SHEHRI NEWSLETTER                                                  January - June 2005 Vol 15/ No. 1

A Historic Step Forward in Public Advocacy

The land contiguously in Deh Chuhar area of Karachi was identified to be designated for exclusive use of health and educational purposes and named as Education City. Prominent health and education related organizations of the country like the Sindh Institute of Urology and Transplantation, the Aga Khan University and Medical College Foundation, the Aga Khan University, Shaheed Zulfiqar Ali Bhutto Institute of Science and Technology, Sindh Madressatul-Islam Board’s for Quaid-e-Azam Public School, Newport Institute of Communication & Economics, Sir Syed University of Engineering & Technology, Shaukat Khanum Memorial Cancer Hospital & Research Centre and Ziauddin Medical University invested huge amount of their money and acquired large portion of the land in the said area. These organizations were at that time informed by the Chief Secretary, Government of Sindh and the Secretary Land Utilization Department, Government of Sindh that the said land earmarked for Education City would not be permitted to be used for any purpose other than the stated amenities of health or education. The Governor of Sindh, as well as City Nazim fully supported and promoted the idea of Education City and affirmed that collaboration between all stakeholders and City Government is very important.

 

OUR GLOBAL COMMITMENTS


Principle 2 of Stockholm Declaration, 1972 has been referred which reads as follows:-

"The natural resources of the earth, including the air, water, land, flora and fauna especially representative samples of natural eco-systems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate".

Such a public declaration was made by Governor of Sindh in the year 1999. In order to ensure the integrity of the Education City and to ensure that no one buys land in the Education City area under any mistake or misapprehension, the City District Government Karachi issued office order dated 17.2.2003 ordering that henceforth no transaction, regarding the Sale of the land, Renewal of the lease, Conversion, Exchange and Transfer shall be allowed in Deh Chuhar

In the meantime, Nestlé Milkpak Limited, that is the Pakistan chapter of the multinational Nestlé having a major and possibly an overwhelming majority share in the bottled water industry in Pakistan, in order to increase its profitability in its water business had elected to setup a water bottling plant close to Karachi City by tapping into and making free use of sub-soil water aquifer lying underneath the Education City area.

Nestlé Milkpak Limited subsequently acquired 20 acres of land in the Education City area, though such acquisition was legally defective. It had applied for and was allotted a comparatively small area of 20 acres of land in Na-class No. 108, Deh Chuhar for industrial/commercial purposes under Section 10(1) of the Colonization of Government Land Act, 1912, vide letter dated 25.10.2003 after bye-passing Industries Department.

A 99 years lease was granted out of Na-class No. 108. However, the said number was changed from Na-class No. 108 to Na - Class No. 106 and such corrigendum was issued illegally and unauthorizedly with malafide intentions by the Secretary, Land Utilization Department, Government of Sindh.

In fact this piece of 20 acres was carved out of the land measuring 300 acres out of Na-class No. 106 of Deh Chuhar already granted to Shaheed Zulfiqar Ali Bhutto Institute of Science and Technology.

The construction and setting-up of the plant was objected on various grounds in the High Court of Sindh including that it is in violation of Section 12 of Pakistan Environmental Protection Act, 1997 and free use of sub-soil water aquifer in huge quantity can cause serious prejudice to the availability of water for use of the organizations that had invested in the Education City and other institutions to be set-up in the area.

Exploitation of natural resources for financial gain by Nestlé Milkpak Limited by tapping into the aquifer through tube wells and draining out the same is environmentally degrading and non-sustainable use of a natural resources as by its own showing they were attracted to the area on account of availability of sub-soil aquifer and its commercial exploitation.

History made in the High Court of Sindh, Karachi
( Suit No. 567 of 2004)
The Plaintiffs

  • Sindh Institute of Urology & Transplantation

  • Agha Khan University and Medical College Foundation
  • The Agha Khan University
  • Shaheed Zulfiqar Ali Bhutto Institute of Science and Technology

(Represented by
Mr. Qazi Faez Isa Advocate)

The Defendants

  • Nestle Milkpak Limited

  • Province of Sindh (through the Chief Secretary Government of Sindh)
  • Secretary Land Utilization Department Government of Sindh
  • The Environmental Protection Agency
  • The Child District Government Karachi

(Represented by
M/s. Wasim Sajjad, Ali Wasim Sajjad and Arshad Tayebally, Advocates)

 

THE HISTORIC JUDGMENT!

