Human Rights and Democratic Development in Pakistan

by Hina Jilani

Conclusions and Recommendations

Democratic Development

     Democracy in Pakistan remains fragile and strained. The legitimacy gained through elections is merely superficial, and has not created a sense of participation amongst the population. Imbalance in power and inequalities at different levels of social and political life persist, making the availability of opportunities unequal.

     The development of the political process is constrained by the legacy of long periods of military rule. Parliamentary democracy continues to be challenged by the constitutional restraints imposed on it in order to retain a share of power for the military establishment. Recent attempts by the Parliament to assert its superior claims to govern are, however, encouraging (277).

     Issues of national integration are critical to Pakistan's democratic development. Federalism can only succeed as a system of government if it is strongly complemented by provincial autonomy.

     The heterogeneous nature of Pakistan's population needs to be recognized and interests of the different ethnic groups have to be accommodated in order to establish their sense of participation.

     Aggressive claims to an ideological base for the State have resulted in different forms of intolerance. Religion has become a basis for division of population into first- and second-class citizens. Classification of citizens into majority or minority on the basis of religion is not a healthy sign for democracy.

     There is no tradition in Pakistan of an interactive relationship between the State and civil society. Sporadic confrontation between State authority and organizations such as trade unions or political parties cannot take the place of constructive engagement of civil society institutions to check and balance State organs. Recent years have seen the emergence of a civil society in Pakistan. However, State institutions have yet to fully recognize their presence, or the legitimacy of their interventions.

     The exercise of the fundamental rights to freedom of expression and association have improved considerably. This positive development can be utilized for bringing about a change in social attitudes and in creating a better environment for fostering democracy. Any lingering threats to these freedoms must be removed.

     While the potential for participatory democracy has increased since 1988, centralized control of governance must be loosened in order to promote democracy at the grassroots. Power tends to become absolute if the sphere in which it is concentrated remains small. A crucial solution to vestiges of authoritarianism and elitism is the devolution of authority.

     The performance of representative institutions has done little to instil support for democracy. With access to the State not improving, people's expectations are doomed to disappointment. This has spawned a culture of patronage, as the patron-client relationship limits autonomy of access. The popular will to demolish such practices is, however, not strongly in evidence.

     Democracy, though adopted as a system of governance, has yet to find roots in the attitudes both at the level of the State and society. Feudal structures and traditions, class stratification, and an environment of discrimination and intolerance still prevail, and have become a hindrance in the democratization of the State and its institutions. While the poor, in general, remain powerless, women and minorities are visible victims of non-democratic practices and attitudes.

     The functioning of the representative institutions themselves leaves much to be desired. Concentration of parliamentary representation in the hands of specific social and economic classes has created an imbalance in the representation of the interests of different groups. Policies beneficial to the country at large, and which would curtail the privileges of these classes, are strongly resisted (278). They have failed to demonstrate a responsible attitude towards the interest of the people, and politics for them has become more a game of "tit for tat" amongst the different political parties (279). However, prospects for democracy are firmly linked to the strength of representative institutions, and its sustainability depends on their conduct.

Recommendations

1. Efforts should be made to generate national consensus on issues of governance. The smaller provinces must be more involved in decision-making on national issues. Plurality needs to be accommodated in these policies. The State must refrain from suppressing legitimate assertions of identity. On the contrary, national integration and reconciliation must be sought by creating a sense of "common good" in the development and strengthening of democracy in the country.
   
   
2. Steps for decentralizing power are a priority. Local bodies must become an essential institution of governance, and arrangements for holding elections for local bodies must be urgently made. The local bodies Law must be amended to broaden the power base, and to make devolution more effective. Local bodies must be recognized as the third tier of government, and the Constitution amended to provide for this. Representation of the broad spectrum of interests including those of workers, peasants, women and youth should be ensured as promised by the Constitution.
   
   
3. Political parties must promote democratic culture. They must demonstrate their commitment to democratic practice by holding elections within their own organizations. Parties must encourage wider participation by broadening the social and economic base of their membership.
   
   
4. Parliamentary conduct of parties must be radically improved. Political polarization has seriously undermined the political process and has resulted in errors of governance. Rival parties must demonstrate a more responsible attitude towards each other in the interest of democratic development.
   
