Human Rights and Democratic Development in Pakistan

by Hina Jilani

Part III

VI.  Security Rights

     The rights to life, liberty, and security of person have remained vulnerable to violation in Pakistan, at the hands of both the State and non-State parties. While constitutional guarantees do exist for fundamental rights (208), the State has not honoured these guarantees. It has either violated these rights through its own actions, or has failed to provide protection against violence committed by non-State parties. The threat to security rights has risen sharply since the 1980s. An acceleration in the rate of crime as well as in sectarian and ethnic strife have contributed to this rise. While the influx of arms during the Afghan war has resulted in the former (209), failure of successive governments to resolve political tensions, as well as attempts at manipulating factional antagonism, have intensified the latter (210).

     Not only internal factors, but also external interests in factional and sectarian politics, pose a threat to Pakistan's internal security. The State has not only failed to reduce the incidence of violence, but has itself pursued policies that have undermined internal security. The failure to check the growth of militant Islamic factions during the Afghan war has considerably exacerbated the problem. In this period Pakistan allowed itself to become the "front-line" State and encouraged the influx of militants into Pakistan, playing a leading role in their training for jehad (holy war). Many of these militants (211) turned into mercenaries, and joined the local religious extremists in committing acts of violence on Pakistani territory, at the behest of domestic sectarian groups or serving the interests of patron States such as Iran, Saudi Arabia, Iraq, or Libya. Many such groups remain actively involved in the internal armed conflict in Afghanistan. Pakistani security forces and intelligence agencies are believed to have encouraged, used and shielded these elements from time to time.

Sectarian and Communal Violence

     It is generally agreed that the Islamic policies of the military government in the 1980s contributed to a major decline in religious tolerance. Sectarian divisions have become more pronounced since the legitimacy to rule became firmly linked to Islam, not in response to popular demand, but through the machinations of General Zia. Religious contentions have also become more emphatically political, and rival sects have become contenders for more and more power in a bid to influence State policies and to intervene in governance. External support for sectarian factions has added to their capacity for violence.

     Pakistan's Muslim population is divided into two major sects, the Sunnis and the Shias. The Sunnis are further divided into numerous sub-sects. While violent confrontation is not unknown amongst the Sunni sub-sects, the major conflict is between the Sunni and Shia militant groups (212). They receive support from politico-religious parties inside the country, and use mosques and religious seminaries for indoctrination and inculcating mutual hatred. Sectarian violence is most common in the Punjab. However, brutal killings for sectarian motives have occurred in all provinces (213). Militant groups commit random acts of violence, targetting worshippers in mosques of rival denominations, killing indiscriminately (214). Targetted killings of known members of rival groups is common for both the major sects. It is estimated that Shia-Sunni conflict claimed 350 lives and resulted in serious injuries to 450 people in 1996 (215).

     Governments have tended to be intimidated by the militancy of these groups and their potential for arousing religious frenzy. The State has, therefore, failed to take timely punitive or redressive measures against the commission of sectarian violence. Attempts have been made at legislating to curtail violent sectarian tendencies, but none has succeeded to date (216). No consistent policy to manage sectarian divisions and to increase religious tolerance is visible as a government initiative. Peace moves have been made by the religious parties themselves. However, the more militant groups have resisted these initiatives and have disassociated themselves from them, sometimes after initially joining (217). Governments have set up peace committees from time to time, but they have failed to achieve results in the face of fierce conflict between the factions. The present government in response to another outbreak of sectarian violence in 1997, enforced an Anti-Terrorism Act. But this enactment not only attracted strong criticism from human rights groups, it was also censured by the Supreme Court and had to be amended. Policies and economic and social initiatives to provide alternative avenues to the youth who are vulnerable to these influences are lacking. How far legislative measures can succeed in the absence of any steps to deal with the larger issue of the politicization of religion, and with external interests supporting religious factionalism in Pakistan, remains to be seen.

The Minorities

     The various non-Muslim groups in Pakistan are officially recognized as "minorities" by the Constitution (218). This institutionalization of divisions on religious lines has adversely affected the participation rights of these sections of the population (219), and has made their security rights more vulnerable to abuse. Legislation and State policy has encouraged religious intolerance by accommodating religious extremism that has led to an aggressive hegemony of the majority religious group (220).

     A constitutional Amendment in 1975 declared the Ahmedis (who claim to be a denomination of Islam) a non-Muslim minority in response to pressures from a religious lobby objecting to tenets of the Ahmedi belief. This particular group has been at risk for decades, and has suffered persecution and violent attacks on life and property on many occasions, beginning with the anti-Ahmedi riots in 1953 (221). A law promulgated under the military government of Zia-ul-Haq prohibited the Ahmedis from freely professing and practising their religion. It barred them from using any nomenclature associated with Islam and from following Muslim forms of worship. As the Ahmedis consider themselves Muslims, every attempt at practising their religion is a contravention of the Ordinance XX of 1984 and provisions added to the Pakistan Penal Code through this Ordinance (222). Thousands of Ahmedis have been charged, arrested and sentenced under this law (223). Ahmedi publications are frequently proscribed and confiscated, and publishers arrested under the Ordinance.

     While Ahmedis are physically attacked, killed, and their property destroyed by religious extremists, the State has failed to take action which would secure their lives, bodily integrity and property. The impression that this community can be harmed with impunity has encouraged acts of violence against it. Anti-Ahmedi hatred is preached openly, and none of the country's laws have ever been invoked against those who have incited violence against them. Ahmedis have been targetted individually and collectively. There have been frequent incidents of Ahmedi villages being burnt, causing loss of life, property and vast displacement of population. Ahmedi places of worship are frequently attacked; burial grounds are desecrated; and congregation for religious purposes either attacked or threatened. State forces have never been deployed to protect the Ahmedis. Every time their assembly is threatened, the State prohibits such congregation through administrative orders on the pretext of preventing a law and order situation from developing.

