Five legal milestones from 2015 that Pakistan should take pride in

With the Pakistan Protection Act, cybercrime bills and the 21^st Amendment, it’s been a tough year for human rights. Yet our courts have been actively making progressive human rights decisions which require a more in depth consideration. 

Here are five cases which represent good law:

1) Mumtaz Qadri versus The State
Judgment by Asif Saeed Khan Khosa
Supreme Court

The Supreme Court’s judgment in Mumtaz Qadri’s case held that statements made by Punjab Governor Salman Taseer, though unsubstantiated, were criticisms of the blasphemy law, which is not blasphemy itself. Taseer had made allusions to it being a “Black Law” amended by an unrepresentative military dictator that had become vehicle of oppression for minorities.

Presenting a paradox wrapped in an enigma, the court posited that Qadri is guilty of the very offence he accuses Taseer of. If criticism of blasphemy law (introduced into law as a section of colonial era legislation and not divine sanction) were blasphemy, then Qadri too has blasphemed as he criticised blasphemy law – which in his indirect opinion does not adequately penalise critiques against it. The court supported criticism of laws with a view towards its evolution, and pointed to amendments in Zina law that retained the offence, but codified procedural safeguards for women accused of Zina.

The court also rejected Qadri’s argument that Taseer “gravely and suddenly provoked” him with words right before he shot him. The court interpreted Section 121 of the Pakistan Penal Code (PPC) to find that proving this defence was Qadri’s onus which he had not satisfied. Perhaps, here the court could have added some constitutional safeguards for defence by saying that once (Qadri) has shown “existence of circumstances” that give rise to the defence of loss of self-control under provocation, the prosecution must disprove it beyond a reasonable doubt – an easy ask for the state in this case.

In addition, Qadri argued that he was justified in killing Taseer under PPC Section 79. The court refuted this by explaining the two tiered section – that Qadri had not cited any law that justified his acts, nor did he show any mistaken fact that justified the killing under law. In other words, even if Qadri mistakenly believed that Taseer had blasphemed (which he had not), he was not justified in law to kill him. The court emphasised, in light of defence’s religious arguments, that killings based on “unverified and unsubstantiated” statements are unlawful. What they leave unanswered, perhaps prudently, is what if such statements are verified and substantiated – but later, they are clear that if Qadri suspected Taseer had committed blasphemy he should have followed legal course.

There is much to discuss in this vibrant and upbeat decision with a ring of righteousness, desire for reform, and a disapproval of the discriminatory application of blasphemy law running through it. While one should disagree on principle against the death penalty in Pakistan and advocate for its abolition, and hope for forgiveness and pardon for even Qadri, one can appreciate the court’s strong message against blasphemy vigilantism and for semblance of rule of law:

“If the asserted religious motivation of [Qadri] for the murder committed by him by taking the law in his own hands is to be accepted as a valid mitigating circumstance in this case then a door shall become open for religious vigilantism which may deal a mortal blow to the rule of law in this country where divergent religious interpretations abound and tolerance stands depleted to an alarming level.”

2) Asma Javaid versus The Government of Punjab
Judgement by Ayesha A Malik
Lahore High Court

In 2014, the Pakistan Medical and Dental Council (PMDC) secretly decided to end open merit for entrants to their colleges and to impose a 50-50 quota for men and women. They claimed that even though there are more women admitted to colleges because they perform better on entrance exams (62 per cent in 2011-12 and 68 per cent in 2014), their numbers are fewer than men in the field as many do not go onto practice and specialise. To support their decision, the PMDC cited a research done three years ago by Ms Shaista Faisal that found fewer female than male doctors and dentists went onwards for training, research and specialisation. Ms Faisal concluded that measures were needed that would allow women to stay in the professions and go on to specialised fields and acquire leadership positions.

The court ruled against the PMDC stating that the 50-50 quota violated Article 25 banning discrimination on the basis of gender, extrapolating that Article 25(3), however, does not prevent the state from taking affirmative action to protect women and children – by perhaps increasing women’s representation in fields where they are invisible or minimally represented. This in turn means that minimum quotas for women are okay as a protective measure and to enhance women’s participation, but not maximum.

