Thursday, March 20, 2014

Why The USA Founding Fathers Made A Senate, Pakistan?

To protect the rights of a minority in democracy, to ensure that majority rule did not oppress the minority, to ensure that tyranny did not damage the spirit of democratic dispensation by upheavel and changes due to populism ,the founding fathers of USA made a document in the constitution. In order to counter the Fascist tendencies  a majority rule begets, the Senate was created by the founding fathers. If we copy democratic rule also we have to see this document and understand the spirit behind such a system of government. In Pakistan it seems we have chosen the system but tend to forget the spirit because somehow it has been thrust on the people with little knowledge or practice of egalitarian justice.A website delancyplace quotes from a book and this document is so handy to ponder upon and compare our senate and democratic parliaments role and duties. ,

"People often lament the difficulty of enacting new legislation or changing existing legislation -- and there are often calls for congressional reform. But the framers of the U.S. Constitution very specifically designed the process to make it hard for change to be enacted, especially when "the emotions of men in the mass ran high and fast." The component of the government designed to impede and stifle legislation was the Senate:
"The Framers ... feared not only the people's rulers but the people themselves, the people in their numbers, the people in their passions, what the Founding Father Edmund Randolph called 'the turbulence and follies of democracy.'
"The Framers of the Constitution feared the people's power because they were, many of them, members of what in America constituted an aristocracy, an aristocracy of the educated, the well-born, and the well-to-do, and they mistrusted those who were not educated or well-born or well-to-do. More specifically, they feared the people's power because, possessing, and esteeming, property, they wanted the rights of property protected against those who did not possess it. In the notes he made for a speech in the Constitutional Convention, James Madison wrote of the 'real or supposed difference of interests' between 'the rich and poor' -- 'those who will labor under all the hardships of life, and secretly sigh for a more equal distribution of its blessings' -- and of the fact that over the ages to come the latter would come to outnumber the former. 'According to the equal laws of suffrage, the power will slide into the hands of the latter,' he noted. ... But the Framers feared the people's power also because they hated tyranny, and they knew there could be a tyranny of the people as well as the tyranny of a King, particularly in a system designed so that, in many ways, the majority ruled. 'Liberty may be endangered by the abuses of liberty as well as by the abuses of power,' Madison wrote. These abuses were more likely because the emotions of men in the mass ran high and fast, they were 'liable to err ... from fickleness and passion,' and 'the major interest might under sudden impulses be tempted to commit injustice on the minority.'
"So the Framers wanted to check and restrain not only the people's rulers, but the people; they wanted to erect what Madison called 'a necessary fence' against the majority will. To create such a fence, they decided that the Congress would have not one house but two, and that while the lower house would be designed to reflect the popular will, that would not be the purpose of the upper house. How, Madison asked, is 'the future danger' -- the danger of 'a leveling spirit' -- 'to be guarded against on republican principles? How is the danger in all cases of interested coalitions to oppress the minority to be guarded against? Among other means by the establishment of a body in the government sufficiently respectable for its wisdom and virtue, to aid on such emergencies, the preponderance of justice by throwing its weight into that scale.' This body, Madison said, was to be the Senate. Summarizing in the Constitutional Convention the ends that would be served by this proposed upper house of Congress, Madison said they were 'first to protect the people against their rulers; secondly to protect the people against the transient impressions into which they themselves might be led.'
"'The use of the Senate,' Madison said, 'is to consist in its proceeding with more coolness, with more system, and with more wisdom, than the popular branch.' It should, he said, be 'an anchor against popular fluctuations.' He drew for parallels on classical history, which, he said, 'informs us of no long-lived republic which had not a Senate.' In two of the three 'long-lived' republics of antiquity, Sparta and Rome, and probably in the third -- Carthage (about whose governmental institutions less was known) -- senators served for life. 'These examples ... when compared with the fugitive and turbulent existence of other ancient republics, [are] very instructive proofs of the necessity of some institution that will blend stability with liberty.' Thomas Jefferson had been in Paris during the Convention, serving as minister to France. When he returned, he asked George Washington over breakfast why the President had agreed to a two-house Congress. According to a story that may be apocryphal, Washington replied with his own question: 'Why did you pour your tea into that saucer?' And when Jefferson answered, 'To cool it,' Washington said, 'Just so. We pour House legislation into the senatorial saucer to cool it.' The resolution providing for a two-house Congress was agreed to by the Constitutional Convention with almost no debate or dissent.
Second floor Senate chambers in Congress Hall used 1790 thru 1800
"And to ensure that the Senate could protect the people against themselves, the Framers armored the Senate against the people. ... Each state, the Framers decided, would be represented by only two senators; the first Senate of the United States consisted of just twenty-six men. Another was the method by which senators would be elected. When one of the Framers, James Wilson of Pennsylvania, suggested that they be elected by the people, not a single member of the Convention rose to support him. 'The people should have as little to do as may be about the government,' Roger Sherman declared. 'They lack information and are constantly liable to be misled.' After Elbridge Gerry said that 'The evils we experience flow from an excess of democracy,'the Framers took steps to guard against such an excess. There would, they decided, be a 'filtration' or 'refinement' of the people's will before it reached the Senate: senators would be elected not by the people but by the legislatures of their respective states -- a drastic filtration since in 1787 the franchise was so narrow that the legislatures themselves were elected by only a small percentage of the citizenry.
"Senators would also be armored against the popular will by the length of their terms, the Framers decided. Frequent elections mean frequent changes in the membership of a body, and, Madison said, from a 'change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success.' What good is the rule of law if 'no man . . . can guess what the [law] will be tomorrow?' Guarding against 'mutable policy,' he pointed out, requires 'the necessity of some stable institution in the government.' Edmund Randolph, as usual, was more blunt. 'The object of this second branch is to control the democratic branch,' he said. 'If it not be a firm body, the other branch being more numerous and coming immediately from the people, will overwhelm it.' Senators, he said, should "hold their offices for a term sufficient to insure their independency.' The term sufficient, the Framers decided, would be six years. Senators would hold office three times as long as the members of the 'democratic branch.' They would hold office longer than the President held office. And around the Senate as a whole there would be an additional, even stronger, layer of armor. Elections for senators would be held every two years, but only for a third of the senators. The other two-thirds would not be required to submit their record to the voters (or, to be more accurate, to their legislatures) at that time. This last piece of armor made the Senate a 'stable institution' indeed."

