Human Rights Law & Lawyers in Pakistan
The Fundamental Rights, as embodied in our Constitution, are the bed-rock of Pakistan democracy, and the rights to constitutional writs, contained in Articles 185 and 199 of the Constitution, is one of the formidable instruments in the hands of the Pakistan Citizens to assert their rights.
During the last 60 years, Pakistani Courts, and particularly the Supreme Court, have in many cases interpreted the Constitutional provisions relating to the Fundamental rights. In several of them, they have defined the nature and scope in the changing contents of our political, social and economic life. A thorough study of these provisions and the scope and trends, which emerge from judiciary pronouncements, are necessary in a growing democracy.
Fundamental Rights are guaranteed under Articles 8 – 40 of the Constitution of Islamic Republic of Pakistan, 1973 as under:
Laws inconsistent with, or in derogation of, Fundamental Rights to be avoided
Security of Person
Safeguards as to arrest and detention
Slavery, forced labour etc., prohibited
Protection against retrospective punishment
Protection against double punishment and self-incrimination
Inviolability of dignity of man, etc.
Freedom of movement, etc.
Freedom of assembly
Freedom of association
Freedom of trade, business or profession
Freedom of speech, etc.
Freedom to profess religion and to manage religious institutions
Safeguards against taxation for purposes of any particular religion
Safeguards as to educational institutions in respect of religion, etc.
Provision as to property
Protection of property rights
Equality of citizens
Non-discrimination in respect of access to public places
Safeguard against non-discrimination in services
Preservation of language, script and culture
Principles of Policies
Responsibility with respect to Principles of Policy
Islamic way of life
Promotion of local Government institutions
Parochial and other similar prejudice to be discouraged
Full participation of women in national life
Protection of family, etc.
Protection of minorities
Promotion of social justice and eradication of social evils
Promotion of social and economic well-being of the people
Participation of people in Armed forces
Strengthening bonds with Muslim world and promoting international place
Human Rights issues are currently the fundamental concerns of International Community and no state can afford to ignore Human Rights abuses within its jurisdiction. In the present geo-political scenario, the developing counties are under greater obligation to take measures to prevent the violation of Human Rights. The matter is highly sensitive from both national and international point of views. The issue of Human Rights protection is projected for mode of respectable association with international community in general and specifically to meet the pressing needs and demands of the present situation in the developing counties.
Human rights have to be associated with freedom of self-determination and self-expression in line with human nature and right to lead a comfortable and honourable life with untarnished honour and dignity. It has to be based on universally accepted principles of equality, justice and truth, that are permanent, unchanging and value free. It should be transcendent in nature and character both in time and space. It should embody not only the individual man, but also his society to accommodate his socio-psychological nature.
Self-determination should guarantee religious freedom, basic education, private ownership of property, security of life and property, honour, respect, dignity and individual privacy, irrespective of gender, colour, race or creed. It should also guarantee the sovereignty and political freedom of nation-states which uphold the fundamental universal principles of justice, equality and truth in their governance and treatment of their citizenry.
The principles underlying the conception and formulation of human rights should be permanent, unchanging and unwavering in order to suit its transcendent nature over time and space. Such principles should also be universally accepted so as to avoid any culture bound regionalized values which are specific and particular rather than general and universal. These are necessary if we are earnest in our desire to strive for unity of the human race, harmony and peace.
Apart from the basic rights given to women by the Pakistani Constitution, the international declarations and treaties which Pakistan has signed also strive to ensure equality among the sexes.
Article 2 of the UDHR provides that “everyone is entitled to all the rights and freedom set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Pakistan acceded to the Convention on the elimination of All Forms of Discrimination against Women (CEDAW) on March 12, 1996, with only one reservation. Furthermore, a general declaration was made that Pakistan’s accession was subject to the provision of the Constitution Pakistan’ accession was subject to the provision of the Constitution.
Article 15 of the CEDAW guarantees that:
States Parties shall accord to women equality with men before the law.
States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. They shall in particular give women equal rights to conclude contracts and to administer property and treat them equally in all stages of procedure in courts and tribunals.
States Parties agree that all contracts and all other private instruments of any kind with a legal effect which is directed at restricting the legal capacity of women shall be deemed null and void.
States Parties shall accord to men and women the same rights with regard to the law relating to the movement of persons and the freedom to choose their residence and domicile.
