When Being Counted Can Lead to Being Protected.

 

hijraON THE

EVENING of May 22, Alesha, a 23-year-old transgender woman and human rights activist in Peshawar, the capital of Pakistan’s northwestern Khyber Pakhtunkhwa province, received a phone call from some transgender friends. A local gang was demanding money and threatening them with violence if they didn’t pay — so Alesha rushed to the scene to help.

The confrontation turned violent, and the gang shot her six times at close range and left her for dead. The friends rushed Alesha to a hospital — but it was no refuge. For six hours, doctors debated — even jeering at Alesha’s friends as she lay bleeding — whether to put her in the male or female ward. Activists protested vehemently, even getting provincial politicians to stop by, but the wait was too long and Alesha died.

Alesha was a member of TransAction Khyber Pakhtunkhwa, a nascent network of transgender and intersex women who have in recent years begun more vocal advocacy for their basic rights and safety. Their community has organized around the abject violence they face at the hands of local gangs, silence from the authorities responsible for protecting them, and indifference or incompetence from doctors meant to save their lives.

In addition to reactive campaigns to highlight the brutality the community faces almost daily, TransAction Khyber Pakhtunkhwa is on a mission of a different — though not unrelated — type: to be counted. The group has filed a petition at the Peshawar High Court seeking to postpone Pakistan’s federal census, originally due to begin in March but already delayed as a result of alleged political meddling over voting districts, until a promised third-gender column is added to the form. Echoing third-gender recognition campaigns from across the region, the activists are emphasizing a connection between the brutality of their daily lives and the lack of recognition from their government.

The group uses terms such as khawaja siras, hijra, intersex, and transgender for their identities — a mix of bodily and self-expression factors that do not confirm to typical notions of “male” and “female.” (There is considerable popular confusion over the terms. For example, in June, a group of Muslim clerics issued a decree that was widely reported to be a blessing for transgender women to marry; however, activists discovered, it was a rather narrow statement about intersex people under Islamic law.)

In South Asia, identity categories such as hijra — for people assigned male at birth who develop a feminine gender identity — have long been recognized culturally, if not legally. In recent years, activists have pursued the formal recognition of a third gender. Hijras’ traditional status, which included bestowing blessings at weddings, had provided some protection and a veneer of respect. However, rather than being viewed as equal to others before the law, they were regarded as exotic and marginal — an existence dictated by boundaries and limitations, not rights.

Pakistani law includes provisions to protect the rights of transgender people due to a 2011 Supreme Court judgment. In that decision, similar to those from other courts in South Asia, Pakistan’s Supreme Court called on all provincial governments to recognize the rights of transgender people. The judgment specifically called on the police to improve their response to cases involving transgender people, and on other officials to ensure the rights to basic education and employment. Some local governments have carried out parts of the court order, including by creating employment programs — for example, as tax collectors in Karachi.

Development experts,  international agencies, and governments are increasingly regarding the inclusion of sexual and gender minorities in population data sets as not only necessary and desirable, but also feasible. Data-informed decisions, after all, require including the population in question in the information-gathering phase. Or, as the United Nations Development Program put it: “When people are counted, no one is left behind.”

In 2011 Nepal included a third-gender category on its national census, and in 2011 India did as well. The first time around, such data gathering exercises are not necessarily accurate or robust; implementation issues, including the personal bias of enumerators, may inhibit full inclusion. However, the political victory of such inclusive measures should not be overlooked. For a population so deeply marginalized, inclusion on a national census can have immense symbolic value as well.

Pakistan is overdue for a national census — its last one was in 1998. Security concerns and alleged voting district manipulation lie behind repeated delays. Early this year, referencing the 2012 Supreme Court judgment, the Pakistan Bureau of Statistics indicated it had adjusted both the paper form and the computer software for the census to include a third-gender column. Within weeks, however, activists found that the final versions of the census forms, for reasons unknown, included only male and female options. In September, TransAction Khyber Pakhtunkhwa asked the Peshawar court to suspend the census until it included the third category — a move the provincial court can consider and even refer to a higher court.

