Bruce Chakanyuka, Nyasha James Nyamugure and Dennis Tatenda Chadya want to practise law in SA.
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- Three Zimbabwean-born law graduates, who have fully qualified in South Africa, are challenging a rule that prevents them from practising law in SA.
- According to the Legal Practice Act, only permanent residents and citizens may be admitted to the profession.
- The Scalabrini Centre is opposing the Legal Practice Council’s stance, stating that its submissions to the court are “premised on the most vulgar of stereotypes and are simply xenophobic”.
- The Legal Practice Council states that it does not believe the relevant section of the Act is unconstitutional.
- A Department of Justice representative has also argued that the legal profession is not a rare or critical skill and that many South African citizens struggle to get work.
South Africa’s Legal Practice Council (LPC) and the Minister of Justice are opposing a court bid by three Zimbabwean-born graduates to change legislation which bars them from practising law in South Africa.
Bruce Chakanyuka, Nyasha James Nyamugure and Dennis Tatenda Chadya, with the assistance of the Asylum Seeker Refugee and Migrant Coalition, launched a constitutional challenge to the Legal Practice Act (LPA), GroundUp reports.
The Act provides only for the enrolment and admission of attorneys and advocates who are either citizens or have permanent residence permits. The three graduates have permits which allow them to live, study and work in South Africa. They have also completed their degrees, written board exams and done their articles and pupillage.
The matter is pending before the Gauteng High Court in Pretoria.
Three other organisations, the Scalabrini Centre of Cape Town, the Pan African Bar Association and the International Commission of Jurists, have lent support to the applicants’ plight. They have asked to be admitted as amicus curiae (friends of the court).
The Scalabrini Centre, which promotes and protects the rights of asylum seekers and refugees, has strongly opposed the LPC’s stance, stating that its submissions to the court are “premised on the most vulgar of stereotypes and are simply xenophobic”.
In an affidavit, Scalabrini Centre executive director, Giulia Treves, refers to the “extremely concerning justifications” put forward by the LPC in an attempt to justify the blanket exclusion from the legal profession of those who are not citizens or permanent residents.
These include that asylum seekers and refugees are allegedly incapable of acting as officers of the court and with high ethical standards; that they are not fully committed to attaining justice within South Africa; they do not respect the laws of South Africa; they do not have the necessary appreciation of South African institutions; and they are incapable of being regulated by the LPC. It also states that they are an unreliable drain on the country’s resources.
Treves says it’s important for the centre to get involved in the matter to ensure that the voices of this vulnerable group of people are heard.
In opposing documents, LPC chairperson Kathleen Matolo-Dlepu, says it does not believe the relevant section of the Act is unconstitutional. She points out that the LPC is not the “custodian” of the Act, but merely ensures that legal practitioners comply with provisions. She says the relief that the applicants are seeking is essentially against the Minister of Justice and Correctional Services.
Opening the floodgates of persons who wish to practise as attorneys or advocates may lead to abuse, particularly by those who will suddenly be entitled to practise in South Africa by simply obtaining a work permit … this will prejudice legal practitioners who have been admitted to practise.
She also says the courts “should not be burdened with requests to determine policy”. Temporary residents are not prevented from working in the legal sector, but only exempt from being admitted as officers of the court, she says.
“The legal profession involves extraordinary obligations to duty and conscience and requires the highest ethical standards … in order to fulfil their role in the administration of justice and in our society, legal practitioners must be fully committed to South African society. Only citizenship and permanent residency imply such full commitment.”
On behalf of the minister, Kalayvani Pillay, a deputy director in the department of legal services, suggests that the Department of Home Affairs be included in proceedings because the case deals with immigration laws.
Pillay says the legal profession is not a rare or critical skill and many South African citizens struggle to get work.
Nasreen Rajab-Budlender, the national chairperson of the Pan African Bar Association – which set up the Pius Langa School of Advocacy – says that if admitted as a friend of the court, it will submit that the exclusion of non-citizens is akin to apartheid policies.
– Originally published on GroundUp.
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Explained: The second violent run-in for Sri Lanka in Pakistan and lessons for India – The Indian Express
Priyantha Diyawadana Kumara, from Gampaha district near Colombo, an engineer and father of two, was on Friday beaten to death and his body burnt by a mob of hundreds, some of the workers at his factory, who accused him of committing blasphemy.
From the Prime Minister, to the chief of Army Staff, and others, even minister Sheikh Rasheed, a proud supporter of jihadist extremism, all stood unequivocally united in the condemnation of the incident, and promised swift action.
While Pakistan’s progressive civil society has always stood against such incidents as going to the core of what is broken within, this is perhaps the first time that a killing in the name of blasphemy has elicited such unanimous and unequivocal condemnation from the political class and the powerful army.
The strong official reactions may be due to the fact that the victim was a foreign national, from a South Asian country with which Islamabad has gone the extra mile to build ties. Pakistan is hyper-conscious about projecting a progressive image abroad.