The rejection of the DOMESTIC VIOLENCE BILL by the senate in Pakistan can be understood after reading these excerpts from the book by Robert A. CaroThe Years of Lyndon Johnson: Master of the Senate.

The rejection of this bill occurred because the senator from JUI-F vetoed it. The people of Pakistan want that domestic violence should be finished and a peaceful societal environment should be established. The JUI-F is a party which expresses a certain mindset in religious Khyber Pakhtunkhawa society. It is not a mindset of the other Pathans in the region. It seems that the party is not in times with the human rights issues and its democrats and senators represent only a narrow view and are unable to implement progressive reforms in the spirit of justice and egalitarianism (called Musawat in Islamic social justice) . Their point of view being very retrogressive interpretation of Islamic edicts has truly damaged the spirit of democracy and even the social justice as conceptualized in Islam.By this example it  appears that the practice of democracy in Pakistan is fraught with problems and the path towards an egaliatrian dispensation of justice and a peaceful society is a rocky one. People in Pakistan are afraid to debate on the issues of Islamic justice and have left it to very narrow minded maulvis and religious leaders. The door to re-interpretation of these edicts in line with contemporary issues also known as Ijtehad  has been kept shut. The use of violence against the citizen as means of imposing one's iron will and retrogressive mindset and narrow interpretation has created major hurdles in the practice of democracy in Pakistan.

It is time that the citizen of Pakistan understand that in order to express his/her will there is an essential expectation , that of the practice of democracy in it's true spirit, that is of egalitrian justice. This will only come if all citizens will be considered equal in the eyes of the law. And such laws are passed to make this come true.We will have to elect all our representatives very carefully. Only reciting certain verses is not enough, we have to act on them true for humanity and peace. That is what Islam stands for.