The inclusion of a third gender on the census will not solve the crisis of violence and marginalization Pakistani transgender and intersex people are facing. Outright violence, employment discrimination, and abusive policeresponses will not be brought to an end by census forms. It is a crucial step, nonetheless, for those who wish to be recognized as something other than male or female. Progress on this front would be an important gesture from the government that it takes their plight seriously.

In the meantime, the brutality shows no sign of letting up, and the bigotry of some caregivers shows no sign of eroding.

On August 9, in Abbottabad, Khyber Pakhtunkhwa, a transgender woman named Sumbal was shot three times in the abdomen by unidentified assailants who were attempting to abduct and rape her. She was turned away at the district hospital; the staff said they only have two wards — male and female. The police only consented to register the case when faced with protests by activists. Sumbal survived the attack because she got medical care.

A gesture from the central government that Pakistanis can be counted as male, female, or a third gender would send a message that everyone counts equally — and that authorities from police to physicians should do their part to uphold basic security and dignity for all.

Ref: https://lareviewofbooks.org/article/when-being-counted-can-lead-to-being-protected-pakistans-transgender-and-intersex-activists/

When Being Counted Can Lead to Being Protected: Pakistan’s Transgender and Intersex Activists-By Kyle Knight

Sound Laws for Unsound Minds

ALTHOUGH mental illness may be as debilitating as, or worse than, any physical ailment, it is not visible to the eye. Later this week, when Imdad Ali walks to the gallows, the world will see his body being punished but not his paranoid schizophrenic mind or the delusions, hallucinations and perceptual disturbances that impaired his judgement.

Whilst it is Imdad Ali’s tragedy that the Supreme Court preferred not to exercise leniency and delay his execution, it is a greater misfortune for the country that mental health issues remain as misunderstood and underexplored, by medical and legal professionals alike, as they are pervasive.

Imdad Ali’s particular legal history is both complicated and sad. In 2002, a court in Multan sentenced him to death for murdering a religious teacher. In 2008, the Lahore High Court and then in 2015, the SC rejected his appeals. Earlier this year, he filed a mercy petition before the president, which was also rejected. Then his wife filed a petition before the high court to have his execution delayed, however, this too was dismissed. The present order has been passed in her appeal to the SC.

At each step in the proceedings, Ali and then his wife pleaded his insanity, first as a defence and then as a ground for delay of execution. In terms of Section 464 of the Criminal Procedure Code, if on consideration of the evidence of an independent medical examiner, the trial court had formed the view that Ali was of unsound mind — ie his judgement was sufficiently impaired to prevent him from understanding the nature or legal implications of his act — then under Section 84 of the Penal Code he could not have been held liable for murder. At each step, however, the courts formed and affirmed the view that despite his illness, Ali was not entitled to take this plea.

The fact that Ali had been independently examined, found to be suffering from paranoid schizophrenia and still not considered a lunatic for the purposes of the law, or committed to a hospital for treatment before he could be tried, speaks volumes for the legal attitude towards mental illness in Pakistan.

The SC’s present order is no exception to this general trend. It states that schizophrenia is “not a permanent mental disorder, rather imbalance increasing or decreasing depending level of stress. It is a recoverable disease … which … does not fall within the definition of mental disorder….”

The court’s dismissive attitude is further evident from the fact that in arriving at this conclusion, it refers to the definition of ‘mental disorder’ in a defunct Mental Health Ordinance 2001 and interprets it in light of definitions in English rather than medical dictionaries and 1977, 1988 decisions of the Supreme Court of India, rather than recent decisions of more medically advanced jurisdictions.

It may be argued that the court’s somewhat cursory treatment of schizophrenia is due to successive courts having already addressed this issue. However, it is also indicative of the inadequate, outdated and fragmented state of mental health laws in Pakistan, which prevents the legal system from developing a meaningful understanding of underlying issues.

Whilst the joint efforts of Pakistani psychiatrists to update the Lunacy Act 1912 had led to the promulgation of the Mental Health Ordinance 2001, the law was rarely invoked. After the 2010 18th Amendment, responsibility for mental health devolved upon the provinces. However, presently only Sindh and Punjab have enacted mental health laws.

