Human Rights in a Federal System

Mr. I. A. Rehman, Secretary General, Human Rights Commission of Pakistan (HRCP) and Mr. Asad Jamal, a human rights lawyer were invited by the CPPG to discuss Human Rights in a Federal System as part of the seminar series on federalism on April 1st, 2014.

CPPG FCRehman began by explaining that the UN system was based on voluntary adoption of laws and a state became obligated to adopt these laws only when it became party to a treaty. Discussing fundamental rights, he stated that these were already part of the political discourse in India before partition, and actually Pakistan’s first foreign minister was the representative of India when the Universal Declaration of Human Rights was adopted. Two other covenants of the UN, the International Covenant on Economic Social and Cultural Rights and the International Covenant on Civilian and Political Rights (ICCPR) were adopted in 1966 and came into force in 1976. However, these were largely ignored by Pakistan and only ratified in the past few years.

Addressing the incident of Mama Qadeer, a Baloch activist who directly appealed to the United Nations for missing persons in Balochistan, Rehman explained that the ICCPR had two optional protocols: first, citizens of the country could complain to the UN system regarding a denial of human rights; second, with an aim to abolish the death penalty. However, Pakistan had not signed either of the two optional protocols. But even if the optional protocols had been signed, one had to exhaust all domestic avenues including the Supreme Court, the High Court and the military before complaining against their own government to the UN. A second option was to approach the UN Special Rapporteur, explaining that the Government of Pakistan had failed to deliver on rights. But a Special Rapporteur could only send queries to the country and visit at the invitation of the country from which an appeal had been made. Pakistan had traditionally not responded to the enquiries of the rapporteurs, except for the last government which had been more responsive to UN enquiries.

Taking the discussion forward, Asad Jamal said that according to the recent trend, Pakistani judges had referred to and applied international laws while making court decisions. In 2007 when Nawaz Sharif wanted to come back to Pakistan, Judge Tassaduq Jillani had referred to ICCPR of which Pakistan was not a signatory, stating that it applied to our own Constitution Article 15 in ensuring the right to movement. Similarly in a decision on missing persons, the Supreme Court had passed a decision that reflected the Convention on Enforced Disappearances, which again had not been ratified, but similar assurances could be found in Pakistan’s Constitution.

“…the main problem in Pakistan was that anything said in the name of religion was neither discussed nor debated leading to a society which had become more intolerant of other’s beliefs.”

Discussing the difference between universal human rights and local rights, Rehman said that there were two routes to accepting human rights. The first where the constitution stated that whatever instrument was signed by the government would be enforceable through the courts. The second more popular one was that once a treaty had been signed, domestic laws needed to be made for its implementation. Assessing Pakistan, he stated that though it had signed The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the Convention Against Torture, still no laws had been made to implement these. As far as the conflict between Islamic and universal human rights was concerned, our constitution accepted all the fundamental rights given in the UN Charter except two: it didn’t recognize the right to change faith (theoretically this was recognized in the case of non-Muslims but got tricky for Muslims) and it didn’t recognize the right of all men and women of age to marry of their choice or equal rights for spouses in marriage.

“In a decision on missing persons, the Supreme Court had passed a decision that reflected the Convention on Enforced Disappearances, which again had not been ratified, but similar assurances could be found in Pakistan’s Constitution.”

He discussed how an excuse of things being contrary to Islam had been used during the adoption of international treaties. Islam meant different things in different regions. So, giving education to children in Northern Pakistan might be considered un-Islamic, but in countries like Oman or Mali, it was not. Similarly, examining Muslim countries in light of CEDAW revealed that countries interpreted laws differently. Therefore, a case could be made that if a legal provision was un-Islamic, then all Muslim countries should agree on this, and if they didn’t, then countries might be referring to their cultural practices instead of religion. Thus, one could suggest that tribal and feudal customs in the North of Pakistan were being interpreted as enjoining Islam. Rehman then drew a comparison of Meccan and Madinan Quranic revelations arguing that while Meccan revelations addressed entire humanity and lacked punishments, the Madina revelations were meant to be for the Medina state and thus had restrictions and penalties. He suggested that limiting oneself to Madina revelations could not deliver human rights. However the ulema maintained that the later revelations canceled the earlier ones. Thus, taking Quran as the basis for human rights charter would be contestable. But, the main problem in Pakistan was that anything said in the name of religion was neither discussed nor debated leading to a society which had become more intolerant of other’s beliefs.

Discussing the influence of Sharia on compliance with international conventions, Jamal gave the example of the ‘death penalty’. He stated that during the time a discussion on ‘death penalty’ was occurring at the UN, the same discussion was held in Pakistan in the 1950s and in 1959 a resolution supporting the abolition of death penalty was passed. However as Pakistan started passing “Islamic” laws in the 1980s, it departed from the earlier resolution against death penalty arguing that Islam did not permit this. Only much later, these reservations were withdrawn, however, compliance with Sharia remained a question in the ratification of treaties.

