Constitutional guarantees for the rights Of women and their implementation

CONSTITUTIONAL GUARANTEES FOR THE RIGHTS CONSTITUTIONAL GUARANTEES FOR THE RIGHTS OF WOMEN AND THEIR IMPLEMENTATION [Discussion at Pakistan Women Lawyers' Association Refresher Training Workshop held at Karachi from 26‑12‑1997 to 30‑12‑1997.] By Dr. Muhammad Farogh Naseem, LL. B. (Hon) (Wales), LL. M. (London), Ph. D (London) of Lincoln's Inn, Barrister‑at‑Law Mrs. Rasheeda Patel, President of PAWLA, office‑bearers and participants! I am indeed very grateful to Mrs. Rasheeda Patel for having given me an opportunity to express my views today. Mrs. Patel is not just a person she by herself is an institution and comprises a towering personality. Her single- handed contribution as a human rights' activist and a philanthropist is highly commendable. The topic of discussion for today is extremely significant for us. Our operative Constitution i.e. the Constitution of Pakistan, 1973 contains three sets of provisions in the context of rights of man; firstly certain background provisions, secondly fundamental rights and thirdly principles of policy. I shall discuss them each in turn. The background provisions are essentially Articles 2A, 3 and 4 of the Constitution. Article 2A talks in terms of the preamble of the Constitution becoming a substantive part thereof. The preamble in turn talks, inter alia, in terms of the equality. Wherever the term "equality" is used the same obviously employs sexual equality as well. In my humble opinion Article 2A can be employed to check laws and actions which are against the principle of sexual equality. Article 3 of the Constitution embodies the egalitarian expectations of the entire nation viz. that exploitation should be eliminated. Once again if there are exploitative tendencies towards women the same can and should be remedied through recourse to Article 3. Article 4 contains the due process clause. In other words it states that everything should be done in accordance with law. Such a provision is also the cornerstone for the concept of the rule of law. Once again if a woman is not treated justly and equitably in accordance with law, Article 4 will also be violated. Our Constitution contains a number of fundamental rights. Article 8 of the Constitution provides that anything which is against the fundamental rights shall be void except of course in cases of certain derogations in the public interest. Article 9 of our Constitution protects the right of life. The term "life" has been interpreted by the Supreme Court in the Shehla Zia's case PLD 1994 SC 693. The Supreme Court in this case has held that a duty is cast upon the State to ensure that a person is provided with ample facilities and amenities to lead his/her life. While Article 9 is available to guarantee the right to life, women in general can invoke the same in case they find that they are forced to live in a manner where their basic right to live and enjoy amenities and facilities are hampered. Article 9 can also thus be employed to ensure that women are not subjected to inhuman and degrading treatment. Article 14 of the Constitution provides for, inter alia, the dignity of man. Once again such fundamental right is very much extendable to women as well. Where a woman is subjected to torturous, inhuman and degrading treatment, together with Article 9, Article 14 can also be pressed into service to provide effective relief to the aggrieved woman. The most important fundamental right in relation to property is enshrined to Article 23 which provides that every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject of course, to any reasonable restrictions imposed in the public interest. This broad provision would show that both men and women alike can hold, acquire and dispose of any property without discrimination. In this context it would be relevant to observe that before the advent of Islam women had no position or status. Whether it was the Greek or Roman Law or the German‑Tutonic Codes, a woman was no better than a mere chattel. Islamic recognised her distinct entity. She would retain side by side with her maiden name, the name of the family in she was born. In this respect the illustration of Hazrat Aisha Siddiqa retaining both her maiden and family names is more than pertinent. A woman's name in Islam does not merge with her husband's name or his family's name. A woman retains her distinct entity and is free to acquire, hold, dispose of and administer property in her own name or to carry on arty business and trade of her choice or to seek employment as per her requirements. These aspects of Islam are fully guaranteed by our Constitution as Article 18 guarantees the freedom of trade, business or profession to every citizen including women, while together with Articles 23 (already discussed) and 24 the property rights of women are also amply protected. I think that the singular most important Article in the Constitution in relation to rights of women is Article 25. This Article