Federal Tax Ombudsman and National Accountability Bureau

Introduction

Federal Tax Ombudsman (FTO) and National Accountability Bureau (NAB) are two crucial organs of the Government of Pakistan. Both of these institutes involve accountability as their core function. The citizens of Pakistan pay their taxes to the government in order to run the governmental affairs and to prevent taxpayers from maladministration of government tax agencies or employees, FTO bears an important responsibility. Whereas NAB is responsible to ensure that the government revenue (taxes) should be utilized by government agencies in the national interest which is beneficial for citizens and also to ensure its protection against corrupt practices. Therefore, both of these government institutions work complementary to each other. As both of these government institutions work complementary to each other, therefore this article aims to explore and compare the roles, history and functions of both institutions. Afterwards, this article will deeply analyze both institutions in terms of authority, mechanism, performance and initiatives.

Discussion

The Government of Pakistan established the Federal Ombudsman in 1983 in accordance with the requirements of the Constitution of the country. Whereas, in accordance with Federal Tax Ombudsman Ordinance 2000, it is expedient to provide for the appointment of the Federal Tax Ombudsman to diagnose, investigate, redress and rectify any injustice done to a person through maladministration by functionaries administering tax laws. Therefore, the Federal Tax Ombudsman shall be appointed in accordance with Section 3 of the said Ordinance to hold office of FTO for a Four years term.[1] The main function of the Federal Tax Ombudsman is to ensure disposal of complaints of tax maladministration promptly, justly and fairly.[2]

The Ehtesab Act, 1997 established an Ehtesab Cell, charged with the investigation and prosecution of corruption. In order to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, [misuse or abuse] of power [or authority], misappropriation of property, taking of kickbacks, commissions and for matters connected and ancillary or incidental thereto,[3] the President of Pakistan has  promulgated National Accountability Ordinance, 1999, in accordance to which the NAB was established as the cell's successor, and given the additional responsibility of preventing and raising awareness of corruption so as to hold accountable all those accused of corrupt practices etc. These functions shall be run by Chairman NAB, who shall be appointed by the President in accordance with Section 6 of the said Ordinance for Four years term.[4]

In terms of authority, Chapter IV of the FTO Ordinance, 2000 provides same  powers to Federal Tax Ombudsman as are vested in a civil court under the Code of Civil Procedure, 1908 (Act V of 1908), namely:-

(a)  summoning and enforcing the attendance of any person and examining him on oath;

(b)  compelling the production of documents;

   (c) receiving evidence on affidavits; and

      (d) issuing commission for the examination of witnesses.

Apart from these, FTO has also the power to enter and search any premises and also to punish for contempt.[5]

Whereas, NAB is the apex National Anti Corruption Agency. Its ambit includes cases of Cheating Public at Large. Procedure for launching complaints is a simple application addressed to the Chairman or DG with available evidence attached. All the powers to make the culprit accountable are concentrated with Chairman NAB. However, the procedures have been adopted wherein the discretionary powers of Chairman are exercised through consultative boards i.e. Executive Board Meetings (EBM) at NAB HQ and Regional Board Meetings (RBM) at Regional Level. Therefore, inputs from operational, legal and others are gathered to make the decision logical and reasonable.[6]

The Federal Tax Ombudsman has given vast jurisdiction to investigate into the affairs of all the offices of the Federal Government, except the Supreme Court, the Supreme Judicial Council, the Federal Shariat Court and the High Courts. The Federal Tax Ombudsman may on a complaint by any aggrieved person, or on a reference by the President, the Senate or the National Assembly, as the case may be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his own motion, investigate any allegation of maladministration on the part of the Revenue Division or any Tax Employee.[7]

The Chairman NAB and such members, officers or servants of the NAB shall have and exercise, for the purposes of an inquiry  or investigation the power to arrest any person, and all the powers of an officer-in-charge of a Police Station under the Code, and for that purpose may cause the attendance of any person, and when and if the assistance of any agency, police officer or any other official or agency, as the case may be, is sought by the NAB such official or agency shall render such assistance provided that no person shall be arrested without the permission of the Chairman [NAB] or any officer [of NAB] duly authorized by the Chairman NAB.[8]

FTO has recently taken certain productive initiatives like interaction with civil society organizations and enhancing their roles, outreach meetings with Tax Bars and Chamber of Commerce and Industry, establishment of online complaint management system, paperless environment, E-Filing and E- correspondence for cost free filing of complaints.[9] These all initiatives have advanced the mechanism of FTO and also resulted in better assistance to taxpayers.

Whereas, the National Accountability Bureau has introduced revolutionary reforms under which incomplete and anonymous complaints will be discarded at the initial level. The new guidelines have been issued for fair handling of complaints and to inject greater efficiency and transparency in NAB operations. Under the new guidelines, malafide and frivolous complaints will be considered as cognizable offence and liable to legal action against such applicants in the Courts of Law.[10]

After taking recent initiatives, FTO and NAB have modified their mechanism. But one has precedence over the other with regards to power or authority. Unlike NAB, FTO can order for implementation of its orders and those shall be binding. Except this, FTO is only answerable before the President and also designated with vast jurisdiction. Furthermore, the recent paperless environment has enhanced the efficiency of FTO. However, Chairman NAB has all the powers to hold the culprit accountable and all the powers of an officer-in-charge of a Police Station under the Code. He also has the power to arrest any person for the purpose of investigation. But he can not punish any person. Unlike FTO, the right[1]  to award sentences in cases involving NAB is vested with the Courts. Apart from some differences, there are similarities as well.

Conclusion

With this, both of the institutions are playing their roles in their specific ambit and thereby contributing to a more transparent and accountable governance system in Pakistan. FTO protects all the rights of taxpayers and ensures transparency and accountability of tax sector employees by their strategic mechanism so as to ensure justice and quick remedies for aggrieved taxpayers. Whereas, NAB on the other hand, ensures transparency and accountability of government officials or revenue keepers so as to make sure that the taxes of the people may utilize the best side by following their exceptional mechanism. In short, both institutions are playing their respective roles in ensuring and upholding justice principle and ensuring transparency and accountability which can efficiently improve the governance system of Pakistan. Furthermore, by analyzing the recent advancements particularly in FTO’s  mechanism, it proves their efficiency and commitment to solve the issues pertaining to maladministration.

[1] Section 4, Federal Tax Ombudsman Ordinance, 2000

[2] FBR/Home/Federal Tax Ombudsman (FTO),https://fbr.gov.pk/federal-tax-ombudsman/81166/71155

[3] National Accountability Ordinance, 1999

[4] Section 6, National Accountability Ordinance, 1999

[5] Section 15 and 16 of FTO Ordinance, 2000

[6] Ministry of Law and Justice,https://molaw.gov.pk

[7] Section 9, Federal Tax Ombudsman Ordinance, 2000

[8] Section 18, sub-section ‘e’, NAB Ordinance, 1999

[9]FTO Special Initiatives, https://fto.gov.pk/SpecialInitiatives.aspx

[10]Ministry of Information and Broadcasting, https://moib.gov.pk/News/59766

Author:

Malik Muhammad Aqdus

Institute:

International Islamic University Islamabad

Degree Programme:

Shariah and Law 

  [1] "FTO: A BEACON OF HOPE IN TIMES OF FINANCIAL TURMOIL[2] 

Abstract[3] 

This paper examines the Federal Tax Ombudsman (FTO) in Pakistan, highlighting its pivotal role as a beacon of hope in navigating tax disputes and ensuring justice within the tax administration.The FTO was designed to address taxpayer grievances and facilitate business by ensuring timely and fair resolution of tax maladministration issues. The article contrasts the FTO's performance with that of other key institutions such as the National Accountability Bureau (NAB) and the Federal Investigation Agency (FIA), illustrating its unique contributions. It also discusses the legal empowerment of the FTO and offers recommendations for its enhancement. Ultimately, the article underscores the FTO's critical role in restoring trust in Pakistan’s tax system, advocating for its continued evolution to meet the growing needs of nation and reaffirm its status as a symbol of hope during financial challenges.   