 

By this order I propose to dispose of CMA No. 3717/2004 under Order XXXIX Rules 1 & 2 read with Section 151 CPC, filed on behalf of the plaintiffs praying therein that pending the disposal of the suit the defendant No. 1 (Nestlé Milkpak Limited) be restrained from raising any construction with a view to set-up and operate a bottled-water factory in Deh Chuhar area of Karachi, known as Education City as the same is contrary to educational and health use, for which such land can be used. The other application is CMA No. 5343/2004 filed on behalf of the defendant No. 1(Nestlé Milkpak Limited ) under Order XXXIX Rule 4 r/w. Section 151 CPC for vacation of stay order dated 24.5.2004 through which defendant No.1 (Nestlé Milkpak Limited ) has been restrained from initiating any commercial/ industrial activity including set-up of a bottling-plant in the area. In support of both these applications affidavits have been filed by the respective parties, which have been controverter through counter-affidavits and rejoinders. Since the out-come of both these applications shall be same, hence both are being disposed of by this single order.
 

S. Ali Aslam Jafri,
Judge, High Court of Sindh

 

The second objection was that Nestlé Milkpak Limited had not obtained requisite permission under the Canal and Drainage Act, 1873, inter-alia, under Section 16 and 20 thereof. It was further contended that Nestlé Milkpak Limited had started raising construction on the land without seeking prior approval of KBCA and the construction being illegal could be sealed and demolished under Section 7-A of the SBCO Ordinance.

The set-up of a factory in the area would prove to be a complete nuisance to the educational and health institutions as it will create traffic jams and accidents are bound to happen whereas good education and health require a quiet, peaceful and serene atmosphere. It would be a harbinger for other industrial units and factories and Education City would effectively be converted into another industrialized zone. The whole Education City area would become polluted, over crowded, dangerous and dirty area.

It was lastly urged that the institutions would not have made any investments in the Education City area if they knew that the land therein would be allowed to be put to industrial or commercial use.

It has therefore been prayed that it be declared that defendant No.1 have no right, title or interest in Na-Class No. 106, Deh Chuhar Karachi. A direction has been sought against Nestle Milkpak Limited to vacate possession of 20 acres of land in Na-Class No. 106 Deh Chuhar Karachi. Cancellation of such agreements dated 12.11.2003 and all other title documents was also prayed.

A further declaration has been sought that defendant Nestle Milkpak Limited cannot build, construct or setup an industrial unit or factory in Deh Chuhar area and should be restrained for doing so. Another declaration was also sought that the land in Education City area in Deh Chuhar Karachi can only be allotted for education and or health services in accordance with the statement of conditions and applicable law and rules.

Judgment from the High Court of Kerala ( India ) delivered by K. Balakrishnan Nair, J. in Writ Petition No. 3492 of 2003 (G) to show that petition filed by Perumatty Grama Panchayat against State of Kerala and Hindustan Coca-Cola Beverages Private Limited and others was allowed justifying the cancellation of the license of Coca-Cola Company in view of excessive exploitation of ground water by the said Company resulting in acute drinking water scarcity in Perumatty Panchayat and nearby places.

In a very detailed judgment after examining the point as to whether decision of the Panchayat that company should not be permitted to extract ground water was legal, it has been held as under:-

Ground water is a national wealth and it belongs to the entire society. It is a nectar, sustaining life on earth. Without water, the earth would be a desert. At present, there is no law governing the control or use of ground water, submits the learned Senior Counsel for the 2nd respondent. The Kerala Ground Water (Control and Regulation) Act, 2002 has not so far been enforced. Therefore, the Senior Counsel submits, the 2nd respondent is free to extract any amount of g round water, which is available underground in the land owned by it. As a good neighbor, it may have a moral obligation not to make excessive use of ground water, so as to affect the persons in the neighborhood, it is submitted. Legally there are no fetters on the right of the 2ndrespondent to extract ground water, it is pointed out. The Rule of law saves every action of the individual, which is not expressly prohibited by law, it is contended. Therefore, unfettered right is claimed to extract ground water.

A reference has also been made to an observation from the Supreme Court of India in the case of STATE OF TAMILNADU vs. HIND STONE (1981) (2) (SC 205) at page 212 which is reproduced as follows:-

Rivers, forests, minerals and such other resources constitute a nation’s natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation.

As a result of discussion made above, the court found that a prima facie case for grant of injunction has been made out in favour of the plaintiffs. Balance of convenience also appears to be in their favour because once the process of extracting the water in such a huge quantity is allowed to operate, each day, each hour, and each minute water deposits in the aquifer would diminish rapidly and shall adversely affect the rights of plaintiffs to use the underground water according to their genuine needs which shall amount to an irreparable loss to them.