   
5. An enabling environment for civil society should be created, for example, by the removal of restrictions on the functioning of NGOs. The electronic media must be freed from government control. The electronic media and the press must play a more active role in engendering a progressive and forward-looking outlook. Civil society institutions must build accountability mechanisms and maintain transparency in their own work, and at the same time monitor the conduct of State institutions.
   
   
6. Academic freedom must be guaranteed and State interference in universities and other institutions of higher studies be eliminated. Interference in research activities, preparation of textbooks, and administration of student affairs must cease. Attempts to make academic work conform to State-sponsored ideology must be strongly denounced.
   
   
7. Laws placing illegal and arbitrary restrictions on the fundamental rights guaranteed in the Constitution must be repealed. These laws have been used by the State for political victimization and persecution of dissidents. Restrictions on freedom of the press, or practices that can afford the State opportunities to control press freedom must be abolished. Threats by non-State actors against journalists, lawyers, human rights activists and academics, designed to curtail the freedom of expression and performance of professional duties, must be treated as criminal acts and be systematically prosecuted by the State.
   
   
8. The right to franchise must be made equal throughout the country. The system of separate electorates must be removed to improve the participation rights of minorities. The extension of adult franchise to the Federally Administered Tribal Areas for the first time in the 1997 elections is an encouraging sign. Further steps must be taken to include these areas in the policy and legislative initiatives applicable in the rest of the country.
   
   
9. Religious intolerance must be discouraged without, however, repressing religious freedom or the freedom of expression. The latter must, of course, remain subject to the respect for the security and dignity of others. The media and other civil society institutions must face the challenge of resisting religious orthodoxy. They must build public opinion on the issue. This would help discourage the government from conceding to the forces of orthodoxy and strengthen its will to take necessary steps to eliminate intolerance.
   
   
10. Laws infringing on the freedom of religion must be repealed. The ant- Ahmedi laws merit special mention in this regard. Laws used and misused as instruments of persecution on religious grounds must also be repealed. The efficacy of the law of blasphemy needs to be reappraised. This law in particular needs review to prevent abuse by religious extremists.
    
    
11. Religious and sectarian motivated crime must be treated with perspicacity, but no false sensitivities should inhibit the prosecution of those responsible, lest an impression be conveyed that impunity can be expected for crimes committed in the name of religion.
    
    
12. More respect for women's rights to equality, freedom from discrimination and protection against violence needs to be shown both by State institutions and the society in general. Legislation for changing social attitudes must receive full support of public policy, if it is to succeed. Women's fundamental rights must not be diluted or be compromised at the altar of religion, cultural practices or tradition. Laws discriminating against women must be reformed to bring them into conformity with CEDAW, which was ratified by Pakistan in February 1996.
    
    
13. The political participation of women must be increased through affirmative action, if necessary. Special measures should be adopted for achieving women's involvement in mainstream politics.
    
    
14. Pakistan's record of ratification of UN human rights conventions improved with the ratification of CEDAW and the Convention on the Rights of the Child. However, most of the major human rights conventions remain unratified. Pakistan must, in particular, ratify the Covenant on Political and Civil Rights, and that on Economic, Social and Cultural Rights. These should become the standards against which rights are tested and State conduct evaluated.

Rule of Law and the Administration of Justice

     Failure of the judicial system to dispense justice has eroded respect for the rule of law. This has led to a tendency in the general public to circumvent the law. The perception that the judicial system does not work has become common, and is used to justify excesses by the executive branch of government. Many laws do not conform to people's sense of justice and, therefore, do not receive the support necessary for the promotion of the rule of law. Laws that discriminate on the basis of gender, religion, and economic and social status generate dissatisfaction and resentment. Legislation using non-representative procedures and by authorities whose legitimacy is contested, has resulted in the population having no feeling of ownership towards the law. It is difficult to sustain either the credibility or the integrity of the system of justice in these conditions. Steps necessary for ensuring independence of the Judiciary need to be complemented by measures to correct the judicial system. The crisis linked to the weaknesses in the administration of justice has suscitated oppressive measures. The resort to special courts and extraordinary legislation has proved counter-productive. The creation of a parallel legal system through the enforcement of Islamic penal laws and the establishment of the Federal Shariat Court has created massive confusion, and has assisted neither in the dispensation of justice nor in the enforcement of law.

