Pakistan: Laws are discriminatory to women, religious minorities

Baseer Naveed, ALRC;
Bushra Khaliq, Women in Struggle for Empowerment (WISE);
Zulfiqar Shah, Pakistan Institute of Labour Education and Research

1. Are all persons and authorities bound by the same laws?

No. Discrimination starts with Pakistan’s supreme law (constitution) as it declares that non- Muslim(s) cannot become president and prime minister of Pakistan. There are also laws (Hudood Laws/ law of evidence) which clearly discriminate between men and women. In addition to this, there is a separate law for armed forces personnel and even in cases of civil matters such as corruption cases, military officers have not been prosecuted under common law.

2. Are all persons and authorities entitled to the benefits of all laws?

Except for the military which has separate laws and systems of benefits, in theory, the country’s law is for the benefit of all persons and authorities. However, given the nature of the system and structures, only rich and influential people can benefit from laws.

3. Are all laws publicly made?

No. The general practice is to make laws by promulgating ordinances, a kind of decree issued by one man (president in case of civilian government). This is usually for three months and then the government takes it to the parliament and converts it into a law.  This is because the government in power does not want to directly go in debate, but make a law first and then manipulate and then go to the parliament. Even in cases where law making process is taken directly to the parliament, there is little debate. Usually, the party in power would manipulate and make a law. Additionally, there is no public debate as hardly any law is taken for public debate.

4. Are all laws promulgated so that all persons can know what the laws are?

Yes. Laws are promulgated and made public through media and official gazette.

5. Are all laws applied only prospectively?

Not. Clear.

6. Are all laws administered in the courts?

Not at all. Technically, there is no restriction administering laws in courts. However, due to the lack of proper sensitization, absence of continued orientation of judges of particularly lower courts, they remain unaware of many laws. Add to the injury poorly trained police and prosecution, which remain unaware of many laws and book people under wrong laws resulting in poor prosecution. The conviction rate in Pakistan is very low.

a. Is the investigative system under the police adequate to enable the courts to administer justice?

No. Police investigation is poor both in terms of resources and human resource quality that they fail to provide any assistance to courts to deliver justice.

b. Is the prosecution system adequate to enable laws being administered by the courts?

No, the prosecution system is very poor. Often prosecutors are appointed on political basis and the quality of their work is so poor that it did not help courts to deliver justice in anyway.

c. Are the courts interfered with by the government or other political pressures or by pressure from powerful lobbies?

Yes. Courts are under pressure from both state and non state actors. There are many cases where judges refuse to hear cases because of pressure. Though pressure on judges is a common tool used in Pakistan to interfere in justice systems, in recent years, it has been obvious in cases where military persons and terrorists were involved.

d. Is there public confidence that the courts competently and impartially administer the law?

No. Public has lost hope in justice system. This is clear from the general practice that people do not go and register cases.

e. Is the procedure for appointment, promotion and dismissal of judges made through an objectively justifiable process that inspires public confidence?

Only in case of judges of higher courts. In case of judges of lower courts, appointments are based on political affiliation, influence from bar council and by paying heavy sums as bribes.

f. Are the positions of judges secure from any interference into the making of decisions, impartially and independently?

No. There are several pressures on judges.

g. Once the court makes the decision, is it guaranteed that the decision will be implemented?

No. A number of verdicts are not implemented mainly in cases involving influential persons and authorities and rich people.

h. Are the police, prosecution services and the courts provided with adequate resources to administer their services in a competent and efficient manner?

No. Both the institutions are poorly equipped and still using old methods and models which hinder their performance.

i. Are all possibilities of corruption prevented?

No. Corruption is a widespread and common practice. In courts, police stations and prosecution, nothing moves without paying bribes.

7. Are the laws accessible to all?

No. The justice system of Pakistan is considered very expensive. Only those who can afford it, can access the law. It’s difficult for poor people, marginalized sections to access laws.

8. Are the laws, so far as possible, intelligible, clear and predictable?

No. A large number of Pakistani laws are confusing and unclear. For example there are over 150 labour laws which make it difficult to seek justice. These could have been simplified in five to six laws but no efforts have been taken to simplify them. There are also contradictions in laws. In case of many laws promulgated for years, rules and procedures have not been formulated.

9. Are questions of legal rights and liabilities ordinarily resolved by the application of the law and not through the exercise of discretion?

Technically yes. But in practice, particularly in business cases, courts use their discretion in asking to settle matters as out of court settlements. In addition to this, the President, PM, and chief ministers and heads of companies have many discretionary powers which clearly contradict with laws.

10. Do the laws of the land apply equally to all? (Save to the extent that objective differences justify a differentiation)?

No. As mentioned above, many laws discriminate against religious minorities and women.

11. Do the laws afford adequate protection of fundamental human rights?

a. Do the laws adequately prevent any form of discrimination?

No, the laws are discriminatory to women and religious minorities, for example in the case of the Ahmadis. The blasphemy laws are against the freedom of expression.

b. Do the laws prevent extrajudicial killings and disappearances and other methods of the extrajudicial deprivation of life?

No, the law enforcing agencies, like police, military, para military are involved in torture and extrajudicial killings; torture, and extrajudicial killings are not yet criminalized in Pakistan.

c. Is torture and ill-treatment prohibited and prevented?

No, the illegal arrest, detention, torture and ill treatment is neither prohibited nor prevented.

d. Is illegal arrest and detention prohibited and prevented?

