The First Asma Jahangir Conference on Justice for Empowerment

Home , Asma Jahangir, Bushra Gohar, Hasil Bizenjo, Nayyar Ali Dada, Pakistan Bar Council, Samina Ahmad

13 & 14 October 2018

Avari Hotel Lahore

Contents

1. Acknowledgements ...... 5

2. Executive Summary ...... 12

2.1. Introduction ...... 13

2.2 Purpose, Aims & Objectives ...... 16

2.3. Synopsis…………… ...... 19

2.3.1. Sessions on Day 1 ...... 20

2.3.2. Sessions on Day 2 ...... 23

2.4. Impact……………...... 26

2.4.1. Media Coverage of the Asma Jahangir Conference ...... 29

2.5. Art Exhibit………………………………………………………………………………………………….……….... 31 3. Agenda…………………………………………………………………………………………………………………...31

4. Resolutions Presented ...... 34

5. Sessions for Day 1 ...... 37

5.1. Strengthening Democracy and Rule of Law – deﬁning parameters of State institutions ...... 37

5.2. Independence of Judiciary and the Legal Profession Including the Role of the Bar ... 40

5.3. Empowering women in the criminal justice system including the legal profession ... 44

5.4. Gender Equality and UN Global Goals for Sustainable Development – How close are we?...... 48

5.5. Academic Freedom and Freedom of Expression for Youth and Students ...... 52

5.6. Freedom of Expression and Shrinking Spaces for Dissent ...... 57 5.7. Cyber Laws and Protection of Human Rights ...... 66

6. Sessions for Day 2 ...... 71

6.1. Adopting International Human Rights Norms in Domestic Law ...... 71

6.2. Constitutionalism and challenges- the 18th Amendment and Implementation ...... 74

6.3. Death Penalty & Deterrence – Who are we hanging? ...... 77

6.4. Rise of Religious Fundamentalism in South Asia and Overview of challenges to the rights of religious minorities...... 82

6.5. Bonded Labour- Prevalence in South Asia and Reforms and the Protection of Trade Unions and their right to freedom of expression and assembly – safeguards to protect this constitutional right...... 84

6.6. Electoral Reforms- Post Elections 2018 ...... 88

6.7. Extra-judicial Killings and Enforced Disappearances ...... 91

6.8. Legal frameworks in South Asia for the Protection of Refugees and Migrants ...... 95

6.9. South Asians for Human Rights (SAHR) – “Reclaiming the Regional Solidarity” ...... 101

6.10. Sexual Harassment against Women at Workplace ...... 104

6.11. The need for FATA and PATA reforms, challenges to access to justice and implementation of new laws ...... 108

6.12. Legislative Priorities for the New Parliament – Impleme nting Women Friendly Legislation – Pakistan ...... 110

6.13. The Third Gender and Challenges to Mainstreaming in the Justice System & Law Enforcement Agencies ...... 116

7. Conclusion………...... 123

7.1. Judiciary and Rule of Law ...... 124

7.2. Gender Equality and Empowerment of Women ...... 125

7.3. Freedom of Expression and Shrinking Spaces for Dissent: ...... 125

The First Asma Jahangir Conference on Justice for Empowerment 13 - 14 October 2018, Avari Hotel, Lahore

1. Acknowledgements At the time we conceived the idea for the conference, we were not sure how it will come together, but thanks to our generous sponsors the conference was a huge success and became the biggest conference organised at the bar association level in Pakistan in recent years. It was not only big in terms of numbers but in terms of the wide spectrum of workshops, panellists and the quality of debate that spanned the two days. This would not have been possible without the support from our sponsors, and the time and sincere advice from our friends. First and foremost, we thank the Delegation of the European Union for their generous sponsorship, support and wholehearted participation. We also thank our others sponsors, the British Foreign and Commonwealth Oﬃce, the Kingdom of Netherlands, United Nations Development Programme and United Nations Women for their generous contributions and support. The commitment of our sponsors is a testament to their belief and support for the progress of human rights in Pakistan.

We also wish to thank the Embassy of Sweden and the Australian High Commission who generously gave us their time, support and advice throughout this process. We want to thank various people from the United Nations Agencies, in particular Ms. Nadja Wuensche, who put together the initial working group for the conference. We were very excited to form alliances with four leading universities of Lahore (Forman Christian College, Lahore University of Management Sciences, University of Lahore and University College Lahore) and we are extremely grateful to the 80 student volunteers who worked tirelessly to support the conference. We hope this was a learning experience for them also.We want to thank the management and students of Beacon house National University and Connatural for the art display and workshops on empowerment. We also wish to thank Khaadi for the conference bags.

We wish to thank our friends without whose help, advice and generosity this would not have been possible, in particular we wish to thank Mr. I. A. Rehman, Mr. Afrasiab Khattak, Ms. Samina Ahmed and Mr. Ahmed Rashid. A special note of thanks to Mr. Azam Nazir Tarrar, Mr. Ahsan Bhoon and Mr. Abid Saqi, senior lawyers from the Supreme Court Bar Association, as well as Ms. Mehmal Sarfaraz, Mr. Farooq Tariq, Mr. Jalal Salahuddin, Ms Fatima Salahuddin, Saroop Ijaz, Ms Fatma Shah and Dr. Salman Asif.

Finally we wish to thank our coordinators and our speakers who very kindly and with great commitment gave us their time, and the beneﬁt of their expertise and experiences, even though they have very busy schedules. In particular we thank our speakers who travelled great distances to join us. We were deeply touched by the commitment and eﬀort of the Conference Committee who gave us their time in planning agendas, debating issues and reaching out to speakers, months in advance of the conference. The conference was also a learning experience for us. Perhaps the biggest lesson was that the struggle for human rights in Pakistan is alive, vibrant and tenacious despite immense challenges. Speakers from across professions and sectors of society were united in the energy that they channelled

5 into the issues under discussion and their search for solutions for the promotion of human rights.

Last but not least, we wish to thank the staﬀ at AGHS Legal Aid Cell who tirelessly worked around the clock for the months leading up to the conference. Apart from their daily case- load they now found themselves in another role of organising a conference. It was a great learning experience for everyone. We hope that we will be able to have this conference again in 2019.

Members of AGHS Legal Aid Cell during the pre-conference preparations

Members of AGHS Legal Aid team (L to R): Miss. Beenish Zia, Barrister Hamid Leghari, Ms. Sulema Jahangir, Miss. Alizae Mir, Miss. Areej Khalid and Miss. Fatima Mehmood

CONFERENCE COMMITTEE

1. Abid Saqi Advocate Supreme Court, Former Deputy Attorney General of Pakistan, Former President Lahore High Court Bar 2. Ahsan Bhoon Advocate Supreme Court, Former Judge Lahore High Court, Former Vice Chairman Pakistan Bar Council, Former President Lahore High Court Bar Association 3. Ayesha Jalal Renowned Historian, Educationalist 4. Azam Nazeer Tarar Advocate Supreme Court, Vice Chairman Pakistan Bar Council 5. Farooq Tariq Federal spokesperson for Awami National Party Pakistan, General Secretary Pakistan Kissan Rabita Committee (PKRC) 6. Fatima Salahuddin Designer 7. Hamid Leghari Advocate High Court, AGHS Legal Aid Cell

8. Jalal Salahuddin Entrepreneur, Jalal Salahuddin Event Management 9. Jilani Jahangir Entrepreneur, Director Hala Enterprises 10. Mansoor Awan Advocate Supreme Court, Advocate & Corporate Counsel in Lahore (AJURIS) 11. Mehmal Sarfraz Broadcast Journalist, Neo TV 12. Munizae Jahangir Broadcast Journalist Aaj TV, AGHS Board Member, HRCP Council Member 13. Nida Aly Executive Director, AGHS Legal Aid Cell 14. Nilofer Qazi Journalist 15. Qasim Jafari Hospitality professional 16. Salima Hashmi Educationalist, Human Rights Activist, former Principal National College of Arts 17. Saroop Ijaz Advocate, Representative at Human Rights Watch, Legal Consultant British Council and European Union 18. Sulema Jahangir Advocate High Court, AGHS Board Member, Solicitor of the Senior Courts of England and Wales, Associate Dawson Cornwell, London, England 19. Barrister Salman Hamid Barrister-at-Law Practicing as Advocate High Courts and Afridi Corporate Counsel in Islamabad and Lahore.

ADVISORY PANEL

After the sudden demise of Asma Jahangir, AGHS Legal Aid Cell formed an Advisory Council (listed below) to support Asma's pro bono work. Asma’s friends and colleagues very generously stepped up to provide support to her mission through an advisory role. We are extremely grateful for their wholehearted participation and time. We appreciate that each and every one of them brings a unique strength and that all our advisers are experts in their own right and prominent persons in their own ﬁelds. They shared their commitment to democracy and human rights with Asma, and therefore agreed to carry on her legacy in the shape of the Asma Jahangir Foundation and AGHS Legal Aid Cell.

1. Abid Saqi Advocate Supreme Court, former Deputy Attorney General of Pakistan, former President Lahore High Court Bar Association 2. Afrasiab Khattak Former Senator Pakistan and former chairperson Human Rights Commission of Pakistan (HRCP) 3. Ahmed Rashid Journalist, Foreign Policy Author 4. Ahsan Bhoon Advocate Supreme Court, former Judge Lahore High Court, former Vice Chairman Pakistan Bar Council, former President Lahore High Court Bar Association 5. Ali Zafar Advocate Supreme Court, former Law Minister, former President Supreme Court Bar Association 6. Azam Nazeer Tarar Advocate Supreme Court, Vice Chairman Pakistan Bar Council 7. Farooq Tariq Federal spokesperson for Awami National Party Pakistan, General Secretary Pakistan Kissan Rabita Committee (PKRC) 8. Habib Tahir Khan Advocate Supreme Court, Vice Chairperson of the Human Rights Commission of Pakistan (HRCP) 9. I. A. Rehman Veteran Journalist, Senior Director Human Rights Commission of Pakistan (HRCP), peace and human rights activist 10. Izaz Hussain Entrepreneur, Chairman of Visionet system Inc. 11. Justice (R) Tariq Mahmood Advocate Supreme Court, former President Supreme Court Bar Association, former Judge Baluchistan High Court, former Member of Election Commission of Pakistan 12. Kamran Murtaza Advocate Supreme Court, former President of Supreme Court Bar Association 13. Lyse Doucet Journalist, Chief International Correspondent and

contributing Editor of BBC 14. Mansoor Awan Advocate Supreme Court,Advocate & Corporate Counsel in Lahore (AJURIS) 15. Mirza Nasar Ahmad Advocate Supreme Court, Deputy Attorney General of Pakistan 16. Nasreen Kasuri Educationalist, Principal Beaconhouse School Systems 17. Muneer A Malik Advocate Supreme Court, former President Supreme Court Bar Association and former Attorney General of Pakistan 18. Nadeemul Haque Chairman of the Pakistan Institute for Development Economics 19. Nayyar Ali Dada Renowned Architect 20. Qasim Jafari Hospitality professional 21. Salman Raja Advocate Supreme Court, expert in Constitutional and Election Law and International Arbitration 22. Samina Ahmad Senior Advisor and Project Director South Asia for the International Crisis Group 23. Saroop Ijaz Advocate, Representative at Human Rights Watch, Legal Consultant British Council and European Union 24. Sher Muhammad Khan Advocate Supreme Court, former Judge Peshawar High Court, Former President Peshawar Bar Association

Yours Sincerely

Ms. Nida Aly (Executive Director AGHS Legal Aid Cell)

Ms. Munizae Jahangir

Ms. Sulema Jahangir

On Behalf of the Conference Committee

Members of the Advisory Panel during a pre-conference meeting

Members of the Advisory Panel discussing the Conference Agenda

Members of the Advisory Panel during a pre-conference meeting

2. Executive Summary 2.1. Introduction Pakistan lost her most outstanding and fearlessly vocal human rights defender, Asma Jahangir, on February 11th, 2018. Amidst a number of commemorative initiatives that succeeded her unexpected and untimely demise, Asma Jahangir Foundation has been established to continue and build on her nationally and globally acclaimed legacy of human rights work through her law firm, AGHS Legal Aid Cell, and the Human Rights Commission of Pakistan. Since 1980, AGHS Legal Aid Cell has provided free legal aid to thousands of vulnerable and persecuted people; established landmark cases; trained over 3000 paralegals and advised on, influenced and drafted several laws for the promotion and protection of human rights. AGHS is the frontrunner law firm providing free legal help and representation in family, constitutional, criminal and civil cases. The Human Rights Commission of Pakistan was co-founded and supported by Asma Jahangir and till today it remains the only nationwide independent watchdog body for human rights in Pakistan. The First Asma Jahangir Conference on Justice for Empowerment stands as the most significant of the commemorative events co-hosted by the Asma Jahangir Foundation and AGHS Legal Aid Cell. In March 2018, the idea of holding a conference in the name of Asma Jahangir was conceived by her family and colleagues at AGHS Legal Aid Cell. The aim of the conference was to involve the legal community and support the institutional sustainability of bar associations. By April 2018, a conference committee was established comprising of eminent lawyers, jurists, journalists and social activists from across all regions of Pakistan. The committee set the agenda for the conference after numerous meetings. A total of 20 sessions under five themes were identified and all the issues were topical and critical. The intention was to bring together various strands of the legal community, politicians, policymakers, social activists and journalists under the banner of Asma Jahangir, to form strong consensus on burning issues and identify what steps are needed to provide better access to justice, due process and quality of justice to all. On the 13thand 14th of October, 2018, national and international human rights advocates, distinguished legal experts and judges, noted academics, rights’ defenders, politicians, development practitioners, foreign delegates and emissaries engaged in 20 sessions on a whole spectrum of human rights dimensions. The five themes of the conference were: Protection of Fundamental Rights; Mainstreaming Gender; Freedom of Expression and Shrinking Spaces for Dissent; Justice for All and Impunity for None and Challenges to Implementing Rights Legislation. The Conference, designed and held by AGHS Legal Aid Cell and the Asma Jahangir Foundation, was also a reaffirmation and commitment to Asma Jahangir’s legacy that her work and struggle would continue. The next generation of human rights defenders exists and AGHS Legal Aid Cell continues to strive ahead despite the setback of her unexpected passing. Her legacy and those she influenced, trained and inspired would not let the issues she advocated be lost in the growing and increasingly suffocating environment for human rights defenders in Pakistan. The opening and closing sessions of the Conference ushered a series of glowing tributes to Asma Jahangir and her undeterred efforts for justice and dignity for all, from national and international luminaries including the Chief Justice of Pakistan, Honourable Justice Mian Saqib Nisar, the Chief Justice of the Lahore High Court, Honourable Justice Yawar Ali,former Judge of the High Court of Australia, Honourable Michael Kirby, the former Prime Minister

Shahid Khaqan Abbasi, the Chairperson of the Pakistan People’s Party, Mr Bilawal Bhutto Zardari, Federal Minister for Human Rights, Dr. Shirin Mazari, former Speaker of the National Assembly, Mr. Ayaz Sadiq and the Federal Minister for Information, Mr. Fawad Chaudhry. The conference concluded with resolutions through a show of hands of participants (see below at point 4)and a shared vision for empowerment with speciﬁc focus on the rights of the most dispossessed, disenfranchised and vulnerable people.

Registration desks set up for the Conference

Honourable Chief Justice of Pakistan, Mian Saqib Nisar attending the Inaugural Session

Mr. I.A. Rehman addressing the audience during the Inaugural Session

Ms. Sulema Jahangir addressing the audience during the Inaugural Session

2.2 Purpose, Aims & Objectives The primary purpose of the conference, weaving through all its sessions, was to promote human rights and to build bridges between legal communities, particularly in South Asian countries. The underlying motivation behind the sessions was to promote the rule of law, strengthen democracy and systemically empower women through social and legal provisions and reforms. The Conference proceedings and framework were anchored in the following objectives: 1. Identify weaknesses and discriminatory practices in the legal system impeding access to justice and realization of rights. 2. Deliberate and document priorities, and build consensus amongst the legal community on what reforms are most needed. 3. Chart out recommendations to improve due process of law, eradicate discrimination and empower vulnerable groups. 4. Spread human rights awareness amongst the legal community in Pakistan to ﬁll a critical learning gap. 5. Create awareness about critical human rights issues through engaging the media and providing them with speakers on relevant topics. 6. Inﬂuence policies through publishing recommendations and resolutions from the conference and distributing to all bar associations, state bodies and decision-making bodies. 7. Create a network of lawyers from across Pakistan who are committed to doing pro bono work for vulnerable and destitute people. 8. Create linkages between lawyers from South Asia and other countries as there will be wide participation of international lawyers and jurists.

Some 2,000 participants, mainly lawyers and judges from Pakistan but also international jurists, social activists, parliamentarians, journalists, students, representatives from United Nations entities, local non-government organizations and national institutions had gathered in Lahore to review and proﬁt from their shared voices, priorities and experiences. A list of the makeup of the participants is included in point 2.4 and a list of speakers and moderators is provided in sessions individually. The thematic plenary sessions focused on describing challenges through the sharing of experiences and expertise and identifying solutions at the conclusion of each session.

The legal fraternity attending the Inaugural Session

The Conference agenda also included the examination of the link between development, democracy and economic, social, cultural, civil and political rights. This was done in conjunction with a discussion of Pakistan’s international human rights obligations and various treaty body reporting mechanisms. The aim was to address diminishing spaces for human rights discourse and the lack of political will for promoting fundamental rights. The conference was a unique platform which linked the legal community with political policy makers on issues that directly affect Pakistanis and South Asians. This has never really been done before in a conference of this scale. This bridge was particularly a forte of Ms. Asma Jahangir and now the Asma Jahangir Foundation’s (AJF) attempts to institutionalise this bridge, which is critical for advocacy of human rights in Pakistan. The legal community is well organized and by and large democratically represented through elections at the bar level. The wide representation of bar leaders from virtually all major districts as well as policymakers and judges presented a unique opportunity to form links and build consensus between the legal and policy communities. The Conference agenda looked at the issues of complex emergencies, conflict and security related turbulence leading to human displacement, migration, up-rootedness and refugee crises, the mainstreaming of gender, bonded labour, impediments to freedom of expression and the weaknesses in the criminal justice system. From the first of the pre-conference preparatory meetings in Lahore, it was clear that these were tasks that raised many difficult, and sometimes sensitive issues regarding supremacy of justice, rule of law, national sovereignty, universality of rights, the role of non-governmental organisations and questions concerning the feasibility, viability and impartiality of laws and practice created in

17 the name of “national interest” or “national security”. Boundaries of and between a citizen’s right, universal human rights obligations, national law and international norms become blurred, unclear or absent in conﬂict situations or in the name of “national security”. The search for common ground on these and many other issues was characterised by candid dialogue amongst diverse stakeholders. In particular, as Ms. Asma Jahangir always emphasised on the need and importance of learning from SAARC neighbours, there were many representatives from SAARC countries to share their learning and experiences, similar and dissimilar to the Pakistani experience. The interaction of people from the SAARC region is important but sadly rare. This conference provided an opportunity to bring South Asians struggling for human rights to come together to share and learn from each other. More importantly, human rights defenders from the same region provided support to one another and formed professional and other linkages.

Inaugural Session

L to R : Mr. Kamran Murtaza (Vice Chairman Pakistan Bar Council); Ms. Kamla Bhasin (Activist and Poet, India); Hon Michael Kirby AC CMG (former Judge High Court Australia); Muhammad Yawar Ali (Chief Justice Lahore High Court); Hon Chief Justice of Pakistan, Mian Saqib Nisar; HE Jean-François Cautain (Ambassador of the European Union to Pakistan); Ms. Orzala Nemat (Activist and Scholar, Afghanistan); Mr. Pir Kaleem Khurshid (President Supreme Court Bar Association); Mr. Anwar-ul-Haq Pannu (President Lahore High Court Bar Association); Mr. Ahsan Bhoon (Advocate Supreme Court Pakistan)

2.3. Synopsis of proceedings on 13 and 14 October 2.3.1. Sessions on Day 1 The ﬁrst day of Asma Jahangir Conference for Justice and Empowerment, included the following thematic areas: - 1. Freedom of Expression and Shrinking Spaces for Dissent 2. Cyber Laws and Protection on Human Rights 3. Empowering Women in the Criminal Justice System including the Legal Profession 4. Strengthening Democracy and Rule of Law

Article 19 of the Constitution of Pakistan 1973, provides the framework of freedom of speech as a fundamental consideration: “Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, (commission of] or incitement to an

19 offence).” While it is understandable that the Constitution secures the right to free speech with checks, however such checks must be reasonable and must not violate the spirit of this article and a citizen’s right to critique, disagree and register their protest against any violations of the Constitution and the state’s international commitments. Freedom of expression in Pakistan has continued to be undermined by worrying and deepening impediments in the past years, according to a report published by “Freedom Network”, a Pakistani media watchdog organization. The report, “Press Freedom Barometer 2018”, published ahead of observance of World Press Freedom Day, demonstrates more than 150 violations against journalists and media groups in the country. The 16-page report documents violations ranging from officially enforced censorship, written or verbal threats, killings, harassment, arrests, abductions, illegal confinements and physical assaults, allegedly committed by state, non-state actors and political and religious pressure groups. Apart from instances of violence, intimidation and killings of media personnel, the report highlighted the worrying trend of self-censorship by the media in the face of what it described as enduring state oppression. In the past months, rights’ defenders in Pakistan have criticized the Pakistan Electronic Media Regulatory Authority (PEMRA) for allegedly blacking out coverage of the Pashtun Tahafuz Movement’s (PTM) peaceful and non-violent rallies against enforced disappearances and extrajudicial killings. The government has also been accused of blocking the signal for Geo TV, Pakistan’s most widely watched news channel, for more than a month. The panellists collectively laid emphasis on the need for not only journalistic, but also artistic freedom through policies and legislation, and on reconstruction of diversity and intellectual thoughts and ideas through reforming our academic curricula - designed to have competing perspectives, ideas, planes of truth and critical thinking. The curriculum, panellists argued, should put the skills of children from adolescent age to practical use with a strong sense of responsibility in order for them to positively contribute towards a democratic Pakistan. In context of cyber laws and protection of human rights, the key concerns of the panellists were over how surveillance has negatively impacted the standards of journalism in the country. While understanding the government’s need to employ legal surveillance in the face of serious terrorism threats, it was felt that there should be strict definitions of “national security” and “national threats” which are proportionate given the invasion of fundamental rights. There is a strong need to rethink the process of creating laws so that protection is prioritized over punishment and not the other way around. Further, an urgent need to have a strong relationship between activists and political parties on privacy and surveillance concerns was identified. The experts in the session unanimously agreed upon capacity development and sensitization of relevant stakeholders -investigative agencies, judges and lawyers. Awareness through technology and educational systems was also highlighted. Panellists further emphasised the need for a robust data protection law with strategic litigation of cyber cases owing to the sensitivity of the issue. An overall theme at the conference was gender parity which is key to whether and how economies and societies progress. Gender equality and empowerment of women and girls is a United Nations Sustainable Development Goal 5. While Pakistan has made some progress

in drafting legislation enhancing the empowerment of women and transgender persons, the overall implementation remains weak and statistics collated by independent sources remain worrying. The World Economic Forum placed Pakistan as the second worst country on gender equality in its Global Gender Gap1 index released last year. The index placed Pakistan 143rd out of 144 countries, the worst offender in the South Asian region that has an average remaining gender gap of 34% as noted by the index. Bangladesh, ranked at 47, is the only country in the region to have made the top 50 whereas India is at 108 after dropping 21 notches compared to its previous position. Maldives ranked 106, Sri Lanka 109, Nepal 111 and Bhutan 124. The house deliberated that structural inequalities manifest in prohibitive gender roles, rampant gender stereotyping, supremacy of patriarchy and toxic masculinity. Such structures continue to hold women’s and girls’ potential back and exclude them from participating in social development, and having access to rights and judicious carriage of justice. Here the linkages between law and social behaviour are most evident. The house called for equitable social inclusion of women in public spheres and spaces, providing requisite security for them and holding systems accountable for delivering on gender equality. The panellists agreed that there should be enough resources in the criminal justice system for affirmative action policies. More women should be included in the senior judiciary, criminal justice system and the law enforcement agencies. It was felt that the role of media was a key factor in promoting gender equality through avoiding malignant stereotyping and progressively portraying women and girls’ perspectives, voice, visibility and agency. There should be some form of self or other regulatory system to hold the media accountable for offensive gender stereotyping. In the session on “Strengthening Democracy and Rule of Law,” the panellists highlighted that establishment of rule of law was one of the main challenges confronted by Pakistan since its creation. Their main recommendations were that there is a need for proper formation, declaration and implementation of mechanisms ensuring that there is separation of power between politics and judiciary. Panellists expressed that the Pakistani Constitution and religion should not be intertwined as this only increases the scope for religious extremism and cultural radicalism. Finally, it was resolved that democracy, with its shortcomings, should be maintained and allowed to evolve without takeover by the military. The excuse of corruption, even if true, should no longer be used for the military to take over and put a stop to the development and learning of a democratic state. On independence of the judiciary, it was agreed that the “Rule of Law” should not become as it has in the recent past the “Rule of the Judge”. At the same time threatening the judiciary through fear or favour undermines the very bedrock of democracy. The bench and bar should complement each other through mutual oversight. In this regard, the recent rise in judicial activism was worrisome as at times it became judicial overreach into the domain of the executive. In this regard the parameters of Article 184(3) of the Constitution of Pakistan should be clearly defined. It was felt that it is vital that the justice system is transparent, accountable and impartial. To maintain accountability, the selection process of judges should be made more transparent and subject to parliamentary oversight.

1 The Global Gender Gap Report 2017; https://www.weforum.org/reports/the-global-gender-gap-report-2017

Former Prime Minister of Pakistan Mr. Shahid Khaqan Abbassi addressing the audience during the Closing Remarks

Ms. Nida Aly, Executive Director AGHS Legal Aid Cell, addressing the audience during the Closing Remarks

2.3.2. Sessions on Day 2 The second day of the Conference comprised a range of themes that complemented each other, just as they stood on their own. The topics included implementing international human rights norms into domestic law, bonded labour, death penalty and deterrence, electoral reforms, extra-judicial killings and enforced disappearances, the legal framework in South Asia for the protection of refugees, the rise of religious fundamentalism and rights of religious minorities, sexual harassment of women at the workplace; challenges faced by people of other genders, reclaiming regional solidarity for South Asians for Human Rights (SAHR) and FATA and PATA (Federally & Provincially Administered Tribal Areas) reforms. While contextualizing the enforcement mechanisms of international law along with domestication of international treaty bodies continues to be a work in progress in Pakistan, the panellists charted the progress made by Pakistan in this field along with areas where further work is required. The sessions indicated that Pakistan’s justice system, legislature and executive have been unable to abide by their international treaty obligations on human rights and various compromises have been made in the name of religion, “national interest” and “national security”. Following the 18th Constitutional Amendment passed by the National Assembly of Pakistan on April 8, 2010, Pakistan set in motion a wide-ranging decentralisation trajectory marking the devolution of powers of federal ministries to the provinces. It was felt that the 18th Amendment remained fragile and there was a fear that judicial decisions were undermining its effectiveness. On the other hand one of the challenges that emerged as a result of the devolution was a debilitating weakness in coordination amongst the provinces; and between the provinces and the federation, especially with regard to Pakistan’s obligations under international law. The aftermath of the rather rushed processes led to a state of confusion as to what obligations must be implemented at which level. Core amongst these obligations were the eight essential human rights treaties that Pakistan has ratified. It is hoped that these teething problems will be swiftly overcome and the benefits of bringing governance closer to the electorate will materialize and strengthen democracy. Pakistan has encountered challenges of inconsistency and impediments in compliance with regards to timely reporting to the UN human rights treaty bodies. In addition to the UN Charter and the Universal Declaration of Human Rights, Pakistan has signed and ratified the following ‘Eight Core’ human rights conventions: 1. The International Covenant on Civil and Political Rights (ICCPR); Ratified on 23 June 2010 2. International Covenant on Economic, Social and Cultural Rights (ICESCR); Ratified on 17 April 2008 3. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); Acceded to on 12 March 1996 4. Convention on the Rights of the Child (CRC); Ratified on 20 November 1990 5. Convention against Torture (CAT); Ratified on 23 June 2010 6. Convention on the Rights of Persons with Disabilities; Ratified on 5 July 2011 7. Convention on the Elimination of All Forms of Racial Discrimination; Ratified on 21 September 1966

8. Convention on the Rights of Persons with Disabilities; Ratified on 5 July 2011 Despite this catalogue of commitments, Pakistan’s trajectory in delivering on these obligations has been uneven and we have also seen some notable reversals in human rights protection. For example, not long after becoming a party to the ICCPR, the government removed the moratorium on the death penalty and resumed executions, becoming one of the highest executioners in the world. This issue was also debated during the session on death penalty – despite the session ending in balance on whether to abolish or continue with the death sentence. For example, the evidence reflects that in spite of a significant drop in the death row population, Pakistan still accounts for 13 percent of all global executions since December 2014, sentencing around 4500 deaths since and averaging on one execution per day. According to official government figures from 2012, Pakistan's death row stood at 7,164. Since 2013, Pakistan has sentenced at least 1,692 people to death while 496 people have been executed since 2014.2This means Pakistan's death row should have had a net increase of almost 1,200 to a total of about 8,400. However, the Federal Ombudsperson submitted before the Supreme Court of Pakistan that the country’s death row as per the population now stands at 4,688. This indicates a drop of 2,476 prisoners. Despite this surprising reduction in the official number of Pakistan's condemned prisoners, it is worth noting that Pakistan continued to add prisoners to its death row; the second largest in the world at an average of 351 death sentences annually since 2004. In the context of human rights protection reversals, the Parliament enacted laws allowing military courts to try civilians for certain terrorism-related offences. Alongside there has been a spate of crackdowns on civil society organisations, journalists and human rights defenders with consequent closing down of international and national non-governmental organisations. This is worrisome and provides abundant scope for misuse of power. On a positive note, from the time Pakistan ratified the ICCPR, there is evidence of the provincial High Courts and the Supreme Court evoking international human rights norms, including certain ICCPR provisions in a number of cases, interpreting fundamental rights in the Constitution in line with international standards committed to being upheld by the state. Such jurisprudence has helped expand the gamut of constitutional rights. For example, in a historic judgement on the right to freedom of religion, the Supreme Court interpreted Article 20 of the Constitution relating to freedom of religion in light of Article 18 of the ICCPR – stretching the seams to include freedom of conscience, thought, expression, belief and faith.3 The Supreme Court also held that international human rights standards “serve as moral checks and efforts are continually being made to incorporate these rights into domestic law.”4 Connecting this session with the conference session on enforced disappearances, it is important to recall that in December 2013, the Supreme Court passed a significant judgement in this regard. It was held by the Court that courts could interpret Constitutional fundamental rights provisions in the light of international law on enforced disappearances, including under the ICCPR and the International Convention for the Protection of All Persons from Enforced Disappearances (CED), even if Pakistan had not ratified the CED, to achieve

