Alternative Report from the Asian Legal Resource Centre PAKISTAN International Convention on the Elimination of All Forms of Racial Discrimination
CERD-Consideration of reports submitted by states parties under article 9 of the convention
Introduction The state of Pakistan was envisaged as a pluralistic society where the basic human rights of all individuals regardless of their caste, creed, ethnicity, race, gender or religion would be upheld and protected under a constitution and legal framework that upholds basic freedoms for all. With the passage of time however, the country became Talibanized and militarized, the radicalization occurring in the name of religion by orthodox clergy, under state policies adhering to an extremely limited interpretation of Islam, all of which have fractured the nation along religious, ethnic and racial lines. According to the U.S. state department’s 2015 country report on human rights, societal discrimination against national, ethnic, and racial minorities persisted, as did discrimination based on caste, sexual orientation, gender identity, and HIV status. In 2015 Pakistan ranked 16th on theFragile States Index(FSI; formerly theFailed States Index), on the basis of racial, ethnic, gender and religious discrimination. The blasphemy law is only one of many institutionalized forms of religious discrimination in Pakistan. The Constitution declares Islam as Pakistan's official religion and states that sovereignty belongs to Allah, consequently shifting powers of legislation and legal interpretation to the Muslim clergy.Corruption within the government and police, as well as rape, domestic violence, sexual harassment, honor crimes, other harmful traditional practices, and discrimination against women and girls remains endemic. Child abuse and commercial sexual exploitation of children persisted. Child labor remained pervasive, as did widespread human trafficking, including forced and bonded labor.
The state’s disinterest in modernizing the criminal justice system has caused the system to collapse. Failure in dispensing speedy justice to the masses has led to the resort to mob justice. The investigation and prosecution process is extremely faulty, resulting in a dismal conviction rate. Despite calls for judicial and police reforms by civil society, the state has been unable to undertake reforms. The ALRC’s comment on recommendation contained in Paragraph No. 10 by Pakistan Article 1 of the Convention defines "racial discrimination" as:
“...any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”
Though the legislative framework prohibits racial discrimination in relation to access to public space (article 26 of Pakistan’s constitution), discrimination in service (article 27 of the constitution), the scope is limited in terms of general safeguards. There is no specific legislation on the subject of racial discrimination, which is ironic given the fact that the country disintegrated in 1971 due to the discrimination against the Bengali citizens of then West Pakistan (now Bangladesh).
Articles 33 and 38 of the constitution reiterate state responsibilities to provide means of sustenance to all citizens without bias, prejudice or discrimination. However, throughout Pakistan, members of religious, ethnic, and racial minorities–Hazaras, Balochs, Hindus, Christians, Sikhs, Ahmedis, and Shias, among others–encounter discrimination, oppression, and abuse at the hands of both state and non-state actors. These men, women, and children are systematically politically, socially, and economically disenfranchised.
While Article 36 of the constitution ensures that the state "shall safeguard the legitimate rights and interests of minorities", at the local and regional levels, illegal actions against religious and ethnic minorities go unpunished and thus continue to propagate. Fear of reprisal keeps many victims from reporting abuses, while those who do report incidents see their allegations dismissed or inadequately investigated. Stalwarts belonging to minority groups are discriminated against their contribution, and their achievements are often downplayed to meet the political agenda of the state. Dr. Abdus Salam for instance, was never officially granted recognition for his remarkable achievements in the field of science due to his religious affiliation. The state is more interested in appeasing the orthodox clergy that abets violence and intolerance in the country, rather than in genuinely providing equality for all. The ALRC’s comment on recommendation contained in Paragraph No. 11 by Pakistan
The minorities have regularly been hoodwinked into believing that their rights shall be guaranteed and protected by the state. In 2014, the Supreme Court ordered the government to establish a National Council for the Rights of Minorities, and set up a special Task Force. In pursuance to the Supreme Court verdict, the government of Prime Minister Nawaz Sharif has commenced a process to establish the National Council on Minorities’ Rights. In contravention to the terms of reference of establishment however, the government finalized the entire process without having consulted the minority groups or any representatives. Religious minority groups termed such a move as undemocratic and unethical. To date, the commission is yet to be formally established.
