Importance of Universal Declaration of Human Rights and its relevancy with Human Rights context in Pakistan
In Nelson Mandela’s words, “To deny people their human rights is to challenge their very humanity” [i]
What are Human Rights?
Each and every person has inherent dignity, value and worth regardless of race, gender, nationality, ethnicity, religion, or any other characteristics. Human rights are the standard for recognizing and protecting dignity, which equally belongs to each of us. Human rights are a set of principles that set out certain standards of human behaviour, it governs the coexistence of people in society, as well as their relationships with the state and the obligations that the government have towards them. In simple words, As Abraham Lincoln asserts, “Your rights end where my nose begins.”[ii]
Origin of Human Rights:
The complex and fascinating history of Human rights can be traced back to 632 A.D. (10 AH) When Prophet Muhammad (PBUH) laid down the outline for the First Human Rights declaration in his last sermon, many centuries before the Magna Carta, Bill of Rights and the Most prominent, Universal Declaration of Human Rights.
In the post-World War II era, there has been a united effort by the world to determine, promote and protect human rights. For that purpose, in 1948, United Nations General Assembly adopted The Universal Declaration of Human Rights.
Every year, on 10th December the world celebrates Human Rights Day in commemoration of the 1948 adoption of the Universal Declaration of Human Rights by the United Nations General Assembly.
Importance of Universal Declaration of Human Rights:
On the Adoption of the Universal Declaration of Human Rights, Eleanor Roosevelt who supervised the drafting of the Declaration said: “The object is to make people everywhere conscious of the importance of human rights and freedoms”[iii]
It is the historic international document that enshrines basic principles of human rights and freedoms everyone is entitled to, approved by the United Nations General Assembly by a vote of its members from almost all countries on 10 December 1948. It is important to mention that, eight countries abstained from the final vote on this declaration. I.e. South Africa, Saudi Arabia and the five Soviet bloc states, including the Soviet Union.
For the first time, countries throughout the world agreed on Human rights issues in a very comprehensive way and voted for the Universal Declaration of Human Rights that outline all humans as being free and equal, regardless of gender, colour, creed, religion or any other characteristics. The 30 rights and freedoms are laid down in the UDHR. I.e. the right to be free from torture, the right to freedom of expression and civil and political rights, such as the rights to life, liberty and privacy. Along with economic, social and cultural rights, i.e. the rights to social security, health and sufficient housing.
Foundation blocks of the Universal Declaration of Human Rights, Article 1 and 2 reaffirm human dignity and equality.
Article 1 of UDHR reads as follows:
“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” [iv]
Article 2 of UDHR reads as follows:
“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or another opinion, national or social origin, property, birth or another status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.”[v]
Nearly every country in the world has accepted the Universal Declaration of Human Rights. As its title suggests, universal. Around the world, UDHR has been incorporated many national constitutions and legal frameworks. It serves as a foundation for internal and international laws. Precisely, this declaration has become a clear benchmark for human rights.
The fact remains that the Universal Declaration of Human Rights is not legally binding. But based on the UDHR as a guide, the contents of this declaration have been elaborated into more than 80 international treaties, declarations, bills, national constitutions and legal codes. As it reflects, all countries, regardless of political, economic or cultural systems, have an obligation to promote and protect all human rights without any discrimination. Needless to say, all human rights are equally important, eternal, and universal, unified and are interconnected.
So, in spite of human distinction, there is one fundamental principle that underlies all rights set out in the Universal Declaration of Human Rights: that all human beings have equal inalienable rights. This means that human rights are the same for all men, women and children around the world, regardless of their state of affairs. It laid down the foundation for the human rights protections that we have in Pakistan today.
Having this in mind, the question arises where Pakistan stands globally in terms of Human Rights?
Universal Declaration of Human Rights’ relevancy with Human Rights context in Pakistan:
Human Rights is the most debatable issue in our country since its independence. Based on The World Justice Project’s Rule of Law Index 2021, Pakistan ranked 130th out of 139 nations in terms of obedience to the rule of law. As to, Fundamental rights, Pakistan is almost falling in the red zone and holds 126th position. Whereas, in terms of Regulatory enforcement Pakistan ranked 123rd which is below average. Not only Pakistan ranks 124th in the category of Civil Justice but also Pakistan holds 108th position in the category of Criminal Justice.[vi]
It is important to mention that, Pakistan is one of the original 48 signatories of the Universal Declaration of Human Rights. Like every country around the world, many parts of UDHR are incorporated into Pakistan’s Constitution and domestic legislation. But it lacks effective implementation and there are some key provisions missing as per the Universal Declaration of Human Rights.