2 ibid. 3PLD 2014 Supreme Court 699 4Ibid; paragraph 14

the ends of justice.5 Although there was no consensus amongst the speakers against the death penalty in Pakistan, but it was agreed that due process and justice should not be compromised at any level of a trial entailing the penalty. It was resolved that dialogue must continue on this subject. In terms of domestication of international law, on the other hand, contradicting this trend – the same courts while issuing of the death sentences or endorsing the legitimacy of laws promulgated on countering terrorism – were alleged to have flouted international human rights norms and treaties not only as guiding frameworks but also as obligations that were legally binding. There are other cases, where courts in Pakistan seem to have relegated international law as irrelevant and redundant to their validating the ‘lawfulness’ of the death penalty. This occurred even in the cases where medically attested mental disorder of the accused was evidently cited as an argument for diminished responsibility of the alleged crime. This erratic jurisprudential trend in application of international human rights law in domestic courts also indicates the respective judges’ own perspective on international law, and their ability to appreciate that judiciaries in Pakistan have often sought to implement human rights standards even in instances where the legislature lagged behind in setting standards or where there has been a military dictatorship. At the conclusion the house endorsed the Bangalore Principles which laid emphases upon application of international law into domestic law as an aid of judicial interpretation; especially where the domestic law is silent or ambiguous, keeping in light that international law is a de-centralised system. In order to achieve that, the panellists also promoted the role of SAARC and regional integration. The Session on the rights of bonded labour alluded to Pakistan being a party to and its commitment to the United Nations Sustainable Development Goals (SDGs). Elimination of modern slavery by 2030 is part of Goal 8 (Target 8.7) of the Sustainable Development Goals. In addition to the federal government’s working on a National Strategy for Elimination of Child and Bonded Labour, laws in Pakistan criminalise all expressions of modern slavery. However, comprehensive information-statistics on the number of investigations conducted, violations identified, and prosecutions lodged and convictions achieved – remains rare and the current population of bonded labourers in Pakistan is estimated at approximately 4.5 million people. The Session called for far-reaching labour law reform including criminalizing the pervasive practice of withholding wages of a labourer-worker under the wage payment laws, as a means of keeping her/him in a state of forced labour and providing special protection to women and child bonded labourers. In further sessions, the expert speakers called for the Election Commission to set targets for itself on equal participation and just, fair and effective opportunities for electoral participation. Similarly, concerns were raised on the state of extra judicial killings and a call was made to criminalise enforced disappearances. A successful strategy, it was argued, would be to have a strong witness protection system. The deliberants called for the State to look immediately into issues emanating from a parallel legal system and other factors compromising judicious carriage of justice. Sexual harassment at the workplace was also highlighted during the sessions. It was collectively agreed that employers must be held

5 PLD 2014 Supreme Court 305

25 accountable for delivering on zero tolerance for abuse of power and sexual harassment at workplaces and that the professional environment should be free of coercion, fear and abuse. It was further resolved that in order to be productive, workplaces must be transformed into safe and enabling spaces. The case for gender non-binary populations is even worse since they continue to live lives blighted by abuse, stigma, discrimination and violence despite recent positive developments. Law enforcement agencies as well as mental health professionals should be trained to make them more sensitive to women and transgender persons and to clamp down on rampant discrimination and abuse against people of other genders. 2.4. Impact The impact of the conference certainly exceeded our expectations from what had been envisaged at the time of conceptualizing the event earlier this year. The success of the conference was a true testament to the work of Ms. Asma Jahangir and the principles she dedicated her life to. The international community, civil society and the legal fraternity showed up in hundreds to pay tribute to her fearless struggle for the rights of the marginalized which very few take it upon themselves to defend at the expense of their own personal security. Ms. Asma Jahangir was the strongest critique of all state institutions, yet she always believed and engaged in dialogue to bring people together for the promotion of peace and human rights. The spirit of her convictions was translated through the conference where all the participants went beyond their personal convictions to share a common platform in an open discourse without any inhibitions. Only the name of Asma Jahangir could bring Mr. Bilawal Bhutto Zardari (PPP), Dr. Shireen Mazari (PTI), Mr. M Ayaz Sadiq (PMLN) and Mr.Afrasiab Khattak (ANP) to share the same stage in the closing ceremony and voice their diverse views in good faith. Such diverse participation and unreserved engagement is possibly a ﬁrst time feat in the prevailing political climate of the county which could only have been realized in the memory of Asma Jahangir. Her vision and legacy built an atmosphere conducive to out of the box thinking and it encouraged mainstream politicians to approach politics from a human rights perspective. The conference was an eﬀective way to mainstream human rights issues and bring them to the forefront of the agenda of major political parties. It also created a space where human rights activists and survivors can engage with policymakers. Lawyers, students, policy-makers and activists from across the country attended the conference. Ambassadors from various countries attended and spoke at the Conference, including HE Jean François Cautain (Ambassador of the European Union Delegation), HE Martin Koebler (Germany), HE Ingrid Johansonn (Sweden), HE Margaret Adamson (Australia) and HE Ajay Bisaria (India). Our distinguished international guests and speakers also included Hon. Michael Kirby AC CMG (former Justice of the High Court of Australia), Kirsty Brimelow QC (Chair of the Human Rights Bar Committee, England and Wales), HE Annika Ben David (Sweden’s Ambassador at Large for Human Rights, Democracy and the Rule of Law), Mr. Colin Gonsalves (Right Livelihood Award winner, India), Judge Tanweer Ikram (Deputy Senior District Judge for England and Wales), Ms. Kamla Bhasin (Indian poet and activist) and Dr. Nimalka Fernando (attorney and women’s rights activist, Sri Lanka). The success rate of the conference can be gauged from the overwhelming amount of registrations recorded for all attendees. More than 1600 people, including lawyers, judges,

students, ac vists and commentators, a ended the Conference on each day. As per our registra on record, 112 judges (excluding the Superior judges), 703 lawyers, 222 students and 577 civil society representa ves ended the conference.

Lawyers & Judges attending the Inaugural Session

Distinguished guests including: Ms. Christine Chung, Hon Michael Kirby AC, Ms. Kirsty Brimelow QC, and Australian High Commissioner to Pakistan Ms. Margaret Adamson; attending the Asma Jahangir Conference 27

L to R: Hon Michael Kirby AC CMG (former Judge High Court Australia); Muhammad Yawar Ali (Chief Justice Lahore High Court); Hon Chief Justice of Pakistan, Mian Saqib Nisar; HE Jean-François Cautain (Ambassador of the European Union to Pakistan)

Female participants during the Conference

2.4.1. Media Coverage of the Asma Jahangir Conference The Asma Jahangir Conference was widely given coverage in social, print and electronic media. The event was covered live by all the national, regional, city channels and the state owned Pakistan Television Channel (PTV). The conference generated a lot of breaking news for the electronic media due to the participation of the Chief Justice of Pakistan, and leading politicians and parliamentarians including Ms.Nafeesa Shah, Ms. Shazia Marri, Mr.Farhatullah Babar, Mr.Afrasiab Khattak, Mr. Farooq Sattar, Mr. Taj Haider, Mr. Chaudhry Manzoor, Mr. Hasil Bizenjo, Mr. Farooq Naiq, Senator Rana Maqbool, Ms.Bushra Gohar, former and serving judges and all leading lawyers from Lahore High Court Bar Association, Supreme Court Bar Association, Pakistan Bar Council were represented at the conference. Television talk shows, like “Zara Hutt Kay” on Dawn News also covered the conference. The conference was trending as number 1 from all of Pakistan on Twitter with hashtag #AJCONF2018 and Asma Jahangir was trending as number 2 on Twitter on the 13th October. Despite the by elections on the 14th of October, it remained one of the top trends on Twitter on the second day also. The Swedish embassy helped us devise a social media strategy involving celebrities along with Ms. Mehmal Sarfaraz, Ms. Munizae Jahangir and Asma Jahangir Conference’s event manager, Mr. Jalal Salahuddin. Many celebrities promoted the conference a couple of days before the event, which generated a lot of pre-conference hype even before it began. Celebrities like Ayesha Omar, with a following of almost 1.5 million people, Ms. Sanam Saeed (almost 600,000 followers) Mr. Kamiar Rokhni (93,000 people), Mr. Adnan Malik, Ms. Mira Sethi, Oscar winner Ms. Sharmeen Obaid promoted the conference a couple of days before the event. This created an excitement around the conference even before it began.Our volunteers from four leading universities of Lahore (Forman Christian College, Lahore University of Management Sciences, University of Lahore, and University College Lahore) helped us promote the sessions and the resolutions on Twitter. We are grateful to these educational institutes for providing us an enormous amount of help with 80 student volunteers. AGHS Legal Aid Cell had a curtain raiser by issuing a press release which was printed in all the major newspaper a day before the conference began. All major Urdu and English daily newspapers including DAWN, Express Tribune, The News, Daily Times, Nation, Business Recorder, Pakistan Today, Express Urdu, Dunya, Nawa-i-Waqt, Jang and Khabrain not only covered the event but prominently highlighted the discussions during the conference. BBC Urdu Facebook Live also covered preparations for the conference and the purpose for it. The Asma Jahangir Conference media cell arranged personal interviews with the mainstream media of the European Union Ambassador to Pakistan His Excellency Jean François Cautain, Swedish Ambassador-at-large for Human Rights, Democracy and the Rule of Law HE Annika Ben David, Steven Butler of Committee to Protect Journalists (CJP) and other participants.

2.5. Art Exhibit

Beaconhouse National University students painting Asma Jahangir’s portrait

A smaller part of the conference was the “Empowerment for Art” section which covered human rights, democracy, and “what Asma Jahangir stood for” as the key themes. Students of Beaconhouse National University were invited (majority of them being women) to express these themes on canvas with materials provided. A large canvas was also left for all conference attendees. The facilitators requested the attendees to draw or write messages or intentions to express what the conference meant to them. Four canvases were prepared in the two days, which have been framed and donated to AGHS Legal Aid Cell.

3. Agenda JUSTICE FOR EMPOWERMENT 13TH OCTOBER, 2018 – DAY 1

09:30 AM Inauguration: Seating “REMEMBERING ASMA” AGHS AND THE WAY FORWARD 09:00AM – 10:00 AM Registration

MARQUEE PAVILION Theme A: Protection of Fundamental Rights

10:00 AM– 12:30 PM Moderators: Mr. Azam Nazir Tarar(Advocate Supreme Court and former Vice Chairman Pakistan Bar Council) Mr. Abid Saqi (Advocate Supreme Court and former President Lahore High Court Bar Association) Ms. Sulema Jahangir (Advocate High Court, Daughter of Asma Jahangir) Short Film on Asma Jahangir – Courtesy Right Livelihood Award Speakers: Mr. I.A. Rehman (Former Secretary General Human Rights Commission of Pakistan) Mr. Ahsan Bhoon (Advocate Supreme Court Pakistan) Mr. Anwar-ul-Haq Pannu (President Lahore High Court Bar Association) Mr. Pir Kaleem Khurshid (President Supreme Court Bar Association) Mr. Kamran Murtaza (Vice Chairman Pakistan Bar Council) Ms. Kamla Bhasin (Activist and Poet, India) H.E Martin Kobler (German ambassador to Pakistan) Colin Gonsalves (Right Livelihood Award Winner, India) Ms. Orzala Nemat (Activist and Scholar, Afghanistan) HE Jean-François Cautain (Ambassador of the European Union to Pakistan) Hon Michael Kirby AC CMG (former Judge High Court Australia) Hon Chief Justice of Pakistan, Mian Saqib Nisar

12:30 PM – 02:00 PM LUNCH 02:00 PM – 03:00 PM Strengthening Democracy and Rule of Law 03:00 PM – 04:30 PM Independence of Judiciary and the legal profession including

the Role of the Bar 04:30 PM – 05:30 PM RESOLUTIONS, CLOSING REMARKS AND TEA Closing Remarks “REMEMBERING ASMA” “THE ROLE OF CIVIL SOCIETY IN PROMOTING DEMOCRATIC VALUES” Former Prime Minister of Pakistan Mr. Shahid Khaqan Abbassi Moderators for Resolutions: Mr. Ali Dayan Hasan (Senior Policy Adviser to UNDP Pakistan and author of UNDP’s forthcoming report on political mapping of Pakistan’s transgender population, and former Pakistan Director for Human Rights Watch) Ms. Mehmal Sarfraz (Print and Broadcast Journalist)

KHURSHID MAHAL Theme B: Mainstreaming Gender

02:00 PM – 03:00 PM Empowering Women in the Criminal Justice System including the legal profession 03:00 PM – 04:30 PM KEYNOTE Speaker: Gender Equality and UN Global Goals for Sustainable Development – How close are we? (Sweden and Canada’s feminist foreign policy) Charting Progress and Identifying Critical Reforms for Pakistan in relation to Global Goals for Equality

DINSHAW HALL Theme C: Freedom of Expression and Shrinking Spaces for Dissent

02:00 PM – 03:00 PM Academic Freedom and Freedom of Expression for Youth and Students 03:00 PM – 04:30 PM Freedom of Expression and Shrinking Spaces for Dissent

INDUS HALL Theme C: Freedom of Expression and Shrinking Spaces For Dissent

03:00 PM – 04:30 PM Cyber Laws and Protection of Human Rights

14TH OCTOBER, 2018 – DAY 2

09:30 AM – 10:30 AM Registration

MARQUEE PAVILION Theme A: Protection of Fundamental Rights Theme E: Justice for All and Impunity for None

10:30 AM – 11:30 AM Adopting International Human Rights Norms in Domestic Law – Australia and England 11:30 AM – 12:30 PM Constitutionalism and challenges – the 18th Amendment and Implementation 12:30 PM – 01:30 PM Death Penalty & Deterrence – Who are we Hanging? 01:30 PM – 03:00 PM LUNCH 03:00 PM – 04:00 PM Rise of Religious Fundamentalism in South Asia and Overview of challenges to the rights of religious minorities 04:00 PM – 05:00 PM Resolutions and Closing Remarks Mr. Farooq Tariq (Spokesperson Awami Workers Party) Barrister Hamid Azim Leghari (Advocate High Court Pakistan) 05:00 PM – 05:30 PM Closing Speeches Moderator: Ms. Munizae Jahangir (Senior Broadcast and Print Journalist) Mr. Afrasiab Khattak (Former Senator, Pakistan) Mr. AyazSadiq (Former Speaker National Assembly Pakistan) Dr. Shireen Mazari (Minister Human Rights, Pakistan) Mr. Bilawal Bhutto Zardari (Chairperson Pakistan People’s Party and Parliamentarian)

DINSHAW HALL Theme C: Freedom of Expression and Shrinking Spaces for Dissent Theme D: Challenges to Implementing Rights Legislation

10:30 AM – 11:30 AM Bonded Labour: Prevalence in South Asia and Reforms and the Protection of Trade Unions and their right to freedom of expression and assembly – safeguards to protect this constitutional right 11:30 AM – 12:30 PM The need for FATA and PATA reforms; challenges to access to justice and implementation of new laws 12:30 PM – 01:30 PM South Asians for Human Rights (SAHR) – “Reclaiming the Regional Solidarity” 01:30 PM – 03:00 PM LUNCH 03:00 PM– 04:00 PM Electoral Reforms – Post Elections 2018

KHURSHID MAHAL Theme A: Protection of Fundamental Rights Theme E: Justice for All and Impunity for None

10:30 AM – 11:30 AM Legal Frameworks in South Asia for the Protection of Refugees and Migrants 12:30 PM – 01:30 PM Protecting Human Rights Defenders 33

01:30 PM – 03:00 PM LUNCH 03:00 PM – 04:00 PM Legislative Priorities for the New Parliament – Implementing Women Friendly Legislation – Pakistan

KUNHAR HALL Theme A: Protection of Fundamental Rights Theme E: Justice for All and Impunity for None

11:30 AM – 12:30 PM The Third Gender and challenges to mainstreaming in the justice system & law enforcement agencies 03:00 PM – 04:00 PM Sexual Harassment against Women at Workplace

4. Resolutions Presented Finally, the Conference deliberations normatively culminated to present the following set of resolutions:

End of the Conference Resolutions 1. The conference resolved that the state must ensure the human rights of citizens, protect their fundamental rights, lift the ban on Non-Governmental Organizations and stop harassment of human rights defenders. All political parties must have a new charter of democracy to set ground rules to protect the democratic process and major political parties must take the lead in doing so. Judicial overreach must be checked as it is impinging upon the constitutional role of other state institutions. The Supreme Court must consider formulating parameters for taking suo moto notice. 2. Freedom of expression must not be curtailed by the state. Unannounced censorship in print and electronic media must be lifted. Parliament must approve a new bill for the independence of PEMRA according to the recommendation of the media commission report. Parliament must approve a Journalist Safety Bill which was moved in the previous Parliament. 3. The panellists noted that electoral laws, already existed, were not implemented in the 2018 General Elections. There should be thorough accountability of the Election Commission of Pakistan by presenting its performance report to the Parliament. Additionally, there should be use of cameras during vote counting. 4. Pakistan must implement legislation to criminalise enforced disappearances. The Government must prevent torture by adopting the 2014 bill, passed by the Senate. The conference resolved the Commission of Missing Persons must prosecute the 153 identified officials, responsible for enforced disappearances. The conference resolved that there is a disproportionately large population of under-trial prisoners, which presents a deep flaw in the justice system. 5. Pakistan must revise the syllabus of educational institutions, as some of it is discriminatory to religious minorities. The state’s appeasement of religious fundamentalism must end, and the Christian minority must be protected in the face of new threats. Laws that are discriminatory against minorities must be abolished. 6. The law on sexual harassment against women in the workplace is not being implemented. There are hardly any cases under this Act before the ombudspersons

despite a large number of women reporting sexual harassment in surveys. The law should be refined to introduce the crime of “sextortion” and sexual bribery as introduced in Sri Lanka. 7. On transgender rights, the conference resolved that the Transgender Act 2018 must be implemented in letter and spirit. It was recommended that a monitoring body for the implementation of current protection laws for the transgender community be established. Broad-based measures must be taken by government, media, civil society, essential service providers and the education sector to increase awareness about transgender persons and their rights across society. Gender sensitization and training of police is necessary. Raise awareness of and train mental health professionals on transgender issues. Ensure state provided or public-private partnership initiatives for increasing access of transgender persons to mental health services. 8. The conference resolved that visa free policies must be introduced, to reclaim solidarity among South Asian countries. The panel resolved that there is a need to revive SAARC (South Asian Association for Regional Cooperation) and demanded to call the 18th summit immediately. 9. On Cyber laws, the conference resolved there should be capacitation of judges, lawyers and, the cyber-crime wing on Prevention of Electronic Crimes Act. There should be an innovative curriculum which includes information on digital citizenship. There should be strategic litigation to get rid of draconian provisions of Cyber Crime Law. There should be enactment of Data Protection Law, which covers all public bodies such as NADRA and Safe Cities. There should be a “multi-stakeholderism” approach when formulating cyber laws and policies. 10. On gender equality, the conference resolved that structural discrimination in terms of how workplaces are defined creates inherent biases against women joining the workplace. More effort needs to be made to create gender inclusive workplaces. More women judges and women lawyers should be encouraged to join the criminal justice system. More women should be included on the basis of merit rather than simply as tokens in the superior judiciary. Women legislators in Pakistan have worked harder and smarter. Despite that, there is a glass ceiling for women in terms of decision making within the political party structures. There is need to change the way media portrays women in order to transform mind-sets and attitudes regarding the role and status of women in society. Male champions of change are an important part for ensuring gender equality. Family laws and matrimonial property (hitherto an unknown concept in Pakistan), maintenance and custody all affect the status of women. 11. On constitutionalism and challenges on the 18th Amendment, the Conference resolved that the desire to roll back provincial autonomy and entitlements granted by the 18th Amendment as well as by the Constitution of 1973 generally, such as the National Finance Commission Award, must be resisted. Pakistani federalism must be based on cooperation between constitutionally autonomous provinces and empowerment of the local governments. The role of the Parliamentary Committee in judicial appointments to the superior courts must be revived. 12. Pakistan should promulgate refugee laws. Pakistan needs a survey on internal migration data and research. Pakistan should accede to the 1951 Refugee Convention. An inter-provincial process needs to be established to develop a

comprehensive migrant and refugee policy to alleviate the burden on two provinces. Pakistan needs to consider integrating the international guiding principles on internally displaced persons (IDPs) in a national legislation for IDPs to protect the most vulnerable women and children. We require jurisdictional clarity for urban governance which currently governs land management. This has enhanced vulnerability of low income citizens and migrant refugees. Provincial governments and the federal administration develop their respective intra-provincial coordination mechanisms for the spectrum of governance units with clear mapping of mandates and services, accessible to the most excluded populations including those of “katchi abadis” and internally displaced communities. 13. FATA may have been merged with KP Province in the Constitution, but for all practical purposes, FATA still exists. At present, the military practically controls FATA Districts. It is signiﬁcant to know that elections of the KP Assembly in the Tribal Districts are conducted to bring urgency to the reform process in the Tribal Districts. At the time of the merger, all provinces had pledged 3% of their share of NFC award but now are all going back on their pledges. Women of Tribal Districts should be given representation in the NCSW (National Commission for the Status of Women) and should be included in the reforms process. Local bodies’ elections should be held in the Tribal Districts. After merger of the erstwhile PATA into KP Provinces, special laws like the Nazam-i-Adl Regulation and Action in Aid of Civil Powers Regulation have become redundant. 14. On death penalty, there was clear consensus that currently the system does not provide due process of law and until this is in place, death penalty leads to irrevocable gross injustice.

5. Sessions for Day 1 5.1. Strengthening Democracy and Rule of Law – deﬁning parameters of State institutions

L to R: Ms. Nafisa Shah, Mr. Colin Gonsalves, Ms. Bushra Gohar, Mr. Rashid Rahman, Mr. Fawad Chaudhry, Mr. Jakhongir Khaydarov, Mr. Ahmed Tholal

Moderator: Mr. Rashid Rahman (Senior Journalist) Speakers: 1. Mr. Fawad Chaudhry (Federal Information Minister, Pakistan) 2. Ms. Nafisa Shah (Parliamentarian, Pakistan) 3. Mr. Jakhongir Khaydarov (Programme Manager Strengthening Rule of Law UNDP) 4. Ms. Bushra Gohar (Former Parliamentarian, Pakistan) 5. Mr. Ahmed Tholal (Former Vice President, Human Rights Commission, Maldives) 6. Mr. Colin Gonsalves (Right Livelihood Award Winner, India) The session highlighted the elements needed to strengthen democracy, and to ensure the prevalence of rule of law to its fullest. It is vital for all state organs to function within their constitutionally defined role. The more interference there is, the more weakened the democracy is. When judiciary or any other state institution steps into the domain of another state institution, it erodes constitutional powers. Adherence to law is critical. Ms. Nafisa Shah initiated the debate by declaring that democracy was valuable in essence as it had hidden and long-term advantages that brought about sustainable change. The 18th

Amendment had led to the expansion of civilian space and the federal structure was redefined whereas the 25th Amendment expanded the scope of rights and freedom itself. While comparing 2008 to 2018, Ms. Shah questioned the current status of people, “Are the people better off? Are the rights expanded? Is there more freedom? The answer is no”. Two parallel narratives were functioning at the moment. As per the first narrative, politicians were corrupt, whereas according to the second narrative, politicians were being victimised. Ms. Shah said that there was a movement for civilian rule and rule of law in 2007 which she personally supported, but, “unfortunately, rule of the judge was restored and rule of judge is what continues till today “ Ms. Shah stated that politicians who got into altercations outside the parliament were part of the problem. She elaborated that from 2008-2013, politicians preferred courtrooms over parliament and the situation had not changed. “Rule of the judge exists till today,” she said. The greatest threat to democracy is the attack on judiciary- judges being killed, impeached, prosecuted-Mr. Colin Gonsalves added. He brought forward an example from Sri Lanka, where the Chief Justice was impeached because he gave a decision in the favour of Tamil dominated areas. Later on, he was brought back and then retired. Another example comes from Nepal where the Chief Justice occupied two designations at a time. Emergency was imposed in India, when Indira Gandhi was deposed as Prime Minister, Mr. Khanna was superseded, and he resigned. Later on, Mr. Khanna was proved right. In India, a prominent judge was killed at a young age, while he was handling the case of an important politician. Mr. Colin highlighted that making the constitution riddled with religion is another threat to democracy. India’s Constitution is secular in nature, the constitution says that religion is not part of law. However, the law minister said secularism and socialism are words that should be removed from the Constitution. They want to convert India into a ‘Hindu Rashtra’ (Hind State) from a secular one. He pointed out that the constitution in Bangladesh is now secular. According to him, the secular part of Constitution is very important for democracy. Bringing the session back to the situation in Pakistan, Ms. Bushra Gohar stated that democracy should always prevail and given the opportunity to strengthen with time. In 71 years, since the formation of Pakistan, there has always been direct and indirect military rule. Leaders like Benazir Bhutto and Wali Khan struggled for democracy. Today, political parties have surrendered to non-democratic elements. She further added that silence would not help political forces and they must speak up against anti-political forces. According to her, “the coup was completed on July 25th 2018 (Election day when Imran Khan’s party won).”Bushra Gohar labelled the current government a “sandbag”. She called on to address and confront the elephant in the room. She opined that the people behind the sandbags should be identified. “Constitution defines the parameters for institutions, but how do we set them?” Bushra Gohar questioned. She termed the 18th amendment a miracle. Political leaders have brought stability to democracy. She added that the current government has been thinking along the lines of rolling back the 18th amendment and reverting to central rule. However, the silver lining is the people of Punjab, who have woken up. She envisioned a revolution that would come from the Punjab. She quoted Wali khan, who said that Punjab will bring the last revolution against military rule and she displayed full faith in his beliefs. Religiosity in Constitution defined people’s religion, which was not the job of the state to decide. A handful of bigots could push the parliament to surrender, and she called upon the people to

resist this menace. She further added, that there should be no exception to the principle of accountability, “If I am wrong then I should be investigated. Silence shall no longer be the norm. One should speak up, as Asma used to say”. Mr. Jakhongir Khaydarov contributed by sharing his views that democracy should be home- grown. He added that the UN Secretary General introduced rule of law as a principle of law in which all entities including the state institutions are responsible. He further added that there had been world class experts in Pakistan including, a woman Prime Minister -Benazir Bhutto and human rights activists like Asma Jahangir, but a systematic change was required. He said, “If we don’t achieve this soon, the honour killings and other women- centric crimes will continue. “The role of judicial activism is controversial and people need to work collectively. Mr. Jakhongir was of the view that engaging in dialogue may be the best solution. He said that that the current role of judiciary, transformative change, the regional perspective, and the situation of minorities needed to be assessed and addressed. It was the obligation of the state to provide services and come up with practical recommendations. Mr. Fawad Chaudhary asserted that the Rule of law is affected by trust deficit on institutions, democracy and politicians. The mistrust is not without reason. During ANP’s Government, fake bullet proof jackets were made for soldiers, even though a PKR. 6000 crore budget allocated for the purchase. As a result of such a corrupt history, soldiers have died and trust has been lost. Rule of law is under no threat according to Mr. Fawad Chaudhary. Pakistan is on the right track- “tabdeeli” (change) is on its way and it is a middle class revolution in his view. He said that Pakistan needed to go to the IMF (International Monetary Fund) because of the policies and performance of the previous government. He questioned that why was it not better to ask for loans from friendly nations instead. He claimed that today the difference was that the voter and the spender both know not to repeat their mistakes. Khyber Pakhtunkhwa (KPK)passed the Right to Information Act (RTI), which allows people the opportunity to question their leaders, about rule of law. The said Act is considered to be the best in the world, and he intended to enact the RTI Act throughout Pakistan. Mr. Ahmed Tholal shared the journey of Maldives in explaining the importance and effects of a democratic state. In 2003, in Maldives, there was a public uprising as there was no democracy. Ordinary persons had no participation in governance until 2008,when a progressive constitution was introduced. Maldives once had democracy but the influential and powerful had turned the table for their own benefits and through corruption and buying votes, they were able to secure positions in parliament. Even the Human Rights Commission, Election Commission and judiciary were influenced by them. According to him, in Maldives, 5% of population controls 95% of wealth even now. Asma Jahangir is a constant source of inspiration for people, even in Maldives, stated Mr. Ahmed Tholal. Democracy was a grass-root movement in Maldives, but the process through which this was initiated was hijacked by the very people who initially pushed for democracy i.e. the political elites. He believed that because of the 89% voter turnout in the last election, there was now a movement for inculcation of democracy. Resolutions: 1. There is a need for proper formation, declaration and implementation of mechanisms ensuring the separation of power. Pakistan needs to separate its politics from its judiciary.

2. Constitution and religion are two separate things. This needs to be established and accepted. The more these two are intertwined, the more scope there is for religious extremism and cultural radicalism to inﬂuence the constitution. 3. Democracy with all its weaknesses, whether corrupt or not, should be maintained. The excuse of corruption even if true should no longer be used for the military to take over and put a stop to the development and learning of a democracy.

5.2. Independence of Judiciary and the Legal Profession Including the Role of the Bar

L to R: Hon. Mr. Tanweer Ikram, Mr. Ehsan Wyne, Mr. Mansoor Usman Awan, Mr. Ali Ahmed Kurd, Mr. Akhter Hussein

Moderator: Mr. Mansoor Usman Awan (Advocate, Supreme Court) Speakers: 1. Mr. Ehsan Wyne (Advocate, Supreme Court) 2. Mr. Jakhongir Khaydarov (Programme Manager Strengthening Rule of Law UNDP) 3. Mr. Akhter Hussein (Member, Pakistan Bar Council) 4. Hon. Mr. Tanweer Ikram (Deputy Senior District Judge “Chief Magistrate” for England & Wales) 5. Mr. Munir A. Malik (Former Attorney General, Pakistan) 6. Mr. Ali Ahmed Kurd (Former President of the Supreme Court Bar Association, Pakistan)

The independence of judiciary could only be understood through two perspectives, one is the need of independence which could be from within the judicial framework itself, and the other from interference by other state institutions. Due to the significant and sensitive nature of their work, judges must act independently so as to maintain faith and integrity in the justice system. The session engaged in a variety of factors impacting independence within the judicial structure. These included how much of the administrative control is exercised by the superior courts over the subordinate courts. Another important theme discussed was the lawyers’ movement of 2007 and how this has changed the legal community in Pakistan. In this context, two powers of Chief Justice have invited criticism from the Bar and also from the other stakeholders. Firstly, should the power to constitute benches be vested in one individual, namely the Chief Justice, or should that power be exercised in a more structured manner? Secondly, how should the jurisdiction under Article 184(3) of the Constitution (suo moto power) be exercised within the meaning of the Constitution? Finally, the discussion concluded with assessing the role being played by bar associations and legal communities in ensuring the independence of the judiciary. While discussing the 2007 lawyers’ movement, Mr. Ahmed Ali Kurd shared that that only 10 years ago, lawyers, civil society, journalists, media, political activists and millions of people showed great strength by standing against a dictator and brought about independence of judiciary. The same lawyers promulgated a strong and independent bar after their movement. Mr. Kurd paid tribute to Asma Jahangir, who was a part of the movement for two years and as a strong woman, a political and human rights activist, she played her role throughout. He pointed out that Asma Jahangir had paid back to the society and did what the country needed her to do. She deserved each and every word that was being said for her in tribute, but unfortunately, only verbal tribute could be given, as her wish for an independent judiciary in Pakistan had not been fulfilled. Mr. Kurd emphasized that as lawyers, they had the right to hope for an independent judiciary, but an independent bar was critical in achieving an independent bench. Giving an example Mr. Kurd pointed out that Justice Shaukat Aziz Siddiqui had not committed any crime but he was removed without even giving him an audience or trial. Mr. Akhter Hussein expressed that the judiciary was like other institutions, which are not democratic and institutionally independent. He believed that a justice system cannot be independent when the democratic institutions of a country are so weak. He further shared that although movements have been led for the restoration of democracy, but the term “restoration of democracy” had remained misleading. In Pakistan, there has been a struggle for democracy, but that has not been achieved and we are still in the process of establishing democratic institutions in the country. Mr. Hussein, while sharing his reflections, maintained that if a country continued to experience military rule for over 35-40 years directly, and later on indirectly, then the post- election complaints were an after-effect of that military dictatorship. “The independence of our judiciary is also a part of that rule. From 1970’s onwards, Pakistan has struggled for the separation of judiciary from the executive in the shape of conferences or road strikes, and in the courts, even after all those efforts the issue of independent functioning of judiciary is much more serious at the lower courts in comparison to the superior courts,” he pointed out.