     Other religious communities, though not openly denounced as pariahs, do not enjoy equality before the law or equal protection of the law. The Christians, in particular, are the most visible victims of violent religious intolerance. While the Pakistan Penal Code always included offences against religion, its provisions concerned injury to the tenets of all religions, and the fundamental goal was that of promoting tolerance. Under Zia's Islamization of laws, new offences were added to the Penal Code prescribing heavy punishment for blasphemy against the Holy Prophet of Islam (PBUH) (224), showing disrespect towards the holy personages of Islam (225), and for defiling the Holy Quran (226). The law of blasphemy, which entails a mandatory death sentence, has been widely used as an instrument of persecution against the Christian community. The most serious aspect of this persecution is not the prosecution under this law, but the risk to the life of the accused once the allegation is made. Several people have lost their lives in this way at the hands of fanatics, or those who claimed religious frenzy as a defence for killing the accused in these cases (227).

     The Hindus, with a concentration of population in Sindh, constitute another community which has remained vulnerable to various forms of violence. Forced occupation of land owned by Hindus is common in Sindh. Numerous complaints to the authorities against powerful and influential landlords engaged in this notorious activity has brought no relief or redress for the affected Hindu families. The most common form of violence reported from this community is forced conversion, mostly by young women abducted and forced into marriage by Muslim landlords or their protégés. Kohlis and Bheels are generally considered part of the Hindu community, although they are separate communities and are listed as "scheduled castes", a nomenclature generally applied to backward groups. They constitute more than half of the agricultural labor force of Sindh, and are among the most oppressed of all haris (228).

     Persecution, harassment, oppression and discrimination against non-Muslim populations in Pakistan have been the subject of numerous reports prepared by both international and domestic human rights groups. National laws and State policies that have contributed to the growth of violence against these communities have also been identified by these reports. Yet no government action has been taken to address the problems faced by these communities, or to secure their lives and property. The Bhutto government promulgated an Ordinance constituting a Tribunal for the Disadvantaged in 1994. The mandate of the Tribunal was to identify what discriminatory laws existed concerning minorities, women, and others, and to propose necessary changes. It was also to take cognizance of specific incidents of harassment, discrimination and other violations of rights. The efficacy of this law was never tested as the Tribunal was never established. The Ordinance having lapsed after the fall of the Bhutto government, the law is no longer in force.

Ethnic Conflict and Violence

     Figures quoted by the press and other sources regarding killings, excesses and abuse of power by law enforcement agencies, and the damage to property in incidents of ethnic strife, delineates the direct connection between ethnic relations and security rights in Pakistan. The case of Pakistan demonstrates how the neglect of issues of the access to political power, sharing of national resources, and recognition of cultural diversity can create a crisis, threatening not only individual security but the security of the State itself. Moreover, the Zia regime fomented all forms of ethnic conflict and armed all combatants. The resulting appearance of volatility gave Zia the excuse to perpetuate his dictatorship. Governments since Zia have been neglectful of the need to re-establish and promote tolerance and respect for human rights.

     The sense of deprivation amongst the Bengali population led to the break-up of Pakistan in 1971. Regrettably, no lessons were learnt from the 1971 tragedy. The age-old policies of centralized control, imposition of homogeneity despite the heterogeneous nature of Pakistan's population, and a failure to manage pluralism at the level of the State have caused different degrees of alienation amongst ethnic groups in the country. This alienation has manifested itself in conflicts, varying in intensity, and causing serious violations of the right to security of the population.

     The most striking feature of Pakistan's ethnic diversity is the dominance of the Punjab, the most populous, richest and most developed of the country's four provinces. The Punjabis are the largest ethnic group and are predominant in the military (229) and the bureaucracy. The North West Frontier Province (NWFP) and Balochistan are the least developed and least populous provinces in the country with 13.1 and 5.1 percent (1981 figures) of the population respectively (230). Although the province of Sindh with its port city of Karachi has remained dominant in trade and industry, it contains only 22.6 percent of the population and stands sharply divided between local Sindhis and non-Sindhis (231). The raging ethnic conflict in the latter province is of serious concern with respect to the right to life, liberty and security of person. While the underlying causes of ethnic discontent have a long history in Sindh, the manifestation of this discontent in the form of violent conflict emerged in the mid-1980s and has lasted for more than a decade.

     The first round of violence erupted in rural Sindh in the wake of the army crack-down against the Movement for the Restoration of Democracy (MRD) which was launched in 1983 by the political parties opposed to Zia's military regime. The situation in Sindh became particularly volatile, compared to other provinces, as this was the home province of Zulfikar Ali Bhutto, the popularly elected Prime Minister, hanged during the Zia regime. Since Bhutto's hanging in April 1979, frustration and anger had been growing amongst the rural population in Sindh, where there is a concentration of ethnic Sindhis. In the Sindhi nationalists' perception, it was the Punjabi army, in power at the time, and the Punjabi judiciary that had sentenced Bhutto to death, and they saw this as yet another assertion of Punjabi domination. Sindhi nationalist groups offered armed resistance to the military. Incidents investigated by the Human Rights Commission of Pakistan in 1986 revealed the devastation of rural Sindh at the hands of the army (232). The military presence in rural Sindh was justified by Zia's government on the pretext that a law and order situation prevailed in the province and needed a more powerful force than the police to curb lawlessness. The situation in the province deteriorated as time went by and no rapprochement or dialogue took place between the government and the nationalist groups to resolve what was essentially a crisis generated by a militant political movement.