Women face legal and economic discrimination. The law prohibits discrimination on the basis of sex, but authorities do not enforce it. Women face discrimination in family law, property law, and the judicial system. Article 20 of the Constitution refers to each citizen's freedom "to profess religion and to manage religious institutions”. The legislation in pursuance to the constitutional guarantee nominally grants religious freedoms, however, the government has not guaranteed the exercise of these basic rights or established protections and security for minorities. The ALRC’s comment on recommendation contained in Paragraph No. 12 by Pakistan The law in Pakistan does not recognize a Hindu wedding; although a law has been passed by the Sindh provincial government, it is yet to be implemented. A married Hindu woman finds it extremely difficult to obtain a marriage certificate, to buy or sell property in their name, or obtain any official document. The legal lacuna has incessantly been overlooked despite lobbying attempts by several rights organizations.
The Punjab birth, death, marriage and divorce registration rules 2007 under 5(2e) requires that every report of birth shall require the caste of the father to be stated in the form for birth certificate, which underscores the falsehood of the claim made by the state.
The ALRC’s comment on recommendation contained in Paragraph No. 13 by Pakistan
The NCHR was created through an Act of Parliament as an independent body whose chairman and members are selected by a bipartisan parliamentary committee. The commission was touted as the step in the right direction to attaining GPS plus status, however in February 2016, vide an official communication, the government announced the establishment of a parallel body with an allocated budget of Rs400 million. The move was lambasted by members of senate as undermining the existing NCHR, and viewed as an attempt at financial embezzlement of the amount that was ear marked for the commission.1
It is lamentable that on the one hand the government flaunts the NCHR before the European Union for extracting benefits under the GSP plus, and on the other it has set out on a course to secretly undermine the Commission. Since its establishment, the NCHR was made dysfunctional by denying it funds.
The order takes away the right of the committee members to draft an action plan, allowing the executive to take charge of the independent body. Under clause 9(k) of the NCHR law, it is the responsibility of the Commission to develop “a national plan of action for the promotion and protection of human rights,” and this function could not be usurped by the executive.
Monitoring, follow-up and accountability mechanisms through national and provincial commissions are mere eye wash. The commissions are powerless bodies that are mandated no power to hold accountable any government body or state functionary for discrimination or human rights abuse.
The ALRC’s comment on recommendation contained in Paragraph No. 14 by Pakistan The state perhaps does not include banned organization such as Jammat ut Dawah, Lashkar e Tayyaba, Lashkare Jhangvi, Anjuman Spahe sahaba, Fiqah e Jafferia and other banned military outfit as “racist organization”. They openly conduct their activities, collect funds from the streets and run their offices. The state has been abetting and supporting the organizations, giving them full impunity to murder and incite murder of religious and ethnic minorities. Several murders of minority group members have been attributed to these banned outfits.
The government has routinely refused to take action on the incitement to murder and civil disobedience by religious extremists. On 6 February 2011, Hafiz Saeed, leader of the Jamaat-ud-Dawah, spoke at a public rally of 20,000 people calling for Jihad in the form of a nuclear war against India. The public incitement went unnoticed, attracting no action against Hafiz.
Hazara Community constituting half a million people has been a soft target for militant’s groups such as Lashkar-i-Jhangvi. In spite of their services for Pakistan, Hazara community has developed a ‘siege mentality’ due to frequent attacks by sectarian groups. According to media reports over the past 15 years over 2,500 men, women and children have died in such attack. Years of sectarian violence has forced many Hazaras to close their businesses, sell or rent their property and leave the country. Khatam-e-Nabuwat conferences (conferences on the ‘last prophethood’), regularly held under the auspice of the federal government, are used as platforms to disseminate hatred against the minorities, particularly the Ahmadis. Hate slogans plastered on walls in densely populated area of major cities like Karachi, Lahore, Quetta are a common sight, and no action is ever taken against the culprits. Religious discrimination incited by the hate mongers has caused minorities to live in constant fear. In 2015, Foreign Policy magazine ranked Pakistan as the third worst state in terms of group grievance. Interestingly, a trend in religious discrimination can be observed in the two most populated provinces of the country. Where Punjab has seen a spike in extremism, resulting in more attacks on minority worship places, Sindh, on the other hand, has been known for forced conversions of the Hindu community.