This is the second time in the last 15 years that Sri Lanka, which has fair people-to-people ties with Islamabad, has found itself wrong-footed by Pakistan’s extremist violence. Pakistan is only too conscious of this. In the world of cricket, it is still paying a heavy price for the attack on the Sri Lankan team bus in 2009 – other than the Zimbabwe team last year, Pakistan has not since been able to host a single foreign team, with the Kiwis too pulling out in September this year after a security alert.
But even at the time of the cricket bus attack, the strong ties between the two countries cushioned bilateral relations. Colombo has little regard for the IPKF. It remembers more the “parippu drop” over Jaffna, when the Indian Air Force dropped food supplies to Tamils when the Sri Lankan army had laid siege on the northern peninsula in 1985, but it has never forgotten that Pakistan provided weapons and munitions and trained Lankan Air Force pilots for Sri Lanka’s war against the LTTE.
Sri Lanka was subdued in its reaction to the killing of Priyantha Kumara. It took a full day for President Gotabaya Rajapakasa to break his silence and tweet that he was “deeply concerned by the incident in Sialkot #Pakistan. #SriLanka trusts that PM @ImranKhanPTI and the Gvt. Of Pakistan will ensure justice is served and the ensure the safety of the remaining Sri Lankan workers in Pakistan”. Before that the Sri Lankan foreign ministry asked Pakistani authorities to “take the required action to investigate and ensure justice”. Earlier, Foreign ministry spokesperson Sugeeshwara Gunaratna said the Sri Lankan High Commission in Islamabad was in the process of verifying details of the incident from Pakistani authorities.
Deeply concerned by the incident in Sialkot #Pakistan. #SriLanka trusts that PM @ImranKhanPTI and the Gvt. of Pakistan will ensure justice is served and ensure the safety of the remaining Sri Lankan workers in Pakistan.
— Gotabaya Rajapaksa (@GotabayaR) December 4, 2021
Pakistan has promised swift action against the perpetrators. Some 100 people said to be part of the mob and two of the main instigators have been arrested, the Pakistani media have reported.
However, Pakistan’s regressive and draconian anti-blasphemy law is loaded against the person against whom the allegation is made. In well-known cases that attract international attention and are thought to be spoiling the country’s already fragile image abroad, the system steps in to protect the alleged blasphemer, sometimes with prodding from western powers, and if there has been violence, to hand out punishment to the perpetrators.
The most famous example of the way this law, the law enforcers, the government, and the judicary work is that of Aasia Naureen, better known as Aasia Bibi, who was arrested in 2009 after her co-workers alleged she had committed blasphemy. She was sentenced to death by a lower court. The punishment was confirmed by the Lahore High Court. It was only under tremendous international pressure at a time that Pakistan was negotiating an IMF bailout, that the Supreme Court took her review petition and ruled there was not enough evidence against her.
Protests broke out at the acquittal, roads were blocked by extremist groups such as Tehreek-eLabbaik. Aasia had to remain in custody for the next six months because of fears she would be killed. Prime Minister Imran Khan had to make repeated assurances that she would not be allowed to leave the country. Finally, she had to be spirited away from Pakistan to Canada secretly.
Unlike Aasia, in many cases, alleged blasphemers may not live to see jail or a courtroom, and their killers go scot-free. In the rare cases where punishment to the perpetrators is handed out, they are celebrated as “gazi”, religious warriors by the military-backed politically vocal and visible sections of Pakistan’s religious, conservative Muslims.
Mumtaz Qadri, the police bodyguard who was hanged for the 2011 killing Salman Taseer, the governor of the Punjab province (who was accused of blasphemy for speaking up in support of Asia Bibi) is held up as a martyr. The silent majority of Sunni Muslims may not support such glorification even if they are staunch believers, but they are silent.
Qadri’s execution led to the founding of Tehreek-e-Labbaik, which regularly holds the government to ransom by bringing out its supporters on the streets. During one such protest in 2017, the ISI brokered a deal between the group and the government of the day, making the government pledge that it would not dilute anti-blasphemy laws. The government had to recently lift a ban on the group.
Mashal Khan case
In March 2017, Pakistan was convulsed just as it is now by the killing of a 23-year-old journalism student in a college in Mardan, in Khyber Pakthunkhwa province. Mashal Khan and two of his friends had been accused by fellow students of posting blasphemous content online. They were attacked on campus by students and Mashal Khan was lynched. His friends escaped with injuries.
Nawaz Sharif, then prime minister of the country, condemned the incident as saddening and senseless, and asked the entire country to stand together to promote tolerance in society, but a month earlier, he called it an “unpardonable offence”. It was the outpouring of public solidarity for him, the huge turnout for his funeral, and the strong reaction in his village to the killing that put pressure on the police to round up the killers. In all 61 people were arrested, one was sentenced to death, and seven others to life imprisonment by an anti-terrorism court.