     The conflict became more violent, and criminal trends were observed in the conduct of armed groups. Incidents of banditry were reported from all over rural Sindh. It was, however, evident that many of the gangs accused of banditry by the military were political dissidents turned outlaws. During investigations in rural Sindh, human rights groups noted the support that these gangs received from the peasantry. Army reprisals were carried out against villagers, including women and children, for giving refuge to "wanted criminals". In the period between 1983 and 1986, the situation in Sindh remained extremely tense. Independent observers investigated incidents of excesses committed by the military and civilian law enforcement agencies against the civilian population. Reports were published of findings that clearly indicated that the conflict was essentially political. Violence by the State authority had instigated a violent response, in which innocent lives were lost. The poor peasantry of Sindh was most affected by this conflict, and numerous families lost their homes, causing large-scale displacement. The government did not respond to the recommendations made in reports published on the Sindh situation. No judicial inquiry was conducted into reported incidents of excessive use of force by the law enforcement agencies, nor any measures adopted to give relief to the affected population (233).

     Whereas anti-Punjabi strains have always been present in Sindhi nationalist sentiments, the conflicts amongst the different ethnic communities in Sindh have taken a more serious turn since the 1980s, and have been a greater cause of violence in recent years. At the time of Independence in 1947, there was an influx of Muslim population into the territories constituting Pakistan from other parts of the Indian sub-continent. Most of the migration originated from Punjab (234) and Uttar Pradesh (235), in India. The population that came into west Punjab was ethnically the same and its assimilation with the local population was, more or less, trouble-free. However, a majority of the population that came to settle in Sindh migrated from Uttar Pradesh and other parts of northern and western India. This population represented the educated and professional urban classes of Indian Muslims. They migrated to urban areas of a region of the sub-continent with very different culture, traditions, and a totally different social structure and environment. Feudal trends were very strong in Sindh. The majority of the population was rural and under the influence of the feudal structure. An educated, professional class was almost missing (236).

     The needs of the new State machinery made it possible for the migrant population of Sindh, the mohajirs (237), to gain a more prominent role in the State structures than the indigenous Sindhis. They, therefore, enjoyed a share in power disproportionate to their numbers. On the other hand, the indigenous Sindhis have suffered discrimination by the State and have felt alienated from the Punjabi-dominated State. The Punjabis accommodated the mohajirs, because the State was promoting an ideology (238) shared by the mohajirs and, up to a time, there was no conflict of interest. The mohajirs gained particular prominence in the civil bureaucracy. Pakistan adopted Urdu as the national language, although it is not the native language of any part of Pakistan, and is, essentially, a language of the Muslims of Uttar Pradesh. This concession to the mohajirs has been particularly resented by the Sindhis. The Punjabi ruling elite, on the contrary, favoured this adoption, finding it suitable to the policy of imposing a semblance of homogeneity. Sindhi resentment has shown itself in language riots that erupted in the province in 1972.

     The Urdu-speaking mohajirs, numbering nearly one million at the time of Partition, formed almost one-fifth of Sindh's population in 1951 (239). This changed Sindh's demographic balance and created an urban-rural divide in Sindh, as the mohajirs became concentrated in the urban areas and the Sindhis in the rural ones. Disparity in development of Sindh's urban and rural areas is one indicator of the discriminatory development policies of the central government. It was during the tenure of Zulfikar Ali Bhutto as Prime Minister that the Sindhis received more attention with regard to their development and share in power. The mohajirs, however, felt that this was a deliberate attempt at promoting Sindhis at their expense. Sindhis were given preference through quotas in employment and education fixed for the rural areas of Sindh. It is also important to take into consideration the fact that over the years a Sindhi professional class had begun to emerge. Urbanization of population from rural Sindh started as the feudal structure became more oppressive and less able to support the landless peasants economically. These two factors were responsible, to a large extent, for the perception by the mohajirs that they were now faced with competition in areas hitherto not intruded into by the Sindhis. It was largely a case of declining privileges, rather than active discrimination against the Urdu-speaking population in Sindh.

     The induction of a popularly elected government headed by a Sindhi Prime Minister in 1971, with the Sindh government and legislature also being overwhelmingly composed of ethnic Sindhis, made the mohajirs feel vulnerable and insecure. They had felt more a part of the establishment under military governments. This was the first time that the mohajirs felt the need to establish themselves as a separate entity within Sindh, in order to establish their place in electoral politics. They claim a majority in urban Sindh, a claim strongly challenged by the ethnic Sindhis. However, it is also true that the Sindhis feel threatened that they may become a minority within their own province. The demographic reality of Sindh is shrouded in claims and counter-claims which are difficult to confirm or reject because no census has taken place in Pakistan since 1981 (240). Holding of census has become a sensitive issue in Sindh politics, and this sensitivity is largely responsible for the delay in conducting the national census due since 1991.

