Articles

How can the law be abused when it is so strongly regulated by the statutes? That’s the question we all have, and I’m going to unfold it for you how.

In different countries we have seen how the law is still there, then maybe a case is even filed but the case does not reach its conclusion. Let us take a significant example in Africa, where many cabinet members will be seen to be involved in a case of fraud, but only a few will face the repercussions, and this is a different from the behaviour of ordinary people who, when faced with fraud, will face the law and get considerable punishment for it. You may ask, how this is possible? It is only possible because these people have strong connections with the government authorities, mostly the well-known political bodies.

This raises another question? Is it possible for cases to be dropped simply because the person in question holds a government position such as vice president, cabinet member and so on? The answer is yes, I know many will disagree with me but in reality, it is possible and the most prominent example is Kenya where a court dropped a £60 million corruption case against the Vice President. I think that’s absurd because if he was an ordinary person, these charges wouldn’t have just been dropped and all the evidence would have been there to prove that he was guilty enough to be charged with the crime.

In Uganda, the cases are there, but due to an inadequate justice system and lack of influence, these perpetrators of many crimes, such as cyber-crimes, violence against women, corruption etc., haven’t been able to reach their desired place because of the privileged protection afforded to them by their titles and power The government is aware of this, but remains largely unprepared to deal with such cases due to the pressure. In South Africa and many African countries, human rights cases are also numerous but seem impossible to resolve.

What does this say about the African system of government and the laws that are supposed to protect its people, also the judicial system in Africa needs a lot of change in the way it handles cases and not to be influenced by government officials?

As an aspiring future lawyer who wants to be involved in ensuring that at least the people who need to know the law can be helped and that the availability of the law is not only limited to the influential people but also should also serve the purpose of affluent people, people with less resources and power seem to be afraid of the government bodies and therefore tend not to report them to the concerned authorities. Very significant examples of the few lawyers who didn’t work for the government but rather preferred to work on their own for the welfare and betterment of the people, include advocate Male Mabirizi Kiwanuka Kassim and many others from Uganda, and were arrested for doing so. 

Before the advent of Islam, women in Arab were not given basic rights including the right to education and economic freedom. It was a common practice in the Arab society to inhumanely bury their female infants. Since the advent of Islam in the Arab society, women have been treated with respect and accorded basic privileges. It is a common misperception that Islam is a predominantly patriarchal religion. The reason for this is misinterpretation of Quranic texts and Hadith. To understand the significance of these texts and Hadith, one must comprehend the context and the circumstances under which it was revealed. There are numerous verses in the Holy Quran which on the surface ascertain the superiority of men over women. The interpreters overlook the context of such verses and hadith when attempting to establish its meaning.

 Islam is the most vocal religion when it comes to women's rights, with the ability to vote being an example. After a series of protest and uprisings, American women were given the right to vote in 1920. It was granted by the 19th amendment of the American Constitution. However, the women in Islam were given this right in the 14th century. The Arab women were given the ability to run business prior to when it was common in the west. They were allowed to engage in trades as well as in warfare and it was quite common for women to adopt unconventional professions. Women were popular in the education sector as well. For example, the most prominent and oldest university, Al-Qarawiyin Mosque and University, was founded in Morocco in 859 C.E. by a woman named Fatima al Fihri. During the times of warfare, women regularly performed nursing tasks, used to take care of the injured and sick during battles, and some of them even served as soldiers.

Aisha R.A, the wife of the Holy Prophet (Peace be upon him), was one of the most influential scholars and famous narrators of the Hadith. People came to learn from her since she was a renowned scholar. It was quite common for the women to trade in a market place, to the point where the second caliph Umar R.A, appointed a women named Shaffa bint Abdullah as a supervisor of the Bazar. Women were often involved in public affairs, lawmaking, scholarship, and teaching in the government sectors. Women were encouraged to participate in all sectors of society. Before Islam, women were deprived of the right to hold property. The male descendants of the family would inherit the share of women in the property. Islam gave women the right to inherit. In Islam, women are not burdened with financial responsibilities of household management. The man of the family bears that burden. Even if the woman earns after marriage, the husband is not entitled to her property. Islam granted women the right to accept or reject the marriage proposals; she has the right to enter into a marriage contract of her own free will, without being forced by anyone. Prophet Muhammad (Peace be upon Him) had many wives, all of whom he treated with kindness and respect. Narrated in one of the Hadiths, He (peace be upon him) said; “The best of you are those who are best to women.”

In conclusion, Islam has an extensive tradition of preserving the civil liberties of women based on the guidelines set forth by Allah and His Prophet (peace be upon him). Under Islamic law, women are empowered with numerous rights and privileges along with a dignified social status.

Prevailing Misconceptions in Pakistan Regarding Women's Rights in Islam

For a longtime, there have been misconceptions regarding women’s rights in Islam in Pakistan. These misconceptions explicitly neglect women, dishonor, and discriminate against them. Some people practice these misperceptions in the name of Islam due to lack of sufficient religious knowledge, with the intent to subjugate women and deprive them of their rights. However, Islam does not support these objectives because they contradict Islamic rules and principles. Some of these misconceptions include: 

1. “Islam deprived women as they are getting half a share that of a man in inheritance”.

As most people do not realize the role of women in Islam, there is a misconception that Islam denies women the right to inherit. When in truth, a woman is entitled to ½ of her parents’ property as opposed to her brother given that she has no financial liability towards the family. Moreover, she is entitled to her dower, to receive gifts during her marriage, and she is not forced to spend her income to bear the expenses of her family. Before marriage, the burden of expense lies on father, and after marriage, the husband bears all expenses. Besides these, she has the right of inheritance in the property of her husband and also in the property of her children.

2. “Unconditionally, a man can take four wives at the same time”.

Another misconception prevailing in Pakistan is Polygamy. According to the rules of Islam, a man can accept up to four wives at the same time, but only if he has the character strength to deal justly with them. The Holy Quran says:

“If you fear that you will not be able to deal justly with the orphans, marry women of your choice, two or three or four; but if you fear that you will not be able to deal justly with them, then only one.”

The preceding polygamy rule is conditional. The verse particularly refers to the just treatment towards orphans. It was revealed shortly after the Battle of Uhud when the Muslim community was left with several orphans and widows, as well as some war captives. The treatment was to be governed by the most humane and egalitarian principles. If a man wishes to take more than one wife, he must have sufficient financial resources to meet the needs of the additional wives, and he must treat them equally with justice regarding the fulfillment of their conjugal and additional rights. The argument behind polygamy is that it prevents divorce of the sick, elderly, and barren wife, refrains men from extra-marital affairs and eliminates social hypocrisy.

3. “The bride’s consent is not as important in marriage”.

Male-dominated society of Pakistan does not value the consent of the bride as much as it values groom’s consent in marriage. They believe that consent of the father or guardian is sufficient for a girl’s marriage, although Islam does not endorse it. In Islam, the free consent of the bride and groom is required for a legitimate marriage. A woman has the right to choose her spouse in Islam.

4. “There can be no marriage without dowry”.

Dowry is the most horrible practice in Pakistan that is condemned by Islam. A marriage without dowry has become socially unacceptable in today’s world. A greedy system is established in the society that requires the wife to bring wealth from her parents. If the dowry is denied by girl’s family, the girl becomes the victim of physical and mental abuse.

5. “Women have no right to divorce in Islam”.

Though the husband in Islam has absolute right to divorce, he may delegate this power to the wife. According to Islam, both husband and wife can choose to separate by mutual understanding. Besides this, a woman may demand separation by relinquishing all claims to the husband.

The main reasons for prevailing misconceptions in Pakistan regarding women's rights in Islam are due to lack of Islamic knowledge regarding its rules and regulations in different aspects of life. Another cause of these misperceptions is the lack of awareness among women about their rights and privileges in Islam, as well as the desire of the religious male interpreters to neglect women, to dishonour, and to discriminate against them, causes a great deal of inconvenience for women in society.

