Title: Gender Equality and the Law
Date: August 2003
This article reviews the high level of commitment to gender equality and the prevention of violence against women expressed in international law, especially in instruments like CEDAW and DEVAW. The author elucidates the concept of equality and the significance of a contextual equality analysis by giving an overview of different models of equality and looking at how equality principles have changed to accommodate the diverse life circumstances of men and women. She traces the evolution of substantive equality, in the light of the limitations of other models of equality, and highlights its significance in preventing violence against women. She deems it imperative that all judges acquire knowledge about international human rights laws and understand the contemporary language of equality.Enforcing Fundamental Rights of Equality – Justice Sabihuddin Ahmed
In this paper, the author has studied the scope and powers of Pakistan’s Superior Courts, as far as affirmative action for the enforcement of fundamental rights of equality – against state functionaries as well as against private parties – is concerned. The Honourable Justice Sabihuddin discusses the fundamental differences and social contexts of the US Supreme Court vis a vis Pakistani Superior Courts, and assesses how far it is correct to follow the precedents of the US Supreme Court. He argues that in Pakistan, the power to enforce the rights conferred by the Constitution are the responsibility of the Courts, and that affirmative action for improving the condition of women and other disadvantaged sections of society is not the sole responsibility of the legislature. He examines what “equality before the law” and “equal protection of laws” really means in Pakistan’s Constitutional context, with reference to the distinction between legal/formal and genuine/real equality.
Independence, Impartiality, Equality – Justice (R) Claire L’Heureux-Dubé
In her overview of the formal versus substantive equality dialogue, the author highlights the Canadian equality jurisprudence. She articulates that in Canada, self-awareness has allowed increasing cognizance of the fact that constituent elements of society often do not conform to the traditionally dominant values and power structures, which have been shaped mostly by white men. In accentuating judicial independence and impartiality in this equality context and explaining how equality is made possible and enhanced by an independent and impartial judiciary, she discusses some of Canada’s experiences with equality jurisprudence. She believes that integral to satisfying the demand of justice is the achievement of equality in the process and in the outcome, since inequality is injustice and inevitably injustice leads to oppression.Access to Justice – Justice (R) Nasir Aslam Zahid
In this paper, the Honourable Justice (Ret’d) Zahid, emphasises the critical importance of a system of justice that is efficient, expeditious and economical, and assures the provision of justice both substantively and procedurally. He points out how the provision of this form of justice is a test of the level of civilisation for a state, and goes towards fulfilling the obligations of a welfare state. His assertion is that social justice beyond the courtroom is extrinsically interactive with economic, political and legal justice, and is concomitant with the existence of the welfare state. The author shows how access to justice and the justice system is a greater problem for the marginalized sections of society, especially women and the poor, for whom justice means living without fear and discrimination in an atmosphere where basic rights and mutual respect are assured to all, equally. He goes on to examine the extent to which justice is accessible to the common citizen by sharing his personal experience in the particular situation of Karachi’s Women’s Prison.Parallel Justice: Afghan Refugee Women & Customary Law – Rubina Saigol (Ph.D.)
This paper examines the position of Afghan refugee women in light of the customary laws that govern their lives. The author believes that women have been the most directly affected by the reinforcement of patriarchies that accompany the reconstruction of ethnic identity in conflict. She argues that the weapons most commonly and predictably deployed in this re-enactment of patriarchies, are ‘culture’ and ‘tradition’ and that the forms of dominant religion, tradition and cultural practice most often invoked as the continuation of past glory, tend to be manifestations of a latent or visible patriarchal urge. Reflecting on efforts made at the international level to advocate participation of Afghan women in the peace process, she emphasises the fact that Afghan women reject the rule of military factions and tribal norms, and demand a state that is democratic and accountable to its citizenry.
Women, Minorities & Hudood Laws In Pakistan – Naeem Shakir
In this paper, the author discusses how the introduction of the Hudood Laws in Pakistan is grossly discriminatory to both religious minorities as well as women, and uses examples of actual cases where these are manifested. He specifically emphasises the scope and extent of the Zina Ordinance, and highlights the contradictions and conflicts inherent in it by considering the differences in opinion amongst the various Islamic schools of thought. He also questions the validity of the Hudood Laws against the Constitution of Pakistan.
