India’s Citizenship Amendment Act: An Insidious Case of Bigotry by Modi

The racist new Indian citizenship law hides behind the skirts of refugee issues but in reality it intends to disempower Muslims in India. We in Pakistan are very fortunate to enjoy our own country’s citizenship. 

The right to citizenship is the right to have other rights, such as the right to vote. However, laced with discrimination, grounded in antipathy, on 11 December 2019, in order to amend the Citizenship Act of 1955, the Parliament of India passed a very controversial new law in the form of the Citizenship (Amendment) Act 2019 which will grant Indian citizenship to religious minorities such as Sikhs, Buddhists, Christians, Parsis, Jains and persecuted Hindus; but which pointedly excludes Muslims. This new citizenship law was championed by the ruling Bharatiya Janata Party (BJP) and effectively formalized on 12 December by President Ram Nath Kovind. It has been met with large scale protests across India with critics citing it as grossly divisive, exclusivist, discriminatory and likely to further polarise Indian society. Much is being discussed about the increasing possibility of India abandoning its foundational ‘secular structure’ and heading towards a regressive route marked by overt Hindu supremacy following the passing of this the new law.

President of the All India Majlis-e-Ittehadul Muslimeen Asaduddin Owaisi lambasted the Islamophobic new law, denouncing that ‘We are heading toward totalitarianism, a fascist state…We are making India a theocratic country.’ Acclaimed Indian author Arundhati Roy likened the new law to the 1935 Nuremberg Laws of the Third Reich: ‘Are we going to stand in line once again, obediently, and comply with this policy that eerily resembles the 1935 Nuremberg Laws of the Third Reich? If we do, India will cease to exist. We are faced with the biggest challenge since Independence.’ To provide a bit of historical context to this chilling comparison, it must be noted that the 1935 Nuremberg Laws were predicated on the ‘Protection of German Blood and German Honour.’

Fatehyab’s City: A Talk by Arif Hasan

Karachi is an ecologically damaged city, explains Arif Hasan, watch here. 

Our event ‘Fatehyab’s City: Causes and Repercussions of Turmoil in Karachi’ was the topic of the fourth lecture in memory of the late president of the independent Mazdoor Kissan Party Fatehyab Ali Khan, on the occasion of his ninth death anniversary, delivered by architect and town planner Arif Hasan at The Pakistan Institute of International Affairs (PIIA) here on Thursday. Beginning his lecture by paying tribute to Fatehyab Ali Khan, Arif Hasan said that they met as often as twice a week to discuss the issues faced by Pakistan. “Fatehyab was passionate in his arguments. He had leanings towards the Left but was not a Communist. And he was a product of Karachi’s city life,” he said. Arif Hasan said that Fatehyab’s political activism started from student days. In university, he and his colleagues were often sent to prison where they also received beatings. They were a popular group of students who had been barred from entering the city, but they carried on with their activism and opposing Ayub Khan’s government.

“In the 1990s, Fatehyab took a stand on talks of separation of Karachi from Sindh as he strongly believed that Karachi was very much a part of Sindh,” he said. He said that Fatehyab came to Karachi in 1949 as a 13 or 14-year-old from Bombay. “Political opportunism was changing the demography of Karachi,” he said. At first, there was a huge population of Sindhi, Baloch and Brahvi people in Karachi with a few Urdu-speaking people, and even fewer Punjabi-speaking folks with hardly any Pashto-speakers around as Hindus outnumbered Muslims. “But by 1951 the population of the Sindhi, Balochi and Brahvi people dropped as Urdu-speaking people increased in numbers. The Hindus decreased from making up 51 per cent of the population to two per cent and Muslims who were 42pc made up 90pc of the city. “Those who came to settle here are powerful. Their politics are subtle. They control a lot of resources,” he said, adding that Karachi is different from the other populated cities of the country.