Bibliography

'19Th Amendment to The U.S. Constitution: Women's Right to Vote (1920)' (National Archives, 2022) <https://www.archives.gov/milestone-documents/19th-amendment> accessed 21 June 2022

'Women In Islam' (ISLAMIC SOCIETY OF GREATER LANSING, 2022) <https://www.lansingislam.com/women-in-islam.html> accessed 21 June 2022\

Patoari MH, “The Rights of Women in Islam and Some Misconceptions: An Analysis from Bangladesh Perspective” (Beijing Law ReviewOctober 12, 2019) <https://www.scirp.org/journal/paperinformation.aspx?paperid=96850> accessed June 21, 2022

Ahmed, G. (1997). Women’s Rights and Family Values: Islamic and Modern Perspective. Dhaka: Era Enterprise

Marcotte, R. D. (2003). How Far Have Reforms Gone in Islam? Women’s Studies International Forum, 26, 153-166. https://doi.org/10.1016/S0277-5395(03)00017-7

Doi, A. R. (1992). Women in Shari’ah (Islamic Law) (4th Ed.). Kula Lumpur: A. S. Noordeen

Orakzai, S. B. (2014). The Rights of Women in Islam: The Question of “Public” and “Private” Spheres for Women’s Rights and Empowerment in Muslim Societies. Journal of Human Rights in the Commonwealth, 2, 42-51. https://doi.org/10.14296/jhrc.v2i1.2100

Islam is unquestionably a way of life that offers a thorough guide for how humans are expected to live their lives, not merely a religion or a belief system. Particularly, the Shari'ah and the Fiqh provide excellent insight into all facets of daily life.

In the same context, the matter of child labour is recognized by Shari'ah, and guidelines have been established under Islamic laws to evaluate whether child labour is acceptable and, if so, with what restrictions.

Who is a Child in Islam?

         The first facet of the conundrum pertains to whom Islam recognizes as a child. The Muslim jurists who include the Shafi’i and the Hanafi generally define a child as a person who is under the age of puberty.[1] The Shafi’is also defines a mukallaf person as a person who is sane and attains the age of puberty. This, therefore, indicates that a mukallaf person is not a child.[2] According to Maliki jurists, a child means a person who has no capability for his interests including of his expenses and his meals.[3] The Muslim jurists from the four Sunni school of law unanimously agree that the puberty of a child is attained when there is a manifestation of certain natural symptoms or in the absence of natural symptoms, age can be considered as puberty indication.

The majority of Muslim jurists, including the Shafi'i, the Hanbali, Abu Yusuf and Muhammad of the Hanafi, one report attributed to Imam Abu Hanifah, and some of the Maliki, hold that the age of puberty for both boys and girls is upon the completion of his/her fifteen years of lunar year[4], provided that natural symptoms do not appear.[5]

Contrarily, Imam Abu Hanifah maintains that a boy reaches puberty at the age of eighteen and a girl reaches puberty at the age of seventeen.[6]His argument is based on the Qur'anic verse, "And come not near the property of the orphan save to develop it till he attains the age of full strength..." [7]According to Ibn 'Abbas' testimony, the boy is eighteen years old at full strength. Since a girl develops and understands concepts more quickly than a boy, there is a one-year difference between them.[8] This disparity is lessened by a boy by one year.

Islamic law operates on the principle of public interest (maslahah) as well. In the absence of provisions in the Qur'an and Sunnah of the Prophet (S.A.W), the law can be founded on maslahah and is directed by the Shari'ah's broad purposes, namely to achieve benefit for the people and to repel ill that may befall them. It is to defend the interests of children in the context of child labour because the employment may cause them harm.

Regardless, the proper treatment of children is emphasised sufficiently in Islam. Islam protects children's rights related to (1) "health and life," (2) "family, kindred, name, property, and inheritance," (3) "healthcare and proper nutrition," (4) "education and acquisition of talents," and (5) "live in security and peace and enjoy human dignity, and protection under the responsibility of parents," per UNICEF and International Islamic Center for Population Studies and Research[9]. Therefore, any profession or employment that infringes these rights is said to be prohibited.

Islam places strong emphasis on treating a child fairly and puts the parents and the guardians under strict duty to fulfill all the needs that a child might have.

On the other hand, the question that may be important to child labour is whether the child is physically fit to work and what the financial status of his caregivers is.

The Concept of Aahliyyah:

The principle of Aahliyyah is the legal capacity of a child to receive rights and perform obligations in Islamic law. This is to represent the human potential and fitness to carry out and maintain specific social and religious commitments. Literally, Aahliyyah means aptitude, fitness, competence, validity, authority, and qualification, all of which refer to a person's capacity and quality to fulfil particular obligations diligently.[10]

The Hanafi jurists divide Aahliyyah into two kinds: the capacity for the inherency of rights and obligations (Aahliyyah al-wujub) and capacity for the exercise of rights and the discharge of obligation (Aahliyyah al-ada’).[11]

Under Islamic law, a child under the age of puberty undergoes two different stages; undiscerning child from birth until the age of discernment (mumayyiz) and discerning child, from the age of discernment until the age of puberty. Al-Sarakhsi from the Hanafi school has fixed the age of seven years as the age of discernment.[12] This is also supported by Muslim scholars who have fixed certain periods for the undiscerning child that begins as soon as the child is born and ends when he reaches the age of seven.[13] [14]

Muslim jurists agree that a discerning kid possesses perfect receptive legal ability (ahliyyat al-wujub al-kamilah). This is because the existence of this legal ability is founded on life itself.[15] As a result, an undiscerning youngster can obtain all of the rights to which he is entitled.

Ahliyyah al-ada' al-kamilah is the ultimate stage in which the child attains his intellectual faculties and becomes an adult. He is capable of handling duties and obligations at this age. A person with this capacity can also undertake any jobs that a minor cannot do and can be held accountable for his actions. At this point, Islamic law imposes specific Islamic requirements on him, including as prayer, fasting, almsgiving, pilgrimage, and other religious obligations.[16]

Child Labour in the Quran and the Sunnah

The main sources of Islamic law, the Qur'an and hadith, do not clearly give regulations on child labour or child employment, as well as any prohibition on child employment that does not impact their welfare. Nonetheless, there are some hadith of the Prophet (S.A.W.) that appear to indicate that a child, particularly a discerning child, may give a service to his needy parents.

According to one hadith, the Prophet (S.A.W) had a bruising (hijam) surgery with a youngster, after which the Prophet paid the child.[17] Nonetheless, when analysing the hadith, a Muslim jurists stated that the wage that the Prophet gave to that youngster was because the child was very destitute.[18]

Regardless, Islamic law allows a youngster to work to help his family and due to poverty or destitution. This type of profession appears to be realistic for sustaining the child's own life and assisting the family. This approach appears to be consistent with the International definition of child labour, which only prohibits employment that is detrimental to the kid's welfare and interests.

Ruling of Islam On Child Labour

Islam allows child labour which is termed as “tashghil” as long as it is in line with the teachings and principles of Islam. Several prophetic traditions support this ruling. An authentic hadith is reported by Muslim and narrated from Anas bin Malik (May Allah be pleased with him). Anas bin Malik said: Once the Messenger of Allah (the Prophet) came to me while I was playing with the boys. He greeted us and sent me on an errand.[19]

Another authentic hadith is reported by Bukhari and narrated by Anas. Anas bin Malik said: Whenever the Prophet (peace be upon him) went to the privy, a servant and I used to carry a skin water container and a spear and he would cleanse himself with the water.[20]

These references from Hadith prove that the Prophet (peace be upon him) used to assign the children some works, so according to Islam, in some cases, children can be assigned with some tasks.

Islamic Principles that Protect Children from Hazardous Child Labor

Aside from the few hadith that depict and discuss child labour, there are numerous rules that imply harming children is prohibited. This is in accordance with the goals of Islamic law (maqasid al-shari'ah), which is to protect human advantage and eradicate any hardship that may befall them. This is clearly stated in the Qur’an;

“He has chosen you and has imposed no difficulties on you in religion”.[21]

In another verse, the Qur’an further states that,

“Allah intends every facility for you, He does not want to put you in difficulties (hardships)”[22]

The preceding verses demonstrate clearly that when an obligation is imposed upon the subjects, it is not implicit with creating hardships or difficulty. Consequently, this principle implies that any sort of pain imposed by one human on another is prohibited.[23]

Therefore, it is to be noted that when dealing with child labour, nine critical factors must be addressed. To begin with, the child should not be handed any illegal tasks.

Second, only youngsters with mental maturity and the ability to distinguish between right and wrong can be hired. It should be noted that young children cannot be held responsible for anything.

Third, approval from the parents must be obtained before employing any youngsters. Because parents are accountable for their children's care and education, authorization to work should come from them.

Fourth, it is critical that the tasks assigned to children enrich their knowledge and skills. It should look after their well-being.

Fifth, it is critical to describe the type of employment, work period, and compensation that will be allotted to children. Youngsters are wrongfully exploited in many circumstances due to a lack of adequate regulations and procedures, so these issues should be thoroughly settled before taking any children for any profession.

Sixth, job should not interfere with children's education.

Seventh, the task should not be detrimental to children's manners. It should aid in sustaining Islamic customs.

Eighth, children should be provided ample opportunities to play in order to ensure physical development.