Resultantly, CMANo. 3717/2004 was granted and the interim order dated 24.5.2004 as extended from time to time was confirmed till decision of this suit. In the meantime, the defendant No.1 (Nestlé Milkpak Limited) is restrained from initiating any commercial/ industrial activities, including setting up of a bottling plant in the area. Consequently, CMA No . 5343/2004 filed on behalf of defendant No.1 was dismissed.

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   Police Reforms - Issues and Concerns

The Police Order 2002 aims at making the police service oriented and accountable to public. Its purpose is to ensure that police is more efficient and respects human rights and dignity of the citizens during its operations.

Since promulgation of the Police Order 2002, the federal and provincial governments have made efforts to bring the local policing in Iine with the modern trends.

During the course of its implementation, stakeholders voiced their concerns about certain new arrangements under the Police Order 2002. Various amendments were thus made to the Police Order 2002 with a view to accommodating the genuine concerns expressed by the stakeholders.

On 25 November 2004 President gave assent to The Police Order (Amendment) Ordinance 2004 introducing changes aimed at facilitating implementation of the new police system. These amendments deal with fundamental principles of checks and balances, de-politicization, police account-ability and functioning. The revisions have already been agreed upon by the federal and provincial governments.

Some critical issues that need careful consideration are discussed below:

Role of the Provincial Police Officer (PPO) as ex officio secretary and the issues of autonomy and superintendence by the provincial government: In order to protect the police from political interference, the PPO has been made an ex officio secretary with total autonomy in operational, administrative and financial matters subject to policy, oversight and guidance given by the Chief Minister. Arguably, this provides for a conflict, whilst the PPO has total autonomy it is subject to the chief minister's policy, oversight and guidance. At what point will the chief minister's policy, oversight and guidance encroach upon the PPO's total autonomy?

For example, the PPO can only appoint a District Police Officer (PPO) with the approval of the provincial governments. 15(I), which seems a basic compromise on total autonomy. It is also unclear why it has been made obligatory for the Chief Minister to convey his policy guidance to the PPO through the Chief Secretary and the Home Department?

Transfers & promotions : For the appointment of PPO, the federal government and not the National Public Safety Commission will now recommend a panel of three officers to the provincial government. The PPO can only appoint a DPO with the approval of the provincial government. Compared to the pre-amendment provisions, how does the new change affect the attempts at depoliticizing of the police?

Is the enhanced role of Provincial Governments in police appointments


conducive to a professional, service oriented, modern police or is it part of an appropriate supervisory responsibility in line with the functions of the provincial government? What is the best mix.

Changing composition of public oversight: The Police Order 2002 envisaged equal representation of government and opposition MPAs in the provincial public safety commission. This formula has now been amended apparently to give increased representation to the ruling party's MPAs. The new amendments provide for the inclusion of three parliamentarians of a district in their respective DPSC, appointed by the government. Each DPSC would now include three MNAs or MPAs, three members of the district council and three independent members selected by a selection panel.

The number of respective provincial and national assemblies members, constituting one third of the DPSC membership, is not clearly laid out in the amended Police Order 2002. Has the inclusions of Parliamentarians politicized the public oversight and public grievance redress? Are there safeguards against it?

Are the revised structural changes in public oversight a step towards politicization of police or a move to make Police truly accountable? Whither the concept of making police a politically neutral institution?

Changed composition of selection panel at the Provincial level: Amendments have changed the composition of the provincial selection panel, which now excludes the chief justices of the high courts from sitting in the selection panels. The provincial selection panel now includes the provincial ombudsman, the chairman of the provincial public service commission and one member appointed by the Chief Minister.

Does this measure compromise the credibility of the selection committee or does it make it more efficient as the new members have an executive bent of mind? Arguably, this has resulted in a loss of independence for the selection panel, which is now much more closely associated with provincial government as all the three members are appointed by the provincial government.

Merging public oversight and public grievance redress: The provision for Police Complaint Authority (PCA) at the provincial level has been abolished. Its functions are now shifted to the Provincial and District Public Safety Commissions. This means that public oversight and public grievance redress for serious misconduct are now vested in a single entity having majority membership from the government side.

One may ask if the provincial and district public safety commissions have sufficient powers to provide for public oversight and grievance redress? What are the merits of merging the public oversight and public grievance redress functions?

Does it constitute an element of conflict of interest? In view of the enlarged public enlarged public oversight and public grievance redress mandate, has the safety commissions been provided with the powers formerly exercised by the PCA?

