All Pakistan Women Lawyers Convention At Lahore

ALL PAKISTAN WOMEN LAWYERS CONVENTION AT LAHORE ALL PAKISTAN WOMEN LAWYERS CONVENTION AT LAHORE SPEECH BY Mr. Justice Saiduzzaman Siddiqui, Chief Justice of Pakistan [27‑1 1999] I am happy to have chaired the All Pakistan Women Lawyers' Convention; organised by the Lahore High Court Bar Association. The theme namely 'Rule of Law in the Gender Perspective' is pertinent and relevant to the present time and developments. It was a welcome opportunity to hear comments and views of distinguished speakers. It was indeed a rewarding experience and I am thankful to the organisers for providing me this opportunity to listen to extremely valuable discourse and to share with you my own perception on the subject. The theme is relevant and pertinent today, as we stand at the threshold of fast evolving events and developments. The rule of law and its implementation, indeed furnishes the bedrock to good governance, sustainable economic growth and social development. Development efforts could not gain momentum so long as 50 % of the female population remains secluded or restrained in fully participating in the development process. In the contemporary world, we don't find precedence of nations developing and attaining economic prosperity, without the full and effective utilisation of the collective potentialities of its people, without any distinction or differentiation on the basis of race, language, ethnicity or gender. We better learn this lesson, and we better learn it quickly if we have to march forward and achieve progress and prosperity. The concept of rule of law is not very old. Under the western legal traditions, this concept evolved slowly but gradually, in tandem with like notions namely constitutional rule, democratic governance, observance of fundamental rights and freedoms, etc. Professor A V Dicey, in his famous book, entitled, "An Introduction to the Study of the Law of the Constitution", defines this concept as meaning 3 expressions: (1) That no person can be punished or made to suffer in body, property or reputation, except for a distinct breach of law, established by the ordinary Court of law, through prescribed procedure; (2) That no person is above the law and everyone, whatever his/her rank or condition in life, is subject to the law of the land and amenable to the court jurisdiction; and (3) That the fundamental rights and freedoms enjoyed by the people are indeed the general principles derived from judicial precedents and guaranteed by the Constitution. Read the Constitution of Pakistan and you would find these expressions duly enumerated and guaranteed. Such safeguards are available to all citizens, irrespective of any differentiation or discrimination on any ground whatsoever. In some cases the constitutional protections go a step further in respect of weak or vulnerable sections of society, by obliging the State to take special measures in their favour. Thus, one finds specific affirmative exhortations in respect of women, children, minorities and labour. The first and foremost direct and categorical provision on the rule of law or supremacy of law is given by Article 4, which provides for the right of an individual` to be dealt with in accordance with law and to be given the protection of law. This Article is unique and unparalleled. It clearly declares that law must reign supreme and every action against the individual must be grounded on, and be in accordance with the prescribed due process procedure The Preamble as well as Article 2A of the Constitution also lay emphasis on the guarantee of fundamental rights to all citizens including the right to the equality of status, equality of opportunity and equality before law. Similarly, Articles 25, 26, & 27 not only proclaim the equality of citizens but also prohibit discrimination on the basis of sex. Indeed Articles 25 & 27 further speak of special measures to be taken for the protection of women. In a sense, the Constitution acknowledges the prevalent gender inequalities, perpetrated by the patriarchal system and centuries old discriminatory customs and traditions. It, therefore, empowers the State to take positive and affirmative actions, so as to do away with the prevailing discriminatory norms and practices and establish both legal and factual equality in the society. It is an irony that the Islamic norms and principles on the dignity and equality of human person and inviolability of honour and property, are not fully applied or practised. Several Qura'nic Verses and traditions of the Holy Prophet proclaim gender equality. Islam devotes a considerable part of its philosophy and teaching to the, objective of female emancipation and empowerment. Accordingly, it accords men and women alike, civil, political, social and economic rights. It is a tragedy though, that such positive image of Islam has not been successfully conveyed, and misconceived religious notions have distorted the true and universal message of Islam. The Qura'nic verses state in unequivocal words that women shall have rights similar to the rights against them, according to what is equitable (II:228). They further state that there shall be no distinction, among men and women, in the area of moral and spiritual rights and obligations (XXXIII: 35). Islam accords to women, equality of status and opportunities in the exercise of civil political social and economic rights. What is required now, therefore, is to translate the Islamic injunctions into concrete actions. A perusal of judicial pronouncements on the issue of gender equality would reveal that the superior courts have generally tried to enforce the Islamic injunctions and constitutional safeguards by protecting the rights of women. In doing so, they have equally supported the affirmative provisions in the Constitution. Thus, in the case of Inayat Bibi v Issac Nazirullah (PLD 1992 SC 385), the Supreme Court decided that notwithstanding the prevalent customary law, a Christian woman might inherit property in presence of male heirs. In the case of Ghulam Ali v Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), the Court rejected the plea of "adverse possession" by the brother and clarified that such a claim is untenable to oust the sister's right to inherit her legal share in the ancestral property. Similarly, in the case of Shirin Munir v Government of Pakistan (PLD 1990 SC 295), the Supreme Court ruled that special seats, over and above the merit entitlement, might be reserved for girl students in co educational institutions, as the same is permissible under Article 25 (3) of the Constitution. Many other rulings have clarified and expanded the rights and entitlements of women, available under the law, Constitution or Islamic injunctions. It is unfortunate, therefore, that notwithstanding the positive Islamic norms and mandatory constitutional provisions, discriminatory laws and procedures continue to exist, thereby depriving women of availing their legal and fundamental rights and entitlements. This state of affairs deprives them to fully and effectively participate in national affairs and contribute their worth to national development and prosperity. Such a state of affairs must not last any longer. It is time that discriminatory laws and procedures are reviewed, with a view to amend and reform the same. The Pakistan Law Commission have, in the past, made certain recommendations in this respect including improving the Muslims Family Laws Ordinance, Muslims Family Court Act, Dowry and Bridal Gifts Restriction Act and the various statutes dealing with the Maternity Benefits for working women. The purpose of these recommendations is to enhance the status of women in the society. The Commission is also currently reviewing the Citizenship Act and some other discriminatory law, so as to remove therefrom unjust and discriminatory clauses. In my capacity as Chairman of the Commission, I should be interested to receive from the members of the bar, and indeed, the general public, any suggestions or recommendations to this effect for consideration by the Commission. Before I conclude, let me thank the organisers, once more, for their invitation to chair this function and share with your views.