The Honorable Asma Jahangir

Last Rites
2:30 PM
Tuesday, February 13
Outside the Gaddafi Stadium
Lahore, Pakistan

Last Public Speech
facebook.com/justiceforpashtuns/videos/1169041573198913

Last Tweet
‘Nehal Hashmi’s tone and words cannot be defended but use of contempt law selectively only undermines confidence in the system of justice’

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Asma Jahangir: A Great (Punjabi) Woman

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I had to face imprisonment and house arrests, but it made me tougher. As a lawyer, many a time I took up difficult and sensitive cases dealing with minorities’ and women’s rights. Yes, I constantly receive threats, and to be very honest, at times it is very scary. But I have to continue my work.’

Asma Jahangir is a lawyer (to say the least) defending the rights of women, children and men in Pakistan’s harsh climate of religious extremism, misogyny and child abuse. She does it in the courtroom, on the street, in the media, and on the international scene.

Since 1972, when she launched a case against the Government of the Punjab for the release of her father Malik Ghulam Jilani who was arrested for resigning from the National Assembly to protest the Pakistan Government’s military action in Bangladesh, Asma has been an honorable and courageous leader of Pakistan’s political, legal and social movements. She was one of the leaders of the long and often dangerous campaign waged by women activists against the Hadood Ordinances and the draft law on evidence; She forced the parliament to pass a legislation in favor of bonded child laborers of brick kilns. She is a founding/serving member of the Human Rights Commission of Pakistan (HRCP), Women Action Forum (WAF), Punjab Women Lawyers Association (PWLA), and of the AGHS Legal Aid Cell that offers free legal services to vulnerable population groups.

In 2010, Asma was elected as the first woman President of the Supreme Court Bar Association of Pakistan. She is a former chairperson of the Human Rights Commission of Pakistan, and a UN Special Rapporteur on Extrajudicial, Arbitrary or Summary Executions from 1998 to 2004, and UN Special Rapporteur on Freedom of Religion and Belief from 2004 to 2010.

She is the author of Divine Sanction? The Hadood Ordinance (1988) and Children of a Lesser God: Child Prisoners of Pakistan (1992). She has received numerous international and national awards including honorary Doctor of Law degrees from universities in Switzerland, Canada, and the USA; the Right Livelihood Award or the ‘alternative Nobel prize’ in 2014; American Bar Association’s International Human Rights Award in 1992; the Martin Ennals Award, the Ramon Magsaysay Award, and Sitara-I-Imtiaz in 1995.

Asma was placed under house arrest and later imprisoned for participating in the movement for the restoration of democracy against the military regime of General Zia-ul-Haq in 1983. She, and her family, has often been a target of vandalism, violent attacks, hate campaigns and character assassinations carried out by militant groups, political interests and their media representatives. Un-deterred, she continues to be a force to reckon with for each successive government, and for the interest groups who violate the rights of people.

More on Asma is here
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Contact Asma Jahangir
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View the above on its page
Great Women of Punjabi Origin

Years of unceasing democratic work against armed and unarmed adversaries, and in over four decades of active politics, Asma has refused to serve the interests of any colonial, hegemonic or familial power. At all times, she has taken a firm stand on the side of the people, often being victimized, and she has gone onto extend protection to them wherever and whenever possible. The local and international power brokers have introduced their own heroes who come backed with enormous resources and a wide international network of organizations, forums and media outlets. As is the nature of colonizing mind, they make it appear as if Pakistani women had no history of resistance prior to their presentation of it.

May be all this money, resources and influence will for some time sideline our real heroes such as Asma Jahangir, Hina Jillani, Hussain Naqi, Abdur Sattar Edhi and others. But sooner or later we will see through these schemes, and we will be able to acknowledge the ceaseless contributions to the betterment of our lives of our heroes like Asma Jahangir, and we will find deserving ways to nurture and honor them.

Fauzia Rafique
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Why Criticizing Islam is Not Islamophobia

Hallaj

Written by Randeep Singh

Writing in the wake of Charlie Hebdo in Al-Jazeera, Abdullah Al-Arian argues that Islam has been “unfairly criticized and ridiculed” by the West for centuries. Such a history, he writes, has prejudiced the West into into painting Islam as illiberal and intolerant.

Islamophobia is a reality. So too are problems within Islam and the Muslim world. Islamophobia should be condemned; but not criticizing or questioning Islam or Muslim societies.

If I criticize Islam for engendering patriarchy, the persecution of minority groups and its smug, supremacist view of itself, it’s because I have criticized Christianity for the same reasons. I oppose Christian organizations for their homophobia, without hating Christianity. I criticize Israel without hating Jews. I criticize Islam without hating it. I am not hating or fearing anyone: I am striving for equality, inclusion and justice regardless of who or what we are.

The fight for freedom of expression is not a clash between civilizations. It has been happening within the Muslim world for centuries. Mansur Al-Hallaj (856-922) became a martyr for proclaiming “I am the Truth (God).” Sarmad (1590-1661) too was martyred for his “heretical” views. Bulleh Shah (1680-1757) challenged the mullah for his sectarian views. In modern times, Nazim Hikmat (1902-1963), Saadat Hassan Manto (1912-1955) Faiz Ahmad Faiz (1911-1984) and Naghuib Mahfouz (1911-2006) have all been imprisoned, exiled or censured for their art and political views.

