Parliament & basic rights
BY publishing a book on parliament's role in defining the fundamental rights of the citizens of Pakistan, the Senate has provided an opportunity for a muchneeded discussion on the subject. The publication, Consistent Parliamentary Cord - Fundamental Rights of the Citizens of Pakistan, written by civil society activist Zafarullah Khan, traces the evolution of the chapter on fundamental rights in the Constitution and also recalls the dark spells in the country's history when these rights remained suspended. The Senate's interest in a study done by a member of the much-maligned NGO community confirms the possibility of fruitful collaboration between the state and civil society provided the latter is allowed the space for playing its due part.
A few chapters in Pakistan's constitutional history recalled in this book must never be ignored by any serious student of Pakistan's politics. These include the Quaid-i-Azam's defence of civil liberties during his illustrious career as a parliamentarian; and the fact that one of the first acts of the Constituent Assembly - two days before the birth of Pakistan - was the formation of a committee, headed by Mr Jinnah himself, to define the fundamental rights of citizens, especially of the minorities. Since there was little controversy over fundamental rights they were formulated quite soon and further progress was held up by extended haggle over issues related to the minorities.
Zafarullah does not fail to take note of Pakistan's start on the wrong foot when, during the very first regular session of the Constituent Assembly, an East Bengal member's request to speak in Bengali - the mother tongue of two-thirds of the state's population - was thoughtlessly turned down.
Also to be remembered is the black day in October 1954 when the cause of democracy was dealt a grievous blow with the dismissal of the Constituent Assembly for failing to draft a constitution when it had virtually completed the task.
The new constitution that was at last enforced in March 1956 was scrapped barely 30 months later and the first military ruler won the dubious distinction of issuing a constitution under his sole signature and relegating the fundamental rights to the level of 'principles of lawmaking'.
Within 16 days of the promulgation of the Ayub constitution in June 1962, eight political leaders - all hailing from East Bengal - demanded the restoration of justiciable fundamental rights. Their demand had to be conceded within a year. These eight defenders of the fundamental rights of the Pakistani people now belong to Bangladesh but no Pakistani rights activist should fail to remember them with gratitude.
The book then dwells on the finalisation of the fundamental rights chapter in the Constitution which came into force on Aug 14, 1973 and the suspension of the key rights only two days later. Finally, the author touches upon the steps parliament has taken over the past seven years: the formation of the Senate's Functional Committee on Human Rights in 1992-1993, the setting up of the Raza Rabbani Parliamentary Committee on Constitutional Reforms in 2009, the adoption of the 18th Amendment in 2010, and the passage of the National Commission for Human Rights Act in 2012. Although the chapter on fundamental rights has remained largely unchanged since the 1950s, a few changes were introduced in 1973, such as the addition of the right to human dignity, a partial bar to torture and specific mention of the freedom of the press in Article 19.
The additions made vide the 10th Amendment are quite significant. Article 10-A establishes the people's right to a fair trial; the revised Article 17 strengthens the right to freedom of association; an amendment to Article 25 broadens the protection to citizens against discrimination; and an amendment to Article 27 enables the state to address problems of under-representation of any class or area in the service of Pakistan. The most significant change is the transfer of the right to education from the ' Principles of Policy' to the fundamental rights chapter in the form of Article 25-A.
Zafarullah's work should awaken parliament to the need for recognising the economic and social rights that have been tucked away under the label of 'Principles of Policy', that are not enforceable and are not considered worth reporting either. The body of universal human rights became wholly meaningful only in 1966 when the Covenant on Economic, Social and Cultural Rights was adopted a little before the Covenant on Civil and Political Rights and the vital concept of indivisibility of rights began to be accepted. However in Pakistan nonacceptance of socioeconomic entitlements as rights causes unbearable misery to the disadvantaged majority.
The demand for the recognition of the rights to work, health, equal opportunity and gender equality has been pending since the early 1950s. The state has been taking cover under the excuse of resource constraints, an argument that is largely untenable. The urgency of recognising these economic and social rights has increased many times over by Pakistan's ratification of the relevant covenant.
Finally, parliament must pay greater attention to its responsibility to ensure that the rights defined by it are not usurped by a callous executive. A serious wrong is committed when a parliament that recognises the right to life and liberty cannot secure an end to extra-legal killings carried out by state employees, when it allows military courts at the cost of due process, and if it cannot ensure arrest and punishment of the killers of human rights defenders, from Perween Rahman, Rashid Rehman, and Sabeen Mahmud to Zarteef Afridi and Jarar Husain.