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Federal and provincial legislation regarding ‘Right to Information' for good governance in Pakistan

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• Published: 12 October 2023
• Volume 1 , article number  12 , ( 2023 )

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• Jamil Afzal 1 &
• Chen Yongmei 1  

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Since democracy is the only political system that considers the views of the general populace, most states have switched over to democratic political systems over time. The right to vote allows citizens to directly or indirectly elect the representatives of their choice in democracies; Good governance is a term that is only applied to this one system, a transparent, participatory, and accountable government. The phrase "good governance" refers to a system of government that upholds the rights of its citizens, gives them equal access to opportunities, considers the views of the general public, and makes its policies clear to the general populace and refrains from engaging in dishonest practices. It is referred to as a government that values participation, accountability, and transparency and ensures that all citizens are treated equally under the law. As time goes on, laws are made to increase government accountability and transparency; for this reason, the right to information is included in the constitutions of the vast majority of states. Through the exercise of this right, the public will have access to information about public matters, enabling them to monitor the government. As a result, corruption will be reduced and a more accountable system of government will be established; in addition, it will make corruption and the abuse of power more difficult. The constitution of 1973 was amended in April of 2010 to include 19-A Article regarding the RTI in order to design a more explicit, participatory, and accountable structure. Pakistan is a democratic country with a separate chapter on fundamental rights and this research paper aims to examine how Pakistan's RTI can put up good governance. This study looks at the regulatory structures of Pakistan's right-to-information laws and asks if the intended goals of openness and good governance have been met?

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1 Introduction

The term "governance" has existed since the dawn of human civilization; simply put, "governance" refers to the process of making decisions and whether those decisions are carried out [ 1 ]. Government is not only found at the state level; it also exists in corporations, community-level local governments, and international institutions. 'Good governance' is a multifaceted concept that plays a major role in the conversation about development. However, in the past few decades, "good governance" has been highlighted by development professionals as a requirement for progress [ 2 ]. The public sector procedure that optimizes the public interests is referred to as good governance. A few of its primary features consist of the fact that it represents a new interaction between the political system and civil society. It represents an integrated management of the public's affairs carried out jointly by the government and the citizens while maintaining the ideal state of both entities [ 3 ]. The presence of just laws, rules, and regulations that are applied fairly is a sign of good governance. A substantial correlation between successful RTI legislation and good governance can be seen internationally; RTI legislation has come to represent a nation's dedication to good governance [ 4 ].

In its definition of good governance, the United Nations outlines eight key traits. It is participative, consensus-oriented, responsive, open, and accountable, as well as efficient and effective; ensures that the voices of the most vulnerable members of society are heard, that corruption is kept to a minimum, and that minorities' perspectives are taken into consideration; it also satisfies the demands of both the current and upcoming social generations [ 5 ]. Many people believe that the Right to Information (RTI) is a basic human right and, according to international law, is covered by speech freedom. Pakistan is required to grant its citizens the right to free talk because it is the International Covenant on Civil and Political Rights, which it has ratified, which addresses this issue [ 6 ]. Although Article 19-A of the Pakistani Constitution of 1973 guaranteed freedom of speech, It did not acknowledge the constitutionality of the right to access information. Article 19-A was added to the Pakistani constitution through the 18 Amendment in 2010, establishing the right and freedom to information. As stated in 19-A article: "Subject to reasonable legal restrictions and regulations, every citizen has the right to information on all matters of public importance". Therefore, all Pakistanis have a constitutional right to information under Article 19-A of The Islamic Republic of Pakistan [ 7 ]. To make this right a reality, a number of federal and provincial governments have passed laws that give people accessibility to the public record and allow them to use their right to obtain the knowledge they require. The law regime pertaining to the freedom of knowledge or the right to information in Pakistan is relatively new; the first was introduced in the upper house of parliament (Senate) in 1990 by the Naib Amir of Jamaat-i-Islami Professor Khurshid Ahmed. However, neither the then-Government nor the Senate took it seriously; an Anti-Corruption Committee was established by the administration of former Pakistani PM Benazir Bhutto later in the 1990s to investigate the causes of corruption and offer suggestions. So Freedom of Information Act was passed, and it was one of the Committee's main recommendations. However, strong opposition from vested interests prevented this recommendation from being put into action. Access to Information Ordinance 1996 was a law that was introduced in 1996 by a law minister serving in the interim cabinet of President Farooq Laghari, but the Ordinance was never signed or put into effect. The Freedom of Information Ordinance of 1997 was enacted on January 29, 1997, by caretaker Prime Minister Malik Meraj Khalid (late). This achievement was short-lived because the succeeding Nawaz Sharif government was unable to get the Ordinance approved by Parliament, which led to the Ordinance's expiration. A detailed plan of action for Pakistan that included administrative and judicial reforms was approved in 2001 by the Asian Development Bank [ 8 ]. In order to implement this plan, Pakistan had to increase citizens' access to justice, which included passing legislation supporting information freedom. The Federal FOI (Freedom of Information Ordinance) was thus enacted by the military regime of General Pervez Musharraf in 2002. Prior to the passage of this Ordinance, the 1984 Qanoon-e- Shahadat Order's rules applied to the issue of public documents. Public and private documents are defined in Articles 85 and 86, but these articles' main goals were to make it easier to produce documents in court as evidence rather than to guarantee government transparency or give the general public access to information. With the promulgation of the Federal FOI 2002 on October 26, 2002, An RTI was first implemented in Pakistan, the first country in South Asia. The Freedom of Information Rules was later developed by the Cabinet Division on June 18, 2004, to put the law into practice. Before the RTI Act 2013 was enacted and the Federal FOI Ordinance was repealed, it was in effect for twelve years [ 7 ]. By any international standards on the right to information, the 2002 FOI Ordinance was a deficient piece of legislation. It was not fully implemented, in addition to numerous gaps; in hindsight, it appears that it was only created to fulfill the ABD loan requirement and not to advance the fundamental human right to information access. However, it provided the framework and prepared the way for becoming the model for the subsequent provincial laws. The presence of just laws, rules, and regulations that are applied fairly is a sign of good governance likewise human rights must also be fully upheld and protected.

