The Role of the Bar in Protection of Human Rights in Pakistan By Malik Muhammad Qayyum President, Supreme Court Bar

Association of Pakistan (A Paper on the Occasion of a Seminar celebrating the 50th Anniversary Celebrations of the Supreme Court of Pakistan)

Index

I II III

Introduction Historical Background The Present Involvement of Lawyers in securing Human Rights for the masses at large. (a) Roles of lawyers: traditional and additional (b) Role of individual lawyers (c) Organisational development a. Bar Organisations b. Non-Governmental Organisations (d) Legal Aid (e) Limits to the role of Bar

IV V

Course for the future Conclusion

-I-

Introduction

In a milieu where human rights have been asserted across the globe with greater force than ever before, Pakistan and its citizens continue to struggle with securing the most basic and inalienable rights for all Pakistanis. It is a continuing, continual struggle, especially for the more vulnerable and underprivileged members of Pakistani society. The legal fraternity being among the more privileged and educated members of a society which is still significantly under-educated and under-informed especially as regards human rights - has often been required to be at the forefront of the struggle to secure these rights against a domineering state apparatus and inequitable social system with gross disparities in wealth and influence. This paper is an attempt to briefly discuss and touch upon the various aspects of the services rendered by the Bar in securing human rights for the ordinary Pakistan and its present and future role in this context. While a small aspect of this paper is perhaps celebratory, the more significant purpose and indeed its principal focus is on examining the history of the role of the Bench in developing the concepts of human rights and securing the same through the system of administration of justice: an attempt is also made herein to indicate the failings and shortcomings in such efforts. Moreover, this paper in light of what has gone before in the past and what is being undertaken in the present also seeks to provide some suggestions for the future.

-II-

Historical Background (1947 to 1980s)

In a sense, the creation of Pakistan was very much an exercise in securing the human and political rights of the Muslims of united India by a lawyer. The redoubtable Mohammad Ali Jinnah was the man who fought the case for the Muslims of India in the court of the British Empire and secured Pakistan.

Despite such august and promising beginnings, the problems faced by the infant nation were great and ever-multiplying. Chief among these was the existence of many human rights abuses, which in fact increased over time as vested interests took root. Various constitutions came and went: they of course did provide for human rights. Notwithstanding this, as has been the case across the globe, the concept and exercise of assertions of human rights did not develop in earnest in Pakistan until relatively recently. In 1969 for example, in the Abul Ala Maududis case1 a restrictive approach was taken to human rights and therein the Lahore High Court refused to give effect to the Universal Declaration of Human Rights.

There can of course be said to have been several significant cases concerning Human Rights in Pakistan since partition. The more political ones which have gained more recognition or notoriety include the Maulvi Tamizuddin case2, the Usif Patel case3, the Nusrat Bhutto case4, and the Asma Jillani case5. However, since 1947 there have been certain remarkable cases. each with positive contributions from the Bar as well. The Brick Kiln workers case6 is one instance wherein positive and far-reaching steps were taken against bonded labour. Nevertheless, until the mid-80s, most cases did not involve contributions beyond the traditional role of representation by the Bar. The

modern idea of human rights as we understand it today is a recent development in Pakistan.

1 2

Abul Ala Maududi vs. State Bank of Pakistan and another (PLD 1969 Lahore 908). Maulvi Tamizuddin Khan vs. Governor General of Pakistan (PLD 1955 FC 240). 3 Usif Patel and two others vs. the Crown (PLD 1955 FC 387). 4 Begum Nusrat Bhutto vs. Chief of Army Staff (PLD 1977 SC 657). 5 Miss Asma Jillani vs. Government of Pakistan (PLD 1972 SC 139). 6 Darshan Masih vs. State (PLD 1990 SC 513).

-III-

The Present Involvement of Lawyers in protecting Human Rights

The notions of human rights mostly start to find explicit mention in the judgments of the Superior Courts of Pakistan in the late 1980s. This also appears to be right around the time this area seems to have found the attention of and broader participation from members of the Bar. Lawyers took to becoming proactive and seemed to have accepted a broader role in enforcing human rights. This appears to have actually mirrored parallel international developments: the UNHCR for example in 1990 accepted and enjoined the role of lawyers in the protection of human rights as one of the basic functions of the all lawyers.7 In Pakistan, in the 1980s (at the tail-end of the military Zia regime) it became all the more necessary in Pakistan, as many abuses continued to befall the common Pakistani. The catalog of human rights abuses today in Pakistan is vast,8 yet only a few of the more serious ones are reported broadly:

Extrajudicial killings of civilians, suspected criminals and militants. Physical abuse, rape, and arbitrary arrest and detention, particularly in areas of acute conflict, by Security Forces. Violence against, and intimidation of, various journalist groups and individuals by the State. Violence by sectarian militias. Discrimination and violence against women including through the enforcement of Hudood laws.