Ninth, children must be treated with compassion and mercy.[24]

Child Labor in Islamic History: Anas Ibn Malik's Case

Anas ibn Malik was the khadim of the final Prophet (peace be upon him). This is an example of how tashghil and khidmah may be used effectively. The life of Anas demonstrates the anticipated nature of child labour. Anas, the Prophet's young companion, used to help him in different duties. Anas served the Prophet of Islam for more than nine years from the Prophet's relocation to Medina (from Makkah) until his death, according to a few reliable Reports (such as al-Bukhari, Book: 78, no. 6038).

According to several reports, the Prophet had a very excellent and amicable connection with Anas. Anas was never chastised by the Prophet for anything. If Anas did not complete a task after being ordered to do so, the Prophet never penalised him for it.  The Prophet was extremely fond of Anas.

Several reports claim that Anas was allocated the simplest feasible chores that were not physically taxing. Anas was found carrying water, miswak (the chew stick), and asaa (the hand stick on which the Prophet relied). He was not permitted to perform dangerous duties. For example, Anas was barred from participating in one of the most significant holy wars for Muslims, the Ghazwat al-Badr.

Comparison with reference to the Employment of Children Act,1991 and the ILO Convention

The Employment of Children Act,1991 as enforced in Pakistan is mostly in conformity with the provision of Shari’ah, with the exception of the fourteen-year-old minimum age for engaging in hazardous labour. According to Shari'ah, puberty is a sign of majority, and most children exhibit indications of puberty between the ages of fourteen and thirteen. The distinction here is that fourteen is a set and non-negotiable number in the Employment of Children Act of 1991. However, while Shari'ah permits hazardous labour for a youngster who has reached puberty, it also indicates another criterion within the confines of Aahliyyah: intellect and prudence. Therefore, regardless of whether a younger child has reached puberty, they cannot work as long as they lack discernment or intellectual aptitude. Furthermore, considering that it is the primary obligation of parents and the state to safeguard the child, Islam typically prohibits any form of labour or endeavour that may infringe on the rights of children.

A broader discrepancy arises from the ILO, which sets the minimum age for engaging in hazardous activities at eighteen years. It's also worth noting that the ILO enables youngsters as young as sixteen to work under the condition that they pose no possibility of harm. Work done by children between the ages of thirteen and fifteen is also authorized as long as it does not compromise their education or wellbeing, the ILO sanctions these provisions on the basis of the status of the state too. This is a divergence from Shari’ah provisions since Shari’ah permits children of majority age with requisite intellect and discretion to participate in hazardous jobs.

Despite this, Shari’ah adheres to the rights of children under the age of majority; as established in the preceding instances, with the ILO. Shari’ah permits labour for children under the age of puberty who have a certain degree of discernment so long as it does not impede their welfare.

Bibliography:

·       Abu Dawud, Sulaiman Ibn Ashas al-Sijistani. 1997. Sunan Abi Dawud, Book 32. Beirut: Dar Ibn Hazm.

·       Al-Shaybani, Ahmad bin Hanbal. n.d. Musnad Al-Imam Ahmad Ibn Hanbal.

·       Azzaam, H. F. H., & al-Muwaajidah, M. I. 2008. Ruling on child labour in Islamic law (Hukmu Umaalatil Atfaalifil Fiqhil Islami), al-Majallah al-Urduniyyah fi al-Diraasat al-Islaamiyyah, 3, 203-221.

·       Azzaam, H. F. H., & al-Muwaajidah, M. I. 2008. Ruling on child labour in Islamic law (Hukmu Umaalatil Atfaalifil Fiqhil Islami), al-Majallah al-Urduniyyah fi al-Diraasat al-Islaamiyyah, 3, 203-221.

·        Fatḥ Allāh Ibn Shukr Allāh Shirwānī, and Fuat Sezgin. 1986.  Majallah Fī Al-Mūsīqī. Jumhūrīyat Almāniyā Al-Ittiḥādīyah: Maʻhad Tārīkh Al-ʻulūm Al-ʻarabīyah Wa-Al-Islāmīyah Fī Iṭār Jāmiʻat Frānkfūrt.

·       Hasan, Ahmad. 1993. The Principles of Islamic Jurisprudence: Command of the Sharīʻah and Juridical Norm.

·       Imam Ibn Majah. 2019. Sunan Ibn Majah. Independently Published.

·       Malik Ibn Anas. 2014. Al-Muwatta of Imam Malik.

·       Muhammad bin Ahmad bin ‘Urfah al-Dasuqi al-Maliki, Hasyiah al-Dasuqi ‘ala al-Syarh al-Kabir, vol. 4 (Beirut: Dar al-Fikr, n.d), 124.

·       Muḥammad ibn ʻĪsá Tirmidhī, and Muhammad. 1967. Sunan Al-Tirmidhi Wa Howa Al-Jāmiʻa Al-Saḥih.

·       Muḥammad Ibn Ismāʻīl Bukhārī. 1966. Sahih Bukhari. Karachi Muhammad Sarid.

·       Muslim, Imam. 2016. Sahih Muslim.

·       Musnad Al-Imam Ahmad Ibn Hanbal. n.d.

·       Quran. n.d. Qura’an Majeed

[1] Jalal al-Din 'Abd al-Rahman al-Suyuti, al-Ashbah wa al-naza’ir fi qawa'id wa furu' fiqh al-Shafi'iyyah,

[2] Abu Bakar Mashyur bi al-Bakri Osman bin Muhammad Shata al-Dimyati al-Syafie, I’anah al-Talibin ala Hil Alfaz Fath al-Mu’in, vol. 4 (Beirut: Dar al-Fikrlil Toba’ahwa al-Nasyrwa al-Tauzi’, 1997), 8

[3] Muhammad bin Ahmad bin ‘Urfah al-Dasuqi al-Maliki, Hasyiah al-Dasuqi ‘ala al-Syarh al-Kabir, vol. 4 (Beirut: Dar al-Fikr, n.d), 124.

[4]This position is supported by the Sunnah of the Prophet of Allah (S.A.W. ), according to a tradition related by Ibn 'Umar: When he was fourteen years old, the Messenger of Allah examined him on the day of Uhud and did not permit him to participate in the battle. When he was fifteen years old, the Prophet again examined him and then let him to participate in the battle on the day of Khandaq (the battle of the trench).

[5] Ibn 'Abidin, Vol. 6, 153-154; al-Hattab, Vol. 5, 59; al-Shirazi, Vol. 1, 435; al-Bahuti, Vol. 3, 443-444.

[6] Al-Marghīnānī, Vol. 3, p. 284; al-Zayla'i, Vol. 6, 275-276.

[7] Al-Qur’ān, Sūrah al-An'ām : 152.

[8] See al-Marghīnānī, Vol. 3, pp. 284-285. ; al-Zayla'i, Vol. 6, 277.

[9] See also UNICEF, “Children in Islam - Their Care, Development and Protection,” Al-Azhar University International Islamic Center for Population Studies and Research (2005), 67

[10] 7 Hans Wehr, A Dictionary of Modern Written Arabic -Arabic-English, (London: Macdonald & Evans LTD, 1974), 33.

[11] 'Ali ibn Muhammad al-Bazdawī, Usul al-Bazdawi (Karachi, Pakistan: Mir Muhammad Kutub Khanah, n.d.), 324; M. A. Abdur Rahim, The Principles of Islamic Jurisprudence, 2nd Revised Edition (New Delhi: Kitab Bhavan, 1994), 206.

[12] Al-Sarakhsī, Vol. 24, p. 162.

[13] Al-Khafif, Ahkam al-Mu'amalat al-Shar'iyyah

[14] This is based on the Sunnah of the Prophet (S.A.W): “Command your children to pray when they become seven years old, and beat them for it (prayer) when they become ten years old, and arrange their bed (to sleep) separately”.

[15] Al-Kurdi, 16.; al-Khafif, Ahkam al-Mu'amalat al-Shar'iyyah, 236 & 241.

[16] Abdurezak A. Hashi and Bashiir A, “Human Capital Development from Islamic Perspective,”

[17] Reported by Ibn Majah, no 2164

[18] Syaikh Muwafiquddin Ibnu Qudamah, Al-Mughni, vol. 8

[19] Sahih Muslim, Book 2, Hadith 8

[20] Sahih Muslim, Book 2, Hadith 87

[21] Al-Qur’an, Al-Hajj, 22:78

[22] Al-Qur’an, Al-Baqarah, 2:185.

