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A decree to counter discrimination

Waris Husain

June 2nd, 2012

 

 

Last week, Justice Dost Muhammad Khan of the Peshawar High Court declared that extra police security should be provided to the Hindu community in Peshawar, whose temple was recently vandalised. The ravaging of religious structures is but one way that minorities suffer rampant socioeconomic discrimination in Pakistan in silence. Thus, while the chief justice of the high court took a courageous step in requiring protection for minorities, there is a need for a new legislation, which can systematically address discrimination and provide remedies for injured minorities.

Lawyers and judges need to be able to cite to a well-defined legislation that prohibits and penalises discrimination in all spheres of life by private individuals and the government. As the court has recently quoted Khalil Gibran, justices and parliamentarians alike should reflect on his words: “safeguarding the rights of others is the most noble and beautiful end of a human being” and, in fact, it is an essential requirement for a government ruling a heterogeneous public.

Recently, Chief Justice Iftikhar Muhammad Chaudhry pointed out that Article 20 of the constitution protects the right of minorities to “profess, practise and propagate his religion” and that each religious order shall have the right to manage their own institutions. Article 26 goes onto state that there shall be no discrimination based on religion in the access to public places of entertainment and Article 27 prohibits the same in the appointment in the service of Pakistan.

While these constitutional articles encompass sweeping normative statements, they do not operationally define discrimination, which has left the articles to not be enforced and allowed inequality to worsen. As such, it is well known that the criminal law system is manipulated to target minorities in a discriminatory manner with false cases, the most common of which are for allegations of “blasphemy.”

These cases are sometimes fabricated by members of the community to unjustly grab the victim’s property, or to eliminate them from competition for jobs or school placement. The UN special rapporteur recently stated that Pakistani judges had been coerced to convict individuals under the blasphemy law without proper evidence and that lawyers were targeted for representing minority clients.

More importantly, Saleem Khursheed Khokhar, a minority MPA, recently argued that there needs to be an “unprejudiced school curriculum,” that allows for children to learn according to their own religion or beliefs. Before the 1960’s, Islamic education was limited to one class per semester, but now a certain strain of Islam is propagated in every facet of the required curriculum, from languages to history. Even though such basic classes can be taught from an unprejudiced perspective, minority children are forced to feel uncomfortable during a crucial time in their intellectual development.

This form of education disenfranchises minorities and also allows for the majority to accept brutal acts of intolerance against them without any calls for justice. Not even the elites are safe, as evidenced by the lack of public outcry at the public assassinations of Shahbaz Bhatti, minister for minority affairs, and Salmaan Taseer, governor of Punjab. Both men were gunned down for speaking against the discriminatory use of the blasphemy law, yet, the public seemed to congratulate the killer rather than mourn the victim. Therefore, it is clear why judges and public officials are silent on minority issues.

Police officers and civil servants are also threatened by the same extremist sectarian groups that target politicians and judges. These individuals cannot execute their job functions fairly because they lack the personal security to do so. If a police officer attempts to arrest a militant for targeting a minority, or if they provide security at a minority place of worship, they could be killed in the process. Therefore, minorities are left with no avenue for justice from politicians, police, judges, or lawyers.

Yet, there is a growing segment of the society that is becoming sensitive to the issues of minorities and others who have always maintained a belief in equality. While these opinions are drowned out by the voices of intolerance, there are many lawyers silently working to fight for the rights of minorities, and risking their lives for that cause. Law firms and advocates from across the country have taken on cases, often without payment, to assist minorities who have faced prejudice. Further, there are also judges like Justice Dost Muhammad Khan who are willing to sacrifice their personal safety in order to provide security to the Hindu community of Peshawar.

Yet, these lawyers and judges have been unable to bring justice to people with the current legal regime. Therefore, the parliament should bolster the courage of these individuals by enacting a comprehensive legislation that they can use to defend the rights of their minority clients. Such a law must define discrimination in all forms, and allow for minorities to file civil suits for monetary damages against any discriminator. If private individuals are monetarily punished for their discrimination, the society’s behaviour may change.

Further, there need to be steps taken to prohibit discrimination by state actors. Therefore, an administrative agency must be created whose sole purpose should be to adjudicate complaints of discrimination by the state actors. Minorities should be able to bring claims alleging discrimination in governmental or military hiring practices, or for the lack of equal education for minority children. The agency should be authorised to pass injunctive relief, where they can control the behaviour of the offending state actor and require a review of their decision.

The bill should also grant petitioners the ability to bring claims under the court’s original jurisdiction, as well as allowing the court to review the decisions of the administrative agency described above. The court will have to develop a standard by which to evaluate claims from minorities and weigh the evidence presented before them. This evolutionary process may take several years, but eventually, judges will be able to fairly assess the injury suffered by a minority and the proper remedy.

Also, a criminal bill should be introduced that defines and penalises hate crimes. Many nations around the world have enacted hate-crime statutes that enhance the punishment of a suspect if they committed their crime based on racial or religious bias.

Many will critique this policy recommendation, citing the fact that the State does not have the willpower or capacity to execute such laws. The chief justice of the Supreme Court recently asserted that the government has failed to execute the directives for equality in the constitution. This issue is far too important to become embroiled in the executive-judiciary controversy and a new law is needed to foster cooperation between the three branches.

The legislation would begin the long journey towards establishing equality of all citizens by creating new government agencies and allowing the court to remedy discrimination. Such a law would equip lawyers representing minority cases with even more legal precedence to invoke action from the court to remedy inequality and gross injustice. If nothing else, it could send a message that equality is a non-negotiable basis for the state of Pakistan, and all violators will be punished.


The writer holds a Juris Doctorate in the US and is a researcher on comparative law and international law issues.


 

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