The Basic Principles on the Role of Lawyers as Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990 by the High Commissioner for Human Rights, UNHCR: []14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.
For more details please refer to the latest State of Human Rights in Pakistan published by the Human Rights Commission of Pakistan.
8

Human and Human Organs Trafficking. Debt slavery and bonded labor especially among Brick Kiln workers. Child abuse. Persecution of Religious minorities especially in the context of the blasphemy law. Honor Killings (Karo Kari). Failures in the administration of justice including lack of funds, outside intervention, and large case backlogs leading to long trial delays and lengthy pretrial detentions.

Outdated legal code largely concerned with crime, national security, and domestic tranquility and less with the protection of individual rights.

The above are but a few of the abuses that exist. They demonstrate that clearly there has been a significant failure on the part of civil society to check human rights abuses. The stop-start experience with democracy in Pakistan has by and large undercut development of any culture of across-the-board human rights enforcement in Pakistan. While various constitutions enshrining these rights have been set to naught by the military (and even subverted by successive governments), lawyers directly, or through non-governmental organizations have made an effort to fill in the vacuum as protectors of human rights and to take up the role of a political opposition.

Roles of lawyers: traditional and additional.

Part II, Chapter I of the 1973 Constitution of the Islamic Republic of Pakistan enumerates a host of fundamental human rights available to each and every citizen and others. Assisting in the securing of these rights and giving effect to the same falls often on the lawyers who represent their litigants. However, in addition to this, the role of lawyers in Pakistan has broadened beyond the traditional to include certain other aspects as well. This is even more so the case when the normal lay person in Pakistan is not well aware of his own fundamental rights. In such a situation the educative role of lawyers also comes to the fore. Lawyers in such circumstances are required to be more pro-active especially to defend those who are not aware of their own rights. Some of the aspects of the roles that lawyers today play are as follows:

(a) To advise and educate individual Clients of their rights; (b) to defend the rights of the people in Court; (c) to engage in public interest litigation on their own accord; (d) to act as the watchdogs of the society and through their litigation hold the government accountable for their action; (e) to play the role of political opposition where opposition is weak, especially where political and other human rights are at stake; (f) to hold the judiciary, police and others accountable to the masses; (g) to record various abuses and report on the same.

In most of the above roles, the mechanism for securing rights is of course through the courts. Administration of justice in Pakistan however has a history of disappointment and delay9. Several loans have been taken from the Asian Development Bank for the Access to Justice Program. However, the participation of lawyers in the same program remains minimal and the same has shown little positives beyond the cosmetic. Consequently, a role in assisting with the reforms also falls to the Bar. It is after all the artisans who know the strengths and failings of the system, and in the context of human right abuses, feedback from the professionals who deal with and address the same is most vital and useful.

In performing their more traditional role of advocacy and representation, members of the Bar have made use of various remedies for their clients. Often, the ordinary courts have not provided an efficacious remedy in human rights cases. The extra-ordinary writ jurisdiction has then been used to expedite matters as a panacea of all evils, especially since such human rights abuses often require urgent redressal. While the superior Courts have often been forthcoming in exercising the full force of the law in securing the rights of the individual, there has of late been a distressing delegation of the powers of the High Court (in cases of police harassment, registration of cases, transfer of cases, etc.) to the District Court in the case of Mian Khan vs. IG Punjab10. In contradistinction to

A key case was the Judges case (PLD 1996 SC 324) which sought to improve the administration of justice. The same was filed by an advocate and was groundbreaking at the time. It is unfortunate now that the same has been drawn back from. 10 PLD 2002 Lahore 619. Confirmed by Full Bench in Khizer Hayat vs. IG, Punjab (PLD 2005 Lahore 470).

this, the Supreme Court of Pakistan has of late taken up several direct petitions and exercised its suo motu powers in glaring cases of human rights violation, which is extremely creditable. The Bar has in all of these cases sought to assist the Bench to the fullest extent of its ability and in several instances has initiated these proceedings by bringing the same to the Courts notice.