The focus of the current study is on federal and provincial legislation regarding the ‘Right to Information' for good governance in Pakistan. A strong correlation between good governance and effective RTI laws has been seen internationally; RTI laws are now seen as a sign of a nation's commitment to good governance. More than 125 nations currently have RTI laws in place; these regulations are meant to protect citizens' access to information. Citizens can file complaints with specific organizations established for the RTI law's implementation if the government refuses to give information. These organizations have the legal authority to hear cases involving bureaucratic denials of information. The novelty of this essay is to look at the legal underpinnings of Pakistan's RTI laws to ascertain whether their intended objectives of openness, transparency, and good governance will be attained.

2 Literature review

2.1 fundamental rights and rti significance.

In order to better their social and political lives and to ensure those citizens are requesting more rights as time goes on and political awareness increases, citizens are demanding transparency and good governance. This is because, without rights, citizens cannot raise their standard of living [ 7 ]. According to Laski, Rights are those conditions of social life without which no man can seek, in general, to be himself at his best and these rights are separated into two categories initially: legal and moral rights [ 9 ]. An individual's moral sense allows them to recognize moral rights, whereas legal rights require state recognition. Additionally, rights are crucial for every person, society, and government; a person cannot raise their standard of living or alter their way of life if they do not have rights. Society would resemble a jungle without rights, where the rule of might applies, so rights are crucial to society. Additionally, the state must acknowledge rights in order for them to exist; if it fails to do so, it forfeits its patriotism and turns into a despotic regime [ 10 ]. The judiciary is designated as the rights' custodian and most rights are made a part of the constitution. Therefore, the judiciary plays a significant role, and as a result, it maintains its independence in most political structures. According to Banisar [ 11 ], the right to ingress information associated with government entities (RTI) stipulates that people have a fundamental civil right to request knowledge associated with government entities. This privilege results from the freedom of speech which is regarded as a fundamental human right by all advanced nations; any citizen may request public information from any government agency under this right, and the institution is obligated to respond. The request may be denied if there is a valid legal justification, but otherwise, the institution is required to provide the requested information; a transparent and accountable democratic system is ensured by this process [ 12 ].

The RTI is an essential tool for creating a balance of powers on the behavior of government officials because it removes barriers from the way that ineffective management, corruption, and abuse of power can precede [ 13 ]. The most vital freedoms that ensure the foundation of a democratic structure are freedom of speech and freedom of expression; democracy cannot exist without these freedoms. It is impossible to describe a system in which there is no freedom of speech or expression as democratic; instead, such a system is a dictatorship in which nobody is given such rights. It guarantees the freedom to object to government decisions if they only serve a narrow group of interests or the interests of the majority. By granting the public access to information related to the public, it is ensured that what the government does is for the benefit of the people by the tenacity of good governance. The general public will become more informed and involved in governmental affairs if RTI [ 14 ] is granted to them in the future. Because they will feel more accountable, government policies will be based on openness and transparency, increasing the checks and balances on the executive branch [ 15 ]. One of the pillars of these reforms is "the establishment or strengthening of local government," which serves as the first step in putting the assumptions of good governance into practice. More accountability is produced by democratic systems, but if they are transparent, they will also produce more accountable systems. "Good Governance" calls for the promotion of transparency through the devolution of information and the establishment of an accountability system for public functionaries.

To ensure greater accountability, the consultation process with citizen involvement in decision-making would gradually become more prominent [ 16 ]. As a consequence of the close relationship between good governance and the RTI, if we examine the key components of good governance as defined by the World Bank i.e., we can conclude the right to information is the only means by which the objectives of good governance can be fulfilled. According to Pandey and Mishra [ 17 ], the right to information can promote participation, accountability, and transparency. So many developing or developed nations have passed laws to protect the right to information, while the most of other nations have considered the significance of this right and are working to enact similar laws. Pakistan also has guaranteed this right by including it in its national constitution; the RTI can be expressed in a variety of ways depending on the country, including " Information rights, including the freedom to access information, the right to know, the right to access public records, etc.”