Reko Diq: Pakistan versus Gold Diggers

These narratives show how foreign investors are a double-edged sword for Pakistan. TCC was suspected of lending support to Baloch separatists. 

Pakistan has recently been garnering a lot of attention in international tribunals. A recent case is the Reko Diq case, which led to arbitration in the World Bank’s International Centre for Settlement of Investment Disputes (ICSID). In Tethyan Copper Company Pty Limited v. Islamic Republic of Pakistan (ICSID Case No. ARB/12/1), ICSID has ruled that Pakistan has to pay a $5.8 billion penalty to a mining company, the Tethyan Copper Company (TCC). It is an oddity that the Pakistani public has been disabled from knowing the full details of the ICSID arbitration judgment. The condition for the publication of the award is that both parties must consent to its publication and apparently there is no consensus that it should be published, or alternatively there is consensus that it should not be published. Either way that is rather opaque and lacks transparency. Yet we do know the identities of the arbitrators and the costly law firms employed by the parties and all the procedural steps in the arbitration (which is rather pointless indeed without knowing the full and exact details of the final arbitration award). 

It is rather appalling that the award is not in the public domain and the people of Pakistan are being denied access to the full details of the decision. Reko Diq is a region in Balochistan that has large gold and copper reserves. TCC acquired an exploration license in 2006, buying it from the company BHP Minerals. Though this seems a very recent mining project, TCC itself is a joint venture by other foreign companies, and BHP had been granted licenses since 1993 by the Balochistan Development Authority (BDA) under the Chagai Hills Exploration Joint Venture Agreement (Chevja). Now that TCC was exploring Reko Diq’s reserves, it completed its feasibility study in 2010, and applied for a mining lease, but it was denied. Chevja had been challenged by petitioners before. In 2013, the Supreme Court decided that the agreement (Chevja) was void ab initio. In 2009, the provincial government had already terminated Chevja.

Sacking of PM is Unconstitutional

The country, until two days ago, had a Prime Minister in office who commanded the confidence of parliament, which he had demonstrated not long ago by having a no confidence brought against him defeated in parliament.

President Sirisena’s sacking of Prime Minister Ranil Wickremesinghe and the appointment of Mahinda Rajapaksa in his place has been described by some as a ‘constitutional coup’. The phrase ‘constitutional coup’ is a contradiction in terms, or ‘an oxymoron’, because it would imply that although President Sirisena’s actions amounted to a coup, his actions are sanctioned by the constitution. There is no constitutional basis for the President to have removed the Prime Minister. At the press conference held on 27 October 2018, as reported in Adaderana (GL explains how PM was removed and why Parliament was prorogued) Dr G.L. Peiris, the chairperson of the SLPP, attempted to justify the legality of President Sirisena’s actions, putting forward two points in support. They are (i) the cabinet of ministers stood dissolved by the very fact of exceeding the numerical limit prescribed in Article 46(1), and (ii) the President as the appointing authority has also the power to dismiss him. In fact, the phrase used by Peiris is ‘compulsory removal’. What Dr Peiris sought to do was to provide an ex post facto rationale for the President’s action but the reasons he put forward for the removal cannot be reconciled with those given by the President. Nor are they reflected in the position taken by the President in his gazette notification.  

The gazette notification announcing the President’s decision stated that “the President in the exercise of powers conferred upon him under the Constitution …, has removed Hon. Ranil Wickremesinghe … with immediate effect.” (see The Gazette Extraordinary no. 2094/43 dated Friday 26 October 2018). There is no reference in this gazette to the specific provision or provisions of the constitution under which the President purported to act when removing the Prime Minister from office. If, as Dr Peiris says, the cabinet of ministers ceased to hold office and the Prime Minister had gone out with the cabinet, then there was no need for the President to have “removed” the Prime Minister from office, and to have done so with immediate effect. The President has not stated that the appointment of Mahinda Rajapaksa became necessary because the office of the Prime Minister which was occupied by Ranil Wickremesinghe had fallen vacant.