That Which Lies Within – Naina Kapur & K.Geeta
Through this paper, the authors have described the experience of their organisation (Sakshi, New Delhi) during a project that was aimed at helping women achieve judicial equality. The project worked closely with Judges and NGOs from the Asia-Pacific region, and was a process whereby both participating Judges and NGOs were given an opportunity for self-introspection. Among the results, many participants found that some of their deeply ingrained attitudes and biases about women, the judicial system and civil society activists, underwent a reassessment and a shift in focus.
Claiming Sacred Authority – the Proposed Hisba Act – Neelam Hussain
“Not surprisingly therefore, the recent adoption of the Shariat Bill and the Hisba Act has a ring of dreadful familiarity. Like its precursor, the Hudood Laws of 1979, which institutionalised and gave legal sanction to practices based on early Mosaic law and retrogressive readings of the Quran, the Hisba Act – yet another gesture in the name of religion and morality – will give legal cover to actions that are explicitly and implicitly violative of the fundamental and democratic rights of all citizens.”
Gender Equality and the Law – a comment – Salma Sobhan
“The proposition that I wish to explore is that it is precisely because lawmakers and the drafters of statutes see the issue of gender equality as a matter of words rather than of concept that one comes across disparity between what the law is presumed to say and what happens in practice.”
Poetic Justice – Eds.
“Judges have long been enjoined from the use of humor at the expense of the litigants before them for reasons that should be apparent. The Supreme Court quoted Justice George Rose Smith of the Arkansas Supreme Court in this context,
…Judicial humour is neither judicial nor humorous. A lawsuit is a serious matter to those concerned in it. For a judge to take advantage of his criticism-insulated, retaliation-proof position to display his wit is contemptible, like hitting a man when he’s down.
(Smith, A Primer of Opinion Writing, For Four New Judges, 21 Ark. L. Rev. 197, 210)”
Shari‘a Law and Society – Mujtaba Jamal
“Shari‘a Law and Society has been written at a time when Muslim societies of the day are equally affected by the memories of a glorious past and the challenges of an uncertain future. These societies are experiencing ever-growing conflicts between those who advocate strict and blind adherence to the letter of the Sharia law and those who seek dynamic interpretation of the tenets of the same. It is indeed important for the survival, if not the progress, of Muslim societies to acknowledge, understand, analyse and resolve these conflicts as they deeply affect the fabric of almost all Muslim societies.”
Title: Constitutional Evolution
Date: July 2004
In this article, Dr. Sammadar traces the evolution of constitutionalism in order to validate his claim that constitutionalism can only be colonial. In view of recent civil wars, he questions whether constitutions are freedom guaranteeing or coercive and insists that constituion is the natural companion or product of war, change and anarchy. He further supports his stance by references to various constitutional systems including that of Pakistan. He describes our country as “a nationalism caught in the eternal quest for a constitutional order” and explains that rather than being an example of a democracy that could not come into being he feels it is representative of the extent of force required by a society to turn itself over to constitutional order.The Viceregal Tradition in Pakistan – I. A. Rehman
The author outlines the constitutional history of Pakistan, highlighting the trials and tribulations that the system has suffered. Asserting that the Constitution has been used as a tool to implement what he terms “the viceregal system” in Pakistan, Mr. Rehman presents an indepth discussion on the havoc wreaked by the numerous changes wrought in the constitutional system. His no-holds-barred approach to the subject unequivocally lays out the political motivations which led to the Constitution being exploited for the vested agendas of various political leaders. Describing in detail the steady constitutional decline in the country, the author’s exposé is in fact a background study of the derelict constitutional system still prevalant in Pakistan.Text or Context? Islamisation of the Constitution in Pakistan – Sohail Akbar Warraich
This paper looks at the history of constitution-making in Pakistan and assesses how effective the various constitutions have been in defining the law of the land and providing a framework for legislation and governance. It studies the impact that constitutional evolution has had on the status of citizen’s rights and the fundamental concept of equality before the law. It also traces the political impetus that has led to the introduction of discriminatory legislation and the way the legal system has gradually shifted from legal principles and norms to a discourse on the rules of dominance. It also examines how conflicting provisions in the constitutions and vague frames of reference enabled the religious orthodoxy to establish its hold and paved the way for the erosion of the principles of equity, justice and good conscience.Achieving Equality: Preventing Violence Against Women – Justice Catherine A. Fraser
This article reviews the high level of commitment to gender equality and the prevention of violence against women expressed in international law, especially in instruments like CEDAW and DEVAW. The author elucidates the concept of equality and the significance of a contextual equality analysis by giving an overview of different models of equality and looking at how equality principles have changed to accommodate the diverse life circumstances of men and women. She traces the evolution of substantive equality, in the light of the limitations of other models of equality, and highlights its significance in preventing violence against women. She deems it imperative that all judges acquire knowledge about international human rights laws and understand the contemporary language of equality.