Gender-Based Violence and Legal Discrimination
i) Honor Killing
As in previous years, violence against women and girls, including domestic violence, rape, honor killings, acid attacks, and trafficking, remained serious problems in Pakistan. Survivors of violence encounter unresponsiveness and hostility at each level of the criminal justice system, from police who fail to register or investigate cases of gender-based violence to judges with little training or commitment to women’s equal rights. According to Pakistan's Interior Ministry, there have been more than 4,100 honor killings since 2001. However, provisions of Pakistani law that allow the next of kin to forgive the murderer in exchange for monetary compensation remain in force, and continue to be used by offenders to escape punishment in cases of honor killings.
ii) Rape Cases
In a significant though partial step towards ending legal discrimination against women, Pakistanis National Assembly passed the Women’s Protection Bill on November 15 with the support of the opposition Pakistan Peoples Party. The passage of the bill removed some of the most dangerous provisions of the Hudood Ordinances. Judges have now been given authority to try rape cases under criminal rather than Islamic law. One important consequence of the change is that a woman claiming rape need no longer produce four witnesses, a requirement which had made successful prosecution almost impossible and put the rape victim at risk of being charged with adultery. The amendments also include dropping the death penalty and flogging for persons convicted of having consensual non-marital sex.
However, the Women’s Protection Bill fails to comply with many of Pakistan’s obligations under the Convention on the elimination of Discrimination against Women, which calls on states to modify or abolish laws that discriminate against women. Discriminatory provisions of the Hudood Ordinances that criminalize non-marital sex which remains punishable by a five-year prison sentence and a fine remain in place and the law fails to recognize marital rape.
iii) Burn Cases
iv) Murder Cases
vi) Sexual Harassment
In recent years sexual harassment in the workplace has been recognized as a serious form of violence against women. The world community is increasingly recognizing that the right to be free from gender harassment is a human right. In 2001, at its 45th session, the Commission on the status of Women (Commission), a UN charter, stated that all forms of violence against women, including sexual harassment, impair the enjoyment of human rights. The International Labor Organization (ILO) Committee of experts has adopted a definition for sexual harassment. It provides that sexual harassment is any form of unsolicited sexual attention, which includes:
Insults, remarks, jokes, insinuations, and inappropriate comments in a person’s dress, physique, age, family situation etc.; a condescending or paternalistic attitude undermining dignity; unwelcome invitations or requests that are implicit or explicit, whether or not accompanied by threats; lascivious looks or other gestures associated with sexuality; unnecessary physical contact, such as touching, caresses, pinching or assault.
As a member of the United Nations, Pakistan has an obligation to uphold the rights and principles enshrined in the Universal Declaration of Human Rights, including the right not to be tortured or to be subjected to cruel or inhuman punishment or degrading treatment, and the right to be free of discrimination on the basis of gender.
The United Nations Standards Minimum Rules were promulgated in 1955 by the United Nations Economic and Social Council. They are not legally binding on states but they are widely regarded as an important statement of civilized standards for the treatment of the incarcerated to which every state should adhere to.
Pakistan’s prison rules generally conform to the UN Standards Minimum Rules for the Treatment of Prisoners (SMR).
Chapter 3 Rules 18 and 21 of the Prison Rules:
The Prison Superintendent is required to inform all prisoners at the time of admission how long they have to appeal their conviction, and to render all assistance necessary to allow prisoners to appeal. However, neither the SMR nor the prison rules require prison officials to monitor how long pre-trial prisoners have been incarcerated or to do anything about the status of their cases.
Every woman admitted to prison must be examined by a woman warden within 24 hours of admission, under the direction of the medical officer of the prison, to discover unexplained injuries. If any injuries are discovered they must be reported to the district magistrate and to the police.
Chapter 9 Rule 231
Women prisoners may not be fettered and are allowed to keep certain items of jewelry and cosmetics with them in prison.
Chapter 13 Rule 309
All women prisoners serving sentences of two months or more and all juvenile girls must be transferred to a woman’s prison in conviction. Women prisoners must be kept separate from male prisoners at all times.
Chapter 9 Rule 235
The general rules about separation of pre-trial prisoners establish that under-trial prisoners may be separated at the Superintendent’s discretion, while another rule says under-trial and convicted prisoners must be segregated. A third rule says women awaiting trial must always be kept separate from women convicts. The SMR provides that pretrial and convicted prisoners must be kept apart, as does the Torture Convention.
Chapter 13 Rules 326-327
Women are allowed to keep their children with them until the child reaches age three, when the chilled is supposed to be given to the woman’s family or put in an institution. The SMR require pre-and post-natal care, but says nothing about whether children should remain with their mothers beyond nursing years or what should happen to the children if they do not remain in prison. The SMR do suggest that when nursing infants are allowed to remain with their mothers, the prison should have a nursery where the babies can be placed when not in their mother’s care.