2.2 Principles of RTI for good governance

Ingress to information legislation is thought to be associated with countries that have lower levels of corruption because these countries have the additional tool of being able to request information and thereby make the government transparent [ 18 ]. The ten nations with the best scores in Transparency International's annual Corruption Perceptions Index also have effective laws allowing people to view government records, according to a cursory glance at the report of the index. The same list also shows the bottom ten nations considered to have the worst levels of corruption; not a single nation on this list has access to the information system that is operational. The internal unrest, security issues, and domestic authoritarian political systems that exist in these same countries are also a problem. Despite experiencing security issues, Pakistan's position in the Transparency International Perception ranking rose from 139th in 2012 to 127th in 2013 and 116th in 2016 (Transparency International, 2016).

Principles that determine whether a law is good or bad are used to evaluate rights to information laws globally. The fundamentals of information freedom are derived from regional and global legal norms, state best practices, and general legal principles [ 19 ]. By evaluating them against the current international norms for granting citizens access to information held by the government, we will determine whether our provincial and federal legislation follows these principles. The following are some of the fundamental ideas.

The maximization of disclosure should be the guiding principle for freedom of information legislation.

Public authorities are required to provide the public with pertinent information about their organization.

Clearly defined and circumscribed exemptions and exceptions are required.

Information requests should be handled impartially and quickly.

3 Methodology

The study operates on a review of the available literature and content analysis [ 20 ] was done to complete this case study. A case study is an in-depth examination of a particular subject; researchers commonly utilize case studies in various fields such as social sciences, education, clinical research, and business studies [ 21 ]. The choice of a case study research design is appropriate when the aim is to acquire specific, contextual, and comprehensive insights into a real-world subject [ 22 ]. It facilitates an exploration of the essential characteristics, meanings, and consequences associated with the chosen case [ 23 ]. For content analysis; the required data was collected from various government offices in Pakistan including the ministry of law, interior ministry, and ministry of foreign affairs in Pakistan. Analyses of Pakistani laws constitute major sources of primary information. An attempt has been made to gather information from a variety of sources while keeping in mind the nature of the problem and subject being researched. As a result, primary and secondary sources were combined. Documents from the International agencies organization, books, journals, and official announcements and communications have all been used to gather and transfer information.

4 RTI legislation in Pakistan

4.1 federal government legislation.

Article 19-A of the 1973 constitution of the Islamic Republic of Pakistan, states unequivocally that every person has the right to way in knowledge on all issues of people concern, liable to any rational legal limitation. Even though the federal FOI Act 2002 was largely ineffective in practice; the RTI became a constitutional civil right in 2010 with the passage of the 18th Amendment. As a result, draft RTI legislation was completed by the Committee of the Senate on Broadcasting and Information in July 2014 and passed in May 2017 by the Standing Committee of the Senate. The Federal Government tried to postpone the passage of the right-to-information law and justified this delay by citing concerns about "security" in the nation [ 24 ]. The proposed bill contains an exception that forbids information sharing that blatantly violates federal legislation pertaining to national security. Although they do have exemption provisions, other nations with good RTI laws exist; for instance, "Information Disclosure and Corporate Governance in China" is a role model for Pakistan and other countries. The implementation of the right to information in practice will lead to the eradication of corruption, the creation of a system that is transparent and accountable, and the creation of checks and balances against the abuse of power [ 25 ].

4.2 The Punjab Transparency & RTI Act, 2013 (Punjab)

The Punjab law was first proposed in 2010, but it wasn’t passed until 2013; although it complies with the majority of the global requirements for RTI legislation, it is hushed on some matters and Processes and left to be resolved by the bylaw and rules. First, there was concern that the law would have significant implementation issues if the rules weren't made in time; however, after the appointment of a Chief Commissioner and two additional Commissioners in 2014, rules were created and a Commission was established. The Punjab Commission only received 800 complaints about the Government failing to respond to their information requests over the course of just 5 months in 2017. The Commission, however, was unable to investigate these complaints because it is essentially non-functional [ 26 ].

4.3 The Sindh RTI and Transparency Act 2017 (Sindh)

The FIO, which was adopted by the federal government in 2002, was replicated by the Sindh Province in 2006. Another piece of legislation, the Sindh FOI Bill, 2015, was drafted, but it only slightly improved upon the earlier Act. The bureaucracy was still in charge of the information in the end, though, because of the way it was handled. After organizations of civil society, legal professionals, and journalists expressed their disapproval of the draft, an assembly committee for Sindh was established by the government, made up of both the opposition and government to work together on improving and reviewing the draft. Due to the incorporation of the spirit of easing people's access to and acquisition of knowledge, a much better law was created as a result, one that meets international standards. It was approved in March 2017 and was made into legislation; it complies with all requirements for a successful RTI, including the need for proactive disclosure, minimum exemptions, and maximum disclosure [ 27 ]. It also establishes a simple and affordable procedure for the general people to obtain knowledge from the government. However, the Sindh Government had to give it the resources and staff members who would be in charge of it, as designated officers, a budget, and a Commission.