Moving on to the role of Bar, Mr. Akhter Hussein claimed that, all the representatives of Pakistan Bar Council in the judicial council have said that “the decisions are always made in advance, and they just had to vote in either ‘yes or no’”. He believed that constitutional amendments were needed, for which the Pakistan Bar Council has sent many resolutions to parliamentarians. The parliament needs to criticise its own performance. An example was given of the 1973 Constitution of Pakistan, which was amended after a military dictatorship, but it has still not been restored to the original Constitution of 1973. He believed that remnants of martial law could still be found in it, whether in the shape of Article 2A, the Federal Shariat Court or the discrimination of the Head of State on the basis of religion. Many amendments of Zia ul Haq’s era were still found in the Constitution, which need to be eliminated, and only then the independence of judiciary could be achieved. Regarding the exercise of powers under Article 184(3) and the constitution of judicial benches, Mr Hussein stated, “Pakistan Bar Council has forwarded its resolutions directly to the Supreme Court. “The constitution of benches should not be the jurisdiction of the Chief Justice alone, at least a committee of senior judges should have the authority,” he asserted. Mr. Hussein stated that like all developing nations, there were fundamental rights violations in Pakistan too. However, he believed that the Supreme Court could not cater to all of them under its suo moto powers. On legal education, he said that there has been no commitment of the state, and the government. He opined that five-year courses in public sectors could not be run without the funding of the government. Honourable Judge Mr. Tanweer Ikram shared his personal experience and stated that judicial independence is not an issue only in Pakistan only but also in England. A former director of public prosecutions in England once said, “Some of us have worked in countries where judges do as governments tell them and we know it is highly corrosive in rule of law of democracy. A purist, he pointed out, would ask the state to function properly. The relationship between government and the judiciary must be based on mutual respect to their roles and to the separation of power, but that would not mean that there would not be any friction between government and the judges. On the contrary, tensions could be a healthy thing. Through their judgments, judges will discover that the government at times oversteps the mark and breaches the law. However, it does not mean that there is a dysfunctional state- it is normal. It shows judicial independence is in place and that there is proper separation of power, as it is part of the rule of law. Rather than undermining nations, it makes nations great. Judge Ikram hoped that both Pakistan and England’s legal systems share these irrefutable legal principles sacred to their democracies. An example from the UK history where judges faced some difficulty was shared by Judge Ikram. Since 1973, the UK has been subject to jurisdiction of the external court-the Court of Justice of the European Union. In June 2016, there was a referendum and the British people voted by 52% to 48% to leave the EU. To many the results came as a surprise, and in fact UK leaves the EU in March 2019. Unsurprisingly, the judges got involved. The Prime Minister used her personal powers to invoke Article 50 of the Treaty of European Union. In effect, she gave notice that our country was leaving and thereby started the process of withdrawal. A woman called Gina Mills challenged the government on the exercise of power. She argued that the government acted unlawfully, and had no power to start the process and it

required legislation enacted through parliament. The High Court of England and Wales led by the Lord Chief Justice agreed and ruled that the government could not unilaterally take the country out of the European Union. It required Primary Legislation passed by Parliament, and that the government had effectively acted outside the jurisdiction of its power. Now what happened next came as a great shock, because the Lord Chief Justice was immediately and personally attacked by the press. The most popular news channels described them as enemies of the people. All judges in England and Wales were shocked, as they were being personally attacked by the nation. The Chief Justice said that that was the only time in his whole judicial career that he asked for the police to protect them. He had to seek personal protection advice and it had a political implication, dividing the parliament. In a speech, the President of Supreme Court said, ‘If we undermine judiciary, we are undermining our rule of law’. One cannot underestimate the power of media, but problematically the Government stayed silent, giving into the right of media’s freedom of speech. This is where the professionals came and protected the judiciary. They had unequivocal support for the judges and the Bar Council passed a legislation. The Bar Council in England and Wales condemned serious and unjustified acts on judiciary arising out of this litigation. A strong, independent judiciary is essential to functional democracy and upholding the rule of law. Using the analogy of his example, Judge Ikram stated that society is based on the rule of law and democracy and without good reason, if media or anyone undermines our judiciary, it actually undermines our society. Mr. Ehsan Wyne shared that the judiciary could only be independent when it followed the constitution and the responsibilities that have been trusted upon it. Independence of judiciary does not mean 35 years of dictators taking over by going against the constitution. Now, the judiciary and judges take oaths to protect the constitution. Then, dictators and judges joined hands together and called this alliance the “independence of judiciary”. Separation of powers is a core element of independence of judiciary. He spoke about the situation in the country, which has led to isolation from the world and economic downfall. According to him, arresting politicians without trial and without evidence should be stopped because this trend had split Pakistan. According to Mr. Wyne, raising fingers on politicians should be accompanied by a check on judicial irregularities as well. Mr. Akhtar Hussein was asked about his stance over a 5 year BA-LLB program. He stated that people are worried all over Pakistan especially those who have retired and taken up this profession much later in life. Mr. Hussein pointed out that legal education is different for each province. Efforts were made to develop legal education curriculum, as a full-time law school and profession since 1990s. In 2015, the High Court amended a rule that legitimized law for those who graduated in 2017-18. There is no restriction for people after retirement or later in life to study law. However, they would not be given a license to practice since it is restricted to those who have studied full time in law school and belong to a full time legal profession. These retired people can give legal advice, but they would not get a license. Professional development would not be possible until law is a first career choice. Judiciary and legal profession have distinct functions. The legal profession may not always agree with judiciary, but it is important to understand that any threat to independence of judges is a threat to lawyers as well.

Resolutions 1. All state institutes must act within the constitutional bounds to ensure independence of not just the judiciary, but also other state institutions. Adopting the doctrine of ‘political question’ could help achieve that. Other state institutions must not interfere unless the judiciary transgresses its constitutional bounds. 2. In a full court hearing the dilemma, Article 184 (3) should be sorted out. Parameters should be deﬁned as to how this power may be exercised and whether it should or should not be vested in one person. Ideally, a special bench should be constituted comprising of at least 3-5 members of the Supreme Court having the power to exercise the power under Article 184 (3). 3. The process of the Supreme Judicial Council must be transparent and conducted with due process. 4. All the pending cases and references ﬁled must be decided swiftly. It is not good for the justice system and the independence of judiciary for the cases to stay pending for months and years. 5. In order to achieve independence of judiciary, the judiciary also needs to stop commenting over the political situation and politicians, and end the blame game. When anything illegal happens, the courts have the absolute authority to rule against that, whether the case is against a politician or a layperson. By interfering in politics, the judiciary gets distracted and justice is further denied. 6. The judges and bar associations must work together respect each other and promote more independence and rules of fairness and quality in the justice system.

5.3. Empowering women in the criminal justice system including the legal profession

L to R: Mr. Salman Sufi, Mr. Faisal Chaudhry, Ms. Rukhshanda Naz, Ms. Rafia Qaseem Baig Ms. Ammara Athar, Ms. Samina Ahmed

Moderator: Ms. Mehmal Sarfraz (Print and Broadcast Journalist) Speakers: 1. Ms. Samina Ahmed (Project Director International Crisis Group) 2. Mr. Salman Sufi (Former Director General of Punjab’s Strategic Reforms Unit and Senior Member of the Special Monitoring Unit on Law and Order) 3. Mr. Faisal Chaudhry (Advocate Supreme Court) 4. Ms. Rafia Qaseem Baig (Law Enforcement-Bomb Disposal Unit) 5. Ms. Rukhshanda Naz (Executive Director, Legal Aid and Awareness ServicesPeshawar and former CEO of Aurat Foundation) 6. Ms. Reema Omer (Lawyer) 7. Ms. Amara Athar (District Police Officer, Punjab) Ms. Dad pointed out that there had never been a single woman judge in the Supreme Court of Pakistan till date. Ms. Samina Ahmed mentioned that only 1% of women are employed in the police, while women constitute half of Pakistan's population. This fact itself is self- explanatory of the existing discrimination, she said. Ms. Ahmed pointed out that there are areas in the country, where women police officials cannot even register First-Information Reports (FIRs) without the approval of their male superiors. This shows that the police, as an institution needs readjustment. There were only seventeen police courts countrywide that work with women and some of them did not even have basic facilities like offices. She stated sexual harassment is rife within the police force where even colleagues become threats to female police officers. Ms. Ahmed stated that while lower ranks might not be that discriminatory, the higher ranks in the profession definitely are. She felt that more women were not just needed in the police force but in the entire criminal justice system. Ms. Rukhshanda Naz gave the discussion a distinct angle by delving into women’s position in all professions and not just the legal field. She highlighted how Pakistan’s constitution declares equality of gender in all areas of life but institutions like the Council of Islamic Ideology has consistently disappointed by raising negative points against women and agitating against every progressive move for gender equality in Pakistan. They are reported to have said that women should only be appointed as judges after the age of 40 for they do not remain attractive after that. She opined that numbers only matter when there is a proper policy in place. It was her belief that the legal framework was not only biased towards women but also towards the marginalised groups in society like non-Muslims and people living in remote localities. According to her, the legal system as a profession was gender neutral but not gender sensitive. Ms. Naz went on to discuss the theme of the session in light of the available infrastructure for women. She observed how the Inspector-General of the police talked about the unavailability of infrastructure for women, and the finance department said that provisions of the Domestic Violence Bill cannot be implemented as there are no resources to appoint officers there. In light of these problems, Ms. Naz questioned what the use then was of the 10% quota for women in government jobs. Ms. Naz appreciated the achievement of the quota in the Federal Investigation Agency (FIA) where 9.68% of officials are women.

However, this too, according to Ms. Naz was an exhibition of state priority to keep women only in some fields but to exclude them from others. Ms. Reema Omer added that in Pakistan, only 5% of the judges in the High Court were females and 20% on the civil level were female. Furthermore, the Pakistan Bar Council had never elected women members and women had been entirely excluded from this significant legal body. According to her, global research showed that having women in the judiciary would be a better way to protect the rights of women. She questioned whether women were complicit in enforcing patriarchy or were they in fact sympathetic to the plight of other women. More specifically and to prove her assertions, Ms. Omer discussed distinctions between the judgments of Justice Ayesha Malik and Justice Mansoor Ali Shah on the issue of sexual harassment. She stated that Justice Ayesha’s approach was quite refreshing; she talked about sexual harassment and the way it was related to the liberty of women. Ms. Omer believed that while Justice Mansoor Ali Shah’s judgment was good, he could not relate to the women in the way Justice Ayesha could. Ms. Omer highlighted how quotas in the judiciary for women were not a smart idea because the country did not need women as symbols, but women who come on the basis of merit. She also mentioned how it was unfortunate that the legal system relied heavily on nepotism- which meant that only those women who had ties in the judiciary or legal profession would benefit from the quotas. Ms. Omer believed that the present system of appointing judges was not very transparent. There is only a list of nominations, and then an announcement in the media. There is a lack of transparency and such secrecy always works to the disadvantage of women and democracy. Ms. Omer believed that perhaps the legal profession was also in dire need of a “#MeToo” movement. The type of sexual harassment present in this profession was scary according to her and left women with no recourse. She believed that safety needed to be ensured in the legal profession and it needed to be made more inclusive. Mr. Faisal Chaudhry observed that laws related to women existed but required implementation. While he recognised some positive changes in the profession; he believed that steps like the 18th amendment held the country back. He expressed disappointment at the lack of a single female Supreme Court judge. It was his belief that women themselves needed to modify their attitude and not promote discriminatory attitudes. Pakistan had to empower its women. Some judges were very incompetent in comparison to more competent female judges but were not promoted because of their gender. He opined that fixing quotas did not help. Instead, political parties needed to bring professionals in the legislature and not their own relatives. He expressed further disappointment at the accusations levelled at great women like Ms. Asma Jahangir and Ms. Malala Yousafzai. He believed in the call to defend the country’s Asmas and Malalas. He resolved that there needs to be a collective attitude towards this issue at all levels, and it should start from the basic unit of the home and lead all the way up to the various public institutions in the country. Mr. Salman Sufi stated that Pakistani society had an entrenched patriarchal mind-set. Even people who made great speeches regarding women rights in the assembly did not give rights to the women in their homes. He mentioned how the Women Protection Bill faced

opposition from all spheres. It was alleged that the Bill was anti-Islam and anti-men. Even Maulana Fazal-ur-Rehman, who was an ally of the Government, was against the Bill. Mr. Sufi narrated how he and Ms. Asma Jahangir eventually decided that they could not let 40 people derail the ideas of the elected representatives of the people. To develop the Violence against Women Centre, Mr. Sufi interviewed more than one hundred doctors. He asked them if a girl in a tank top told them that she had been raped, how they would respond. 97% of them said that they would tell her to change her way of dressing and perhaps then, this would not happen to her again. He shared how there have been over 2500 cases for the Violence against Women Centre in Multan alone. He believed that if this Centre did not exist perhaps these cases would never have been reported. Mr. Sufi also apprised the audience of initiative to change the school/college curriculum. They were able to add gender sensitive chapters in the curriculum of 9th-12th grades. They had also started Street Theatre campaigns in villages. He believed that the Women on Wheels policy also played a great role- many women were taught how to drive motorcycles as mobility was very important. No matter how many laws were passed, it was an injustice to women if they were not mobile. In the end, Mr. Sufi stated that they were not getting enough support from the present government and that they will raise their voices till they were heard. During the interactive session between the panellists and the audience, Ms. Amara was requested to share her experience as the only female District Police Officer in Punjab. She responded by saying that women should not let slight negativity and criticism affect them. Women will always be treated differently but they should not let a few comments hold them back. She believed that separate police stations were not needed for female officers but that female officers should be posted in all police stations. She also mentioned people showed more confidence and comfort when there were more women in the field sitting on front desks. On that note, Ms. Amara shared how there are only 22 police stations in her city in which only 60 women were present.

Resolutions: 1. Women should not be consigned to certain roles, for example, female staff for female prisoners, but they should be trained in all fields. 2. There should be more safety and accountability in the legal profession. 3. More females are needed in the police force and judiciary. 4. There should be more training for male lawyers and policemen to make them more gender sensitive. 5. More women should be elected in bar councils. 6. Existing laws need measures for implementation. 7. The curriculum needed to be revised. 8. The systems of the High Court and Supreme Court needed to be changed- criteria for merit needed to be set out and defined making it more diverse and inclusive. 9. There should be enough resources in the criminal justice system through affirmative action policies.

5.4. Gender Equality and UN Global Goals for Sustainable Development – How close are we?

L to R: HE Annika Ben David (Sweden’s Ambassador at large for Human Rights, Democracy and the Rule of Law); HE Martin Kobler (German Ambassador to Pakistan)

Keynote by HE Annika Ben David (Sweden’s Ambassador at large for Human Rights, Democracy and the Rule of Law) Moderator: Ms. Roshanah Zafar (Founder Kashf Foundation Microﬁnance Institution) Speakers: 1. Ms. Christine Chung (Geneva Human Rights Oﬃcer-OHCHR) 2. Ms. Kamla Bhasin (Indian Activist, Author and Social Scientist) 3. Ms. Sulema Jahangir (Advocate High Court and Hon. Executive Director AGHS) 4. Mr. Jamshed Kazi (Country Representative – UN Women) The main points of the keynote were as follows: Gender Equality lies at the heart of Swedish National Policy and Foreign Policy. It connects to peace, security and economic development. It is clear that the international system has failed in its mission to provide peace and security for women. The world needs to change its strategy from reactive to proactive, focusing on prevention rather than mere response. Applying gender analysis, strengthening the connection of gender disintegrated data, improving accountability and bringing women into peace building negotiations is the key to move forward.

Other countries have a lot to learn from Sweden when it comes to gender equality. The steps taken and their progress in this matter needs to be deeply analysed to appreciate the positive change that gender equality brings. The Swedish Prime Minister launched the world’s first Feminist Covenant and the Foreign Minister launched Sweden’s first Feminist Foreign Policy. The world would be a better place if men and women would have the same resources and opportunities. Sweden’s foreign policy is an agenda for change that works for the rights and resources for all the women and girls around the world. Rights are at the core of their policy-making decisions. When engaging in a dialogue over gender equality, one needs to bring forward and discuss certain questions: do women and men simply share the same rights? How to cleanse the legislation from acts that are discriminatory to girls and women? Today, 104 countries around the world have laws preventing women from carrying out certain jobs, in 18 countries men can legally prevent their wives from working, 59 countries have no laws preventing sexual harassment in the workplace, 123 countries have no laws regarding sexual harassment in education, 37 countries have no laws safeguarding pregnant employees from being dismissed, 45 economies have no laws that protect women against violence. 400 million women do not own a cell phone, which means it limits their access to information and participation in economic and political activities. At the same time, research clearly shows that a normal economy would grow by 20% if both men and women worked and gender equality makes society much more peaceful. Ms. Christine Chung engaged in the conversation focusing on women who are able to get education but still are not admitted into the labour force. She discussed the barriers that prevent them from progressing. On one hand, we talk about women’s opportunities in the workforce and on the other, recognition in the unpaid work of home. She expressed the need to look at the status of girls and women that leads to lack of access and equality in the workplace. Human rights are universal, indispensable, unalienable, interrelated and interdependent. These are the basic human rights principles. There is a need to look at the problem of women inequality at the workplace, the issue of access to education, right and access to health, opportunities and resources. The important question is, if girls are anaemic and malnourished then how are they going cope even if they have access to education? This also has consequences for them while competing in the workplace. Gender equality is not only the right thing to so, it is the smart thing to do. If there is an equilibrium reached as to the workforce contribution of both genders, the GDP can increase by one third. The session then moved on to a discussion of the importance of the legalsystem in the gender equality conversation. Ms. Christine Chung addressed this by discussing the international legal framework. She stated that it actually helps a lot. Pakistan recently submitted reports about how it has met its international legal obligations, interpreting international laws and implementing them in different committees. These committees provide recommendations after reviewing the country report. Some recommendations that were provided in 2017 are: 1. The state should intensify its efforts to adopt legislation forbidding the marriage of both males and females under the age of 18 because if children are getting married, their rights to health and education are being compromised.

2. Raising the awareness of the police, prosecutors, judges and journalists about violence against women and about women’s rights. 3. Provide vocational and educational training to women based on market demand of labour. Adding to the discussion, Ms. Kamla Bhasin addressed the issue of the term ‘Feminism’ being widely misunderstood. She explained how gender equality and feminism is equated. For her, feminism is the most misunderstood term and ideology in the world. Women, according to a German feminist, are the last colony that needs to decolonize themselves. People do not like it because they do not understand it and both men and women are scared of it. Feminism is an ideology and not a biological phenomenon; all women are not feminists and likewise men can be feminists. Feminism is like water, it takes the shape of the vessel into which you put it. Feminism alone has focused on and challenged patriarchy that is a global system. It is global because our issues are global and it is local because patriarchy also has local faces. For example, “sattee” (the tradition of a widow allowing herself to be burnt alive with the cremation of her deceased husband) is a local issue of India but rape, harassment and glass ceilings are global issues. Feminism challenges and people are generally scared to challenge culture, religion and constitution. Many inequalities are rooted in religion as well, many festivals take place around the year which empower men and put down women. But a cultural revolution is needed, which challenges things or practices that go against our constitutions. Feminism has popularized three truths: 1. Without gender equality, no family, no society and no country can progress. 2. If women are not free, men are not free because we live in the same world. 3. Gender equality is not a zero-sum game, it is a win for all. A pertinent issue which came to light during this session was the need to change the media’s role and use it to promote gender equality. Ms. Kamla Bhasin addressed this by sharing that the media played an important role in promoting gender inequality today. The pornography, cosmetic and toy industry is objectifying women in subtle ways that leaves imprints on young minds about how a woman is supposed to look or be to be accepted in society. The ﬁlm industry is demoralizing and objectifying women while encouraging misogynistic sentiments as well with item numbers portraying women as sexual objects alone and portraying men as ‘Dons’. Ms. Sulema Jahangir contributed by discussing the relationship of family laws with gender equality. Pakistan has one of the worst statistics for gender inequality in the world. One of the reasons for this is people always ﬁnd an excuse to practice gender inequality, be it on the basis of religion or culture. Where religion forbids honour killing, the excuse is that culture allows it, where religion forbids daughters and sisters to be sold to settle bargains, again culture allows it. We are stuck in this circle where women get the worst bargain. Ms. Sulema shared that in the 1980s and 1990s, there have been judgments in Pakistan condoning killings in the name of so-called “honour”. One such judgement was when a father who had murdered his daughter was only sentenced till the rising of the court. The biggest problem in family laws is how half the adult population lives on the back foot. Women work as homemakers without getting paid or compensated. They are allowed dower but a huge chunk of the population do not actually have any proper dower. Family

law is what empowers a woman at home and that in turn empowers her in the society and her workplace. She further added that religion is used as an excuse to not reform family laws that create inequality for women. During an interactive session, Ms. Sulema Jahangir was asked about the existence of a huge glass ceiling for women in judiciary. She was questioned how she felt about it as a lawyer and how a woman could get into these positions. Ms. Sulema shared that the legal profession is a reflection of society, it is where we come from. There are two female judges in the Lahore High Court, one woman Chief Justice of Baluchistan High Court and we have never had a woman in Supreme Court of Pakistan. Even though the number of female lawyers has increased, they opt for family and civil law or other women friendly branches and never criminal law. Senior judges need to come up with policy decisions that will help women to climb up the judiciary ladder. Mr. Jamshaid Kazi contributed to the discussion by emphasizing that men should be included in the movement of feminism and reducing gender inequality. He started off by sharing some statistical realities focusing on the labour force participation of women which is the lowest in this region: India 27%, Bangladesh 33% and China 60% participation. Many laws in Pakistan do not let women join the labour force. The Punjab Companies Act 1930 has a clause stating women cannot be operating cotton opening machines because it is dangerous and women are incapable of doing so. Women cannot work after 6:00 pm or 7:00 pm because it gets dark and dangerous for them. In an interactive session, the discussion changed its course and the relative increase in the women participation in elections became part of the dialogue. Mr Jamshaid Kazi affirmed the increase yet highlighted significantly the dilemma in the practicality of it. Women in assemblies and parliament are around 20% which is an improvement but women are given seats based on reserved quotas, which raised questions of legitimacy on whether they actually represent the constituency or not. Women work harder in the Pakistani legislatures (in terms of introducing and drafting legislation) and ask the most questions during the sessions. Their attendance is much higher regardless of their low representation in comparison to men. However, despite all this, there is a dismissive attitude towards them because many are from reserved seats. Resolutions: 1. Ensure proper steps are taken to eliminate the use of harmful cultural concepts cloaked in extremist religious ideologies to demote the progress for gender equality. 2. Senior judges need to come up with policy decisions that will help women to climb up the judiciary ladder. 3. Family laws need to be reformed so women are given a share of matrimonial property (hitherto an unknown concept in Pakistan) and spousal maintenance after the dissolution of a marriage. Further, family laws should be reformed in all provinces so women are not made to return their dower upon the dissolution of a marriage. 4. Initiatives to clamp down on sexual and gender violence against women should be taken. 5. Work should be done to reduce impunity resulting from sexual violence.

6. Sweden has one of the best record for economic and social prosperity which is because it has gender equality. Pakistan has one of the lowest participation of women in the labour force. Gender equality in every sphere is essential for progress in any country.

5.5. Academic Freedom and Freedom of Expression for Youth and Students

L to R: Dr. Ammar Ali Jan, Mr. Arieb Azhar, Dr. Taimur Rahman, Dr. A.H. Nayyar, Ms. Salima Hashmi, Dr. Neelam Hussain, Ms. Alia Amir Ali

Moderator: Dr. Ammar Ali Jan (Activist and Professor at Forman Christian College Lahore) Speakers: 1. Ms. Alia Amir Ali (Political Activist and Writer, General Secretary of National Student Federation, Teacher- Quaid-e-Azam University, Pakistan) 2. Dr. Taimur Rahman (Professor- Lahore University of Management Sciences, Political Activist and Musician) 3. Dr. A.H. Nayyar (Pakistani Physicist, Anti-Nuclear Activist, Peace Activist, Journalist and educationist) 4. Mr. Arieb Azhar (Musician, Culture Promoter and Suﬁ tradition reviver) 5. Dr.Neelam Hussain (Educationist, Lahore Grammar School, Pakistan) 6. Ms. Salima Hashmi (Former Principal National College of Arts and Council Member- Human Rights Commission of Pakistan)

This session highlighted the significance of freedom of expression in the interwoven contexts of illiteracy, poor-quality education, under/unemployment and uncertain future prospects for the youth of the country. Attention was drawn to the worrisome situation regarding a lack of opportunities for the youth due to which majority of the youth feel anxious and vulnerable. Access to quality education and to employment opportunities were stressed to be equally significant in uplifting the status quo and focus was drawn to the responsibilities of the State in doing so. It was recognised that young people raise questions about government policies, future prospects, societal norms, ideology and nationalism. However, instead of catering to their concerns and redressing their grievances, society labels them as rebels. The next significant theme of debate was the problem of shrinking spaces of dissent in colleges and universities. It was emphasised how the past few years alone have seen a rise in intolerance at educational institutions. Dr. Taimur Rehman engaged in an in-depth analysis of the reasons behind deteriorating academic freedom. He pinpointed the two major causes of this downfall: Pakistan’s clerics and Pakistan’s military generals. He brought to focus the issue of lowering of standards of Punjab University and others during General Zia-ul-Haq’s regime. During this time, highly esteemed professors were forced to leave their jobs after which they joined the private sector where they faced fewer restrictions. After the Lawyers’ Movement, the media is being increasingly used to control the thought-process of citizens. The Inter-Services Public Relations (ISPR) is spending a lot of money on social and mainstream media, carrying with it a mechanism of controlling the thought process of and debate amongst university students. Dr. Taimur drew attention to how retired and even serving army generals visit universities and hold talks, instead of having academic discussions which are being increasingly banned by intelligence agencies. When professors come out to show support for student movements, they are removed from universities. Such restrictions detrimentally impact freedom of expression, independent journalism and academics in general. Instances of such occurrences are found in the blasphemy allegation levelled at Professor Junaid Hafeez, the kidnapping of Dr. Ajmal Khan (Vice Chancellor - Islamic College, Peshawar), the removal of Dr. Waqar Ali Shah (historian) from his directorship in a university. There also exist taboos on discussion of certain educational subjects like sexuality, the Two- Nation Theory, Darwinism and Marxism. This vacuum is heightened by a lack of critical analysis of the arts and social media. Dr. A.H Nayyar pointed out the lack of ability amongst students to reason, apply logic or employ critical thinking. Such lack of knowledge and argumentation leads to the lowest level of conversation amongst students, who do not move beyond discussion revolving around gossip and events. Ms. Alia Amir Ali discussed the issue of educational freedom in educational institutions. She highlighted the banning of Student Unions in Pakistan, a direct corollary of which was that students were refrained from having a voice. Dr. A.H Nayyar drew attention to forums in the past wherein students could raise their voices- provincial contests between students, debates, culture societies, creative programmes, films and news clubs. All of these are important forms of expression and unfortunately, they have either reduced or disappeared from campuses. The educational environment should be conducive to free expression and should not have notions of “absolute truths” as these are wholly contradictory to the purposes behind freedom of expression.

Ms. Amir highlighted how today, students are always spoken about, but are unable to represent themselves through any forum. She drew attention to the multifarious incidents exhibiting this state of affairs, from the recent gruesome killing of Mashal Khan (a student of Abdul Wali Khan University), degree verification issues in universities in Lahore and the problems which have come to the spotlight in Quaid-e-Azam University and Islamic University. Ms. Amir described how the last decade saw a revival of student movements, which was different in both form and content from previous movements of comparison. It was recognised that the lack of basic facilities, accommodation and soaring tuition fees, all act as significant impetuses for such student movements. Light was shed on an emerging type of student movement in the country emanating from cultural differences across the spectrum – the movement advocating for a right to identity and the right to “autonomously” identify oneself. The necessity of this type of movement stemmed from a violation of this right under the disguised labels of nationalism and state security. A significant debate ensuing throughout the session concerned whether student unions should be depoliticised. Ms. Amir opined that persistent attempts have been made by the State to move students away from politics but despite their schemes, the students have picked up controversial political issues, but have had to pay heavy prices for doing so. One identifiable reason behind this was stated to be universities having transitioned from providers of education to businesses with money-making as their primary objective. The decline in spaces of learning was attributed to this increasing commercialization of education. Students are led to think that they will be taught and their thinking skills will be developed but they are simultaneously given no space to ask questions. Ms. Amir pointed out how, despite several democratic governments having been in power in the country, the ban on Student Unions was never lifted. Another issue flowing from the status of educational institutions was recognised to be increasingly systematic individualism and competition amongst students. This issue has become a class-based one where high tuition fees are imposed to discourage access for those who cannot afford it. This triggers competition between students on a quota system and financial needs system. Thus, qualified candidates lacking requisite financial resources are eliminated from having an opportunity to obtain a degree from these top-ranked institutions. Dr. A.H Nayyar connected the theme of the discussion to the issue of language. He opined that the basic issue undermining the society’s freedom of expression is that one needs to know a language to express oneself coherently and cogently. However, there is serious impediment to this resulting from poor conditions of public schools in specific, whose students do not possess sufficient working proficiency in either English or Urdu. Mr. Arieb Azhar added the distinct element of culture to this discussion. He defined culture as inclusivity and the passing on of old traditions to new generations. The present generation has different experiences and problems from the previous generations. Culture is being killed by preservation in museums or trapping in folk music. Culture needs freedom of expression. He also discussed how there is a certain fear in asking questions and when people are afraid, they do not question ideologies. It is when a society moves towards violence that it can be seen that people are ready to question and revive their ideology.

When Christianity and Judaism were born, it was an era of violence and it was the sign of eminent change, as violence arose from fear. Ms. Salima Hashmi discussed the theme of the session in light of “artistic freedom”- the freedom to imagine, create and to distribute diversity of cultural expressions. It should be free from censorship, pressure from non-state actors and political interference so that people can have access to individuals and groups who create something that makes the community whole and rich. She drew attention to how Saadat Hassan Manto was dragged to courts in 1948 because of what he wrote, how Faiz Ahmed Faiz also went to jail because of the consequences of the competence and power of his words and what he could have written or of how Sadequain Hussein’s paintings were burnt by a mob. When Quratulain Haider wrote ‘Aagkadarya’, there was mayhem and she came under severe vilification by the society- there were non-state actors who could not accept what she wrote and confronted her artistic expressions. She continued teaching the history of culture and learnt to negotiate the barriers: ‘We spend our lives negotiating barriers of our rights to be artistic.’ All of these examples show how there is a negative history of artistic freedom in the country. Ms. Neelum Hussain added a different perspective to the discussion, and focused on non- confrontation. Her area of concern was the kind of educational framework needed throughout all levels of education and at the research stage, to create liberalism amongst the learners. She called them learners and not students because learning is a lifetime process; even professionals require a great deal of learning. Resolutions: 1. To reconstruct diversity and intellectual debate at each level of education, a new curriculum should be designed which contains perspectives with competing ideas, alternative planes of the truth, and multiple ways to develop diversity. Universities should impart skills such as analysis, critical thinking, inquiring, and shifting through different perspectives. 2. All learners should possess a strong sense of responsibility and this must be part of the curriculum, instead of being limited to special seminars. They need to be taught how to be tolerant to ambiguity, to understand and respect other points of view. From the early age of three, learners should be taught the monumental pre- eminence of honesty. 3. Graduates should be able to contribute to democracy and to the economy of the 21st century, which is dependent on ideas. It is fair to protest but unheard views should be listened to and not silenced. Different opinions give rise to wisdom. Neither the protestors and nor the parties who are silencing them are wrong or right. They have to show concern and patience. The State must realize that people we disagree with can sometimes also be right. 4. Artistic freedom should be supported through legislation, policies and other means necessary. Policies do not only need to be articulated but also duly followed. 5. Policies and measures which promote social and economic rights of artists should be put in place. Artists and their work should be protected by the State. They should be provided with economic and social freedom and only then will there be positive development in the performing arts, music, dance, theatre, painting and digital arts.