Criticism of the Muslim world as illiberal and intolerant today is likewise vindicated. Just ask Raif Badwai, the blogger who recently received 50 lashes in Saudia Arabia. Or ask Aasiya Bibi, the Christian women who languishes in prison on charges of blasphemy in Pakistan. Or how about Salman Rushdie?

Without change, the Muslim world will become progressively more intolerant and creatively barren. Denying any criticism of Islam produces a culture which is afraid to ask questions and unable to find answers.

India Bound

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Written by Randeep Singh

The film Haider was released on October 2, 2014. The film is an adaptation of Shakespeare’s Hamlet to the violent backdrop of Kashmir in the mid-1990s. Among other things, Haider looks at the atrocities of the Indian army. It has become one of the most critically acclaimed films in India this year.

On October 15, 2014, the Allahabad High Court issued notices to, among others, the film’s director, director and actors to respond to a petition. The petition was filed by the Hindu Front for Justice an organization which seeks to restrain the film’s screening on the basis that it insults the sovereignty, integrity and unity of India.

How does a film like Haider endanger the “sovereignty, integrity and unity” of India? Aren’t India’s restrictions on the freedom of expression, such as national security, public order and incitement to violence,  sufficient to deal with problems that may otherwise imperil the “sovereignty, integrity and unity” of India?

The “sovereignty, integrity and unity” limitation on freedom of expression merely enables the Indian power to curb any thought or opinion it deems “anti-national.” And what is more cherished to the Indian nationalist mythology than the idea that India is a benign, secular democracy, a view questioned by Haider?

In its stamping out of ideas, thoughts or opinions, which just may have a ring or truth to them, the Indian state privileges the right of an ambiguous and undefined the “nation” over those of democracy which relies on a free flow of ideas. The result is a narrowing of the Indian mind.

If Haider is restrained from playing in Indian cinemas, the Indian state and its fascist enthusiasts will have again (as they have done before with M.F. Hussain, Deepa Mehta, Sonali Bose, Arundhati Roy, Wendy Doniger) have privileged the rights of the “nation” over those of Indians themselves.

An Evening with Arundhati

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Written by Randeep Singh

She came. She spoke. She conquered. Arundhati Roy filled the pews of St. Andrew’s Wesley Church on April 1 as part of the Indian Summer Festival 2014.

Roy began by criticizing “representative democracy” as too much representation, not enough democracy. Democracy has plenty of institutions, Roy remarked, but those institutions have turned into conduits for a short-term, extractive, economic philosophy. “Could it be that democracy is such a hit with modern humans,” she reads, “precisely because it mirrors our greatest folly – our nearsightedness?”

Capitalism controls culture too. Roy spoke of how corporations engage in “perception management,” deliberately not funding artistic projects which question the system. Martin Luther King Jr., Roy says, drew a connection between capitalism, imperialism and the Vietnam War; but American multinationals did not highlight this aspect of his legacy when they sponsored the Martin Luther King Junior Centre for Non-Violent Social Change, an organization which works with the US Department of Defence. The Indian mining group, Vedanta, Roy points out, recently sponsored the “Creating Happiness” film competition for film students to make films on sustainable development (in communities affected by the mining) with the tagline “Mining Happiness.”

Roy also questioned Gandhi as the mahatma or “great soul.” Roy recounted how the anti-imperialist, anti-racist Gandhi fought alongside Great Britain in the Boer Wars, refused to ride in the same railway carriages as Africans and wrote in prison that Indians deserved separate prisons from vile and immoral blacks and Chinese.

When asked whether she was an activist, Roy replied she was a writer telling the world’s stories. Her readings and discussion with The Tyee’s David Beers, brought to life the politics of development, resistance movements and the management of culture by corporations just as the arts have reenacted the Vietnam War, the civil rights movement or the experience of Canadian aboriginals in Residential Schools. As Roy puts it, “why wouldn’t we write about the critical issues our society is facing?”

The Union of India vs. Gay, Lesbian, Bisexual and Transgendered Indians

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Written by Randeep Singh

The Supreme Court of India has upheld section 377 of the Penal Code of India, which characterized homosexual sex as “against the order of nature.” The decision reversed a 2009 ruling of the Delhi High Court which had ruled that the law violated constitutional rights to equality and personal liberty.

To clarify, Section 377 was never abolished by the Delhi High Court: it has remained the law in India, including New Delhi. The Delhi High Court decision was only binding in that Union Territory and no where else in India. The law can only be abolished by Parliament, not by any court, including the Supreme Court of India.

As for the problems with the decision.

First, the Supreme Court’s otherwise correct statement that only Parliament can amend the law, overlooks the historical importance of the Supreme Court of India in upholding the fundamental rights and freedoms of Indians despite the state. The Supreme Court has interpreted rights and freedoms expansively to include the right to education, the right to work with dignity and on behalf of socially disadvantaged including the poor, women and backward castes. It has historically been the Supreme Court of India which has persuaded Parliament to enact socially inclusive laws, not vice-versa.

