GSP plus and minority rights
Pakistan is no exception and it has already signed national and international commitments towards its citizens
The writer works for governance and rule of law with a national organisation
In October 2017, while responding to a delegation of religious minorities that included Christian and Hindu citizenry belonging to clergy, legal fraternity, academics and civil society, both federal Human Rights Minister Mumtaz Ahmed Tarar and Minister of State for Human Rights Barrister Usman Jamali decided to forward the Christian Marriage and Divorce Bills 2017 to the law ministry to be vetted, before it is forwarded to the cabinet for approval and enactment. Nevertheless, after the passing of more than a couple of months of this decision, the ministry is still reluctant to send amended bills to the law ministry.
There may be two possible reasons for this delay. On the one hand, the present federal government led by the PML-N seems reluctant to dive into matters of religious significance for Christian citizens. In fact, the Christian community is organised through church, which throughout history has been enjoying the exclusive power over solemnising marriages. However, modern democratic states are now bound to provide its citizens the legal framework for solution of their problems. Pakistan is no exception and it has already signed national and international commitments towards its citizens.
On the national level, Pakistan is bound to observe Article 25 of the 1973 Constitution that views state laws to protect all citizens equally. For this, parliament needs to enact laws. However, when it comes to the matter of minorities, governments seem disinclined to provide relief to its citizens. The often reported restrictions from the government side are due to the probable opposition from clergy and minority legislators who enjoy the support of clergy to reach parliament. In case of amendments to the Christian Marriage Act of 1872 and the Divorce Act of 1869, the clergy submitted amended bills to the human rights ministry in March 2017 that was endorsed by the abovementioned delegation.
Another development that happened in June 2017, this time by the judiciary, was when regardless of the opposition from various Christian parliamentarians the Lahore High Court provided relief to Christian married couples in the famous Amin Masih case. The court decided in the petitioner’s favour, who sought from the state the right to provide an honourable and constitutional mechanism to part ways from the marriage contract. Based on the petition, the court restored section 7 of the Divorce Act of 1869 that provides room for married couples to part ways honourably by going to court and opting for the UK Matrimonial Causes Act of 1973. Though restoration of section 7 can be viewed as a good adhoc relief to people, and this reportedly has started providing relief to married couples, the Christian community in Pakistan wants a law of the land that could regulate their marriage and post-marriage arrangements in a dignified way and also according to their own cultural values. However, this decision of the LHC has already been challenged in the Intra-Court Appeal. Further, required amendments are not just a matter of divorce, there are also certain other procedural issues such as the age at marriage, timing of the marriage, registration, etc, that also need to be amended.
On the other hand, Pakistan is signatory to human rights charters and conventions and also enjoys certain privileges based on these conventions. For instance, both the Universal Declaration of Human Rights and International Covenant for Civil & Political Rights stipulate for states to take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. Similarly, Pakistan is also currently enjoying the GSP Plus scheme which is a ‘Special Incentive Arrangement for Sustainable Development and Good Governance’ of the EU for developing countries. It is an incentive to instill good governance based on inclusion and diversity and sustainable development practices in developing countries. The objective of this scheme is to promote and achieve the best practices and sustainable development.
Nevertheless, the continuity of GSP plus status depends on the member countries to comply with the policy of implementation of certain conventions predominantly related to good governance, including labour laws and rights, human and minority rights, gender rights and fairness, climate change and protection of the environment for ensuring sustainable social and economic development of the country. In order to monitor the compliance status of these conventions, the EU has also devised a mechanism to assess the information provided by the beneficiary countries, and dissatisfaction with which could lead to the withdrawal of the status. Response by the federal and provincial governments on the eve of religious festivals of minorities is commendable, nevertheless neglecting the pro-minority legislation Pakistan has to face difficulties while satisfying the EU. In addition to these commitments, the government, therefore, needs to seriously consider pro-minority legislation to show some progress in the domain of human and minority rights.
Finally yet most significantly, the present government however cannot relieve itself from its responsibility to enact laws and just rely on the decisions of the judiciary. As the appeal against restoration of section 7 is sub-judice, here comes the true role of parliament because it is a matter of the state vs citizens. Two provinces, Balochistan and K-P, have already passed a resolution under Article 144 of the Constitution relegating their power to the federal government to amend the Christian personal laws. Two other provinces, Sindh and Punjab, could adopt this law if they don’t enact their separate laws. In October 2017, the human rights ministry also issued a press release to send the amended drafts to the law ministry for vetting. But there is still no progress.