4.4 The 2013 Right to Information Act for Khyber Pakhtun Khwa (KPK)

The RTI Act 2013 was first published in the province of Khyber Pakhtun Khwa. In terms of recognizing the public's right to access information, it was hailed as one of the most progressive laws at the highest levels of international society. "The KP RTI Ordinance includes every component necessary for a solid RTI law. According to a World Bank expert, this is why it receives a score of 143 and is at the top of the RTI rankings worldwide (The News, 2013). The adoption of this law improved Pakistan's overall evaluation of UN development assessments. The First Amendment of the RTI of KPK establishes the legal tone by stating that information transparency is essential for democracy to function; additionally, it states that the law would increase public accountability for the government and other institutions while reducing corruption and enhancing governance [ 28 ]. In addition, it acknowledges that citizens have the right to participate in governmental affairs so that they can make a meaningful contribution to the growth of democracy and believes that the law itself will encourage greater participation and contribution from citizens. It has very few exceptions for withholding information, and requesting the information has been made very simple and accessible to the public with minimal expense.

4.5 The Freedom of Information Act of 2005 in Baluchistan (Baluchistan)

In response to the Federal FIO, 2002 the provinces decided to enact their own laws of freedom of access knowledge; in 2005, the first Act was passed by the province of Baluchistan. A few changes indicate that the law is a provincial one distinguishing the Baluchistan RTI Act from the FIO, 2002. If we use the global RTI principles, the Baluchistan RTI Act of 2005 is a very flimsy piece of legislation; given that it only addresses a small subset of public bodies, this law's reach is constrained and the private sector is not covered. The Baluchistan government is not mandated by law to actively publish and make public use of documents like annual budgets and development plans, postings and transfers, employment, or other government documents like contract awards, etc. [ 29 ]. Although the law specifies how the public can access government information, the process is not user-friendly. The phrase "Procedure for disposal of applicants" appears in Section 13. The designated official is required by law to provide needed information within twenty-one days if they feel it needs to be provided. According to this section, the concerned official is free to use his or her discretion when deciding whether or not to provide information. The designated official has four additional grounds for withholding information in addition to the exempt information list:

There is no application on the necessary form

The application has not been submitted with the necessary data

Such information is not permitted to be provided to the applicant

The sought-after details are not public knowledge.

This gives the designated official a lot of power to either delay or refuse information sharing. Additionally, a comprehensive list of information that is not subject to sharing, or exemptions, is provided. This information cannot be disclosed, according to Section 8 of the FOI law in Baluchistan, which is titled "Exclusion of certain record". As a result, the Baluchistan FOI Act discourages citizens from asking the government for information rather than encouraging them to do so.

5 Discussion

Different researchers already had done studies regarding the Right to information and Good Governance in the current scenario of Pakistan. Kamran, et al. discussed the right to information and good governance from a social perspective [ 30 ]. Ali, et al. work on the right to information to keep in view the post-18th amendment perspective using Federalism and Decentralization Mechanism in Pakistan [ 31 ]. Sultan, et al. presented an analysis of the Right to Information Act 2013 of Khyber Pakhtunkhwa province [ 28 ]. Mughal, et al. try to explore the good governance in Pakistan by identifying the problems and their possible solutions [ 32 ]. Another study was conducted by Khan, et al. in which authors explore the prospects and challenges regarding good governance in Pakistan [ 33 ]. Different authors focus on different province's legislation and some authors focus on federal legislation. But our case study is innovative in its nature; because this study covers the research gap. In this study, we present legislation of all provinces of Pakistan, along with the federal Government legislation. This study provides a strong basis that the right to information is mandatory for good governance. Despite being founded in 1947, Pakistan has had governance issues since then; its first constitution was implemented in 1956, but it was abolished in 1958; then, in 1962, a new constitution went into effect, but it was also short-lived before being repealed in 1969; then, in 1973, a third constitution went into effect. However, like the previous two constitutions, it was unable to last and was suspended. In Pakistan, governments have also been unable to complete their terms. As a result, the right to information has historically received less attention. The future of Pakistan will be determined by its ability to effectively implement laws. In a democratic nation like Pakistan, which is home to numerous multilingual, multicultural, and multiethnic groups, the implementation of the right to information can be very important. Additionally, both the individual and the larger society will gain from it; a few obstacles might stand in the way of its implementation, but they could be overcome with the right steps i.e. effective registration RTI act and its proper implementation. The Freedom of Information Ordinance was in place in Pakistan for more than 15 years, but even though some semblance of a right to information existed, nothing to merit its glory. The Supreme Court of Pakistan and the vibrant media have all filled the gap left by the absence of a robust right-to-information regime, ensuring that people's fundamental human rights are now fully protected. The Suo Moto area of authority provided in accordance with Article 184(3) and in combination with Article 199 of the Pakistani Constitution was extensively used by Justice Iftikhar Chaudhary (retired), Chief Justice of the Supreme Court of Pakistan to protect Pakistan's fundamental human rights; on the thousands of complaints that the Supreme Court's Human Rights Cell had received, he took action on his own (The News, 2013). The majority of these cases involved violations of human rights and corruption. The media keeps doing its part to highlight the corruption that exists in the nation; better Right to Information Laws are now in place in Pakistan, giving citizens more legal protections for obtaining public information and giving the government more responsibilities in this area [ 34 ].