guarantees equal treatment to all citizens, while specifying that there shall be no discrimination on the basis of sex alone. Our superior Courts have fortunately done a great deal to vindicate the fundamental rights of equality in favour of women in Shirin Munir v. Government of Punjab PLD 1990 SC 295 admissions to co‑educational Medical Colleges were allowed strictly on merits, while maintaining the right of women to seek exclusive admission to Girls' Medical Colleges. In this respect it would be pertinent to observe Supreme Court in this regard explained the scope and intent of Article 25 follows:‑‑ "No discrimination on the ground of sex alone can be permitted except on the ground of reasonable and intelligible classification. Such classification in our society permits for the present establishment of educational and professional institutions exclusively for the females or exclusively for the males. However, where co‑education is permitted and the institution is not reserved for one sex alone, the fixation of number on the ground of sex will directly be opposed to the requirement of Article 25(2) unless it is justified as a protective measure for women and children under Article 25(3). In other words the number of girl students can be fixed as the minimum but not as the maximum, particularly so where on merit they are likely to get more than the fixed number of seats. The Constitution assumes that the women and children in our society need protection and not the males and as long as the Constitution mentions that assumption and basis, we cannot reverse it by affording protection to male and adults at the cost of women and children. That would be opposed to the very fundamental mandate of the Constitution." The Supreme Court thus observed that the claim of the girl‑students merited acceptance on the ground that they have been discriminated against in the matter of admission to co‑education medical colleges by suppressing their merit as against the boys who were admitted. Similarly, the criticism levelled by women that their evidence is not regarded as admissible in matters of Hudood and Qisas has been remedied to some extent by the Federal Shariat Court in Begum Rashida Patel v. Federation of Pakistan PLD 1989 FSC 1995 where it has been held that evidence of women f is definitely admissible at least in so far as imposition of Tazir punishments are concerned. Very recently the Sindh High Court in the celebrated case of Rani v. State PLD 1996 Karachi 316 has yet remedied a great disparity between men and women when facing trials pertaining to the offence of Zina. Previously, the position was that where a woman alleged rape having been committed to her by a man, the man would go scot free on grounds of insufficiency of evidence against him but the woman would be convicted for having illicit sexual intercourse since the same would stand established in view of her pregnancy consequent upon the alleged rape. In Rani, however, the Sindh High Court remedied this grave injustice and held that in such circumstances the woman would also have to be acquitted since Zina is a joint offence requiring identifications of both a man and a woman, distinctly, failing which the offence of Zina would be incomplete. Article 26 of the Constitution further provides that there shall be no discrimination on amongst others, the ground of sex in respect of access to places of public entertainment or resort not intended for religious purposes. Similarly, Article 27 forbids discrimination on grounds, inter alia, pertaining to sex in relation to appointments in the service of Pakistan. The latter Article thus ensures equality in relation to access to employment. Apart from these fundamental rights our Constitution contains certain principles of policy which aim to eradicate discrimination against women and encourage participation of women wholeheartedly. In this regard Article 33 provides for the State to discourage amongst others parochial and tribal prejudices. I think this is a very important provision of policy as it is geared to shun male chauvinism which, I am afraid, is found to be in great abundance, though its parochial nature cannot be denied even amongst the less educated individuals. Article 34 stipulates that steps should be taken to ensure a full participation of women in all spheres of national life. In this context it will be pertinent to underscore an excerpt from the Presidential address of the Quaid‑e -Azam on 23rd March, 1940 when the famous Lahore Resolution demanding Pakistan was adopted: "It was a crime against community that Muslim women should be shut up within the four walls of houses as prisoners. No nation can rise to the height of glory unless the women are side by side with the men. " There is a great wisdom in what our Quaid‑e‑Azam has said. Participation of women also has an economic argument‑‑if our women work, our labour force would also increase considerably since women comprise nearly 52 per cent of our population. Article 35 of the Constitution