Introduction

 In 2000 President of Pakistan constituted an institute named as Federal Tax Ombudsman by an ordinance[2]. To alleviate taxpayer's problems and difficulties and to enhance ease of doing business. Pakistan, a nation of rich culture and history, finds itself at a crucial crossroads amidst financial turmoil. Economic instability, bureaucratic inefficiencies, and rampant corruption have undermined growth and shaken public faith in institutions. In these trying times, the Federal Tax Ombudsman (FTO) stands as a beacon of hope, alleviating taxpayer grievances and fostering confidence in a just and transparent tax system.  The main function of Federal Tax Ombudsman is to ensure disposal of complaints of tax maladministration promptly, justly, fairly, independently investigated, and to rectify any injustice done to a taxpayer by actions of the tax employees of Federal Board of Revenue (FBR)/Revenue Division.Last year FTO has processed 8963[3] cases and for sure it’s a vast number of cases.

F.T.O Comparison with Other Institutes

The Federal Tax Ombudsman (FTO) was established to provide relief to taxpayers, offering a wide range of facilities, including an online complaint system and a promise to resolve disputes within two months. When taxpayers are burdened by undue penalties, delayed refunds, and unjust tax practices, the FTO acts as a lifeline for struggling businesses and individuals. By ensuring efficient and transparent handling of complaints, the FTO not only offers timely relief but also helps restore faith in the tax system, a crucial factor during economic uncertainty.

When compared to other institutions like the National Accountability Bureau (NAB) or the Federal Investigation Agency (FIA), the FTO stands out for its focus on consumer protection and speed in delivering justice. While NAB addresses corruption on a larger scale and FIA enforces laws related to smuggling, narcotics, and immigration, The FTO's work directly impacts taxpayers' daily lives. Specialized ombudsmen like the Banking and Insurance Ombudsman serve specific sectors.

The FTO offers easier access to justice, with complaints lodged online contrasting with the lengthy paperwork and procedural delays typical of institutions like NAB and FIA. Most significantly, the FTO has a proven track record of resolving cases within months, while other institutions often see cases drag on for years. The FTO's ability to secure refunds, remove unlawful penalties, and prevent overcharges provides direct financial relief, offering much-needed stability during times of economic turmoil.

This consumer-focused approach, coupled with swift resolutions, distinguishes the FTO as a beacon of hope in Pakistan's often complex and slow-moving justice system. By ensuring fairness and protecting taxpayer rights, the FTO plays a vital role in restoring public confidence in the country's tax system, which is especially crucial during times of financial hardship.

F.T.O Empowerment by Laws

F.T.O[4] [4] was formed by an ordinance issued by President of Pakistan in 2000. Empowered by laws that grant it significant judicial authority, the FTO operates with the independence needed to swiftly address complaints, even when the country is facing financial challenges. This legal framework ensures that taxpayers have a reliable and accessible avenue for justice, making the FTO a cornerstone in maintaining financial stability Other than that, it is also supported by article 37 of Constitution of Pakistan [5]This aligns with the separation of Pakistan's judiciary[6] and executive[7] branches in accordance with the Constitution. It is regulated by the Establishment of the Office of Federal Tax Ombudsman Ordinance of 2000[8], the Federal Ombudsmen Institutional Reforms Act of 2013[9], and the Federal Tax Ombudsman Investigation and Disposal of Complaints Regulations of 2001[10]. The FTO has great power already provided by the law as its decision can only be reviewed by President of Pakistan. The F.T.O have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (Act V of 1908),[11] in respect of the following matters, namely: -

(a) summoning and enforcing the attendance of any person and examining him on oath;

 (b) compelling the production of documents;

 (c) receiving evidence on affidavits; and

(d) issuing commission for the examination of witnesses

The F.T.O or any assigned staff has also power to enter any premises and search it for evidence As well as the Federal Tax Ombudsman shall have the same powers, mutatis mutandis, as the Supreme court has power to  punish any person for its contempt.

Sectorial Study and F.T.O Jurisdiction

The FTO has jurisdiction to hear cases related to malpractice by employees of the Federal Board of Revenue (FBR), covering all sectors that pay taxes to the FBR. While it doesn't focus on specific industries, its jurisdiction spans sectors that contribute through income tax, sales tax, and duties, including major contributors like the IT, manufacturing, and trade sectors.

[12]

According to the Sales Tax Act[13], these sectors, with the exception of agriculture, fall under FBR’s tax domain, and therefore, the FTO’s jurisdiction.

To understand the sectors under the FTO’s purview, it’s essential to first grasp how the FBR operates. The FBR collects various types of taxes, and the FTO's role is to address grievances and disputes arising from these federal tax collections. However, matters related to provincial tax boards or non-tax-related customs disputes fall outside the FTO's jurisdiction, as the FTO focuses solely on resolving issues related to taxes collected by the FBR.

By providing clarity, justice, and quick resolutions to tax disputes across these major sectors, the FTO serves as a beacon of hope for businesses and individuals facing financial strain due to bureaucratic delays or unjust tax practices, particularly during periods of economic turmoil

[5] Tips For Improvement of F.T.O

F.T.O an institute working with excellent performance over the years and every year it has record numbers of solutions of disputes/cases leading among the other ombudsman and Federal Investigation Agency, National Accountability Bureau yet several improvements needed.  

Some tips are as such

1. More Public Engagement

         F.T.O should make public campaigns and public engagement for active by which F.T.O will become more common in public, and it will help more.

2. Streamline the process

                        The FTO's online complaint system is efficient, but improving its user-friendliness and further reducing processing times would enhance accessibility. Streamlining procedures and easing the filing process would encourage more consumers to seek justice through the FTO without fear of lengthy court processes

3. Collaborate Closely with FBR

As Pakistan’s financial challenges evolve, so must the FTO. Collaborating more closely with the Federal Board of Revenue, the FTO can ensure that it continues to be a beacon of hope for taxpayers. Strengthening the institution will further solidify its role in protecting citizens from the damaging effects of financial instability.

    4. Strengthen Legal Framework:

The FTO should work closely with the government to regularly update and reform tax-related laws, ensuring they remain consumer-friendly and responsive to changing needs. An evolving legal framework is essential to safeguard taxpayer rights and maintain fairness.