Recommendations

1. Prospects for parliamentary democracy in Pakistan can be improved through more responsible law-making by the legislature. Legislation by ordinance must only be resorted to in emergency situations. The practice of re-promulgation of ordinances runs counter to the spirit of representative governance. Ordinances, if promulgated, must be placed before the Parliament for enforcement in accordance with law.
   
   
2. Bills proposed to the Parliament must be properly disseminated for public debate and to afford an opportunity for critical appraisal before they are passed.
   
   
3. All parties in the Parliament should, by consensus, decide to review the ordinances in force today, and regularize, amend or repeal them through Acts of Parliament. Any action must, however, be preceded by a thorough debate in Parliament and adequate opportunity for involving the public in debate.
   
   
4. The process of separation of the Judiciary from the Executive needs to be expedited. The process is far from smooth and if the hurdles are not removed expeditiously, they are likely to become intrinsic to the system and the objective of this exercise could be totally lost. This could entirely destroy popular confidence in the rule of law and the system of justice.
   
   
5. Justice must be dispensed through the ordinary courts under ordinary law. Special laws and tribunals have done great injury to the credibility of the judicial system, and have eroded the principle of equality before the law. Procedures adopted in an attempt to reduce the incidence of serious crime and terrorism fall far short of standards of fair trial and due process.
   
   
6. The Judiciary and the Bar must take steps towards establishing respect for the rule of law. This can only be done if discriminatory or oppressive laws, designed to promote the vested interests of the power elite, are identified and a forceful campaign for their repeal is launched. Judicial conduct must reflect a respect for justice dispensed even-handedly and without fear or favour. The Judiciary must also rise above social biases, especially against women, and ensure that universal human rights standards are uniformly applied in the administration of justice.
   
   
7. The Judiciary, like all other institutions, must be accountable. Steps for creating appropriate mechanisms of judicial accountability should be supported by the Judiciary. The law of contempt of court places an unjustified restriction on fair comment on judicial conduct, or constructive criticism of judicial decisions. The law must be revised to allow comment and criticism, without undermining the dignity of the Judiciary as an institution.
   
   
8. Uniformity in the dispensation of justice should be ensured by better supervisory control of the subordinate judiciary through regular inspection and tighter disciplinary control by the superior judiciary. The Federal Judicial Academy should provide more adequate training for judges, and enhance their awareness of human rights standards.
   
   
9. The scope of public interest litigation must be better defined to save it from becoming inconsequential. Limits to judicial activism also need to be defined. Bar associations, other non-governmental organizations and human rights groups must initiate a debate on this process.
   
   
10. Delays in the courts is a matter of serious concern. Steps must be taken on a priority basis for reducing the back-log of work. The methodology of work employed both by the subordinate courts as well as the superior courts is outdated and archaic. This leads not only to delays, but also compromises the standards of fairness. Much of the problem can be allayed if this methodology is substantially changed.

Life, Liberty and Security of Person

     Security rights suffer extreme and grave violations in Pakistan. Where the State has resorted to violence itself, it has also failed to secure the life, liberty and property of citizens from non-State elements engaged in crime or terrorism. It seems that no rules apply to law enforcement agencies which have violated people's rights with impunity. The conduct of these agencies instils fear in the common citizen rather than inspiring confidence. These forces have not only demonstrated extreme brutality in the enforcement of law, there are serious allegations of the involvement of the police in criminal activities. This has been conceded by superior officers of the forces themselves.

     Mismanagement of ethnic relations, and leniency towards sectarian and religiously motivated crime have made the right to security of person more vulnerable. Religious intolerance has been fostered by the laws and policies adopted by the State, especially during Zia's Islamization process. Successive governments have dissimulated their own inability to check the waves of intolerance by stimulating false sensitivity around all issues related to religion. Hate propaganda through the media, the mosques and publications of religious organizations has contributed to increase in violence resulting from religious intolerance.

     Grievances of the different ethnic communities in Sindh have not received an appropriate response from the State. Their reaction to State policies has been seen as a law-and-order problem, rather than a political situation that requires deeper investigation and a reversal of policies that have led to this situation. At the same time, the State must cease the irresponsible practice of manipulating ethnic tensions for its own interests. Intelligence services must be controlled and their harmful interventions in the politics of Sindh, and the country as a whole, strictly forbidden. While acts of terrorism cannot be condoned under any circumstances, it is apparent that the State has responded to terrorism by committing terrorism itself, through extra-judicial killings, torture in police and prison custody, detention without trial, and general harassment of the public.

