Par­lia­ment & ba­sic rights

The Pak Banker - - 4EDITORIAL - I.A. Rehman

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.

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