Unfortunately, even this weak legal framework has not been implemented. Presently, Pakistan has no recognised authority either for ensuring the welfare of patients or addressing the concerns of psychiatrists, even in an emergency.

Government facilities for mental patients are limited at best. The large number of private in-patient facilities are not registered with any authority and, therefore, unaccountable for the quality of their performance. Consequently, not only does the care of patients remain the responsibility of their relatives but they are also vulnerable to abuse at the hands of charlatans.

Given the situation, it falls to the courts to devise guidelines to balance the need to protect a person who is innocent but unfit to defend himself due to unsoundness of mind, and the need to protect the public from a person who has committed an act which would be a crime if it had been done with the requisite intention.

The UK Mental Health Act 1983 provides a precedent for striking such a balance. In terms of this law, if the sanity of an accused is questioned in any proceedings, he may be remanded to a hospital for evaluation or treatment and the trial may only proceed once he has recovered. Only in more serious mental health cases, does the question of fitness to defend arise.

The Court of Appeal of England & Wales has also laid down guidelines in R. v Bird (1990) for cases in which it becomes necessary for the court to sentence a mentally disordered person. It stipulated that in arriving upon a decision in this regard, courts should consider whether the offender is sufficiently dangerous and culpable to a degree that merits a custodial sentence or whether it may be more appropriate to commit him to a hospital for treatment along with a community sentence.

Disappointing as the SC’s assessment of paranoid schizophrenia and its inability to consider Imdad Ali’s welfare along with his culpability may be, the greater danger lies in the fact that courts subordinate to the SC may rely upon this judgement as a precedent in determining other similar cases.

This merely increases the responsibility of the judiciary to address future cases involving the mentally ill with greater sensitivity and to devise legal tests for determining their liability under criminal as well as civil laws, so that guilty or not, the mentally ill may be treated with the dignity and compassion that is their legal and human right.

Ref : http://www.dawn.com/news/1293240

Pakistan has been ranked as the 8th most lawless country in the world by World Justice Project

1Rule of law is believed to be one of the core tenets of a civilised society. It does not solely pertain to those with the power and means to obtain justice for themselves but also to the marginalised who are pushed to the brink of society, ignored and unheard. When it comes to judging the quality of life in a country, it is quite obvious that reliance on law enforcement for protection and on courts for a fair hearing of grievances must be considered. It is based on this understanding that the World Justice Project issues its yearly Rule of Law index which is based on the survey responses of citizens in countries all around the world and their ratings of their country on various indicators. The index broadly measures 113 countries on such aspects as the absence of corruption, civil and criminal justice and access to fundamental rights. In its report released this year, the index has revealed data that while not surprising, should be a cause for concern and a call to action.

Pakistan has been ranked as the 8th most lawless country in the world in this index which has placed a statistical value on the untold human misery that has resulted for decades due to rampant corruption, sluggish court procedures, lack of legislation and improper use of force by law enforcement. For the less privileged, a category which includes the poor, the physically or mentally handicapped, religious and ethnic minorities, women and children this lawlessness has dire consequences. It is only recently that enough awareness has been built up for bills against sexual harassment and child marriages to be passed. There are many who languish in jails waiting for their day in court and an untold number who have decided to not to strive for justice because the procedure is often more arduous than the crime itself. While landmark pieces of legislation are an important step, they are not enough to overturn the culture of denying justice though for the present little more seems to be on the cards to improve this situation.

 Ref : Published in The Express Tribune, October 30th, 2016.

http://tribune.com.pk/story/1214591/a-lawless-land/

http://worldjusticeproject.org/rule-of-law-index

Some Important Legal Queries and Case Law Citations

Some Important Legal Queries and Case Law Citations

  1. 2000 SCMR 296: If law provides more than one remedies against any order /decree or judgement, than no one allowed availing more than one remedy.
  1. PLD 2011 SC 260: Condition of any payments by husband in the event of giving divorce to wife as stipulated in NIKAH NAMA is not a valid condition and no such claim can be granted by court.
  1. 2009 PCr LJ 151: Violation of Section 103 Criminal Procedure Code makes the case of the person one of the further inquiry under section 497 (2)
  1. 2015 MLD 335: When no date, place, time and witness of an oral agreement was placed , decree in such like cases is exceptional.
  1. 1988 CLC 654 & 2003 CLC 737: Application for setting aside of ex-parte decree could not be decided in summary manner without framing issue and recording of evidence.
  1. 2010 SCMR 1254: If the question of title of a property was pending the complaint under illegal Dispossession Act regarding the same is not competent.