6 Conclusion

Citizens of Pakistan are permitted access to information held by the national government under the FOI Ordinance. The provincial governments or privately funded enterprises are not covered by the Ordinance; it solely applies to federal government organizations. According to the Freedom of Information Rules of 2004, applicants must pay a fee and include the aim of their query by outlining the precise justifications for why they require the information. The applicant has the option of complaining to the head of the public body if the required information is not given within 21 days. Only public records may be accessed, thus notes, meeting times, information about a person's financial accounts, classified material, information relating to national security, etc. are not permitted. The 2004 FOI Ordinance served as the foundation for the 2005 Baluchistan Freedom of Information Act and the 2006 Sindh Transparency of Information Act, two provincial statutes. In 2013, the Punjab Transparency and Right to Information Ordinance and the Khyber Pakhtunkhwa Right to Information Act (KPK RTI) were both passed. The KPK RTI Act applies to both official governmental organizations and non-governmental groups that receive government funding (such as publicly sponsored local service organizations). The effectiveness of a state's executive branch are key factor in determining its success; Good governance is a vital prerequisite for the advancement of any country and is necessary for the effective delivery of public services. Subsequent Pakistani governments have failed to undertake crucial administration-related reforms, which has resulted in the malice of bad governance haunting the nation's governing paradigm. There are different factors that work to preserve and defend the modest advancements in human rights and democracy that have been accomplished in developing nations like Pakistan. The Freedom of Information Ordinance was in place in Pakistan for over a decade, yet despite the appearance of an inherent right to data, nothing contributed to its glory. The National Accountability Bureau (NAB), the Supreme Court of Pakistan, and the dynamic media have all stepped in to fill the gap left by the absence of a robust freedom to information framework in order to preserve people's fundamental human rights. In order to protect Pakistan's fundamental human rights, Chief Justice of the Supreme Court of Pakistan Justice Iftikhar Chaudhary (retired) made significant use of the Suo Moto authority provided under Article 184(3) and in combination with Article 199 of the Pakistani Constitution. He initiated action on his own after the Supreme Court's Human Rights Cell heard thousands of petitions (The News, 2013). The majority of these instances involved violations of human rights and malfeasance. To conclude we can say, that the creation of a transparent and accountable government, proper arrangements to control corruption, and a check on the abuse of power will result from the full implementation of the right to information mechanism. As a result, Pakistan will experience real good governance. There are elements and forces that work to preserve and defend the modest advancements in democracy and human rights that have been made in developing nations like Pakistan. Therefore, while having effective RTI laws is crucial for countries like Pakistan as a beginning point; all other elements of security and peace, such as government organizations, and national leaders, must also be guaranteed for its well functioning toward transparent and open government.

7 Recommendations

Better Right to Information Laws are now in place in Pakistan, giving citizens additional legal protections for obtaining public information and giving the government more responsibilities in this area. The awareness and motivation to exercise one's right to knowledge must exist.

The first and most important prerequisite for an entity to have effective governance and to flourish is internal peace and security, which can allow it to move forward on the path of development. Even when a nation has internal unrest, assault, and insecurity that endangers the rule of law, effective right to information legislation cannot be highly successful. The political will to put an end to terrorism and instability, which breed inadequate institutions and their byproducts like money laundering, graft, nepotism, etc., is of utmost importance. The environment is conducive to dishonesty, poor leadership, and bad governance if the context in which political determination is to exist is antagonistic and unsecure in itself. As a result, competing priorities of peace and security override the political will. As a consequence, while having strong RTI rules is a will for nations like Pakistan as a basis for progress, every other aspect of security and peace, including strong institutions, honest leaders, education, along with development, are also required for it to function properly and lead in the sought management, good governance, and advancement toward a transparent and open government.

To make use of their right to knowledge, people must be conscious and motivated; the first and most important requirement for a nation is to develop good governance and internal peace and security, which can allow it to advance along the path of development. Even so, effective information rights legislation is not likely to be present when a nation is dealing with internal unrest, violence, and insecurity that threaten the rule of law. The political will to end to insecurity and terrorism, which breed weak institutions and their byproducts like nepotism, money laundering corruption, etc., is of utmost importance.

Data Availability

Data will be made available on request.

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Ali M, Shafiq MO. Redefining Right to Information, Federalism and Decentralization Mechanism in Pakistan: Post 18th Amendment perspective. Journal of Mass Communication Department, Dept of Mass Communication, University of Karachi, 2016. 14.