     Amidst these conflicts, the Mohajir Qaumi Movement (MQM) (241) came into existence, asserting a mohajir nationalist identity, and laying territorial claims on urban Sindh. The emergence of the MQM is a phenomenon much discussed in the political literature in Pakistan, and different motives are attributed to its founders. It has been claimed that the MQM was created by military intelligence services under the direction of Zia-ul-Haq, in order to build a political force in Sindh to combat the popularity of the Pakistan People's Party, and to highlight the perception of a conflict of interest between the two largest communities in Sindh. The organization was formed in 1986 by Altaf Hussain, a Bihari immigrant from Bangladesh. Up to that point, the Jamaat-i-Islami had received support of the mohajir community in Karachi and some of the other towns of Sindh. The MQM was initially a breakaway faction of the Jamaat student wing and called itself the All Pakistan Mohajir Students Organization (APMSO). The MQM did voice muhajir demands and was able to win the local body polls in Karachi and Hyderabad in 1987, as well as a majority of the seats in the urban constituencies of Sindh in provincial elections. But it used violence for ethnic mobilization and political control over the muhajir community in Sindh, a province where communal tensions already existed.

     The influx of economic migrants from other parts of the country into Karachi created tough competition for the mohajirs over jobs and other advantages, which were fast dwindling with the rapidly increasing population of the mega-city. The first violent clashes in Karachi took place between the mohajirs and the Pakhtun (242) migrants. The MQM attracted mohajir support, especially amongst the unemployed youth. Support increased after the organization was able to demonstrate its ability to deploy armed groups against ethnic rivals to establish mohajir control over Karachi and other cities in Sindh. Violent ethnic clashes ensued in the wake of this bid for power by the MQM. The cities of Karachi and Hyderabad were particularly affected. Ethnic riots between Sindhis and mohajirs led to bloodshed and massive displacement of both Sindhi and mohajir populations in 1986 and 1987.

     Though the country had returned to civilian rule in 1986, military rule effectively ended only with the death of Zia in 1988. Elections were held, and Benazir Bhutto came to power as the popularly elected Prime Minister. The 1988 elections made the urban-rural divide more pronounced in Sindh, with the PPP dominating the rural constituencies and the MQM winning a significant number of urban constituencies. The PPP government, failing to win a clear majority, initially entered into an accord with the MQM to retain its hold over the centre. However, the demands of the MQM were difficult for the PPP to fulfil without losing its support amongst the ethnic Sindhis, and the break between the two parties led to a campaign of violence by MQM in urban Sindh. The Army was once again deployed for restoring order. According to one estimate, nearly 15000 troops were deployed in urban Sindh by mid-1990 (243). The conflict intensified as the State machinery was ruthlessly used in operations against the MQM, resulting in mohajir casualties. Extra-judicial killings, detention without charge and general harassment of the mohajir population increased the resentment of the mohajirs against the government on the one hand, and strengthened their affiliation to the MQM on the other.

     The ouster of the Benazir Bhutto government in 1990 and its replacement by the PML did not change the situation in Sindh. The army remained in control throughout the period of the PML government from 1990 to 1993. The MQM was given a favoured position in Sindh until mid-1992, and the PPP was targetted by the MQM with the help of the Sindh Chief Minister (244). Many PPP workers were killed by MQM activists and the police. It was at this time that the MQM split into rival factions which committed atrocious acts of violence against each other. The MQM broke away from the PML government in June 1992. Another crackdown against the MQM followed this break, in the wake of killings and factional violence in urban Sindh. The Human Rights Commission reports that, by the end of November 1992, as a result of the army's "operation clean-up", 6,000 MQM members had been arrested, 11,000 houses searched, and 300 people killed in what the law enforcement forces claimed to be skirmishes (245). 1994 saw the worst outbreak of violence. The Human Rights Commission calls it 'one of the blackest years in the country's recent history' (246). The Army was withdrawn from Sindh in November 1994. The civilian forces, aided by the Rangers, were unable to control the terrorism unleashed in Sindh They also used excessive force, abused the authority vested in them, and caused unwarranted and unjustified harassment of people. Reports of illegal detention, extra-judicial killings and involvement of the police in criminal activity were made by national and international organizations.

     Political activism in Sindh has undoubtedly taken the form of violent militancy. Politically motivated violence against rival factions and acts of terrorism have caused loss of innocent lives. The common citizen feels threatened and insecure in this atmosphere of violence. Large parts of the city of Karachi are controlled by armed factions. Violent feuds between these factions have taken a heavy toll of life and property. The inhabitants of these areas live in a perpetual state of fear. They are denied the freedom of movement, and are without any State protection. The Human Rights Commission of Pakistan reported widespread extortion by armed political factions in a report on the Karachi situation in 1995 (247). The State has responded in an inappropriate manner by using violence, excessive force and illegal methods in an attempt to restore order. The conduct of the law enforcement agencies has reduced the credibility of the administration, and people's confidence in the justice system is at a low ebb. At the same time, outrage against non-State violence has been mitigated by State brutality, and many see terrorism as a reaction to State excesses. Failure of successive governments either to end the conflict through political dialogue, or to control violence, has resulted in bolder action by the militants. This has in turn been used by law enforcement agencies to justify violation of their discipline, and to ignore citizens' right to life, liberty and freedom of movement.

Women

     Women in Pakistan are highly vulnerable to violation of their rights to life, liberty and security of person. Where social attitudes, cultural practices, and religious precepts have allowed violence against women, the law has failed to provide either adequate safeguards against violence, or to promote attitudes conducive to the women's enjoyment of their fundamental rights. State institutions lack both sensitivity and capacity to deal with gender-specific violence. Law enforcement seldom acts to aid women victims, and judicial pronouncements have frequently reflected biases that indicate the strong influence of prevalent social attitudes.

