THE ROLE OF DISTRICT
JUDICIARY IN PROTECTION OF HUMAN RIGHTS
By:
DR. FAQIR HUSSAIN
Director General,
Centre of Excellence for Law & Judicial Education
(Federal Judicial Academy)
Introduction: The terms 'human rights' and 'fundamental rights',
thanks to the confluence of international law and municipal law, are
synonymous, if not identical, and used interchangeably. It includes all rights,
privileges, interests, safeguards, liberties and freedoms, which are legally
binding and enforceable, without distinction or discrimination on the basis of
nationality, place of origin, caste, creed, colour or gender. Without the
enjoyment of such rights, the proper development of human personality and
economic, social and cultural progress of society is inconceivable. Human
rights are inherent to human beings, as they cannot live or enjoy life or
develop their faculties or contribute to development, without availing human
rights. Human rights make life worth living. A life worth living, in the
minimal sense, presupposes certain safeguards and protections, such as, the
right to personal safety, dignity, property, liberty, equality of status, of
opportunities and before law, freedom of thought, belief, expression, movement
and association, etc.
Denial of Human Rights lead to Conflicts: Non-observance of minimum standards of civilised behaviour by states in
the treatment of human beings and the resulting violations of their fundamental
rights, is recognized as a major cause of international
strife and tensions. Such conflicts ensued mainly due to lack of respect for
and observance of human rights, in particular, the prevalent culture of
dominating others and the policy of colonization for economic exploitation. The
resulting wars and armed conflicts indeed caused profound loss/destruction of
human/material resources, inflicting untold sorrow and suffering on the human
race. Subsequent studies/analyses of these events led to the inescapable
conclusion that strife or tensions in international relations were not entirely
inevitable, were rather avoidable and indeed attributable to human conduct,
particularly, man's propensity to greed and exploitation of others to enrich
himself and advance his interests at the cost of others.
What is true of international conflicts is equally
true of domestic unrest and tensions, in nations that deny human rights to its
citizens. History shows such states remaining weak, under-developed and
vulnerable, primarily on account of the brutal treatment of their subjects and
the lack of access to justice to seek redressal of grievances.
Human rights is a new and
evolving concept. As civilization advanced and human consciousness evolved,
more and more attention was directed towards tackling the underlying factors
and currents, responsible for the recurring crises and conflicts in the world.
The issue of human rights violation, therefore, came to the forefront and
became a focal point of attention for every discourse/conference at national or
international level. Consequently, several national and international legal
instruments were formulated, which provide for respect for and observance of
human rights.
Human
Rights Movement: The
connection between justice and peace is undisputed, be it in affairs among citizens
or relation between states. That is why the Charter of the United Nations in
its very Preamble lays stress on "fundamental human rights, in the dignity
and worth of human person, (and) in the equal rights of men and women".
The promotion of human rights and fundamental freedoms for all, without
discrimination as to race, sex, language or religion, is an objective of the
United Nations. The Universal Declaration of Human Rights 1948, adopted
unanimously by the General Assembly, guaranteed essential, civil, economic,
social and political rights. The Declaration is kept in highest esteem. It is
regarded as a "yardstick for measuring regard or disregard for human
rights" and referred to as a "common standard of achievement for all
peoples and all nations". The Declaration is widely quoted, referred to in
judicial decisions and invoked in the resolutions of the United Nations, its
specialized agencies and other international and regional organizations. It has
inspired various international conventions and national constitutions,
including our own Constitution. It was followed by 2 covenants, namely,
International Covenant on Civil and Political Rights 1966 and International
Covenant on Economic, Social and Cultural Rights 1966. They established binding
and enforceable human rights obligations. Numerous other human rights
instruments have been drafted and enforced, the prominent amongst these, the
Convention Against Torture and Other Cruel, Inhumane
or Degrading Treatment or Punishment 1984, the Convention on the Rights of the
Child 1989 and the Convention on Elimination of All Forms of Discrimination
Against Women 1979.