It is perhaps understandable that those who suffer human rights abuses are the weakest and most underprivileged members of society. Resultantly, they are most exposed and are also generally despite there being notable expectations - least likely to be able to fight for their rights. These are, thus, certainly areas that require great vigilance from the Bar as the abuse of the defenseless certainly cannot be countenanced in a society that believes in human rights which are fundamental to all. Despite this, and perhaps being indicative of the necessity for the Bars intervention, there have been staggering instances where the Government has taken to victimizing the victim such as in the case of Mukhtaran Mai. In such instances it becomes all the more important that the legal fraternity step in to protect the victims, as certain members of the Bar so did to their eternal credit, in the Mukhtaran Mai case.

Role of individual lawyers

Individual lawyers have possibly shone the brightest in their selfless proactive services towards the enforcement and protection of human rights. The late Shehla Zia, a member of the Bar had the honor of instituting one of the key cases for establishing public interest litigation in Pakistan. Asma Jehangir, Hina Jillani, M. D. Tahir, Zia Awan, and Dr. Pervez Hassan are among the list of ever-increasing Human Rights activist-lawyers. Yet the list is still not long enough. Barrister Zafarullah Khan of the Watan Party has also made significant inroads through the setting aside of the Pakistan Steel Mills in the public interest and secured the economic rights of Pakistanis at large.

Organisational development

By the nature of the profession, the interaction of the lawyer is with individuals and therefore the ability to reach out and educate the masses is limited. Moreover, the efforts of the individual lawyer, however driven, are often likely to be limited by the fact that he

is only an individual. Resultantly there is a need to institutionalize the role of the Bar in the struggle for human rights. This responsibility thus generally falls on NGOs and Bar Organisations which have a broader outreach to the public at large. A welcome step resultantly has been seen to be the institutionalization and organization of the struggle in the form of various organizations, in the form of Bar Associations and Organisations and other Non-Governmental Organisations (NGOs.)

Bar Organisations.

The areas of political participation have attracted the greatest attention of the Bar. It appears that, for the most part, individual human rights fell by the wayside and were left to other NGOs and individual members of the Bar to address. However, this trend has changed recently.

The Bar Association and Councils have mandated and set up free Legal Aid Cells. Yet, it was recently a shock to note that no one had even applied for legal aid a month after the Punjab Legal Aid cell had been set up,. This, despite the fact that the same was launched with a fair degree of fanfare. Thus, there appears to be a serious lack of education and awareness on the part of the common man as to what forums of recourse are available to them. The various Bar Organisations can help in the promotion of knowledge about legal issues/problems through holding lectures, seminars and conferences. Further, there is a vital need for Bar Organisations to agitate issues of human rights abuses. The Supreme Court Bar Association, for example, has already this year made several successful attempts to secure the rights of various persons, for example in the instance of Margala Hills Towers, Murree Hills, recovery of various abductees, etc. Non-Governmental Organisations (NGOs) Lawyers and their NGOs are growing in presence and stature in the fight for societal change through the enforcement of legal and human rights. Non-governmental Organisations with observer status, and associations or organisations of lawyers are beginning to offer a specialised presence at national and sub-regional levels and offer pro-bono representation. While we do not have a Pakistani equivalent of large

organizations like the American Civil Liberties Union or NAACP, we do however now have in Pakistan, established and creditable organizations such as the Human Rights Commission of Pakistan, Lawyers for Human Rights and Legal Aid, Ansar Burney Welfare Trust all advocating prisoner rights and waging a war against illegal confinement and rape. Legal Aid The issue of provision of legal aid and assistance to the people in general, and indigent people in particular, came up for consideration before the Pakistan Law Commission in its meeting held at Lahore on January 31, 1992. The Commission having thoroughly discussed the issue opined that one way of strengthening the enforcement of fundamental rights would be to oblige the Pakistan Bar Council to play a more meaningful and effective role in the enforcement of fundamental rights. The Council has taken steps to form a legal aid cell. However, the response from the public has been significantly muted. There appears to be little or no awareness of the existence of possibilities of legal aid. Justice (R) Nasir Aslam Zahid in Karachi is also doing a creditable job offering legal aid to women and children, and he demonstrates what contribution selfless individuals can make, albeit on a smaller scale. Limits to the role of the Bar in enforcing Human Rights in Pakistan.