Relationship between District Nazim and the District Police: Given that the Nazim is responsible for functions relating to local law and order in the district ( Sec.18(c) Local Government Ordinance 2001) and under the amended PO 2002 (article 33), the Nazim will now initiate the annual Performance Evaluation Report (also known as ACR) of the District Police Chief. What are the problems and merits of exercising control through the PER and how do these compared with the new arrangements for evaluation of performance of Police?

Also, what are the implications of making the Chief Minister a final counter signing authority regarding the Annual Evaluation Report (AER) of DPO prepared by the Nazim? With the control over district police by the Chief Minister formalized and extended on a statutory basis for the first time, it is apprehended that conflicting influences will grow possibly leading to further undermine the working and functions of the Police.

General Control of SHO over the investigation: What are the merits of empowering the SHO to have a general control over the officer-in-charge of the investigation? Will this compromise the intended functional specialization behind the separation of watch - and - ward and investigation?

Devolving police to the local level: Given that the policing is a local function, it is unclear why police is not a devolved function? First, there is a need to address the conflict that emanates from the conflicting constitutional provisions and the clauses of the Local Government Ordinance as to whether or not policing is a local function? It also needs to be debated as to whether or not police performance should be subject to local government scrutiny.

It also needs to he discussed as to whether or not following a review of past professional performance and conduct of the police officials, their appointments should be ratified by a special resolution of the district/tehsil councils.

Also the issues relate to the cases of poor performance or misconduct and whether the district/tehsil councils should be empowered to initiate a special resolution for removal of police o fficers. There are other important issues demanding clarity and consensus as to whether the higher tiers of the police need to be focusing on the inspection and inter-district co-ordination functions?

Are these arrangements appropriate. And how does it fit with the DPSC oversight, which has national and provincial legislators as its member?

 

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    Human Rights within the Islamic Context

We have entered into the new millennium with a new vision, different hopes and expectations. Indeed, the new millennium is the millennium of human rights. In this millennium, the concepts and institutions are being reinterpreted, reviewed and are judged in the perspectives of human rights.

The new millennium shall not adjust the traditional concept of religion as popularly defined by encyclopedia Des Sciences, Des Arts et Des letters (Paris). By religion is understood the way in which man actualizes his relations with the super human and mysterious forces on which he believes to be dependant.

Every religion has provided his followers a list of rights and duties to each other. These rights and duties have been initially framed and interrupted in the culture and environment of its time. These rights need development with the change in time.

Now in the new millennium, a religion, which encompasses the beliefs corresponding and responding to the human rights or mankind, shall have the right to survive.

In this perspective, Islam (like any revealed religion) stands successful to the test and target of concept and expectations of the new millennium.

The background of sending the prophet to a society clearly shows that whenever and wherever the human rights of the people were being usurped and infringed, a prophet was sent to restore these rights.

It is to be noted that each prophet came with the basic belief/teaching of submission to one God ( Tauheed ). This belief manifests and ensures the basic human rights i.e. freedom of man from the slavery of other man. Islam does not compromise on this human right (Shirk) by saying Allah does not forgive Shirk with him.

The Prophet Muhammad (Peace be upon Him) came at a time when the society was full of human rights violations like,

 < Female infanticide and tribal wars,
     which led to thousands of deaths.

< Dignity of the man and specially of
     the women were violated by taking
     them as slaves and through
     molestation.

<  Women's rights to property and to
     choice of life partner (Freedom of
     Association ) were aggressively
     denied by the society.

< The people had become used to
     intoxication, gambling and theft
     (right of property)

The Holy Prophet lodged the movement of Islam and fought against the violations of human rights very comprehensively.

He advocated Tauheed (Unity of Allah) and curbed slavery of man by another man. He promoted the right to life/survival by enforcing Qisas (retaliation) in the society, he barred female infanticide, gambling and intoxication. He gave property rights and choice of marriage to the women, a right strange to that society. He advanced equality of mankind and restored dignity of human being by prohibiting accusation, calling names, blaming or abuse etc.

In His last sermon, the Holy Prophet summarized his teachings in terms of human rights like equality of mankind, eradication of prejudices, protection of life protection of rights of women and slaves, protection of property rights etc.