Second, the Supreme Court held that “a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or trans-genders.” How did the court come to this determination? How many Indians are in the closet? Is not one person enough to challenge a law as unconstitutional? Moreover, the Supreme Court of India has historically upheld the rights of a vulnerable social group from the excesses of more dominant social groups, as it has done in the case of backward classes, the poor and women. Why has it failed to do so now?

Third, the Supreme Court holds that Section 377 criminalizes certain acts and not sexual orientation. Under this logic, Indian homosexuals are not breaking the law so long as they do not engage in sexual intercourse. There is no separation between the act of sex and one’s sexual orientation. Legally prohibited from having sex, India’s homosexuals will have to either think twice before getting intimate with their partners or they will have to go further underground. It is a clear case of discrimination based on sexual orientation.

I’m reminded of the Supreme Court’s decision in 2005 when it refused the appeal of Afzal Guru (who was convicted of the December 2001 attack on the Indian Houses of Parliament). The court ruled that the “collective conscience of the society will only be satisfied” if Afzal received the death sentence. In this case too, the Indian Supreme Court has sought to appease the collective “moral” conscience of society, represented in this case by conservative religious bodies, supported in the recent past by senior leaders of the BJP like the late B.P. Singhal who argued homosexuality was against the ethos of Indian culture.

Section 377 remains law, but change will come eventually. Just before posting this piece, I read that Sonia and Rahul Gandhi have criticized the ruling and that India’s Law Minister has stated the government has not abandoned efforts to make homosexuality legal. The law has changed for other socially disadvantaged groups in the past and the composition of the Supreme Court and Parliament is changing. Legal reasoning is dynamic and new precedents can be set. More than anything, the GLBT community in India, and its supporters locally, nationally and internationally will keep moving forward. The moment hasn’t come yet but the destination beckons.

The State of Jammu & Kashmir vs. Union of India

Disclaimer: This is not a legal document, judgement or academic opinion on the legality of the accession of Kashmir to India but rather an attempt to bring together some facts and legal principles pertinent to the accession question and have the reader come to his or her own finding through further inquiry if necessary.

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Was the accession of Kashmir to India legal?

Facts

On August 14 and 15, 1947, India and Pakistan gain independence. The rulers of the 565 princely states of British India have to decide to join either India or Pakistan. The Maharaja Hari Singh is the ruler of the princely state of Kashmir and does not make a decision as to which country to join.

On October 22, 1947, Pathan tribesmen from Pakistan invade Kashmir. The Maharaja of Kashmir appeals to India for help.

On October 26, 1947, the Maharaja flees Kashmir and arrives in Jammu. Also on or about October 26, 1947, the Maharaja meets with a representative of the Indian Prime Minister and signs the Instrument of Accession. On October 27, 1947, India troops arrive in Srinagar (Kashmir). Recent British sources indicate that the Indian PM’s representative did not reach Jammu until the morning of October 27, 1947 by which time Indian troops were already arriving in Srinagar.

Issues:

  1. Did the Maharaja act of a free mind when he signed the Accession?
  2. Did the surrounding circumstances influence the Maharaja’s decision?
  3. If so, did those circumstances influence the Maharaja’s decision-making ability in such a way that he cannot be said to have acted of a free mind?

The Law

I look at three legal principles relevant to the issues above.

The question of duress: duress is legally defined as a situation where one party exerts pressure unlawfully on another party to compel that party to do something that he or she would ordinarily not do. For duress to apply against India, India would have had to have done something unlawful, such as threaten to use violence against the Maharaja, his family or threaten to seize his property and hold it ransom. The use of suggestion or persuasion on the part of India does not qualify as duress.

The question of undue influence: undue influence occurs in relationships where one party exerts pressure on a weaker party so as to overpower the will of that weaker party and thereby induce an agreement. In this case, India would have had to do something to influence the Maharaja – including making military aid to him conditional upon his signing the accession instrument – which was short of actual force, but stronger than mere talk, resulting in the signing of the accession.

The question of unconscionability: an unconscionable transaction is an agreement that no right-minded would ever make and no fair-minded person would ever accept. In this case, there would have to be an inequality in the bargaining power between India and the Maharaja of Kashmir. If there was, then the Maharaja also would have had to have made an improvident bargain, that is he would have had to sign the accession (for military aid) without proper regard for the future.

If that were the case, there arises a legal presumption of unconscionability against India which India would have to rebut.

Written by Randeep Singh

Further Reading:

Ganguly, Sumit, “Conflict and Crisis in South and Southwest Asia”, in Michael E. Brown, ed., The International Dimensions of Internal Conflict, Cambridge, MA:  The MIT Press, 1996a, pp. 141-172.

Ganguly, Sumit, “Explaining the Kashmir Insurgency: Political Mobilization and Institutional Decay”, International Security, vol. 21, no. 2, Fall 1996b.