Is the Constitution of Pakistan Positivist in nature, or is it Naturalistic?
It is easy to say it is Naturalistic right off the bat: the Constitution begins by vesting the sovereignty of not just this country, but that of the entire universe in Allah.
The first sentence of the Preamble to the Pakistani Constitution reads:
Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;
If the above words are to be taken literally, then Pakistan is not a sovereign state, but is rather a trust; this is no doubt a legal absurdity. Pakistan is. in fact, a sovereign country, where a Parliament makes laws.
Pakistan is an Islamic Republic: the term is a unique one.
A Republic is a state in which supreme power is held by the people and their elected representatives, and which has an elected or nominated president rather than a monarch – a sovereign state in its own right. An Islamic Republic however is a republican government which is governed on the basis of the Laws of Islam.
The Constitution, in its Principles of Policy makes Naturalistic references. Article 37, for example discusses eradication of evil as a state policy, which, is open to Naturalistic interpretations.
Are these sufficient to consider the Constitution as Naturalistic?
I would argue that the Constitution of Pakistan is Positivist.
Pakistan is a sovereign state, with a Parliament that enacted its Constitution, and which can make laws within the limits it set upon itself through the Constitution. Pakistan is an Islamic Republic because the Constitution says so.
The Parliament has unlimited power to amend and modify the Constitution, via the mechanism it has developed in the Constitution. This is reaffirmed by Articles 239 (5) and (6), which state:
Article 239 Constitution Amendment Bill
(5) No amendment of the Constitution shall be called in question in any court on any ground whatsoever.
(6) For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution.
The Constitution makes it abundantly clear that the there is no limitation whatsoever upon the Parliament to amend any portions of the Constitution; no court shall entertain any question regarding the validity of any amendments to the Constitution.
The Parliament can, at least in theory, repeal provisions that make the Constitution look Naturalistic.
Above all, I would argue, the Constitution, created by an Assembly of the elected representatives and can be modified by the Parliament, in itself is a positive law, therefore it not just is Positivist, but should be interpreted this way too.
Is an Immoral Law a Good Law?
The question may be a misleading one; to clear this, I will not look into what the words moral (or immoral) or good might mean in this context, I would rather define them just as we begin.
Moral, in this context would be concerned with the principles of right and wrong: in the sense of what one believes or perceives to be wrong.
Good, in this context would mean valid and acceptable.
This simplifies the question at hand: Would a law, which is wrong in principle, be deemed to be a valid and acceptable law?
This question deals with the centuries old debate between the Naturalist and the Positivist view of law.
According to the Positivist view, a law is a law when it is validly enacted or proclaimed, and is binding in its entirety, regardless of whether it is moral or not.
The Naturalist view on the other hand is that, an immoral law is not a good law: a law must be moral to be valid. It must conform to the basic standards of right and wrong; a law which is unjust or immoral will not be law.
On the offset it is easy to dismiss the Naturalistic view: law is what distinguishes the right from the wrong. How could a law be wrong?
To better understand the Naturalistic view, and to appreciate for what it stands, we must understand what law is, and what purpose it serves.
I would argue that law is the collective embodiment of the rules a society makes for itself. Law is the foundation of a civilized society. Just as morality of the society evolves, so must the law. An old law, by today’s standards may be immoral and unjust.
An example may be the Witchcraft Acts enacted by different countries throughout the world in the 16th Century, and the inquisitions, trials and lawful executions that were done under them, by today’s standards are immoral and unjust. Surprisingly enough, these remnants of the past continue to exist in statute books of some countries.
Let us change the question to this: would the implementation of the Witchcraft Act, to accuse and punish an individual on the pseudoscience contained in the law, be moral and just? Should it be enforced?
In Plato’s work Crito, the reason Socrates gives for his obedience to the law and the nature of the law, reflects upon the utility of law for a society. Law is what a civilized society is built upon.
It also makes one see the potential for abuse in a democracy. Democracy has the tendency to become mob rule: where the majority oppresses a minority.
Abusive laws are all around us: law has mandated slavery, racial segregation, suppressed classes of humans based on their sex, economic status, race, color and lineage. This was true in the past, and is still true today in many jurisdictions.
The concept of liberty, individual autonomy and human rights play their part in protecting an individual. According to a widely circulate quote, misattributed to Benjamin Franklin:
Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.
Liberty and Freedom are a recognition of certain rights which may not be taken away, not even by a 99% vote.
Many modern constitutional democracies like the United States, India, France, Germany etc. do recognize this. The US Bill of Rights and the French Declaration of the Rights of Man recognize certain rights, freedoms and liberties that the state cannot take away, under any circumstances.