  Conclusion

The Federal Tax Ombudsman (FTO) stands as a crucial institution for justice and equity in tax administration, especially during times of financial turmoil. By addressing taxpayer complaints promptly and fairly, the FTO fosters trust in the tax system and promotes consumer protection. While there is always room for improvement, such as increasing public awareness, enhancing operational efficiency, and strengthening collaboration with the FBR, the FTO remains a beacon of hope for taxpayers. As Pakistan faces economic challenges, the FTO's role in providing swift, transparent, and convenient settlements for tax complaints is vital in restoring faith in the system and supporting the financial well-being of its citizens.

[1] Iqra Kanwal, Talha Irshad, and Umair Riaz are dedicated law students at IUB BWP, known for their diligent approach to their studies and their commitment to the field. Their collaboration on this article reflects their passion for contributing to the academic discourse.

[2] https://fto.gov.pk/assets/img/fto_Ordinance_2000-_4th_draft_a.pdf

[3] FTO Annual Report 2023

[4] Federal Tax Ombudsman

[5] Constitution of Islamic Republic of Pakistan 1973

[6] https://en.m.wikipedia.org/wiki/Judiciary_of_Pakistan

[7] https://en.m.wikipedia.org/wiki/executive_of_Pakistan

[8] F.T.O Ordinance 2000

[9] Federal Ombudsmen Institutional Reforms Act of 2013

[10] Federal Tax Ombudsman Investigation and Disposal of Complaints Regulations of 2001

[11] Code of Civil Procedure, 1908 (Act V of 1908)

[12] https://www.dawn.com/news/1621331

[13] Sales Tax Act

Authors:

·         Talha Irshad

·         Iqra Kanwal

·         Umair Riaz

Institute:

Islamia University of Bhawalpur

Degree Programme:

LLB 

Federal Tax Ombudsman (FTO): An Exploration of the Jurisdiction and Exemption

INTRODUCTION[1] 

This research article deals with the jurisdiction and role of the FTO in various sectors such as agriculture, IT, tourism, and services. This research article not only discusses the sectors that fall within the jurisdiction of the FTO but also the sectors that are exempted from its jurisdiction i.e. provincial tax matters, matters already under judicial review, and international trade matters, in addition to explaining why the FTO does not have jurisdiction over these sectors.

FEDERAL TAX OMBUDSMAN

The FTO is an autonomous and independent institution of Pakistan, constituted under the Federal Tax Ombudsman Ordinance, 2000. It has vast powers and can deal with matters such as malpractice by the Federal Board of Revenue (FBR) and complaints regarding the administration of federal taxes including sales tax, customs duties, income tax, federal excise duties, etc. Additionally, it can investigate dénouements related to delays in issuing refunds and improper or unjust tax assessments.[1]

JURISDICTION OF THE FTO IN VARIOUS SECTORS

FTO has vast authority that can be exercised in various sectors of Pakistan such as agriculture, IT, tourism, and services. Discussed below is the jurisdiction and role of FTO in some of the sectors of Pakistan:

Agriculture

Being the backbone of Pakistan’s economy, the Agriculture sector is exempted from certain taxes; however, some taxes such as sales tax on the items used in agriculture, are imposed. Due to these taxes, the agricultural industry falls under the jurisdiction of FTO. In the agricultural sector, complaints may arise regarding the improper tax assessments by the FBR, imposition of sales tax on agricultural items like fertilizers, delays in tax refunds, any inappropriate use of authority by tax officials, and issues concerning the subsidies provided by the government. All the complaints regarding the aforementioned issues are investigated and addressed by the FTO to ensure the smooth and effective functioning of the agriculture sector.[2]

Information Technology 

The IT sector is imposed with certain taxes; yet, it also enjoys tax incentives like exempting IT experts from taxes and reduced taxes for the IT companies. This creates the jurisdiction of FTO in the IT sector. The issues regarding the verification processes, documentation of aforementioned exemptions, delays or denials in recognizing the same, imposition of sales tax on certain IT services, their refunds, and applicable tax rates, may arise. FTO addresses all the complaints regarding taxes in the IT sector and the exemptions in these taxes, providing a platform for redressing grievances.[3]

Tourism

Tourism, a vital sector with significant potential for economic growth, is administered with tax regulation; however, tax incentives are provided to tourism-related businesses such as hotels, tour operators, and travel agencies.  By resolving the issues regarding the eligibility for tax incentives, disputes of tax liabilities, sales tax on tourism services, determination of tax rates, delays in tax refunds, and disputes over the classification of services for tax purposes, the FTO exercises its jurisdiction over the tourism sector.[4]

Services

The services sector which encompasses a wide range of industries including healthcare, education, finance, and telecommunications,  is subject to federal taxes such as sales tax, withholding tax, and income tax. To resolve the disputes/complaints regarding the delays in processing tax refunds, withholding tax obligations, improper assessment of taxes, delays in tax refunds, determination of tax rates, and assessment of tax liabilities, FTO exercises its jurisdiction to address these grievances and provide redressal/remedy.[5]

THE SECTORS EXEMPTED FROM FTO’S JURISDICTION

The powers and authorities of FTO are not absolute but are limited only to issues concerning the administration of federal taxes. In the same fashion, not all the sectors fall within the jurisdiction of FTO; there are some exceptions as well. Discussed below are some of the industries that are exempted from the jurisdiction of the FTO and the reasons for exemptions.[6]

Provincial Taxes

FTO has jurisdiction over federal taxes; however, taxes that are under the provincial government authority such as provincial sales tax on services, agricultural income tax, and property tax, are beyond the FTO’s jurisdiction. The reason for the exemption of provincial taxes is that the Pakistani constitution provides for the separation of powers. These tax matters are under the provincial government authority and are dealt with by the provincial institutes, while FTO is a federal institute. Additionally, provincial taxes are exempted to prevent the overlapping of the jurisdiction and conflicts between the federal and provincial authorities regarding jurisdiction.[7]

Matters Being Litigated/Judicially Reviewed

The issues that are already being litigated or are under judicial review are outside the FTO’s jurisdiction. This is done mainly to respect the independence of the judiciary which is an independent branch of government. Moreover, this also prevents conflicting decisions by FTO and courts, maintaining legal certainty and consistency.[8]

Legislative Matters And Government Policy Decisions

FTO lacks jurisdiction over the legislative process and government policy decisions regarding introducing new taxes, tax rates, and other tax policies because these are the powers/tasks of parliament and government. In addition, this exclusion helps maintain the neutrality of FTO as an administrative body and prevents it from being drawn into political controversies/debates.[9]

International Trade Matters

Disputes about the taxes on import and export and customs duties are not under the jurisdiction of FTO because international trade disputes are often governed by international treaties, involve diplomatic negotiations at the government level, and are resolved through specialized forums like the World Trade Organization (WTO) or Bilateral Arbitration Panels.[10]

National Security Matters

Any tax-related disputes that involve national security do not fall in the ambit of FTO’s powers and authorities for the reason that national security matters involve confidential information and are sensitive; therefore, these matters are handled by authorized government authorities that are experts in this regard. Moreover, this separation of jurisdiction ensures that the FTO is not involved in confidential matters and that its investigations do not compromise sensitive information and national security.[11]

Internal Administrative Matters of FBR

FTO does not have jurisdiction over the administrative matters of FBR such as internal audits, implementation of administrative policies, and personal management. This helps to maintain the operational autonomy of FBR and ensure that internal affairs are managed effectively. FTO mainly focuses on remedying the issues regarding tax administration and does not interfere in the internal functioning of the FBR.[12]

CONCLUSION

FTO is a federal institution exercising jurisdiction to ensure accountability, fairness, and transparency concerning federal taxes across various sectors of Pakistan. FTO provides a platform that addresses the grievances of the Pakistani citizens affected by the tax issues and effectively resolves the problems creating efficiency in the tax system. However, the jurisdiction is not limitless; certain sectors do not fall within the jurisdiction of the FTO. These exemptions are deemed to be essential as they help to promote respect for the separation of powers and autonomy of different institutes working within Pakistan.