Discussing the relationship between federalism and human rights, Rehman stated that federalism itself was a basic human right especially where cultural entities existed and demanded a federation. Furthermore, selfgovernance as well as the desire to participate in the government of the country was also a basic human right, which could be achieved through a federation along with the presence of a local government. According to the UN, states were responsible to honor human rights depending on the resources available. But many states including Pakistan had taken advantage of this leeway to not admit that they had the resources available to make education and health universal for all. Similarly, culture specific conditions on laws were used as an acceptance for the deviation from human rights. He disagreed that human rights were a western concept arguing that why would the US then not respect them. He stated that one wrong could not be answered with another wrong. Violations did not cancel out human rights. However, how one responded to these violations was important.

“The Frontier Crimes Regulations in FATA not only violated the Pakistani constitution but also international human rights laws, and required immediate and appropriate reform.”

Jamal added that in a culturally diverse country like Pakistan, federalism should be considered a human right, especially in light of the right to self-determination — a recognized international law. However a major issue was implementation which the 18th Amendment had attempted to rectify to a great extent, but numerous problems still remained. Dealing with the separatist movement in Baluchistan was one such example, and could be dealt as similar to how the United Kingdom had allowed to hold a referendum to deal with the popular demand for an independent Scotland. Another issue was how to apply international law at the provincial level especially for issues like labour, health and education which came under the provincial domain. Further, in the case of criminal law which remained a concurrent domain, the federation’s decision prevailed over provincial laws. He stated that the above were linked to the law-making abilities of the provinces, as well as the need for effective mechanisms to work in such a system.

“…federalism itself was a basic human right especially where cultural entities existed and demanded a federation.”

He gave the example of the National Human Rights Commission, whose legislation was passed in 2012 giving it legal powers equal to penal courts in terms of collecting data and evidence. While the Commission followed international human rights laws, it was disappointing that the intelligence agencies and armed forces did not come under the Commission’s powers unless the federal government allowed such interaction. Further, its legislation greatly digressed from the Paris Principles, the internationally recognized codes for national human rights institutions. This meant that the National Human Rights Commission would not be able to probe a number of issues that were binding under Pakistan signed international treaties.

Referring to the enormity of the problem, Asad Jamal observed in conclusion that there were still whole ‘orphaned’ regions in Pakistan, which did not have the legal status of a province. The Frontier Crimes Regulations in FATA not only violated the Pakistani constitution but also international human rights laws, and required immediate and appropriate reform.

This discussion was followed by a Q&A session. In answering a question on whether separatist movements offered a paradox between the fundamental human right for self-determination, and the government’s right to hold the federation together, Jamal stated that it was individuals or communities that had fundamental rights, not the government, and the intention of the Declaration of Human Rights was to make states more responsible. Rehman commented that the basic concept of a federation was that people who had different ways of life were not willing to hand over all powers to the centralized state. He argued that to the best of his knowledge, no federation had become a unitary state and instead only the opposite had happened.

“the right to information was a human right because by keeping its decisions secret, a government could affect an individual’s human rights.”

In answering a question, whether the ‘Right to Information’ laws were in conflict with the National Commission on Human Rights, Jamal said that the federal Right to Information Ordinance 2002 was more limiting than enabling. It had 21 exceptions to the right to information against which citizens could not demand information, which for him were a violation of constitutional provisions as well as international human rights law. Similarly, the Anti-Terrorism Act had several provisions that were in violation of international human rights law and the constitution, while the Pakistan Protection Ordinance was just indefensible and the worst form of legislation. Rehman added that the right to information was a human right because by keeping its decisions secret, a government could affect an individual’s human rights. The British had started a culture of informing people such that all major decisions were published in the gazette. Though Pakistan had inherited this tradition, it had not taken this tradition forward to create an open government.

With regards to the role of technology in terms of personal security and individuals’ personal information, Jamal said that while digital electronic surveillance had been made admissible as evidence in court, still this law had not been used even in cases related to terrorism.

Answering a question on how a feudal system fit into a federation, Rehman articulated that without land reforms human rights could not be achieved. He stated that although after World War II, a major transformation took place whereby communities gained the right to freedom regardless of their race, color, size etc., and affirmative action was supposed to free these societies from tribalism and feudalism. But, this did not happen in Pakistan. As a result, a system of development was imposed on the people.

Responding to a question of how law, morality, politics and religion were related in a federation, Dr. Saeed Shafqat responded that law and politics could not be separated from each other, and morality should not be confused with politics. In the real world, principles of morality and ethics could not deliver if laws did not back them. It was the constitution that determined power sharing, its exchange and fair distribution in a nation.

“Violations did not cancel out human rights, but what was important was how one responded to these violations.”