According to the government’s 2015 National Action Plan, established to crack down on terrorism, those responsible for inciting hatred will be dealt with accordingly, and action will be taken against newspapers and magazines contributing to the spread of such speech. This does not appear to be the case when it comes to anti-minority sentiment and literature however. In June 2016, the Pakistan Electronic Media Regulatory Authority (PEMRA) banned anchor Hamza Ali Abbasi when he spoke against the discrimination meted out to the Ahmadi minority group during a Ramzan transmission. The authority in its order stated that the opinion of the anchor had hurt the religious sentiments of the Sunni majority. The Judges also continued to muzzle media and other criticism of the judiciary through threats of contempt of court proceedings.
The ALRC’s comment on recommendation contained in Paragraph No. 15 by Pakistan According to the U.S. state department’s country report of 2015, refugees in Pakistan faced societal discrimination from local communities, whose members resented economic competition and blamed refugees for high crime rates and terrorism. Single women, woman-headed households, and children working on the streets were particularly vulnerable to abuse and trafficking. Provincial officials in Khyber Pakhtunkhwa and nationwide cited the presence of Afghan “refugees” -- without differentiating between PoR cardholders, migrants, and temporary visitors-- as the cause for deteriorating law and order in major cities. Public comments blaming Afghan refugees for the December 2014 terrorist attack on the Peshawar Army Public School, which resulted in 150 casualties, most of them children, led to the tightening of asylum space for refugees nationwide. In this context politicians made remarks opposing the extension of PoR cards and calling for the forced encampment or deportation of Afghan refugees.
The ALRC’s comment on recommendation contained in Paragraph No. 16 by Pakistan
There were numerous reports that authorities committed arbitrary or unlawful killings. Security forces reportedly committed extrajudicial killings in connection with conflicts in Punjab and Balochistan. The South Asia Terrorism Portal (SATP) reported that journalists, teachers, students, and human rights defenders also were targeted in Balochistan. According to the SATP, as of November 8, at least 229 civilians were killed in Balochistan. Whereas from December 2014, after the promulgation of the Pakistan Protection Ordinance and National Action plan more than 300 persons were killed in detention centers by torture or in encounters with the law enforcement agencies. The Voice of Baloch Missing Persons (VBMP) claimed the total number of persons who had disappeared could be greater than 19,000. The Balochistan National Movement claimed that a single security operation in Awaran district in July and August caused the death or abduction of 391 individuals.
Under the 2009 Aghaz-e-Huqooq Balochistan “package,” intended to address the province’s political, social, and economic problems, the government announced a general amnesty for all Baloch political prisoners, leaders, and activists in exile, as well as those allegedly involved in “anti-state” activities. In August, the federal and Balochistan provincial governments jointly announced a new peace package called “Pur Aman Balochistan” (“peaceful Balochistan”), intended to offer cash and other incentives for “militants” who wished to rejoin mainstream society. Despite the amnesty offers, some Baloch groups claimed illegal detention of nationalist leaders by state agencies continued. Several of the missing persons documented by the VBMP were well-known leaders of nationalist political parties and student organizations. The ALRC’s comment on recommendation contained in Paragraph No. 17 by Pakistan The report states that Pakistan has taken significant measures to promote rights of women, children and minorities, and yet several human rights organisations have placed Pakistan in the lowest ranks of human rights. According to a Thomson Reuters Foundation poll, Pakistan is the third most dangerous country for women after Afghanistan and Congo. The poll report has cited cultural, tribal, and religious practices that are harmful to women in Pakistan, as well as acid attacks, child and forced marriage, and punishment or retribution by stoning or other physical abuse as reasons for the ranking. The report also states that 90% of women in Pakistan face domestic violence.
Though ‘Ghag’ is criminalized by law (Khyber Pakhtunkhwa Elimination of Custom of Ghag Act, 2013), ironically this law is not applicable in the Frontier Region, where the tradition is most prevalent and has ruined the lives of many innocent girls. Due to lack of any complaint mechanism, no data is available on the number of Ghag victims in the Frontier Region. According to unofficial data however, 2015 saw 12 Ghag victims committing suicide, after being disheartened by the lack of justice.