[1] Hussain, T. ‘The Role of Ombudsman in Improving Public Service Delivery in Pakistan’. (2010). Strengthening the Ombudsman Institution in Asia: Improving Accountability in Public Service Delivery through the Ombudsman, Asian Development Bank. 232, 234.

[2] Sarfraz, S.  Federal Tax Ombudsman’s Powers, Jurisdiction Explained. (2022) Business Recorder.

[3] Waseem, M.  ‘Independence of Ombudsmen’. (2010). Strengthening the Ombudsman Institution in Asia: Improving Accountability in Public Service Delivery through the Ombudsman, Asian Development Bank. 57, 78-80.

[4] Sarfraz, S.  Federal Tax Ombudsman’s Powers, Jurisdiction Explained. (2022) Business Recorder.

[5] Hussain, T. ‘The Role of Ombudsman in Improving Public Service Delivery in Pakistan’. (2010). Strengthening the Ombudsman Institution in Asia: Improving Accountability in Public Service Delivery through the Ombudsman, Asian Development Bank. 232, 238.

[6] Federal Board of Revenue. Bar on jurisdiction of FTO.

[7] Hussain, T. ‘The Role of Ombudsman in Improving Public Service Delivery in Pakistan’. (2010). Strengthening the Ombudsman Institution in Asia: Improving Accountability in Public Service Delivery through the Ombudsman, Asian Development Bank. 232, 242.

[8] Waseem, M.  ‘Independence of Ombudsmen’. (2010). Strengthening the Ombudsman Institution in Asia: Improving Accountability in Public Service Delivery through the Ombudsman, Asian Development Bank. 57, 69-72.

[9] Jaffry, A.  Fair Tax Monitor 2018, Pakistan. (2018). Henrique Alencar Oli Pearce. OXFAM. 28-29.

[10] Shafqat, U.,Deeba, F.and Akhter, S. ‘Access to Justice through Mediation in Tax Disputes: A Case Study of Pakistan’. (2022) Vol. 23 No. 2. Pakistan Vision, 23, 34.

[11] Scope of jurisdiction of Federal Tax Ombudsman. (2005). Business Recorder. (The writer is a Retired Federal Secretary and Ex-Advisor-in-charge Research Development and Study Cell Office of the Federal Tax Ombudsman)

[12] Hussain, T. ‘The Role of Ombudsman in Improving Public Service Delivery in Pakistan’. (2010). Strengthening the Ombudsman Institution in Asia: Improving Accountability in Public Service Delivery through the Ombudsman, Asian Development Bank. 232, 245-249.

Author:

Amna Ramzan

Institute:

Fatima Jinnah Women University, Rawalpindi

Degree Programme:

LLB (Hons)

The Federal Tax Ombudsman (FTO): A Comprehensive Analysis

The[1]  Federal Tax Ombudsman (FTO) is a key player in enhancing the accountability and

transparency of tax management by the examination of several facets, as this article intends to give a comprehensive grasp of the FTO's missions, of its regulatory rank compared to the rest of the public authorities, its inherent legal framework, and its territorial reach, and the openings for reform its presented.

1. Comparative Analysis of FTO with Other Governmental Institutions

The FTO which has been established under the FTO Order of the Tax Code, 2000, to handle complaints by taxpayers against the local tax administration. As opposed to tribunal, which has extensive authority in both civil and criminal cases, the Ombudsman's authority only brings

them closer to the tax and personal grievances. Representatively, the FIA (Federal Investigation Agency) and NAB (National Accountability Bureau) which prosecute general as well as

corruption cases, the FTO prefers dispute adjudication in a non-conflict way. While being a self-governing entity, the FTO lacks the NAB's or FIA's punitive powers, e.g., detention and prosecution

One[2]  of the processes the FTO uses to work on complaints is a relatively informal method that centers around mediation and negotiations first. In this procedure, on the one hand, the formality of the courts' legal proceedings and the fact-finding processes of FIA and NAB are

diametrically opposed to this. Rather, when a complaint is received, the FTO will usually arrange a dialogue between the taxpayer and the tax authority to amicably resolve the issue.

Conversely, the FIA and NAB employ numerous strict measures and procedural protocols as well as may use prosecution, if necessary.

FTO’s performance examining from other institutions is inconsistent. The FTO's reports show that, in fact, most of the complaints resolved by it are resolved through the process of

alternative dispute resolution, such as mediation, conciliation, and negotiation. In addition,

institutions like the legal bodies and NAB have a stronger implementation process but since they face more legal troubles they take a lot of time to deliver services.

The FTO in past times has tried out many activities to make the service delivery such as the

launch of an online complaint management system and the organization of campaigns through which taxpayers were told the information that they should know. These are the same steps as in other institutions, for instance NAB`s plea bargain system and the FIA's technological

upgrades for better case management.

2.       Legal Analysis of FTO's Empowerment through Law

The Federal Tax Ombudsman's authority and responsibilities are given in the Federal Tax

Ombudsman Ordinance, 2000. This legal framework accords to the Ombudsman the power to

investigate and propose solutions as well as make recommendations directly to the President of Pakistan. However, the FTO's directives are not obligatory, thus affecting its resourcefulness. A

thorough legal study finds that while the Federal Tax Ombudsman is well enough empowered to deal with tax misconduct, it still has some holes in its law enforcement capabilities that require the amendment. Specifically, unlike the judiciary, the FTO does not have the power to impose fines and compel the implementation of its decisions, which could conceivably compromise its function as an effective oversight body.

3.       Sectoral Studies: Jurisdiction of FTO in Various Sectors

Agricultural Sector

The FTO is a key facilitator in the tax assessment rigmarole prevailing in the agricultural sphere, dealt with particularly thorny issues like land valuation disputes and tax exemptions. On the examination of the performance of FTO in this field, I have discovered that though the body is doing its best to resolve matters, in many instances, it is limited in its ability to act due to the

lack of knowledge among the people int the villages about its functions.

IT Sector

In the IT sector, the FTO takes care of issues regarding the tax and e-commerce of digital

services. The FTO has achieved fast growth in this sector, and the international tax legislation is of a complicated nature, these are among the main obstacles that the sector is facing. The FTO has taken steps to resolve this issue. However, there is a need for more professionals who have

firsthand experience to operate and more appropriations to resolve the vague sides of digital taxation.

Tourism Sector

Another industry that the FTO has jurisdiction in is the tourism industry, consisting of hospitality services and travel agencies. The fact that the FTO handles well the disputes pertaining service tax and other levies is an indicator of the organization's good functionality in this area.

