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A crisis of laws

Article 20 of the Constitution is related to the freedom to profess religion and to manage religious institutions.

In the relevant part, it says, “Subject to public order and morality: a) every citizen shall have the right to profess, practise and propagate his religion; and b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.”

Article 36 further goes on to establish the protection of minorities, saying: “The state shall safeguard the legitimate rights and interests of minorities including their due representation in the federal and provincial services.” Further articulations lay out more protections against discrimination in hiring, in educational institutions, and the like.

These provisions exist and yet, as we saw this past weekend, Pakistan’s religious minorities are probably some of the most vulnerable populations in the world. Sunday’s attack on the All Saints Church in Peshawar killed over 80 people and injured more than 130.

It was gruesome even in a country where such attacks are not unusual. It challenged the very basis of the constitutional provisions cited above and made a mockery of the idea that minorities in Pakistan, be they sectarian or religious, enjoy any sort of equality.

Not only are those who are not Muslim targeted by militant groups, a million instances of everyday discrimination, from blackmail to false allegations of blasphemy, hound them in their existence as Pakistanis — though Muslims too are far from immune to these violations.

The vast chasm between the realities of life and the constitutional and legal provisions governing those realities is not limited to minorities. Women are another beleaguered lot in Pakistani society, facing similarly tremendous gaps between what is promised them and what they endure.

Equality, freedom from harassment, a stop to killings in the name of honour, education, representation at every level of government are all things that have at one point or another been promised and even legislated on. Few, as everyone is aware, have been implemented.

The condition of Pakistani women, largely illiterate, routinely harassed and denied even basic security against bodily harm and sexual assault, is probably one of the worst in the world.

Against this context of helplessness, it has become difficult to estimate the value of legislatively led reforms as a means of change. Take specifically the example of the Women’s Protection Act. This legislation, which was passed in 2006, included amendments to existing criminal law.

It accomplished the task of bringing the crime of rape back under the Pakistan Penal Code, addressing the legal loophole that left rape victims vulnerable to prosecution under the provisions of the Zina and Hudood Ordinances.

Four years after the passage of the legislation, in December 2010, the Federal Sharia Court declared that Sections 11, 28, and 29 of the Women’s Protection Act were unconstitutional, in that they took away the “overriding effects of the Hudood Ordinance of 1979”.

The court ordered that these sections not be effective after June 22, 2011. With the matter now in appeal before the Sharia appellate bench of the Supreme Court, the Women’s Protection Act stands — at the moment. What its future will be remains a moot point.

Last week the Council of Islamic Ideology also opined that some provisions of the Women’s Protection Act were not in line with Islamic injunctions. Saying that Islam sets out provisions for criminal procedures, the Council was also against the use of DNA as primary evidence across the board in all rape cases.

The CII’s conclusions came after some internal opposition, with media reports suggesting that there were scholars within the council who held dissenting views. The fact remains, however, that efforts to undermine progressive legislation on women’s rights have been made.

In a democratic polity, campaigns for the passage of just and equitable laws, particularly those that protect weaker groups, are the basis of promoting social change and enforcing equality. In the case of religious minorities, the laws exist but are not enforced. In the case of women, laws that were passed have seen opposition.

In light of these examples, the failure to enforce existing laws that protect religious minorities and the opposition to new laws that would protect women both suggests a society where the law has become redundant.

In light of this, advocacy around legislative initiatives — demanding more laws or better laws or enforcement of laws in Pakistan — appears to be a futile endeavour.

Laws that exist but do not fit an exceedingly narrow version of Pakistani identity mean absolutely nothing, in that there is no hope of their enforcement.

Impermeable to the changes that can be affected by legislation, Pakistan exists despite laws, or beyond them, following instead a brash unwritten code of mass populism rather than legislated prerogative.

In other, less dismal days, this article could have ended with an exhortation for the new government. It would have counted down the hundreds of horrific cases of sexual assault, the most recent in the country’s imagination being that of a young child.

These ordinary retaliations, in Pakistan, seem to be the strategies of another time, when the very basis of consensus — of the Constitution — was not so contested. In the Pakistan of today, the arguments and agitations can no longer be for new laws or better laws. Instead, the country needs to revisit that original basis of consensus, and ask whether it still applies and if it means anything at all.

The writer is an attorney teaching constitutional law and political philosophy.


Rafia Zakaria, "A crisis of laws," Dawn. 2013-09-25.
Keywords: Social sciences , Social issues , Social ethics , Society-Pakistan , Social laws , Social rights , Women rights , Women-Pakistan , Hudood ordinance , Zina Ordinance , Criminal law , Education , Democracy , Women , Muslims , Violence , Pakistan , DNA , CII