Following are the missing Provisions in the domestic legislation of Pakistan as per UDHR:
Article: 5 of UDHR: Freedom from Torture and Degrading Treatment.
As I’m writing this, Pakistan does not have any specific law relating to torture, though around four months ago, In July, The Senate unanimously passed the Torture & Custodial Death (prevention & protection) Bill presented by Senator Sherry Rehman. But National Assembly has yet to place it on the agenda.
Earlier, Torture, Custodial Death and Custodial Rape (Prevention and Punishment) Bill, 2015, was proposed by Senator Farhatullah Babar. But it could not be passed till the National Assembly completed its five-year tenure. Under Article 76 of the Constitution: “a bill pending in the National assembly, shall lapse on the dissolution of the Assembly”[vii]
Article 11 of UDHR: Right to be presumed innocent until proved guilty.
In 2010, Article 10-A was inserted in the Constitution of Pakistan by the 18th Amendment which gives the Right to a fair trial but it still appears to be out of touch with the ancient concept of “Innocent until Proven Guilty” Universal Declaration of Human Rights recognize the application of this ancient principle as a legal right of the accused in a trial. Even though this article relates to criminal offences, its principles have resonated with all trials. Having said that, Media intervention in under trial cases has become very normal the suspects under arrest are depicted as if they are already declared guilty.
For instance: In 2019 Brigadier (R) Asad Munir who was accused in a case of restoration of a plot committed suicide and in his suicide letter he wrote: “My life has been made miserable by NAB, I am committing suicide to avoid humiliation, being handcuffed and paraded in front of the media” [viii]
The same happened in the case of, Aslam Masood who suffered a cardiac arrest because of grilling by Investigators and eventually, he died in NAB custody. And another accused namely, Chaudhry Arshad of Rawalpindi suffered a heart attack during interrogation by NAB and died in its custody. Similarly, Professor Dr Tahir Amin of BZ University, Multan failed in his bid to commit suicide and later on died in NAB custody. There are uncountable cases of deaths due to Harassment Humiliation and unprofessional behaviour of accountability and law enforcement institutions.
The case of the Khawaja Brothers has elucidated the matter. In its written 87-pages judgment in the Paragon City corruption case against Khawaja Saad Rafique and Khawaja Salman Rafique, the apex court held the following:
“Unfortunately 72 years have passed since Pakistan was formed and 47 years have passed since the constitution of Pakistan was made but even today the people are not getting their rights given in the constitution. All civilized societies recognize the principle that punishment comes only after conviction and the presumption of innocence subsist with the accused, till he is handed down the punishment after trial. It hardly needs any reiteration that the detention either pre-trial or during trial causes great hardship.”[ix]
Article: 22. Of UDHR: Right to Social Security.
Article 37(e) and 38(c) of the Constitution of Pakistan, ask the state to provide social protection to the citizens, but they are not part of the Fundamental rights chapter in Pakistan’s Constitution.
In recent years, a number of industrial disasters that claimed hundreds of lives across the country relating to fires, machines, boilers, confined spaces, working at height, electrocution and gas leakages were reported and a lot of people suffer from work-related illnesses which highlight the vulnerability of workers towards health and safety-related matters.
Recently, the lockdown period due to the coronavirus pandemic had hit the labourers hard as they were facing lay-offs, non-payment of wages and other livelihood problems. If there was social security in place, the workers and daily wagers might have received an unemployment allowance due to the strict lockdown.
Although, Federal government announced the Relief package but failed to provide relief to a significant portion of the population. The federal government had confessed that there was no data on daily-wage or informal workers.
Nevertheless, the Sindh government had initiated a process of universalization of social security services in the province, also the Sindh government has fixed 11th September as Occupational Health and Safety Day every year.
Article 12 of the UDHR: Freedom from Interference with Privacy, Family, Home and Correspondence.