     Sexual assault on women, including rape, remains one of the commonest crimes. The Human Rights Commission estimates that a rape occurs every three hours (248). No estimate, however, can be made of the numerous cases that go unreported. Incidents of gang rape have increased to an extent that legal provisions for its punishment had to be added to the existing law (249). The provisions of the Pakistan Penal Code related to rape were repealed by the Islamic penal law in 1979 (250). This law has become extremely controversial, and the women's movement has consistently advocated for its repeal. The main reasons for the position against the law relate to the difficulty in prosecution for rape, as well as the lacuna in the law, which exposes the victim to prosecution if rape is not proved. The Islamic law of evidence applicable to cases of rape requires the evidence of four adult male Muslims in order for the penalty of had (251) to be imposed. According to the law, testimony of the victim requires strong corroboration for conviction by the court. On the other hand, where sexual intercourse is established, but the absence of consent cannot be proved, the presumption that such intercourse occurred with the woman's consent can place her at a risk of prosecution.

     Since the enforcement of the Islamic penal law of zina, women's involvement with the criminal justice system has increased phenomenally. Their contact with the police and other investigating agencies has exposed them to the brutality of an undisciplined force, resulting in every form of custodial violence against women. The incidence of sexual assault on women in police custody has increased to such an extent that the law had to be amended to disallow remand of women to police custody (252). While numerous reports of custodial violence have come to light, no action is taken against persons responsible for this violence. The only known case in which State-initiated prosecution did take place was that of Aasiya Bibi (253). The police officer was acquitted for lack of evidence. It was only as a result of a campaign by women's organizations that the case was even registered and brought to trial.

     Women suffer serious violence in the domestic sphere at the hands of members of their own family. The underlying cause of this violence is the attempt to impose control over women's right to freedom of movement, decision-making and exercise of autonomy in any aspect of life. Women's sexuality is particularly controlled, and any assertion of her sexuality provokes a strong and violent reaction. Killing women in the name of family or tribal honour is accepted as a social practice in all social settings in the country. Courts have condoned the practice by awarding lesser sentences in such crimes, which has encouraged it (254). Another practice, common in the Punjab, is cutting off a woman's nose if she is suspected of having an extra-marital relationship.

     The incidence of wife-battering is so common that it is not even recognized as a pernicious form of violence against women. Such incidents are rarely reported, and when reported, rarely receive support from the law enforcing agencies. Such incidents are treated as issues that should be settled within the family without intervention of the State. Even in cases where women receive serious injuries and want to file complaints, they are advised by the police to reconcile with their husbands, as any matrimonial dispute would bring dishonour to them. This attitude has discouraged women from seeking redress, even when they suffer continued and extreme violence. The only known case in which the State prosecuted the husband for inflicting grievous injury on the wife is that of Zainab Noor in 1994. This case became an exception because of the direct intervention of the Prime Minister, under whose directions the police registered a criminal case against the husband, and brought it to court. The husband was sentenced to thirty years' imprisonment, because of the heinous nature of the crime and the serious injuries inflicted on the wife (255).

     Women's right to liberty is restricted in the name of modesty, protection and prevention of immoral activity. Sui juris adult women are placed in involuntary confinement under many circumstances. Where a case of abduction of a woman is registered, upon her recovery she is often forced to reside under the custodial control of institutions in order to ensure her appearance in courts at the time of trial, as she is not only a prime witness, but is treated as crime property. In cases of a woman marrying without the consent of the family, intervention of the court is frequently sought by the family to separate the couple on grounds that the marriage is invalid, and co-habitation of the couple would amount to the commission of the offence of zina. In such cases women are incarcerated in institutions, until a decision on the status of their marriage is taken. All this is done in the name of social morality. Courts have been known to refuse issuance of the writ of habeas corpus seeking the liberty of a woman on the grounds that her right to liberty is subject to conformity to social norms, and any suspicion that she may not abide by the standards of morality can disentitle her from receiving relief in equity (256).

     The issue of women's fundamental rights to life, liberty and security of person is foremost amongst the concerns of the women's movement in Pakistan. The movement has launched a forceful campaign in this regard and has been successful in getting some measures adopted for reducing the potential for violence on women. Benazir Bhutto's government established women's police stations for dealing with crimes against women, and to investigate crimes in which women were accused. The experiment has not been very successful, but improvements are under consideration which might prove to be more effective in achieving the objectives of this initiative. It is, nevertheless, true that a substantial change in social attitudes and institutional responses to violence against women is necessary to create an environment in which women can truly enjoy the fundamental rights guaranteed in the Constitution, without distinction on the basis of gender.

Cruel, Inhuman or Degrading Treatment or Punishment

     The right to life is guaranteed in the Constitution (257). However, this right is subject to law. The death penalty continues to be imposed. Originally, murder was the only offence for which the Pakistan Penal Code prescribed the death penalty. Offences in the Penal Code as well as under special laws for which death penalty is now imposed have increased in number (258). Trafficking and transport of drugs was made a capital offence in 1993 (259). Islamic punishment for adultery is death by stoning (260). Murder remains a capital offence. However, the law regarding offences against the human body was amended in 1990 to bring it in accordance with Islam. While there are serious objections to this law as concerns its conflict with human rights standards, murder is now compoundable and the family of the victim may accept compensation, which would result in avoiding the death penalty. Benazir Bhutto's Cabinet announced the decision to amend the law, thus barring the imposition of the death penalty on women. In the face of strong criticism by the religious lobby, it is not certain that the decision will lead to a change in the law. In any case, no woman has been executed since 1947, even though sentences of death are awarded to women and have been confirmed by appellate courts (261).