Though the country is witnessing a surge in legislation meant to uplift the social and economic state of women, mere promulgation of law is not enough. In a country where the literacy rate is dismal, where almost 16 million girls between the ages of 6 and 11 are currently out of school as reported by UNESCO (“eAtlas of gender inequality in education”), expecting the status of women to be elevated just by promulgation of law is wishful thinking. There are an estimated 500,000 ‘third-gender’ citizens in Pakistan, including cross-dressers, transsexuals, eunuchs, hermaphrodites, and transvestites. In a conservative society like Pakistan, being a trans-person is deemed a crime. The transgender community is treated as outcastes having no identity or rights. Like other marginalized factions of the society, the transgender suffer discrimination and injustice at the hands of the political and social elite. While the Supreme Court ordered that free education and free health care must be guaranteed to the community, provincial departments have yet to implement this decision. Though the rights of the transvestites are guaranteed on paper, members of the community do not have these rights in practice. Peshawar being the most conservative and orthodox of all the four provinces, reportedly has the highest number of violence cases against the transgender. The ALRC’s comment on recommendation contained in Paragraph No. 18 by Pakistan
Unlike the tall claims made by the government of Pakistan, several state institutions and departments – including the superior courts – have failed to enforce a minimum five per cent quota for minorities in the workplace, as mandated by a Supreme Court decree. The Supreme Court, Lahore High Court, Pakistan Military Academy Kakul, Pakistan Air Force, Pakistan Rangers Punjab, do not offer a five per cent job quota to minorities.2
Religious minorities in Pakistan are deeply disappointed by the lack of implementation of the provision. The law is not respected and applied because of prejudice and religious discrimination. The ALRC’s comment on recommendation contained in Paragraph No. 19 by Pakistan In contrast to the government’s claim of encouraging inter faith harmony, the state has been criticized by civil society activists for ignoring the Hindu minority. According to media reports some unknown culprits have damaged, humiliated and insulted the idols of Hindu gods at Hinglaj Temple situated at Makli district in Thatta Sindh province. According to Dr Ramesh Kumar, Pakistan Hindu Council’s patron in chief, some culprits have also damaged the Hindu Radha Kishan Temple situated at Mirpurkhas Road, Hyderabad and also attacked and injured two women.
Dr Ramesh has alleged that some culprits tried to take possession of a Hindu colony and a temple situated at Hyderabad’s Fateh Chowk, adding that the colony is in possession of the community for the last 100 years. Culprits involved in the attack have not been arrested and punished, and the competent authority has not taken any action against them. Societal violence due to religious intolerance remains a serious problem.
In a 2014 report, the Minority Rights Group International identified Pakistan as one of the most dangerous countries in the world for religious minorities. According to statistics from Human Rights Watch, militant extremists killed more than 850 Shia Hazaras in 2012 & 2013. Hundreds more have been killed since then.Since 1990, at least 60 people have been murdered after having been accused of blasphemy. The government’s ability to ensure the security of all its citizens irrespective of their faith is not only a test of its willingness to preserve its rich social diversity, but will also be a major determinant of Pakistan’s future stability.
The ALRC’s comment on recommendation contained in Paragraph No. 21 by Pakistan Pakistan is ranked third in the world slavery index, with an estimated 2,058,200 people in modern slavery in the country, equivalent to 1.13% of the entire population. Weak rule of law, widespread corruption and poverty reinforce political, social, and economic structures of modern slavery in Pakistan. Bonded labour is most common in the brick kiln sector, with the majority of kilns in Punjab and Sindh provinces. The government has a limited response to modern slavery, with largely basic victim support services, a limited criminal justice framework, limited coordination or collaboration mechanisms, and few protections for those vulnerable to modern slavery. By virtue of Darshan Mashih vs. State (1990) the Supreme Court banned bonded labour as unconstitutional. Subsequently, the Bonded Labour System (Abolition) Act, 1992 was promulgated and enacted. Despite the enactment, the law was not implemented in earnest. The brick kiln workers were not made aware that they didn’t have to break their backs to pay off old debts, magistrates were not informed of their responsibilities and members proposed to be a part of these vigilance committees were not cognizant of their roles.
In terms of human trafficking, the country retains its position in the US State Department Trafficking in Persons Report for 2015. It remains on the tier-2 watch list of countries that face a major trafficking problem, and whose governments do not fully comply with the trafficking Victims Protection Act’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards. The report also notes that the Pakistani government does not fully comply with the minimum standards for the elimination of trafficking. According to the UN Office on Drugs and Crime’s Global Report on Trafficking in Persons 2013, 55-60% of all trafficking victims are women.
