Human Rights Journal
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I Editorial Team Editor Umar Mahmood Khan Sub-editor Ahmed Uzair Assistant Editors Atira Ikram Awais Khan Noor Ejaz Chaudhry Sana Farrukh Shaikh Sevim Saadat Assistant Researchers: Noorbano Khan Karimullah Sraw Zainab Fakhar II Human Rights Review Acknowledgements The editorial team of the Human Rights Review would like to thank the American Bar Association Rule of Law Initiative for their help and assistance in making this publication possible. In particular, Mr. Asad Jamal offered invaluable support and encouragement over the last year. We would also like to thank the UCL administration, especially our dean, Dr. Asad, who was a constant support throughout the process. Special thanks to Dr. Paula Newberg for her valuable input and direction. III Editor’s Note One of the purposes of the creation of United Nations Organization (UN) was to ensure that human rights violations like those perpetrated by the Nazi regime in Germany could not be allowed to be repeated again. It looked like a distant dream in 1945 but over the course of the last six decades, the world has covered significant ground in realization of this dream. It started with the United Nations Declaration of Human Rights 1948 (UDHR), as for the first time human rights were internationalized. A common standard was provided to be achieved by all member states. The coming decades witnessed a slow but steady progress in this field, and in 1966, through the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR), the principles espoused by the UDHR were made binding. Many states accepted the principles, ratified the treaties and started the process of bringing domestic law in consonance with the treaty principles. However, during the same phase, Pakistan went through probably its darkest age under the military rule of General Zia-ul-Haq. The 1973 Constitution of Pakistan (Constitution) was held in abeyance and martial law was imposed. New laws were made which either completely or partially conflicted with the fundamental freedoms enshrined within the Constitution and principles of international human rights. The most radical interpretation of Islam was used to justify the promulgation of laws like Hudood Ordinance and Penal Code Amendments (Blasphemy laws). Minorities and women were relegated to second class citizens, and laws were used to persecute the political opposition and minorities. This Islamization left a lasting dent in Pakistan’s human rights ambitions. While we no longer live in that time, today Pakistan is going through a challenging phase once again. The country is embroiled in an ongoing war on terror. The armed forces have been fighting terrorist elements for years now. Yet the law and order situation in Pakistan keeps on deteriorating. The pressure on the police and armed forces to respond forcefully to curb terrorism is immense, and therefore, the response at times is disproportional and in violation of human rights standards. Our domestic legal regime did not envisage these turbulent times. One such problem is torture. It is a routine practice during physical remand of an accused. It is used mostly to elicit confessions and/or to recover incriminating evidence from the accused. The investigating agencies in Pakistan are so reliant on incriminating evidence recovered from the accused during his/her physical IV Human Rights Review remand, that Magistrates have stopped resisting applications for such remands. In turn, the entire system has become dependent on this type of evidence, and jurisprudence has developed which condones the mechanical allowance of a physical remand. While torture is prohibited in article 14 of the Constitution, in absence of any structural accountability mechanism there is virtual impunity for the perpetrators, who are mostly either policemen or members of the armed forces. Absence of any specific legislation in this area which criminalizes torture in Pakistan has exacerbated this problem. Thus it is extremely difficult to bring complaints against instances of torture and hold perpetrators responsible. Therefore, the need for relying on international standards is important. While Pakistan may have ratified some international human rights instruments like the ICCPR, ICESCR, CEDAW and CAT (among others), Pakistan still hasn’t opened up to the idea of international human rights laws application domestically. One of the major reasons is the lack of awareness. This dearth of adequate knowledge in the subject is due to a variety of factors, chief among those is the fact that international human rights law is not offered in the majority of law colleges across Pakistan. Therefore, many lawyers and judges are not well acquainted with this rather new