This may be seen as either Naturalistic or Positivistic; consider the following statements:
Human Rights are protected because the Constitution says they are protected.
The Constitution protects Human Rights because they ought to be protected.
The first one sees Constitutional schemes to protect rights as Positivistic and the second sees them as Naturalistic.
Under either circumstances, an immoral law will not be a good law, regardless of whether it isn’t a good law because it is immoral or because another, higher law, the Constitution, says so.
Things become interesting when in the absence of a Constitution, an immoral law is considered in abstract: would a law condemning disabled children to death, be a good law?
The answer may depend on whether it is enforced. The Witchcraft Act is a valid piece of legislation existing in the statute books of countries like South Africa and Israel. Is it enforced? No. Would it still count as a good law? That might be a question of whether it would be enforced when it needs to be.
Would I personally enforce an immoral law? Not if it violates the rights and liberties of a person for no fault of their own. At the end of the day, law is the embodiment of the collective wishes of the people. If the majority brutally crushed the minority using the law, then instead of serving as a utility the law would become a weapon or an excuse to commit atrocities – the Nazi Germany, for example, used laws to exterminate the old, sick and disabled, and minorities.
It has been almost three weeks since the kidnapping/abduction of Awais Ali Shah, the son of the Chief Justice of Sindh, Sajjad Ali Shah, but the law enforcement agencies are clueless about the identity of the abductors and the motive behind it.
This has created a sense of insecurity amongst the judges in this country, and raises serious questions of the achievements claimed by the law enforcement agencies in restoring law and order in Karachi, Pakistan’s economic hub.
It is a very difficult time for the judiciary and also a big challenge to the legal professionals of this country. In campaigning for the safe recovery of Awais Ali Shah, a complete strike which the bar has resorted to is not the right way forward: a complete strike just serves the interests of those who perpetuated this kidnapping to paralyze and render our justice system ineffective.
The civil society and the bar must raise their voices in a coordinated and concentrated effort for the recovery of Awais Ali Shah. The silence of the conscious and educated people is what allowed the Nazis to seize power in Germany and lead it along the path of destruction.
To put it in the words of Martin Niemöller:
First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out—
Because I was not a Jew.
Then they came for me—and there was no one left to speak for me.
As part of my LLB, I wrote a research essay on Suicide and Assisted Suicide.
The research essay was titled “Does Right to Life include a Right to End Life? Legal challenges to suicide and assisted suicide.”
In the essay I explored the Right to Life, protected by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. In the analysis of this right, I explored its content: whether it entails a right not to be arbitrarily deprived of life or does it ensure complete autonomy over one’s life and the choice to end it.
I explored suicide, and its history as criminal offence.
I moved on to consider the plea of “Protection of Cruel, Inhumane or Degrading Treatment or Punishment” raised by people seeking to end their life.
Next, I considered the current laws of the United Kingdom and India, and also the Dutch law that in limited circumstances permits assisted suicide.
Then I discussed the interests of the state in preventing suicide, discussing the rationale behind the need of the state in preventing suicide, and providing a good standard of life for its citizens.
Finally, I drew a conclusion from the entire research.
The original essay was much longer, however I had to remove certain parts and condense other parts to stay close to the recommended length of 2,500 words; even the final draft exceeded the word count by almost a 1,000 words. All the references were added in-line with footnotes and a bibliography in the end. Contributing to Wikipedia over the years gave me a great habit of adding in-line citations, which proved to be immensely helpful in writing the essay.
I have been away from blogging for quite some time. A long time really.
Here’s why. My draft section is piling up. I usually begin writing, then leave it incomplete, saved as a draft, and, since I blog about current/political issues, it becomes irrelevant over time.
I haven’t neglected this blog entirely. I’ve been updating the themes and plugins, and most importantly WordPress itself. WordPress is a great software. I even turned on HTTPS (the secure/encrypted variant of the Hypertext Transfer Protocol).
I am in the final year of my LLB. Four exams and an essay (which I’d post here, just like my presentation) to go. I’d be free by the end of May.
I plan on being more serious and dedicated to blogging as soon as I’m done with my exams. To that end, I’ve created an Urdu version of my site, and blog, and plan to blog bilingually.
I’ve had leaning a bit of Spanish and Esperanto some months back, via Duolingo. Spanish is the second most spoken language after Mandarin (that’s the name for Chinese). Mandarin is a bigger challenge, perhaps for a later stage in life. Esperanto is a constructed language; it did not evolve like other human languages, but was constructed – created, over a hundred years ago. It has accumulated a wealth of literature which I’d love to explore. Maybe I’d do a blog post on languages.