6. State narratives need to be changed so they understand academic freedom and its importance. 7. Recently, Pakistani artists donated their work for an auction in Milan, Italy. Sixty Pakistani artists’ work was auctioned and this collected hundred thousand Euros for investment in schools. This has been made possible as their work is recognized on international standards. There needs to be similar recognition on the national level. 8. Pakistani students are attending the finest educational institutions in the world on full scholarships which shows the existence of intellectual diversity among students. Thus, wherever education is being imparted in the correct way, there is a need to replicate those methods where this is not the case. There is a need to teach skills of critical thinking to the present generation. Thinking out of the box does not require any money or language. If any institution wants to work, they can do it for a very small cost. 9. There is a lack of awareness on part of students that the system is forcing them to engage in vigorous competition amongst themselves. Resultantly, there is strong call for this realisation and awareness among students complemented with subsequent efforts by them to work together to challenge discriminatory educational systems. 10. There is a need to organize the unbanning of Student Unions: it is a legal, human, political and social issue. The Pakistan People’s Party had earlier attempted to revive these Unions but failed. However, today the call for unbanning is weightier because of the existence of stronger student movements as compared to the past. 11. Renowned academics need the freedom and opportunity to explore ideas. Professors and educational experts should be offered protected tenure and the state should have absolutely no interference in academics.

5.6. Freedom of Expression and Shrinking Spaces for Dissent

L to R: Mr. Hamid Mir, Hon. Justice Jawad Hassan, Mr. Steven Butler, HE Jean-François Cautain, Ms. Dilrukshi Handunnetti, Ms. Farzana Ali, Mr. Kanak Mani Dixit, Mr. Siddharth Vardarajan

Moderator: Mr. Hamid Mir (Senior Print and Broadcast Journalist, Pakistan) Speakers: 1. Mr. Steven Butler (Asia Coordinator, Committee to Protect Journalists) 2. Ms. Dilrukshi Handunnetti (Senior Associate Editor at Associated Newspapers of Ceylon Ltd and Lawyer) 3. Mr. Siddharth Vardarajan (Indian-American Journalist, Editor, and Academic; Former Editor of the Hindu) 4. Ms. Farzana Ali (Journalist, Pakistan) 5. HE Jean-François Cautain (Ambassador of the European Union to Pakistan) 6. Hon. Justice Jawad Hassan (Judge High Court Lahore) 7. Mr. Kanak Mani Dixit (Nepali Publisher, Editor and Writer; the Founder of the magazine “Himal South-Asian” and Co-Founder of “Himal media”) The debate in this session was put into the context of freedom of expression and the problems faced by the media. Mr. Hamid Mir shared that the 2018 report of the “Reporters without Borders (RSF) World Press Index” shows that the situation in Pakistan is improving; in 2015, Pakistan was at 159 and in 2018, there had been an improvement of 20 numbers. Mr. Mir, however, opined that the situation was in fact deteriorating and questioned why there was such a discrepancy in the numbers and the actual situation.

On the issue of this alleged discrepancy, Mr. Steven Butler stated that while he was not involved in the compilation of the RSF Index, he was sure that today, fewer journalists were being killed in Pakistan than a few years ago. Mr. Butler acknowledged the difficulty of the topic under discussion; he believed that press freedom was essential for democracy and democracy was not possible without free press. Free press was defined as the essential transmission belt for information to and from citizens, and Mr. Butler recognised that the press at the same time forms an important watchdog function by shedding light on the problems of democracy. He believed that the liberal world order (which emerged after the World War II and after the collapse of the Soviet Union) is now under assault almost everywhere. According to Mr. Butler, the Committee to Protect Journalists is now under threat, the original message and mission has not changed: to defend the rights, and advocate and assist journalists around the world. He stated how his organization does not get involved in politics; he claimed that they had criticized Trump and Obama both. He observed that the killing of journalists mostly took place outside of Asia when the organization was formed, but now the centre of violence has shifted to Central Asia. He opined that today, the world was becoming a dangerous place for journalists; with the number of journalists in prison being at a record high and almost double to what it was a decade ago. Mr. Butler commented that Turkey is now the biggest jailer, despite hardly making it to the list in 2007. He further commented on China being the biggest jailer as well, that too on various pretexts- from sharing state secrets (which can mean anything), to picking quarrels in a public place. The journalists then have to live in deplorable conditions in jail (with inadequate medical care being provided). He expressed worry at the fact that China has turned the internet into an instrument of mass control and surveillance, employing millions of censors to monitor the content and ferret out the offenders (while simultaneously expanding what the Red Party considers offensive) – a new social credit system keeps track of all this and can potentially impact every aspect of an individual’s life, from employment prospects to the ability to borrow money. His concern was that the technology that China has developed to control the internet can spread beyond the borders, and he thought that was happening in certain instances. Mr. Butler informed the audience that after Turkey and China, Egypt is the third biggest jailer of journalists (with 20 behind bars at the end of last year). According to him, these three countries account for 50% of the jailed journalists. It was discussed how the number of journalists killed (in connection to their work) has halved last year from 74. Mr. Butler opined that the decline reflects the lack of new conflicts around the world. Although Iraq and Syria remain the deadliest countries for journalists, this year it is Afghanistan that is the deadliest place. In analysing these statistics, Mr. Butler observed that there is an alarming trend underlying them; this year, 27 journalists have been murdered (that is, directly targeted because of their work). Mr. Butler expressed concern about the press freedom in the United States, and especially the global impact of the Trump presidency on press freedom. He believed that for generations, the USA has been a leader of articulating and promoting freedom of expression around the world led by the belief that a world populated by independent, educated and informed nations would be friendlier to the US interests. Mr. Butler believed that that voice of leadership has now disappeared, and it has given license to autocratic and populist governments around the world to limit press freedom. He commented that while human rights action by the US has been inconsistent over the years (sometimes hypocritical and not

always effective), US presidential reaction to the jailing or suppression of journalists was at least something that repressive governments had to take into account, and that is clearly no longer the case. The discussion delved into an analysis of the events of the past week in the USA where the Trump administration gave a very tepid response to the disappearance and murder of Jamal Khashoggi in Turkey. Mr. Butler observed how leaders and state media in 15 countries have used the words ‘fake news’ to denounce the press, and of those journalists, 21 face charges of publishing false news (twice the number of 2016). Mr. Butler believed that a US President who repeatedly disparages the press only encourages this. It was further highlighted that the Philippine’s is just one country in Asia where press freedom is under extreme assault. The latest effort by the Philippine Security and Exchange Commission was to take legal action against the prominent news site “Rappler” against its ownership structure. On this issue, Mr. Butler opined that this site was run by an experienced journalist, Maria Ressa, who engaged in high quality and responsible, but critical journalism. He believed that the decision against “Rappler” was politically motivated. The theme of the session was discussed in light of the situation prevailing in Myanmar. Mr. Butler pointed out that the government in Myanmar has barred journalists from reporting on the tragedy taking place among the Rohingya people that has killed thousands and forced millions across the border into Bangladesh. Mr. Butler stated that the hope that an elected government under Nobel Laureate Aung San Suu Kyi would lead to more freedom has certainly not come about. He believed that while Myanmar has a terrible record of jailing journalists under criminal defamation laws and colonial era antiques (such as the Unlawful Associations Act), the recent jailing of two Reuters journalists on obviously trumped up charges under the Officials Secrets Act is especially outrageous because he believed it was so brazen. Mr. Butler observed how it had drawn strong international condemnation with a notable exception of one voice- the President of the United States. Discussing the issues of freedom of the press in the context of Cambodia, Mr. Butler drew attention to Cambodia forcing the closure of the once outspoken Cambodia daily newspaper and “Radio Free Asia” in the country (after which it jailed two journalists from the station). It was observed that Vietnam continues to deliver long prison sentences for citizen journalists who have reported extensively on non-political topics such as industrial pollution and is introducing strict regulation of social media, based very much on the Chinese model. About Bangladesh, Mr. Butler shared his experience of visiting the country last year. He observed that he found journalists and editors frightened into a high degree of self- censorship by a long list of threats. According to him, these included disappearances presumed to be by military intelligence units, arrest under easily deployed criminal defamation laws, attacks by militant groups, repeated threatening phone calls by military or government officials in a highly polarized political scene. Mr. Butler opined that the voice of journalists had been weakened by a spilt in the union between pro and anti-government factions. The arrest of a prominent photo journalist Shahid Ul Alam under section 66 of the Information and Technologies Act sent a clear message to journalists that criticizing the government could land them in jail. Mr. Butler commented that among other provisions of a recently enacted Digital Security Act is one that allows to pre-emptively jail journalists, without a warrant, who they suspect may be about to commit an offense. This kind of

59 provision has put many journalists behind bars. The net result, according to him, is that the people of Bangladesh are not getting a full or honest reporting on issues. About Nepal, it was highlighted that there had been a forceful closure of the independent magazine “Himal South Asia”, which has now relocated to Colombo. The latest concern was in Kathmandu, with the passing of a Criminal Code which essentially criminalizes many ordinary acts of journalists, such as the Personal Privacy Act. Mr. Butler believed that this reinforced and put journalists in tremendous jeopardy. In the context of India and freedom of the press, Mr. Butler observed how the free press was under attack from serious defamation suits, and courts’ ordering inquires on publications that have included the very high profile killing of Gauri Lankesh. He commented that so far this year there have been 3 killings including that of Shujaat Bukhari. He estimated that this brought the total to 34. Connecting these examples and the session’s theme to Pakistan, Mr. Butler assessed that media groups in both India and Pakistan tend to be affiliated with other non-media business interests that have greater or lesser dependence on the government contracts and licenses and also depend on government advertising that makes them exceptionally susceptible to pressure. He observed how this could be seen in the sacking of journalists who provided critical coverage of the ruling party. Talking about a recent report issued by the CPJ outlining the range of pressures faced by the journalists in Pakistan, Mr. Butler shared that the report showed that 33 journalists had been murdered since 1992 and many others had died in dangerous assignments. During that period there had been only 3 journalists who had received complete or partial justice and that, according to Mr. Butler, was a poor record. The report documented the pressures (direct and indirect on owners and editors) that shape or limit news coverage. Mr. Butler felt it was disconcerting to see news channels arbitrarily blocked but the recent demonstrations by journalists heartening. Analysing the discussion of multiple countries in light of freedom of the press, Mr. Butler acknowledged that while each country has a different story to tell, there is an underlying trend-the relative political, economic, and military values that the US and its allies and the liberal values they promoted are in retreat as China becomes more powerful and influential. The fact that the US President no longer articulates the universal values outlined in the US constitution and has pulled back from regional initiatives such as the transpacific partnership has in effect left an empty seat that China is only too happy to fill, according to Mr. Butler. He thought that it made it incumbent upon all those who believed in the essential character of press freedom to work even harder towards its achievement. Discussing the issue of freedom of expression in relation to the recent killing of student Mashal Khan in Pakistan, Ms. Farzana Ali shared the experience she had while covering the issue in Mardan in Wali Khan University. Ms. Ali narrated that when she was visiting his room and reading the inscriptions on the wall, she found one which said “Belief in Allah and the Prophet.” She also found some verses and comments and pictures of, among others, Che Guevara. Ms. Ali narrated how a police official deputed for security told her that he thought Mashal deserved what happened and that Ms. Ali should not try to prove him innocent. Ms. Ali termed this as a “bitter experience” and observed that pressure groups and religious leaders continuously say courageously that they will not leave any Mashal

Khan in the country. This showed, according to her, that no area of freedom of expression is left, and this creates a feeling of suffocation. She shared an incident regarding the government’s decision to withdraw the nomination of Mian Atif from the Economic Advisory Council. She recalled a colleague saying to her that she should be careful because favouring a Qadiani is a sin and will never be tolerated by any Muslim. Ms. Ali commented that such incidents reflected the spaces of dissent in our surroundings. As a journalist, she felt insecure at multiple times, not only because of intolerance in the society but also the rigid religious thoughts and ban on freedom of expression – especially when one is bound to speak the truth. Ms. Ali shared that she made a documentary titled “Ghungro to Gunshot“, which depicted the miseries in the life of a dancing girl, Shabana, killed by the Taliban in Swat in 2009. During the making of the documentary, Ms. Ali recalled that she was often asked why she was justifying a sin. During the making of another documentary titled “A Product of Extremism”, showing how our youth was becoming a product of extremism, Ms. Ali shared that no one was willing to say anything on camera, especially the mothers. She stated that she also interviewed a young terrorist who was exploited in the name of religion and admitted this in his interview. During the making of this documentary as well, Ms. Ali claimed she was told it was dangerous for her because she was trying to criticize Pakistan’s national narrative. This, according to her, showed that what we put in the minds of generations through textbooks, media, education, religious groups/ pressure groups now forms part of our national narrative, which people blindly follow despite the fact that it divides the society into many pieces. Ms. Ali stated that the basic reason for the lower number of journalists being killed is that journalists have stopped talking and have moved towards self-censorship. She claimed that there is a lot of truth worth talking about from the mountains of Swat and Waziristan but it is not ready to be showed on the media or talked about due to fear of channel closure. On that note, Ms. Ali opined that the biggest problem in Pakistani media is self-censorship, as that is akin to journalistic killing. Remembering words spoken by Ms. Asma Jahangir on the theme of the discussion, Ms. Dilrukshi Handunnetti recalled Ms. Asma as saying that “dissent will someday be considered treason” and that “patriotism will one day also have a new definition.” According to Ms. Handunnetti, the idea of shrinking spaces is visible in our countries and many other places, like the news site which had to move to Colombo. She believed that in South Asia, the system does not go after criminals but instead goes after rights advocates and those that defend freedom of expression like scholars, artists, and journalists. Comparing press freedom in Pakistan and Sri Lanka, Ms. Handunnetti opined that after 30 years of war, Sri Lanka does enjoy some media freedom and there is some space. After 30 years of war and seeking justice for the people who have been abducted or murdered, there are still no results according to her. She observed that Sri Lanka is often shown as a great example of thriving media freedom and while there is relative media freedom, there is also a need to bring closure to these cases because there is impunity as long as there is no justice. Ms. Handunnetti believed that there was no need to practice self-censorship in Sri Lanka because it was a country with relative media freedom. She acknowledged that Sri Lankan journalists have fought for their freedom and paid a huge price, people have been abducted

61 and murdered. She observed that there was very little dissent or constructive criticism for the fear of the return of the previous regime; this acted as an impediment for journalists to engage in constructive criticism. According to her, the greatest disappointment for the Sri Lanka journalistic community is that there was really no delivery of justice. In the three years of the new government who came on the premise that the cases would be investigated and that there would be justice, and safety for journalists, there has not been much happening on that front. She opined that many of these cases show that the state is reluctant to actually deal with the perpetrators because if they are dealt with, the fear of upsetting the war heroes would be an issue. Ms. Handunnetti clarified that by “war heroes”, she meant the military who happen to be the reference point in many of these cases. She observed how there have been cases of murder or very well-known abductions and the people who have been arrested or considered complicit do have great contacts in the government. According to her, the models of ownership are a comparison point in South Asia. She believed that the owners in Sri Lanka are becoming politically aligned or they were becoming fronts for political groups. In such a situation, defending media freedom is difficult. Ms. Handunnetti, on that note, recalled Ms. Asma Jahangir as saying that we have to fight a good fight, occupy the square and work hard for it. On a possible similarity between India and Pakistan as far as the shrinking spaces for dissent is concerned, Mr. Siddharth Vardarajan opined that the trends were the same in both countries even if the details or circumstances were different. According to him, the atmosphere for dissent, debate, deliberation, expression difference of opinion was shrinking in large parts of the world. He believed it was shrinking in the media, academia and the political sphere. Discussing the session’s theme in light of the Indian media, Mr. Vardarajan opined that in India, the scale of violence is not the same as that which journalists in Pakistan face but he mentioned how there have been two high-profile assassinations of journalists in the last year and a half. One was his friend, Gauri, from Bangalore who he believed was killed by a shadowy network of Hinduthwa extremists who have assassinated other critics as well. The other was that of Shujaat Bukhari, an editor in Kashmir, and one of the most respected and articulate voices of common sense in the valley. Mr. Vardarajan opined that in the very polarized situation, there were very few people who had the ability to command respect regardless of the audience they were impressing, and the popular view and Mr. Bukhari was one of those. He was assassinated, and it was a huge blow to the freedom of media and sense of security that journalists in Kashmir and the rest of the country face. Mr. Vardarajan discussed the problem of self-censorship in India; he believed that the media across the board would rather keep away from certain kinds of stories that are politically sensitive. He thought it was interesting that even though there were very few examples that would come to light involving direct and overt pressure, but there is a sense in which media proprietors have become highly risk averse so they prefer not to cover stories that would be embarrassing to the central government, Prime Minister or President of the ruling party. Mr. Vardarajan opined that there had always have been an element of this in the last seventy years but he believed that this was now a pronounced feature of the Indian landscape. Mr. Vardarajan opined that there is a sense in which the kind of tough journalism which ought to be done is not being done and the major cause of this was not so much direct 62

official pressure but media persons themselves taking prudent decisions that they did not want to do it this way. He believed this was exemplified in the topics for discussion on evening prime time television. Certain obvious kind of topics which should be debated were avoided because they may show the government in bad light or the media owner was not cognizant of what the consequences of that would be. He quoted the example of the resignation of one of the top Indian anchors, Bajpae, who told his story of how in his case there was in fact overt pressure on him to not cover certain kinds of stories. On the note of misuse of defamation, Mr. Vardarajan believed this was another form of pressure which was becoming increasingly pervasive, particularly by business outlets and powerful individuals. He assessed the most important example from the last month to be that of the controversy in India related to the government’s decision to buy a fighter aircraft from a French company. There had been allegations on the government favouring a private company reliance defense owned by Mr. Anil Ambani. The government has been giving its defense but Mr. Ambani’s response to any and every media criticism has been to unleash the threat of multimillion dollar defamation cases. Mr. Vardarajan stated that he knew many examples of media houses that have backed out because they do not want to go through years of legal processes even though they know that eventually they will win their cases. Many small media houses cannot even afford it and this is becoming a new way of chilling media coverage and cutting up dissent. Talking about social media as an emerging form of pressure, Mr. Vardarajan believed that it had enabled them to use their freedom of speech and has its positive side. It actually makes it harder for any government or any leader to put a barrier to the dissent that someone wants to show. The flipside of social media, according to him, is that those who are powerful also know how to misuse it. He cited the example of the industrial scale use of trolling to go after particular media institutions and journalists. He stated that women who are critical of government, its policies or the establishment and are articulate tend to be viciously targeted and trolled with intimidations and threats of rape, physical assault which also cause many women to immediately back off. Some people go off from Twitter for some time so he believed this to be a major problem. Relating the curbing of dissent to existence of a democracy in India, Mr. Vardarajan opined that the media in India or a section of it was becoming an instrument for the curbing of dissent and was turning against the idea of freedom of expression. Connecting this to the Kashmir issue, he stated that it is even impossible in two or three channels in India, Hindi and English, for anyone to speak against the violence that Kashmiris are facing. Even if the representatives of some political parties who have been in power in Kashmir and have taken part in central government, and who considers Kashmir an integral part of India, while discussing the Kashmir issue on any one of these channels, speak critically of human rights violation or articulate the feelings of people in the valley. It is not uncommon for anchors to go upto them and attack them by saying that they are agents, enemies, anti-nationalists, terrorists, etc. Exemplifying his point further, Mr. Vardarajan gave the example of student leaders who have been viciously attacked by these channels simply because they were articulating a different point of view. He believed that even somebody like Shujaat Bukhari who was a reasonable, responsible, balanced and sober journalist was also labeled when he appeared on these TV channels as “pro-azadi”, “pro-terrorist”, etc. Mr. Vardarajan discussed the

Indian student leader, Umar Khalil, who was regularly labeled by these channels and one consequence of this was that someone made an attempt on his life. Mr. Vardarajan was of the opinion that the only way to defend freedom of expression and ensure that the right of dissent stays alive in media, is through the support of courts. In India, the higher judiciary comes up in favour of expression but the problem is that it takes time to reach to the higher judiciary. According to him, when one is tried by the lower courts, often times, the consequences are not positive when it comes to freedom of expression and readers and viewers have to come forward to support independent media. He stated the example of a website that essentially depends on readers’ contributions; it has been shown in a limited way that this was a viable model. He opined that if one wants to be free of government, corporate and other kinds of pressures, the best thing to do is to try to be as dependent on the goodwill and financing of readers as possible because at the end of the day, it was the readers in any democracy who will have a vested interest in sustaining the right to dissent and freedom of expression. Sharing an experience he had in Bangladesh recently, Mr. Kanak Mani Dixit narrated to the audience how he went there two weeks agoinan attempt to meet Shahid-ul-Alam in jail. He said was not allowed because he has been in jail specifically to intimidate civil society in Bangladesh by the state during Haseena’s regime. Mr. Dixit shared that he had little hope to meet him so he went to the outside of the Dhaka jail which is now a resort-like compound. Mr. Dixit believed that Shahid-ul-Alam represented the fact that it was not enough to be well known, one can still be persecuted without the world knowing about it. He believed that South Asia was increasingly becoming a region of elected autocracies, not yet dictatorships, but autocracies certainly. As a result, right down the line and the spectrum, from the top national government to the local governments, there was intolerance. Mr. Dixit believed that it was not only the government but also the non-state actors, and it was also the populist opinion that trended to troll the journalists. Mr. Dixit opined that they use ultra-nationalism, fundamentalism, anti-environmentalism, anti-nationalism or anti-development to troll journalists. Government themselves have found many different ways to attack free media by weakening the publishers because publishers tend to have investments elsewhere beyond media. Mr. Dixit also discussed how cases of defamation were used as tools in many ways to intimidate publishers or the journalists. Mr. Dixit said that the topic under discussion was thus of extreme importance in context of the entire world. Talking about the dangers of doing vernacular journalism, Mr. Dixit stated that the term vernacular was found up in large parts of south Asia which have been colonized. He stated that vernacular Journalists, almost by definition, mean that they are working more at the local level, more engaged or more inclusive with the local level politics. Thus, their production suffers and neither do they get the protection of international coverage. For this reason, they are less protected and the reason why journalism will never come to life. When speaking about shrinking spaces for dissent, those journalists should be thought who write in Hindi, Urdu, Tamil, Sindhi or Nepali, should not be forgotten. Mr. Dixit discussed the killing of Uma Singh from the Sarai place of the Gal.Uma Singh was a journalist born in 1983 and murdered in 2009 by 15 men who came with swords and killed her in a room in Jankpur in Southern Nepal. She was a fire band journalist and only 26 when she was killed. Her journalistic work was in the Nepali and Marathi languages, and she was

only known within Kathmandu, and not much beyond. She was killed as a result of political vendetta but her death was projected due to a land dispute. For Mr. Dixit, Uma Singh remains a symbol for those journalists who work in precarious environments at the local level, whose challenges and risks need to be recognised at the international level. On that note, Mr. Mir mentioned the names of three Pakistani journalists who lost their lives in 2018; Mr. Anjum Munir Raja who lost his life In Rawalpindi on 1st March, Mr. Zeeshan Ashraf Butt who was killed on 27th March in Sialkot and Abid Hussain who was killed in Multan on 22nd August. HE Jean-François Cautain opined that there was a need for free ﬂow of information and believed that there were issues related to shrinking spaces for dissent in European Union too. Everyone has to comply with a set of rules in the EU but still there were some problems according to him. These included right-wing movements. On the issue of whether there were any restrictions on Article 19 of the Pakistani Constitution on freedom of media; Honourable Justice Jawad Hassan shared a story which showed the glass as half full rather than half empty. He believed that all of the courts in Pakistan have actually expanded the space for freedom of expression rather than shrinking it. Justice Jawad explained how Article 19 states that every citizen of Pakistan has a fundamental right to speech, expression and free press with subject to the glory of Islam, decency, morality, etc. Here, Justice Jawad referred to the case of Leo communications v Federation of Pakistan where Ms. Asma Jahangir stood alone and argued for hours; what she argued for was expression under Article 19 means conveyance of your own thoughts and feelings through a work of art or performance of piece of music, writing, speech, or action that shows a person’s idea or thought or opinion, etc. Justice Jawad shared how she won that case. He recalled how she was again a lead counsel in another case which led to expansion of this right. Recently, there was a judgment by Supreme Court by Justice Saqib Nisar which expanded the word expression in Article 19. Justice Jawad believed that the independent judiciary in Pakistani courts worked for the expansion of the right enshrined in Article 19. He assessed how there were many positive laws and judgments since 2002. One of these was the Matiullah Case, a High Court case in Islamabad, where the judgment said that government should strike a balance between freedom of expression and social control of publication. Justice Jawad also quoted Lord Slyne as saying that: “I disapprove of what you say but I will defend your right to say.” According to Mr. IA Rehman, the space for dissent was shrinking for the right people because for the wrong people there was no problem. Space was shrinking if one wanted to stand for the rights of people and not if one wanted to praise the government for doing wrong things. He believed that everybody should get together and collect all those who are not controlled by the government. We should return to our original power. As a state, we have no soul if we cannot stand for the rights of people and we cannot defend the defenseless.

5.7. Cyber Laws and Protection of Human Rights Moderator: Ms. Nighat Dad (Lawyer and Digital Rights Activist) Speakers:

1. Mr. Asif Nazrul (Professor of Law, University of Dhaka) 2. Ms. Farieha Aziz (Journalist, Pakistan) 3. Mr. Badar Khushnood (Co-Founder Bramerz Digital Agency) 4. Ms Angbeen Atif Mirza (Lawyer and Academic) The objective of this session was twofold; one, to discuss cyber laws and their implementation in Pakistan and two, to examine how such laws prevent human rights violations and what global practices and trends exist regarding the issue. Ms. Farieha Aziz commenced the session with a discussion on the Electronic Crimes Act and its role in cyber- crime. A brief background of the politico-legal history behind the Act was provided to the audience. Initially, there existed the Electronic Transaction Ordinance 2002, sections 36 and 37 of which were mainly for violations of privacy. However, the Ordinance lapsed during Pervez Musharraf’s era. Eventually, the Pakistan People’s Party made the decision to convert the Ordinance into an Act of Parliament. Ms. Aziz pointed out how this met with protests from the civil society and various reported incidents of innocent people being arrested while the actual offenders roamed scot-free. In order to stop this, there was a need to have a proper rights framework which was later approved by the Cabinet in 2014. She also mentioned how things picked up pace after the Peshawar APS attack as the authorities wanted to curb hate speech and terrorism. She highlighted the necessity of the understanding that the existence of a law does not stop the relevant crime, but only acts to prevent it. The law in place was of no help as the cases were pending for extended time periods, with state prosecutors often being absent and cases being struck out because of interim inquiry reports. The discussion then progressed to the Prevention against Electronic Crimes Act 2010 and its salient features were highlighted. Ms. Aziz talked about the imprisonment term of three years under the said Act. She also brought to light the vagueness inherent in section 20 of the Act, which deals with defamation and defines it as a non-cognizable offence in which the offender cannot be arrested. During this discussion, a participant from the audience raised the issue of how in Pakistan, specifically in criminal law matters, procedures are extremely lengthy. The participant also questioned the utility of these cyber laws if they did not provide immediate justice to the victims. To this, Ms. Aziz responded back by opining that the cyber-crime legislation is a bad law. According to her, if a cybercrime is reported, the authorities should take an immediate step and should not delay. The existing law harasses the victims on another level by forcing them to remain stuck in the rigours and delays of the criminal justice system. She also highlighted a recent case in October 2018 where the offender got arrested but did not undergo a trial, and the evidence also got lost due to flaws in the system. Ms. Aziz highlighted how this one instance alone shows a lack of accountability of the authorities.

Ms. Aziz suggested reform of the criminal law procedures if people were to get relief under cyber-crime legislation. The session debate delved into a discussion by Ms. Angbeen Mirza where she observed that law enforcement agencies only do what they think is right. In her view, there had been many offences, which were not part of the criminal law. She stated that Pakistan is a so- called “democratic” country but its laws are made undemocratically. Ms. Nighat Dad drew attention towards the Federal Intelligence Agency (FIA), which is the only authorized agency and it tried making a parallel system. She also emphasized on how their cyber courts are dealing with cyber-crime in order to prevent harassment against women. Stress was laid on the need to make online spaces safe. Ms. Dad also raised the issue of how agencies and institutions invested with powers to retain data but do not have awareness on how to protect it. Rights of users are thus overlooked in this manner. A pertinent issue which came to light during this session stemmed from a question from the audience regarding a report filed about online harassment in 2014 (when there was no legal mechanism in place) and continued inaction on part of the authorities in dealing with that report, now that the requisite law exists. The same member from the audience also questioned about forums other than the FIA which could be approached with regards of occurrences of cyber-crimes. Ms. Aziz responded to the participant’s concerns by observing that the authorities operate in the false belief that laws are effective, without looking at the capacity of others. Ms. Aziz clarified that the FIA is a designated agency and it has regional departments all over the country which are trying to implement the law. She also informed the audience that Sindh is the only province designated with several courts in some of the cities. Mr. Badar Khushnood transitioned the discussion into the complications involved in issues of cyber-crimes. It was his observation that actual users do not know much as their aim is to gain profits from the business. Mr. Badar shared that out of the 53 million internet users, 35 million used Facebook and that this number was phenomenal. According to him, it should be the duty of educational institutions to impart awareness which should be made part of the curriculum. It was also observed how in our daily lives, we ignore terms and conditions on products and services we purchase and eventually suffer because of this ignorance. Mr. Badar shared examples from the services of “Careem” and “Uber” and how people comply with all rules ignorantly in the eagerness of earning from it. He said there is no local authority which can protect the data of the users. In fact, companies are now increasingly selling their data which makes data protection harder. Attention was drawn to usage of the Microsoft Word software in Pakistan which is unlicensed and that whenever the association reports about it, the trade union starts protesting and therefore, the government takes quick action to stop such protests. He urged the audience to realise their duty to only use licensed software. The discussion then moved on specifically to issues surrounding the use of Facebook. On this note, Ms. Mirza stated that people usually know that if one is a Facebook user, one is susceptible to exposure at any time because one’s own friends may use one’s data against oneself. For women, she pointed out, there is an additional stigma attached when online harassment occurs. Ms. Mirza duly drew attention to how juveniles become preys of malicious cyber bullying. She also stated that PECA (Prevention of Electronic Crimes Act) tackles issues like hate speech, pornography and photo-shopping of images. She said that

67 there is criminal liability internationally as well, however, it doesn’t make sense to imprison a person who is a juvenile and impose heavy fines on him/her. As far as juveniles are concerned, Ms. Mirza believed that there are better ways to tackle the issue with focus on rehabilitation of children by providing therapy, or putting a child on probation or engaging him/her in mandatory community service. She staunchly believed that jails and prisons destroy personalities of juveniles. Ms. Mirza gave the discussion a distinct angle by shedding light on bullying and cyber harassment in schools. She stressed on the necessity of imparting awareness to children. It was mentioned how a group titled “Bully Proof” exists in Pakistan whose mandate is to raise awareness regarding bullying in schools – this team visits schools and spoke to young children. Ms. Mirza expressed hope that this will definitely impact people and institutions. Ms. Dad addressed the eminent issue of online blackmailing during this session. She stated that due to lack of regulatory mechanisms, there is a non-consensual use of intimate images in Pakistan as well as internationally. According to her, the first thing people do in the face of such blackmailing is to stop using the relevant technology altogether. She believed this only happens when there is no support mechanism available and such situations have escalated suicide rates in the country. On this issue, the audience was informed of the existence of the cyber harassment help line (0800-039393) where 2000 complaints have been reported so far with 600 cases referred to the FIA. The session moved to a discussion on the connection of cyber-crime laws with freedom of expression. Ms. Aziz pointed out that out of all forms of media; social media is the most troublesome in this regard because it is difficult to pinpoint identities. However, it was acknowledged that at the same time, social media is the sole platform where citizens truly express themselves. It was stressed that filing FIRs and arresting were not solutions; it was necessary to deal with cases separately rather than mixing up criminal and civil jurisdictions. She said there is no rule of law in our country, because the innocent party is given no protection and we further victimize the person when they go to the judiciary and therefore, we over-criminalize things even when there is no need. During the interactive session between panellists and the audience, a number of pertinent concerns were raised and addressed. There was a question regarding why the government does not issue notifications before shutting networks down and what the situation regarding GDPR compliance is. Mr. Badar addressed these questions by stating that our government shuts down all social media sites whenever issues of harassment arise. This is what happened when Pakistan banned YouTube due to the issue of blasphemy. According to Mr. Badar, our state was characterised by the wrong people doing the wrong job. On the issue of GDPR, Mr. Badar observed that compliance was necessary but there was a huge price to pay for it and it needs to be seen how it benefits consumers and how it can be applied to Pakistan. Mr. Badar gave examples from countries like Singapore where before buying cars, one has to get a permit worth $90,000. Accompanying this is an implementation process wherein the buyer can lease it, hence providing simultaneous facilitation as well. Ms. Dad added to this discussion by highlighting how there exist 4 cyber-crime centres in Pakistan and that is an issue for people because of arduous travelling and procedural requirements. Hence, she said it is important that when we make a law or policy, we need to implement it and also give facilitation to the public.