Nevertheless, the issue of businesses coming and going which is typical of tourism often causes both tax law enforcement and dispute resolution to be complicated.

Services Sector

The FTO extends its authority to the entire services sector, that includes professional and financial services. The FTO is focused on the issues such as the differences in the tax assessments, application of service taxes, and the like. Although the FTO was successful in many matters, it is lacking in resolution and stability and there is a need to improve its jurisdictional reach and capacity to be competitive with the immense structural changes and diversity of services sector.

4.    Sectors Exempt from FTO's Jurisdiction

As per the regulatory framework and disposition, there are certain sectors that fall outside the jurisdiction of Federal Tax Ombudsman (FTO). These exclusions are mainly for protection of national security and confidentiality. For example, for the banking sector, the State Bank of Pakistan (SBP) is its regulator and hence FTO has no right to investigate banking practices. This also includes investigations overlapping with SBP regulatory responsibilities.

In addition, industries pertaining to defense, military operations as well as other areas of vital importance for the nation’s safety are not included in FTO’s scope. The purpose of these exceptions is to ensure that sensitive information always remains confidential. Despite these limitations, this creates a situation for the stakeholders of these sectors, who might be deprived of a separate channel to address their tax issues. An analysis of these work-free zones indicates the necessity for including FTO's jurisdiction or setting up special ombudsman offices to cover the existing lacunas.[3] 

5.       Recommendations for Improving FTO Laws and Efficiency

To make sure the FTO becomes more effective, the following proposals need to be included from the analysis above.

●     Legislative Amendments[4] : Instead of changing the current ordinance to give the FTO compulsory authority, emphasis must be directed towards enhancing the present appraisal procedures. With the allowed amendment to the ordinance noted above, the FTO’s power and capacities can be even furtherexpanded by the proposal of a proper appeal or review procedure. This would mean that the contentious issues should be dealt with in either the court or in specialized tax courts so as to guarantee fairness in disposition of the cases besides observing the dictates of transparency.

●     Procedural Reforms[5] : Thus, improvements should target the explication of the efficacy of complaint resolution on the basis of ongoing changes. For instance, the type of access that might be granted to the complaint may be the number of days his or her complaint will be reviewed (e. g. 10 days). For better co-ordination between different government departments, it is possible to design a computerized system which can integrate the complaint management system and can provide real time information update. This would shorten the time taken in providing the resolutions, and also enable effective cooperation between the agencies.

● Capacity Building[6] : Training and development will have the required funds to be put in place to achieve the following staff in company understanding of specific tax matters, especially in the technology and digital services sectors.

●     Stakeholder Engagement[7] : The increase of the number of events and information means that many taxpayers will learn about what the FTO does and how it can help them. The activities may include holding open meetings, designing focused publicity and the use of industry organizations to build confidence and awareness.

These reforms could substantially enhance the FTO's capacity to operate as a truly effective oversight entity and in addition to this, introducing a quality and efficient tax administration system in Pakistan.

References

1.     Federal Tax Ombudsman Ordinance, 2000. Government of Pakistan.https://www.fto.gov.pk/wp-content/uploads/2020/07/FTO-Ordinance.pdf

2.     FTO Annual Report 2022. Federal Tax Ombudsman, Pakistan.https://www.fto.gov.pk/annual-report-2022/

3. National Accountability Bureau (NAB) Annual Report 2022. National Accountability Bureau, Pakistan.https://www.nab.gov.pk/Downloads/Annual%20Reports/Annual_Report_2022.pdf

4. "Comparative Analysis of Ombudsman Institutions." Asian Ombudsman Association, 2019.https://asianombudsman.com/resources/reports/comparative-analysis-of-ombudsman-institutions-2019

5. Khan, M. A. (2021)."The Role of Federal Tax Ombudsman in Pakistan." Journal of Taxation and Governance, 15(3), 45-63.https://journals.sagepub.com/doi/full/10.1177/21582440211040160

6. Ahmed, S. (2022). "Taxation in Pakistan: Challenges and Reforms." Institute of Policy Studies, Islamabad.https://www.ips.org.pk/taxation-in-pakistan-challenges-reforms/

Author:

Nabeela Mohiud-din

Institute:

International Islamic University Islamabad

Degree Programme:

Shariah and Law 

The[1]  Role and Responsibilities of the Federal Tax Ombudsman

Introduction

 Federal Tax Ombudsman –an official institution in the Pakistan that acts as a significant entity for restoring fairness and transparency in the country’s taxation sector. For this reason, the FTO as an independent organisation is supposed to help fight corrupt activities and streamline accountability in the Federal Board of Revenue (FBR). It is an important watchdog that work for the rights of the common taxpayers and helps establish confidence between the government and the people through the consideration of the complaints and legalization of the policies. Hence, the FTO plays an essential role of ensuring proper formulation of the taxation policies hence developing a healthy taxation system within the country.

 Establishment

The Function of the Federal Tax Ombudsman originated to increase accountability in the tax administration system. It became official only in 2000 with the Federal Tax Ombudsman Ordinance. Before it, most of the taxpayers lack the forum through which they can challenge the unfavourable actions by the tax authorities. Duping, corruptions, and indiscretion characterized the previous system to warrant an independent institution in handling of such issues.

This is due to the fact that the FTO was established to serve in a like manner, and in the capacity of an independent third party mediator between the taxpayers and the authorities. Although this has been done the creation of this office marked a stride in enhancing the credibility of governance in the taxation system. Since its formation 20 years ago, the FTO has provided policy advices on reform measures that have helped in the formulation of sound taxation measures that aim at operating effectiveness in collection of tax.

Some of the responsibilities of the FTO are discussed below:

 1. Investigating Complaints

 The FTO is mandated to investigate complaints made by the taxpayers as part of its central role. Many of these complaints relate matters like harassments by tax officials, wrong computations of tax amounts, slow processing of refund, and inconsistency in calculation of taxes. These issues may involve officials and it is only the FTO that can independently investigate the matters with the aim of eradicating abuse of powers.

 For instance, in 2017 the FTO prosecuted in a case whereby several taxpayers had petitioned over delayed refunds of tax rebates. The examine performed by the Ombudsman identified failures throughout the refund processing system of the FBR as systematic. Thus, the FTO suggested several improvements of the process and made sure that refunds are issued promptly. While handling these complaints changed individual situations for the better, this intervention also produced policy alteration to favor a greater number of people.

 The investigative power play a central role in the operations of the FTO to ensure accountability and transparency is upheld. In this manner the FTO also assists in dealing with complaints quickly such the public officials cannot have their way in taking advantage of the public.

2. Making Recommendations

 Therefore, apart from handling individual complains, the FTO has a critical role of advising on the changes that is required within the tax administration. Such recommendations are usually grounded on investigation or other research conducted on the operations of the Federal Board of Revenue (FBR). Organized in order to maintain higher effectiveness, transparency and fairness of the existing system of tax collection.

 For example, in 2019, due to the fact that the original mechanism used by the FTO was skewed in terms of certain groups of taxpayers, the FTO recommended a change of the audit selection. In its suggestion, the Ombudsman suggested for a more transparent and automated way of selection whereby the potential bias of the auditors is minimized and the audits are done objectively. These recommendations, although not legally enforceable, trigger a lot of changes within the FBR, and thus improving the overall tax collection.