Ending Discrimination
Against Women: The adoption of Convention on Elimination of All
Forms of Discrimination Against Women (CEDAW) was an
important milestone in the long and arduous journey of enforcing the civil,
social, political and economic right of women. The Convention encapsulated into
one composite document, the international standards of civilized conduct and
behaviour for protecting the rights and enhancing the status of women, so as to
ensure their integration in the society, as equal partners in progress and
development. The adoption of the Convention was indeed an acknowledgment, by
the international community, of the dismal state of affairs concerning women
status in the world, encompassing all civilizations, cultures ad societies; and
its determination to put an end to the abuse and exploitation of women and the
on-going injustices and discrimination against them. The Convention envisages
coordinated efforts by the international community for addressing the factors
and causes adversely affecting the status of women, and suggesting appropriate
strategies and measures for reform.
Besides CEDAW, several other international
instrument were enacted e.g. the Convention on the Political Rights on Women
1952, the Convention on the Nationality of Married Women 1957, the Convention
on the Consent to Marriage, Minimum Age for Marriage and Registration of
Marriage 1962, together with conventions adopted by some UN agencies namely
ILO, UNICEF and UNESCO, etc, enumerating the rights and entitlement of women to
improve their civil, social, economic and political status in the society. The
CEDAW now culminates that process by enumerating, in one and fairly
comprehensive document, all the essential human rights and freedoms of women
and provides strategies and mechanisms of enforcement.
Art 1 of the CEDAW defines discrimination against
women. This definition is both novel and unique: novel, because it departs from
the earlier (traditional) definitions, given by the international instruments
and municipal laws, using the familiar expression of “discrimination on the
basis of sex”. The new definition is much clear in tone, specific in context
and direct in form/manner, by using he phase, “discrimination against women”.
And it is unique, because it is fairly comprehensive in scope and extent,
encompassing all acts and aspects of discriminations, including the intentional
and unintentional acts and direct and indirect measures of public
institutions/officials and private organizations/individuals. It also applies
to the discriminatory act and practices in the domestic/family sphere.
Islamic Injunctions: It is alleged that some of the
discriminatory provisions crept into the statutory book due to the prevailing
misconceived religious notions and orthodox norms in the society. This is true
because Islam is the most enlightened religion and cannot sanction gender
discrimination. Among the religious movements, Islam devotes a considerable
part of it philosophy, teaching and practices to female emancipation and the
concept of equality between men and women. The Quran states in unequivocal
words that women shall have rights similar to the rights against them, according
to what is equitable (II:228). It furthers states that
their shall be no distinction, among men and women, in the area of moral and
spiritual rights and obligations (XXXIII:35) Thus,
Islam accords to women equality with men in civil, political, social and
economic rights. However, as in other societies, the conservative elements
interpret the religious injunctions retrogressively, thus creating avoidable
controversies/problems. The need for strengthening liberal education, including
religious instructions, is therefore manifest.
The protection of human rights is strongly asserted in the Holy Quran.
There are numerous categorical versus to this effect. It is incumbent upon the
State to observe and protect the human rights of all and especially of those
who are weak and vulnerable. Says Verse 75 of Sura Al-Nisa:
And why should ye not fight in the cause of Allah and of those who,
being weak, are ill-treated (and oppressed)? Men, women, and children whose cry
is: Our Lord! Rescue us from this town, whose people are oppressors; and raise
for us from Thee one who will protect; and raise for us from Thee one who will
help!
The sermon of the Holy Prophet at the Farewell
Pilgrimage, furnished concrete foundation for the protection of human rights
including the right to life, honour, protection of property, equality,
prohibition of slavery, economic exploitation and discrimination on the basis
of race, religion, caste or colour.
Constitutional Guarantees: The non-discrimination principle, envisaged by the CEDAW, is generally
in accord with similar principles, enshrined in our country’s Constitution. The
Constitution contains several provisions, which speak of equal rights and equal
treatment of all citizens/persons, without any distinction on the basis of sex.
Such provisions are contained in the Preamble (now a substantive pat of the
Constitution), the Chapter on Fundamental Rights and the Chapter on Principles
of Policy.