     The death sentence is executed by hanging. Death by stoning is prescribed in Islamic penal law. Death by decapitation was also awarded by a court but never executed. Pakistan has a high rate of execution of death sentences. Amnesty International has expressed concern over this in its reports, as have the domestic human rights organizations (262). The Constitution gives the President power to grant pardon, or other forms of reprieve, including commutation of the death penalty. This power has now been limited by the requirement of consent by the heirs of the victim in cases of murder (263). The Human Rights Commission of Pakistan and the Pakistan Chapter of Amnesty International have publicly campaigned for the abolition of capital punishment. A federal Ombudsman, Justice A.S. Salaam supported the HRCP position (264).

     Corporal punishment is prescribed by all Islamic penal laws enforced in Pakistan. Imprisonment is frequently accompanied by the imposition of the punishment of whipping. Punishments for offences against the human body can certainly be defined as cruel and inhuman, as these punishments include the infliction of the same injury on the body of the offender as the one inflicted by him/her on the victim. These punishments are to be executed by a medical officer in the presence of the victim or his/her heirs. Amputation of hands and feet is prescribed as the extreme penalty for offences against property (theft) (265). While sentences awarding such punishments have been pronounced, none have yet been executed.

     The Prison Rules allow the imposition of fetters on prisoners as a means of enforcing discipline. A large number of prisoners in Pakistan's jails are subjected to this inhuman form of restraint. Fetters are used even on children. Women have been allowed exemption from the imposition of fetters. In a 1994 order by the Lahore High Court partial relief was granted to children through a directive to the prison authorities not to impose fetters on child prisoners under trial in the Punjab (266).

Preventive Detention

     The right to liberty guaranteed in the Constitution is subject to law. While there are legal safeguards in the normal criminal procedure against detention without charge or trial, extraordinary legislation allows for preventive detention with powers to the executive that can, and are, used arbitrarily. The Constitution exempts laws of preventive detention from applicability of the guarantee against deprivation of liberty. Laws for preventive detention deal with "persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services" (267). Laws for the maintenance of "public order" (268) and other provisions regarding security for keeping the peace are also used for preventive detention (269).

Illegal Detention

     Detention without charge and without lawful authority is a common form of excess committed by the police and law enforcement agencies. Many times, individuals detained in this manner are released only after extorting payment from them. A serious concern for human rights groups has been the practice of detaining people in unauthorized detention centres, and keeping them incommunicado for long periods. The superior courts are swamped with petitions against the police for illegal detention. Relief is available through judicial intervention, but it is frequently difficult for the courts to effect the production of detainees, especially in cases where they are kept in the unauthorized "safe houses". It is also a common practice for the police to take persons accused of an offence into custody without formally recording the arrest to avoid their production before judicial authority to obtain remand, as prescribed under the law (270).

Torture, Death in Custody and Extra-judicial Killings

     Article 14(2) of the Constitution of Pakistan states "No person shall be subjected to torture for the purpose of extracting evidence". The wording of this Article is unfortunate, as it suggests that security against torture is available only if a confession is extracted in the course of such treatment. It is true that torture is widely used during crime investigation. Systematic use of torture as an instrument of humiliation and punishment by the police and other law enforcement agencies is also a matter of serious concern. The press, human rights groups, both national and international have reported most heinous methods used for inflicting pain and causing humiliation to persons under custody. This has also been noted by the United Nations Special Rapporteur on Torture in a 1996 report (271).

     Scores of deaths in police and prison custody are reported every year. The majority of such incidents are not properly inquired into, and only rarely have those responsible been prosecuted. Extra-judicial killings have reached enormous proportions and are most frequent in Sindh and Punjab. Killing of persons accused of crime in fake skirmishes has become a common occurrence. It is regrettable that some of the superior officers of the police have admitted and justified these killings on the grounds that laws and the judicial system are too lenient towards these criminals. This is nothing more than an attempt by the law enforcement and investigation agencies to cover up their own inefficiency and inadequacies. The ultimate admission to State atrocities was the dismissal of the Benazir government on the grounds, amongst others, of an unacceptably high number of extra-judicial killings in Karachi (272).

Slavery, Forced Labour, Traffic in Human Beings

     The Constitution forbids slavery in any form and prohibits forced labour and traffic in human beings. Child labor is prohibited for children under the age of fourteen specifically in factories, mines and other hazardous employment. The Constitution regards slavery as being "non-existent" in Pakistan (273). However, slave-like practices do exist together with forced and bonded labour. The latter practice is prevalent in both the industrial as well as the agricultural sector. While progress has been made in eliminating bonded labour from some industries (274), much remains to be done in the agricultural sector. The Special Task Force of the Human Rights Commission in Sindh has drawn attention to bonded and forced labour and slavery-like practices in rural Sindh. At the initiative of the Commission, between 1995 and 1997 a number of peasants were freed from private jails maintained by some of the powerful feudals of Sindh.

     It was mainly through the use of the constitutional jurisdiction of the High Courts that the practice of bonded labour was made visible and relief obtained for the affected population. Hundreds of bonded labourers were released by action of the High Courts in petitions against illegal confinement of the victims, especially in the brick kiln industry. The Supreme Court, taking suo moto notice, pronounced a landmark judgment prohibiting bonded labour (275). The Bonded Labour System (Abolition) Act of 1990, enforced the law against bonded labour in pursuance of the prohibition in the Constitution. Bonded debt was abolished through this legislation and monitoring mechanisms were provided for prevention of the incidence of bonded labour. This is also one of the few laws related to human rights passed by the Parliament in the post Zia-ul-Haq period (276). The law was passed during the first Benazir Bhutto government (1988-1990).