[23] UNICEF, “Children in Islam - Their Care, Development and Protection,” Al-Azhar University International Islamic Center for Population Studies and Research (2005), 67

[24] Azzaam and al-Muwaajidah (2008)

Bio:

I’m a student of Sharia and law LLB at international Islamic University. I’m profound of reading and writing various genres of literature and history. My proactive experiences from being an intern in different organizations to being a part-time writer in magazines and websites have enhanced my multilingual communication skills and leadership qualities. Being a student of law,I always prefer research and analysis writing, which is helpful for society and individuals.

"Freedom means the supremacy of human rights everywhere. Our support goes to those who struggle to gain those rights or keep them. Our strength is our unity of purpose. To that high concept, there can be no end save victory."

The idea of human rights is that each one of us, no matter who we are or where we are born, is entitled to the same basic rights and freedom. Human rights aren't privileges and cannot be granted or revoked; they are inalienable and universal. That may sound straightforward enough, but sadly, it gets incredibly complicated as soon as anyone tries to put the idea into practice. The history behind the concept of human rights is a long one. Throughout the centuries and across societies, religions, and cultures, humans have struggled with defining notions of righteousness, justice, and principles. So why are human rights abused and ignored time and time again all over the world? Perhaps the unidentified problem is that it's not easy to enforce these rights or to punish transgressors. As a result, it remains a declaration, not hard law. However, in the past decades, international human rights law has deepened and expanded to better protect human rights.

Firstly, there was no concept of human rights. In ancient times, the law of the world was "Might is Right." The stronger used to rule and dishonor the weaker and the poor. As human society developed, the concept of human rights also matured. With the passage of time and the spread of education, the concept of human rights gained prominence.

Now, in the wake of attacks on civilians, aid workers, and hospitals in conflict zones around the world, there are many references to the "rules of war." These rules and principles govern the conduct of armed conflict and aim to protect individuals who are not or are no longer participating in the hostilities, such as civilians, prisoners of war, and wounded soldiers. Humanity is a fundamental principle of the laws of war, which requires that all individuals be treated with dignity and respect. This principle is reflected in many aspects of the laws of war, such as the prohibition of torture, inhumane treatment, and the use of weapons that cause unnecessary suffering. However, despite the existence of these laws, violations of them continue to occur in many armed conflicts around the world. Some of the most egregious violations include the targeting of civilians, the use of child soldiers, and the deployment of chemical weapons. It is crucial for individuals and nations to uphold the laws of war and respect the principle of humanity to minimize the harm caused by armed conflict and protect the rights of all individuals involved. Though it can be challenging to enforce these laws in practice, efforts must continue to raise awareness of the laws of war and hold accountable those who violate them.

The prohibition of deliberate attacks on civilians, including murder, torture, and rape. The prohibition of attacks on medical facilities, personnel, and transport. The requirement to treat prisoners of war humanely and provide them with adequate food, shelter, and medical care. The obligation to respect and protect cultural property, such as museums, historic buildings, and religious sites.

Although the instinct of morality exists in humanity, worldly realities often make choosing right over wrong difficult. The Quran praises those who choose to sharpen their moral sense and condemns those for whom the ugliness of sin becomes beauty in their eyes. Each individual is accountable to God for the path he or she chooses.

Overall, the impact of humanity on the world is complex and multifaceted. While acts of humanity have the potential to create positive change and promote social justice, the absence of humanity can lead to significant harm and suffering. As such, it is critical that we recognize and value the inherent worth and dignity of every individual and work towards creating a more compassionate and empathetic world.

"To deny people their human rights is to challenge their very humanity." - Nelson Mandela

The conclusion drawn from comparative case studies that "war" among humans is not an evolved evolutionary strategy but an induced response to human disturbance is a contentious one. While it is true that human activities such as deforestation and hunting have been shown to contribute to aggressive behavior, it is also widely accepted that inter-group violence is a natural behavior in many societies. Human history has been marked by both war and peace, and it would be inaccurate to suggest that humans have always been at war. However, it is also important to recognize that warfare and conflict have been recurring features of human societies for thousands of years. While many societies throughout history have also found ways to resolve conflicts without resorting to violence, it is undeniable that war has been a persistent aspect of human history. Moreover, the causes of war and conflict are complex and multifaceted, often driven by factors such as resources, power, ideology, and identity.

In conclusion, while it is important to recognize instances of peace throughout human history, it is equally important to acknowledge that war and conflict have been recurring features of human societies for thousands of years. While it may be possible to reduce the incidence of war and conflict, it is unlikely that these phenomena will ever be completely eliminated.

As Oscar Wilde famously said and I quote: “It is not the prisoners who need reforming. It is the prisons”, enunciates the idea that prison reform has been a rigorous process through centuries of torment and struggle. Developments in punishment of crime have been strongly influenced by reformist movements, whether influenced by religious notions or socio-economic factors, which have promoted to the welfare and rehabilitation of the accused in the society. In the nineteenth century, Christians long-harboured a view that the cause of immorality in individuals was ignorance of their faith and lack of belief that contaminated the social order and thus resulted in degradation and deterioration of the society.

The sixteenth century reformation therefore classically focused on the refinement of moral conduct and eradicating immorality. Punishment during this period was often associated with the concepts of retribution, rehabilitation, deterrence, incapacitation and reparation. As a result, capital punishments during the Tudor and Stuart periods meant that serious crimes were treated as a threat to the public at large and dealt with in the most inhumane way to shame and disgrace the perpetrators. Death by strangulation was often a method used in front of the crowd as a punishment for heinous crimes such as treason. Execution was also carried out by beheading the convicted, and their properties were confiscated by the Crown. Corporeal punishments such as duckling stool, pillory, flogging, branding and stocking were also used as retribution and to discourage petty criminal behaviour.

During the sixteenth and seventeenth centuries, the concept of prisons or confinement was restricted to the intention of detaining the accused before trial, debtors before paying their debts, and convicts awaiting sentencing. Houses of correction, often referred to as “hospitals for the poor”, institutionalized the detention of criminals for their outrageous behaviour and provided socially constructive punishment in England. The first house of correction, Bridewell Prison, opened in London in 1553. These houses detained petty criminals - rogues, vagabonds, sturdy beggars and other idle and disorderly person - for petty offences and were usually used to combat poverty in the community. Prison labour emerged in these correction houses as the idle behaviour of these individuals led them to commit the crimes. Thomas More promoted hard labour as a means 'by which every man [criminal] might be put in a method to live and so be preserved from the fatal necessity of stealing and dying for it”.

By 1631 all English counties had a house of correction, amounting to a total of more than eighty institutions nationwide. However, the evolution of the society corrupted it of more crimes and the multiplicity of the nature of the crimes caused the conviction rates to increase drastically, but to avoid barbarous results, the judges together with the jury prioritysed acquaintance and the methods of transportation to avoid the “Bloody Code”. The principle of transportation persisted, with criminals being sent to Britain’s colonies such as America, Australia etc. The barbaric conditions of the prison Labor caused many prisoners to die of captivity and diseases such as galley fever. John Howard in 1777 who was a great reformer reformer wrote influential literature such as The State of the Prisons in England and Wales which rooted for the healthy conditions for prisoners, proper diets and inspections along with other necessities of life for those behind bars, this stirred a conversation throughout England and forced the government to comply with the minimalist regulations that did not exist at the time. Another revivalist named John Bentham invented the “Panopticon” in 1791, a prison where a strategically placed lighthouse tower was used to inspect inmates in circular cells.   

The design inspired prisons to be built in such a way which would allow the prisoners to be observed and seemingly be under constant surveillance. Perhaps the most revolutionary penal reform came with the passing of the Penitentiary Act was passed in 1779. This reform came about after the Spanish war as result of the Transportation Act, where the disruption caused by wartime activities in the American colony led the government to reconsider its policy of cheap and easy exile for criminals. The reformatory Act passed resolutions to build more prison cells and improve, not allowing Labor-intensive work for socio-economic development of prisoners. At the beginning of the 19th century, the capital punishment was replaced by imprisonment and first state prisons were established. In 1816, the first National Penitentiary was completed in London, housing 860 prisoners at the time. In 1842, Pentonville Prison was built based on the ideal design presented by Sir Jeremy Bentham. The period was pioneering as it introduced the idea of welfare of prisoners and reformatory ideas that accelerated the penal reform. In 1866, the followers of Sir John Howard established the Howard association an independent reform organization which campaigned for the abolition of capital punishment and advocated for compensation schemes for the victims. The establishment of the prison commission in 1877 centralised the prisons and promoted the idea that state prisons should be run to the rules of England and Wales.