     Social attitudes nurtured by the culture of control, authoritarianism and use of violence, have threatened the security and liberty of weaker sections of the society. Bonded labor, slavery and slave-like practices are still committed in Pakistan. The incidence of violence against women is shamefully high, and has not been appropriately deterred by the authority of the State.

Recommendations

1. Ethnic tension must be reduced through seeking political solutions at the national level, with the help of organizations and individuals enjoying credibility with the parties to the conflict. The process of national reconciliation must be transparent, and the conduct of all parties visible to the public. Allegations of mala fide on the part of the State or other parties to the conflict in the process of reconciliation must be established through appropriate judicial proceedings. The State must first establish its bona fides, if any such venture is to inspire confidence.
   
   
2. The police system needs to be thoroughly restructured. Powers of the police must be curtailed and their functioning brought under judicial control. The police must be retrained, subordinating its enforcement role to a service orientation. The training of the force must include an understanding of human rights norms. More serious attention to police reform should be given than has been demonstrated so far. The work of different police reform commissions has not been made public.
   
   
3. Extra-judicial killings, deaths in custody, and complaints of torture and illegal detention must receive unequivocal response from the Judiciary. Penalties must be imposed on personnel found to have committed such acts. These penalties should not be limited to disciplinary action under departmental rules, but such acts must be prosecuted under criminal laws.
   
   
4. Deployment of several different forces for law enforcement and investigation facilitates the commission of irregularities and the concealment of excesses. More uniformity must be created in law enforcement. The use of paramilitary forces must, in any case, be discontinued.
   
   
5. Conditions in jails are unacceptably poor, resulting in violation of the basic right to dignity of the human person. Recommendations of jail reform commissions to improve these conditions should be properly implemented. Prisons must be more closely monitored by judicial authority, and more accessible to non-official monitors. Delays in trials have resulted in unjustifiably long periods of pre-sentence detention. The judicial system must be modified to ensure more expeditious disposal.
   
   
6. Cruel, inhuman and degrading punishments must be abolished. Pakistan must give serious consideration to the abolition of the death penalty.
   
   
7. Pakistan should be urged by the international community to ratify the UN Convention on Torture, and to subscribe to the code of ethics for law enforcement personnel.
   
   
8. The practice of bonded labour has not ended despite the enforcement of the Bonded Labour (Abolition) Act of 1992. State authority must be forcefully used to end this practice and to apply the penalties prescribed by the law on violators.
   
   
9. Violence against women is not only tolerated, but in many cases condoned by State authorities and the Judiciary. Incidents of gender violence must be forcefully condemned by the authorities, before social attitudes can begin to change in this regard. No leniency should be shown in the imposition of penalties for committing acts of violence against women. The human rights of women must be duly respected. Violation of their rights should not be condoned as concession to custom, cultural practice or religious precepts. Women should not be deprived of their fundamental rights to liberty and freedom of movement in the name of protection.
   
   
10. Penal laws which discriminate against women and undermine their legal status must be repealed. The criminal justice system should be made sensitive to women's special needs in order to guarantee their security and bodily integrity during any kind of contact with the police or investigating agency. Appropriate mechanisms should be created for the reporting, investigation, prosecution and trial of the crime of rape. These mechanisms should afford maximum facilities to women for assisting prosecution. Adequate arrangements should be made for ensuring the physical and mental well-being of the victim immediately after the crime, and subsequently.

NOTES

 277)     After the elections in February 1997, the notorious Article 58(2)(b) of the Constitution, allowing the President the power to dissolve the National Assembly, was removed through the Constitution (Ninth Amendment) Act. Return

 278)     The proposal for income tax on agricultural income is one example illustrating this problem This proposal is being strongly resisted by feudal dominated legislatures, especially in Sindh and Punjab. Return

 279)     In a recent press interview, a government minister is quoted as having said that the government rejected the proposal of the opposition for amendment to the Constitution to restore reserved seats for women in Parliament, as a policy of "tit for tat" for what the PPP government had done to them when they were in power. Return

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