In response to the same question Ms. Aziz said that Section 137 of the PTA needs to be struck down. She also emphasized that blocking YouTube was not a solution; this was rather an extra-legal act. PTA (Pakistan Telecommunications Authority) is considered to be an autonomous statutory body but it has to take all the guidelines from the relevant ministries. Mr. Badar added to this by pointing out that the judges need to understand that the new media is democratized, and taking an action against one person or shutting down one thing won’t make any difference. It is for the judges to understand because in the end they are the ones giving their judgments. He said lawyers and judges should be given basic knowledge of technology. Ms. Mirza added that shutting down or banning something is reflective of our culture and therefore, training is necessary for the lawyers and judges. Ms. Aziz opined that when accounts are hacked or persons harassed, the offenders’ IP address is tracked and FIA commences investigation and prosecution. However, in all of this, there is no way for a judge to know where all of the information originates from and it is because of this problem that a separate institution needs to exist. With regards to this issue, Mr. Badar voiced the observation the FIA can only request the IP address from Facebook and it is totally at their discretion whether they want to give information, because Pakistan has signed no requisite bilateral treaties. He also highlighted that inter-ministerial issues exist and to solve that all of them should sit together and institutionally restructure it. Ms. Dad added to the point and said there is no multistate holder concept in Pakistan and one of the drawbacks is that stakeholders are not included while making laws. Mr. Badar also added that when issues arise internationally, debate occurs instead of absolute bans; we need to do the same for such issues to not detrimentally affect our businesses and economy. The next theme of the interactive session was premised on the intermingling of civil and criminal jurisdictions; which jurisdiction is followed when a person was harassed and committed suicide because of it and what were the rights of the accused? According to Ms. Aziz, all electronic communication is mentioned in the FIA jurisdiction, and that even blackmail is included in it as well. She said as far as suicide and murder is concerned, the criminal jurisdiction is used. PECA and PPC (Pakistan Penal Code) are used side by side and this creates confusion for the people as to whether they should go to the magistrate court or session court. The relevant legal provisions are mixed up; one has a higher degree of punishment while the other has a lower degree of punishment. She believed the need to bring clarity to the law and that law should then be followed. Moreover, she mentioned that as far as the rights of the accused are concerned, warrants should be there. Ms. Mirza added that the law does not recognize rights and rights are not to be identified until the person is proven guilty. Instead, the state will apply provisions they think are right and will arrest them under the criminal jurisdiction. Ms. Dad added the element of character assassination on social media to this discussion; her opinion was that it makes it difficult to take action against all people. She mentioned, that in Geneva, the United Nations said that the online rights should be equal to offline rights. The next theme of the interactive discussion revolved around cyber-crime legislation, its impact on freedom of expression and other factors which come into play. Ms. Aziz stated that blocking networks like YouTube have no effect because the content still exists. She believed there was no space for debate and in Pakistan, everything is wrapped around in religion and lives are put at stake if voices are raised. Ms. Mirza added that in 2016 when 69 the law came, it was very difficult to influence people. She also gave an example of how PTCL can save data for up to a hundred days but they do not know how to protect the data. It was brought to light by Ms. Dad that the data protection draft has been formulated in Pakistan, but it is still under consideration of the new government and how they implement it. Mr. Badar added that no one forces an individual to download apps and that it is common practice to accept terms and conditions without actually reading them. He pointed out the business implications of this and suggested that policymakers and law makers should sit together to make laws and ensure educational institutions spread awareness regarding it. On this note, Ms. Mirza was of the view that for lobbying, parliamentarians should be approached. She stated that being lawyers, it is necessary to interpret the law in such a way so as to facilitate implementation. She highlighted that amendment of law is important and that judicial capacity should be given to administrative bodies. Freedom of expression and everything else is decided by PTA and hence the legal provisions relevant to it should be struck down. The final theme of the interactive session concerned the National Security Agency (NSA) and the question was raised as to why the NSA spies on us despite us not having agreed to their terms and conditions. Ms. Dad responded by stating that when NSA (National Security Agency) was revealed, it was said that it would spy and since then, many surveillance technologies have been brought to Pakistan. However, there is a massive breach, even if the biometric databases are assessed; there is no protection. She concluded by saying that the government does not know that cybercrime and cyber security are two different things.

Resolutions: 1. There should be capacity building of relevant stakeholders. 2. Lawyers and judges should be trained and sensitised regarding these matters. 3. Awareness should be imparted through technology and educational systems. 4. There should be strategic litigation on issues related to cyber-crime.

6. Sessions for Day 2 6.1. Adopting International Human Rights Norms in Domestic Law

Hon. Michael Kirby AC CMG

Ms. Kirsty Birmelow QC

Moderator: Ms. Sulema Jahangir (Advocate High Court) Keynotes by: 1. Hon. Michael Kirby AC CMG (Former Justice of the High Court of Australia and a renowned International Human Rights Expert) 2. Ms. Kirsty Brimelow QC (Chair of Human Rights Bar Committee, England & Wales) Hon. Michael Kirby from Australia put the discussion of this session in context of Australia which he believed was a peculiar country from the point of view of the law. Its peculiarity stemmed from the fact that it does not have human rights provisions in its constitution. Instead, the Australian Parliament deals with the problems, being the last forum which deals with human rights. In this context, an event from 1988 was narrated when in Bangalore (India), the then Chief Justice of the Supreme Court of India had organised a session on how to bridge the gap between universal and domestic law. Mr. Kirby explained how Justice Muhammad Hamid was present amongst many judges from commonwealth countries and unanimous agreement was reached on the “Bangalore Principles” – which have allowed judges to apply international human rights law where the domestic law is unclear and ambiguous. Mr. Kirby explained how there was a certain case related to compensation in Australia – the woman giving evidence was mute and had interpretation in deaf and dumb language. The Barrister objected to the interpreter and the judge stopped the interpreter from interpreting, but the interpreter kept going. The Judge reiterated the command to stop but the interpreter did not comply. On the ﬁnal order to stop, the interpreter informed the judge that as long as she was in court, it was her professional and ethical duty to interpret. The Judge refused to proceed until she stopped and then he left the courtroom. The issue remained unresolved as the use of an interpreter for evidence was in the discretion of the trial judge. Then, resolve was had to the Human Rights Commission Act and International Covenants which stipulate that if an interpreter is needed, one should be provided. In this manner, the case was resolved and the interpretation continued. By giving this example, Mr. Kirby illustrated how in the face of unclearness or gaps in the law, resort can be had to international law. Mr. Kirby highlighted another application of the “Bangalore Principles”. This occurred in 1992 and is considered to be one of the biggest cases before the High Court in Australia - Marble vs. Queensland. The case concerned entitlement of the aboriginal people to have recognition of their native title, which was not recognized in colonial times and the aboriginal people were thought to be nomadic. As a result, they were not recognised. In this case, the majority of the High Court said that there was a gap in the law so they resorted to international law, which stipulated that people cannot be denied their fundamental rights in reference to their race, colour, ethnicity, etc. According to Mr. Kirby, this was another illustration of international principles being used and this time, to give title to aboriginal people. However, it was pointed out that there exists a certain amount of controversy in Australia, as some judges do not like the “Bangalore Principles”. It is the case that sometimes, the law is clear and there is no gap and hence, no need to bring international law. He gave the example of refugee cases in which families and children had come into Australia without a visa, and they were subsequently put into detention under the Australian Law and Constitution. Therefore, the “Bangalore Principles” could not have been applicable.

Mr. Kirby turned the discussion of the session into addressing the question as to whether human rights are better protected in India or Pakistan. He gave the example of a decision made by the Malaysian government last week to abolish the death penalty- an example of application by Malaysia of international law and principles. He then gave the example of the previous month in which the Supreme Court of India in Joven vs. Union of India unanimously decided regarding Section 377 of Indian Penal Code. The Court held that the penalization of homosexuals is contrary to the Constitution of India. Similarly, the Supreme Court of Pakistan was, according to him, good regarding transgender persons but not gays and lesbians. He believed that all the human rights activists have to get together and out of their comfort zones. According to him, if Asma Jahangir was here today, in light of the decision in India, she would ask if we provided an opportunity to apply that in Pakistan. Mr. Kirby stressed that all persons are free in dignity and right. He told the audience that he identified himself as gay, stating that gay people are everywhere and entitled to equal rights under the law. He opined that the legacy of Ms. Asma Jahangir must not stand still; it must be there for everybody and that is what she would have said too. The perspective of the United Kingdom was added to the session’s discussion by Ms. Kirsty Brimelow QC. She stated that history owed an apology to the LGBT community who were denied the fundamental right to equality and resolved that there must be a time to end discrimination on the basis of sexual orientation. Ms. Brimelow delved into an examination of how Winston Churchill, in September 1946, had a vision of Europe: the building of a United States of Europe which should be a world organisation. However, Ms. Brimelow believed that with Brexit and the rise of far-right groupings throughout Europe, it is a different place to the lesson in 1948. She stressed on the need to examine the events following World War I, when treaties between states were totally inaccessible to common people. During this time, the Holocaust also led to the setting up of international tribunals which started trying the criminals for the crimes against humanity, and for the first time criminal responsibility was held to lie on those criminals. She believed that with the introduction of the Universal Declaration of Human Rights, the world was throwing up its hand against atrocities as states were getting away with crimes. According to her, it was unfortunate that Pakistan lacks regional instruments on the lines of the African and Arab Charters on Human Rights. In her opinion, the promotion of human rights has been the manifesto of the Conservative Party in the UK. Because the UK has a dualist system, the idea behind the Human Rights Act 1998 was to bring human rights home. She highlighted how Prime Minister Theresa May pledged that she was going to fight 2020 elections on the condition they would back off from the Human Rights Act. According to Ms. Brimelow, this was a backward step internationally. During the interactive session between the panellists and participants, a question was raised regarding what the United Nations should do regarding Palestine and Syria. It was addressed by stating that the International Criminal Court has stated that they cannot start an investigation on account of a lack of jurisdiction and that the domestic system needs to deal with these issues first. Another point of discussion during this session concerned how judges should approach issues related to the LGBT community in Pakistan. The panellists outlined the importance of having courage and integrity as a judge. As far as Pakistan was concerned, the panellists

73 opined that it was good to revive knowledge about the “Bangalore Principles” and that judges should not cherry-pick and should be neutral in issues of international acts. Resolutions: 1. Human rights should exist for everybody, regardless of their sexual orientations. Everybody is entitled to equality under the law. 2. Knowledge of the “Bangalore Principles” should be revived in Pakistan. 3. Judges in Pakistan should read up on decisions of other courts in the world (Palestine, Libya, Syria) and ask questions about North Korea as well.

6.2 Constitutionalism and challenges- the 18th Amendment and Implementation

L to R: Mr. Salman Akram Raja, Mr. Taj Haider, Mr. Afrasiab Khattak, Mr. Akhter Hussein, Mr. Hasil Bizenjo

Moderator: Salman Akram Raja(Advocate Supreme Court, Pakistan) Speakers: 1. Mr. Farhatullah Babar (Former Senator, Pakistan) 2. Mr. Akhter Hussein (Advocate Supreme Court and Member Pakistan Bar Council) 3. Mr. Afrasiab Khattak (Former Senator, Pakistan) 4. Mr. Hasil Bizenjo (Former Minister for Maritime Aﬀairs, Pakistan) 5. Malik Raﬁque Rajwana (Former Governor Punjab and Advocate Supreme Court) 6. Mr. Taj Haider (Former Senator, Pakistan)

This session was put into the context of the nature of the relationship between the provinces and the centre in a federation, and the moderator highlighted the 18th Amendment as the single most constitutionally important event in Pakistani history since 1973. He explained it as a tool to empower provinces by abolishing the concurrent list and restricting the power of the federation by giving authority to provinces on anything not on the federal legislative list. It also updated the judge’s appointment procedure through inquiry by judicial commission and parliamentary committee. However even after this amendment, Mr. Salman Akram Raja was of the opinion that there has been a major imbalance within the federation. He noted that recently some apprehensions had been expressed by the army chief over this amendment. Discussing the relevance of the 18th amendment, Mr. Farhatullah Babar stated that it showed what Ms. Asma Jahangir stood for- making sure the voices of those who are denied rights be heard throughout the country. However, he shared that the army chief in a statement showed disdain for the 18th Amendment and it has not yet been contracted. Mr. Babar discussed how after a discussion about the fiscal budget with the establishment, the Finance Minister required extraordinary fiscal space as required for security. When the International Monetary Fund (IMF) was asked to increase the budget deficit ceiling to 5.3%, they rejected it and so did others. In the 2016 budget, IMF was asked for Rs 100,000 billion as a one-time thing but it did not end up being a one-time thing. Mr. Babar assessed that in August 2017, the Army Chief talked about economic elements for the first time as he expressed that the state’s first responsibility is security and that does not come cheap. The Finance Minister continued to request a consideration for human development, according to Mr. Babar. Mr. Babar opined that the government still has to go to IMF to ask for an increase in the budget deficit and for poverty alleviation programmes to meet the extra fiscal requirement for security which still was not transparent. According to Mr. Akhter Hussain, basic challenges to constitutionalism are important, as there is no equality when the basis of the constitution only allows rights to people of one specific religion. Any law or a provision of it can be challenged in the Federal Shariat Court if it deems against Islamic principles. Mr. Hussain questioned whether that breached parliamentary sovereignty. According to him, the Shariat court is not even eligible to deal with these high class cases and that if it was unable to decide its view on interest, how is it expected to deal with land reforms? Mr. Hussain opined that there were feudal remnants in our land which can only be dealt with democratically. If left to the Shariat Court they will justify feudalism under the banner of land belonging to Allah. Mr. Hussain discussed that there were so many things in our constitution that Jinnah was against. For example, in his 11th August speech, Jinnah said religion and state should be separate. Moreover, the Muslim League rejected the 1935 Act as it was against provincial autonomy. In this context, Mr. Hussain questioned how the 18th amendment could be subverted. Jinnah was quoted as believing that the centre should only deal with three matters; foreign affairs defence and inter provincial communication. In this case, Mr. Hussain questioned how the federation could be given multiple subject matters, especially those dealing with economic provincial dealings. Mr. Hasil Bizenjo opined that people often forget about the 50 years of struggle behind the 18th amendment; it was not as easy as people think. Mr. Bizenjo was of the opinion that there was a great deal of support from Asif Ali Zardari and Raza Rabbani in passing this amendment. He believed that there needs to be more amendments but in hoping so, he 75 also believed that it should not be forgotten “how we lived the nine months when we were trying for the 18th amendment; convincing parties like Jamat-e-Islami and MLQ are not easy tasks”. According to Mr. Bizenjo, if the 18th amendment had happened earlier, Bangladesh would not exist right now but the forces then did not accept it, just like the army still does not accept democracy. He opined that we are all living in a silent martial law where everyone can only say what they want them to say – for example, the media. He stated that in case you decide to not do as they say, you will go missing. Mr. Bizenjo recalled that in Ayub Khan’s time, if someone went missing, one would know they are in jail. In Zia’s time, the number of missing people increased, but one would still know that they are in jail. Now in the name of terrorism, if one does not obey the establishment, one’s children will go missing with no idea of where they are, according to Mr. Bizenjo. He believed that if silence persisted in this silent martial law, all political parties would die and only right wing parties would be left in this country. Mr. Taj Haider expressed to take into consideration the existence of two polls of power: the establishment (the army) and the people of Pakistan. After Bhutto, he believed there has been a quest for power between the two even though power has always remained with the army leading to greater centralisation, ban on freedoms such as that of speech for institutions such as media and judiciary. Mr. Haider opined that there has been a greater reliance on foreign funds and the Constitution has suffered. Mr. Haider believed it was also important to consider how constitutionalism is being replaced by populism- the movement of time and history towards future. According to him, these hurdles may be artificial but do cause stagnations. On the issue of political consciousness, Mr. Haider believed that these struggles have caused a greater political consciousness within people that is irreversible; this was our greatest weapon and greatest strength. Mr. Bizenjo stated that while the consciousness of people of Pakistan has multiplied, the state has deteriorated in a rotten way as it works for its own interest at the cost of the people. People only make fake promises of getting money back into the country and as long as situation remains like this, the corruption will only increase, according to him. Talking about specific constitutional provisions, Mr. Haider discussed how Article 172 (3) provides equal ownership on oil and gas resources to provinces and how it was never implemented because the vague wording of the article was misused as only referring to future oil and gas discoveries which have not been made yet. This increases reliance on imports, according to Mr. Haider, but the state does not care about that. Mr. Haider pointed out Article 158 gives the right of first usage of gas reserves to the provinces where they are located, however this has never been implemented either. He opined that the centre is always complaining about resources but continues to create new ministries under new names which only increase expenses and intrude on subjects belonging to provinces. During the interactive session between the panellists and the audience, the issue of the role of provinces in light of projects like the “China-Pakistan Economic Corridor” (CPEC) was raised. The panellists addressed this question by stating that a conversation on this subject matter was only possible if there was knowledge as to where the country’s money was going in the first place. The panellists shared that Rs. 100 billion were asked for security every year (now Rs. 95 billion) from which Rs. 45 billion were under enhanced security, which is still not explained and Rs. 55 billion for IDPs, but there is no transparency.

The audience also raised the issue that the 18th Amendment requires provinces to deal with many things their infrastructure still does not allow them to handle; when will this change? In response to this, the panellists observed that the provinces have failed to deliver on the tasks expected of them and that this makes the case of this amendment (which would have led to others) much weaker. The panellists opined that it was the duty of political parties and the civil society to help or sometimes force the provinces towards the implementation of the amendment. Resolutions: 1. There needs to be greater transparency on where the money for defence is being used. 2. Provinces should be able to keep their resources for themselves. 3. The Judicial Council and Parliamentary Committee should have equal participation in practice. Provincial autonomy should be held and protected under all costs. 4. Political parties and civil society members need to ﬁght together against the forces that want them to remain silent. 5. The centre should not intrude in provincial subject matters like provincial economic dealings; provinces should be the ones to decide where and how their resources are used.

6.3 Death Penalty & Deterrence – Who are we hanging?

Left to Right: Ms. Munizae Jahangir, Mr. Zaved Mahmood, Mr. Kamran Arif, Mr. Azam Nazir Tarar, Hon. Justice Shehram Sarwar Ch, Hon. Dr. Muhammad Shoaib Suddle, Mr. Rana Maqbool, DIG Humayun Bashir Tarar 77

Moderator: Ms. Munizae Jahangir (Senior Broadcast and Print Journalist) Speakers: 1. Hon. Justice ShehramSarwarCh (Honourable Justice of the Lahore High Court) 2. Mr. Rana Maqbool (Senator PMLN & Former IG Punjab) 3. Mr. Kamran Arif (Council Member Human Rights Commission of Pakistan) 4. Mr. Zaved Mahmood (Human Rights and Drug Policy Advisor, UN) 5. Mr. Azam Nazir Tarar (Former Vice Chairman Pakistan Bar Council) 6. Hon. Dr. Muhammad Shoaib Suddle (President International Police Association Pakistan Section and former Wafaki Tax Mohtasib) 7. DIG Humayun Bashir Tarar (Senior Police Official Pakistan) The discussion in this session revolved around the common reaction of “hang him” in response to an alleged crime in Pakistan and the importance of deterring a crime rather than giving a harsh punishment in the form of death penalty to the criminal. It was highlighted that ironically within the existing parallel legal system, the accused gives blood money and is acquitted. In Pakistan today, there are over 7000 people on death row which is one of the highest numbers in the world. 51% of the total executions carried out in the world occur in Iraq, Iran, Saudi Arabia and Pakistan. Every eighth person executed in the world is Pakistani. At least 60 executions were carried out in Pakistan in 2017, down from 326 and 87 or more in 2015 and 2016 respectively. Mr. Zaved Mahmood offered a rich tribute to Ms.Asma Jahangir and said she inspired his work on criminal justice. He pointed out that Ms.Asma Jahangir invariably argued that the role of justice was to ensure judicious carriage of it rather than exacting revenge. For her, meting out death penalty was no different to revenge murder and violated the very notion of justice. Mr. Mahmood questioned who are we hanging when there is no evidence that there is a relation between decreases in crime rate and awarding of death penalty. He informed the audience that presently, 170 countries have abolished the death penalty and they work on prevention and have strengthened their law, application of law, judiciary and sentencing to ensure effective prosecution, fair trial and well-considered precedence-making. Mr. Mahmood contrasted this with Pakistan’s criminal justice system which he believed was fraught with wrongful convictions. He questioned if we ever asked questions regarding who those 7000 people on death row were, whether we knew them or whether they had enough money to hire a lawyer. According to Mr. Mahmood, poor people with little or no wherewithal to access justice are put behind the bars, as the wealthy often pay blood money and get away scot free, without any punishment. Mr. Mahmood opined that traditionally death penalty was the norm but now its abolishment is. Those who can afford and have the right connections can bribe their way out of the prison, have cases against them dropped and even ward off any witnesses either through intimidation, threats or bribes. In a country where there is no witness protection

program and the police’s evidence collection is weak, often the innocent are implicated and therefore it’s better to abolish the death penalty than let an innocent person hang. He further emphasised that it is not the severity of the punishment but the certainty of being held accountable that deters a crime. Speaking in detail on a death penalty research conducted in Iraq, Mr. Mahmood quoted that in their research’s conclusion they found no co-relationship between the reductions of terror incidents with death penalties. In his remarks, Mr. Mahmood said that according to International Covenant on Civil and Political Rights’ Article number 6 which states that those countries which still use death penalty, should only use the penalty for serious offenses. In Pakistan there are number of crimes that are punishable by death which doesn’t fit within the concept of serious crime. Therefore there is a scope within the International Law that Pakistan can consider in order to move forward and abolish the death penalty. The Honourable Justice of the Lahore High Court Justice Shahram Sarwar informed the audience that since the amendment of the Criminal Law in 2016, he conducted hearings of 1400 death penalties handed down by the courts of special jurisdiction under the 2014’s Anti-Terrorism Act. He emphasised that as a judge he has a duty to treat these appeals with extreme caution and care and to follow the dictum laid down by the honourable Supreme Court; keeping in mind that not only the life of an accused is involved but also the family of the victim are seeking justice. He stated that judges’ directions are to treat appeals with extreme care and therefore they have upheld 7 death sentences out of the 1400 which were adjudicated upon. Sharing from his personal opinion as a judge, he stated that according to the Constitution and law, judges have to follow the dictums of the law in matters of death penalty. Senator Rana Maqbool said that Pakistan has been terrorised by criminals and anti-state malignant actors. According to him, there is a long list of law enforcers bearing the brunt of violent activities. However, he believed that wherever security and prevention measures have been used, like the use of CCTV cameras in Punjab, such activities come down by eighty per cent. On the other hand, he felt that the level of investigation must be improved. Mr. Maqbool expressed regret that unlike the Western world, Pakistan is in the throes of terrorism and therefore the death penalty is a good deterrent for terrorists. On the issue of whether death penalty served as an effective deterrent or not, Mr. Azam Nazir Tarrar felt it did not. He said that if the death penalty was a deterrent then crime rates in Pakistan would have been lower than countries that had abolished death penalty. However, he observed that Pakistani society is plagued by rampant terrorist activities, violence, rape and murder. He said that in the cases involving death penalty, there is a ratio of 40% acquittal to 60% convictions. Mr.Tarrar stated that the 60% have been given extreme penalty which is the death sentence. In the High Court and the Supreme Court, it is only in one percent cases that the death penalty is handed down. In the remaining 99% cases due to some mitigating circumstances, the death penalty is converted into life imprisonment or a clean acquittal if the prosecution fails to prove the case beyond shadow of doubt. Mr. Tarrar added that within the framework the superior courts must give direction, guideline and a policy to the trial courts that death sentences should not be ordinarily given.

In his remarks, Mr. Tarrar favoured the alternative punishments to death penalty since a death sentence is irrevocable and irreversible. Mr. Shoaib Suddle adopted a distinct angle on the issue of deterrence by observing that this matter requires more debate. He was of the opinion that in Pakistan, no death sentences were handed out from 2008-14 but the moratorium was lifted in the wake of the Army Public School’s incident. He said that in 2015 which was the first year since the moratorium was lifted, the number of murders that took place in Pakistan dropped from 13276 to 9486. Mr. Suddle emphasised that it was a huge drop of 28% in one year alone. He also insisted that the criminal justice system must be very effective and innocent people should not be convicted and executed. In addition, he said that the biggest challenge at the moment is the lack of witness protection system in Pakistan. He concluded with the recommendation that no one is for hanging the innocents, however the best the society and the law can do is to bring checks and balances into this extreme punishment. Mr. Humayun Bashir Tarrar talked of retribution in relation to the concept of death penalty. He felt that the state should have the right to give the retribution, because the state is there to protect rights of its citizens; if there is a crime, there should be an ensuing punishment. He believed that it is not the severity of the punishment but certainty of it that deters a crime. Since the criminal justice system is flawed, it lacks certainty. His opinion was that as regrettable as this might be, unless there is certainty, severity is more of a deterrence. He remarked that there is nothing wrong in giving out death sentences, however the criminal justice system needs to be amended and must be corrected so that no innocent is hanged. Mr. Arif stated that when a criminal commits a crime, he or she is encouraged by the thought that they will not be held accountable and they never think about the penalty or the severity of it. In addition, the certainty of prosecution is a better deterrent than killing people. Furthermore, in the wake of the Army Public School incident two things happened: the moratorium on the death penalty was lifted and there was a drive against illegal weapons. Quoting an example of the correlation between the weapons and crimes committed, he said that in United States due to the easy availability of buying and carrying of weapons there are more murders. According to him, the challenge is that, in Pakistan there is a lot of dichotomy- people get away with murder, one man got away with murder without ever stepping inside of a prison; meanwhile terrorists’ courts do not allow settlements outside courts! Murder within families is often forgiven, and the impunity for honour killings has increased. He quoted the case of two brothers executed after languishing in prison for years. They were later acquitted by the courts, only to discover that they had already been hung. In his closing remarks, Mr. Arif stated that the decrease of terror incidents after the APS attack was not because of the moratorium being lifted on death penalty but it was because of taking away the sanctuary of the terrorists which were based in Waziristan. He added that there are two things that cannot scare a terrorist: torture and the death penalty and therefore alternative ways to punish them must be adopted. Munizae Jahangir said that the aim is to eradicate the crime, not hang people. She questioned the panellists on how a country can have death penalty with such a flawed legal system. She said the probability of hanging an innocent person are high in a flawed legal

system, with no witness protection program. She quoted from a case which Asma Jahangir often referred to where a man was hung for killing a woman who was still alive. On 26 July 2006, Malik Taj Mohammed was freed by the Supreme Court, after having been detained for three years for murder of Malkani Bibi, who was believed to have been murdered during a property dispute between relatives a few years before. The charges were dismissed when it was discovered that the "murder victim" was still alive, and actually serving a jail sentence for theft. Mr Mohammed told the Chief Justice at the time that his "opponents" had even gone so far as to perform a mock burial of Ms Bibi. Mr Mohammed informed the court that the "murdered" woman had in fact been arrested in another case and is currently serving a sentence in a prison in the city of Gujrat. The Hon. Chief Justice ordered the police to present her before him, and she was located and brought before the court. Jahangir argued with poor collection of evidence, politicised and corrupt police and no witness protection program the death penalty should be abolished, as the chances of hanging an innocent person is high.

Resolutions: 1. The level of investigation of crimes must be improved. 2. The law needs wide-scale reform to ensure due process and to severely restrict cases where there is “forgiveness” through an out of court settlements. It was observed that powerful members of society are always able to pressurise the less empowered and have an out of court settlement. Murders within families are often forgiven while terrorist courts do not allow any out of court settlement. On the one hand this means that many people get away with murder and on the other hand innocent people have been hanged. 3. The criminal justice system must be very eﬀective and innocent people should not be convicted and executed. 4. There should be a system of fair trials. 5. There should be separate courts or benches for death penalty so that judges can specialise and develop their expertise when deciding on life and death matters 6. Pakistan should have a witness protection program. 7. The superior courts must give directions, guidelines and policies to the trial courts that death penalty should not be ordinarily handed out.

6.4 Rise of Religious Fundamentalism in South Asia and Overview of challenges to the rights of religious minorities.

L to R: Mr. Peter Jacob, Dr. Farooq Sulehria, Dr. Nimalka Fernando, Mr. Zahid Hussein, Dr. Arfana Mallah, Ms. Kamla Bhasin

A note of acknowledgement and a special thanks to the Embassy of Netherlands for sponsoring this session. Moderator: Mr. Hassan Niazi (Advocate High Courts, Pakistan) Speakers: 1. Mr. Zahid Hussein (Senior Journalist and Analyst, Pakistan) 2. Dr. Farooq Sulehria (Academic and Lecturer, Pakistan) 3. Ms. Kamla Bhasin (Writer, poet and activist, India) 4. Dr. Arfana Mallah (Assistant professor in the Department of Chemistry at the University of Sindh, Pakistan) 5. Dr. Nimalka Fernando (Attorney at Law and Women’s Rights Activist, Sri Lanka) 6. Mr. Peter Jacob (Executive Director, Centre for Social Justice) The moderator, Mr. Hassan Niazi, stated oﬀ the session with a basic outline to highlight the aim of deriving recommendations as to how should this most layered problem of South Asia be countered. The challenges faced by religious minorities are numerous. Mr. Zahid Hussein started oﬀ by outlining two major factors to specify the reasons for rise of religious fundamentalism.

When the state was constitutionally given the rights to decide who is a Muslim and who is not, it empowered the clergy. This created an environment of intolerance as to who will live in this country and who will not. Hence the rise of extremism was allowed by the state itself. Rule of law should be implemented if any state is serious about combating extremism. Political parties do not have any consensus over the meaning of extremism. There is a critical need to abolish discriminatory laws, which empower clergy to act against minorities because they are already discriminated against. Political parties must come to an agreement. The 18th amendment has also limited that the President of the country can be a Muslim only. “How can a country be unfair to its religious minorities like that?” Mr. Hussein asked. Adding to the debate, Dr. Farooq Sulehria stated that it is a political process of deﬁning state and Sharia. Pakistan was made in the name of religion unlike all other Muslim states. Zia compared it with Israel, it was a huge failure of the state where the state had not been able to provide adequate schooling and health services for minorities whereas other non- religious countries even provide mosques etc. to families living there. Role of imperialism, mainly afghan jihad was the epitome of fundamentalism.