Every Prophet came to revive and rebuild the society upon the foundations of Islam, hence he testified what was revealed to the Prophets before him, No Prophet came to repeat but he came to testify. Quran says:-

He > (Allah) has revealed to you the Book with the truth confirming what preceded it and He has already revealed the Torah (Old Testament) and the Gospel for the guidance of the people and for the distinction between right and wrong. (3/3-4)

Now in the light of above perspective, we study the main Human Rights provisions in Islam, These are:

Equality of Mankind
This is the basic human right, which means that everybody is equal by creation and enjoys equal status and equal treatment in the society as a human being. Hence there can be no discrimination on the basis of race, region or any other factor, which is beyond the control of a man, This principle is also referred as Non - Discrimination, It also means that everybody is accountable before law. Quran says: O' Men, we have created you from a male and a female and made you into nations and tribes that you might get to identify one another. The noblest of you in Allah's view is the most righteous of you. Allah is wise and All knowing. (49/013)

The Holy Prophet had clearly narrated the principle is his last sermon by saying, There is no preference or superiority of Arab over non Arab and of non Arab over Arab, of white over black and of black over white except on the basis of Taqwa or good conduct.

This principle of equality and accountability of every person before law is so vehemently manifested in the conduct of Allah (Sunnatullah) that even the Prophets have not been given exemption to this rule. e.g.

< Hazrat Adam and Hazrat Eve violated the law of prohibition go near to a tree. They were made accountable before law and as a consequence they were made out of paradise.

< Hazrat Noah prayed for the salvage of his law-violator son, but the prayer of the Prophet was not accepted and his son was drowned with other law-violators.

< The last Holy Prophet (Peace be upon Him) who was so near and dear to Allah that Allah changed Qibla from Baitul Muqaddas to Kaaba on his desire, but so far as the equality before law is concerned, even this dear and last Holy Prophet (Peace be upon Him) was not given exemption. The evidence is drawn when the Prophet asked for the forgiveness of his few relatives or friends who died on infidelity (kufr), but they were not forgiven as it would have been the violation of general principle of equality before law, Quran Quotes, (It is the same) whether or not you ask for forgiveness for them, If you ask for their forgiveness for sev - enty times. Allah will not forgive them, for they have 'denied Allah and His Apostle. Allah does not guide the evil-doers (9/80).

Dignity of Mankind:

Dignity is the distinctive feature of mankind. Every act which adversely affects the dignity of man has been strongly condemned and been seriously prohibited in Islam. Quran Says:

And we have bestowed dignity upon the mankind. (17:70)

Some acts, which are prohibited in Islam being against the dignity of the mankind, are referred from Quran as follows:

a) Mocking: "O' believers! Let no group mock another group, who may perhaps be better than it (the mocker). Let no women mock another women, who may per - haps be better than herself. (49/11)

b) Defamation: Do not defame one another. (49/11)

c) Calling by nickname. "And do not call one another by nickname". (49/11)

d) Backbiting: "Do not backbite one another". (49/11)

Similarly abusing, slapping on face, humiliating the dead bodies even of enemies and even in war are strictly and seriously been prohibited in Islam. In Islam, Qazf (accusation for adultery) is a heinous crime and has been dealt strictly in law. Qazf attacks the dignity of a woman.

Freedom of Association:

The third and socially very important human right of a human being is his right of association. It means that a person is free to associate with a party of his choice, a person of his choice and also to contract marriage with a spouse of his/her choice. This comprehensive right includes many rights like; Freedom of a person to

a) join a political party.
b) To adopt and change a religion.
c) To marry with the person of his/her
    choice.
d) To have the membership of a group
    of his choice.

In Islam there is no requirement or formalities of Nikah Khuwan, (priestor theocrat who solemnizes marriage) of place or of approval of any person other than the contracting parties i.e. the spouses. A Nikah (marriage) is effected by the offer and acceptance of the parties before the two witnesses (adult, sane man and woman not seized with legal pediments). Even the presence of witnesses is not the basic the element of Nikah . To some Jurists, the presence of witnesses is not a condition for the validity of Nikah . It is after that undistorted freedom of choice of the marriage and right to disassociate (divorce) or get divorced (if the hatred is developed for each of other) that Islam has prescribed severe punishment for Adultery. But in our society, the parents and brothers of the girls have usurped this right. In majority of the cases, the parents/brothers of the young adult girls solemnize the marriage of daughter/sister against her consent. Hence in such cases the parents are guilty of forcing their daughters, for adultery before hundreds of people followed by delicious food festival. In strict Islamic conception, no Jurist can justify such marriage and no term can be attributed to it except the term marital rape. So if as a result of such marital rape ceremony, a girl absconds and goes away with her paramour, she has right to do it and this absconded and living with a person of her choice as wife is really and clearly Nikah while the coercion of her parents upon her to live with a person against her choice is Zina and in such cases the parents must be inflicted Hadd punishment of forcing for rape or Zina. Her abscondence with a person of her choice as wife is clearly a migration in the way of Allah (Hijrah).