Is the Law Fair Towards Women? – Aasha Mehreen Amin
In this article, Amin points out the many contradictions in Bangladeshi law as far as women are concerned. In light of the work done by Faustina Pereira on the subject, Amin exposes the injustice women face because of the discriminatory legislation with regard to custody and guardianship, citizenship and marriage, among others. She also discusses the repercussions of the absence of legislation on key issues such as marital rape, sexual harassment and domestic abuse. She highlights the fact that the kind of discrimination that some of the laws demonstrate, is insupportable under the equality guarantees contained within the Constitution of Bangladesh.
Constitutional Evolution and the Status of Women in Pakistan – Justice (R) Nasira Javed Iqbal
“Under the Constitution of Pakistan, fundamental rights and freedoms are guaranteed to all citizens regardless of race, colour, creed or sex. Article 18 guarantees the Right to Work and adopt a lawful business, trade or profession. Article 25 provides that there shall be no discrimination on the basis of sex alone. However there is a continued system of overall male domination, even though some of the specific features of domination have changed.”
Notes on a Banishment – Kamal K. Jabbar
“In the Machiavellian world of Pakistani politics, the law and Constitution are subject to the machinations of the State and vested interests. As early as the 1950s, Keith B. Callard, an American political scientist observed, “… no one is willing to die for the preservation of the Constitution in Pakistan”.1 An emotional attachment to the Constitution and to the concept of the due process of law is essential in ensuring their preservation.”
Operation Just Cause – Eds.
“Many individuals, including the petitioners in the case Rasul et al. v. Bush, President of the United States, et al.,2 were captured abroad while hostilities continued. The petitioners were held by the US military at the Navel Base at Guantanamo Bay, Cuba. This base is occupied by the US under a lease and treaty which recognises Cuba’s ultimate sovereignty but gives the US complete jurisdiction and control so long as it does not abandon the leased areas. The petitioners had filed suits under federal law challenging the legality of their detention.”
The Clash of Fundamentalisms – Abbas Rashid
“His letter to a young Muslim who differs strongly with his views is a call for understanding the nature of the beast and the futility of 9/11 tactics on the part of enraged Muslims. This recipe, Ali emphasizes, is not a march towards victory but a sure route to disaster. It is a strategy that will only strengthen those such as the neocons in the US who need the imagery of radical Islam gearing up to overthrow Western civilization.”
Title: Constitutional Evolution
Date: April 2005
This article sheds light on the political turbulence that has marked Pakistan’s history and given shape to the various constitutional and extra-constitutional eras: the “Five Republics”. He discusses the evolution of our constitutional system, initially moulded by the departing British and later changed by various political leaders as and when required by political expediency. Outlining the pitfalls of all the previous as well as the prevailing constitutional structures in our country, he warns of a lost future in case we fail to resolve our constitutional issues and emphasises the need to concentrate on our economic problems.Barrister Kamal Azfar received his Masters degree in Philosophy, Politics and Economics from Balliol College, Oxford, in 1960 and was called to the Bar in 1963. A senior Advocate of the Supreme Court of Pakistan, he has appeared in a large number of reported cases. He was Minister for Finance, Planning and Development in Sindh (1972-74), and was elected to the Senate in 1975. Appointed Minister for Local Government and Rural Development in 1990, he was elected to the Senate for a second term in 1994 before serving as Governor of Sindh from 1995-97. The author of Pakistan: Political and Constitutional Dilemmas, Pakistan under the Military and Asian Drama Revisited, he is a regular contributor to legal publications.Discriminatory Amendments and Their Impact – ANIS HAROON
The author divulges the discriminatory nature of the amendments to the Constitution and their negative impact on the marginalised sections of society. Exposing the constitutional bias against minorities, she explains the detrimental impact of elections on the basis of separate electorates and of the draconian blasphemy law. She describes the havoc wreaked by the promulgation of the Hudood Ordinances and the resultant deterioration in the status of women in the country, and concludes with the hope that the government will change the Constitution to reflect the image it is projecting of itself as a progressive entity.