In the court’s emphatic and forthright judgement that sets fortified precedent for women’s constitutional rights, the court dismisses all of PMDC’s bogus arguments supporting 50 per cent maximum quota for women. The entirely male PMDC board’s half-half quota was unscientific and did not guarantee that more women will progress in medical dental careers, that they cited to a study by a female as support for their position, but did not in fact take pains to implement any constructive measures she recommended to encourage more women to practice and specialise, and that they decided this in February and disclosed it in September just days before the entrance exam, unsettling expectations of female candidates.

Unequivocally, the court was in no mood to dismiss true merit – in other words we can’t waste merit by shutting out potentially smart doctors, and open doors to substandard ones who may never have made it into medical/dental school but for a discriminatory quota. Of course if one wants to debate entrance exams as unfair criteria for medical school entry and modify the nature of the test that would be another debate for another day in court.

Judge Ayesha A Malik makes several strides for women in public life, and if law can mould attitudes, this decision may pave the way for society to stop blaming women for not joining professions but instead incentivise them to work, and eliminate social hurdles that prevent them from doing so. Quotable quote:

“[I]t is alarming that merit has been wasted and compromised, which ultimately means that the quality of doctors in the medical and dental profession has also been compromised. This affects the public at large. Furthermore it goes against the very spirit and purpose of the mandate of the regulator PMDC whose job is to ensure optimum results from medical and dental colleges as well as the medical profession. In the very least they should have conducted a study to ascertain the problems and their reasons and then worked on solutions and improvements.”

3) Zubair Ahmed Khaskheli versus the Federation of Pakistan
Judgement by Shaukat Ali Memon
Sindh High Court

In a progressive, though general, decision the Sindh High Court emphasised the importance of a holistic education for students at primary and secondary level that incorporates fundamental and human rights as enshrined in Chapter 1 of the Pakistan Constitution as a compulsory subject. Of course, the real onus lies with the government, in particular, the Department of Education, that will need to enhance the syllabus in line with the court’s ruling.

In a short judgement, the court discusses interconnected constitutional provisions. These include: Article 25A – that the state must guarantee free and compulsory education to all children between the ages of five and 16; Article 37 – the state must promote the educational and economic interests of backward classes, remove illiteracy, and enable people through education and other means to fully participate in national activities and employment; and Article 38 – the state must promote the social and economic wellbeing of people.

The court acknowledged that such changes in curriculum were necessary for people to have raised awareness and to be able to fight for their basic rights such as food, clothing, shelter, housing, health, and education regardless of sex, race and caste and alluded to Article 9 right to life and its expansive judicial interpretation. Although the Sindh government responded by saying that fundamental rights are already part of various subjects in the primary and secondary education, the court did not scrutinise this stipulation or examine the curriculum and how exactly the court imagines it be implemented with a critical assessment of the Sindh Right of Children to Free and Compulsory Education Act, 2013.

Since human rights and the law are within the courts’ bundle of expertise, a more engaging discussion may have ensued had the court laid bare the current curriculum and where it falls short in providing students with an understanding of human rights, or violates constitutional imperatives, in order to enable them to enforce their rights. But no one will disagree that,

“Right to life is no longer considered as merely a right to physical existence or a right not be deprived of life without due process of the law. It means … to enjoy a dignified existence. A dignified existence may not possible without a certain level of education.”

4) Imrana Tiwana versus the Province of Punjab
Judgement by Syed Mansoor Ali Shah
Lahore High Court

In this judicially robust decision, prefaced by Pablo Neruda’s optimistic verse – you can cut all the flowers, but you can’t stop spring from coming – the court speaks up for environmental justice and democracy in two concrete ways:

1. The people must decide on projects such as new roads through their elected local government with more real power at the grassroots of government.

2. An autonomous Environmental Protection Agency (EPA) must find competent leadership, provide scrutiny over projects and refrain from fraud reviews.