While I’m a native speaker of Urdu, my reading and writing skills lag behind. I hope my blogging in Urdu polishes them and brings them at par with English. After all, the more languages you know, the better you may express yourself!
I have a lot to write about; will be back by the end of May, a lawyer by then. 🙂
On 25th February 2016, I gave my Law Skills Portfolio presentation on the topic The United Nations System for the Protection and Enforcement of Human Rights.
The presentation was is part of the Law Skills Portfolio which is a mandatory requirement for QLD for my Bachelors of Law degree from the University of London. I chose this topic from the study of my elective course of International Protection of Human Rights (IPHR).
I have uploaded the slides for the presentation on Academia.edu. The Original slideshow is linked here, however, the background of the slides was made black and the text was made white in order to comply with the regulations. The notes for my talk are embedded in the slides. The regulations required me to keep the presentation restricted to 10 minutes.
Learning a new language is quite a daunting and challenging task. It helps in better understanding a foreign culture. Learning a new language that is written or spoken like your language, for example when you understand and speak Urdu and learn Hindi (spoken language is the same) or Arabic (written script is the same) may seem an easy task, but learning a completely different language may be an uphill battle: learning new characters, learning to speak all over again and so on.
I have started learning Chinese from a website called LearnChineseEZ.com. Yes, Mandarin is an alien language for me, but this website uses a unique way of teaching. Its unique approach is really helpful in grasping this new language, and I’d hope you all check it out.
I have gone through all the free lessons that were available, but cannot pay for the further lessons because PayPal, the website’s payment processor blocks payments from Pakistan, so I hope the site admin would be kind enough to grant access under their free access option helping them spread the word about their free Chinese lessons.
Shutdown to Rebuild, Wait, What?!? Seriously? What were the PTI’s creative team thinking when they came up with this slogan?
On second thought, this might be perhaps the most clever way to present something that the party plans to do which happens to be so inherently outrageous and morally and legally unacceptable that the party leadership itself condemned the same in the past.
While I condemn murders of MQM workers, the loss to poor daily wage workers is back breakng.Karachi also loses approx. Rs 10 B /1day strike
Wait a second: the words ‘Shutdown’ and ‘Lockdown’ as display pictures next to a tweet condemning the same. Now that’s irony and hypocrisy.
That were PTI Leaders Arif Alvi and Khurrum SherZaman criticizing MQM’s strike on 1st May 2014. Few months later, the party is doing the same thing that they know and believe is wrong: PTI is planning to shut down major cities and eventually the whole country. Shutdown or Lockdown to Rebuild. Its an oxymoron.
And not just the PTI leadership, their supporters too:
1 day strike in Karachi = Rs.10 billion loss to economy. Mqm Terrorists always acting as mercenaries of RAW #NamaloomAfraad#MQM
But what can we say? The PTI is adamant to go ahead and shutdown Karachi, and Lahore, followed by the whole country. Just as they did in Faisalabad.
Arif Alvi stated that the loss suffered is over 10 billion for a day the city of Karachi is shutdown. Khurrum SherZaman too states that the loss is in billions. Not just this, we have seen the nuisance Islamabad. Yes, I’m talking about the assault on the Parliament and Prime Minister House. The attack and ransacking of PTV. Occasional attacks on Geo News office.
Pakistan suffered more than just this. This paid protest of PAT and PTI caused much more losses. The Chinese President canceled his visit to Pakistan, that put a question mark (or possibly a full stop) on the future of $32 Billion worth of investment.
The unrest and clashes in Faisalabad, and the enforced shutdown of the city following the death of a PTI worker: it is all condemnable in the strongest words.
But why is PTI doing this then? Because their beloved leader said so.
Lethal mixture of Jamaat e Islami and MQM, A party which listens to no sane voice…. Yeah you guessed it right. PTI it is.
PTI talks about Justice. Well, even the name of the party Pakistan Tehreek-e-Insaaf translates to Pakistan Movement for Justice. However the leader of the Party, cricketer turn philanthropist turn politician, is now a proclaimed offender in Anti-Terrorism Cases before an Anti-Terrorism Court in Lahore (well yes, terrorism in Pakistan is defined too broadly, therefore some of the acts he and his supporters have done fall under the category of terrorism), and he has proudly challenged the incumbent government to try and arrest him.
We did not join long march despite agreeing with many of the demands because v believe true change comes through ballot not street pressure
Shutting down a city, just like they did in Faisalabad, if evaluated under the UK Anti-Terror legislation, is an act of terrorism. Yes, the same Anti-Terror laws for which the PTI grilled the MQM chief Altaf Hussain, for this his statement about the Three-Swords monument in Clifton, Karachi.