     The state of security rights in Pakistan indicates a lack of respect for the rule of law, human dignity and human life in the attitudes and practices of State authorities. The structures created by the colonial masters to rule the population are now used by the State authority to impose order. A service orientation is totally missing in the conduct of law enforcement authorities. Administrative structures, without adequate monitoring and accountability mechanisms, have tolerated indiscipline and arbitrariness at all levels of governance. It is, therefore, not surprising that excesses are committed with impunity by those in authority. Lack of proper training in methods of law enforcement and investigation, as well as an absence of human rights consciousness has resulted in the use of excessive force and resort to illegal methods in the performance of their functions by law enforcement personnel. An unstable political environment has added to the problems of an already insecure population. Pakistan needs a continuous political process for democracy to take roots, strong enough to inculcate a respect for human rights both in the attitude of authority as well as in society as a whole. For this to come about, the role of the State and citizens' perceptions about State authority need to undergo substantial change. The State must become a facilitator, rather than a controller. State authority must be seen as a resource available to the citizen for the enforcement of rights, not for their violation.

NOTES

208)      Article 9 of the Constitution. Return

209)     Report of Special Rapporteur on Torture; UN Economic and Social Council Document No. E/CN.4/1997/7/Add.2, 15 October 1996. Return

210)     See Ahmed, Samina, The Military and Ethnic Politics, Pakistan 1995-96, Edited by Charles H. Kennedy and Rasul Bakhsh Rais, Vanguard Publications, 1995. Return

211)     Some groups of militants are believed by many to have been trained by the Pakistan military agencies and financed by the United States during the Afghan conflict in the 1980s. Return

212)     The two groups principally known for their militancy and involved in committing violence are the Anjuman Sipah-e Sahaba and the Lashkar-e-Jhangavi on the Sunni side, and the Sipah-e-Mohammadi on the Shia. Return

213)     In September 1996, sectarian violence erupted in the Kurram Agency in the Tribal Area in the north of the country, resulting in a toll of 200 dead and unestimated damage to property. Sunni fundamentalist groups have attacked other denominations. The Zikris and the Ismailis have been targetted in Balochistan and the Northern Areas, respectively. Return

214)     Human Rights Commission of Pakistan reports the killing of twenty-two persons in two Shia mosques in Karachi in February 1995. State of Human Rights in 1995. Return

215)     State of Human Rights in 1996 - Report of the Human Rights Commission of Pakistan. Return

216)     A bill presented in the National Assembly by the government of Benazir Bhutto in January 1993 was shelved by the government itself and still remains forgotten. Return

217)     21 religious parties formed the Milli Yakjehti Council (National Solidarity Council) in an attempt at bridging the sectarian divide. However, the two main militant groups of Shias and Sunnis were the first to withdraw from the Council, claiming imposition on the basic tenets of their faith in the provisions of the code of ethics proposed by the Council. Return

218)     The Preamble to the Constitution affirms the commitment of the State to make provision for the freedom of religion for minorities, and Article 36 affirms the responsibility of the State to protect the "legitimate rights and interests of minorities" as a principle of policy. Return

219)     See section on Participation Rights. Return

220)     The Muslims constitute nearly 90% of the population of Pakistan. Return

221)     A commission of inquiry was set up under the chairmanship of a Judge of the Supreme Court, whose findings were published as the Munir Commission Inquiry Report. The issue of religious intolerance and its potential for causing violence is discussed in detail in this Report. Return

222)     Sections 298-B and 298-C of the Pakistan Penal Code. Return

223)     Human Rights Commission reports 2643 cases registered for different offences under the Ordinance between April 1984 to April 1996. State of Human Rights in Pakistan, 1996. Return

224)     Section 295C of the Pakistan Penal Code. Return

225)     Section 296 of the Penal Code. Return

226)     Section 295B of the Penal Code. Return

227)     The State of Human Rights in Pakistan reports of the Human Rights Commission of Pakistan list numerous such cases from 1992 to 1996. Return

228)      Landless peasants, working as labourers on large landholdings. Return

229)      Recent estimates show that 60-65% of Pakistan's army officers are of Punjabi origin, rising to over 70% in the high command. The Pakhtun (from NWFP) component of the officer corps is between 30-33%. The Baloch component of the army is between 2-3%. Sindhis represent less than 1% of the army's total strength. Ahmed, Samina; The Military and Ethnic Politics, Chapter 7 of "Pakistan 1995-96", Edited by Charles H. Kennedy and Rasul Bakhsh Rais. Vanguard Books (Pvt) Limited, 1995. Return

230)     Economic Survey, 1995-96, Statistical Appendix, pg. 13 Table 1.5: Published by Government of Pakistan, Finance Division, Economic Advisor's Wing, Islamabad. Return

231)     The political status of the Sindis in Pakistan is the same as under colonial rule. The British showered the Muslim Punjabis with favours in return for theirs services to the State. The Sindis were marginalized because they resisted colonial rule. Return

232)     Sindh 1986 : Human Rights Commission of Pakistan, Sindh Investigation Report, published in January 1987. Return

233)     Ibid. and The Sindh Report ; A Province in Turmoil, Mahmood, Sohail: Classic Publication, July 1989. Return

234)     The pre-Partition Punjab was divided as a result of the partition of India, parts of west Punjab having been included in the new State of Pakistan. There was an exodus of Hindu population from west Punjab and of Muslim population from east Punjab. Return

235)     Uttar Pradesh (UP) was a Muslim minority province of undivided India in which the movement for Pakistan had originated. Return