 In addition, the FTO has called for rationalization of the tax administration procedures. Through limiting the steps in the processing of the taxes, the FTO aims at making the task easier especially for the SMEs and individual tax payers. These efforts contribute to the taxpayer-friendly environment and enhance voluntary compliance and decrease the bureaucratic burden for both the taxpayers and the authorities.

3. Enhancing Taxpayer Awareness

 Education is one of the activities that the FTO has to perform in order to achieve its goals. The general public, especially the taxpayers in Pakistan lacks adequate knowledge regarding rights and responsibilities implied by the tax procedure and, therefore, the taxpayers continue to be in noncompliance. In response to this, the FTO has developed a number of awareness raising initiatives which are intended to inform people oftheir rights and how the system can work for them.

 This way, the Ombudsman also holds outreach programs and seminars wherein the right of taxpayers to complain to the office is also explained. This empowerment is necessary to enable the taxpayers to be aware of their rights as well as how to seek redress in cases where their rights are infringed.

 Insistent on the necessity of the improved public awareness of the tax matters the FTO underlines the necessity of paying especial attention to the targeted groups of the population including the ones like small businesses and people with low incomes. Thus, ensuring that the taxpayers have adequate information, the FTO dispenses the all-important obligations of enforcing tax compliance as well as the treatment of taxpayers.

4. Maintaining that all taxpayers are to be treated fairly.

 One important role that the FTO needs to play is to obtain fair treatment for all the taxpayers. This is achieved by the FTO deterring the harassments, exploitations of the taxpayers by ensuring that tax officials are answerable for their behaviors. Through handling complaints and offering solutions the Ombudsman makes sure that the officials are ethical, and the taxpayers are not overcharged.

 There is this mercantile trader who complained that tax officials had mis-estimated his income, thereby coming up with outrageous tax bill. Subsequent to the assessment, the FTO pointed out that the assessment was undertaken on the basis of incorrect information and advised the FBR to make the necessary correction. The Ombudsman’s actions were corrective, not only for the particular case, but also let to enhanced scrutiny of income re-evaluations thereby ensuring exclusion of other such violations in the future.

 In so doing, the FTO contributes to the development of a more equitable and liberated tax environment, where taxpayer is respected as well as enjoys the protection of his/her rights.

 5. Promoting Systemic Reforms

 In addition to grievance disrupted resolution, the FTO play very active and critical role of supporting more general reforms to the tax system. Here the Ombudsman points out impracticalities and comes up with recommendations that directly helps in making the structure of taxation more comprehensible, effective and fair. As mentioned earlier there are areas the FTO has noted that reforms are necessary and one of the areas is the use of technology.

 For instance, the FTO has called for the adoption of an e- filing system to remove close contacts between the taxpayers and the tax officials, and remove any likely chances of corrupt practices. The Ombudsman has also proposed the use of what he has termed as online audits to improve on the general audits and to also ensure that whoever is being audited is done fairly.

 All these systemic reforms are important towards the development of a new efficient Tax Administration System. The recommendations presented by the FTO manage to eliminate much of the area prone to corruption while at the same time enhancing the quality of services offered.

Challenges Experienced by the Federal Tax Ombudsman

 However, there are several challenges that have been observed regarding how the FTO goes about achieving its mandate. Another problem that is difficult to overcome is the low level of awareness of the population and the business community regarding the tasks and activities of the FTO. Some of the taxpayers especially those residing in the rural areas have not been able to claim their right to complain to the Ombudsman. This lack of awareness reduces the ability of the FTO to respond to the complaints since many of the are unreported.

 Also the paperwork drawback as a result of the fact that the FTO merely provides recommendations that are not binding. Even though, the Ombudsman investigations can have highly principled account, the respective tax authorities may not be obliged to act accordingly. This Is particular so in the situations whereby the FBR is instrumental Al in resisting change, and consequently, the recommendation made by the FTO can be ignored or delayed, and in the process, nix the Ombudsman’s capacity to make the desired changes.

 In response to these challenges the FTO has advocated for increased community engagement and has put forward legal change recommendations to have its recommendations be mandatory in some instances. Thus, the need to enhance the FTO powers as well as enhance public participation are some of the recommendations which are helpful in ensuring the Ombudsman can effectively work.

 Conclusion[2] 

 In conclusion, it is very clear that Federal Tax Ombudsman performs a very important function regarding the transparency/ fairness and accountability aspect pertaining to tax evasion/management in Pakistan. Through studying complaints, preparing proposals and working for changes to be made in the system, the FTO serves the purpose of safeguarding taxpayers’ rights and maintaining compliance, fairness, and effectiveness of the taxation process. Nonetheless, it holds a significant position in maintaining public confidence on the FTO and the tax system in general despite the numerous challenges it encounters in this line. In the future, therefore, there is need to further its capacity and increase its visibility so that it continues to effectively champion the rights of the taxpayers[3] .

Author:

Hira Amin

Institue:

International Islamic University Islamabad

Degree Programme:

Shariah and Law

Evaluating the Long-Term Sustainability of Pakistan’s Fiscal Year 2024-2025 Budget[1]  

Pakistan’s budget is a key document which determines the country’s economic future and brings into view transparency and generation of tax revenue. Some of the fiscal measures taken in this budget to overcome short-term gaps, i.e. revenues mobilization, and public expenditure management may not be consistent with long term economic objectives.

In the short run, this seems to be a good strategy for the government because it helps fill in immediate fiscal gaps enabling governments to meet pressing requirements like debt servicing and essential services. Nevertheless, these quick measures appear to be short-term as far as future revenue-generating possibilities are concerned. Over-reliance on such one-off measures as raising indirect taxes or different kinds of one-off revenue generating initiatives threatens the greater economic agenda of Pakistan which arguably encompasses industrialization, innovation and equitable tax system.

In addition, people’s mistrust stems from the lack of proper explanations of how tax measures will be implemented and enforced, and therefore tax coverage remains scanty and unequal on certain industries while others remain dormant. As a result, while it is apparent that there is relief in the short term, structural challenges especially in taxation and transparency pose risks on the long term growth prospects of Pakistan. This leads to fundamental concerns about how revenue requirements could be met and growth sustained while ensuring fairness in development in the years to come.

It can prove relatively dangerous for a nation’s economy as a whole to rely too heavily on taxation as a means of balancing a nation’s budget without addressing the root causes of a budget deficiency. While publicly stated objectives can be helped to a measure by high taxes in terms of revenue collection in the short term, their effect on investment and business activities is negative which forms the backbone of economic activity. The notion that a nation’s economy can prosper by taxing individuals and businesses too much is a blessing to disinvestment, demotivation of creativity and effective change, and extreme low levels of productivity in the economy.

In addition, taxing too much on people also encourages tax evasion since people will want to find a way to minimize their tax burden. This achieves the opposite of the intended benefits of any raised taxation; where there is increased tax avoidance, there is a more extensive tax evasion problem which is detrimental to economic growth by seeking or turning to bribery. Therefore, even the expected marginal benefits that may result from heavy tax payment are most likely to be counteracted by tax compliance deficiency leading to structural weakness concerning the formal economy.

