the law in their own hands.

One may continue to debate the implications of the ‘ceasefire’ but what is done is done and damage needs to be mitigated. There is a growing sense of despondency creeping in the younger lot that the last hope for establishing the writ of the constitution and the law, tolerance and progressive thought has vanished. Statements of tough action being taken will be no substitute. There has to be a strategic plan, both provisional and final, and no compromise with those who do not accept our constitution.

Much praise and criticism has been forthcoming about Aasia Bibi’s case; to me the former is not necessary and the latter is unjustified. The Supreme Court came to the conclusion that there was insufficient evidence to prove that Aasia Bibi had committed the offence of blasphemy. In this, the judges did nothing extraordinary except fulfilling their duty to do justice because no one can be punished without proof. What the common mind may not understand is that if there is no evidence then why did the two lower courts find her guilty?

For a lawyer, such a conflict between judgements is not surprising. It happens in many cases that the lower courts rely on evidence on record in one way, while the Supreme Court sets aside their findings by discarding or reinterpreting that evidence and applying the law in another manner. Ultimately, it is the Supreme Court which has the final say. To an expert, there seems nothing unusual or wrong with this except to say that it is a failure of our legal system that miscarriage of justice takes place regularly and we have been unable to do anything about it.

Today all state institutions seem to be facing a challenge. Blame games and pointing out past omissions will not help. The positive sign is that a huge majority of people want the government to take action and will stand behind it. This is the right time for the government to plan how to eliminate such street power from our politics.

To the TLP, the message should be clear and loud that Islam is a religion that prefers dialogue to force. Voltaire seems to have understood this spirit when he said: “I disapprove of what you say, but I will defend to the death your right to say it.”

The writer is a Supreme Court advocate, former caretaker federal minister, and former president of the SCBA.

Email: [email protected]

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