Courts of Pakistan are foreign Courts–Judgment and decrees passed by those Courts were not executable in Azad Jammu and Kashmir under any provision of law

PLJ 2006 AJ&K 1

Present: Muhammad Reaz Akhtar Chaudhry, C.J.

MUHAMMAD SIDDIQUE R ATHORE–Petitioner

Versus

MUHAMMAD MUZAFFAR KHAN–Respondent

C.R.No. 144 of 2004, decided on 29.12.2004.

Civil Procedure Code, 1908 (V of 1908)–

—-Ss. 10 & 115–Two suits for specific performance of agreement to sell relating to same plot–Suit filed by plaintiff was pending in civil Court at Muzzafarabad while suit filed by defendant was pending in civil Court, Islamabad–Defendants application under S. 10 C.P.C. that suit filed at Muzaffarabad be kept in abeyance till disposal of suit filed by him at Islamabad–Defendants application was rejected–Legality–Courts of Pakistan are foreign CourtsJudgment and decrees passed by those Courts were not executable in Azad Jammu and Kashmir under any provision of law–Where decrees passed by Courts of Pakistan were not executable proceedings sub-judice in Azad Jammu and Kashmir cannot be kept in a abeyance on ground that on basis of same cause of action, suit was sub-judice in a Court of Pakistan–Order of trial Court refusing to keep in abeyance suit filed by plaintiff at Muzzafarable does not warrant interference in revisional jurisdiction, therefore, the same was maintained. [P. 4] A

1985 CLC 1309; PLD 1993 AJ&K 1; 1986 CLC 1309; PLD 1954 AJ&K 1 and PLJ 1976 AJ&K 9, ref.

Khawaja Muhammad Aslam Habib, Advocate for Petitioner.

Khawaja Muhammad Nasim, Advocate for Respondent.

Date of hearing : 29.12.2004.

Judgment

The supra titled revision petition is directed against the order of learned Senior Civil Judge Muzaffarabad dated 24.11.2004, whereby he has declined to keep the proceedings pending under Section 10 of CPC.

  1. The relevant and necessary facts for the disposal of the instant revision petition are, that the non-petitioner brought a suit for declaration in the Court of Civil Judge Muzaffarabad, to the effect that Plot No. 280 measuring 600 yards situated in Sector G/15/1 Khayaban-e-Kashmir Islamabad was allotted to him vide order dated 25.11.2003. He sold the said plot through an agreement to sell in lieu of Rs. 35 lac to the petitioner-defendant. An amount of Rs. 5 lac was paid through cheque while the remaining amount of Rs. 30 lac was to be paid within period of six weeks. After six weeks, the petitioner-defendant did not make payment. The plaintiff asked him to make the payment of the remaining amount, but he did not make the payment. Thus, the agreement has been revoked by him as it contained such a condition. It was craved that it may be declared that the defendant has no right on the said plot and he has not paid the remaining amount of Rs. 30 lac within the stipulated period. Therefore, now this agreement has been become void. It may be declared as such.
  2. Regarding the same plot another suit was filed by the petitioner in the Court of learned Civil Judge Islamabad for specific performance of the contract. The petitioner moved an application before the trial Court under Section 10, CPC to the effect that the suit may be kept in abeyance till the final disposal of the suit by the Court of Islamabad. This application was turned down by the trial Court. Hence the instant revision has been filed.
  3. The learned counsel for the petitioner argued that the Civil Court Islamabad has jurisdiction to try the subject-matter of the suit, because the plot is situated at Islamabad. He contended that under Section 10, CPC it was enjoined upon the trial Court to keep the proceedings in abeyance but the said Court declined to keep the same pending without any reasonable justification. He referred Section 10 of the CPC and submitted that in presence of the former suit, the subsequent suit was to be kept in abeyance, but the trial Court has failed to follow the procedure prescribed in the CPC.
  4. While controverting the arguments of the learned counsel for the petitioner, the learned counsel for the non-petitioner contended that the Court of Civil Judge Islamabad is a foreign Court and under Section 10 CPC the trial Court of Muzaffarabad was not legally competent to keep the proceedings in abeyance, on the basis of the proceedings subjudice in a foreign Court. He further contended that when the Court of Islamabad is a foreign Court and a decree of that Court is not executable in Azad Jammu & Kashmir, then how the proceedings in Azad Jammu & Kashmir Court could be stayed. He referred 1985 CLC 1309 and PLD 1993 AJ&K 1 in support of his contention.
  5. I have heard the arguments and gone through the record.
  6. Section 10, CPC visualized that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, but there is an exception to this rule which is provided in explanation which contained that:–