 In 1895, the government committee submitted a report arguing that the purpose of prisons was the reformation of the moral character of criminals rather than to punish them, which led to the Prison Act being passed by the government in 1898, which abolished hard labor and emphasised the importance of isolated prison cells. It also recognized the constructive purpose of the prison cells and later sought to establish separate prisons for juvenile offenders. The aim of this revolutionary act was that offenders should leave prison a better person than when they entered. The twentieth century marked the further development of the criminal justice system by introducing church missionaries and voluntary societies which strived for the character development of the individual; this was later given statutory authority by the Probation order 1907, the first community sentence which enabled people to undertake rehabilitation programs or work in the community under supervised. The prevention of crime Act of 1908 introduced the Brostal system, which endeavoured to make progressive provision for the prevention of crime in England, including the introduction of prolonged detention of habitual criminals, and separate provisions for young offenders as a means of training and providing technical and educational instruction.

The year 1993 saw the opening of the first open prison, which allowed prisoners to work while serving their sentence and imposed lesser restrictions on the prisoners’ mobility. This was initiated to reduce the overcrowding in prisons and for rehabilitation rather than punishing them. The Criminal Justice Act of 1948 sought reformation through amendment, abolishing Scotland’s existing hard-labor laws, prison divisions and whipping laws. It introduced procedural methods for conduct of trials and the management of prisons and custodial matters. In 1965, marked the abolition of the death penalty at last as reformers argued it was an inhumane way of punishing criminals rather than focusing on their psychological and mental development and rehabilitating them into society to function as normal individuals. In the 1990s, the conservative and Labour governments acted on behalf of their political motive by encouraging private companies to invest in building prisons ascross England. The motive behind the privatesation of prison reform was that prison overcrowding had led to an increase in prison crime and violence. Although the process of building more prisons across the country has come to a halt, prison reform now focuses primarily on the character development and rehabilitation of the criminals rather than cruel and unnecessary punishments that wastes the most vvulnerable resource the world has today: human beings.

As we know, there has been ample debate regarding who should be appointed to the Hon’ble Supreme Court. There are two main arguments; some assert that judges should be chosen for the Supreme Court based on seniority, while others contend that a competent one should be elevated. We shall discuss and critically analyze both perspectives.

When it comes to those who support the principle that, judges should be appointed solely on the basis of their competence, rather than their birth date (in case the day of appointment in the high court is the same), the argument lacks logic. If we obey the seniority criterion, no one needs to be exemplary in terms of their performance, no one will try to be dedicated and devoted to their job since, they already know that it will not make a difference. While making a superior court appointment, the only aspect should be to designate the person who is the best in his domain and more capable than others, the best legal mind, not the senior one. Appointment in the Supreme Court should not depend on any set formula, such as seniority or quota. Rather, the nomination should be based on merit. The Supreme Court reflects our values and beliefs about different laws. A judge of the Supreme Court is the highest judicial authority. Whatever he decides will be followed by the judges of the High Courts and Lower Courts respectively.[1] He will be the guardian and interpreter of the Constitution of Pakistan. The cases that he decides shall be final and binding unless, the same decision be overruled by a higher bench. Hence, such a position should be handled by the greatest and most competent legal minds of the High Courts, so as to make sure that the rule of law be maintained, always. Owing to that, we must designate a person who reflects our moral and ethical norms. Justice Ayesha, the Supreme Court's first female justice, was also ranked fourth on the seniority list. Nevertheless, that does not mean she should not be appointed merely because she is not the most senior; she will be the very first female Chief Justice in Pakistan's history, and this is a luminous way for us to project an optimistic image to the world at large.

In parallel, if we adopt a view in support of the seniority principle, the argument is that disregarding the seniority principle has had disastrous consequences in Pakistan’s history. The main standpoint is based on past appointments for Chief Justices, and a few examples are given to support their stance, such as when Justice Abdul Rasheed retired as chief justice of the federal court, the only choice was Justice Saleh Muhammad Akram, but there was concern that he might not obey the mighty circles of the time. He was manipulated to the extent that he refused to be Chief Justice. As a consequence, the then Governor-General of Pakistan, Ghulam Muhammad nominated Justice Muhammad Munir from the Chief Court. When Justice Kayani, Chief Justice of the West Pakistan Chief Court, retired in 1962, Justice Shabir Ahmed was the senior puisne judge at the time, but Manzoor Qadir was appointed as Chief Justice of the Federal Court. When Benazir Bhutto selected Sajjad Ali Shah as Chief Justice of Pakistan in 1994, he was fourth in seniority. However, in the case of “Al jihad Trust v. Federation of Pakistan”[2], the Hon’ble Supreme Court ruled that the senior most judge of the Supreme Court would be appointed as the Chief Justice of Pakistan (CJP). The appointment of the CJP and the selection of Supreme Court justices are two different processes. The CJP has extraordinary power[3] conferred by the constitution. The only concern and demand are that the system must be self-sufficient.

As per the Constitution, any judge, who has served in the High Court for 5 years, or any lawyer with 15 years of practice in the High Court, is qualified to be appointed a Supreme Court Judge.[4] There is no provision in the constitution that provides for seniority[5], or that the most senior judge shall be appointed to the Supreme Court. In fact, the word “appointment” is used in the constitution, which indicates that it is a fresh appointment rather than an elevation. If we intend to appoint on the premise of seniority, we should first amend our Constitution; otherwise, we will be unable to do so, unless there is an enabling constitutional provision for seniority. In the past, there were some judicial precedents that were followed for making appointments. However, after the 18th and 19th amendments respectively, we can no longer rely on Supreme Court’s judgments when making appointments. Supreme Court judge’s requirements and expectations differ from those of a high court judge.

Hamid Khan, a prominent lawyer proposed a 19-member judicial commission prior to the 18th amendment, but it was turned down. The Judicial Commission established by the 18th amendment also did not have the majority of judges; instead, it included representatives from the bar, judiciary, government, and civil society. However, this was challenged, and the composition of the judicial commission was eventually changed in the 19th amendment. We could have improved the process’s transparency if that structure had not been altered. Even South Africa has a commission of 20 members, of which only four are judges and the remaining are members of civil society. In the case of “Munir Bhatti v. Federation of Pakistan”[6], it was declared that the Parliamentary committee could not overturn the Judicial Commission’s recommendations. It was confined to a rubber stamp. The Judicial Commission is not a perfect body; it will make errors when influenced, but as a society, we should meaningfully criticize it, in order to strengthen it. The judicial commission’s findings should not be made public because if someone is not appointed, it could impact his professional career.

Another major issue is the Chief Justice's arbitrary behavior in the Supreme Judicial Commission. It raises major concerns regarding the Chief Justice's aversion to accepting proposals from other members of the judicial commission. On the other perspective, argument advanced is that, if someone can be Chief Justice of the High Court, he can certainly be a Supreme Court justice. This argument fails basic rationale. The system has flaws. If someone was appointed to the High Court and said it was a destructive decision, we should not repeat the same mistake. Age disparities should be eliminated; it is not right that one person would be wiser than the other, only because he is older. These are crucial appointments and must be openly discussed. The essence of society is discourse. The appointment of Supreme Court justices should be debated so that we can make improved decisions after consideration.

[1] Doctrine of Stare Decisis, Articles 189, 201 & 203GG of the Constitution of Pakistan.

[2] PLD 1996 SC 324

[3] Article 184 (3) of the Constitution of Pakistan

[4] Article 177 (2) of the Constitution of Pakistan

[5] Article 177 of the Constitution of Pakistan

[6] PLD 2011 SC 407.

Suicide is considered an offense in Pakistan, where the accused is the victim themselves. It is the second leading cause of death in the country. According to the World Health Organization (WHO), an estimated 13,337 suicides were committed in 2012 by people of all ages, and the number may have increased since then. Most of the individuals involved are under the age of 30. Shockingly, the ratio between men and women indicates that women outnumber men by 3:1 in suicide cases. While men who commit suicide are often married, the opposite is true for women. The main reasons for suicide include mental illness, domestic issues such as poverty, unemployment, family disputes, depression, and various other social evils. In Pakistan, suicide is predominantly committed by hanging from a fan, jumping from high buildings, using insecticides, or firing a gun.

Pakistan has criminalized suicide and attempted suicide in section 325 of the Pakistan Penal Code (PPC), which states that "whoever attempts to commit suicide and does any act towards the commission of such an offense shall be punished with simple imprisonment for a term that may extend to one year, or with a fine, or with both."

On the other hand, the Mental Health Ordinance was promulgated in Pakistan in 2001, and section 42 of that states, "A person who attempts suicide shall be assessed by an approved psychiatrist, and if found to be suffering from a mental disorder, shall be treated appropriately under the provisions of this ordinance."

Recently, a bill was introduced in the Senate, the upper house of parliament to decriminalize suicide, arguing that it is not an offense but rather a mental illness. However, the bill was rejected on the grounds that suicide is a crime and prohibited in Islam.