Ms. Kamla Bhasin joined in by claiming, if the state is really serious to renew itself and free itself of fundamentalism, which can be seen in the two-nation theory, the state should review and revise it as no nation can identify itself with one religion. If it identifies itself with Islam – then what is Islam? Ms. Arfana Mallah talked about the role of Saudi government, suggesting that it should not be mentioned as the mothers, but the fathers of the fundamentalism. Secularism should be practised in public institutions, by the government, ministers andbureaucrats. ‘We must tell our children to respect all religions, I was born a human being before I became an Indian, Hindu, upper cast and rich,’ declared Dr. Arfana Mallah. Engaging in the debate, Dr. Nimalka Fernando said thatthe countries have signed International Covenant for Civil and Political Rights ,which means they have to adhere to international norms and to act with compliance. However, the perpetrators continue to behave with impunity. Empowering the minority religions and giving them the feeling that they are equal under the law should be the idea for cohesion and harmony. Dr. Nimalka brought in the example of Sri Lanka, which is a secular state but it gives foremost preference to Buddhism. The change should start from home, every husband, brother, man must ask, what should be their women’s mobility and freedom? What defines mans’ relationship with his wife? Even the religion differentiates between what a man be questioned on as compared to a woman? Most radical and revolutionary changes are the attitudinal changes in this context. In conclusion, Mr. Peter Jacob talked about the violence driven by state policies, taking away the tolerance from the society. Removing socio-economic marginalization in South Asia would be vital. SAARC is the semblance of unity. It is important to work on these issues in order to protect itself from the radical influence and to bring a semblance of peace and security in the region. Resolutions: 1. It would be best to separate state laws from state religion.

2. Establish the meaning and forms of terrorism to be able to regulate them and take action more suitably. 3. Each state should focus on its own ﬂaws rather than degrading and pointing ﬁngers at other states.

6.5 Bonded Labour- Prevalence in South Asia and Reforms and the Protection of Trade Unions and their right to freedom of expression and assembly – safeguards to protect this constitutional right

L to R: Dr Taimur Rehman, Mr. Farooq Tariq, Ms. Rubina Jamil, Mr. Mehmood Butt, Mr. Karamat Ali

Moderator: Taimur Rahman (Professor, Lahore University of Management Sciences, political activist and singer) Speakers: 1. Mr. Farooq Tariq (Spokesperson Person Awami Workers Party, Pakistan) 2. Mr. Karamat Ali (Director, Pakistan Institute of Labour Education & Research) 3. Mr. Sushovan Dhar (Trade Union Activist, India) 4. Ms. Rubina Jamil (President, All Pakistan Workers Confederation) 5. Mr. Mehmood Butt (Secretary General – Pakistan Brick Kiln Workers Union) 6. Dr. Lal Khan (President, Pakistan Trade Unions Defense Campaign)

The discussion of this session was put into the context of the importance of bonded labour rights in a democracy. With 3-8 million labourers in the country, the moderator believed it seemed fruitless to talk about democracy at a national level in the absence of implementation of labour laws. This was exacerbated by bonded labours’ complete lack of decision-making as they could not even choose their own professions. It was opined that there was no room for a second opinion on abolishing bonded labour. Having established that importance, the various problems related to bonded labours were highlighted for further discussion. It was pointed out that it is often held that bonded labourers borrow loans in lieu of which they must serve if they cannot pay them back. The reality is that bonded labourers exist in various sectors, be it agriculture or carpet weaving. Attention was drawn to the brutal treatment received by women and children in particular and how it was common to find entire families slogging in brick kilns for generations. Another significant issue pointed out was about children aged 5-15 working under bonded labour in brick kilns. It was stated that this is not only a human rights violation, but hazardous for the children who pay the cost of this cruel system through their stunted growth and lifelong deprivation of access to learning opportunities. Mr. Mahmood Butt discussed the theme of the session in light of the conditions of bonded labourers and the reasons because of which these workers stay trapped. Mr. Butt highlighted how this menace was present in all sectors in the country. There was acknowledgment that brick kilns were the most dreadful but there were also other areas such as shoe-making in Lahore and Punjab, and carpet-making all across the country where bonded labour prevails. Mr. Butt shared that more than 20,000 people are involved in this, and the workers forced into this are more than 4.5 million. These workers are provided with the money or loans prior to the commencement of their work; the money is of such an amount and provided in such a way that these workers cannot keep track of it or do the requisite calculations. He pointed out how nobody has been punished under the Bonded Labour Abolition Act 1992. Mr. Butt highlighted the plight of bonded labourers who, in his opinion, are treated worse than animals. They do not have basic facilities of clean water and healthy environments; they are demeaned and regarded as an inferior class, which is psychologically disturbing for them. It was observed how men and women both equally work in this area but women make double the effort than men make as they have to manage their houses and families as well. There is no proper management of the money handed over as there are just “munshis,” (clerical staff) handling such matters. Mr. Ilyas Khan discussed how the issue of bonded labour persists despite the lapse of 26 years since the passing of the Bonded Labour Abolition Act. He urged consideration of the issue in an overarching context and quoted Solon to explain his assertion: “Laws are like a spider’s web, in which the weak things get caught and the ones in power will shred it apart.” According to him, the ruling elite have control over everything, and they are suppressing the labourers. The fruit of the efforts of the labourers was being collected by people in power. The ruling elite only make laws when protests take place but they have no intention of following through. He opined that the government is weak in front of the rich people. The people in power are so weak that they cannot continue ruling without suppressing the downtrodden. He stated that this fight is between the suppressed and suppressor. He

85 believed that the whole criminal justice system belongs to the ruling elite and there is a need to dislodge these people from their positions of power Mr. Farooq Tariq analysed the issue of bonded labourers in light of a historic legal proceeding on the issue in Pakistan. It was narrated that Ms. Asma Jahangir, as a young lawyer, forwarded a telegram to bring into the attention of the then Chief Justice of Pakistan’s notice the issue of bonded labourers in brick kilns and their treatment as slaves. In response to this, the Chief Justice took suo-moto notice and summoned the owners, the workers, women and children as well as experts especially from the legal field such as Abid Hassan Minto and Shahid Mahmood Nadeem (a journalist).6 Mr. Tariq quoted Justice Afzal Zullah as stating that bonded labour was not acceptable in any form and has to be abolished. Justice Afzal Zullah believed that if advance money is taken, one does not have to get it back if the basis and intention of granting the loan in the first place was based on slavery. The owners of these brick kilns then went to the Federal Shariat Court and tried to use religion to keep slavery intact. That case went on till 2005 in the Federal Shariat Court. Surprisingly, according to Mr. Tariq, the judges in the Federal Shariat Court declared the same, and called the actions un-Islamic and abolished them. It was recalled how massive rallies were carried out to celebrate this decision. Mr. Tariq analysed the impact of this decision and found it unfortunate that it was not implemented by the owners ofbrick kilns, and today many years later the system of bonded labour continues. Mr. Tariq observed that the situation of bonded labourers was probably the worst – they were the most exploited and vulnerable section of society. He explained how bonded labourers have never gone to school but they dream of sending their children to schools. He observed that the issue persisted despite all the laws prohibiting it. It was pointed out how the issue was a South-Asian one extending to India and Bangladesh. It was recalled that when a complaint arose against child labour once, it was suggested that a collective effort is required in the South Asian community. He believed that the same is required in the case of bonded labourers. He felt that Pakistan needed courageous women and lawyers like Asma who would not compromise on issues like bonded labour and blasphemy. He additionally observed that there were many incidents of children who were taken away from their parents and most of these missing persons were bonded labourers according to him. The session’s discourse was further added to by Ms. Robina Jamil who observed absolute neglect by the government of the brick kiln sector. She observed that the previous government created hype about opening schools for the brick kiln workers but to date, Ms. Jamil’s struggle has revolved around getting the brick kiln workers accepted as workers, and getting them social security cards. It was her opinion that child labour can only be ended if poverty is eliminated and work in brick kilns was the worst form of labour. Ms. Jamil connected the issue of bonded labourers to the efforts of the trade union movement, which in her opinion has been very serious about the brick kiln sector. She observed that Pakistan’s issues also stem from the fact that India has had continuous democratic governments while we had military dictatorships again and again. She opined that workers only fight over their bonuses or wages but it was responsibility of the governments to uphold their other rights against exploitation. In her opinion, the ruling

6 PLD 1990 SC 513

elite do not want labourers to get their rights and money, because all the mills and factories belong to them. Ms. Jamil said that trade unions should take the issues of women workers seriously. In her opinion, change in Pakistan can be brought through national solidarity. Mr. Karamat Ali stated that modern Pakistani society is not even upholding 10% of the rights that workers were given before 1947. According to him, “right of association” is the correct terminology and labour issues should not be divided among blocks. He said that we should look at it in a collective way for all labourers. Mr. Ali talked about the categories of “free labour” and “un-free labour”. In relation to them, he observed that all labourers, bonded or not, are “un-free labour” if they are not given their rights. He shared that 1% of the workers in Pakistan are members of unions; the remaining 99% are “un-free”. He further shared that the average working hours are known to be 12-14 and the law stipulates that more than 8 hours of working time should be counted as "overtime" and wages should be doubled. On that note, he observed how 70% of workers in the garment factories work from dawn to sunset and how have the law changed this and applied the overtime limit to their work. Mr. Ali made observations on the session’s theme by reference to international law standards and shared that the International Labour Organisation (ILO) reviewed Pakistan’s Industrial Relations Ordinance. The ILO concluded that this law explicitly excluded 75% of the people and a further 15% were excluded by the making of more such rules. Regarding the issue of health and safety of workers, Mr. Ali analysed that when the Factories Act was made, it was compulsory to carry out inspection regarding health and safety every year. However, long and unexplainable breaks have been taken between these inspections. Ms. Ghulam Fatima examined the multifarious factors, which according to her, were responsible for the current condition of bonded labourers. She mentioned the Bonded Labour Abolition Act 1992 and acknowledged that even though it was faulty and there was little implementation but at least the law existed. She went on to observe how in 2016, the government passed the Child Labour Prohibition Act 2016 which allowed the payment of “peshgi” which had been abolished in the 1992 Act. Post 2016, the employer can loan an initial sum of money to the labourer and then ‘enslave’ them for the rest of their lives due to their inability to pay back the debt. In this manner, the Act legalized slavery according to Ms. Fatima. Ms. Fatima observed that when the voices of the labourers do not have access to the Parliament, such acts of injustice will keep on taking place. In Pakistan, there are more than 20,000 brick kilns and a workforce of 4.5 million people and the conditions of the labourers are worsening day by day. She opined that in this country, justice is sold and bought and only the ruling elite can aﬀord it. She expressed her disappointment over the ignorance of the 2012 Supreme Court judgment regarding the social security cards. She shared that the Social Security department have registered only 8000 labourers, while the total number of labourers amounts to 4.5 million. The labourers have not been allowed to do anything on their own will. Ms. Fatima recalled how a young man of 23 years was shot dead when he missed a day of work because he was sick. The ILO report says that 7000 labourers are involved in indentured labour and Ms. Fatima believed that all those people who are forced to work below the minimum wage are indentured labourers.

Resolutions: 1. Pakistan has a labour force of 61.5 million. Agriculture Sector has 42%, non- agriculture has 58%. Labour laws are not applied to agricultural labour and they should be so applied. 2. Pakistan has laws but the laws are not being implemented properly, such as the Bonded Labour Abolition Act 1992. Further laws are made contrary to each other. We need to raise awareness amongst the labourers of their own rights. 3. We need to have a collective, conscious political eﬀort and struggle. We need to change the whole system. 4. All the fake cases against labour rights’ activists should be quashed. 5. All forms of bonded labour, child labour, and indentured labour should end in Pakistan. 6. Similar to the Prohibition of Child Labour Act 2016, there should also be an initiative for bonded labourers to be provided salaries just like workers in every other industry are. 7. Basic rights are important for workers, and a safe workplace and health of workers should be prioritised.

6.6 Electoral Reforms- Post Elections 2018

L to R: Mr. Ahmed Bilal Mehboob, Ms. Shazia Marri, Ms. Nasim Zehra, Mr. Ali Zafar, Mr. Chaudhry Manzoor Ahmad, Mr. Fahad Malik

Moderator: Ms. Nasim Zehra

Speakers: 1. Ms. Bushra Gohar (Former Parliamentarian, Pakistan) 2. Mr. Ali Zafar (Former Federal Law and Information Minister) 3. Ms. Shazia Marri (Parliamentarian, Pakistan People’s Party) 4. Mr. Fahad Malik (Senior Partner Minto and Mirza, Advocate High Court) 5. Mr. Ahmed Bilal Mehboob (President at Pakistan Institute of Legislative Development and Transparency – PILDAT) 6. Dr. Farooq Sattar (Former Parliamentarian Pakistan) 7. Chaudhry Manzoor Ahmad (Former Parliamentarian Pakistan People’s Party)

The debates and discussion surrounding Electoral Reforms in Pakistan were highlighted by means of legal arguments and the courts’ observations by Mr. Fahad Malik. According to him, one of the primary arguments that were raised in the courts was that elections by design of their structure, are exclusionary, both with respect to the contesting candidates and the voters. This means that the permission to allow jalsas, juloos, and rallies, as part of an election campaign should be prohibited. This is because, according to Mr. Malik, such permission those potential candidates at a disadvantage who do not have the resources to execute such large-scale activities. The sole purpose of an election campaign in Mr. Malik’s opinion was the dissemination of political ideas and the person/party’s manifesto. Therefore, any activity which does not promote this aspect should be barred. Otherwise, we are making our electoral system exclusionary towards those without such means. Mr. Malik recalled another argument put to the court on the need to have a system of election in which there is maximum participation by the public. He believed this was necessary because in our current system, most of the votes are casted on a biraderi system or are biased by caste, creed or religion. According to the Supreme Court, a truly representative democracy can only be there if there is large scale participation by the public. To ensure this, Mr. Malik held the belief that we need to do away with thecurrent first past the post system. He suggested that this could be achieved by introducing instant run-off voting. A process where, if one of the candidates fails to secure an absolute majority (more than 50% of the votes hold in the constituency), then there should be an automatic re-election in that constituency of the two candidates with the highest votes. Additionally, Mr. Malik highlighted that the Supreme Court had empowered the Election Commission to pass any order and undertake any measures they deem necessary in order to ensure that the elections are free, fair, just, honest and are held on a level playing field. According to him, this implies that firstly, election campaign activities should be restricted in way that all candidates have an equal opportunity. Secondly, that the Election Commission is empowered on its own to hold runoff elections if it wants to. He further highlighted that the Election Commission also has the power to introduce the ‘none of the above’ (NOTA) option in the ballot papers so that we can estimate the number of people who do not wish to vote for any of the candidates in their constituency. Mr. Chaudhary Manzoor Ahmed delved into an analysis of the expenditures of the election process. He observed that in small towns like Kasur, the expenditure of this process is much greater than that which the election commission claimed. Mr. Ahmed believed that it is the

89 sole responsibility of the Election Commission to conduct free and fair elections. In his opinion, if the expenditure on elections is beyond the reach of the common person, people will stop participating in elections. Mr. Ahmed gave the example of the 2002 elections when a lot of political workers stopped participating because the cost became too unaffordable for them. According to Mr. Ahmed, this gives rise to candidates who are already in positions of power like well-placed landlords as they are the only ones with available resources. Consequently, it was observed that it is those that we have sitting in the parliament today. Mr. Farooq Sattar added the element of the tough distinction between idealism and pragmatism in this context. According to him, Pakistan needs fundamental reforms to address some of the chronic ailments in the body of politics (such as feudalism). What generally happens, according to Mr. Sattar, is that we discuss the symptoms and how to improve those but if the root causes are not identified and dealt with, then all these efforts are only superficial in nature. Mr. Sattar claimed that his party, the MQM, was the only party in the National Assembly, which advocated against limitless expenditure. The session’s debate was given the additional angle of non-legal electoral reforms by Mr. Ahmed Bilal Mehmood. He observed that when electoral reforms are discussed, the general view is about introducing new laws and amendments. According to him, despite the recent electoral reforms of 2017, the election process remained problematic. Mr. Mahmood opined that the elections of 2018 were the most transparent elections held in the history of this country because every individual is aware of the flaws in the process. Ms. Shazia Marri added to this by asserting the futility of any reform until it is put into action. She opined that the issue faced by Pakistan is not the lack of reforms, but rather their lack of implementation. According to her, the Election Commission of Pakistan should thus be held accountable for what it was supposed to do. Mr. Ali Zafar believed that there were three aspects worth consideration when it came to elections; the government that is going to hold the elections, the Election Commission and the law. In Pakistan, he felt that all three aspects have been more than adequately covered. He expressed his reservations that the elections would be biased towards the government during whose term the elections are held. To cater to this, there was a decision to have a caretaker setup, where we get independent, impartial people to run the country during that period. Mr. Zafar pointed out how Pakistan is the only country to do that. About the Election Commission of Pakistan (ECP), Mr. Zafar assessed that it was strong, as the Constitution outlined that one person from the government currently in power and one from the party in opposition should jointly select anybody to be the chief and the members of this Commission. Additionally, Mr. Zafar highlighted that the Election Act of 2017 made the Election Commission of Pakistan the most powerful commission he had ever seen with the power to rule the country during the elections. According to him, no step with even the slightest influence on the election process could be taken without the approval of the ECP. According to Mr. Zafar, elections are the gateway to democracy and that in terms of law, nothing in the processes went wrong. He opined that Results Transmission System (RTS) is not the issue; RTM is, which is a management issue and it is the RTM which went wrong.

Resolutions: 1. There should be limits set on all means by which a political party can extend its influence on the public. Whether this be in the form of banners or paid television advertisement, the government should set limits so as to provide a level playing field to all those contesting. 2. Land reforms are important because the local governments need access to a local legislative list. 3. Article 160 of the Constitution of Pakistan needs amendment. Feudalism needs to be actively addressed instead of just hoping that it will finish. 4. Improving the election process in this country requires dealing with the core issues of the process, and implementation of reforms by those who hold power, be it the Prime Minister or any intelligence agency. 5. What we need now, is not laws and major reforms, but rather implementation of the current laws. 6. NOTA should be introduced so more people are encouraged to vote and ballot counting should be done in camera.

6.7 Extra-judicial Killings and Enforced Disappearances

L to R: Mr. Khushal Khattak, Hon Justice Ali Baqar Najfi, Ms. Kirsty Brimelow QC, Mr. Farhatullah Babar, Mr. Rukhsan Fernando

Moderator: Khushal Khattak (Coordinator North Pakistan, Human Rights Commission of Pakistan) Speakers: 1. Ms. Kirsty Brimelow QC (Chair of the Bar Human Rights Committee, England) 2. Mr. Rukhsan Fernando (Human Rights Activist, Sri Lanka) 3. Mr. Farhatullah Babar (Former Senator, Pakistan) 4. Hon Justice Ali Baqar Najfi (Honourable Judge High Court Lahore, Pakistan) The topic of this session was within the theme of promoting the rule of law and protection of fundamental rights. It was highlighted by the moderator that the use of force by the State against its citizens should not be practiced. It was pointed out that issues like the Baloch missing persons movement in KP and FATA surfaced where extra-judicial killings had taken place. Previously, according to Mr. Khattak, it was limited to Balochistan and KP, but now extra judicial killings are seen in Punjab and Sindh, and especially in Gilgit Baltistan. The discussion of the session was put into the context of a judicial approach towards the issues raised by Justice Najfi. According to him, extra-judicial killings have been a concern for lawyers, judges, etc. Justice Najfi opined that killing a person in self-defence serves the purpose of the State and has the State’s protection. Justice Najfi acknowledged that there were multifarious approaches to extrajudicial killings adopted by the judiciary in Pakistan and that judges exercise caution in these cases and make sure that nothing is missed out. He opined that judges go out of the way to assure that the truth comes out. Justice Najfi stated that the mind-set behind extrajudicial killings is that the person behind such killings can set himself free, but what about the executed? In this context, Justice Najfi cited the example of the Model Town incident, which was a typical example of unleashing the state tyranny upon innocent individuals. At that time, the judiciary had to respond and Justice Najfi believed it responded well. In his opinion, it gave hope to the victims that there is a system available, someone there to hear them and address their issues. While Justice Najfi acknowledged that the judiciary might be slow in its response but he believed that it is definite in nature. Judges of all ranks, according to him, are working tirelessly day and late night to come up to the expectations of the people of Pakistan. He opined that problems of extra-judicial killings, enforced disappearances and torture cannot be resolved solely by the judiciary and there was a need to change the executive’s mind- sets. He stated that the judiciary needs the support of human rights activists like Ms. Asma Jahangir and lawyers to put an end to such killings and disappearances. Ms. Kirsty Brimelow addressed the discussion in light of relevant legal history. She recalled that Ms. Asma Jahangir’s last work was as the Special Rapporteur for Iran. Hence, Asma’s last work in the United Nations was aimed at bringing perpetrators to justice. Ms. Brimelow discussed the situation in Nigeria in light of the session’s theme. She quoted a statement made by the President of Nigeria that, “The rule of law could be compromised when it came to issues of national security.” According to Ms. Brimelow, this statement caused a reaction because it justified breaches of law. She discussed the existence of Boko Haram in Nigeria where there was evidence of extra-judicial killings because the wrong people were working and taking away the fundamental principle that the rule of law is needed to protect people.

Ms. Brimelow believed that cases of terrorism had brought back capital punishment and believed that that is where the courts and judiciary must stand strong. In her opinion, terrorism was nothing new but what were often overlooked were the bottom-up reasons giving rise to it. According to her, terrorists were looked at as bloodthirsty and extremists but she believed that state terrorism existed in reality. She observed how in Iran, Ayatollah Khomeini issued instructions to exterminate those in opposition to the regime or his policies. She believed that due process was required. She observed that Iran had 2-minute hearings before the “death commissions”, where questions like whether one would renounce ones beliefs or walk over something for Khomeini were asked. If they hesitated, they would be hanged and this included children and pregnant women. Therefore, public hangings, extra-judicial killings and crimes against humanity took place in Iran according to Ms. Brimelow. She recalled that Ms. Asma Jahangir brought this agenda back to the United Nations, stating that families need answers and justice. Ms. Brimelow opined that different sorts of inquiries should be set and Iran could not set them up unfortunately. Relating the topic to Sri Lanka, Mr. Rukhsan Fernando observed that enforced disappearances mean that family members do not know whether the person is killed or is still alive. He believed that the phenomenon was therefore brutal and is a continuing crime until information is given. It was shared that in Sri Lanka, about 4,550 complaints were sent to government bodies and international bodies. He believed that enforced disappearances are seen as a way of countering threats, suppressing dissent and it has been claimed that cases of people working in the underworld and related to drug-related crimes have also disappeared. Mr. Fernando explained how various mechanisms have been used, some disappear from highly guarded hospitals while others surrender to the army or are taken away from their homes. He claimed that United National Party (UNP) and Sir Lanka Freedom Party (SLFP) have been responsible for people disappearing and that majority of the ethnic groups are targeted. He shared that the White Van has become a symbol of disappearances in Sri Lanka. According to Mr. Fernando, a number of families have filed court cases; police reports or habeas corpus cases. If the authority finds enough evidence, it is taken to court to be acquitted or dismissed. However, he opined that there were only a few court cases whereby an army or police official had been convicted or put in jail. He believed that these commissions of inquiry do not yield any truth for the families of the disappeared people. Mr. Fernando shared that international advocacy and campaigns by these families have been arranged, including making oral statements at the Human Rights Convention in Geneva but government ministers have denied any truth. Their response has been that these people escaped with other women or other such excuses. Talking about recent developments, Mr. Fernando acknowledged that post-2016, there was a slight change due to the new government but there were still continuing reports of disappearances. He believed that while some families welcome efforts of activists, others are sceptical and that the white-mandate focuses on truth-seeking and providing reports and recommendations. According to him, there was an ignorance of ground realities. He observed that Sri Lanka still has to ratify the Convention on Enforced Disappearances, but has not been allowed to do so yet.

Mr. Farhatullah Babar identified three characteristics of enforced disappearances; the Parliament, the Supreme Court and the executive. He shared that the commission that was set to inquire has no doubt recovered a large number of missing persons but has not been able to prosecute. The reason is that perhaps this is because the state is involved. He opined that there are people who are more powerful than the court and are not visible. According to Mr. Babar, the case of missing persons has been further weakened by the judgment of the Supreme Court of Pakistan in 2015 related to military courts and the 18th amendment. It was stated that during the course of arguments, it is for the federal government to ensure that any action does not interfere with international law. Therefore it shows that the Supreme Court has relieved itself of that responsibility. At the same time, Mr. Babar recognised two positive developments in Pakistan. The first is a judgment of the Islamabad High Court, imposing a fine on a state official against a missing person, stating that monthly compensation should be paid to the family. Mr. Babar found it unfortunate that the government had appealed this judgment, but he believed that it does not retract from the fact that the judgment itself was a landmark one. The second being that the chairman of the commission acknowledged out of pressure by the Supreme Court, that 153 functionaries have been found to be behind this phenomenon. He believed that until this, there was certain impunity and people didn’t know who was behind this. People did not question who took them and where these people would be kept (it is inconceivable where these people were kept and whether they were recovered). According to Mr. Babar, internment centres have become the black hole of Pakistan and there is no estimate of how many exist. He believed that if Ms. Asma Jahangir was alive, she would have demanded the internment centres details to be made public and those detained in these internment centres to be tried in the court.

Resolutions: 1. The state should be extra cautious in dealing with the culprits involved in extra- judicial killing; there is a need for trials in courts of law after a fool-proof investigation with executives trained to deal with such incidents. 2. Resources need to be allocated and security provided to protect witnesses at all costs and judges in such cases. 3. There should be immediate trials of those in detention centres, followed by their immediate release. 4. Torture and inhumane treatment should be banned because it contravenes international law. 5. State of prisons should be drastically improved to meet international standards (to ensure the elimination of torture). 6. Pakistan must have legislation to criminalize enforced disappearances. The Senate has passed a Private Member’s Bill to end torture in accordance with international standards. The government should adopt that bill as law. 7. The 153 oﬃcials identiﬁed as responsible for enforced disappearances by the Commission on Missing Persons should be prosecuted.

8. Internment centres must be subject to accountability and there should trials for those detained. 9. There should be protection of families in terms of accountability and support.

6.8 Legal frameworks in South Asia for the Protection of Refugees and Migrants

L to R: Ms. Nilofer Afridi Qazi, Mr. Igor Ivancic, Ms. Samina Ahmed, Dr. Sabiha Syed, Mr. Ammar Ali Jan, Ms. Muna Baig, Ms. Aisha Ahmad

Moderator: Ms. Nilofer Afridi Qazi (Public policy Specialist) Speakers: 1. Ms. Samina Ahmed (Project Director International Crisis Group) 2. Mr. Igor Ivancic (UNHCR Representative) 3. Ms. Muna Baig (Director Human Rights Commission of Pakistan) 4. Dr. Sabiha Syed (CEO of Migration Institute and former UNESCO) 5. Mr. Omar Waraich (South Asia Director, Amnesty Institute) 6. Ms. Aisha Ahmad (PHD Researcher Oxford University and Academic) 7. Mr. Ammar Ali Jan (Activist and Professor at Forman Christian College Mr. Igor Ivancic introduced the purpose of United Nations High Commissioner for Refugees (UNHCR) which is to ﬁnd durable solutions for refugees, whether by local integration or for those who return voluntarily and safely. He then explained the primary principle of UNHCR

95 that no refugee should be returned or rejected at any border or to areas where their lives are in danger. He shared that from a global perspective, there were seventy million displacements of people by the end of 2017. It was stressed that this was an unprecedented number since World War II and included families, children and the elderly displaced because of wars and conflicts. He stated that out of the seventy million displaced people, six million people are in South Asia alone, with extremely high numbers in countries like Pakistan, Bangladesh. According to Mr. Ivancic, the displacement of such a large numbers of global citizens is a huge indicator that the world has failed in terms of developing a strategy for effectively managing displaced persons. In the end, Mr. Igor Ivancic spoke about how in the context of Pakistan, the UNHCR advices a national resolution in parliament, specifically dealing with refugees who have been in the country for generations which could guarantee their universal rights in Pakistan. He recommended that since Pakistan is not a signatory to the 1951 Refugee Conventions or the 1967 Protocols, a national law would be highly advisable. Ms. Samina Ahmed began her discussion by sharing that there are 1.4 million Afghan refugees in Pakistan, and that a similar number of non-registered people exist. She said migration to Pakistan was caused by the War on Terrorism and the continued conflict in Afghanistan has hindered the return of refugees to their homes. There are Afghan refugees in Pakistan for generations now, but the formal registration process is problematic because it does not establish security for the refugees. Their registration depends on the goodwill of the State of Pakistan as they have not been given the legal status according to any legislation. She emphasised how Pakistan as a state has to provide them protection as Pakistan has obligations under international law. She stressed upon the legal matters for refugees and issue of unidentified Afghan refugees in the host country. Ms. Samina Ahmed explained the process of registration of refugees in Pakistan. According to her, the flip side to registration cards was that when the registration card expires or is close to its deadline, the Afghan refugees are not informed whether they will be given the right to remain or be removed. As a result, this creates insecurity about the protection provided by the Pakistan state and also creates a security football. She boldly mentioned that the easiest thing to do is to point fingers at the Afghan refugees when something goes wrong, for instance, during the attack on the Army Public School in December, 2016. She believed that out of retaliation, Afghan refugees were called terrorists and asked to exit. Ms. Samina Ahmed then divulged into another important issue of Afghan refugees, that aspect being the second and third generation Afghan refugees born in Pakistan. She discussed this in light of the fact that Afghan refugees are often subject to extortion, harassment and threats. She questioned that the best possible way to resolve this was that given that most of the children are born in Pakistan, they should be entitled to Pakistani citizenship. She mentioned how most of the Pakistan born Afghan refugees have never even been to Afghanistan. The Citizenship Act already gives this right, so those born in Pakistan are automatically eligible to be Pakistani. Moreover, she endorsed the solution proposed by Prime Minister Imran Khan, that citizenship rights should be given to Afghanis born in Pakistan. Furthermore, the Speaker termed the problems relating to refugees as “political football.” She gave the example of Balochistan where people are afraid of becoming a minority, and if Afghans are given

citizenship, the Pashtun demographic will shift in the Pashtuns’ favour. She asked if Pakistan should adhere to the Convention and ratify it and suggested that at the very least, Pakistan should devise a national refugee law, which should meet the international law standards and all the human rights treaties to which Pakistan is a signatory to. She also recommended that there should be legislation that gives some protection to Afghan refugees. She mentioned the need for political parties to pay attention to demographic politics vis-a-vis refugees and the burden of these families on two of the smaller provinces. Parliament and the politicians need to take steps to talk about the fall outs on the local population by the influx of refugees. Moreover, politicians also need to discuss the need to protect the refugees in the absence of laws and to ensure the existing laws covering refugees do not exploit an already vulnerable and terrorised group. Dr. Sabiha Syed made a distinction between refugees and migrants. She referred to the 1951 Refugee Convention which defines the term ‘refugee’ internationally. On the other hand, there is no formal definition of an international migrant, but most experts agree that an international migrant is someone who changes his or place from one country and relocates to another. Pakistan’s census defines a migrant as someone who has lived out of his or her place of origin for more than 6 months. She explained how this term is not clearly defined as the census in 1951 was held after the independence while the census in 2017 did not even have a question on migration. As a result, there is no definition of ‘internal migration’ in Pakistan. Rather, we are only aware of only those who have come into Pakistan via ‘international migration’. “Internal migration” is a massive issue which is not clear in our census. She emphasised how the census needs to determine who a migrant is within the country. The very idea of who is a migrant in Pakistan has really not be addressed. Furthermore, over decades, the waves of migrations as result of partitions and economic opportunities, the populations have shifted back and across Pakistan. Following which, the Speaker gave an analysis of Pakistan Citizenship Act of 1951, where a ‘citizen’ is defined by birth, migration and descent. However, post 1951 many migrants moved to Pakistan and as a result, new Citizenship Rules were passed to allow more migrants to enter. She emphasised that there is a huge difference between the migrant groups and a refugee. Post the 1971 war and the creation of Bangladesh, citizenship had to accommodate refuges/migrants and a reorientation of who was a Pakistani. Furthermore internal migration challenges also need to be better understood. Migration is defined with economic and environmental reasons as well. Pakistan has seen internal displacement due to natural disasters and conflict areas due to war. It was mentioned how tribal and traditional nomadic people move regularly and economic workers travel seasonally to find work. Therefore, Pakistan has seasonal and temporary migrations, family migrations, by marriage etc. The Speaker then advocated having a comprehensive migration survey in Pakistan in order to get a clear picture of who is what and where. Ms. Syed also referred to the overseas Pakistanis who are being given voting rights but consideration needs to be given to the fact that these dual nationals will also have loyalties to two governments. This, according to her, could create conflict and dissatisfaction. She stressed that when talking about migrants, internal migrants need to be studied and that citizenship should also be studied in the context of international conventions.

