Daily Times

Had Madam Asma Jahangir confined herself to being just a human rights activist, she would not have earned so much recognition and appreciation in our country. In the legal fraternity, if you are an activist you are not taken seriously as a professional lawyer. To be straight forward, such a lawyer is mainly remembered as an agitator rather than an intelligent lawyer. Madam understood such intricacies as she was a shrewd woman. She knew that in our society, it does not matter who you really are but the only thing which matters in our lives is the impression we have on others. Madam knew from the beginning that she did not have to prove her mettle in the practice of constitutional law in addition to being an activist. She was a straight forward woman, as well as an ambitious lawyer. She is the only woman in our legal fraternity who made a name for herself in advocacy, dealing mainly with constitutional litigation matters.

In 1993, eleven-year-old Salamat Masih was accused of writing blasphemous graffiti on the walls of a mosque and was convicted by a trial court. Despite receiving death threats during the appeal stage, Asma represented Salamat at the Lahore High Court and won the case by proving that the boy was illiterate and could, therefore, not have written the words

Recently I was reading one of her reported cases in which the principles of fair competition were delineated. It was a landmark case: Independent Newspapers Corporation private Limited vs. Federation of Pakistan reported as PLD 2017 Lahore 289.This was the first case in which the fair competition rule was adequately explained and if one wants to understand the difficult subject of competition law, then this is a case which must be read and understood by every law student wishing to understand how the dynamics of law and economics are intertwined. Appearing on behalf of the petitioner, Asma Jahangir challenged PEMRA(Pakistan electronic media regulatory authority) rules 2009 as well as PEMRA (Eligibility Criteria and Bidding Procedure for Direct to Home (DTH) Distribution Service Licensing) Regulations, 2016.

The Petitioner was in the electronic media business and held a Broadcast Media License issued by PEMRA. The Petitioner wanted to apply for a Direct To Home (DTH) license, which essentially is a distribution service within the electronic media. Through the impugned Rules and DTH Regulations PEMRA has prohibited broadcast media license holders from operating distribution service licenses which includes the DTH license. It was the petitioner’s case, vociferously argued by Asma Jahangir that the prohibition imposed under Rule 13(3) and (4) of the Rules and Regulation 2.11 and 3.23 of the DTH Regulations is unreasonable, discriminatory and beyond the scope of Section 23 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 (Ordinance) which had barred the petitioner’s enterprise from vertical integration. Conversely, it was argued by PEMRA that such vertical integration of media enterprise would result in undue concentration of ownership and by allowing the petitioner to participate in the bidding for DTH licenses, would result in nurturing anti-competitive and monopolistic practices in the market. Asma Jahangir, through her eloquence successfully convinced the court that the vertical integration of media enterprises would not result in undue concentration of ownership but would rather lead towards efficiency, transparency and promotion of open competition principles towards the bidding of DTH licenses.

Hence the DTH rules were declared ultra vires and unconstitutional. The judgment is worth reading if one wants to understand the concepts of horizontal integration, vertical integration, open competition and the regulator’s role in the regulation of an economic activity. Normally, law students taking interest in Competition Act 2010 or studying European Union law Article 101 and Article 102 of Treaty on the functioning of European Union would be able to understand such complex subjects where economics and law are interlinked.

In another case appearing on behalf of the petitioner, Asma Jahangir impugned the actions of PEMRA once again, which had banned Indian content comprising of soap operas and entertainment programmes from being aired on television, keeping inconsideration the principle of reciprocity. The honourable Chief Justice Syed Mansoor Ali Shah was convinced by the arguments of Asma Jahangir and ultimately the ban on Indian content was declared illegal. The judgment defined the concept of public interest in a comprehensive manner by stating that Public Interest or collective community interest is a basket of various public interests, including public morality, public order, public health, national security and foreign policy — along with the fundamental rights of others. It is the “general welfare of a populace considered as warranting recognition and protection. It also decided that principle of reciprocity might be a consideration in foreign policy but it has no sanctity in law. The case is reported as PLD 2017 Lahore 709 (Leo communications Limited vs. Federation of Pakistan).

Very few people knew that she was one of those few capable lawyers who knew the complex service matters involving constitutional points of law. In a case appearing on behalf of the respondents before the Supreme Court (SC), she convinced the honourable SC judges that the appointment and promotion of a civil servant does not fall within terms and conditions. Hence the issue pertaining to appointment of a civil servant and their promotion is to be dealt by the High Courts under Article 199 of the constitution, not by the service tribunal under Article 212 of the Constitution. Normally, the issue of terms and conditions with respect to a civil servant is adjudicated upon by the service tribunal under Article 212 of the constitution, but this case enunciated and laid down that when it comes to the appointment of a civil servant or his promotion, then such issues are to be dealt under the constitutional jurisdiction of High Courts under Article 199 of the Constitution. The case is reported as secretary establishment vs Aftab Ahmad Manika etc, 2015 SCMR 1006.

Asma not only raised her voice on the streets but also fought tough legal battles in the courtroom on behalf of the poor and destitute. In 1983, Safia, a 13-year-old visually-impaired girl, was raped and impregnated by her employers. During Zia’s repressive regime, she was charged with fornication and sentenced to flogging and three years in prison. Asma Jahangir had to endure hardships during the case but she defended Safia fearlessly, Safia was eventually acquitted by the court.

In 1993, eleven-year-old Salamat Masih was accused of writing blasphemous graffiti on the walls of a mosque and was convicted by a trial court. Despite receiving death threats during the appeal stage, Asma represented Salamat at the Lahore High Court and won the case by proving that the boy was illiterate and could, therefore, not have written the words.

In 2017, her law firm provided legal assistance in a case reported as Amin Masih vs Federation of Pakistan PLD 2017Lahore 610.I represented the petitioner’s case before the court that there is only one ground available for a Christian man to divorce his wife, and that is to impute the charge of adultery and then seek divorce before the court. It was argued by me that imputing the charge of adultery was below a woman’s dignity and there should be other grounds available as well since Christians should be treated in Pakistan as they are treated in any other country. Madam Asma and her sister provided legal assistance as amicus curiae before the court and submitted before the court that Pakistan is the only country where there is only one ground available for a Christian man to divorce his wife and that is to impute the charge of adultery, whereas in all other countries a Christian man and wife can part ways on just and reasonable grounds without imputing this specific charge. It was due to the assistance of Asma Jahangir and her sister Hina Jillani that Christian men seeking divorce no longer need to accuse their wives of adultery. It was a landmark judgement by Honourable Justice Syed Mansoor Ali Shah.

Lay persons know of her work in activism, but very few know of her credentials and expertise, which led to development in the jurisprudence of constitutional law. In my view, she became an effective human rights activist owing to her competence in constitutional law. Last but not least, she was hard working, honest and a true democrat. She understood the importance of being earnest. For young lawyers and women in Pakistan there are not many role models. Today it seems like the youth is too obsessed with earning money. In my view we should learn from the life and humanitarian work of Madam Asma and aspire to inspire like her.

The writer is a human rights activist and a constitutional lawyer, sheraz.zaka@gmail.com

Published in Daily Times, February 20^th 2018.