A graduate of the Sindh University, Ms. Anis Haroon obtained both her Masters in International Relations (1967) as well as her degree in law (1969) from the Karachi University. Beginning her career as a teacher and a journalist, she went on to become one of the leading human rights activists of Pakistan. Founder Member of Women’s Action Forum and the Human Rights Commission of Pakistan, Ms. Haroon is on the Boards of Aurat Foundation and South-Asia Partnership and is also the Secretary-General of the Pak-India Peoples Forum for Peace and Democracy and the Social Action Programme International Board. She was President of Aurat Foundation from 1994-2001 and is currently working there as the Resident Director, Sindh.Constitutional Evolution and Judicial Power – DR. S. MURALIDHAR
In this paper, the author is of the view that the expansion of the scope of judicial power and functioning has had a major impact on the evolution of the Indian Constitution. Focussing on the Indian judiciary and drawing parallels from Pakistani courts, he discusses this premise in view of the interaction between the judiciary and the legislature, the judicial review of executive action and the judiciary’s control of its own affairs whether regarding the interpretation of the limits of powers of other organs of State concerning the question of impeachment and removal of judges, or the scope of jurisdiction in Public Interest Litigation. He also outlines areas of common concern to the judiciaries of both countries.
Dr. S. Muralidhar earned his doctorate from the University of Delhi. He was enrolled as an advocate in 1984 in Chennai and has been practising in the Supreme Court of India since 1987. His area of work includes constitutional law, election law, criminal law, human rights, legal aid and public interest litigation. A part-time Member of the Law Commission of India, he has also served as a member on the Supreme Court Legal Services Committee (2000-04). The author has written and spoken widely on access to justice, public interest litigation, economic, social and cultural rights and the death penalty. His book titled Law, Poverty and Legal Aid: Access to Criminal Justice was released in August 2004.
Revival of Jirga System: What Next? – JUSTICE (R) NASIR ASLAM ZAHID
This article examines the proposed Sindh Amicable Settlement of Disputes Ordinance, 2004, and the constitutional standing of the system of jirga. Discussing three prominent judgements of the Superior Courts of the country in which the issue of jirga has come up for consideration, the author lauds the progressive stance adopted by our courts. The Criminal Law (Special Provisions) Ordinance II of 1968 and the Provincially Administered Tribal Areas Civil Laws (Special Provisions) Regulation of 1975 were declared void in these cases, as they were violative of the Constitution of 1973. The author advises immediate action to meet the challenge of parallel judicial systems if we are to maintain ourselves as a “civil society”.
A Barrister-at-Law, Justice (R) Nasir Aslam Zahid gained his masters degree from the University of Cambridge. He became the Judge of the Sindh High Court after twenty years of practice, went on to become the Chief Justice of the Sindh High Court and then a Judge of the Federal Shariat Court. He retired as a Judge of the Supreme Court of Pakistan in 2002. The author is Dean, Faculty of Legal Studies and Head of Hamdard School of Law at the Hamdard University, Karachi, since October 2000 and is also involved in a pilot project for provision of legal aid to women confined in prisons.
Negotiation, Non-Cooperation and Liberation War – DR. KAMAL HOSSAIN
In this paper, the author reveals his belief that discrimination against the East Pakistanis began as far back as the inception of the country when colonial techniques were adopted to curb the majority by appointing weak and pliable individuals in political positions and non-Bengalis to administrative positions. He describes the dominant role of the West Pakistan establishment in the politics of Pakistan from 1947-1971, emphasising the role of Ayub, Yahya and Bhutto, and explains how the non-acceptance of the Six-Point agenda of the Awami League as part of the Constitution became the breaking point in 1971 and culminated in the “declaration of independance” by East Pakistan.
A graduate of Oxford, Dr. Kamal Hossain was called to the Bar in 1959. He obtained his doctorate in International Law from Oxford in 1964. A senior Advocate of the Bangladesh Supreme Court, he has served as both the Minister of Law (1972-73) and the Minister of Foreign Affairs (1973-75). Chairman of the United Nations Compensation Commission, Geneva (1999 to date), the Advisory Council, Transparency International (1999 to date) and the International Council, Centre for International Sustainable Development Law, Montreal (2000 to date), Dr. Hossain has numerous publications to his credit.