In the Preamble, the State is obliged to ensure the
full observance of the principles of democracy, freedom, equality, tolerance
and social justice, as enunciated by Islam; and to guarantee to all citizens,
fundamental rights, including the equality of status, of opportunity and before
law. Art 3 of the Constitution states that the State must eliminate all forms
of exploitation, which certainly includes the elimination of abuse/exploitation
of women. Art 4 provides for the right of individuals to enjoy the protection
of law and to be treated in accordance with law. This provision, as per superior courts’
observations, is the equivalent of the doctrine of “rule of law”. The principles of non-discrimination on the basis of sex finds
special mention in Articles 25, 26 and 27 of the Constitution. Art 25 provides
for equality of law and equal protection of law. Art 26 and 27 provide for
equal access to public places and appointment in services. The Constitution
contains specific provisions for protecting women against abuse and
exploitation. Articles 11 and 37 (e) oblige the State to make provisions for securing
just and humane conditions of work, ensuring that women are not employed in
vocations unsuited to their sex. It further provides for maternity benefits to
employed women. Art 35 commands the State to protect the marriage, the family,
the mother and the child. Art 34 directs the State to take appropriate measures
so as enable women to participate in all spheres of national life. Besides the
protective provisions, the Constitution also allows the State [Art 25 (3) &
26(2)] to take positive measures, by way of affirmative action, for enhancing
the status of women. Art 32 provides for the representation of women in the
local Government institution. Art 51 and 106 provide for the reservation of
seats for women in the legislature.
Poor
Implementation: Having
enumerated, somewhat exhaustively, the constitutional provisions, which provide
for improving the status of women in the society, it would not be fair to give
the impression that all legislative measures and policy guidelines are fully
and effectively implemented. Unfortunately, this is not the case. There are
provisions on the statute book, which are patently discriminatory. There are
problems of implementation of laws that are beneficial to women. The
non-enforcement of law of inheritance is a case in point. The socio-cultural
norms in the society continue to operate against women rights/interests. Lapses
occur in full enforcement of laws/policies due to inadequacy of resources. Such
shortcomings are required to be addressed and remedial measures put in place to
ensure the full implementation of rights and entitlement of women.
Role of Judiciary: Experience shows that governments are often
negligent or indifferent in discharging their obligations under the law. As
such, the Constitution mandates the judiciary to safeguard,
protect and enforce the fundamental and other legal rights of citizens. The
Preamble to the Constitution and Article 175 thereof, provide for independence
of the judiciary and its separation from the executive. The issues of judicial
independence and its separation from the executive,
are to an extent settled in the judgments of the Supreme Court in the cases,
Government of Sindh v Sharaf Faridi (PLD 1994 SC 105), AI-Jehad Trust v
Federation of Pakistan (PLD 1996 SC 324) and Malik Asad Ali v Federation of
Pakistan (PLD 1998 SC 33).
Similarly, while interpreting the Constitution, the Supreme Court
observed that access to justice is a fundamental right of the citizens of
Right, in
legal parlance means and implies what is right, correct, just or
equitable. It means a claim or interest
in accordance with the law and justice, hence it is
immaterial as to whether it is referred to as human right or fundamental right
or legal right. Its enforcement is the responsibility of the court which has
jurisdiction in the matter. It could be the supreme court,
high court or special court or subordinate court.
Needless to say, the enforcement of fundamental rights has close nexus with
independency of judiciary.
The judiciary is an institution of highest value in any, indeed, every
society. Dispensation of justice is a function exclusively assigned to the
judicial organ of the State. Conceptually, and as organized, the judiciary is
one, united, interconnected and well integrated institution. The hierarchy
among courts as well as individual judges is for functional purposes.
Otherwise, the objects and goals of courts are common. Therefore, the hierarchy
in courts or difference in grade or rank of judges, should in no way
deviate from the established principle of functioning independently to decide
cases and dispense justice, freely, fairly and impartially to all manner of
people and all segments of society.
District Judiciary: The district judiciary is a crucial organ of the
judicial system. Forming the lower tier of judicial hierarchy, it is the point
of citizens' initial interaction with the system of administration of justice.