The area of Human Rights has always been a struggle for the Bar. Often it is in the nature of the cases that the abuser is either the State and its agencies or their mandated officers, or the more powerful segments of society. It is always, thus, likely to be an uphill struggle and requires limitless fortitude and commitment by members of the Bar. It is to be appreciated that all of this is often done by members of the Bar at great personal risk and inconvenience. The efforts of the professional lawyers are thus likely to be limited by the demands of their profession. The protection of human rights requires a full-time commitment. The nonexistence of the profit motive also makes the area of human rights a non-lucrative practice, especially when compared with such lucrative areas as corporate practice and commercial work. The area of human rights is generally seen to be inhabited by those lawyers who are well off or are unusually driven. It appears that the vast majority of lawyers however do not take part in this area of the law.

Further, the limits to the role of the Bar can also be seen through two recent cases involving some of the more influential persons in the country. The manner in which the rights of Shahbaz Sharif and Javed Hashmi could not be secured indicates that where the State is in opposition, there is only so much the Bar can do as well. In the former case, the Supreme Court of Pakistan declared that it was the fundamental right of a citizen to be allowed to return to Pakistan. Notwithstanding this, the Government of the day flaunted the orders of the Court and deported Mr. Sharif when he made an effort to return to Pakistan. There was a clear refusal on the part of the Government to enforce the orders of the Court. However, the Court took no notice of it. The case of Javed Hashmi similarly has seen a painful failure on the part of the Supreme Court to dispose of his bail petition. Javed Hashmis petition has remained pending now for more than a year. The same needs to be disposed off as justice delayed is justice denied. In each of these cases the course of action for the Bar is to persevere.

In the post-9/11 world with unrest and conflict in local areas such as Baluchistan, Wana and other places, the participation of the profession has been relatively muted and there appears to be widespread acceptance in favour of letting the powers that be do whatever is required. There have also been persons picked up and kept incommunicado for long periods. To date, the question of whether the ordinary Courts have the jurisdiction to recover the same remains under argument and needs to be settled in favour of the writ of the courts and the rule of law.

Participation of the Bar and its members has been seen to have been significantly limited to domestic human rights. There has been little or no presence of the Bar in the realm of international human rights.

One of the most serious limits and failings of the Human Rights movement in Pakistan is that its outreach has been limited. Most of this movements and, in turn, the Bars efforts have been centered around the urban centers. In the rural areas, the majority of the population is still open to greater abuse and much of the abuses remain unchecked or even unreported.

-IV-

Course for the future.

Much of what has been discussed above demonstrates that given the volume of human rights abuses and the vulnerability of the victims in Pakistan, the role of the Bar and its members must go beyond the traditional role. Each lawyer must be more proactive, vigilant and more selfless. There is a further need to provide protection to victims of abuses in a more organized manner and beyond the urban centers. Particular areas requiring attention include the following:

(a) (b)

Karo Kari and other inhuman practices; Domestic violence; a major bit of legislation has been drafted in the Punjab, however the same remains deadlocked in Parliamentary Committees.

(c) (d) (e)

Brick Kiln workers; Redressal of police abuses and failures; Political participation; with the upcoming elections and disputes over the status of General Musharraf, his re-election and issues over his uniform, the role of the Bar is to ensure that the spirit of democracy and the 1973 Constitution prevails;

(f) (g)

Prisoner Rights; Administration of justice; more participation by the Bar ensuring greater transparency in the Access to Justice program is required.

(h) (i) (j)

Persons picked up by the Agencies and/ or sent out of Pakistan; Extra-judicial killings; Environmental law; tree-cutting, Murree Hills case; the Cement plant cases, etc.

(k) (l)

Gender rights, employment, inheritance, Hudood laws, etc.; Protection of Journalists.

Steps are needed to be taken to publicise and record the abuses. There is also need for specialised and continuing training in human rights for legal practitioners. There is a remarkable dearth of legal human rights literature specific to Pakistan.

There is certainly a need in Pakistan to build a culture that respects human rights. Today, the very law enforcement agencies which are mandated to protect the citizens are often the ones committing the abuses in Pakistan. This is particularly so with the Police. Not a week goes by that newspapers do not report pronouncements by the Bench against the Police and other organizations.

Lastly, and perhaps most vitally, a free walk-in citizen advice bureau and more extensive legal aid is the need of the day.

-V-

Conclusion.

In conclusion, it can be observed that the quest for across-the-board enforcement of Human Rights in Pakistan is a struggle. This is so for the ordinary Pakistani and also for the legal professional whose incumbent and solemn duty it is to seek to protect the human rights of the people. This is an ongoing struggle and requires more attention and greater participation from the Bar at large. Without greater participation, all the principles and noble sentiments associated with human rights will remain just that: principles and noble sentiments. In the meantime, actual abuses will persist and all these sentiments and principles may unfortunately be rendered to insignificance.