The constitution of Pakistan articulates the Fundamental rights (Article 8-28) for its citizens sans any discrimination of color, creed, sex, or religion; followed by the Principles of Policy (Article 31-40). Together it is the operational manual for the State to ensure “access to and provision of Rights’ to the citizen.
Unprecedented socio-political polarisation has inundated the public discourse with the term Constitutional Rights to suit one’s argument but fails to refer to its conditionalities. Only six out of twenty-eight fundamental rights are unconditional. 75 percent of the fundamental rights are “conditional rights” that are subjected to ‘reasonable restriction of law’ in (i) public interest (law & order, decency, morality); (ii) glory of Islam; (iii) sovereignty & integrity of Pakistan including ideology, defence, security, relations with friendly States; and (iv) contempt of court. These ‘reasonable restrictions’ remain undefined to date. The most important unconditional right is Article 14 – the inviolability of the dignity of a man; and Article 25A – which articulates equality of citizens before the law and equal entitlement to the protection of law.
The Principles of Policy, six out of ten, obligate the State to ensure equality of access, provision, and protection of fundamental rights, especially for the marginalised sections of society. These include (i) Article 33 – to discourage parochial, racial, tribal, sectarian, and provincial prejudices among the citizens; (ii) Article 34 – to ensure participation of women in all spheres of national life; (iii) Article 35 - to protect marriage, family, mother, and child; (iv) Article 36 – protection of minorities to safeguard their legitimate rights and interest including their representation in federal and provincial services; (v) Article 37 - to promote social justice and eradication of social evil; (vi) and Article 38 – to promote the social and economic well-being of the people.
In our society women, children and trans persons are most marginalised. Being a religious minority enhances the level of both discrimination and vulnerability. As per the Digital Census 2023, 96.35% of citizens are Muslims. Only 8.7 million, out of 241 million, are non-Muslims awaiting the State to provide for and protect their constitutional rights.
Let’s start with discrimination on the basis of religion. Article -2 of the Constitution declared ‘Islam’ as a State religion without elaborating which Islamic sect/sub-sect is being referred to - Shia or Sunni? Article 260, under the Second Amendment to the Constitution, defined Christian, Hindu, Sikh, Buddhist, Parsi, Bahai, and Ahmadis as religious minorities. We assume that authors of the Constitution were well aware of the sect the religious divide, its socio-political impacts, and linked violence e.g., in 1963 at Therhi, Sindh, Shia-Sunni Deobandi clash led to 118 deaths; the Lahore riots of 1953 officially recorded 20 deaths in the violence towards Ahmadiyya community. Yet they chose to look over it. Shias, despite being Muslims, continue to be religio persecuted (latest in Kurram) along with the Ahmedis being killed weekly.
The curriculum has India as a top national enemy that gets synonymised with the Hindu religion rather than Indian State policies. It leads to unguarded derogatory remarks like Kafir towards Hindus in schools
The Constitution puts the responsibility on the State to ensure an ‘Islamic way of life’ (Article 31); eradicate ‘social evils’ (Article 3); and set an unachievable religio-moral standard for public representatives (Article 62-63). A non-Muslim cannot be head of State or government that not only violates Article 14 but revokes their equality as citizens. The authors of the Constitution yet again turned a blind eye as to how it would impact the citizenry of religious minorities. The value of Article 2 and the Second Amendment, besides appeasing radical religious rights, remains to establish its worth.
Article -22 is about religious safeguards in educational institutions – ‘No person attending any educational institutions shall be required to receive religious instruction, or take part in any religious ceremony, or attend religious worship if such instruction, ceremony or workshop relates to a religion other than his own.’ It is being violated across educational institutes as religious minorities compulsorily study Islamiyat as a subject even for CSS; memorise Quranic verses; and are part of school Assemblies having religious prayers. The curriculum has India as a top national enemy that gets synonymised with the Hindu religion rather than Indian State policies. It leads to unguarded derogatory remarks like Kafir towards Hindus in schools. The same is the case for Christian citizens by are categorised as cleaners and called churra. Besides Article -22 it violates Article -14 as well but who cares.
Article 4 defined ‘protection of the law as an inalienable right of every citizen” by articulating that ‘no action detrimental to the life, liberty, body, reputation, and property of any person shall be taken except in accordance with law’. Article 25 A – equality of citizens, reinforced Article 4 BUT when it came to defining discrimination it only referred to ‘on the basis of sex’ and again turned a blind eye to discrimination on the basis of race and religion. Killing on the basis of religion is a crime but gets societal impunity - be it the killing of Governor Salman Taseer, Minister Shabaz Bhatti, or the almost weekly murder of an Ahmedi citizen that compromises Article-4 and Article 36 - protection of Minorities where the State is to safeguard legitimate rights and interest of minorities.
Rights can neither be discriminatory nor conditional. Citizenry rights need to reset on the principle of equality, otherwise, Pakistan will stay at the lowest in all rights-based indices
Consent and rights of the Children are not as evident in the constitution. The International Convention on the Rights of the Child defines a child to be under 18 years of age. Legally age of majority is not uniform in Pakistan and oscillates between 16 and 18. Parents are taken as social repositories of their consent till they come of age. Article 25A obligates the State to provide free education for 5-16 years of age and yet 2.5 million are out of school. The marriageable age for girls is set at 16, except in Sindh, 4% of girls are married under the age of 15 and 18% under the age of 18. Article 38 obligates the State to promotion of social and economic well-being of people. Poverty is top-ranked when children are pushed into child labor and child marriage. In both cases, consent is usurped by parents for economic gains and invariably includes physical abuse, mental torture, and, in some, sexual assault. Article 35 is about the protection of family, marriage, the mother, and the child. National data informs that 25% of married adolescent girls aged 15-19, can not make any decisions regarding their health; 90% never discussed pregnancy-related health issues with LHV; and 83% had at least one pregnancy-related complication.
Trans rights are equally doomed. Article 34 obligates the State shall ensure full participation of women in all spheres of national life. But trans persons do not even merit a mention in the constitution and the discourse of their rights is stretched to be covered under discrimination on the basis of sex. Despite progressive legislation, Trans persons fight for their existence and dignity as citizens under Article 14. Gender dysphoria a medical condition on purpose is both synonymised and confused with LGBTQI which is a sexual lifestyle preference. The Digital Census 2023, reported only 20,331 trans persons as compared to 21,774 in 2017 which is a clear anomaly. The societal norm continues to attach shame and sin to the parents when a trans-child is born. They remain socially ostracised with the exception of a few who we see as the face of trans advocacy. Imagine a trans child thrown in the garbage or given to a trans-guru by parents – where do Articles -14, 25, 35,37, and 38, to say the least, stand for them?
Legislation and policies do not operate in a social vacuum. It requires an affirmative and inclusive public discourse and societal posturing. Rights can neither be discriminatory nor conditional. Citizenry rights need to reset on the principle of equality, otherwise, Pakistan will stay at the lowest in all rights-based indices.