stream of international law. Apart from law colleges, there is very little exposure opportunity in this area. No law college in Pakistan publishes an international human rights journal. While some research societies have publications which cover international human rights law, the primary focus of these research publications is in the area of Public International law. In the circumstances, it is essential that awareness and activities which may generate interest in this area be given priority. It is also significant to create some legal scholarship in this area. This journal endeavors to serve these two purposes and balance them. As a result, it has provided a platform to students, some of whom have never written before, but simultaneously carries contributions from seasoned practitioners in the area. Since it is an exercise in public advocacy, it has the potential of being a stimulant for much needed dialogue and debate on many controversial issues. V Table of Contents Title Author Page Professionals 1 Using Public Interest Litigation to Zainab Qureshi 1 Address Maternal Mortality and Morbidity in Pakistan 2 Counter Terrorism Laws of Barrister Ahmed Uzair 24 Pakistan: A historical Perspective 3 Headscarf and Religious Attire: A Barrister Waqqas Mir 39 matter between God and the State? and Hassan Niazi A Comparative Perspective 4 Lost in Transmission: The Process Amber Darr 68 of Inserting Article 10-A in the Constitution and its Impact 5 A State of Permanent Exception: A Reema Omer 77 Human Rights Analysis of Pakistan’s Preventive Detention Regime 6 Criminalizing Torture in Pakistan Khwaja Aizaz Ahsan and 98 Namra Gillani 7 Judicialisation of Politics: 184(3) Barrister Ummar 113 Constitution of Pakistan Ziauddin 8 The Reality of the Drone Strikes in Sonia Riaz 123 Pakistan: The Real Perpetrator(s) and the Illusion of International Law VI Human Rights Review Title Author Page Students 9 Marital Rape: South East-Asian Noor Ejaz Chaudhry 145 Perspective 10 Juvenile Death Penalty: A Violation Sevim Saadat 152 of Human Rights in Pakistan 11 Internally Displaced Persons: Sana Farrukh Shaikh 163 Citizens’ Rights in a World at the Mercy of Climate Change 12 Towards the Effective Realization Zainab Fakhar 174 of Right to Education of Pakistan 13 Legalizing the Sale of Human Hammad Mustafa 190 Organs 14 Prostitution and Human Trafficking Awais Khan 195 in Pakistan 15 Drones: Impact of Human Rights Atira Ikram 202 16 Domestic Violence: A Classic Noor Bano 207 Illustration of the Public-Private Dichotomy VII Professionals 1 USING PUBLIC INTEREST LITIGATION TO ADDRESS MATERNAL MORTALITY AND MORBIDITY IN PAKISTAN Zainab Qureshi1 INTRODUCTION Reproductive rights advocates all over the world are recognizing judicial systems as avenues for developing standards for and attaining greater enforcement of women’s rights.2 Domestic courts are being approached to bridge the disjunctions between international human rights standards and domestic legislation and state practice, and between domestic legislation and state practice and the reality of women’s lives.3 In South Asia, public interest litigation (PIL) has emerged as a strategy to address high maternal mortality ratios (MMR) in the region by establishing government accountability for maternal deaths and pregnancy related morbidity.4 Petitioners in public interest litigation draw upon government’s international legal obligations and constitutional provisions to establish its accountability for the number of preventable maternal deaths occurring within its jurisdiction. Drawing upon similar constitutional frameworks and a shared set of constitutional norms, the courts in the region have progressively eroded procedural restrictions limiting access to courts and given expansive interpretations to fundamental rights and remedies. 1 The author is a law graduate of LUMS and holds an LLM from Harvard Law School. 2 See http://reproductiverights.org/sites/crr.civicactions.net/files/documents/pub_ar_What_Role_Can_Int _Litigation_Play_LAC_2003.pdf 3 Id. 4 For India see Sandesh Bansal v. Union of India and Others, P.I.L W.P. 9061/2008, where the supreme court recognized that the right to survive pregnancy and childbirth is a fundamental right under Article 21 (Right to Life) of the constitution of India; Remlata w/o Ram Sagar & Ors. v. Govt. of NCT Delhi, W.P. Civ. 7687/2010, the court emphasized the need for nutrition and maternal health care facilities for the vulnerable populations in Delhi; Smt. Shakuntala Devi v. State of U.P. and Others, W.P. (Civ) No. 4999 (2008), the court directed the government of the U.P. to check incidents of pregnant women being turned away from health facilities; For Nepal see Lakshmi v. Government of Nepal, where the court ordered the government to promote