The President is Powerless to Remove the Prime Minister in Sri Lanka

Our comrade Dr Reeza Hameed explains that ‘The changes brought about by the Nineteenth Amendment are designed to free Parliament and the Prime Minister from subservience to the President. The President no longer has the power to remove the Prime Minister.’

Some commentators have persistently advanced the proposition that, notwithstanding the Nineteenth Amendment to the Constitution of Sri Lanka, the President’s power to remove the Prime Minister is intact. It is a view that relies on a literal reading of the Sinhala text of Article 48(1) in which the phrase “removal from office” appears. I have, in my previous intervention on this subject, analysed the provisions of the Constitution as amended by the Nineteenth Amendment and expressed the view that the President no longer has this power. That interpretation has been questioned on the basis that the words “removal from office” appear in the Sinhala text of Article 48(1); and because the Sinhala text should prevail in the event of an inconsistency, it must follow that the President may remove the Prime Minister. I disagree with this conclusion for the reasons I have given below. The tenure of Prime Minister’s office pre-Nineteenth Amendment is as follows.

The Constitution as enacted in 1978, (which I shall hereafter refer to as ‘the Principal Enactment’), in Article 47, provided for the tenure of the office of the Prime Minister. It stated that he “shall continue to hold office throughout the period during which the Cabinet of Minister continues to function under the provisions of the Constitution unless he (1) is removed by the President, (2) resigns his office, or (3) ceases to be a Member of Parliament.” The Prime Minister shall continue to remain in his office unless and until any one of the three events mentioned above occured, whereupon he would cease to hold office. This provision was repealed by the Nineteenth Amendment which was enacted in May 2015.

Cyber Security Talk by Mr Ammar Jaffri and Barrister Zahid Jamil

With its present policies, Pakistan is on its way to becoming a “cyber leper”. The speakers also agreed that cyber security is a matter of national security.

Despite being plagued by dictatorship and corruption, Pakistan does possess the ability to make advances, even leaps, in transparent and effective lawmaking. But as the recent conundrum disclosed by the contentious Prevention of Electronic Crimes Act 2015 (“the Act”) so ably demonstrates, even under the guise of democracy, Pakistan seems to be sleepwalking into rather dangerous territory. Described as quite draconian, controversial and retrograde when juxtaposed with the panoply of rights guaranteed by fundamental rights under Articles 9 to 28 of the Constitution of Pakistan 1973, the Act has been almost universally denounced. In a joint talk yesterday by Ammar Jaffri (formerly of the FIA) and Barrister Zahid Jamil, we learned that our country is doing poorly in writing robust legislation that targets root problems but does not compromise on individual rights. The basic flaw in the present approach to cyber crime in Pakistan appears to be that the wrong ministry is dealing with this important area of the law.

Rather than the ministry of interior, the task of prevention of electronic crime is erroneously allocated to the Ministry of Information Technology and Telecommunication. For example, in the UK, the country from which we inherited such a rich legal and institutional framework, the Draft Investigatory Powers Bill is moved on the Home Secretary Theresa May’s initiative. The Act introduces a series of new provisions that pose a grave risk to freedom of expression and privacy in Pakistan. It has been condemned in international circles for expanding surveillance

War on Terror and Post-Operation Measures in FATA

Rampaging terrorism and bubbling militancy have menacingly plagued Pakistan since 2001. Parliamentary Secretary of Interior, Mariyam Aurangzeb, explained on 5 December 2014 that more than 50,000 people including army, police, and civilians had lost their lives in the war on terror, and the country had also lost 80 billion US dollars in this war. Before the ongoing military operation Zarb-e-Azb, the government was sincerely immersed in perusing peace talks with the Tehrik-i-Taliban Pakistan’s (TTP) leadership but then out of the blue seven gunmen affiliated with the TTP conducted a terrorist attack on the Army Public School in Peshawar on 16 December 2014 killing 145 people, including 132 school children aged between eight and eighteen years.

