Aspire To Inspire
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 straightforward, such a lawyer is mainly remembered as an agitator rather than intelligent. Madam understood such intricacies as she was a sharp woman. She knew that in our society, it does not matter who you really are but the only thing that 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 straightforward woman, as well as an ambitious lawyer. She is a leading woman in our legal fraternity who has made a name for herself in advocacy, dealing mainly with constitutional litigation matters.
I recently read 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 Licence issued by PEMRA. The petitioner wanted to apply for a Direct To Home (DTH) licence, which essentially is a distribution service within the electronic media. Through the impugned Rules and DTH Regulations, PEMRA has prohibited broadcast media licence holders from operating distribution service licenses, which includes the DTH license. It was due to 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 was declared unreasonable, discriminatory and beyond the scope of Section 23 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 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 licences, it would result in nurturing of 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 and would rather lead to efficiency, transparency and promotion of open competition principles towards the bidding of DTH licences.
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 the Competition Act 2010 or studying European law’s Article 101 and Article 102 of the Treaty on the Functioning of the European Union (TFEU) would be able to understand such complex subjects where economics and law would be 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 in consideration 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 also decided that the principle of reciprocity might be a consideration in foreign policy but had no sanctity in law. The case is reported as PLD 2017 Lahore 709 (Leo communications Limited vs. Federation of Pakistan).
Very few people know that she was one of those few capable lawyers who knew 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 did not fall within the stipulated terms and conditions. Hence, issues pertaining to the appointment of civil servants and their promotion are to be dealt by the High Courts under Article 199 of the Constitution and 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 came to the appointment of a civil servant or his or her promotion, such issues were 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.
Madam Jahangir not only raised her voice on the streets but also fought tough legal battles in the courtroom on behalf of the poor and the destitute. In 1983, Safia, a 13-year-old visually-impaired girl, was raped and impregnated by her employers. During Zia ul Haq’s repressive regime, she was charged with fornication and sentenced to flogging and three years in prison. Asma Jahangir had to endure many hardships during the case but she defended Safia fearlessly. Safia was eventually acquitted by the court.
In 1993, 11-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, Madam represented Salamat 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 arguing that there was only one unfair ground available for a Christian man to divorce his wife, and that was to impute the charge of adultery. I was able to argue that imputing the charge of adultery was against the dignity of the spouses and that other grounds must have been made available as well. Moreover, Christians should be treated in Pakistan in the same way as they are treated in other countries. Madam Asma and her sister provided legal assistance as amicus curiae before the court and submitted before the court that Pakistan was the only country where there was only one ground available for a Christian man to divorce his wife, whereas in all other countries a Christian husband and wife could part ways on just and reasonable grounds without imputing the specific charge of adultery. It is 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 judgment given by the honourable Justice Syed Mansoor Ali Shah.
Many people are aware of Asma Jahangir’s work in activism, but very few know of her credentials and expertise which led to the development of jurisprudence in Constitutional Law. In my view, she became an effective human rights activist owing to her competence in Constitutional Law. Moreover, 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.
An earlier version of this article appeared in Daily Times. Republished here with permission.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.
Very well written Sir. No doubt as Madam Asma Jahangir worked, no one can dare to do it. She was a courageous woman. Her struggle for human rights will be remembered for ever. But the space she left, its difficult to fill, as she was one and only of her kind.
Jawaria A Kashif Advocate