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Khan J, Sheeraz L, Bajwa MA. Good governance in Pakistan: prospects and challenges. J Intell Prop Hum Rights. 2022;1(6):34–50.

Wilson J. Live broadcasting of cricket in India & Pakistan: right to information, commercialization & competition issues. Indian Law Rev. 2020;4(3):316–42.

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Acknowledgements

The authors are thankful to the editor and reviewers for their valuable suggestions to improve the quality and presentation of the paper. The authors are also thankful to Mian Muhammad Afzal Advocate (Lahore High Court) for providing support regarding data provision.

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Afzal, J., Yongmei, C. Federal and provincial legislation regarding ‘Right to Information' for good governance in Pakistan. Discov glob soc 1 , 12 (2023). https://doi.org/10.1007/s44282-023-00015-7

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Breaking the Silence: Pakistans First Conviction on Marital Rape and its Implications

• March 25, 2024 |

Huzaifa Sarfraz ,

• Image Credit: Courting the Law

The recent groundbreaking case in Pakistan, which marked the countrys first conviction for marital rape, has ignited profound discussions on legal precedents, womens rights, and broader societal implications. As a researcher who has conducted her PhD study on marital rape perception in Pakistan, I would like to offer comprehensive insights into the significance of this precedent-setting case within Pakistans socio-political landscape with reference to some relevant sections of my study.

In Pakistan, there existed a legislative gap concerning coercive sexual conduct, leaving women vulnerable to rape by their intimate partners without legal recourse. The absence of explicit legal provisions specifically addressing coercive sex perpetuates a systemic failure to protect women from sexual violence within marital relationships. This deficiency required a critical need for comprehensive legal reforms aimed at addressing the complexities of sexual violence and ensuring the legal recognition and protection of womens rights to bodily autonomy and consent.

A man has been sentenced to three years in prison for sodomising his wife, marking Sindhs first conviction for marital rape. It is noteworthy in this instance that the accused was not solely convicted for engaging in non-consensual intercourse with his spouse but rather for an act of sodomy , which was medically verified. Advocate Bahzad Akbar from the Legal Aid Society, representing the complainant, argued that sodomy constitutes rape, following an amendment to Section 375 of the Pakistan Penal Code(PPC) introduced in 2021, which criminalises unnatural offences. While the ruling was based on charges of unnatural offences, it establishes a fresh precedent for the prosecution and conviction of individuals for marital rape, especially in light of recent legislative revisions to the PPC. This effort to enact legislation specifically targeting coercive sex is essential to bridging this gap and providing women with the necessary legal protections against intimate partner violence.

By recognising this case as a criminal offence, the judiciary has not only delivered justice to the survivor but also paved the way for future legal reforms, fostering social awareness towards this violent act against women. The legal implications of this case are far-reaching, as the verdict sets a precedent that prioritises the protection of womens rights and bodily autonomy within marriage, aligning with international human rights standards and conventions. It sends a clear message to perpetrators of gender-based violence that they will be held accountable for their actions, regardless of their relationship with the survivor.

The judiciary has not only delivered justice to the survivor but also paved the way for future legal reforms, fostering social awareness towards this violent act against women.

Beyond its legal implications, the case carries profound social and cultural significance. Marital rape, long a taboo topic in many societies, is a form of violence against women that has historically been overlooked and even normalised in Pakistan. In Pakistan, where patriarchal norms have deeply entrenched gender inequalities and perpetuated a culture of silence around issues of sexual violence within marriage, the recent conviction represents a seismic shift in legal and societal attitudes. The significance of this landmark case cannot be overstated. It marks a critical juncture in Pakistans legal history, challenging entrenched notions of marital immunity and affirming the rights and autonomy of women within marriage.

Data from my study showed a pattern of denial towards the acceptance of marital rape while defending the system of marriage. For most participants, marriage seemed to be a fairy tale, especially for unmarried young participants, married older participants and those who are content with married life. For them, it was difficult to accept the fact of a man raping his wife due to the dominant cultural beliefs on the piousness of the holy institution of marriage. The participants associated marriage with religious commands that must be followed to confirm the divine laws. For them, it was impossible that a relationship that was commanded by the supreme power to form could have such impurities. The major section of participants stated marriage as a command ordained by God that should be fulfilled and protected at any cost. Because of this belief, some participants gave recommendations and advice for the victims to compromise and bear with these situations by quoting it as ups and downs in a marriage. They declared it as a temporary situation that passes away with time. Few related it to the financial and mental strains of men and advised victimised wives to support their husbands in challenging times by not complaining about their undue demand for sex.

In a society where patriarchal norms have long dictated gender roles and behaviour, the conviction challenges the mentioned prevailing attitudes that have enabled marital rape to go unchecked. It will empower survivors to speak out against abuse, shatter the stigma surrounding sexual violence, and foster a culture of accountability and justice.