Another thing is that high taxation takes away disposable income and as such hampers consumption. On the back of lower consumer confidence and consumption, there is a weaker demand on the economy which negatively affects business growth, employment levels and the growth of the economy. Hence in the long run, such does not only affect the country’s balance sheets but also limits the likelihood of growth.

When it comes to tackling the underlying problems of Pakistan’s economy, once again it will take something much more complete and rather unorthodox. The authoritative maxim, both at the present time and in the perspective, is the linearisation of public expenditure. It means that there should be an investigation held that will help in locating which expenditure is extraneous and hence, the government will be able to cut down the useless costs and allocate resources efficiently. By eliminating wasteful expenditures, the government can maximize the impact of its budget, creating room for essential services and development projects that promote long-term growth.

A practical advice will be to make use of natural bounties and generate new revenue streams from Pakistan. This might involve supporting small businesses, especially those outside of the usual agriculture sectors like mining or tourism & manufacturing. It can play a vital role to reduce the burden on agriculture while diversifying its economy. This would also result in new employment opportunities, export-oriented products and additional revenue for the federal government as well.

Another important structural reform is the modernization of tax administration. As a result of an increase in the transparency, reduction of loopholes and widening of tax net can be also achievable then, which may promote equitable taxation. This will also help in reducing the overreliance on sectors, ex. agriculture for taxation which is few and far better than to distribute this public burden (tax) more equitably. If implemented the way it was intended to, these reforms would increase revenue collection and address issues in compliance which can be used for tax evasion.

Finally, a process of streamlining the existing bullish bureaucratic frameworks through reducing red tape and employing less licenses for business operations could help ease making businesses. Such measures could draw home and foreign direct investments, stimulate economic growth. This will foster innovation, entrepreneurship and sustainable growth — something that not only promotes the private sector but would serve public revenue in the long run.
In summary, although Budget 2024-2025 uses taxation as a way to deal with fiscal imperatives in the short run, this might not be ironically advantageous for the long term. This is where Pakistan needs to move towards a comprehensive strategy such as structural reforms to address inefficiencies, revenue diversification and business facilitation.

This is value for the years when hypothetical savings can be achieved, probably through reducing wasteful spending and diverting resources to growth enhancing outlays. Creating other roots of income that do not rely upon taxes would also benefit the economy; promoting new industry, small businesses etc, can help stabilize the economy.

Furthermore, creating simpler regulatory processes and reducing bureaucracy can also be conducive to investments. This approach will attract not only domestic but also foreign capital, leading to economic growth and stability. To achieve this, Pakistan needs to grasp the opportunity by bringing in structural reforms, which can help overcome the linear pre-existing challenges and deliver high sustained long-term economic growth.

Author

Abdulrehman Memon. 

The Author is an Advocate of Sindh High Court.

GAZA GENOCIDE CASE IN INTERNATIONAL COURTS:

The past eight months have witnessed a devastating cycle of violence in Gaza, as Israel's invasion has left a trail of death and destruction, following Hamas' attack on October 7th, 2023. The ensuing events in the Gaza Strip, justified by Israel as self-defense, have been brutal and harrowing to an extent of prompting international condemnation as a textbook example of genocide. Despite overwhelming evidence, Israel continues to receive support from several nations, shielding it from worldwide sanctions. This hypocrisy is a stark reminder of the West's double standards, where the fate of a decapitated baby is ignored, while the mere suspicion of weapons of mass destruction can lead to the destruction of an entire nation.

In contrast, Palestine lacks such an international support, with numerous nations failing to even acknowledge its sovereignty - a reality that would have been unimaginable less than a century ago. However, South Africa has emerged as an only nation that has taken a significant step beyond mere votes in Security Council’s resolutions for the Palestinian people. The country has brought a landmark case against Israel before the International Court of Justice (ICJ), accusing it of violating international humanitarian law and perpetrating crimes against humanity.

As the case unfolds, significant legal developments and awareness have emerged, with several nations, including Pakistan, joining the case. This article examines the intricacies of South Africa's case, the decisions made thus far, and the plausible outcome of this historic legal battle.

South Africa’s Case against Israel in International Court of Justice

The International Court of Justice (ICJ), established under the United Nations (UN) Charter in June 1945, functions as the primary judicial body of the UN. Article 92 of the UN Charter designates the ICJ as the principal judicial organ of the United Nations, operating according to the Statute of the International Court of Justice. While South Africa’s case against Israel marks a significant legal proceeding, it is not the first time that the ICJ is addressing matters related to the Convention on the Prevention and Punishment of the Crime of Genocide. However, it represents the first occasion on which the ICJ has been tasked with determining whether Israel is breaching this convention.

At the core of the ICJ's deliberation lies the pivotal inquiry into whether Israel’s actions in Gaza constitute violations of its commitments under the Genocide Convention. In its petition to initiate proceedings, South Africa specifically urged the court to grant specified interim measures aimed at preventing further, severe, and irreversible harm to the rights of the Palestinian people under the Genocide Convention. Additionally, South Africa sought measures to ensure Israel’s adherence to its obligations under the Genocide Convention, which encompass refraining from engaging in genocide and undertaking measures to prevent and punish genocide.

Cases brought to the ICJ take years to come to judgement. However, parties involved can request interim relief, known as provisional measures, while the case is ongoing. One such interim ruling was issued by the Court on January 26, 2024. Firstly, it determined that it had jurisdiction to hear the case under Article IX of the Genocide Convention. Secondly, the Court decided that South Africa had prima facie standing to bring the case. The Court emphasized that the obligations enshrined in the Genocide Convention are erga omnes, meaning they are owed to the international community as a whole, and thus any state party to the Convention has a legitimate interest in enforcing them.

Most significantly, the court ordered several provisional measures. These included instructing Israel:

1)      By a vote of fifteen to two, to take all necessary steps to prevent acts falling within the scope of Article II of the Genocide Convention, particularly: (a) the killing of members of the group; (b) inflicting serious physical or mental harm on members of the group; (c) deliberately imposing conditions of life aimed at wholly or partially destroying the group; and (d) implementing measures intended to prevent births within the group.

2)      By a vote of fifteen to two, to ensure that its military refrains from committing any acts covered by Article II of the Genocide Convention immediately.

3)      By a vote of sixteen to one, to prevent and punish any direct and public incitement to commit genocide against members of the Palestinian group in the Gaza Strip.

4)      By a vote of sixteen to one, to take prompt and effective measures to facilitate the provision of urgently needed basic services and humanitarian aid to alleviate the harsh living conditions faced by Palestinians in the Gaza Strip.

5)      By a vote of fifteen to two, to take effective measures to prevent the destruction of evidence and ensure the preservation of evidence related to allegations of acts covered by both Article II and Article III of the Genocide Convention against members of the Palestinian group in the Gaza Strip.

The ICJ's judgments are absolute and binding, according to Article 60 of its Statute. This means Israel cannot appeal or reverse the court's January 26 directive, regardless of its desires. Moreover, the UN Security Council lacks the power to overturn or veto ICJ decisions. While this interim ruling holds significant weight, it is important to note that it is not the final decision. Under Article 94(1) of the UN Charter, all UN member states are obligated to comply with ICJ rulings in cases where they are a party. However, it is important to acknowledge that despite its decisions being binding the ICJ lacks the means to enforce and monitor its rulings, relying on the cooperation of member states for implementation.