In contrast, India, considered to be a secular state, has decriminalized suicide, despite its religious beliefs in Hinduism, with a mental health care act, which states, "Any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished." According to the act, it is the Indian government's duty to provide care, treatment, and rehabilitation to a person suffering from severe stress who attempted to commit suicide to reduce the risk of recurrence.

Suicide itself is not a mental illness but rather a serious potential consequence of curable mental disorders, including major depression, bipolar disorder, post-traumatic stress disorder, borderline personality disorder, schizophrenia, substance use disorders, and anxiety disorders like bulimia and anorexia nervosa.

Many victims of this mental illness do not come forward due to the fear of facing legal consequences, which discourages them from lodging a First Information Report (FIR) or seeking help from a psychiatrist.

The strong opposition to the decriminalization of suicide in Pakistan is rooted in the state's religion, Islam. Although clear arguments (dalail) against suicide are found in the Quran and Sunnah, the two primary sources of Islamic law, there are no clear arguments against attempting suicide. In cases of attempted suicide, people in countries like Saudi Arabia and Kuwait, which have incorporated Sharia into their legal systems, argue against applying religious injunctions against suicide and believe that attempted suicide should not be equated with suicide, as there are no specific injunctions against such practices. The point of "intent" becomes more important in attempted suicide, and a person can only be prosecuted when clear intention is established.

Some legal scholars argue that there is ample scope for Pakistani courts to refrain from providing punishment for this so-called crime and consider circumstances such as the mental condition of the victim, which may have compelled them to attempt suicide.

It is a disease, not a crime; therefore, the government of Pakistan must take steps to decriminalize attempted suicide and free the nation from this colonial statute. The government should ensure emergency services and rehabilitative centers so that those who feel suicide is their only option can be saved and brought back into their daily lives.

Politeness, to some extent, is present in every country, religion, or in a spiritual manner. However, somehow, some things are considered not worthy enough to allow individuals to become what they like to be, to embrace their true selves in society, and their personal sentiments are undervalued. They are not assured a fair life and have been pushed to the ground, not conforming to what is natural or according to the regular course of things. Strange, but true...

I am talking about the transgender community, a group of people facing draconian human-made ideas daily. They are subjected to physical abuse by their own family members, clients, male sexual partners, and the public. They are treated as targets for exploitation. Clients who solicit transwomen for sex work perpetrate sexual abuse, and they often invite their friends to gang-rape them.

These abuses cause severe emotional distress and mental agony for many transgender individuals. They find mutual support among their peers, but many end up indulging in drugs and alcohol to cope with the distress. Self-harm is common among transgenders as a way to cope with the agony and depression after facing assault. Some also have suicidal tendencies. Unfortunately, professional help is often unavailable or not sought in these cases.

According to Human Rights Watch, the fact that certain people's gender evolves differently and doesn't fit into rigid traditional notions of female or male should not deprive them of enjoying their fundamental rights or subject them to lethal humiliation.

This article aims to identify the human rights protections stipulated for transgenders by the Pakistani legal system, including landmark judgments, general prohibitions on discrimination, the right to life and inherent dignity, the right to health and education, the right to freedom of expression, and any legislation that triggered the movement and progress towards their well-being.

Literary Inspection:

The term "transgenders" can be defined in two ways. One approach regards transgenders as an adjective, qualifying a noun like man, woman, person, or individual. From this perspective, a transgender person is one whose gender identity is different from the physical sex assigned at birth. The other approach considers transgender as a broad category of all genderqueer and gender-variant identities, using an umbrella term rather than a specific one. It is important not to confuse transgender with being "third gender"; both are distinct and greatly differ from each other.

The "hijra" is a South-Asian identity and subculture with its own norms, values, rituals, and traditions. Members of the hijra subculture throughout South Asia speak an autochthonous language known as "farsi kalaam." Hijras are also referred to as "khawaja siras," with the latter term being more popular in Pakistan. Most members of the hijra subculture identify as "third gender," believing they have a "woman's soul." Some identify as women and can be categorized as transgender women. There are inter-community conflicts within this marginalized population, including power struggles between competing gurus and conflicts over traditions of "zenanas" and "hijras."

Prohibitionary Measures on Discrimination:

The Pakistani Constitution provides clauses for non-discrimination based on sex and equality before the law. However, Pakistan lacks specific anti-discrimination laws. In 2009, the Supreme Court of Pakistan ruled that no Pakistani laws allow for the disenfranchisement of "eunuchs" from their fundamental rights. The court called upon NADRA to issue them National Identity Cards with the sex specified as "khawaja-sira." The ruling also urged adding the names of "eunuchs" to electoral rolls to enable them to vote. This ruling was considered a landmark decision, and after this, the transgender community actively participated in the political process of the country.

Nonetheless, despite constitutional support, it is an understatement to say that discrimination remains one of the biggest problems faced by the transgender community in Pakistan. The Pakistani society is progressing, but acceptance and social inclusion of the third gender are still lacking. The non-recognition of the identity of hijras/transgender persons denies them equal protection of the law, leaving them extremely vulnerable to harassment, violence, and sexual assault in public places, homes, jails, and even by the police. The police are often unhelpful in such matters, harassing and mocking complainants and even taking sexual advantage of them. Complaints are rarely registered, and an indifferent attitude is displayed. Due to this pattern of profiling and harassment, transgender communities often feel scared and intimidated and choose not to report crimes.

Therefore, it was up to Pakistan's higher judiciary to rule that the constitution needed to grant full citizenship rights to the third gender and abolish all discriminatory laws through protective legislations specifically addressing their social and economic lives.

A Landmark Case: Dr. Muhammad Aslam Khaki v. Senior Superintendent of Police (Operation) Rawalpindi:

Some landmark cases have the potential to change everything in the legal system and mark a new beginning. In February 2009, Dr. Aslam Khaki filed a petition before the SCP (Supreme Court of Pakistan) to ensure the provision of basic rights to "eunuchs" after being approached by members of civil society regarding their molestation, humiliation, and arrest by the Rawalpindi Police force. This petition shed light on the oppressed lives of the she-male community in Pakistan, whose fundamental rights were infringed upon by their parents, society, and the government. Dr. Khaki requested the SCP to act against the Rawalpindi police and direct both the Pakistani government and civil society to take useful steps towards providing protection to Khawaja siras, bringing them into the mainstream of life. In response, Pakistan's higher judiciary issued a turning point decision, ordering legal recognition for "eunuchs" in the country and promising to protect their fundamental human rights.

CJ Iftikhar Muhammad Chaudry in Khaki, recognizing the fundamental rights enshrined in the constitution, held as follows:

"... eunuchs in their own rights are citizens of this country and subject to the constitution of the Islamic Republic of Pakistan, 1973; their rights, obligations, including the right to life and dignity, are equally protected. Thus, no discrimination, for any reason, is possible against them as far as their rights and obligations are concerned." This decision drew attention to the humiliation and victimization of khawaja siras in the private, domestic, and social spheres of contemporary Pakistani society. Before this decision, the khawaja sira community was denied their rightful social, economic, cultural, political, and civil rights. However, later, they were embraced by modern society and availed of the services and benefits provided by the state.

Education for Transgenders:

In this age of scientific developments and new realities, no human being can thrive properly without education. Education enables individuals to reach their full potential, learn how to think properly, and make informed decisions. Education gives them a separate identity.

In a world filled with hate, we should put an end to the unnecessary tendency to look at the world primarily from the perspective of our traditional, differing, or adoptive ethnic inherited ideas against transgenders. The dignity of every citizen, including transgender individuals, should not be questioned, and their right to education should be on par with that of everyone else. Pakistan has yet to correct the systemic discrimination against transgenders. However, some progressive steps have been taken, such as the inauguration of Pakistan's first school for trans people in Lahore by civil society. The Transgender Persons (Protection of Rights) Bill, 2017, has also been passed in the Senate.

The bill defines a trans person as anyone who self-identifies as having a non-binary gender and grants them fundamental rights, including the right to free and compulsory education as per Article 25-A of the Constitution. In the orders issued on 23rd December 2009 in Khaki, the secretaries of education and higher education were requested to provide educational and vocational training facilities to "eunuchs" through enrollment and admissions in relevant institutions.

Conclusion:

In conclusion, the transgender community is considered an undeserved community in Pakistan. However, landmark decisions like the Khaki case and the introduction of the Transgender Persons (Protection of Rights) Act in the Pakistani Senate are steps towards their welfare. The Khaki case has shed light on the plight of the transgender community, leading to the recognition of their rights and promising protection for their fundamental human rights. Nevertheless, there is still much to be done to ensure their full social, economic, and political inclusion in society. Education is a crucial aspect of empowering the transgender community and giving them the tools to thrive in society. By taking progressive steps and continuing to address the systemic discrimination, we can hope for a brighter future for the transgender community in Pakistan.