Despite the landmark nature of the verdict, significant challenges remain in ensuring the effective implementation of laws and policies aimed at combating marital rape and protecting survivors. Cultural barriers, institutional biases, and societal attitudes continue to obstruct justice and accountability. However, the case also presents opportunities for collaborative efforts between government agencies, civil society organisations, and the media to raise awareness, provide support services, and advocate for systemic reforms. In Pakistan, there are no institutions or organisations which work formally on the issue of marital rape. Some Non-Governmental Organizations (NGOs) work under the slogan of rape, but they also do not cater to the issue of marital rape. These bodies aim to eliminate rape from society but do not work to address forms of marital rape that should also be a point of concern. There are no standard rules of conduct to deal with the issue of marital rape, nor this form of rape is documented in any legal book of the state. Cases of marital rape are documented under the heading of sexual or domestic abuse, which does not allow for recording of the cases of marital rape. The lack of legal platforms where this issue could be discussed is a primary reason why victims of marital rape do not dare to fight back face from this issue. This ruling will compel pertinent organisations to initiate discussions and document matters under the heading of ‘marital rape’.

This groundbreaking verdict has far-reaching effects beyond its legal realm, igniting significant societal changes. It emphasises the crucial need for employing intersectional approaches to promote awareness of this issue, acknowledging the various forms of discrimination faced by women in married life, including those related to their sexuality. This case is poised to establish a precedent for social consciousness and can serve as an inspiration for local human rights organisations, victims and their families.

Huzaifa Sarfraz

Dr. Huzaifa Sarfraz is an Assistant Professor at Iqra University. She earned her PhD in Sociology from the University of Karachi. Her research interests include gender and religious studies.

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Detention in Pakistan: The Means to an End or the End Itself?

• Detention in Pakistan: The Means…

by Minahil Khan ,  Research Associate, RSIL  Detention

Detention is the deprivation of the right to liberty and under Article 9 of the Constitution of Pakistan, no person can be deprived of his right to life and liberty save in accordance with law. An individual’s right to liberty can thus only be taken in accordance with the grounds and procedure established by the law. This article explores the rampant use of detention under the various instruments available under the law before the framing of a formal criminal charge. As the use of detention becomes more prevalent, it raises worrying questions of fundamental rights and the State’s overall strategy (or lack thereof) in dealing with counter-terrorism and counter-militancy challenges in Pakistan.

Pakistan today has a very high number of detainees; with the highest proportion of the total prison population in pre-trial/remand imprisonment. [1] This can be directly attributed to the counter terrorism and counter militancy operations all over the country which have contributed to the exponential increase in the number of detainees. [2]

In FATA and PATA alone, close to five thousand individuals have been preventively detained/interned pursuant to the military operations being conducted in aid of civil power under a  notification pursuant to  Article 245 of the Constitution. [3] The Article 245 notification was issued by the Federal Government in 2011 to deploy the Armed Forces in FATA and PATA to address the broad spectrum of actions that threaten the state. [4]

There are three main types of detention regimes in Pakistan. Firstly, remand detention as provided for under Section 167 the Code of Criminal Procedure (CrPC) and in the Anti Terrorism Act, 1997. [5] Secondly, preventive detention under the Article 10 framework. This is a permanent feature of the anti-terrorism regime in Pakistan and is operationalized through a wide variety of laws discussed below and finally, preventive detention/internment under the Article 245 framework in FATA and PATA which operates through the Actions (in Aid of Civil Power) Regulations, 2011. [6]

Under Article 10 of the Constitution, each person detained in custody is to be produced before a Magistrate within twenty-four hours. Under the CrPC, an accused can be remanded to custody by the Magistrate where it is believed that the investigation cannot be completed in twenty-four hours and where there are grounds for believing that the accusation or information is well-founded. [7] The maximum period for remand under the CrPC is fourteen days. However, for terrorism specific cases, the maximum period of remand can extend to ninety days. [8] The disparity in the period of detention under the CrPC and the ATA is one of the many contributory factors of the high number of superfluous cases in the anti-terrorism courts of Pakistan, since the ATA gives more time to the police to complete investigation while detaining the accused.

The second type of detention prevalent in Pakistan, which is contributing to the exponential increase in prison population is preventive detention. Preventive detention is the deprivation of liberty without any specific criminal charges. [9]  It aims to prevent serious future harm based on a person’s activity rather than the express commission of a crime and is primarily an executive measure. It is considered an exceptional measure of control exercised by the State for security reasons or public order provided that the requisite criteria has been met. [10] The general framework for preventive detention is found under Article 10 of the Constitution which allows for exceptional laws to deal with the detention of persons acting in a manner prejudicial to the integrity, security or defence of Pakistan.