Bulk of litigation is conducted at this level. In actual fact, a very small
number of litigants directly knock at the door of the superior courts. As per judicial data of all courts, only 10%
cases are in the superior courts i.e. Supreme Court and High Courts, whereas
90% litigation is pending in the subordinate courts. This data shows the
importance and significance of district judiciary in terms of its interaction
with the general public and the volume of cases being dealt with by such
courts.
The court, whether superior or inferior, is the court of law,
established under and has to decide in accordance with the law. Its
jurisdiction and powers are prescribed by the law. To that extent, there is no
difference or distinction between a superior or inferior court. Besides, the
Constitution and the law apply equally and evenly to all citizens. Laws have a
function to serve: they are for the betterment of society and benefits of
people. Therefore, it is incumbent upon all the courts, superior, intermediate
or inferior, to ensure that the benefits of law reach the common man. In this
regard, the district courts play an important role in the enforcement of
constitutional safeguards, which are duly incorporated in statutes, both
substantive and procedural. The Cr. PC, CPC, law of evidence, to name a few, are procedural codes, which enforce the citizen's
fundamental and legal rights. Following
an amendment to Section 491 of the Cr.PC, the senior District judiciary now
also partakes in issuing the writ of habeas corpus.
The District judiciary must ensure compliance with the legal and
constitutional safeguards namely rule of law, fair trial, due process, equality
before law and equal protection of law and prohibition of torture for
extracting confession or evidence. It has an obligation to prevent the acts of
brazen violation of human rights including incidents of extra-judicial killing,
death in custody and arbitrary arrest or detention. It must protect the rights
and interests of weak and vulnerable sections of society, in particular, women,
children, prisoners, minorities and other disadvantaged groups. The courts must
attempt to minimize delay and control the cost of litigation. This is possible
through strict adherence to law and procedure. The judge should through his
ability and better performance be in effective control
of court proceedings. This will surely expedite trial proceedings.
Violence Against Women: The
district judiciary, in particular, Judicial Magistrates and Sessions Judges
operate as trial courts in criminal cases.
They are the general courts, which decide all criminal matters, be it
listed in the Pakistan Penal Code 1860 (PPC) or any other special law. As such,
these courts deal with cases of violence against women or offences related to
women. Such offences are mostly defined in the PPC. The punishment prescribed
for murder is death as Qisas or imprisonment for life as Tazir or imprisonment
for upto 25 years, where the punishment of Qisas is inapplicable. However, in
the year 2005, an exception was made by amending the law to the effect that the
lesser punishment of imprisonment upto 25 years will not be applicable to an
offence committed in the name or on the pretext of honour; in such an
eventuality, the punishment shall remain death or imprisonment for life (S
302). Similarly, through another amendment, it was clarified that the Wali/heir
of the victim (who can waive or compound Qisas) shall not include an accuse/convict involved in murder, if committed in the
name or on the pretext of honour (S 305).
However, whereas the punishment of Qisas can be waived or compounded
(through badal-i-sulh) at the behest of Wali/heir, no female may be given in
marriage or otherwise in badal-i-sulh (S 310). Similar safeguards are provided
in the cases of hurt to prevent the abuse of the law in the name or on the
pretext of honour (S 338-E). Though yet
another amendment in 2005, the act of giving a female in marriage as
badal-i-sulh is prohibited, punishable with imprisonment for upto 10 years,
with minimum of not less that 3 years (S 310-A)
Through certain recent amendments, protection has
been accorded to women. It includes the offence of insulting the modesty of a women or causing
sexual harassment, as defined in Section 509 of the PPC, for which, the penalty
of 3 years imprisonment and fine for upto Rs. 500,000/- is prescribed. Further,
through a special enactment viz The Protection Against
Harassment of Women at the Workplace Act 2010, sexual harassment at the
workplace is prohibited. Departmental proceedings are conducted by 3 member Inquiry Committee, which can award any of the minor
or major penalties leading to dismissal from service. Appeal against its orders
lies before the Ombudsman. Moreover, through an amendment in 2002 to the Family
Court Act 1964, the Family Judge is conferred upon the power of the Magistrate
of the First Class for the trial of offences of hurt, wrongful
restraint/confinement, assault, criminal force and insulting the modesty of
women, involving spouses. This was done with a view to provide a more congenial
environment to the couple to attempt to resolve their differences including
settling the minor (compoundable) offences through conciliation or otherwise.