Freedom of Expression:

This right means that everybody has the right to express his option/view in matter, which concerns him. In political environment, he has the right of vote and of criticizing the conduct and act of the political persons and that of the government. Islam accepts this right to the extent that even the Holy Prophet (Peace be upon Him) was directed to get consultation in the matters of state in which the revelation was not revealed. Quran says;

 

a) They (pious people) conduct their
    affairs by mutual consultation. (42: 38)
b) And involve their consultation in the
    affairs. (03: 159)

The Holy Prophet (Peace be upon him) and the caliphs used to hold consultation. For example consultation in the matter of prisoners of Badr War and consultation for the third Juma call etc.

Rights of presumption of Innocence:

In Islam, it is the right of every person that he should be presumed innocent until he is proved guilty by evidence on record. This basic presumption is elaborated in a famous Islamic legal maxim.

The basic assumption is freedom of indebtedness. This is more elaborated by the saying of the Holy Prophet (Peace be upon Him) when he said: Everybody is born in good nature, Islam has no concept of sin by birth or the inheritance or sin from Adam and Eve. Nobody carries the sin arbitrarily of others. Quran says: Each person is responsible for his own conduct, and nobody shall bear the burden of other body.

Right of Defence:

Consequent to the right of presumption or innocence, there emerges another basic right of a man i.e. his right of defence to any allegation against him. This principle is embodied in the famous English legal maxim.

Audi Altrem Partem

Nobody should be condemned unheard Islam is the pioneer and promoter of this principle. Even the Satan was given the right of defence before he was condemned.

Allah asked Satan:
What made you prostrate not to Adam when I commanded you? (Quran: 7/12)

In furtherance of this principle, in the hereafter before sending them to the hell. the culprits shall be confronted with the evidence of their tongues, legs and hands against them.

There shall be a woeful punishment on the day when their own tongues, hands and feet will testify to what they did. (Quran : 24 : 24)

Rights for Security of life:

This right has been admitted in all civilized societies in all revealed religions. Attacking the other person to cause injury or death is a serious offence and punishment of relations has been prescribed to protect the right to life, Quran says:

a) And (in Torah/ old testament) we decreed for them a life for life, an eye for eye, a nose for a nose, an ear for an ear, a tooth for a tooth and for wounds is relation. (5 : 45)

b) That was why we laid down for the children of Israel that whoever killed a human being, except in retaliation or in sedition in the earth, should be deemed as through he had killed all mankind. (5 : 32)

The Right to Property:

It means every person has right to hold or dispose of property, which he has earned or secured through legal means. In Islam Quran admits this right: Do not devour one another property through unfair means. (2 : 188)

Moreover theft has been viewed as serious crime and a severe punishment of amputation of hand has been prescribed for the thief: as he does not respect the right or people to their property. Quran says: As for the thief wheather man or woman, cut their hands to punish them for their deed. (5 : 38)

The Rights to Privacy:

Islam gives an additional right to the mankind, which is not normally accepted by other societies, and that is the right to enjoy privacy.

It means a person's privacy shall not be disturbed or encroached upon. Quran says:

(I) O' Believers! Do not enter the house of others until you get per - mission and then wish them peace. (24 : 27)

(II) O' Believers! avoid most of suspicion, for in some cases suspicion is sin. And do not spy (on one another), nor backbite one another. (49 : 12)

Allama Shatabia famous Muslim Jurist is of the view that all the Ahkam/injunction of Islam are directed to achieve the following ultimate goals which he terms as Ii Masalih Khams or Five Goods. These are:

a) Protection of the life.
b) Protection of property.
c) Protection of lineage /dissent.
d) Protection of dignity
e) Protection of senses

In fact these protections are the protections of the human rights as universally identified by all civilized nations.

ii) In Quranic terminology, the suspension or violation of Human Rights in a society is term as Fitna and severe action extending to Jihad has been commanded to curb Fitna and for restoration of human rights.


Excerpts from a paper by Dr. Aslam Khaki who is Advocate Supreme Court of Pakistan and Jurisconsult Federal Shariat Court, Islamabad.

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   The Lahore Charter - A National Policy for Heritage Conservation

As efforts are being made to draft a national policy for heritage conservation in Pakistan, the Editorial Team of the Journal of Research in Architecture and Planning, NED Engineering

University, bring to light the forgotten text of the Lahore Charter that can serve as a national policy for heritage conservation in Pakistan.