Despite this standing fact of lacking an international police force to enforce its rulings, the court, by a vote of fifteen to two, mandated Israel to furnish a report detailing the measures taken to comply with its order within one month from the date of the directive. Israel submitted the report as required, but with the stipulation that its contents be kept secret, for reasons that have not been disclosed.

Had Israel failed to fulfil the order, recourse would have inevitably lead back to the Security Council. As per Article 94(2) of the UN Charter, if a party to a case neglects its obligations under an ICJ judgement, the other party may refer the matter to the Security Council. The Security Council, under Article 41(2) of the ICJ's statute, will be formally notified of the court's decision and may, if deemed necessary, make recommendations or decide on measures to enforce the judgement.

South Africa has gone back to the Court two times since then (on February 12 and on March 6) arguing that the humanitarian situation has worsened and additional provisional orders were required. On 6 March 2024, South Africa returned to the ICJ to request the ICJ for further provisional measures given the worsening situation in Palestine and Israel’s intervention in Rafah. The Court accepted the second request and gave additional provisional measures on March 28, 2024. South Africa has since approached the Court again on 10th May for additional provisional measures in light of the even worsening humanitarian situation.

Overall there has not been notable compliance with ICJ’s provisional measures in South Africa v Israel. Technically Israel complied with measure (6) from the Order of 26 January 2024 by submitting a report to the ICJ but the report whose purpose is to demonstrate Israel’s efforts in complying with the provisional measures loses its significance if the conflict is ongoing with worsening humanitarian crises. This is an issue with the ICJ because there is not a definitive guideline or process which suggests what happens if this report does not hold truth or is not adequately reflecting the actions of a state, nor is it open for public access.

Furthermore, the ICJ did conclude in the Order of 28 March 2024 that ‘the catastrophic situation in the Gaza Strip confirms the need for immediate and effective implementation of the measures indicated in its Order of 26 January 2024’. The ICJ’s reaffirmation of the situation in Gaza was indicative that partial compliance is not the solution to prevent genocide.

ICC and Arrest Warrants for Israeli Officials

Besides ICJ, The International Criminal Court (ICC) also deals with international cases but its jurisdiction is limited to the cases of criminal nature. ICC applies definitions of international crimes outlined in its foundational treaty, the Rome Statute. These core crimes include genocide, war crimes, and crimes against humanity. Genocide necessitates the specific intent to destroy a protected group, either wholly or partially. Crimes against humanity occur within the context of a widespread or systematic attack against a civilian population, while war crimes are serious violations of international humanitarian law during armed conflicts. The Office of the Prosecutor (OTP) investigates "situations" referred to by state parties, the U.N. Security Council, or initiate proprio motu under specific conditions.

Recently, ICC Prosecutor Karim Khan applied for an arrest warrant for Israeli Prime Minister Benjamin Netanyahu, based on a probe initiated in 2021. The prosecutor announced "reasonable grounds" to believe Netanyahu and Defense Minister Yoav Gallant bear "criminal responsibility" for war crimes and crimes against humanity under article 8(2)(b)(xxv) of the ICC Statute. The applications allege war crimes such as starvation of civilians, attacks on civilians, and willful killing, along with crimes against humanity including extermination and persecution, among others, committed in the Gaza Strip from at least October 8, 2023.

These applications await review and approval by a Pre-Trial Chamber of the Court before arrest warrants can be issued. For warrants to be issued, the chamber must find "reasonable grounds to believe" the named individuals committed the alleged crimes, based on evidence presented by the prosecutor. Should the Pre-Trial Chamber grant these requests, any state party to the Rome Statute would be obligated to arrest and surrender these individuals to the ICC for trial.

It is pertinent to note that the ICC's jurisdiction over alleged international crimes in Palestinian territories stems from Palestine's accession to the court's treaty in 2015, following the U.N. General Assembly's decision granting Palestine "non-member observer state" status.

International Humanitarian Law Violations by Israel following ICJ’s interim ruling

Despite ICJ’s provisional rulings, Amnesty International's evidence illustrates ongoing violations of international humanitarian law by Israeli forces, including indiscriminate or direct attacks on civilians and civilian infrastructure in the occupied Gaza Strip since October 7, 2023. These actions constitute potential war crimes and warrant investigation. Israeli authorities have also been criticized for failing to adhere to measures mandated by the International Court of Justice to prevent genocide, including deliberately obstructing access to adequate humanitarian aid. Similar violations have been documented by Amnesty International during previous conflicts in Gaza in 2008-9, 2014, and 2021.

Israel's response to the World Court's order has been vehement, rejecting accusations of genocide in Gaza and continuing military operations, such as the deadly assault on Rafah. This assault has led to significant casualties, including the bombing of a tent camp in a designated safe zone, resulting in the deaths of numerous civilians, predominantly women and children. The attack on Rafah has prompted widespread condemnation and calls for a ceasefire, especially considering its impact on vital infrastructure like the Kuwaiti Hospital, which has been forced to close due to Israeli attacks. The displacement of over 900,000 Palestinians within a short span has exacerbated the humanitarian crisis, leaving many without shelter, food, water, or medical assistance. Israeli military actions, including the advancement of tanks and troops into densely populated areas like western Rafah, have further escalated tensions and raised concerns about civilian safety. The staggering toll of casualties, with thousands killed and wounded since October 7, underscores the urgency of addressing the situation and working towards a peaceful resolution to the conflict.

Will International Law eventually provide adequate relief to Gaza

The international law scholars do not have any definitive answer to the question whether the international law will provide adequate relief to Gaza. The UN Security Council Resolutions against Israel are being vetoed by the USA and the genocide case against Israel in ICJ would take years before the judges come to the final judgement. The interim measures ordered by ICJ are blatantly being violated by Israel. The United Nations Security Council (UNSC) finally passed a United States-backed ceasefire resolution on 10th June to end eight months of Israel’s devastating military offensive in the Gaza Strip. Before that, the USA blocked at least three UNSC resolutions to end the war that has killed more than 37,000 Palestinians and injured about 85,000. But hours after the UNSC vote, Israel carried out deadly attacks across the Palestinian enclave, raising questions about whether the latest resolution will lead to a permanent ceasefire. Even if the ICC grants arrest warrants for Israeli officials, the international law depends on the international community for its enforcement. Considering the support Israel currently enjoys from the international community despite its violations of various provisions of international laws, including United Nations Resolutions and the Laws of War and Occupation, paints a really grim picture. There have been calls for reforms in international law to strengthen the rule-based world order but it may take decades to actualise.

https://www.amnesty.org/en/latest/news/2024/05/israel-opt-icc-applications-for-arrest-warrants-for-netanyahu-sinwar-and-other-senior-israeli-and-hamas-officials-crucial-step-towards-justice/

https://www.jurist.org/features/2024/02/02/explainer-the-legal-and-practical-impacts-of-the-icj-genocide-case-against-israel/

https://rsilpak.org/2024/assessing-compliance-with-provisional-measures-in-genocide-cases-the-good-and-the-bad/

https://www.lawfaremedia.org/article/understanding-the-icc-prosecutor-s-request-for-arrest-warrants

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)

"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.

Author:

Aroosa Adil

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