Besides criminal law, laws exist which confer
statutory rights to women against any injustice or discrimination. Such
rights/safeguards are available under the Muslim Family Laws Ordinance 1961,
requiring the registration of marriage, acknowledging the right of wife to
delegated divorce, prohibition of contracting second marriage by husband
without permission, etc. Similarly, the Child Marriage Restraint Act 1929
prohibits the solemnization of marriage between minors and prescribes
punishment for parties and others who facilitate the solemnization of such
marriage. The recently enacted Sindh Child Marriage Restraint Act 2013, is a
welcome step, which prescribes a uniform age of majority i.e. 18 years for
marriage and prohibits solemnization of child marriage by either of the party
or by parents or guardian/facilitator and prescribes punishment upto 3 years
imprisonment as well as fine. Similarly, the Dissolution of Muslim Marriage Act
1959 enables the wife to seek the dissolution of marriage on specified grounds
viz husband being missing or sentenced to imprisonment or insane or suffering
from serious disease or ill-treatment of wife or non payment of maintenance,
etc.
An old and most beneficial provision for women has
been the Muslim Personal Law (Shariat) Application Act 1962, which provides for
the payment of inheritance share to women as heir to the property/assets of
their ancestors/relatives. Through an amendment to the PPC, depriving any women
of her inheritance through deceitful/illegal means is declared an offence,
punishable with imprisonment for upto 10 years as well as fine for up to 1
million rupees (S 498-A). Similarly,
forced marriages through coercion or any other manner whatsoever is also made
an offence punishable with imprisonment for upto 7 years and fine for upto five
hundred thousand rupees (S 498-B). In the same way, the practice of compelling
or facilitating the marriage of women with Holy Quran is also prohibited which
is punishable with imprisonment for upto 7 years and fine of five hundred
thousand rupees (S 498-C).
The Way Forward: The
following reformative measures are suggested:
1. The movement for
expanding the scope of human rights/ fundamental rights and effective
implementation/operationalisation thereof must be carried forward by human
rights activists/ organizations. Of the 2 theories of application of
international law in the domestic sphere viz monism and dualism, Pakistan
follows the theory of dualism, meaning, international law has to be
incorporated in the municipal sphere through
a legislative enactment. The superior courts, in particular, Supreme
Court of Pakistan have, through liberal interpretation, applied the
norms/principles of international law through harmonious construction. The
Court not only followed the international conventions, ratified by the
Government of Pakistan but also UN Declarations, otherwise not biding on the
State (Shehla Zia v WAPDA, PLD 1994 SC
693).The courts repeatedly observed that as member of the comity of nation, Pakistan must honour its
international obligations. In the case
of Nasrullah Khan Henjra v Government of Pakistan (PLD 1994 SC 23), the Supreme
Court had occasion to interpret a provision in the country’s Extradition Act
1972, in the light of relevant fundamental right to freedom of movement. The
Court rejected the view that in the light of such fundamental rights, a citizen
cannot be deported or extradited to another country to face trial. In reaching
its conclusion, the Court relied upon another provision of the Constitution
which expressed the aspirations of the people to create an ideal state which
should play an effective role in the international affaires and occupy an
“honoured place among the nations of the world”. The Court expressed the view
that the nation cannot attain such an honoured and coveted place among the
nations of the world if it becomes a safe heaven for outlaws and criminals. The
Court, therefore, upheld the provision of the Extradition Act and allowed the
deportation of the alleged offender, as required under the bilateral
extradition treaty. In the same way, in the case of Wajid Shamus-ul-Hassan v
Federation of Pakistan (PLD 1997 Lahore 617), the High Court found support in
the Universal Declaration of Human Rights 1948 and International Covenant on
Civil and Political Rights 1966 (not yet ratified by the Government) for striking
down a statutory provision i.e. Section 2 of the Exit from Pakistan (Control)
Ordinance 1981. The Court observed that the mere non-ratification of the
Covenant would not undermine the importance of internationally recognized
valuable rights specified therein.