Why is it that as nations rise and fall, everyone looks up to the youth?. Nations always have high expectations for the youth. So, every time I try to ponder about it, I get stuck in thoughts, since I am a part of youth myself that, what is my responsibility? What am I capable of? What must I do to bring a positive change to my society? And after being long lost in these thoughts, I always reach the conclusion that I'm not wise or strong nor do I have any authority. Such thoughts always make me question my ability and others' expectations and I always tell myself maybe it is not me. However, I recently came across a talk on having a vision and imagining yourself in the next 50 or 100 years. At first, I came up with a funny idea that in the next 50 years I would become very old waiting for death and that was the point that struck me. The time is the greatest gift that we can avail to become a part of a beautiful change. So, my ideas changed, the moment realized it, and this is what my motive has become, ever since, to make the best use of the time and resources I have, and I expect the same from my fellow youth members. We might not have the best resources in the world but what we have is what we need.

 A lot of us might have great aims to conquer the world but most of the time we wait for the right moment to act, the moment that we are not even sure about, if it might come and when it might come. Due to which, we end up wasting the most precious moments of our life on things that don't even matter. Hence, it is crucial to recognize that time is the only thing within our control. However, we must consider the purpose of time: to learn, strive, develop our personality, fortify our character, and above all, to put into action what we acquire. If we don’t act on what we learn then our education holds no weight no importance. It is also important that we realize the fact that change begins with changing one’s own self. A commonly quoted proverb “Charity begins at home” is what I believe can elaborate my point. Because even if we put up the ideas of change in front of society and forget about changing our own self, chances of our idea being rejected become probable. So, we must stick with the idea as commonly stated by a Canadian clinical psychologist, Jordon Peterson: “Set your house in perfect order before you criticize the world”. Another important factor that I want to highlight is that our youth haven’t yet realized their aims, and this is where they go wrong in understanding their role as responsible members of society. They consider themselves as the people who speak up for their rights. We get to see social media campaigns and protests, especially in universities very often and most of the time these campaigns and protests end up in vain, many reasons can be listed for the failure. 

However, one of the causes of failure is lack of knowledge about how things work. Then, another cause might also include absence of unity but the inability to understand and realize the purpose on individual as well as collective level lies on the top of the list. So, this is where the youth should recognize what their aim is and when the aim is clear the youth must be ready to move mountains. However, we must prepare ourselves to be strong enough to exert our best efforts till the time arrives and the goal is obvious. So, I believe youth is a beautiful journey for every single person towards the realization of their aim and self-worth. I decided to express my views on this topic because I find myself surrounded by hundreds and thousands of young people. A lot of them have different aims, yet there also exist those who don’t even know why they are alive. Then again there are people who only have selfish aims like getting ahead in society. To find a person whose aims is to serve the community selflessly has become very rare. Whereas I believe in a vision where one must become selfless for a greater change because changes ask for sacrifice. We might have to offer a lot from our own pocket for a change. Whereas selfishness becomes a great hindrance in the path of sacrifice which may ultimately close the doors for change or may even lead to a negative change. Well, I also want to make my point clear that I don’t expect the youth to harm themselves and give up whatever they have, rather I expect them to become selfless and give whatever they can for the cause of righteousness. I believe that a change in heart will light it up and that exact same light has the power to illuminate the world, here I would like to quote Emily Dickinson “If I can ease one life the aching, or cool one pain, or help one fainting robin unto his nest again, I shall not live in vain”. The reason I quoted this is because I want to highlight the importance of small and good deeds that our youth has completely forgotten, and they claim to look for higher aims in life. But everything loses its meaning, the second when we forget humanity because humanity ensures the survival of our hearts and souls. Without humanity a body may do whatever it wants but it can never reach the purpose of life. 

Therefore, in the end I would like to conclude that our world and our society has entered the worst phase in history, where there is no justice. People live for a better living standard. Everyone is chasing the materialistic world, which will eventually lead to a world where everyone is selfish. Emotional and psychological well-being is a major concern, yet its solution has become another form of business. But in all this chaos we still want to have hope and here we are, the hope rests on youth. A youth, powerful enough to ensure the survival of this civilization, a youth that can lead mankind to achieve a higher purpose, but it is only possible if we want to achieve a higher goal as well. So, we have to realize what really matters and then strive for it. Then without any doubt, success awaits you and a beautiful change will embrace you.

The rule of law is a dire need in any society and man is a social animal and indulges himself in certain social activities as a routine practice, his interaction with other indigenous people of society is kept in order and regulated by law. Since the beginning of human life, the philosophy of law has been evaluated in a pretty considerable manner, after flowing, progressing and advancing through different centuries and Eras. Appraisal of social animal behavior in society has molded a system of law and justice according to customs, norms and traditions of the society. Every day we are progressing towards this burgeoning advanced time and the law itself is rapidly flourishing by every means. No one can deny the importance of law and order in the society; an effective system of justice is a basic exigency for peace in a community.

“At his best, man is the noblest of all animals; separated from law and justice he is the worst.”  - Aristotle

The epoch in which we are living today incrusts in itself the existence of the rules and regulations that regulate the affairs of the masses. The realm of these laws extends to every walk of life. Moreover, it is a necessity that there must exist a check and balance in the society. The Rhetoric of the rule of law and its presence is highly elucidated by the critique of an eminent realist scholar, Thucydides, who while enlightening the anarchic situation of International politics points out;

“The strong do what they have the power to do and the weak accept what they have to accept.” - Thucydides

According to Thucydides, the reason of anarchy, in international politics is lawlessness and absence of a sovereign. He further emphasizes that every sovereign state in the world never accepts any other sovereign above it creating a free-for-all. For instance, consider the same vacuum if created in domestic territory, neither there would be any questionable, nor anyone would consider himself answerable; for the deeds and acts he had done, making the whole society’s system enigmatic. To mitigate and abandon this chaos and rule of jungle in society, it is necessary that there should prevail rule of law along with ‘presence of the law’’. The law itself exists in the form of codes, orders and rule of law; is the practice and implementation of these rules and laws that are made by the legislatures. A society, like a family, is a bond in which everyone is doing his job to ameliorate and regularize the living standards of every member collectively where law-implementing bodies play the role of patriarch of the family i.e. maintaining order by eradicating issues and keeping all members at one platform, in society we call this patriarch as the judiciary. Judiciary plays its part in the implementation of laws by resolving disputes of civil as well as criminal nature. For this purpose, the constitution vests powers in the judicial system and the judges exercise these powers as to their authority and realm. After the ordination by the judiciary, the police and other law enforcement agencies along with administrative bodies implement the orders. In this way check and balance is maintained in a society. Ergo, the rule of law brings every person of society and national of a nation in the fold of accountability; making him ‘Questionable’ and ‘Answerable’ in front of the one who had suffered his deeds, and of course in front of the state, if the state is on suffering side, for a state suffers when any crime is committed. Hence, rule of law is a grim need of any society for adopting the pathway towards glory and peace.

Burdened with hard studies, dependent on the elders financially, criticized by everyone at every step, has become the way of life of every student. In one of the most crucial parts of life, young students should be given an open space for learning. Ignoring their needs will ultimately have a bad outcome for the world at large, as they will be given the reigns of nation building in the coming time. Their experiences today will be reflected when they enter the real world. Therefore, a conducive environment is their basic right for a healthy life.

Students all over the world face a lot of problems, but the main one is that they are given as much relief as possible. Among the many problems, one of them is the prohibition of students from engaging in the politics. To comprehend it better, it must be noted that a class of people in society considers it as an appropriate measure.

There are two different views on this issue; the first view is that students must be kept away from the dangers of politics and the second view is that the students must be involved in politics. Those with the first view realize that politics is an evil thing and the student life must be far away from this evil thing as this is very crucial phase of life and the focus of a students must be on studies. The latter view politics as a very sacred thing that teaches a person how to formulate policies for nation building.

The critical thing that everyone needs to understand is that one should take away the negative connotation of the word ‘’politics’’ which means doing nasty things freely but in reality, it is an art of setting policies, finding solutions to problems or arriving at something that works for everyone or at least for the majority.

The main purpose of a student is to learn and grow, so getting involved in politics will allow them to open up new avenue of learning, as it is the art of examining how power is distributed and exercised within the societies.