At that critical juncture, both the civilian and military leadership agreed to vigorously conduct a counter-terrorism and counter-militancy operation against terrorists aimed at permanently flushing out terrorists of all strides particularly the outlawed TTP. The first year of the operation was completed on June 15, in which Pakistani security forces cleared the North Waziristan tribal areas. According to Inter Services Public Relations Director General, Major General Asim Saleem Bajwa, since the launch of the operation 2,763 terrorists had been killed and 837 of their hideouts had been destroyed (with 253 tonnes of explosives recovered). On the other hand, 347 army officers and soldiers were martyred in the operation.

Dr Reeza Hameed: Supreme Court’s Opinion on the President’s Reference

At last, the Supreme Court’s opinion on the President’s reference has seen the light of day, albeit unofficially, and it makes miserable reading. The feature that stands out in the opinion is not only the unctuous tone which the Court has adopted in responding to the President’s request for an opinion, but also the sanctimonious view it has taken of the importance of its own opinion given in an advisory capacity, and the un-judicial language with which it has chosen to castigate those who have taken a view contrary to its own. The engagement of the Court in this manner on a controversial issue at the request of a person who sought its opinion on his capacity to stand for re-election at a poll that he was about to announce is bound to affect its own dignity and standing in the eyes of the public both at home and abroad.

The defining characteristic of the Court’s jurisdiction under Art 129 (Consultative jurisdiction) is that the question that is referred to it by the President must be one of public importance. The recent reference related to the qualification of the incumbent President in his individual capacity and nobody else.

Landmark Judgment: Tamizuddin Khan versus Federation of Pakistan

The Governor-General’s power of dissolution was withdrawn because the Independence Act did not permit him to dissolve the Constituent Assembly …

Despite its secular and democratic roots, Pakistan is a country where constitutional freedoms have been suppressed and coups, corruption and cronyism have prospered. Unsurprisingly, because it fell prey to dictatorship shortly after Independence, the country is often labelled a “failed state”. Perhaps somewhat ironically, over and above the grim reigns of despots like Ayub, Yahya and Zia, the demise of democracy in Pakistan is directly attributable to the judiciary. On the other hand, the decision in Maulvi Tamizuddin Khan (Petitioner) v Federation of Pakistan (Respondent No.1) & Others (Respondents) 1954 SHC 81 is an example of an early landmark judgment which set a different standard (analysed in detail below) for upholding the rule of law. To the people of Pakistan, who are damned by oppression, even six decades later, it symbolises what could have been a much brighter future.

Indeed, to this day, if anything, our indulgence in the Sind Chief Court’s rationale repays freedom and the rule of law which were shortchanged when this meticulous judgment was deplorably reversed by Muhammad Munir CJ in Federation of Pakistan v Maulvi Tamizuddin Khan PLD 1955 FC 240 where he sinfully held that the Governor-General’s assent was necessary to all laws passed by the Constituent Assembly.

Dr Reeza Hameed: Mahinda Rajapaksa Cannot Succeed President Rajapaksa

I have discussed in these columns some days ago the contention that President Rajapaksa is not qualified to fight an election for a third term by virtue of the operation of Article 31(2) of the Constitution. The repeal of that article by the Eighteenth Amendment does not remove the past operation of anything suffered under the repealed law. Since ex-CJ Sarath Silva first raised this issue, lawyers and non-lawyers have tried to make the case that Sarath Silva is wrong and that President Rajapaksa is not prevented by the Constitution to seek a third term.

I have pointed out, and so has Suri Ratnapala, that the relevant section of the Interpretation Ordinance to look at is section 6(3)(a). Yet, some commentators have relied on another section of the Ordinance, namely section 6(3)(b), and have argued that it does not apply to President Rajapaksa as he has not acquired a ‘penalty’ under that section! It is an argument that suffers from the fallacy of the false premise.