At the beginning of his discussion, Mr. Ammar Jan made distinction between the circumstances and conditions of refugees in Europe and America with what is happening in Pakistan. He gave the example of France, where the identity of a refugee is considered to be endangered in giving rights to Muslims and the same is supported by the majority. On the other hand, in Pakistan, the opposition for migrants and refugees actually comes from smaller provinces like Sindh and Balochistan. He said that one has to ask why this phobia exists against refugees. Mr. Jan then took the audience through a historical lens reminding the audience that Pakistanis are people of refugees. He narrated how in 1947 - 1948, many came from India to Sindh and also from other parts of Pakistan. At that time a question was raised as to who will take care of these people. Later the migrants/refugees became local. During other waves of migration and conflict, Punjab refused to host refugees. He mentioned how Punjab has also had multiple waves of Kashmiri and east Punjabi migrants and refugees who have integrated well. Subsequent refugees and migrants have not been welcome, ironically. In fact Punjab seems to have a policy where they want to get rid of all the migrants who hurt the sentiments of the old refugees as there was a fear that they might not be able to compete politically and economically. This has given deep scars to the other provinces and ethnic groups in Pakistan. Mr. Jan discussed how in 2009-2010, during the floods/War on Terror in KPK there were many displaced Pashtuns who went to Sindh as Punjab did not accept them. The speaker said that one should take into account the historical grievances that give rise to such oppositions. The idea of who a citizen is, is also effected by the reactions and policies at the provincial levels. The Speaker believed that Punjab has to take responsibility for the moments where it did not provide the necessary support needed by the minorities. If there is an inter-provincial dialogue, only then can this be taken seriously and can prevent bloodshed. Historical insight and inter-provincial dialogue is therefore, one solution. Afterwards, the Speaker pressed the need for a regional approach for refugees quoting the example of the large Rohingya Population in Karachi who are harassed by the police and are not allowed to have Identification Cards. The other times, they get arrested by Indian Coastal Guards. The trouble they encounter is that they straddle multiple identities, Indian and Bangladeshi. Identity politics can become complicated so Pakistan will need to find a solution for such complicated instances. A fundamental level humanity and human rights standards would have to trump when addressing migration and refugees. Moreover generational internal migration in Pakistan has to look at our multiple divisions and identity politics instead of applying one standard, narrow definition. There will have to be regional and global approaches that the future generation have to fix, and it cannot be solelya nation-state approach. Ms. Muna Baig emphasised the importance of the soft laws which exist as guiding principles, and which need to be taken seriously despite their limitations and non-binding nature. The issue of forced disappearances currently do not have any international conventions to protect them. Those who are picked up and are forcibly displaced, similar to refugees, but from their own countries, have no protection on our current legal system. The disappeared in Pakistan are many and we know too little. The reasons for why people disappear can be many, ranging from natural disasters of local/regional insurgencies. She believed that those who are citizens of Pakistan should be protected by the state, but they are not.

Ms. Baig put the responsibility of protecting all the citizens of Pakistan on the state which included the protection of those who have ‘disappeared’; Pakistan does not have a mechanism to protect them. Like the people from FATA, who were left on their own and the government promised to look after them but that never happened. On the issue of settlement of refugees or new immigrants, Ms. Baig commented that many in Baluchistan do not welcome new populations. Some or many Baloch already feel outnumbered by the local Pashtuns and more coming in from neighbouring Afghanistan worries them. The people from FATA who were displaced were rejected in Sindh and Punjab and restrictions were imposed on them. Those who managed to get to Lahore and Karachi after they were moved from their conflict areas. These restrictions of movement for citizens of Pakistan is a phenomenal oddity and a development which few talk about. The legalities of restricting your own citizens with your country also needs attention. In terms of internally displaced persons, Ms. Baig said once people have fled their places of violence, they tend not to go back even when the conflict has died down. This is because what they will be going back to are broken homes, no schools or hospitals and disappeared families. She believed that such sections are the most vulnerable. Ms. Baig discussed the international principles around management and rights of refugees which are not binding but should be followed to manage the refugees in Pakistan. She referred to one of the resolutions which declares that steps must be taken by civil societies and their participation in refugee management must be strengthened; when the refugees decide to return, the role of civil society must also be strong and involved. Lastly, Ms. Baig recommended that the conditions of the internally displaced children and women should be improved by granting them more protection. The Role of National Human Rights Commission (NHRC) should be enhanced. Most importantly, the State should recognize the concurrence of the internally displaced persons. Ms. Ayesha Ahmed opined that issues surrounding migrants and refugees and not just legal in nature but also fundamentally social and political matters. However, the speaker said that enforcement of legal rights is a start to fight the enforcement of equitable social inclusion in a shared nation state. Ms. Ayesha Ahmed started her discussion with the impact of urbanization on populations and how people coming from different villages to major cities like Lahore reside in temporary shelters and slums. The concern is where do these migrants live in cities? Ms. Ahmed said they live in “Kachi Abadis” which are informal settlements and the State has not paid any attention to this growing phenomena. They live on the peripheries of the cities being at the mercy of the state and their actions. Ahmed posed a question for us to ponder upon: “Why do migrants go to such uncomfortable and vulnerable places?” She explained that generally they have kinship networks in these hamlets/”kachi abadis” or have no choice because they are undocumented and need less formal housing settlement spaces where they can get shelter without too much oversight. Ms. Ahmed highlighted another major factor in the development and increase of these slum developments, which was the dearth of affordable housing options in Pakistani urban areas. According to her, 99 percent of housing is inaccessible to the poor in Pakistan. Ms. Ahmed pressed two points of consideration: firstly, how complex urban places make it hard for migrants to get settled and secondly, how settled migrants are treated and handled by the law. To the first question, she explained that no one knows where one jurisdiction begins and the other ends. The settlement management systems in Pakistan have

99 overlapping jurisdictions. This confuses and increases the cost and the bureaucracy intensifies. Moreover the governors have little outreach amongst the poor, for example, the people in “kachi abadis” do not even know about the role and responsibility of Mayors and Development Authorities. Constitutional protection exists but no one is sure how land is to be assured in terms of provincial governments. Development authorizes then keep using an informal way of using land in the city which Ms. Ahmed believed was dangerous. She stressed that only local government can decide what the local government can do and yet regulatory confusion still exists and people are not aware of which forum to go to. Ms. Ahmed discussed the removal of encroachments and that these periodic drives to clear encroachments have multiple purposes. The commercial investment mafia and high-end housing push for these demolition drives; the price of real estate goes down with encroachment so close by and valuable land needs to be freed for more commercial ventures. There is very little clarity on why authorities like Lahore Development Authority (LDA) are able to demolish the settlements. She stated how there is little adherence to the existing clause that no “kachi abadi” area can be declared a “kachi abadi” as it makes its dwellers vulnerable. However, WAPDA, Cantonment and LDA - all are creating confusion as no one is sure who owns what. Ms. Ahmed suggested that there should be clear jurisdictional clarity between organizations so that relevant stakeholders know who owns what and whom to approach for housing issues which impact both migrant refugees and locals. Questions from the audience a. What are the rights of refugees and rights of the majority and how to avoid this conflict? b. With reference to the codifying of the Afghan card in Pakistan, should this happen given that Pakistan has so many other priorities and is itself over- populated? c. Shouldn’t war be avoided so we do not have Refugees or displaced people? Who is trying to address the causes of war and conflict? d. What is the role of the media in portraying refugees as evil and what, if any, steps should be taken to counter it?

Resolutions: 1. Pakistan should consider signing and ratifying the Refugee Convention. And become a party to the Protocol. Thus, when there are asylum seekers, they truly have legal protection and Pakistan has to abide by no-force repatriation, accepting the right of non-refoulement and giving them protection under law. 2. Pakistan should devise legislation protecting and giving rights to Afghan and Rohingya refugees. 3. Pakistan should devise national law over refugees, migrants and asylum seeker laws. 4. There should be a provision for systematic plan for housing provision and to combat real state speculations. 5. Jurisdictional clarity needs to be present so we know who is in-charge of what and who owns the land and who is the proper person to go to when there is a problem

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so vulnerable like migrants and poor people will know who to approach in life and death matters. 7. Civil society people should take steps to include these resolutions, to integrate this guiding principal and International law and policy to protect IDPs. 8. Participation for these people should be strengthened. Their needs are to be taken care by the government, the return conditions should be made favourable to the IDPs. 9. Internally displaced children should be taken care of, the IDPs’ women and children are badly aﬀected due to Pakistani cultural norms, thus improved protection framework for them. 10. There is a need for enhancing the role of national human rights institutions and other human rights actors in the country to protect IDP. There is also a need for a national policy to recognize the continuous cycle for IDP and to accommodate a vital section of country.

6.9 South Asians for Human Rights (SAHR) – “Reclaiming the Regional Solidarity”

L to R: Mr. Farooq Tariq, Dr. Nimalka Fernando, Mr. Kanak Mani Dixit, Mr. I.A. Rehman, Ms. Kamla Bhasin

Speakers: 1. Mr. I.A. Rehman (Former Secretary General, Human Rights Commission of Pakistan) 2. Dr. Nimalka Fernando (Attorney at Law and Women’s Rights Activist, Sri Lanka) 3. Ms. Kamla Bhasin (Activist and Poet, India) 4. Mr. Kanak Mani Dixit (Nepali Publisher, Editor and Writer; the founder of the Magazine “Himal South-Asian” and Co-Founder of “Himal media”)

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5. Mr. Farooq Tariq (Member International Organising Committee, Asia Europe Peoples Forum, AEPF) Asma Jahangir was the chairperson of SAHR and it can only be attributed to her that in this session there were people from all around South Asia. Mr. I. A Rehman started off the discussion by pointing out the coincidence of holding this discussion in Lahore. Lahore is the originator of this idea, originator of peace and human development. Dr. Mahboob-ul-Haq received his education here and he once said, “We should concentrate on human security because it translates into human development, welfare and much more”.Dr. Mahboob-ul-Haq and Dr. Amartya Sen were the founders of the ideas of human development and security. Human Security is actually the freedom from fear. These ancient concepts could be found in all civilizations. No one should live their life in fear of threats from other people. Freedom from fear is living life without fear of losing one’s life, property or liberty. Fear from want means, people should have all the things they need for their existence and development. Human security comprises of sevens securities; economic security giving every individual the opportunities of earning and receiving enough to keep them alive, Food Security which unfortunately, South Asia is extremely vulnerable to. Children have stunted growth in Pakistan due to malnourishment. Then there comes the health security, entire South Asia has commercialized health care which is another issue. Environmental Security means the presence of law and order and a good atmosphere for people to live in. The important question is, who monitors human security? Who is agitating for human security? In Western countries it is done through educational institutions. Here in our region, the universities have not been sensitized to this problem except for one or two in India. However, in Pakistan, this work is done by civil society organizations, which are constantly being suppressed. If this continues we won’t have anyone raising their voices anymore. Engaging into this constructive dialogue, Ms. Kamla Bhasin shared that for her regional solidarity is absolutely essential. There are no ifs and buts. This is because our humanity demands living with our neighbours with affection, love, peace and cooperation. I believe regional solidarity is not only good but essential for economic development, for cultural exchanges and for decent politics and peace. Ms. Kamla Bhasin shared that since she joined the UN in 1975 she has been working at the regional level. She has been working for 16 years with a feminist network called ‘Sangat’. For regional cooperation and solidarity she emphasized that we need to work at different levels and different perspectives, policy, diplomacy, media security and more, but also especially with young people who are almost the majority. Ms. Kamla shared few ways she has practically seen being proved to be effective for the purpose. The first way is organising "regional courses" for men and women, activists, journalists, lawyers, doctors etc. A month long course where 37 to 38 women with 8 to 9 countries come together. There are "two country courses" like: Tamil course for Tamil people from Sri Lanka and India, Bangla course for people from Bangladesh and India. She has also tried for "Hindi Urdu Pakistan course" but couldn't invite Pakistan due to visa issues at that time so it became Nepal and India. She has done 29 of these. Exasperated with

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government visa regulations she shared to have started a national course in Pakistan, ‘Pakistan national course in Urdu’. Secondly, she has done networking at all levels. Being the founder member of SAHR in 1973 - initiated ACFOR including Asia and the Pacific, South Asian women's forum, Pakistan India's people forum, Peoples plan for the 21st century, ASBAE adult education, SAHR etc. ‘Sangat’ is another project born in Bangladesh whose first secretariat was in Islamabad. Additionally, there are cultural events, theatre groups, music groups, also having introduced regional awards, campaigns and regional events. On 30th November, South Asian Women’s day would be celebrated. Thousands of women are nominated for noble peace prize and there have been about 14 from Pakistan as well. Dr. Nimalka Fernando started off by highlighting the mutual passion between Asma Jahangir and her, “a passion for human rights”. That is where they both connected and where Dr. Nimalka began to experience solidarity. For women in South Asia, solidarity meant knowing we were fighting against huge patriarchal regimes and ideologies, which made the women non-entities. We did not have a refuge so our refuge was holding each other together. We need to build up regional solidarity to ensure human security, food security and human rights. We have caste discrimination in our region, Ms. Nimalka added. Today, to come to Pakistan, one has to go through the visa regime. We cannot network properly. Solidarity is negatively affected by visa regimes. In SAARC, there is no people to people solidarity. SAARC has not become a human security forum. It is a political, and law and order forum. We need to build a human rights forum in South Asia. People need to raise their voices. South Asia is divided by the interests of the super powers. The trade agreements are affecting farmers and forcing displacements in the name of investments. We are losing our own regions. Grand South-Asian union is still a dream. We have nurtured each other’s cultures. We have beautiful cultures to share with each other. So much is embedded in our lives. Asma Jahangir articulated the people’s vision. Dr. Nimalka urged people to move ahead while holding each other’s hands. In South Asia, we see a terrorist behind every bush. People of South Asia have to rise up against the militarisation and constitutionalisation which sometimes creates a notion of nationhood on the basis of religion. Joining in the conversation, Mr. Kanak Mani Dixitsaid, "The city of Lahore is the best venue to talk about South Asian regional solidarity because partition's meaning is best understood here". Partition made us use the term South Asia. He claimed, we all are a part of the Indic part of civilization. We use the term South Asia as a single word in one flow, because we try to own it better in a cultural and historical way. Mr. Kanak asserted, "We think of South Asia as synonymous to SAARC for the sake of economic growth and social justice which was a great problem". There was a lot of interest and donor funding in the start, a lot of meetings but those meetings were just water bubbles, which burst because there was no momentum. The feeling was not enough to break the barriers. People started to say SAARC is weak so the idea of South Asia is nothing. Mr. Kanak shared, that Raja Mohsin - a columnist wrote in the Indian express, "South Asia is a political construct". He claimed it is not time for "Indian people" to move on but the Indian

103 government to move on. He suggested not to equate SAARC with South Asia and revive SAARC as much as we can as it was weakened when PM Modi in November, 2011 at the 17th SAARC Summit said: "if not all of us then some of us we will move ahead". He said if the South Asian road transport agreement was not joined, they will proceed without them. They moved away, taking regionalism away. For regional solidarity it was important that Pakistan be a part of it. South Asians cannot be called "Brothers and Sisters" just by their similar history but this is a concept meant for economic growth as well as social justice. We need to discuss in depth sociologists, economist, anthropologists, activists and everyone else needs to mull over it. The scholars need to join activists like us to give South Asia the depth that it requires if it is a matter of identity. Mr. Kanak asked, how do we get there? Not criticising any nation states, but what was the way ahead? Recommendations: 1. Visa regime must be abolished. 2. Reduce military budget and spend more on education. 3. Call the SAARC summit regularly and eliminate all the conﬂicts through negotiations.

6.10 Sexual Harassment against Women at Workplace

L to R: Ms. Shreen Abdul Saroor, Ms. Sheharbano Khan, Mr. Malik Arshad

A note of acknowledgement and a special thanks to the Embassy of Netherlands for sponsoring this session. Moderator: Sheharbano Khan (Writer and Journalist) Speakers: 1. Ms. Shahnaz Huda (Professor at Department of Law, Dhaka University)

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2. Ms. Hameeda Bano (Senior Police Official Peshawar) 3. Mr. Malik Arshad (President Lahore Bar Association) 4. Dr. Anoush Chaudhry (Senior Police Official Lahore) 5. Ms. Shreen Abdul Saroor (Co-founder of Mannar Women’s Development Federation (MWDF) and Women’s Action Network, Sri Lanka) Ms. Sheharbano Khan opened the discussion by highlighting the #MeToo Movement which has devastated the facade of society not just in Europe but also in several parts of the world.The session aimed to work towards new proposalswhile also allowing the speakers to draw upon each other’s ideas and efforts. Ms.Fareeda Shaheed started off with a quote of a very strong feminist lawyer in terms of the enjoyment of rights. She said there are three steps to it;the first step is to recognize that there is a problem, the second is that it has to be justiciable and the third step is the enjoyment of rights. She also recalled that the Government of Pakistan for the first time held a conference regarding sexual harassment in 1994. Ms. Fareeda Shaheed also shared how several women from different professions wanted her to raise the issue of sexual harassment as they faced it every day. She also highlighted how rights take decades to be able to get anywhere. Ms. Fareeda Shaheed also laid down the laws made regarding sexual harassment. She mentioned section 509 of the Pakistan Criminal Law Code and highlighted how not a single case has been prosecuted under this Code. Perhaps the most obvious reason for this is that women face the issue of sexual harassment in courts too as they do everywhere else. Secondly, arbitrary terminology has been used in the Code which makes things problematic. Next, she talked about the Protection against Harassment of Women at Workplace Act 2010 and shed some light on the fact that there are strong institutions with complete mechanism where people can approach them easily. However, there are no statistics as to how many women face domestic violence or sexual harassment. She also touched upon the Prevention of Electronic Crimes Act 2016 and how there are various options for people now. Ms. Fareeda Shaheed discussed a study that was carried out in Europe and mentioned that 50% of the women said that they have experienced sexual violence. A very small study was conducted in Karachi, which included 10 institutions in the private sectors and 10 in public sectors. She also stated that people were not admitting that they were a victim of sexual harassment nevertheless 96% said that they faced sexual harassment by their colleagues and others.7 Ms. Shaheed stated, as sexual harassment is a constant issue nobody speaks about it across the board. According to her, there is a cost to speaking out that is what keeps women silent. She also raised a question for the audience, “Does everyone remember what happened to Meesha Shafi when she raised her voice #MeToo and stood up to say that she has been harassed?” - To this she answered that everyone started accusing her and targeting her for raising her voice. Hence, many people stay silent. Ms. Fareeda Shaheed also gave an example of where the Protection against Harassment of Women at the Workplace Act 2010 was applied. In the case of Naveen Haider v Saher Ansaria woman registered a case in February 2016; however, the institution and the inquiry committee said that no harassment

7This research was carried out by AASHA (Alliance against Sexual Harassment).

105 had taken place. Later, she went to the ombudsperson and got it rectified. It took two years for her to get justice. Ms. Fareeda Shaheed also narrated how so many women who were interviewed in this small study said for instance, ‘My friend’s boss tried to grab her and when he realized that she was not ready to cooperate with him, he just fired her’. There are others who say, “Mostly guys in the senior management used to tease the girls all the time on the dress and pass remarks and we don’t say anything. Even when some of us complained it was treated as being arrogant or accusing or exploitative by the guilty party which is sadly as always accepted by the senior management rather than asked for details of what happened”. Ms. Shaheed also discussed the nature of the crime itself and emphasized on how it takes place in a private space and one does not have witnesses to come and narrate the incident. Hence, it ends up as your word against the aggressors’ word. According to her, one of the issues is that while the laws are good, we tend to follow a wrong direction. She related this situation with one of her examples. She stated that whenever we talk about war we look at the battlefields instead of businessmen who are making money out of this. Whereas in the case of sexual harassment we tend to focus on women and not men. She believes, if we want to go beyond justiciable justice and if we want to end sexual harassment for all, we have to change what it means to be a man in Pakistan. Ms. Fareeda Shaheed also highlighted some of the efforts made to prevent this issue. She talked about how they tried to put a helpline in Punjab where you could call and ask for help from female psychologists and psychiatrists. However, they had to stop the helpline as these women were being harassed too. She also talked about her being present in the IG’s Police Office with Asma Jahangir and how she was told that ‘You are talking about violence against women, I cannot even safeguard my female police officers’. Ms. Fareeda Shaheed also put forward some suggestions that there should be inquiry committees and a Code of Conduct in every institution. According to her, all these people working in institutions should have orientation of what sexual harassment means and how to overcome it. She also emphasized that the media should give awareness regarding this matter. She asked some vital questions: “Why do we have silence when we pass a law? Are we not proud of it?” Ms. Shreen Abdul Saroor joined in, appreciating Ms. Asma Jahangir for all her efforts and what she has done for humanity. She then emphasized on how significant the issue of sexual harassment is and talked about the commonality of sexual bribery in Sri Lanka. She went on to describe what sexual bribery is by telling how grave the matter is and how it involves a perpetrator who is in power with the resources and authority and the victim who is in need of that power and resources. Ms. Shreen also stated how 89,000 females and 60,000 men have disappeared due to the issue of sexual bribery. She shared to have come across a school where the teachers and principals were taking sexual bribery from students and their mothers. She also highlighted how one of the politicians recorded sexual bribery which later led to the suicide of a woman. Ms. Shreen emphasized on the Sri Lankan Penal Code which is full of flaws. She also raised the point of how the case of the principal and student was taken to the court in order to see what can be done. Sexual bribery was given the name of ‘molestation’ and the only punishment that the principal or the teachers would get was transferred from one institution to the other. Ms. Shreen discussed how Sri Lanka was reviewed by CEDAW in

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2016 and that she took 21 cases before the CEDAW committee to examine. In addition, Ms. Shreen explained how sextortion involves force and that it looks like there was consent because the victim was getting something in return. She shared that Sri Lanka is looking forward to amend the Bribery Act by incorporating sexual bribery in and by adding the term sexual gratification instead of gratification mentioned in section 6(1). She also discussed one of the challenges in the end is to get witness and victim protection because in cases of sexual bribery the person who gives bribery is also punished. Engaging into the conversation, Mr. Malik Arshad raised an important issue that as the exposure of women increases, the trend of sexual harassment increases alongside regardless of the advancements in law. He then moved on to recognize the global trend of ‘Me Too movement’ and how the laws all over the world as well as Pakistan are being implemented to some extent. He made reference to the Zainab rape case and mentioned how the rapist Imran will be hanged soon for his wrongdoing. He also mentioned how the Bar Association and the judicial system are present for the protection of society and the implementation of law. Mr.Malik Arshad also mentioned how women are encouraged to participate in every field and also stated how women take part in the Bar elections and feel safe and secure over there. Mr. Malik Arshad took into account the fact that in conservative societies, women empowerment is considered a privilege and not a right. He also named famous personalities like Asma Jahangir, Ms. Fatima Jinnah and Benazir Bhutto for reaching the top through hard work and struggle. He also recommended everyone to follow the footsteps of Asma Jahangir who has been an icon of strength for everyone. In an interactive session, a member from the audience questioned Mr. Malik that she has personally experienced sexual harassment at the Lahore High Court by one of the lawyers and wanted to know what measures are being taken for women lawyers. Mr. Malik answered that there are almost 4000 female members who are a part of the Bar association. This is the maximum number of female professionals who are a part of this Bar Association. He also highlighted the procedure: if someone puts an application regarding such an incident, the bar gives them a show cause notice and the membership is suspended and they cannot appear in the court of law. A committee of senior lawyers hears both the sides and the council takes notice of it and cancels the license. He assured her that female lawyers working in the Lahore Bar feel safe and secure. Mr. Farazspoke about the importance of sexual harassment against women at workplace. He believed that sexual harassment is getting common day by day and the sad reality is that there are several laws made in Pakistan but none of them are implemented. Mr. Faraz put forward a suggestion that media should play a pivotal role in giving awareness to the public about sexual harassment. Resolutions: 1. There should be stricter laws and those laws should be implemented. There is a need to provide witness protection, freedom of expression and that people should be educated about what sexual harassment is and how to prevent it. 2. There needs to be a change in the paradigm of masculinity through education.

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3. Mass media campaigns to publicize relevant laws are needed. There should be user- friendly guides to access. 4. There should be mandatory orientation courses on sexual harassment in public and private sectors. 5. There should be proper education of police on laws regarding women. 6. CEDAW General Recommendation 35 and Article 11 to include Sextortion and sexual bribery should be adopted. There should be local acts broadening the deﬁnition of ‘gratiﬁcation’ to ‘sextortion and sexual bribery’ and that there needs to be a clear punishment for it. 7. The government should establish a special investigation system that protects the identity and privacy of victims. 8. The government should activate whistle-blower protection for women who are victims of sextortion.

6.11 The need for FATA and PATA reforms, challenges to access to justice and implementation of new laws

L to R: Mr. Kamran Arif, Ms. Mariam Bibi, Mr. Sher Mohammad, Mr. Latif Afridi, Mr. Salman Afridi

Moderator: Kamran Arif (Council Member Human Rights Commission of Pakistan)

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Speakers: 1. Ms. Mariam Bibi (CEO Khwendo Kor) 2. Mr. Latif Afridi (Advocate Supreme Court Pakistan) 3. Mr. Sher Mohammad (Advocate Supreme Court Pakistan) 4. Mr. Salman Afridi (Advocate High Court Pakistan) 5. Mr. Ali Wazir (Parliamentarian, Pakistan) The session focused on the FATA and PATA region. The discussion engaged into the needs and challenges faced by the peoples living in the FATA and PATA regions and their struggle to have basic access to justice. Barrister Salman Afridi started off the dialogue by highlighting the fact that FATA has been discriminated against since independence. The Government of India Act 1935 separated FATA and Northern Areas from the rest of India and Pakistan and called these the special areas. In these special areas the judicial and legislative authorities were handed to the executive. Thereafter, they always had this approach of administering this area rather than governing it. Many discussions have taken place on including FATA at the time of Prime Minister Zulfiqar Ali Bhutto’s governance when reforms could not be made. Many reforms have been made over the years especially owing to 9/11 after which government reforms were extended to FATA. Recently, police jurisdiction has been extended to FATA but there is no local policy there so law and order cannot be ensured. FATA has been discriminated against by other states. Today about 10 million people are without a judiciary. Joining in, Mr. Latif Afridi emphasised that FATA though it did not exist legally or constitutionally, it still exists practically. When the 25th amendment took place and Articles 246 and 247 of the Constitution were repealed, the government thought that it was necessary to make new reforms and regulations. Neither is there a local body system nor their representation in the federal assembly. It was decided that after the elections of 2018, within one year 21 members will be elected from FATA, 16 for the general seats, 4-5 for women and 1 for the minorities. It was observed that the limitation has not been implemented by the election commission nor has any action been taken. The federal government has added an area of around 2700 km to the province and thrown it away like a burden. The provincial government has not even taken notice that more than 5 million people have been added to its jurisdiction. The federal and provincial government needs to take immediate action and not leave FATA to bureaucracy as that will only weaken the area further. Maryam Bibi shared, to understand FATA it is important to understand the regional context of Afghanistan and its impact on us and our surroundings. When one thinks of FATA, what comes to mind is militancy, terrorism, military operations and religious extremism. Even though construction of school and hospitals is undergoing in FATA, until women are not included in important or trivial matters, no progress or change can take place. Women in FATA are the most underrepresented, undermined and discriminated against. They suffer miserably due to loss of livelihood and education. FATA women rely on Benazir income support. Instead of creating amenity, hatred and blame shifting we need to create a win-win

109 situation for FATA collectively. Using power to bring everyone together and giving access of opportunity to people long overdue and a necessary step. Finally, Mr.Sher Mohammad Khan while talking about PATA shared that there are 2 tribal areas in the constitution, one is FATA (federally administered tribal area) and the other is PATA (provincially administered tribal areas), both constituted under article 247 of the constitution, which is now abolished under the 25th amendment. No law in the country could be extended to these tribal areas without special notiﬁcation of the President of Pakistan. Armed with the consent of the governor or the prior approval of the President, it was agreed in the merger reform that until and unless certain laws and rules are extended to these areas, the custom ‘rivaj’ would prevail. When the FATA and PATA have been merged into provinces, the provincial and federal law should be extended to the tribal areas as well but this is not the case and custom still prevails.

Resolutions: 1. Local policy should be formulated to ensure law and order. 2. They should be given proper mechanisms to be able to represent themselves in the Federal Assembly. 3. Mechanisms should be made to ensure law is followed in all tribal areas, over and above the ‘Rivaj’ system.

6.12 Legislative Priorities for the New Parliament – Implementing Women Friendly Legislation – Pakistan

L to R: Dr. Shireen Mazari, Ms. Farwa Zafar, Ms. Anis Haroon, Ms. Khawar Mumtaz, Ms. Bushra Gohar

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Moderator: Ms. Anis Haroon (Former Chairperson National Commission on the Status of Women) Key Note: Minister Shireen Mazari (Minister of Human Rights of Pakistan) Speakers: 1. Ms. Fauzia Viqar (Chairperson, Punjab Council for the Status of Women) 2. Ms. Bushra Gohar (Former Parliamentarian, Pakistan) 3. Ms. Farwa Zafar (Rule of Law – Foreign and Commonwealth Office) 4. Dr. Parvaiz Hassan (Senior Partner, Hassan and Hassan) 5. Ms. Khawar Mumtaz (Chairperson National Commission on the Status of Women). Minister Shireen Mazari started the session by pointing out that Pakistan in 2017 was ranked as the 2nd last country for the global gender gap. Dr. Mazari shared that ever since she was given the charge of Human Rights Ministry, she has observed that there were problems not just where there is a gap and legislation is required but equally where legislation exists but issues are in implementation of the existing laws. Focusing on women friendly legislation, Dr. Mazari shared that in her view not only women specific legislation that has been designed, it is also legislation that included the protection of the rights of families, workers and children, as one cannot deal with women in isolation. So, at the end of the day when the need for legislation is being examined there is a need to take a more holistic approach. Additionally, there are also certain issues where legislation specific to women is important. When gender and women friendly legislation is to be considered, it has to be considered in a political dimension as well. For example in the field of health for the protection of women(breast cancer) there is a need to have legislation for educating women on simple things like how to get examined or how to prevent fatality in case they are diagnosed with it. These are simple issues that need to be addressed but such issues are not debated or discussed much. She further added that clear example could be taken from the issues of inheritance, where the legislation and the laws exist but are never implemented. Women do have the right to inheritance under the laws but social taboos and practices prevent women from claiming their rightful inheritance. Further there are many women who are not registered in the national database (who have been born at home) and consequently they are deprived of their inheritance rights. She stated some steps are being planned to incentivise families to register their daughters at birth. She states that once these babies are registered, NADRA would come every month to every village and collect the data from the BHU or the Union Council until a more effective method is derived. After those children are registered, their parents would be registered as well in the B-form. Dr. Mazari shared, as of three weeks ago, there has been an awareness campaign on television (PTV primarily because that has the widest reach in the country) and on the radio explaining to women about their rights of inheritance. She added as of last week, a list of the lawyers was prepared for every district who have volunteered to do pro-bono work for women in different districts in cases regarding inheritance.