Domestically, the right to privacy stems from the ‘inviolable dignity of man’ as is guaranteed in Article 14 of the Constitution of Pakistan. This constitutional protection, at face value, only refers to the privacy of the home. This is primarily intended to protect individuals from unauthorized entry and access to their personal spaces i.e. “four walls of household” Therefore, the CRPC is designed to perform a home search of any person in a prescribed manner.
With the passage of time, the protection of privacy is not limited to private places only. There is an expanding concept of privacy in public. Judicial precedents in Pakistan are also insufficient to privacy within four walls of the home and it is enforced to this extent only.
With the digitalization of the whole planet, recognition of privacy as a fundamental right is the need of the hour. The Prevention of Electronic Crimes Act, 2016, requires telecommunications and Internet service providers to retain data for a minimum of 90 days but does not include provisions to protect data or citizens privacy.
Article 9 of UDHR: Freedom from Arbitrary Arrest and Exile.
Among other South Asian countries, Pakistan has the highest number of missing persons. Arbitrary detention and enforced disappearances are one of the major issues in Pakistan. Although, The Constitution of Pakistan guarantees the liberty of persons the most fundamental human right.
Article 4 of the Constitution, provides:
“To enjoy the protection of the law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan, In particular, no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with the law.” [x]
Furthermore, Article 9 of the Constitution provides:
“No person shall be deprived of life or liberty save in accordance with the law.” [xi]
The abovementioned constitutional rights are strengthened by Pakistan’s international human rights obligations as well.
The enactment of the draconian The Protection of Pakistan Act, 2014 has given the act a legal cover. This permit law enforcement agency officials immunity, to prosecute the suspect. On the other hand, Bill for criminalizing enforced disappearance is pending for more than two and a half years.
Article 18 of UDHR: Freedom of Belief and Religion.
Forced Conversions is a rapidly growing issue in Pakistan that girls and women from religious minorities are facing. According to rough estimates, 1000 women and girls of religious minorities are abducted, forcibly converted and then married off to their abductors, every year. Every month, between 20 to 25 Hindu girls are forcibly converted revealed by a volunteer group working on women and minority rights.[xii]
There is no doubt that In Pakistan’s Constitution there are many provisions for “Religious Minorities” from freedom of worship to the right to equality and non-discrimination, many principles are enshrined in the Constitution and other legislation as enunciated by Quaid-e-Azam Muhammad Ali Jinnah in his historic 11th August speech. Yet that is not the whole picture.
In November 2016, Sindh Assembly unanimously passed The Sindh Criminal Law (Protection of Minorities) Bill but unfortunately it failed to make into law as the then Governor Late Mr Saeed-uz-Zaman Siddiqui refuses to ratify it in January 2017.[xiii]
Freedom of religion is recognized in various declarations and treaties. Specifically, Article 18 of the Universal Declaration of Human Rights uphold freedom of religion or belief:
“Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” [xiv]
Thus it’s the state responsibility to make a legal mechanism for above mentioned missing key provisions as per the requirements of the Universal Declaration of Human Rights.
Let us for now leave aside the missing provisions and violations of the Universal Declaration of Human Rights. There are some positive developments too:
In recent years, there are some welcoming and progressive sets of legislation are passed at the federal and provincial levels.
· Protection against Harassment of women at the Workplace Act, 2010: Under this Act, sexual harassment of women in the workspace and in public places is a criminal offence.
· The Sindh Domestic Violence (Prevention and Protection) Act, 2013: Under this Act, Physical, emotional and psychological as well as verbal abuse of other vulnerable persons, i.e. women and children by their household members is a punishable offence.
· The Sindh Child Marriages Restraint Act 2013: This act is promulgated with aim of ending early marriages in the province. It places a ban on the marriage of minor’s and makes it a criminal offence punishable with rigorous imprisonment of up to three years.
· The Sindh Hindu Marriage Act 2016: Before this, landmark legislation the Hindu marriages were not even documented. This is applicable to Hindus and other non-Muslim citizens. One year later, National Assembly promulgated similar law.
· The Khyber-Pakhtunkhwa Elimination of the Custom of Ghag Act 2013: Under this Act, the brutal tribal custom of ghag (forced marriage with a woman without the free consent of her own or her parents) is a punishable offence.