236)     At the time of Partition, the total population of Sindh was 3.9 million as compared to 28.5 million in Punjab and 48.4 million in Uttar Pradesh (UP). The Muslim population of these provinces was 2.8 million (71.8% of the total), 14.9 million (52.3% of the total), and 7.2 million (14.9 % of the total), respectively. Literate in English amongst the Muslim population of twenty years and over in these provinces were 4900 in Sindh, 58800 in Punjab and 49400 in UP. Alavi, Hamza. Pakistan and Islam: Ethnicity and Ideology; State and Ideology in the Middle East and Pakistan, edited by Fred Halliday and Hamza Alavi, Monthly Review Press, New York, 1988. Return

237)     This population is still categorized as the "mohajirs" (refugees). Return

238)     For instance the "two-nation theory", which essentially delegitimized the assertion of ethnic identity or regional interests in Pakistan. Return

239)     Ahmed, Samina; The Military and Politics; "Pakistan 1995-96", Edited by Charles H. Kennedy and Rasul Bakhsh Rais; Vanguard Publications, 1995. Return

240)     A census is to take place every 10 years. One was finally carried out in February and March, 1998, but the expected date of publication of the results has not been announced as of this writing (May, 1998). Return

241)     The MQM is a political organization, claiming to represent the mohajir population of Sindh. It has a well organized structure in urban Sindh. Karachi, Hyderabad and Sukkar are known to be their strongholds. Return

242)     From the NWFP. Return

243)     Ahmed, Samina; The Military and Ethnic Politics; Pakistan 1995-96; Edited by Charles H. Kennedy and Rasul Bakhsh Rais; Vanguard Publications, 1995. Return

244)     Jam Sadiq Ali. Return

245)     State of Human Rights in Pakistan 1992, Human Rights Commission of Pakistan publication, 1993. Return

246)     State of Human Rights in Pakistan, 1994, HRCP publication, 1995. Return

247)     Karachi: Quest for a Way Out; An HRCP Report, June 1995. Human Rights Commission of Pakistan, 1995. Return

247)     State of Human Rights in Pakistan, 1996. HRCP publication, 1997. Return

249)     Death penalty for gangrape has been added to the provisions of the Zina (Enforcement of Hadood) Ordinance, 1979. Women's organizations have, however, not supported this provision, as they oppose the death penalty as well as the Zina Ordinance. Another reservation about the law expressed by these organizations is that because of the harsh punishment, there will be more pressure on the victim, and prosceution will be even more difficult. Return

250)     Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979, more commonly known as the zina law. This law makes extra-marital sex an offence. When the offence is committed with the consent of both parties, it is called zina, and when sexual intercourse is forced upon one party by another it is known as zina bil jabbar. Return

251)     Islamic punishment for an offence prescribed by the Koran. This is the extreme penalty prescribed in the law of zina. Return

252)     Section 167 of the Pakistan Penal Code was amended in 1995. Return

253)     Aasiya Bibi was arrested on charges of theft filed by her neighbour. She was illegally confined, tortured and sexually assaulted while in police custody. Return

254)     Karo kari is the name given to the killing of a woman by her family or tribe if she is suspected of any illicit sexual relationship. Return

255)     Zainab Noor's husband was a local priest who had brutally injured his wife by shoving a burning rod into her private parts. She has become permanently crippled because of the injuries. Return

256)     See the case reported in Pakistan Legal Decisions, 1971 as PLD 1971 Lahore 128. A more recent case is that of Saima Waheed, which has received international publicity. Saima Waheed spent eleven months in a women's shelter on the orders of a court deciding the issue whether a marriage of a Muslim woman contracted without the consent of her guardian (the father) is valid under Islamic law. Return

257)     Article 9 of the Constitution. Return

258)     Kidnapping and abduction for ransom carries the death penalty since 1990 (Section 365-A of the Penal Code). Stripping a woman and exposing her to public view was added as an offence in 1984 and carries the death penalty (Section 354-A of the Penal Code). Return

259)     Dangerous Drugs Act,1930, was amended to introduce the death penalty for trafficking and transport of heroine, cocaine, etc. Return

260)     While sentences of stoning to death have been awarded, none have been executed ever since the law was promulgated in 1979. Return

261)     Fifteen women are on death row in Punjab province awaiting decisions on appeals or mercy petitions to the President. Return

262)     The State of Human Rights Report, 1992, of the Human Rights Commission of Pakistan reports eleven executions in the Punjab province on 15 November 1992. Return

263)     The Criminal Procedure Code was amended after enforcement of the Qisas and Diyat Ordinance, curtailing powers of the President to act in this behalf , without consent of the victim's family. Return

264)     State of Human Rights in Pakistan, 1996. HRCP publication, 1997. Return

265)     Offences Against Property (Enforcement of Had) Order, 1979. Return

266)     In Criminal Miscellaneous No. 200 of 1992. Return

267)     Article 10 of the Constitution. Return

268)     Maintenance of Public Order Ordinance of 1960. Return

269)     Provisions of Chapter VIII of the Criminal Procedure Code and laws regarding vagrancy are frequently used for detention. Return

270)     Under section 167 of the Criminal Procedure Code, every person who is arrested must be produced before a magistrate within twenty-four hours of the arrest. Return

271)     Economic and Social Council document No. E/CN.4/1997/7/Add.2 dated 15 October 1996. Return

272)     The Presidential proclamation dissolving the National Assembly under Article 58(2)(b) of the Constitution, dated 5 November, 1996. Return

273)     Article 11 of the Constitution. Return

274)     Notably so in the brick-kiln industry. Return

275)     Darshan Masih case, Constitutional Petition No.1 of 1988. Return

276)     Martial Law was lifted on 1 January,1986, but Zia-ul-Haq continued as President till his death in a plane crash in August 1988. Return