Wednesday, March 19, 2014

Recent Issues In Rape Cases & Child Rights In Pakistan.

An Interactive article by Dr Meher Zaidi

Pakistan's media is now reporting rape, gang  rape cases more frequently. This is a good effort to bring such damaging social issues to the fore and make public and government aware of these  crimes against humanity.
The real benefit of such reporting will only occur if the judiciary and lawgivers realize that the latest methods of collection of evidence, making dedicated , safe rape reporting centers in hospitals with one window operation, streamlining police action with judicial action in favor of the rape survivor is done finally.
These issues can be discussed in the light of three cases and news making headlines in the last one week only.

The Muzaffargarh rape case where a woman  burnt herself in protest is the case in point for collection of evidence as a procedure to be essentially done by the law enforcement agency under routine law to protect the right of the survivor and the citizen by the state.The streamlining of this aspect for providing justice is the responsibility of both the law makers and the judiciary.This is highlighted by the fact that now the Supreme court bench is stuck against a wall as there was no medico-legal examination done and the victim burnt herself to death as a protest against the police who let go the rapist free on its own will.The minister for interior Punjab also said in a statement that rape had not occurred. He had no basis to say this except that the local police reported this.This was not based on medico-legal evidence which is essential to provide justice.This case should now be taken as a case for making collection of medico-legal evidence an essential action by the state for prosecution.
The next step should be make one window rape centers for collection of evidence and police reporting in major hospitals of the country.The rape evidence collection forms as submitted by War Against Rape should replace the old forms as the old ones are incomplete and do not fulfill the requirement for justice.The permission of DNA evidence as part of the evidence should be mandatory new law by the law givers and the present Supreme court judiciary who should be proactive in making opinion for this as the above case has shown that not collecting evidence denies justice to the victim and survivor both.The victim's death  proves that DNA evidence is necessary for providing justice. This has nothing to do with Shariah and Maulana Sheerani's personal point of view itself is un- Islamic and non-Shariat. The Council of Isl amic Ideology should be abolished as it has no institutional opinion and has run its retrogressive role as envisaged by a martial law government to further its aims and tendencies.
Collection of evidence should be a scientific procedure, non-biased and performed by officers and doctors trained and sensitive to the victim/survivor's needs.
The importance of DNA testing also is evident from the fact that rape is a complex crime and providing justice is solely proving that it has occurred. Even if Islamic/Shariat courts are a part of judicial system this DNA collection  will be a facilitator in providing justice.
If the victim has died it does not mean that justice should not be the aim of the Supreme Court of Pakistan.

A five year old girl is also raped and she cannot provide evidence as a child who is physically assaulted is under severe psychological trauma. To provide such a case justice again DNA evidence.and collection of evidence by a trained team is essential.As most of the survivors/victims are poor it should be tried by anti- terrorist court with special prosecutor for such cases.This will speed up the process.

A case of a young girl given in Swara by panchayat in Muhammadpur, Chiniot,where she was given in forced Nikah twice by the perpetrators, gang raped, and the tied to tree naked in full view of the village is another strong case for the jurors as it spreads fear in society and makes the state look weak. Such cases should be tried in anti-terrorist court for speedy justice.
As Mukhtaran Mai emphasizes that such case are not registered and many a victims killed as a recent case of two sisters in Tehsil Jatoi in Punjab near to where Mai resides and where her case occurred, it is essential to make justice available at all levels by streamline procedures.

The other major issue of child rights is the recent statement by Maulana Sheerani, the chief ofCouncil of Islamic Ideology  to  allow child marriages and remove the law prohibiting child marriages.Universal declaration of child rights specifically forbids child marriages. Pakistan has signed all conventions and is under obligation to protect children.In universal declaration 18 years is the age limit for definition of a child. It has also been scientifically proven that the best age for having a child in females is 24 years. It is optimal for health of a woman also..As sexual education is not allowed in Pakistan schools, child marriage will only worsen the situation.Legitimizing child sexual assault by naming it marriage and also legitimizing in the name of religion is serious violation of child right.