provides that the State shall protect the marriage, the family and the mother and the child. Once again apart from this Article having a welfare tinge, it makes provisions to protect the eastern culture of our society in which women who are mothers, wives and sisters have a pivotal role. Article 37 contains a number of important aspects. To start with Article 37(a) stipulates to promote the educational and economic interests of backward classes or areas. I would interpret this provision as guaranteeing the educational and economic interests of women since in our country women constitute a backward class. Article 37(e) provides that better conditions in employment are to be provided for women and children who should not be employed in vocations unsuited to their age or sex. The said Article also provides for maternity benefits for women in employment. Article 37(g), inter alia, enjoys upon the State' to prevent prostitution and printing, publication, circulation, and display of obscene literature and advertisements. Unfortunately, the male population of our country eyes women as sexual objects and most of the obscene literature and advertisement portray women. This Article makes ample provision to remedy the situation. Finally, Article 38(a) provides that the State shall secure the well being of the people, irrespective of sex and other aspects, while Article 38(d) stipulates that the State shall provide for the basic necessities of life, once again irrespective of sex and other aspects. To round off the discussion on the rights of women as guaranteed under the Constitution I am of the view that the Constitution provides for ample guarantees to protect the women but that by itself is not enough. Merely paying lip service to such grand and egalitarian provisions will not alter the sad predicament faced by our women. The rigorous stipulations contained in the Constitution are hardly enforced. A lot has to do with our own male thinking as we live in an utterly male dominated society. Our attitudes towards our own women will have to fundamentally change to cause any difference in the existing state of affairs of women. This, of course, does not mean that there should be a licence to obscenity or that women should be let completely loose and encouraged to become paranoid about their rights, independence and feminism. On the contrary, a balance has to be stuck. But having said this the present position is hardly any satisfactory. The fundamental rights and the guarantees envisaged in our Constitution have to be implemented in letter and spirit failing which despite the grand provisions in the Constitution the rights of women would remain unprotected. The fundamental rights and guarantees which are contained in the Constitution are in theory enforceable against the State and its functionaries. From surveys and various studies it transpires that day‑to‑day injustices and high‑handedness are caused to women, especially the uneducated ones, by private individuals more frequently than the State. Perhaps an impelling case is made out for a Constitutional reform whereby the rights and guarantees pertaining to women in the Constitution also become enforceable against private individuals. Finally on the score of political rights I am afraid that the same are not adequately protected as far as women are concerned. Our Constitution today does not reserve any seat for 'women either in the Provincial or National Assemblies or even the Senate. Article 51(4) of the Constitution provides that till the expiration of 10 years from the commencing day or the holding of the third general election to the National Assembly, whichever occurs later, 20 seats would be reserved for women and allocated to the provinces in accordance with the Constitution and the law. Article 51(5) makes certain provisions for women's seats. for the National Assembly which are relatable to Article 51(4). Unfortunately, the deadline as envisaged under Article 51(4) having lapsed, today all seats reserved for women stand abolished (see Miss Afroz Ahsan Haq v. Federal Government of Pakistan PLD 1995 Karachi 56). No doubt as regards their political rights women are not discriminated against men and the provisions of our Constitution are in consonance with the Convention on the Political Rights of Women, 1953. However, such a state of affairs is not satisfactory. In my humble opinion since women of our country constitute a backward class, law arid the Constitution should make provisions for reserving women's seats, both at the centre and at the provinces. In other words, the law and the Constitution as far as political rights are concerned should discriminate in favour of the women since as per the dicta of the Supreme Court in Shirin Munir (cited above) our Constitutional jurisprudence, as squeezed out from its provisions, provides for a greater protection for women and children than the men. Perhaps a case is also made out for creating a Ministry or at least an ambassadorship for protection of rights of women.