The Birth of Bangladesh: A Consitutional Perspective – HAMID KHAN
The author seeks to examine the events that led to the break up of Pakistan in 1971. Delineating the language problem as the first serious point of contention between the provinces of West and East Pakistan, he describes the widening of this rift due to issues such as provincial autonomy and the denial of representation to East Pakistan on the basis of population. Emphasising the role of Sheikh Mujib as an immature politician, he elaborates how the veteran West Pakistani politicians and leaders were unable to control the volatile situation they had helped create. This led to military action in East Pakistan, which resulted in the creation of Bangladesh.
Senior Partner at Cornelius, Lane and Mufti, Mr. Hamid Khan studied law at the Universities of the Punjab and Illinois. A senior advocate of the Supreme Court of Pakistan, with more than thirty years of practice behind him, the author has lectured at several prestigious institutions. President of the Supreme Court Bar Association of Pakistan (2001-3) and the Lahore High Court Bar Associaton (1992-93), his publications include Constitutional and Political History of Pakistan, Islamic Law of Inheritance, Principles of Administrative Law and Administrative Tribunals for Civil Servants in Pakistan. Mr. Khan is an Ebert and DAAD Fellow as well as a member of The Hague Academy of International Law.
“Honour” Killings in Pakistan: What “honour”? Whose “honour”? – Tahira Abdullah
“Of these and other facets, violence against women is perhaps the most horrific and intolerable, since on one level, its impact ranges from physical injury, e.g. battery, acid throwing, stove-burning, or organ dismemberment, to unwanted pregnancy resulting from rape or gang-rape, to death from so-called ‘honour’ killings. On another level, the emotional trauma and mental scars remain for life with the survivor, quite apart from and in addition to the stigma, shame and ‘dishonour’ with which the survivor of violence against women is doubly victimised, along with her entire family. Many such victims are subsequently cast off by their families, especially those who have been subjected to rape or gang-rape.”
The Law of Qisas and Diyat as Incorporated in PPC, 1860 – Justice (R) Majida Rizvi
“Since the law is supposed to be based on Islamic jurisprudence, Quran and Sunnah, let us first see what is the concept of justice in Islam. As is known, a law is introduced to provide justice to its citizens or people. God who is the Master of Universe is Himself Adil (just). Justice is one of the causes for the creation of earth, as is ordained in Ayah 45:22:
Allah created the heavens and the earth for just ends, and in order that each soul may find the recompense of what it has earned, and none of them be wronged.
In the eyes of law, justice means equality with which the law should treat people, regardless of their social, political or economic status. According to Sura Al-Hujurat 49:9:
The Muslims are directed to make peace between them with justice and be fair for Allah loves those who are fair (and just).”
Welcome Back, Mr. Advani – Eds.
“In such an atmosphere of suspicion and scepticism, New Delhi drew up a list of twenty people who were wanted for criminal and terrorist acts. Alleging that these individuals were based in Pakistan, New Delhi demanded their extradition under the 1989 Treaty between India’s Central Bureau of Investigation and Pakistan’s Federal Investigation Agency for handing over accused from either country on request.
Islamabad responded in kind and declared that it too had a list of wanted criminals. This list was also submitted to the United States Federal Bureau of Investigation Director Robert Mueller. Topping that list was Lal Krishna Advani, chairman Bharatia Janta Party (BJP)…”
Woman versus Man – Rukhsana Shah
“The book is divided into six sections covering marriage laws, family pressure, divorce, domestic violence, murder for male ‘honour’ and population control. These are all issues that describe the position of Pakistani women in a male-dominated patriarchal society. In the present day context, they highlight the abysmal position of women, whose fate is determined not only by the traditional and myopic socio-cultural bias against them, but also as a direct result of the inadequacy of the laws protecting women.”
Title: Marital Law & Customary Practices
Date: September 2005
The reform of the Turkish Civil and Penal Codes – Pinar Illkkarancan
A Question of Consent – Justice Shiranee Tilakwardane
Locating Consent – Uma Chakravati
Women’s Right to Exercise choices in Marriage – Sara Hossain
Beyond Petition and Redress – Sadaf Aziz
Grave and Sudden Provocation and “Honour” killings – Shahla Zia
Title: The Environment: Policy and Practices
Date: March 2007
Judicial Commission as a Way Forward – Dr. Parvez Hassan & Azim Azfar
Environmental Law and its Impact on Society – Justice (R) Saleem Akhtar
Linking Human Rights and Environmental Protection – Dinah Shelton
Effectuation of International Environmental
Law at National Law – Bharat H. Desai
When the Economy Bites Back – Najma Sadeque
Singapore: From Garden City to City in a Garden – Dr. Koh Kheng Lian