Imran’s aid and ally, Sheikh Rasheed Ahmed has gone the extra-mile in calling out to the rioting workers of his party the Awami Muslim League and those of PTI to damage, burn and destroy public and private property to achieve the above stated goals. Incitement to an offence or speech that disrupts public order is criminally wrong. What Sheikh Rasheed has said does not sound just wrong, it is insane, treacherous.
Feisal Naqvi, a Supreme Court advocate, sketched Imran’s desperation to rid Pakistan of its elected Prime Minister in form of humorous future unreleased plans from Plan E to Plan Z; Plan X of which states:
Plan X: Imran Khan files a petition before the Supreme Court, asking for the Independence of India Act, 1947 to be declared unconstitutional. After the court accepts his petition, the Queen of England then appoints Imran Khan as her Viceroy.
Fortunately, or not so for Imran and PTI, English only has 26 alphabets and just like the article above, the number of plans end at Plan Z. However, people have suggested different approaches to this problem.
The PML-N and PTI are quite similar, ideologically. They are both working in the same way, for the same ideology. They even share the same vote bank. Just as Babar Sattarrephrases it in a question:
Isn’t the Shahbaz Sharif model of governance in Punjab very similar to what Imran Khan is promising in Naya Pakistan: a strongman at the top and everything falling in place under him intuitively?
Of the certain aspects of Imran Khan’s behavior and policies, as Babar Sattarstates in the same article, that would give even his well-wishers the jitters, that most bothersome is the inability of the PTI leader to distinguish between the State and the government and the fact that Imran is willing to hold a gun to the country’s head to negotiate with the PML-N.
2: His vigilantism. Khan’s argument is that since he didn’t get justice on his terms, he’ll now have to shut the country down. Can any rule of law proponent justify such course of action? There is a pattern here. In 2013, PTI had asked its vigilantes to forcibly block NATO containers in KP. That circus was eventually dispersed by court orders.
3: Khan’s inability to distinguish between the state and government. Whether it was Khan inciting everyone to refuse paying taxes and utility bills and sending money through legal banking channels, or his Plan C of shutting Pakistan down, he seems to have no qualms holding a gun to the country’s head to negotiate with PML-N.
4: Khan’s polarizing politics. In a democracy people need to be brought together to forge consensus and get things done, not torn apart. Khan’s message of hope is wrapped in bitterness and hate, which has polarized this country. Today Pakistan is a divided house; even its rational segments at war with one another over political differences. Forget Khan’s ire for opponents and critics, is there room for dissent even within PTI?
We really need introspection and self-accountability all around: the PML-N has to reflect upon whatever has happened the last few months and how they should have handled it; the PTI needs to realize that ends don’t justify means. Both parties need to work together, get to the negotiation tables and resolve their conflicts in a sensible manner, for the sake of the nation.
At SZABIST, the students held a candlelight vigil in memory of those slain in the name of blasphemy.
Over the last month a Christian couple in the town of Kot Radha Kishan, some 60 kilometers southwest of Lahore were beaten and burnt to death after they were accused of blasphemy by their creditor, which was followed by another horrifying and deplorable incident in Gujrat where a man in police custody was hacked to death by an axe wielding police officer, again in the name of blasphemy.
Below is the speech I gave at the occasion.
We have all gathered here today because we chose to not to remain silent on the brutal murder of Shama and Shehzad.
They both were burnt alive in the same place where they worked all their lives as a bonded labor.
That fateful day, it wasn’t just the two of them who were killed: Shama was four months pregnant.
But this isn’t about just these two.
According to the Human Rights Commission of Pakistan, between 1st January 2013 and 31st December 2013, there were 540 ‘victims’ of blasphemy.
When we step into law school, in the first year we are taught about the values of Rule of Law; that no one is above the law. We are taught that no one can be sentenced or punished without due process of the law.
Sadly, 540 fellow citizens were condemned to their horrifying deaths last year by mobs, by lunatics, by murders, after they were accused of blasphemy. In this country, as rule of law erodes, we are facing increasing incidents of extra-judicial killings, vigilante justice and rising crime.
Yes, it is a crime to take someone’s life. Yes it is a crime to burn someone alive, or to hack someone to death. Sadly this has happened over the past week in our country.
This is a country, where even lawyers are killed for defending a blasphemy accused in a court of law, where politicians calling for reform of these laws are killed. I am talking about Rashid Rehman, a lawyer murdered because he was defending a blasphemy accused in court, I am talking about Salaman Taseer and Shahbaz Bhatti.
We all agree that this heinous crime must not go unpunished. We wish to see these killers being brought to justice.
Because as the saying goes:
“Injustice anywhere is a threat to justice everywhere.”