No, the increase of cases of disappearances are the best examples.

e. Is fair trial guaranteed to everyone?

No. The right to fair trial is not a right in the real sense. Though CoP Article 10 (A) amendment made it, but the courts are denying the rights of fair trial, in the eyes of court, enough time is not provided to the lawyers for fair trial. At the lower level of the judicial courts, where the fair trial concept does not exist, the courts always rely on the prosecution and try to linger on the cases just to benefit the lawyers. The courts remain under the influence of pressure groups and powerful sections of the society.

In the cases of blasphemy (insult and showing lack of respect against religious deities) against religious minority communities, it is observed generally that courts have never applied the fair trial concept, and have always acted on the pressure of Muslim religious fundamentalists. In cases of forced conversion to Islam, the courts have behaved in the favour of the perpetrators who abducted and raped the girls from minority groups and even the higher courts have shown the gestures of happiness that minority girls are being converted to Islam. In cases of torture and arbitrary arrest, it is observed that courts never provide fair trial to the victims, and rarely has any perpetrator been punished purely on the basis of torture. Women hardly get fair trial because of the patriarchal and biased attitude of the judges.

f. Is freedom of expression guaranteed?

Being an Islamic country, it is inconceivable to have freedom of expression. Though the constitution guarantees the freedom of expression, at the same time many restrictions are put on that. Through the other articles in the constitution, the right of expression is limited. For example, on the matters related to religious matters, history, the matters related to judiciary and armed forces. A regulatory body with the name of PEMRA monitors all kinds of media and issues notices to follow the so called Islamic principles, Islamic ideology and respect for the armed forces.

g. Is the right to freedom of movement guaranteed?

Although it is guaranteed under the constitution, in practice this right is not guaranteed in the cases of bonded labor, peasants, women and forced labor, and sometimes on the political level. The Exit Control List is a tool in the hands of authorities; sometimes the courts also stop the freedom of movement. The right is also restricted in cases of visiting neighbouring countries, particularly India.

h. Are the freedoms of association and freedom of publication guaranteed?

No, the freedom of association is highly limited; in the cases of trade unions of workers, peasants and other professional organizations, the permissions are granted after the approval and permission of intelligence agencies and police.

As regards to the freedom of publication, it is highly restricted and Law Enforcement Agencies (LEAs) like police, intelligence agencies, army and other secret agencies have the right to confiscate printing presses, publications and to arrest. These kinds of restrictions are visible in Baluchistan and KPK province. In the particular cases of religious minorities, such as the Ahmadis, they are not allowed to print their publications and they are not allowed to run printing presses. The same methods are applied to other religious minorities and groups like Hindus and Christians. Furthermore, the freedom of publication is conditioned, we have to take prior permission from law enforcement agencies.

i. Do people have the right to elect the government of their choice?

No. The people generally go for their choice during the election but they are betrayed by the manipulation of establishment, consisted of intelligence agencies, military, bureaucracy and the right wing militant groups.

j. Are measures taken to prevent absolute power?

No, all efforts and practices are directed to obtain absolute power by the government. Even the so called independent judiciary does not respect the other institutions, and they have refused to submit their accounts before constitutional institutions like parliamentary committees, auditor general and the national accountability bureau.

12. Are means provided for resolving, without prohibitive cost, or inordinate delay, bona fide disputes which parties themselves are unable to resolve?

No, people don’t have any means to resolve their disputes.

a. Is the cost of litigation prohibitive?

The cost of litigation is out of the reach of the people.

b. Are there inordinate delays?

Any criminal cases are not solved before seven years. Generally, cases take 20 to 25 years.

c. Can people have recourse to courts without suffering the risks of physical harm and other attacks or threats to their life?

No, people have no means for resolving disputes, social intolerance is at its peak through the formation of armed groups by the state itself, and state institutions also show their intolerance with the mindset of resolving disputes through force. Being a highly feudal and tribal society, there is always fighting and the promotion of intolerance between tribes and warlords; the parliament and the courts never interfere to end this.

The best example of the use of blasphemy laws is their being used against Muslims for not following state oriented ideologies.

In the education curriculum, intolerance against other ideologies start from class one, which has developed the mindset for not tolerating independent views, but to resolve conflict through the intolerant methods. This has generated incidents of lynching in the society.

b. Are there inordinate delays?

The cases are lingered on and take unnecessary delays; which cause further problems for the victims and their families.

c. Can people have recourse to courts without suffering the risks of physical harm and other attacks or threats to their life?

Generally, the victims and family members get harassed, physically tortured and even killed by LEAs.

d. Can a witness participate in court proceedings without incurring risk to their life and liberty?

There are no witness protection laws and witnesses are never protected. The courts don’t provide any mechanisms for witness protection. In cases of terrorism, the family members are abducted or killed.

13. Do the ministers and public officers exercise their powers reasonably and in good faith, for the purpose for which the powers are conferred?

Ministers and public officers act unfairly for political advantage.

a. Do public ministers and public officers exceed the limit of their powers?

Yes, when it comes to political advantage. They frequently exceed their powers, abuse their authority, and use force.

15. Does the state comply with its international obligations?

No, the state ratifies the international laws with reservation on the important provisions; and is therefore always reluctant to submit reports. Also, these international laws are never into domestic laws.

Decisions in high profile cases are decided behind closed doors, and even judges of the supreme court have delayed their decisions until the GHQ of Army has confirmed their position.

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