Published in The Express Tribune, January 10th, 2018.
There may be two possible reasons for this delay. On the one hand, the present federal government led by the PML-N seems reluctant to dive into matters of religious significance for Christian citizens. In fact, the Christian community is organised through church, which throughout history has been enjoying the exclusive power over solemnising marriages. However, modern democratic states are now bound to provide its citizens the legal framework for solution of their problems. Pakistan is no exception and it has already signed national and international commitments towards its citizens.
On the national level, Pakistan is bound to observe Article 25 of the 1973 Constitution that views state laws to protect all citizens equally. For this, parliament needs to enact laws. However, when it comes to the matter of minorities, governments seem disinclined to provide relief to its citizens. The often reported restrictions from the government side are due to the probable opposition from clergy and minority legislators who enjoy the support of clergy to reach parliament. In case of amendments to the Christian Marriage Act of 1872 and the Divorce Act of 1869, the clergy submitted amended bills to the human rights ministry in March 2017 that was endorsed by the abovementioned delegation.
Another development that happened in June 2017, this time by the judiciary, was when regardless of the opposition from various Christian parliamentarians the Lahore High Court provided relief to Christian married couples in the famous Amin Masih case. The court decided in the petitioner’s favour, who sought from the state the right to provide an honourable and constitutional mechanism to part ways from the marriage contract. Based on the petition, the court restored section 7 of the Divorce Act of 1869 that provides room for married couples to part ways honourably by going to court and opting for the UK Matrimonial Causes Act of 1973. Though restoration of section 7 can be viewed as a good adhoc relief to people, and this reportedly has started providing relief to married couples, the Christian community in Pakistan wants a law of the land that could regulate their marriage and post-marriage arrangements in a dignified way and also according to their own cultural values. However, this decision of the LHC has already been challenged in the Intra-Court Appeal. Further, required amendments are not just a matter of divorce, there are also certain other procedural issues such as the age at marriage, timing of the marriage, registration, etc, that also need to be amended.
On the other hand, Pakistan is signatory to human rights charters and conventions and also enjoys certain privileges based on these conventions. For instance, both the Universal Declaration of Human Rights and International Covenant for Civil & Political Rights stipulate for states to take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. Similarly, Pakistan is also currently enjoying the GSP Plus scheme which is a ‘Special Incentive Arrangement for Sustainable Development and Good Governance’ of the EU for developing countries. It is an incentive to instill good governance based on inclusion and diversity and sustainable development practices in developing countries. The objective of this scheme is to promote and achieve the best practices and sustainable development.
Nevertheless, the continuity of GSP plus status depends on the member countries to comply with the policy of implementation of certain conventions predominantly related to good governance, including labour laws and rights, human and minority rights, gender rights and fairness, climate change and protection of the environment for ensuring sustainable social and economic development of the country. In order to monitor the compliance status of these conventions, the EU has also devised a mechanism to assess the information provided by the beneficiary countries, and dissatisfaction with which could lead to the withdrawal of the status. Response by the federal and provincial governments on the eve of religious festivals of minorities is commendable, nevertheless neglecting the pro-minority legislation Pakistan has to face difficulties while satisfying the EU. In addition to these commitments, the government, therefore, needs to seriously consider pro-minority legislation to show some progress in the domain of human and minority rights.
Finally yet most significantly, the present government however cannot relieve itself from its responsibility to enact laws and just rely on the decisions of the judiciary. As the appeal against restoration of section 7 is sub-judice, here comes the true role of parliament because it is a matter of the state vs citizens. Two provinces, Balochistan and K-P, have already passed a resolution under Article 144 of the Constitution relegating their power to the federal government to amend the Christian personal laws. Two other provinces, Sindh and Punjab, could adopt this law if they don’t enact their separate laws. In October 2017, the human rights ministry also issued a press release to send the amended drafts to the law ministry for vetting. But there is still no progress.
Published in The Express Tribune, January 10th, 2018.