· Sindh Protection of Human Rights Act, 2011: This landmark legislation provides protection for the Human Rights in the Province of Sindh, by the establishment of the Sindh Human Rights Commission (SHRC) with statutory powers to monitor violation of human rights in public places. It also makes suggestions to the Sindh government on various human rights issues regarding life, liberty, dignity and equality.
· Sindh Senior Citizens Welfare Act, 2014: The main object of this Act is the welfare of senior citizens in all parts of the province. Under this, complaint centres will be set up along with homes for their physical, mental, emotional and socio-economic well-being.
· Sindh Occupational Safety & Health Act 2017: The main aim of this legislation is to maintain safety and improve health conditions at all workplaces throughout the province for the protection of workers during work.
· Juvenile Justice System Act 2018: Under this Act, Juvenile Courts and Child Protection Courts, have been established in-country to improve the juvenile justice system for young offenders.
· The Transgender Persons Act 2018: The Act provides legal recognition along with referral services, psychological counselling, and legal assistance to transgender persons.
· The Maternity and Paternity Leave Bill 2018: Under the bill, women are entitled to a maternity leave of six months and men will get paternity leave of three months. Passed by Senate but Unfortunately, National Assembly has yet to place it on the agenda.
· Sindh Maternity Benefits Act, 2018: This remarkable legislation guarantees safeguards to working women’s maternity benefits, i.e. leave along with full pay and allowances, proper nursing of newborn, to maintain job security” and other matters.
· The Sindh Women Agricultural Women Bill, 2019: Sindh is the first province in South Asia to pass such a law. Under this Act, female workers in agriculture, livestock, fishing, or other agricultural-based activities are given the rights and benefits that workers in the industrial sector are entitled to. Precisely, it recognizes women workers of the agricultural sector as formal labourers)
Besides Legislations, there are some progressive Judgments by the judiciary too. From granting voting rights to transgenders to Acquitting Asia Bibi based on insufficient evidence despite huge pressure from religious groups. And more recently, declared the two-finger & virginity test unconstitutional. That illustrates the responsiveness of the Judiciary along with legislatures.
With growing progressive legislations enacted for Human rights under UDHR guidelines along with strict and effective implementation, we can create positive change nationwide. As the world is about to celebrate the Universal Declaration of Human Rights forthcoming anniversary on December 10. All three pillars of the state need to reaffirm commitment to making our country a safer place for its citizens.
[i] Nelson Mandela. Joint Session of the House of Congress, Washington DC. 26 June 1990.
[ii] Abraham Lincoln Quote. https://quotefancy.com/quote/760740/Abraham-Lincoln-Your-rights-end-where-my-nose-begins
[iii] Eleanor Roosevelt. The United Nations General Assembly, Paris. 10 December 1948.
[iv] Art. 1 Universal Declaration of Human Rights 1848
[v] Art. 2 Universal Declaration of Human Rights 1848
[vi] WJP Rule of Law Index Country Press Release 14 October 2021.
[vii] Art.76 Constitution of Pakistan.
[viii] Nokhaiz Sahi (March 17, 2019) “Munir’s suicide note questions NAB professionalism” The Nation. https://nation.com.pk/17-Mar-2019/munir-s-suicide-note-questions-nab-professionalism
[ix] Dunya News (21 July 2020) “NAB case against Khawaja brothers worst example of human disgrace: SC” https://dunyanews.tv/en/Pakistan/555251-NAB-case-against-Khawaja-brothers-worst-example-of-human-disgrace-SC
[x] Art. 4 Constitution of Pakistan.
[xi] Art. 9 Constitution of Pakistan.
[xii] Report by the Movement for Solidarity and Peace in Pakistan. https://www.researchgate.net/publication/344308273_The_Narrative_of_'Forced'_conversion_in_Pakistan_Content_Analysis_of_NGO_Reports
[xiii] Hafeez Tunio (January 07, 2017) “Sindh governor refuses to ratify forced conversion bill” The Express Tribune. https://tribune.com.pk/story/1287146/sindh-governor-refuses-ratify-forced-conversion-bill
[xiv] Art. 18 Universal Declaration of Human Rights.