3. BONDED LABOUR
Bonded Labour in Pakistan is found in a number of industry sectors. The brick kiln industry in Punjab, mining in Balochistan and the agricultural sector in many parts of the country continue to use forced labor. The Sale and purchase of bonded laborers is a serious abuse against the basic rights of individuals. It also leads to immense exploitation also supported.
Universal Declaration on Human Rights
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
The Slavery Convention of 1926
The Convention calls on its signatories to “prevent and suppress the slave trade "and to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms."
Article 8 of the International Covenant of Civil and Political Rights (ICCPR) declares:
"No one shall be held in slavery; slavery and the slave trade in all their forms shall be prohibited. No one shall be held in servitude." The definition of slavery is further clarified in the Supplementary convention on the Abolition of Slavery, the Slave Trade and Practice Similar to Slavery, 1956.
Although Pakistan is not a party to the ICCPR, these standards are universally recognized as part of customary international law and therefore binding on all States.
Pakistan is a party to the International Labor Organization Forced Labor Convention (No.29) in 1930. This Convention calls on its signatories to "Suppress the use of forced or compulsory labour in all its forms in the shortest period possible".
The right not to be arbitrarily arrested, the right to liberty of movement, and the right to freedom of association, including the right to form and join trade unions.
7. FREEDOM OF MEDIA
Though media freedoms have increased in recent years, particularly for the English-language press, free expression and dissemination of information were persistently undermined in 2006 by the murder, torture, kidnapping, illegal detention, and coercion of reporters working for local, regional, national, and international media.
8. POLICE EXCESSES
9. SECTARIAN VIOLENCE
Human Rights Concerns
Amnesty International has long been concerned about the persistent pattern of human rights violations occurring in Pakistan. Arbitrary detention, torture, death in custody, and extra-judicial execution are rampant. The government of Pakistan has failed to protect individuals - particularly women, religious minorities and children - from violence and other human rights abuses committed in the home, in the community, and while in legal custody. It has failed to ensure legal redress after violations have occurred. Since 9-11, individuals suspected of having links with "terrorist" organizations have been arbitrarily detained, denied access to lawyers, and turned over to U.S. custody or to the custody of their home country in violation of local and international law. In addition, Pakistan continues to impose the death penalty on persons convicted of crimes.
Human Rights Commission of Pakistan
Since 1986, the Human Rights Commission of Pakistan (HRCP) has developed to become a broad-spectrum, countrywide human rights body. Nationally, the HRCP has established a leading role in providing a highly informed and independent voice in the struggle for human rights and democratic development in Pakistan - a role increasingly recognized internationally, also. It is an independent, voluntary, non-political, non-profit making, non-governmental organization, registered under the Societies Registration Act (XXI of 1860), with its Secretariat office in Lahore. Its mission includes:
to work for the ratification and implementation by Pakistan of the Universal Declaration of Human Rights and of other related Charters, Covenants, Protocols, Resolutions, Recommendations and internationally adopted norms;
to promote studies in the field of human rights and mobilize public opinion in favour of accepted norms through all available media and forums, and to carry out every category of activity to further the cause;
to cooperate with and aid national and international groups, organizations and individuals engaged in the promotion of human rights and to participate in meetings and congresses on human rights at home and abroad;
to take appropriate action to prevent violations of human rights and to provide legal aid and other assistance to victims of those violations and to individuals and groups striving to protect human right The birth: The idea of setting up a broad-spectrum country-wide human rights body was first mulled over among a small number of kindred spirits.
HRCP undertakes activities in the areas of awareness, monitoring, fact-finding, activist mobilization, lobbing, agitation, and interception in courts related to human rights violation and deprivation. Most recent activities were on the following themes:
Democracy, Constitution, judiciary, legal profession
Human rights awareness and mobilization of activists
Rights of women, children, and labour
Minorities, ethnic groups, tribal people
Death in custody, torture, and crime
Civil / Human Rights: Getting a Lawyer's Help
If you believe you have suffered a civil rights violation, the best place to start is to speak with an experienced Civil Rights / Human Rights Attorney in ZA-LLP. Important decisions related to your case can be complicated -- including which laws apply to your situation, and who is responsible for any harm you suffered. A Civil Rights / Human Rights Attorney will evaluate all aspects of your case and explain all options available to you, in order to ensure the best possible outcome for your case.
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