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Dr. Mazari claimed to have a complete list of lawyers in Punjab and was in the process of collecting similar lists for other provinces. She also shared that the Health Ministry has started a helpline and awareness television campaigns giving out the helpline number. Women are being asked to call the helpline, if they have inheritance issues and then the helpline would suggest an appropriate lawyer, who will provide free legal aid. Dr. Mazari highlighted another issue where the law exists but is not being enforced. These are the laws to protect women from harassment (including harassment at the work place). She shared there is an ombudsperson to deal with harassment at the work place but it still remains restricted to the urban areas and to the larger cities. Most of the problems confronting women are in the rural areas where they have no information or means of seeking assistance. Dr. Mazari shared her desire to focus on the outreach. The Parliament can make laws on the issues but no structure has been created for implementation of those laws. She added there is a plethora of legislations on every issue, including a little booklet of Human Rights laws in Pakistan. There are so many laws but only few of them are implemented. So instead of just making new legislation, she would rather be focusing on the implementation of the existing legislation. Major focus should be on raising awareness beyond the urban areas, beyond the federal and provincial capitals. Another important issue brought to light by Dr. Mazari was that there are some laws that have been passed but not adopted by any ministry. For such laws, she and her political party intend to take proper ownership. A current example of this is the Transgender Person Laws. Dr. Mazari shared that there has been a first consultation with the transgender group. Initial work has been done to provide separate wards in hospitals and allocated land for their burials. This is just one of the many laws which are being passed but remain neglected on the whole. Another issue raised was the sensitization ofthe law enforcement agencies, to know how to deal with women. One of the things we want to see is an increase of woman in the police force. We have some women police stations in some of the bigger cities, but beyond that there are no women police at all. There are multiple issues such as woman trafficking. Dr. Mazari explained that Pakistan has remained on the Tier 2 watch list of the State Department’s Trafficking of Persons report forthree consecutive years now. Not much action has been taken. Legislation needs to be drafted to move the government. The cabinet has also just given approval for the bill of disabilities to be finalized and put before the parliament. Dr. Mazari thinks this will go a long way to help women and men but specifically women as they will find it easier to explore the job market. Their dependency on aid and assistance will be decreased. Dr. Mazari added that one of the things we have not yet provided for even though it happens globally is the access for people with different abilities to public places. Government and private member bills get passed every day, but forgotten once laws are made no efforts are made to enforce them. The need is to enforce the laws. One of the positive things that happened in the last elections was the new obligation, where the women voter turnout was less than 10% it was to be declared null and void, was implemented. Parties that did not give 5% of tickets to women were penalized. So the enforcement of the laws would encourage the right trends in the society, where people will be compelled to give women the due rights, as required by the state.

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Dr. Mazari added that, in her experience one of the major problems is the general approach to human rights in Pakistan. It does not begin at the state level, it really begins with the family and society. Education for the younger generations should be as important as creating and enforcing laws. At the end of the day, there has to be an acceptance of women being equal partners in society and in the state. With women being given equal representation has to come through equal acceptance. Otherwise one can hammer about it on the ground but will continue to see abuses and discrimination. Ms. Anis Haroon commented by expressing why the implementation of laws did not take place. She regarded it as a direct correlation with the criminal justice system, which needs to be reformed. There is a need for reforms in police and in the lower courts. The longer time it takes the longer human rights and justice would be denied. Also, the priority setting and political will is very important in implementing the law. The state has to declare that all crimes against women are crimes against the state. That is a very important narrative, which the state must adopt. Ms. Farwa Zafar’s focus was on the justice system and the law enforcement agencies. There is a need to discuss the process of law making. When a law is developed as a flawed legislation, it becomes even more difficult to implement it in the right way. Ms. Zafar insisted on the need to look at the context of laws as that is from where gender sensitive policy can be adopted and can positively affect the legislative process. She emphasized that the law enforcement agencies should be trained as many laws are passed but stakeholders are not aware of them. More women police officers need to be engaged and trained in cases of violence against women who should be sensitized along with their male counterparts. Another important element is need for a mechanism to monitor past legislation, to track and measure its progress. This helps with accountability, which will lead to better implementation. Furthermore, coordination is required. Unless there is coordination among the police, prosecutors, lawyers etc. we won’t be able to successfully implement the legislation. We also need to establish institutions. For example, for gender- based violence we need to establish gender-based violence courts at the magistrate, district level. We need to establish child courts at the magistrate and district levels. This framework will provide better access to justice for a vulnerable group through implementation. Legislation alone will not achieve implementation we need to be cognizant of these aspects if we want to succeed. In addition, Ms. Farwa highlighted some of the laws that should be focused on. Basically, when legislation is passed it is not holistic or comprehensive. There are loopholes that need to be reviewed and monitored so that the legislation is implemented effectively. She also mentioned the need to improve forensic investigation and facilities to be able to clamp down on gender based violence. Ms. Fauzia Viqar stated that there is an abundance of legislation in Pakistan but the implementation has remained an issue and laws are deficient. The new government has championed reform and women development on its agenda. Proposals for legislative and administrative reforms have been invited. She further shared that Punjab has taken this opportunity and has engaged in around a set of 15 legislations, which either need amendments and or need to be enacted. Fortunately, the federal government is also working on the reforms for criminal justice as well as other laws in which inheritance is being led by the Ministry of Human Rights. There are other laws which require procedural changes and not perhaps substantive changes. Punjab brought about amendments in the 113 law of inheritance in 2012 and 2015, by virtue of which the procedure tightened, so that the constitutional right of women to inheritance is guaranteed. Women used to gift away property before division under duress or shock of a parent passing away. Now it is not possible to gift away the inheritance until and unless it has been divided and transferred to a woman. So this simple law has increased women’s access to their inheritance rights, as is reflected in the number of divisions and transfers. Some laws need expansion in their definition. Like the Protection of Women from Harassment at the Workplace Act requires the definition of workplace to be expanded so that everyone who comes to the workplace is covered and most importantly a student teacher relationship is covered in universities. Some issues that have plagued women and men both include intimidation of victims and witnesses in criminal cases. In Lahore, there is a gender-based violence court which helps because the environment in the court is such that the victim is not bullied by the counsel of the accused. Such gender-based violence courts would be helpful across the country. It would also be helpful if family courts are separated physically from criminal courts because it is very difficult for women who are coming for the custody of their children to be at the same premises as convicted criminals. Another law where changes have been proposed by the Punjab Commission on the Status of Women includes amendment in the rape law to protect victims. Some procedures like the 2- finger virginity test does not happen anymore. The National Commission on the Status of Women proposes that the Punjab Local Government Act should state that 33% women must be included in all tiers of the government. Also women who are brought on a reserve seat should be elected and not selected. Other laws include reform of the Christian family laws including registration of Christian marriages and divorce, expanding the grounds for divorce and inheritance for Christian women (which is only governed through a court judgement at the moment and not through law). Ms. Bushra Gohar shared her experience of when she was in the Parliament, there were quite a few issues that were taken up in a woman’s caucus. Need for legislation was constantly being reviewed aiming to bring some kind of a positive change in the lives of women, children or minorities. She felt that since 2013 rights have been put on the backburner. The law and its institutional mechanism need to be reviewed. The National Commission on the Status of Women can be involved but Ms. Gohar insisted that a parliamentary committee should be made to review all the laws concerning women’s rights. She further recommended a constitutional amendment in the 18thAmendment for education and health to be a fundamental right. Ms. Gohar claimed it is time to have direct elections for women on reserved seats as it would strengthen women to come through elections on reserved seats. In addition to this, it was highlighted that there are many government commissions (like the planning commission or FBR) where no women are seen as chairs or as members. We need to ensure that there is a certain percentage of women represented on these commissions as well. She stated that the plan to mainstream transgender people was completely misconceived and regressive. The plan promotes separation rather than integration and even their graveyards are being separated. It was suggested in the University of Peshawar that women should have a separate graveyard and our Vice Chancellor of the time said at least let us live together after death. She stated: “We are constantly excluding and segregating them whereas we need to change the mindsets”. Additionally, there is a need to analyse the

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impact of laws on women such as the finance bill, terrorism laws and have a holistic approach rather than just focusing on bills that use the word women. Faulty laws are made because of a weak parliamentary procedure. The parliamentary debates should be made public so that the parliamentarians ensure a civilized debate. Dr. Mazari countered that the transgender people have demanded a separate burial ground as they were not allowed to use the others. So while we do need to change the mind-sets, it was required that we concede to their demands until these mind-sets are educated and developed for the better. Dr. Mazari also clarified Christian laws- ‘While we do have a Hindu marriage and divorce act, the problem with the Christians laws was that they could not develop a consensus amongst themselves (Protestants and Catholics), especially on the divorce issue. They have formed a census now and we will move towards implanting it, so the delay came from the Christian community itself and not from the state.”She added, “Unlike in Europe where their inheritance, marriage, divorce and all other laws are the same for everyone. We in Pakistan and some other societies allow different faiths to have their personal laws. It may be a good thing or a bad thing, but we do allow it.” Ms. Anis Haroon contributed by clarifying to Ms. Gohar that the National Commission for Human Rights has noted for the first time health as a human right. It is a study which sees health with the social determinants of health. Ms. Khawar Mumtaz joined in by stating that the National Commission on the Status of Women and Punjab Commission has already reviewed laws that impact women to identify gaps and recommendations for the Law and Justice committee (which is looking at which laws to take forward). She brought back the debate to focus on the subject of legislative priorities and to point to something that everybody has acknowledged: the existence of a large number of laws. Flawed as they maybe, at least they recognize problems and enact a solution. Some are good but are not enacted properly or fully. For that reason, Ms. Mumtaz highlighted what the parliamentary priority should be. In her view it should be on facilitating this implementation and taking on that responsibility of going beyond just making the law, to actual oversight of the law implementation. Ultimately, the responsibility of implementing is with the government. When we look at the legislation, it’s the implementation mechanisms that need to be specified within the law where ever it is possible. This way the mechanisms will be in place as soon as the law is made, there is money allocated for the implementation of the law and there is a structure. Very often, we find that the laws are enacted but the rules are not made for years, with a result that the law becomes ineffective. Awareness is also a big issue and Ms. Mumtaz thought it to be also a part of the Parliamentarians’ responsibility. In order to track the progress of their constituencies as to how much awareness exists and how much the institutions that are supposed to be implementing are actually working or not. Ms. Khawar shared that there are three kinds of things that a legislature does, make laws, provides for an implementation mechanism and then to assess whether the law is being implemented through accountability and a reporting system from institutions responsible for the delivery.

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Resolutions: 1. Parliamentarians should focus more on implementation rather than just enacting new legislation. Some laws are not being implemented as their rules have not been enabled or no structure has been established. Other laws are deﬁcient and defective and require reforms and implementation. 2. The provinces should act more actively to adopt and implement the federally passed laws. 3. Once a law is passed, its progress and eﬀectiveness should be tracked down. Accountability to assure implementation. 4. Reform the existing laws more frequently.

6.13 The Third Gender and Challenges to Mainstreaming in the Justice System & Law Enforcement Agencies

L to R: Sarah Sohail, Jannat Ali, Mehlab Jameel, Mr. Aun Shahid A note of acknowledgement and a special thanks to the Embassy of Netherlands for sponsoring this session. Moderator: Ali Dayan Hasan(Senior Policy Adviser to UNDP Pakistan and author of UNDP’s forthcoming report on political mapping of Pakistan’s transgender population, and former Pakistan Director for Human Rights Watch) Speakers: 1. Jannat Ali (Transgender Activist) 2. Mehlab Jameel (Grassroots Community Organizer and Researcher) 3. Sarah Sohail (Feminist Activist and Lawyer) 4. Mr. Aun Shahid (Activist and Teacher)

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Mr. Ali Dayan Hasan discussed the historic nature of the Transgender Protection Act passed in May 2018. He believed that it highlighted the rights and plights of the transgender community. He observed how it is often said that in Pakistan all kinds of minority groups, be it religious or gender, have their rights trampled. But here it was seen that our state is taking a new and contrasting route where it recognizes that the transgender community have similar rights to those of men and women and it has formalized those rights. Discussing the Act, Mehlab Jameel expressed that it is an affirmation of the fundamental rights of the transgender community. She believed that rights have been denied to the community for a long time. According to her, this kind of legal recognition makes Pakistan one of the most progressive countries in the world when it comes to transgender rights. She believed this because the Act relies on identification of the transgender community based on their own self-perceived identities. It was not some random bureaucrat telling them that this was your gender. It was us telling the state that this is what our gender is and it needs to be accepted in that way. Mehlab Jameel opined that that kind of radical self- determination is the essence of this Act. Sharing that she had personally worked on the Act, Jameel opined that the recognition that it offers is being offered to all transgender people across the gender spectrum; it is not just a very specific “Khakassia” but transgender men and women who identify themselves in that way. Jameel analysed how the Act addresses very fundamental rights that have already been affirmed in the Constitution of Pakistan but were not accessible because of the marginalization of the transgender community. She stated that the Act affirms the right to inheritance, property and public office. Discussing the role of the Islamic Ideology Council (IIC) and opinions of other religious institutions, Jannat Ali stated that their image that had been formed in the minds of different segments of society (including those related to religion) was a challenge. She believed that religious institutions have different interpretations of the transgender community. Some consider them really good people whereas some cannot define them in very good terms, although it can have a great impact if these institutions also advocate their movement. Jannat Ali shared that their meeting with IIC was a great challenge and a lot of organizations even backed out from supporting them because there was a risk. At that time, the community itself sat in front of IIC and answered their questions and learnt that there was a need to take both educated and experienced people along with them. According to Jameel, when it came to taking religious scholars on board, they learnt from their past experiences, for instance, they learned from the controversy that the Women Protection Bill was surrounded with while it was being worked on. She claimed they made sure from the very beginning that such a situation does not arise again so when they sat down with IIC, they talked about the dignity that Islam provides to all genders backed up with plenty of references in Islamic religion that talk about transgender rights. Ali stated that her peers made great sacrifices for their rights. In 2009,they were allowed to have their national identity cards made. On the notion of inclusivity, Jameel opined that there was a need to have an intersectional approach while they were working on the bill and that, according to her, was their main source of strength. From the beginning, Jameel claimed their approach was not selective. They wanted all kinds of people to work in the

117 formation of the clauses of the bill especially those who were being affected at the grass root levels. Jannat Ali shared that even within the transgender community there is a hierarchy and diversity at different levels. Ali explained how they also gave references from Quran of 42: 49-50 where it is clearly mentioned that Allah has created men and women and both of them together in one body as well. Ali explained how strong their research was. They were asked for proof of self-identification to which they answered that they are also doubtful of that specific person’s gender identification and they need to prove that to us. Ali believed that these kinds of counter questions help them claim their space. Jannat Ali explained how they used Islamic references of modesty to refute them and other strong arguments backed up by research and infinite struggle. Another development was the recent step of making an exclusive graveyard for transgender people, which is being referred to as a progressive step on part of the state but Jannat believed that this further excluded them. She stated that while being alive, they were excluded from places like mosques, universities, etc. and even after death that exclusion continues. Ali lauded the Conference as a good platform to raise their voices against such so-called progressive steps as well because even these seemingly trivial matters were very impactful. She claimed that many departments in our society, for example, NADRA or clinical psychologists are not yet sensitized to transgender people. Sarah Sohail discussed the session’s topic in light of the law and the community’s associated struggle. She claimed that she was associated to the transgender community as well as the feminist collective so when this issue was brought forward, a very strong alliance was formed of the community and the collective because the feminist vision is this that we need to make a diverse community where all our minorities should be able to live peacefully. With this in mind, Sohail explained how they started working on the Bill and realized what people go through when their gender is challenged or ridiculed. Sohail opined that gender was something, which could not be concealed; we wear it every day and every aspect of ourselves speaks of our gender. She explained that in our subcontinent, there is a lot of gender fluidity; males, females and transgender persons. She believed that this difference has been there in the past as well which has been a very acceptable difference. In that context, it was questioned as to why after the creation of Pakistan, this difference was dealt with so violently. With this question in our mind, Sohail worked on this law and tried to come up with an inclusive law, which can accommodate all kinds of gender differences. She stated that we know that the acceptance for this gender fluidity is present within all of us because it is not fixed to be a man or a woman. At times our society defines being men and women as two extremes and despite that, all of us lie somewhere in the middle of the spectrum but those (transgender people) who are explicitly part of that middle position are being ridiculed to the extent that they have to beg on streets or are disowned by their families. She believed there was a need to question this because we, irrespective of our gender, are productive citizens and deserve to spend our lives in a free and respectable manner. The question here, according to her, is that then why are we excluded? According to Sohail, the transgender community knew that they were entitled to dignity and rights so then their job was to enlighten the society about this fact. According to her, this Act was one part of the job so that legally their idea was accepted because legal work in this

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context was very important. She stated that there was a need to cultivate acceptance of transgender people in Pakistani society. Mehlaab Jameel believed that the transgender rights movement in Pakistan is actually very strong when it comes to not just South Asia but generally the global context. That, according to her, has actually given a lot of people like herself the power and strength to actually come forward and claim their space. She reiterated that it was the support of the community that actually made the biggest difference. Mr. Aun Shahid added his experience of a transgender man in Pakistani society. According to him, choices are made regardless of genders; it is something within ones subconscious. Mr. Shahid explained how from early childhood, when he started making choices, his family recognized them as different but then there were stories in the media related to gender transition. When he went to his family with those stories, they refuted him by saying that those people are intersex with biological problems. Mr. Shahid believed that transgender women still have places to go to and some idea of where to seek help from but he was helpless. He suppressed his identity and lived a painful life until he went abroad where he was so depressed that he finally decided to come out. Even in Pakistan, Mr. Shahid narrates how he was taken to different psychologists but here it is considered a taboo so he could not go and speak about his particular sexual orientation. Mr. Shahid recalled how he finally went to a psychologist and mentioned whatever he felt while praying for the psychologist to tell him that he was a transgender because he felt it was better for him than to live with the identity of a female. Today, Mr. Shahid claimed to identify as a transgender man but still when he has to tick the boxes by choosing between a male and a female, he wished to have the power to tick the box representing a male. Mr. Shahid explained how he did not even have the power to change his identity card and even if he does that, all his educational certificates would be considered null and void and he felt his hard work would go to waste because then he would have to go to every department and get it changed which is a struggle in itself. Talking about the present, Mr. Shahid expressed happiness on having friends who were trans-men or men because now he could share his experiences with them. He shared how he was always surrounded by female friends and even went to an all-girls college and was stressed out when he found out what he had to wear because he was not used to that kind of dressing so he was granted special permission to dress up in a way that he wished. On the issue of violence towards the transgender community, Jannat Ali talked about verbal abuse and commented that almost all transgender people face verbal abuse. According to her, sometime, the abuse was within their families. For example, she shared how there was this very young transgender person who was chained and starved for one week in order to change her and one was hanged. The problem, she claimed, was that everyone thinks about what people or the society would say. Jannat Ali stated that whereas our religion teaches us to support truth and live a truthful life so when we decide to live with our truths, we are refrained from doing that. Ali claimed how the transgender community was beaten, tormented and even subjected to collective rape and when the respective departments are approached to voice concern against it; their representatives again rape members of this community again.

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According to Jameel, gender itself is a violent structure that is imposed on the society and when you are unable to identify with a particular gender, then you are being pushed into a violent system. According to her, when it comes to different kinds of violence, the first one starts from the family and then it spills out. She claimed to still struggle with her family as they do not accept her. Jameel assessed how it then goes onto different institutions, whether it is hospital or any sort of basic right that you are trying to access. She shared how she had been beaten and assaulted by her own class mates. If she went to a hospital, the guard till the doctor would stare at her in a way to make her feel subhuman. She commented that even if the state gives them all the rights, it really does not matter until people change their attitudes. Jameel claimed to have been petrified when attending hospitals and on one occasion a policeman had tried to rape her. She shared how because of this kind of insecurity, she has to carry something in her bag that she can use as a weapon because she does not feel safe anywhere. She believed that when talking about violence, the state comes much later but the way gender non-conformity and femininity is brutally punished whether being performed by females or trans-women is horrible. She opined that it requires at a very fundamental level the rethinking of the way we understand gender and the way we impose that kind of expectation on others. She questioned as to why it has to be so violent all the time. Jameel shared how recently a young transgender was burnt alive and another one was cut into pieces. She expressed fear for her life and how her community asks for protection to actually be able to live and they still do not have that kind of protection at many places. For instance, Jameel shared how Pakistan’s Penal Code does not recognize the rape of transgender people; it is still called an unnatural offence and has different punishments. Rape is something that can only happen to a woman under Pakistani law. Jameel opined that her community was literally absent from all discourses whether legal, social, etc. Connecting the victory of the Act to problems faced by the community, Ms. Ali shared how the Act was the fruit of all the stories that they shared about being subjected to violence, for instance they talked about Alisha who was shot and kept outside the bathroom in the hospital because she was not given any place in the male or female wards and she eventually died. By telling such stories, she claimed her community made this law into a reality. Ms. Ali shared that the community was not asking for sympathy but sharing their experiences so responsibility arises among everybody else to implement the Act. During the interactive session between the panellists and the audience, a number of pertinent issues were raised and addressed. One question was regarding the clause in the Act about psychological counselling and the problem of implementing it. In addressing this question, Shahid shared how it is difficult to find trans-friendly psychologists and doctors in Pakistan. One has to go through a lot of struggle to find someone and that also comes finally from someone who has been through the process. Mr. Shahid shared how he went to many psychologists and finally he went to one who had some idea (not a very clear one though) while all others would just emotionally and psychologically abuse him by saying it on his face that they could not treat him because it was just the way he was thinking. Mehlaab Jameel believed that when it comes to gender minorities, psychologists are not trained and are extremely transphobic. There are still shock treatments being given to transgender people and they are chained in asylums as a way to “cure” them. This is actually

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happening in institutions in Karachi and Jameel claimed to personally know people who went through this. She shared how when they were adding this clause to the Act, they were very nervous because medical and psychological institutions are largely abusive and discriminatory towards transgender people so there is a pressing need to improve and train medical staff. Jannat Ali, on the issue, opined that, the bill for mental health should be reinforced for all genders. According to her, a lot of bad words are also used which also need to be sensitized. When they are working in a community-based organization, they require sensitized community counsellors who know the dynamics and language of the community. She gave the example of her “khwajasara” community which has its own language called “pharsi” which is not Persian and is understood by all the members. Counsellors should be sensitized and gender friendly. According to Sarah Sohail, it was not sick to consider yourself transgender. She claimed Pakistan’s mental health community had not gotten beyond that so if one sought mental health professionals they treated it asa disease and they would ask one to fight it. She told the audience how they still have conversion therapies and all those things that are practiced. She believed that work really needs to be done with the mental health community to bring them out of those old established notions. The next question concerned how evaluation was to be done regarding the achievement of human rights protection whether it is in the transgender context or any other. Sohail opined that one of the things that needs to happen is that what they try to represent is a grass roots movement and what they try to do is strategically use the law and use different things like this forum to spread awareness about transphobia or homophobia that all of them are experiencing. She stated that for evaluating what would work is to really engage the transgender community rather than using other mechanisms in which the community feel excluded. Mehlab Jameel shared how one thing they were pushing for now is some kind of monitoring body at the state level like a national commission to implement the Act. She felt that sadlythe civil society in Pakistan is very exclusionary so the community is not engaged on a grass root level. She commented how the United Nations also had a great role in the passing of this bill so that kind of multi-forum approach is also very important because the feedback given there enabled them to pass this law here. A question about the difference between sex and gender was raised. Jannat Ali addressed it by stating that sex is one’s biological make up whereas gender is one’s self-perceived and preferred identification. Ali stressed how important it was too understand these terminologies and use them properly. She gave the example of how the media uses the word “shemale” to refer to trans-women which means completely different then what it was intended to mean. According to Ali, the correct use of words plays a major role in sensitization. Sarah Sohail added to this by commenting that in both, gender and sex, there is diversity. She opined that there are many gender and sexual expressions and they are all part of our lives. Mr. Kanak Mani Dixit stated that it was very difficult for transgender persons to come out in front of their family and friends and they do that despite knowing they will be ostracized.

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Resolutions: 1. The adoption of the Transgender Protection Act 2018 is a laudable and historic step but laws are only as good as their implementation. The government must, therefore, ensure the implementation of the Act in letter and spirit. To that end, it is recommended that a monitoring body for the implementation of current protection laws for the trans-community be established comprising relevant government authorities and transgender community representatives. Prejudice against transgender persons and violence and mistreatment at the hands of the law enforcement agencies - particularly police - remain endemic. Gender sensitization or training of the police, therefore, is an urgent necessity. 2. In addition to abuse at the hands of the law enforcement agencies, transgender persons face high levels of familial and societal prejudice, abuse, discrimination and violence. Broad-based measures must be taken by government, media, civil society, essential service providers and the education sector to increase awareness about transgender persons and their rights across society and to sensitize society to the inherent dignity of transgender persons. 3. There is a tremendous scarcity of mental health services and support for transgender persons. Proactive measures should be taken to: a. Raise awareness of and train mental health professionals on transgender issues. b. Ensure state provided or public-private partnership initiatives for increasing access of transgender persons to mental health services.

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Conclus ion

L to R: Ms. Shireen Mazari (Minister Human Rights, Pakistan); Mr. Bilawal Bhutto Zardari (Chairperson Pakistan People’s Party and Parliamentarian); Mr. Ayaz Sadiq (Former Speaker National Assembly Pakistan); Mr. Afrasiab Khattak (Former Senator, Pakistan)

Mr. Bilawal Bhutto Zardari addresses the audience during the Closing Ceremony 123

L to R: Ms. Munizae Jahangir,Ms. Shireen Mazari, Mr. Bilawal Bhutto Zardari, Mr. Ayaz Sadiq

The First Asma Jahangir Conference sessions brought forward many themes and intersecting challenges that can inform human rights based work in Pakistan. It also helped create a platform for the legal community to form consensus on critical issues, to learn about human rights issues and to network amongst lawyers from within Pakistan and across the world. Major highlights of the consultations included:

7.1. Judiciary and Rule of Law: Despite legislations and equality of rights there is evidence of diminishing spaces, political will and resources for sustaining an enabling environment for democracy and equality, alongside an alarming spike in violence against women, girls, non-Muslim Pakistanis, groups following minority Muslim sects, non-binary gender persons, human rights defenders, bonded labourers and other disenfranchised groups. This trend is fuelled by the deepening of intolerant and radicalised narratives led by non-state actors. For sustenance of democracy in Pakistan this means an urgent need for formation, declaration and implementation of mechanisms ensuring the separation of power, such as separation of politics from judiciary. This also means recognising that the Constitution and religion are two distinct streams, and that the more these two are intertwined, the more scope there is for various groups to grab power through propounding extremist views under the guise of religion.

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The sessions also agreed that while there must be due and diligent accountability measures in place for addressing issues of corruption and that there should be no room for impunity; however, there is no justiﬁcation for undermining democracy as a system on the pretext of a promoter of corruption. The sessions concluded that in order to achieve this crucial balance, it was key that all state institutes must act within the constitutional bounds to ensure independence of not just the judiciary but also other state institutions. And this means upholding and protecting the mandate of the judiciary from interference from other institutions. For the judiciary, the sessions maintained, it meant avoiding commenting over the political situation and politicians, and not meddling itself in the political blame games. Independence of judiciary, the sessions highlighted, depended on an unshakable resolve on the part of the judges and the bar to synergistically work together, and for the bar associations to act as watchdogs of the judiciary. For instance, in a full court hearing the contradictions regarding Article 184 (3) of the Constitution of Pakistan should be addressed. The parameter as to how this power may be exercised and whether it should or should not be vested in one person must be debated. Ideally, the sessions argued that a special bench should be constituted comprising of at least 3-5 members of the Supreme Court having the power to exercise Article 184 (3).

7.2. Gender Equality and Empowerment of Women: While the panellists highlighted Pakistan’s worrying statistics related to gender equality and women’s empowerment as compared to other countries in South Asia, there were specific sessions and suggestions to improve women’s rights in various fields. There was a unanimous call for effective implementation of a number of pro-women laws promulgated in the past decade. A set of affirmative actions, (given in detail in the main content), of the report were argued in favour for achieving Pakistan’s own commitments for the empowerment of women and gender equality in addition to meeting its international obligations under CEDAW. Concerns were raised for the safety and security of and accountability of government mechanisms with regard to women in professions such as media and the legal profession. This concern also resonated with calls for further inclusion and boosting of women’s numbers in the police service, the bar councils, the criminal justice system and the judiciary. On a social level, there was a call for the state to undertake stringent steps for eliminating anti-women harmful cultural practices, addressing issues of sexual harassment both in private and public domains along with inclusion of women in policy making, peace negotiations and resource allocations.

7.3. Freedom of Expression and Shrinking Spaces for Dissent: The deliberants expressed their concerns at what they described as shrinking spaces for free thinking, open ended discourse and the right to dissent. They suggested that in order to strengthen diversity and intellectual debate at each level of Pakistan’s social and academic dimensions, it was important to undertake encompassing systemic and curriculum reforms

125 for addressing any instances of institutionalised discrimination and promotion of critical thinking. The discussants called for voices of dissent to be listened to rather than being silenced, since dissent was not to be misinterpreted as ‘treason.’ The sessions called for artistic freedom to be supported through legislation, policies and other means necessary. The panellists argued that this also means recognising the presence of immense intellectual reservoir, diversity and excellence within Pakistan and amongst people of Pakistan, and that this diversity must be promoted rather than clamped down. On the other hand, it was argued that that also meant protection of creative expression whether in literature, visual or performing arts or in journalism from state heavy handedness. A specific call was made for unbanning of student unions, which was highlighted as a legal, human, political and social issue. On the part of human rights defenders, it was recommended that there was never a greater need for solidarity and shared platforms for a deeper cohesion and a collective voice for not just their own safety and work but for maintaining the tradition of free thinking which is an indicator of true democracy. The session on extrajudicial killings and enforced disappearances resoundingly concluded with a call for Pakistan to criminalize enforced disappearances through legislation and to investigate and prosecute those who have been identified as responsible for enforced disappearances. The session noted that the Senate had passed a Private Member’s Bill to end torture in accordance with international standards and the panellists recommended that the government should adopt that bill as law. Finally, the Conference with the span of its sessions and deliberations offered a dynamic platform for a timely and much needed discussion and sharing of expertise, experiences and views to propose recommendations and observations and to also leave key questions and points to ponder in its follow up. For example, despite a spirited discussion on the issue of death penalty; the conference agreed that this grave topic needs to be debated further in a follow up to this conference. The house was clearly divided on whether death penalty should be abolished or not. In that spirit, this conference should be viewed as the first critical step of its kind upon a long and uneasy road towards a shared vision of strengthening democracy, rule of law, human rights and sustainable development in Pakistan. And its value addition may only be fully realized if there is continuity of discourse and there is a platform available for the legal community, policymakers, social activists, academia and others to debate these issues and form some consensus. This is particularly significant given the current political circumstances of Pakistan including a fledgling democracy, an extractive economy, rising extremism and violence and the shrinking of spaces for dissent. We hope that this publication will have some impact on those who are able to influence policy and reforms in Pakistan, and that the suggestions and resolutions of the conference will be taken by them as a consensus of a large number of the legal community as well as social activists.

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Participants during the Asma Jahangir Conference

Participants attending Asma Jahangir Conference

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2 Legal Team - A GHS L egal Aid Cell 8

Top L to R: Ms. Muntaha Tariq, Ms. Noreen Nazir, Ms. Sadaf Khatoon, Ms. Fatima Mehmo od, Ms. Beenish Zia, Mr. Hamid Azim Leghari, Mr. Mohsin Ali Sitting L to R : Mr. Mian Liaq at Ali , Ms. Hifza Aziz, Ms. Alia Malik, Mr. Qamar Hanif Ramay, Mr. Shabbir Hussain