2. Legislation
pertaining to women, in particular, laws which enhance the status of women
needs to be implemented. Art. 25
provides for affirmative action by making special provisions for the protection
of women and children. On this ground, the Supreme Court in the case of Shirin
Munir v Government of Punjab (PLD 1990 SC 295) held that admission quota for
girls in medical college, in addition to seats on merit, is permissible, it
being an affirmative measures under the Constitution. In the case of Inayat
Bibi v Ishaq Nazirullah (PLD 1992 SC 385), the Supreme Court ruled that
contrary to the applicable customary law, Christian women could inherit
property in the presence of male heirs. In reaching this inclusion, the Court
relied on the principle of justice, fair play and good conscience. And in the
case of Ghluam Ali v Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), the Supreme
Court rejected the legal claim of “adverse possession” by the brothers and
observed that such a claim cannot prevent sister from claiming her share in
ancestral property. In this regard, it is proposed:
i It be made obligatory on
the Revenue Authorities that in the event of death of a person, they should
carry out necessary mutation in the Record of Rights and transfer the shares to
each legal heir, male or female. This will entail a consequential amendment in
the Land Revenue Act 1962.
ii In the same way, the
Excise and Taxation Department, which keeps record of property, may also be
obligated to change such record, in the event of death, thereby allotting to
every heir his or her share in the property.
iii Devolution of inheritance be made
compulsorily registerable under Section 17 of the Registration Act 1908 and the
registration of title subject to payment of reasonable stamp duty.
iv. The civil courts be
empowered to act suo-moto or on the application of an aggrieved party by taking
cognizance of a dispute in inheritance. And while deciding the issue, the court
may utilize the service of an arbitrator or mediator or conciliator to reach an
amicable settlement of the dispute. In case no amicable settlement is reached,
the court may proceed to decide the dispute within a short period, say 3
months.
3. As already prescribed in
the National Judicial Policy 2009, the cases of women/children are prioritized
for early disposal. The trial/appellate courts should therefore, take up their
civil/criminal cases on priority basis and render judgments expeditiously to
redress their grievances and grant them relief.
4. The judiciary must continue to reform
and modernize itself for the effective discharge of its role/functions and so
as to protect the rights/liberties of citizens.
The enjoyment of fundamental rights by citizens through an affective and
efficient judicial system would have a positive impact on maintenance of peace
in society and improved law and order situation in the country. This would spur
trade, commerce and economic development. International/national DFls
(Development Financial Institutions), multinationals and local entrepreneurs/ investors,
before committing investment, definitely enquire about and take into
consideration the availability of a reformed legal system and efficient system
of judicial administration in the country. A country with chequered history of
constitutional deviations, repeated interruptions in its democratic system and
blatant disregard for law by high and mighty, has to pay special attention to
the need for creating a viable and sustainable legal system and system of
judicial administration. All eyes are therefore focused on the judiciary to
fulfill its legal and constitutional role and sustain the confidence of its
citizens and foreign or local investors.
5. Developed and advanced
nations have progressed in various spheres of life, including arts and science,
by strict adherence to the supremacy of law and a system of free, fair and
impartial dispensation of justice. Rule of law and total submission to law are
the hallmark of successful societies. Respect for and observance of human
rights is a sine qua non for good governance and economic and social
development. Good governance and socio-economic progress are contingent upon
adherence to the letter and spirit of the constitution. The present-day world
is characterized by phenomenal changes and developments. Such changes and
developments indeed warrant proper preparations and appropriate responses to
meet the challenges of time and address the emerging realities of society. Like
all other professions, the disciplines of law and administration of justice are
undergoing change and reform. Law is increasingly being used as an instrument of change to facilitate in the
orderly consolidation of gains and open new avenues of development. The
judiciary quite naturally is expected to play its due role in laying sound
foundation for good governance, economic development and social progress.
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