It would be an injustice to forget the significant role of students in independence movement in Pakistan, who not only organized rallies but also boycotted their classes and exams as a form of protest against British rule. This crucial role was played because the leaders of the day allowed the young minds to get involved in politics. Even after independence student’s unions actively participated in the politics but the successive governments and military dictators did not allow the students to get involved in         politics and they were afraid of the young minds and their fear was somehow crucial because as the 1968, mass movement which later toppled the Ayoub khan regime was initiated by the student union across the universities of the country.

Student unions and democracy work in parallel. Democracy is the will of the people and the youth who make up the 64% of the Pakistan’s population, cannot be denied their role in democracy.[i]

The restoration of student unions in a country like Pakistan will not only solve the internal problems of the university campuses, but it will also help to spread the softer image of Pakistan in the international community. Allowing students to form the unions would enable them to work peacefully, because if young minds have legitimate ways of questioning, challenging and transforming oppression in the real world, if education provides them with ample opportunities to challenge the oppression, they would not support violence to achieve their goals.

It is high time for the authorities to address the issue of reviving student unions. 

LUBABA

The writer is a student of sharia and Law at the International Islamic University, Islamabad. Her aim is to see the Pakistan on the path of true democracy where every section of society enjoys the freedom as enshrined in the constitution.

[i] Pakistan currently has largest percentage of young people in its history: report - Pakistan - DAWN.COM

1.1  INTRODUCTION

No promises made by political parties in their manifestos are legally enforceable. The simple answer is that the failure of a party's candidate to meet up with their promises after being elected to their offices has not been criminalized by Nigerian law. Also, by common law, it does not accord the electorates the right to sue a party or its candidate. The non-justiciability of it has been linked to changing situations and the nature of a democratic government. In a democratic society like Nigeria, voters during elections are loaded with power to put politicians in an elective office or scrub them off from office. It is by virtue of this power that politicians present to voters, through their manifestos, their mission and vision with unrealistic promises geared towards addressing the plights of the citizenry when elected to office. Electorates have, over the years, got jolted back to reality years into the politicians’ reigns. Since the return of democracy in 1999 in Nigeria, elections have been held into various elective offices that politically bring about a bond between politicians and electorates. Electorates usually get convinced and vote with much expectation based on these covenants from politicians. This article seeks to display the position of the law in Nigeria, whether or not such promises are legally enforceable at the instance of the electorates.

1.2  CONCEPTUAL CLARIFICATION

According to the UK parliament, a manifesto is a publication issued by a political party before a general election. It contains the set of policies that the party stands for and would wish to implement if elected to govern. The Leadership Newspaper, in its report titled "2023: Manifestoes, Parties, And Presidential Candidates," explained a manifesto as a promise, also an implied contract between the people and the political party or candidate presented to voters on which the basis of their votes is sought! In the foregoing, it is explicable that a manifesto is a published declaration of the intentions, motives, or purpose of a political party, all for the purposes of well-being and providing lasting solutions to the electorate’s problems. A manifesto is a prepared document by a political party containing their ideologies, strategies, and policies for addressing the plight of the citizenry when power is achieved. They are documents of a party that binds the candidate of that party. Black's Law Dictionary 5th edition has defined enforcement as:

"Making sure a rule or standard or court order or policy is properly followed." It is on these clarifications that the terms are going to be used throughout this work.

1.3 CONTEMPLATIONS OF CHAPTER II OF THE 1999 CONSTITUTION AND PROMISES IN POLITICAL PARTIES' MANIFESTOS

Campaign promises are social promises that are binding in honor, not in statute. Candidates that carry promises to board bind themselves to it not because there are express provisions of law that compel them to do so, but because of the fear of treatment by citizens as persona non grata. On the relationship between campaign promises and fundamental objectives and directive principles of state policy enshrined in Chapter II of the 1999 constitution of Nigeria, almost all the manifestos are aimed at providing basic services in respect of almost all the issues of chapter II of the constitution of the federal republic of Nigeria. For instance, with the presidential election drawing closer, Atiku Abubakar of the People's Democratic Party (PDP), like other presidential candidates, released his manifesto called "My Covenants With Nigerians" In it, Atiku, after taking a holistic assessment of the issues confronting the country, promised to, amongst other things, restore Nigeria’s unity through equity and providing social justice, as well as co-operation and consensus amongst the heterogeneous people. Atiku also went further to make promises on security, education, business, and addressing other menaces faced by citizens. Bola Ahmed Tinubu of the All-Progressive Congress (APC) also made similar promises in about 70 items in his manifesto titled "Renewed Hope 2023". Labor Party Candidate Peter Obi, in his document "It's Possible; Our Pact with Nigerians," which encapsulates his program for the country, said he would establish a strong and effective democratic government that guarantees the safety and security of life and property. They also made individual promises during campaigns. All of these covenants and promises have already been covered up and provided for under fundamental objectives and directive principles of state policy in Nigerian 1999 Constitution from section 13 to 24, which makes up Chapter II. Notwithstanding the fact that the campaign promises are encapsulated in Chapter II, the Chapter itself has been made unenforceable by the Constitution despite nonorthodox opinions from lawyers and judges that with the gradual evolution of relevant laws and progressive judicial decisions on socio-economic rights in Nigeria, some parts of the Chapter should be made enforceable. Nevertheless, the position remains as it is, that courts are prohibited from entertaining any matter relating to any issue listed under the Chapter.

Section 6 (6) (c) of the constitution provides as follows:

(6) "The judicial powers vested in accordance with the foregoing provisions of this section"

(c) shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution.

On the provisions of Chapter II, Section 20 of the constitution admonishes the state to provide a free and healthy environment for the well-being of citizens. The provision is as follows: "The State shall protect and improve the environment and safeguard the water, air, land, forest, and wildlife of Nigeria." Courts have given the impression and warned against violating the promises upon which electorates lay their trust. For example, in the case of Attorney-General of Ondo State v. Attorney-General of the Federation, the Supreme Court held that.

"Notwithstanding the non-justiciable nature of the provisions of Chapter two, it would amount to a deficiency of obligation on the part of the branches of governments if they acted in contempt of the fundamental objectives and directive principles of state policy."

Promises of political parties in their manifestos are no more than the provision of Chapter II. This is because manifestos are aims, objectives, and policies of a party which sets out its clear intention when it comes to power and the constitution makes any objective of a party as part of or must correspond to Chapter II. For example, section 224 of the 1999 constitution provides; "The program as well as the aims and objects of a political party shall conform with the provisions of Chapter II of this Constitution."

The provisions of Chapter II are non-justiciable. Courts' jurisdiction is curtailed, and so also campaign promises of a party are not enforceable. In Archbishop Anthony Olubunmi Okogie v. Attorney-General of Lagos State, the court held that

"The fundamental objectives and directive principles of state policy are non-justiciable, and that Nigerian courts lack jurisdiction to adjudicate on them."

The reason for the non-justiciability of this chapter is that the constitution curtailed courts' jurisdiction over them. Once the constitution makes provision for the justiciability of Chapter II, manifestos of political parties will also be made justiciable. Niki Tobi JSC (as he then was), while interpreting the provision of section 6(6)(c) in the case of the Federal Republic of Nigeria v. Aneche and ors., held that:

"In my view, section 6 (6) (c) of the Constitution is neither total nor sacrosanct as the section provides a leeway using the words “except as otherwise provided by this Constitution.” This means that if the Constitution otherwise provides in another section, which makes a section or sections of chapter II justiciable, it will be so interpreted by the courts."

 1.4 Conclusion

By the way of conclusion, it is evident enough that political parties manifestos are not legally enforceable and the only remedy available for aggrieved electorates is to vote out any persona non grata politician during elections.

1.5 References

1       Sections 13-14, 6(6)(c), 244 of the 1999 Constitution of the Federal Republic of Nigeria

2       Enforcement by Black’s Law Dictionary 5th Ed.

3       UK Parliament Online, https://www.parliament.uk/site-information/glossary/manifesto/

4       Leadership Newspaper Online https://leadership.ng/2023-manifestos-parties-and-presidential-candidates/

5       Bola Tinibu Elibrary  https://bolatinubuelibrary.com/resources/apc-renewed-hope/

6       PDP Online https://peoplesdemocraticparty.com.ng

7       Labour Party Online https://labourparty.com.ng

8       Femi Falana, SAN on the enforceability of Chapter 11 of the 1999 Constitution of Nigeria  https://themetrolawyer.com.ng/making-chapter-ii-of-the-constitution-justiciable-by-femi-falana/

About the author:

Muhammad Abubakar is an ardent reader from 200 level, Faculty of Law, Ahmadu Bello University, Zaria.

The author can be reached at:

Email: muhammadabubakar2521@gmail.com