“The pendency of a suit in a foreign Court does not preclude the Courts in Azad Kashmir from trying a suit founded on the same cause of action.”

  1. The aforesaid explanation clearly contained that the pendency of the suit in Civil Court of foreign country does not preclude the Courts in Azad Kashmir from trying the suits founded on the same cause of action. Now the question which perturbs my mind is whether the Courts of Pakistan are foreign Courts? This point has already been resolved by the High Court of Azad Jammu & Kashmir. Same like proposition arose before the Division Bench of the High Court of Azad Jammu & Kashmir in a case titled “Mian Nasir Ahmed vs. Abdur Rashid Qureshi” [1986 CLC 1309] [1312]. The relevant observations are reproduced as under:–

“The judgment and decree upon which the precept proceeded was a judgment and decree of a foreign Court which could not be executed in Azad Jammu & Kashmir with the result that since the Court of sub-Judge, Mirpur was not competent to execute the said decree he also lacked the jurisdiction and power to execute the precept because under Section 46 CPC the Court passing the decree is only empowered to issue a precept to any other Court which is competent to execute such a decree which is the foundation of such a precept. The foreign judgment has been defined in Section 2(6) of the CPC, as the judgment of the foreign Court and foreign Court according to the definition in Section 2(5) of the CPC means a Court situate outside  Azad   Kashmir   and  not  established  or  continued  by  the authority of the Azad Jammu & Kashmir Government. In view of the above definition of “foreign judgment” and “foreign Court” the Courts in Pakistan are all foreign Courts so far as the Azad Kashmir is concerned, and the judgments passed by them are foreign judgments. This has already been held in number of cases by the superior Courts of Azad Kashmir out of which PLD 1954 AJ&K 1 and PLD 1976 AJ&K 9 may be referred to. The decree passed on the basis of such judgment is not executable in Azad Kashmir as there is no provision in CPC under which the decree of the foreign Court can be executed in Azad Kashmir.”

  1. In the aforesaid report it has clearly been laid down by the Division Bench of the High Court that the Courts of Pakistan are foreign Courts and the judgments and decrees passed by those Courts are not executable in Azad Jammu & Kashmir under any provision of law. When the decree passed by the Court of Pakistan is not executable in Azad Kashmir then how the proceedings subjudice in Azad Jammu & Kashmir can be kept in abeyance, on the ground that on the basis of the same cause of action, a suit is subjudice in the Court of Pakistan. Same like proposition came up for consideration before the Full Bench of the High Court of Azad Jammu & Kashmir in a case titled “Muhammad Miskeen etc. vs. Govt. of Pakistan and others” (PLD 1993 AK 1], wherein it was held that Rules of Procedure of Azad Jammu & Kashmir High Court do not restrict the jurisdiction of the High Court to proceed with a suit or proceedings which were subjudice before a High Court of Pakistan or some other country–institution of a writ petition in the High Court in Pakistan cannot stop the proceedings in Azad Jammu & Kashmir on the grounds that on the basis of same cause of action the proceedings are subjudice before the Court of Pakistan and as such was observed by the Full Bench of this Court in the aforesaid report.
  2. The upshot of the above discussion is that finding no substance in this revision petition, it is hereby dismissed with no order as to cost.

(A.A.)  Petition dismissed.