In 2014, Rashid Rehman, a well-known human rights lawyer defending an accused in a blasphemy case, was shot dead. His killers have never been brought to justice. Rehman’s client, Junaid Hafeez, a university teacher, who was arrested in 2013, was sentenced to death in 2019 by the lower court, where a blasphemy case rarely ends in acquittal. In the trial courts, judges fear for their lives if they let an accused go. Mostly judges delay the cases till their transfer. Law enforcers, witnesses, jailers all worry for their safety in blasphemy cases.
Just in September, a 50-year-old Muslim woman was sentenced to death for an alleged blasphemous act in 2013. The woman, who was a school principal was accused by a local imam for describing herself as a “prophetess”. In January, three men were convicted of blasphemy for sharing allegedly blasphemous content on social media, the first case of conviction for online blasphemy in Pakistan. With a precedent set, the next month, a woman was accused of forwarding allegedly blasphemous material on WhatsApp.
Section 295A: The blasphemy law
In September, the Human Rights Commission of Pakistan expressed concern at the surge in blasphemy cases being registered. It said 40 cases had been registered in August alone. According to estimates by NGOs, some 1,800 cases of blasphemy have been registered since 1977, when the blasphemy law was made stricter.
Law enforcers know Section 295A of the Pakistan Penal Code which deals with blasphemy is widely misused by religious fanatics against members of minority communities – Ahmadi, Shia Hindus Christians – and against Muslims too, to settle personal scores. For the accused, prison is often a safer place than freedom as they live under constant threat to their lives. Just this week, two days before the Sri Lankan’s killing, a mob burnt down a police station in Charsadda in Khyber Pakhtunkhwa where a man who had allegedly torn up a Koran was being held. The police had refused to hand over the man to the mob which was baying for his blood outside, growing in size as the day progressed. The police had to flee the station along with the man just before the station went up in flames.
Pakistan inherited Section 295 A from the colonial-era 1927 anti-hate speech section in the Indian Penal Code following the Rangila Rasool episode. In the Zia era, this section was further expanded to cover more offences under blasphemy and the death sentence introduced as one of the penalties (India has kept the original section). Some believe that the death sentence encourages people to take the law into their own hands for instant “justice”.
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No Pakistani politician wants to take the risk of trying to repeal the blasphemy laws, though most recognise that it is not in keeping with the image of modernity that the nation wants to project. Even the military ruler Pervex Musharraf backed off though he gave it serious consideration. Now as then, it is considered politically unwise and personally hazardous. Years of pandering to extremists has literally disabled the Pakistani state on this issue.
Cautionary tale for India
Pakistan’s experience on its blasphemy law is a cautionary tale for those who want to bring similar laws in India. Despite all advice, Punjab enacted a blasphemy law in 2018 to appease religious sentiment after several cases of sacrilege of the Guru Granth Sahib. Disrespect shown to the Sikh holy book, the Bhagvad Gita, Bible and Koran are all punishable with life imprisonment. An earlier legislation brought in by the Akali Dal did not get presidential assent as it was specific to the Guru Granth Sahib, and it was returned with the comment that all religions are to be treated equally. The All India Muslim Personal Law Board’s recent demand for an anti-blasphemy law has received a strong push back from within the Muslim community, with prominent voices warning against the dangers of such a law. In a statement signed by more than 400 people, a majority of them Muslim, the Indian Muslims for Secular Democracy said there was no need for such a law as Muslims had every right to invoke Section 295-A in the Indian penal Code to deal with any complaints. The statement pointed to the “notorious blasphemy law in neighbouring Pakistan which is frequently used to hound individuals from religious minorities and even fellow Muslims with sectarian and personal motives”.
Return woman film-maker's impounded passport: Madras HC – Times of India
CHENNAI: Madras high court has quashed a Chennai regional passport officer (RPO) order impounding the passport of woman film-maker Leena Manimekalai, and directed him to release it within a week.
The passport was impounded in view of a pending criminal defamation complaint filed by film director Susi Ganesan and ‘adverse report from law enforcing agency’ against her. Susi Ganesan filed the case after she levelled #MeToo allegation against him.
Justice M Dhandapani reversed the order, saying: “For an offence, alleged to have been committed under Section 500 (criminal defamation) of IPC, that too on a private complaint, the passport, without any rhyme or reason, after a lapse of four years from the date of issuance of passport has taken the extreme step of cancelling the passport of the petitioner.” The act of the passport authority appears to be very strange. Offences of criminal nature, which have far-reaching consequences and more penal in nature, which affects the society, wherein persons who have committed such heinous offences, being holders of passport, in such of those cases, seldom the passport authority, invoke such powers, Justice Dhandapani said.
“This does not augur well with this court. However, judicial discipline warrants this court to refrain from dealing any further on this aspect,” the judge added. Allowing her plea, the judge said: “Section 10 (3) (e) of the Passports Act pertaining to pendency of criminal proceedings in any court of law committed by the holder of the passport is pressed into service to claim that the pending criminal case before the trial court was the reason for impounding the passport.”
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