It held that the Lahore Development Authority (LDA), a provincial government department headed by the chief minister of Punjab, cannot ignore processes required under the Environmental Protection Act – which include the production of an EIA report, meaningful participation by the public and the government, and a review by an independent committee of experts before a project commences. It describes the regulatory capture of the EPA that serves the interests of industries, and is beholden to the provincial government, rather than being a truly independent body acting as a watchdog and check post over public projects.

The project under dispute was the construction of a seven-kilometre signal-free highway in Lahore. The court noted with chagrin that Rs60 million of the public exchequer (of an expected Rs1.5 billion) had already been spent on this project without first obtaining proper EIA clearance. The petitioners, a body of concerned citizens, had argued that this project ignored the socio-economic reality of most people who walk or use public transport in favour of perhaps eight per cent of motorists who would benefit from a fast-speed road. Without assessing the merits of the project, the court set aside the flawed EIA approval for the project as violation of many constitutional provisions (Article 4, 10A) and conducted by a compromised and beleaguered EPA.

Next the court addresses Article 140A, devolution, and the role of local governments in a vibrant democratic society. Citing a diverse body of literature, giving examples of Indian punchayats and South African municipalities and their core responsibilities, the court found local governments are constitutionally empowered under Article 140A and are not meant to be underlings or agents of provincial governments. Devolution necessitates a process of true political, administrative and financial decentralisation to the local level on most devolved matters including this one (but for certain projects that have spill-over effects into provincial territory or involve economies of scale).

For the constitutional and environmental enthusiasts, there is much to celebrate about this decision and its earnest and cerebral discussion of federalism, vertical separation of powers, and subsidiarity and the significance of environmental impact assessments as articulated in the Rio Summit 1992 – but ultimately this delightful decision, appeals notwithstanding, is not only a win-win for social, economic and political justice, it also restores faith in the judiciary and its spirited ode to local governments.

“The logic behind decentralisation is not just about weakening the central authority, nor is it about preferring local elites to central authority, but it is fundamentally about making governance at the local level more responsive to the felt needs of the large majority of the population.”

5) Mohamad Anwar versus the Government of Punjab
Lahore High Court, Multan Bench

This important and positive case pending before the Multan High Court is indicative of the procedural tribulations of death row convicts and how through the appeals process convicts serve sentences longer than average murder sentences in the UK for example, and much harsher in nature. Perhaps this will be cause for empathy for some, that in this case, 17-year-old Mohammad Anwar spent more than two decades in jail, serving a rigorous sentence, before finally getting a favourable decision from the High Court (still not final) to reverse his capital punishment.

In 1998, Anwar was convicted under Section 302B of the PPC for an offence he committed in 1993 at the age of 17. The High and the Supreme Court had earlier dismissed his appeals. Yet, according to a 2001 notification issued by the Ministry of Interior and Narcotics, all those who were juveniles and condemned to death on or before November 17, 2001, must have their capital punishment commuted to life in prison in line with Article 45 of the constitution. He submitted an application to the Home Secretary, and the medical board confirmed in 2002 that indeed Anwar was a juvenile when he offended. Somehow, the Supreme Court was never notified about the age certification. The petitioner later withdrew a review petition he filed before the Supreme Court in 2009, as he pursed administrative options and filed a new petition before the High Court asking that the Home Secretary make a determination in this case.

In the meanwhile, the Supreme Court had ruled in Ziaullah versus Najeebullah, and in light of the Juvenile Justice System Ordinance (2000), that cases of juveniles whose death sentences had been confirmed by the Supreme Court, the proper jurisdiction for reversing such sentences was the Sessions Court.  Anwar then approached the Sessions Court that his sentence be commuted under the Juvenile Justice Ordinance and the 2001 notification. He has now challenged the Sessions Court before the Lahore High Court (Multan Bench) in December 2015; his death warrant is temporarily stayed in a commendable order and gives us hope for 2016.

Author thanks lawyers Asad Jamal, Shahzad Akbar, Sara Malkani and Allahdadyar for help in identifying an eclectic mix of human rights cases of the year.