Despite the enactment of the Prevention and Control of Human Trafficking Ordinance (PCHTO) and the provisions of Articles 3 and 11 of the Constitution of Pakistan, the government has not shown progress in addressing human trafficking. Pakistan’s former Supreme Court Chief Justice Jawwad S. Khawaja in Criminal Review Petition No.47/ 2015 stated the “alarming lack of diligence on the part of the Government in relation to immigration into Pakistan, emigration from Pakistan, human trafficking and smuggling. Although there are a number of statutes dealing with these matters, it became apparent that these statutes are mere words on paper as the same are not implemented.” The ALRC’s comment on recommendation contained in Paragraph No. 22 and 24 by Pakistan Pakistani education has a curriculum of hatred. Outright expressions of hate against people of other faiths in textbooks are increasing. In 2016, an intermediate-level sociology textbook, being taught in Sindh and Punjab, describing the Baloch as an“uncivilized people engaged in murder and looting3” was reported to the media, creating furor. The offensive text book is still being used despite an apology by the publisher.
Many prominent educationists have been forced to flee due to threats from militants. Pluralism and inter faith studies are sacrificed by forcing non Muslim students to study Islam. Despite the constitutional obligation, the National Curriculum 2006 required children of all faiths from classes one to three to be taught to recite and memories Kalima Tayyaba with its meaning, and memorize and recite Darood Sharif with translation and memorize and recite prayers for starting and ending fasts in Ramzan.
The ALRC’s comment on recommendation contained in Paragraph No. 27 by Pakistan Pakistan has become a society religiously divided, rather than a nation united, after Islam was declared a state religion in the 1963 Constitution. The state has failed to give its minorities a sense of belonging, freedom and security. While the Constitution states that “subject to law, public order and morality, every citizen shall have the right to profess, practice and propagate his religion”, in practice discriminatory laws limit people’s freedom of religion. Similarly, freedom of speech is constitutionally subject to “any reasonable restriction imposed by law in the interest and glory of Islam”. Pakistan’s minority community is systematically being denied freedom of expression and the right to propagate their religion. On 25 November 2015, the office of Gwahi TV, a Christian TV channel based in Karachi was set ablaze by unknown persons. In complicity with the arsonists, the police are trying to brush aside the incident as an accident caused due to a short circuit, despite clear evidence of burglary.
The state routinely neglects to protect minorities during their religious festivals. The Christian community in particular is targeted by the militants during their festivals, for example on 25 December 2002 three women were killed and 15 people were injured in an attack on the United Presbyterian Church near Sialkot. The 2011 Pew Research Centre report titled Rising Restrictions on Religion characterizes Pakistan as the third least tolerant country to religious diversity.
The ALRC’s comment on recommendation contained in Paragraph No. 30 by Pakistan
The government of Pakistan has been maintaining a policy of suspicion towards NGOs and INGOs. The government is trying to exercise complete control over the independent working of the development sector, in contravention to international conventions and treaties. On 12 June 2015, international NGO Save the Children, with over three decades of presence in Pakistan, was given a 15-days ultimatum to wind up its operations in the country. Following immense international pressure, the Pakistani government subsequently backtracked from the order. The ban came in the wake of accusations linking the aid agency to a fake vaccination programme used in the hunt for Osama bin Laden. The government of Pakistan is presently mulling the proposed ‘Foreign Contribution Act 2015’, to regulate NGOs working in the countryand to closely monitor their operations. The proposed Foreign Contribution Act is in violation of a UN Human Rights Council resolution of 21 March 2013, which bars governments from putting restrictions on Civil Society Organizations’ access to foreign funds.
The government should seek to forge a strategic partnership with NGOs and other stakeholders operating in the non-profit sector, in order to achieve its own long-term development goals. Thousands of volunteers are working through these organizations and contributing towards poverty alleviation, enhancing literacy, improving health services and other social sectors. The government should work towards creating an environment conducive for them to operate in and contribute effectively to national development. It is the Executive’s responsibility to ensure that security concerns are not misused, as a premise for control over resources.
In the absence of effective local governance, the masses are not empowered to solve their own problems; they look to development NGOs for redress instead. The government should thus work towards empowering its citizens. Allowing local governments to manage funds and disburse them will result in better resource management, reducing the need for foreign NGOs to overlook or assist in development schemes.
### The Asian Legal Resource Centre (ALRC) works towards the radical rethinking & fundamental redesigning of justice institutions in Asia, to ensure relief and redress for victims of human rights violations, as per Common Article 2 of the International Conventions. Sister organisation to the Asian Human Rights Commission, the ALRC is based in Hong Kong & holds general consultative status with the Economic & Social Council of the United Nations. .