Recently there has been a growing urge to develop a National Policy for Heritage Conservation in Pakistan. Local organizations in collaboration with the international community, primarily UNESCO, are struggling to formulate a national level policy in Pakistan to ensure safeguarding of heritage properties within Pakistan. The impression that one gets from these events and what is reported in the press, is that no effort has ever been made to develop a national level charter or policy for heritage conservation in Pakistan. The editorial team while working on this issue of Conservation and Cultural Heritage, however, stumbled into a document that has been lying in the files of the Archaeology Department for the past fifteen years; unexplored, unnoticed and almost forgotten. This is the National Charter for the Conservation and Preservation of Cultural Property, Lahore 1989, also known as the Lahore Charter.

The creation and origin of this document dates back to 1989 when a farsighted effort was made by the then Director General of Archaeology Department to initiate and establish a training institute for conservation professionals. This institute named as the Pakistan Institute of Archaeological Training and Research, was to offer different short courses to professionals involved with historic buildings and cultural property. Among the courses planned for this institution one was on Advanced Training in Conservation of Cultural Property, the first session of which was offered in September/December 1989 when the world renowned, Sir Bernard Feilden came to Lahore for delivering lectures to the participants. The Lahore Charter was developed during this course and its draft was put forward at the end of the course for approval and acceptance at a national level. Unfortunately the efforts for its approval by government were not pursued and it never became known and accepted as the official charter of conservation for Pakistan.

A brief review of the Lahore Charter reflects on the fact that it is quite a comprehensive document that covers a wide range of aspects essential for heritage conservation; starting from definitions, to physical and material interventions and ending at awareness building and education cum training, of and education cum training, of professionals in this field. This paper, however, does not attempt at doing a detailed analysis on the potentials and/ or shortcomings of the charter. The only purpose is to bring this document in the knowledge of the professionals, so that it can be taken up as a starting point to initiate a debate and discussion at any forum that is striving to develop a national level conservation policy for Pakistan.

 (DRAFT) NATIONAL CHARTER FOR THE CONSERVATION AND PRESERVATION OF CULTURAL PROPERTY (LAHORE 1989)

1.0 Preamble

1.1 Pakistan with its specific geographical and social background has a history of cultural evolution and problems of its own. Accordingly, having regard to the International Charter for the Conservation and Restoration of Monuments and Sales (Venice 1966) and the Resolution of 5t General Assembly of ICOMOS (1978), the following charter is proposed to be adopted for Pakistan.

2.0 Objective

2.1 The cultural heritage that exists today in physical form and in historical records, is the common heritage of us all, giving us an awareness of our common history and common future, as well as being an essential part of our heritage. We are responsible for its preservation and continuation for the benefit of our present as well as future generations. This responsibility is to be shared jointly and scrupulously by the society so that its continuity is ensured in the full richness of its authenticity for the times to come.

3.0 Definitions
For the purpose of this Charter:

3.1 Cultural Property : Means historical monuments, buildings, groups of buildings or areas, historical gardens, archaeological sites and structural remains, and their traditional environmental settings, works of art and science & technology or any part or portion thereof. Histori4i areas in urban or rural settings containing vernacular architecture forming a physical environment of exceptional quality also form part of cultural property.

3.2 Conservation : Means all processes to ensure retaining the particular value(s) of a cultural property. It includes interventions normally referred to as maintenance, rehabilitation, revitalization, relocation for adaptive or extended use, retrieval and recycling.

3.3 Preservation : Means maintaining the existing state of cultural property and retarding its deterioration, including relocation for preserving.

3.4 Restoration: Means returning the existing fabric of the cultural property to a known earlier state by removing accretions or by reassembling existing components with or without introduction of new materials.

4.0 National Policy

4.1 The conservation and preservation of cultural property be carried out under a uniform national conservation policy. This policy be formulated to outline priorities for categorization of cultural property at the three levels i.e. national, regional & local levels, and in interventions required thereto. Under this national policy the functions of concerned national organizations be coordinated and cooperation extended to international agencies entrusted with conservation of cultural heritage. .

4.2 A body of noted professionals from all related disciplines and intelligentsia be formed to formulate, update and monitor the national conservation policy.

4.3 As a matter of policy, efforts be made to bring cultural property moved out of country back to its place or setting of origin.

5.0 Guiding Principles

5.1 The aim of conservation is to retain or recover the value of cultural property and to ensure its future by security and maintenance.

5.2 Effective measures be taken to make public aware of the need and value of conservation and preservation of cultural heritage, and to promote participation from all spheres of the society.

5.3 Interventions for conservation and preservation be timely and aimed as minimum necessary. These interventions should be reversible and not prejudice future interventions, if technically possible. These should also be harmonious with original material and setting and should in no way attempt to alter authenticity of the cultural property.

5.4 Items of cultural value which form an integral part of a monument of site may only be removed from it if this is the sole means of ensuring their preservation.

5.5 The process of restoration must aim to preserve and enhance the aesthetic and historic value of the monument. It must stop at point where conjecture begins, and all interventions must be distinct and carry a contemporary stamp.

5.6 Conservation activity be recognized as separate from normal building activity. It be made distinct part of national, regional and local planning policy, be provided with special non-Iapsable funds; and be carried out by trained and experienced professionals and craftsmen. Economic and social incentives are required to ensure survival of traditional building crafts which are necessary for conservation of historic buildings.

5.7 Traditional urban environment identified as cultural property be protected from transformation of its character through economic and social pressures present with in and outside of the historic precincts. Area rehabilitation and change of use be directed towards being compatible with traditionally existing pattern and strengthening the local conservation policy.

5.8 Public be made an active partner in the conservation effort. Cultural property, whether in public or private ownership be promoted as national asset. Society should share to discourage illicit activities in clandestine excavation operations and trade of cultural significance be made a taboo. Involvement of local concerned public groups is a must for protection and preservation of cultural heritage. Private donors must also be encouraged to participate in funding of conservation efforts.

5.9 Living religious movements form a substantial portion of our cultural heritage. Traditional waqf system be channelized to contribute in conservation effort. All interventions to bring religious monuments be in harmony with their use, sympathetic to the faithful, allow future interventions and should not alter or destroy physical historical evidence.

5.10 Efforts must be made to fully document all cultural property. All interventions must be scientifically documented before, during and after carrying out and should aim at preserving historical and archaeological evidence.

THE LAHORE CHARTER

The Lahore Charter was written by members of the multi-disciplinary conservation course organised by Dr. Ahmed Nabi Khan of the Pakistan Department of Archaeology and Museums. The course of three months was run by Sir Bernard Feilden in the Pakistan Institute of Archaeological Training and Research, established in 1989 in Lahore Fort. The students having studied the Venice Charter and Australian Burra Charter, ended the course by drafting the Lahore Charter.

 

5.11 As an essential pre-requisite to conservation, the existing legal framework should be re-examined with a view to strengthening it as necessary. The planning boundaries of protected buildings, sites or areas should extend sufficiently into their surroundings to have an effective control over their immediate environs for their preservation.

5.12 Additions to or improvement and upgrading of services and facilities for cultural heritage monuments and areas should only be permitted if dictates of their architectural, aesthetic and environmental significance are strictly and scrupulously obeyed.

5.13 Wherever possible, efforts be made to make preventive measures effective against natural disasters for preservation of cultural property. In no case desire for reconstruction after a nature or man caused disaster should result in pulling down of remains of cultural property. Salvage must be the first recourse considered after such disasters.

5.14 Archaeological sites are amongst the richest of our national cultural assets, yet have remained the least studied. Archaeological digs should be encouraged to increase our wealth of knowledge on past cultures of the area. Local resources & expertise are available and willing, and must be harnessed for the purpose. Rapid urbanization makes it all the more urgent to work on excavation on known & unknown historical sites around urban centers before valuable evidence is lost or covered up for ever.

 5.15 It is recognized that cultural heritage encourages tourist activity. The policy for promotion of tourism should not be in conflict with the conservation policy and effort. It is rapid urbanization that makes it all the more urgent to work on excavation on known & unknown historical sites around urban centers before valuable evidence is lost or covered up for ever.

6.0 Promotional Activities

6.1 The cultural heritage will only survive if its value is understood and appreciated by the people and in particular by the younger generation. A positive will to preserve our cultural heritage is emerging and need to be promoted.

6.2 Promotion of conservation education is to be encouraged through academic institutions, as well as through publication and mass media. Special programmes meetings, exhibitions and seminars etc. aimed to arouse public awareness and interest are also useful. Scientific publication and documentation be properly prepared and made available to public through archival records.

6.3 Improvement of presentation at sites and museums to enhance understanding of their cultural significance will help for publicizing the cultural heritage and encouraging public involvement in their conservation.

 

Courtesy: Journal of Research in Architecture & Planning Volume III, 2004-NED Engineering University

also Inside
4 Shehri AGM
4 Human Rights
4 Illegal Constructions
4 Shehri Awarded
4 Turtle Conservation

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