Although preventive detention is envisaged as an exceptional measure by our Constitutional scheme, it is presently operationalized by four separate laws;  the Anti-Terrorism Act, 1997 (ATA);  Maintenance of Public Order Ordinance, 1960  (MPOO); [11] Security of Pakistan Act, 1952; [12] and the Foreigners Act, 1946. [13]

The most widely used instruments for detention are the ATA and the MPOO. While the premise for these legislations is to prevent offences relating to national security, sectarianism and the maintenance of public order, their use has become wide and rampant. These legislative instruments do not give a carte blanche to the government to use it to curtail the liberty of people however there have been instances where petty criminals and even timber smugglers have been detained under the MPOO. [14] This goes to show that, contrary to the Constitutional scheme, the current use of the preventive detention mechanism in Pakistan is far from restrictive. Perhaps part of the problem can be traced to the high rate of acquittal in most criminal cases due to failures in the prosecutorial system. To detain individuals for investigation without criminal charges is a sure-fire way to keep them off the streets. This, however, is a temporary solution to a much bigger problem. In many cases, the families of the detainees file habeas corpus petitions in the High Court upon which they may be released from preventive detention. This release can have two outcomes; if enough evidence has been gathered during the time of detention the person is then arrested and a formal case is filed or where there is lack of evidence the person is often falsely charged of a case and then remanded to police custody to ensure that he is not released back to the streets. These stopgap (and often unlawful) arrangements further increase the chances of an eventual acquittal.

In extreme cases, suspects have been reported to be  transferred to internment centres in FATA and PATA for having committed acts having a ‘nexus’ with the actions prohibited under the AACPR 2011 as witnessed in the Adyalla 11 case. [15] Internment under this framework is to continue till such time as the military action in FATA and PATA is under-way, thereby creating a system for an individual’s indefinite detention where subsequent acquittal seems probable. What makes this more problematic is that the fundamental fredoms do not apply in the internment centres in FATA and PATA. Therefore, detainees do not have the privilege to invoke Article 10 of the Constitution which gives them the right to file representations against the order of detention, to be informed of their grounds of detention and to have Review Boards constituted after three months of such detention.

Even where detainees are not transferred to the tribal areas, the sheer volume of detention cases makes it very difficult to have Review Boards constituted for every single instance of detention. The constitution of these Boards is a fundamental right of citizens and because of its practical constraints this right becomes unavailable to most detainees.

Even under the ordinary criminal system, accused individuals are remanded (detained in police custody) for periods that go far beyond the fourteen day period mandated under the law. [16] Magistrates authorize the detention of individuals without applying their judicious mind and often remand a person to custody for periods that exceed the mandated days. This is done in sheer violation of their duty under S. 167 of the CrPC.

Preventive detention is generally regarded as an acceptable and lawful mechanism for dealing with threats to public safety and national security. It is recognized and given due protection by our Constitution. Used correctly, it can prove to be an invaluable tool to counter the particularly unique challenges being faced by Pakistan in its fight against terrorism and militancy. Unfortunately, the detention regime in Pakistan today is being used as a bandage for the failure of our investigative, prosecutorial and judicial processes. This indiscriminate, arbitrary and often careless use of the detention regime undermines its effectiveness and runs contrary to its purpose. More importantly, it violates the fundamental rights of our citizens and weakens the legitimacy of our counter-terrorism and counter-militancy responses.

Author:  Research Society of International Law

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INTELLECTUAL PROPERTY LAW IN PAKISTAN: SAFEGUARDING CREATIVITY AND INNOVATION

• Dr. Jawed Aziz Masudi

Published 2023-06-20

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The research paper provides a comprehensive overview of intellectual property law in Pakistan and its role in safeguarding creativity and innovation. It emphasizes the significance of intellectual property rights in fostering innovation and attracting foreign investment. The paper analyzes the current state of intellectual property law in Pakistan, including the legal framework and the types of intellectual property rights recognized. It addresses the challenges faced by creators and innovators in protecting their rights, such as lack of awareness, limited resources, and enforcement issues. The paper also examines government efforts to strengthen the intellectual property regime, including the establishment of intellectual property offices and the introduction of new laws and initiatives. Additionally, it explores the procedures for registering and enforcing intellectual property rights and offers recommendations for improvement. Overall, the research paper aims to provide valuable insights and practical recommendations for policymakers, creators, and innovators to promote a culture of respect for intellectual property rights and foster economic growth and technological advancement in Pakistan. Furthermore, the research paper delves into the economic impact of intellectual property rights in Pakistan. It explores how the protection and enforcement of these rights can lead to increased investment, job creation, and the development of new industries. By recognizing and safeguarding intellectual property, Pakistan can attract foreign direct investment and encourage technology transfers, which can contribute to economic growth and technological advancement. The paper also discusses the importance of international cooperation and compliance with international intellectual property standards. It emphasizes the need for Pakistan to align its intellectual property laws with international treaties and agreements, such as the World Trade Organization’s Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPS). Adhering to these international standards not only enhances the country’s global reputation but also facilitates trade and collaboration with other nations

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This paper shall analyse the trajectory of women’s rights under the various family laws in force in India, post-independence. Various legislative amendments and landmark cases will be discussed and critiqued. Part I of the paper will contain a summary of Hindu succession laws and how these have affected widows, daughters, and mothers. The stances taken by various courts on the rights of women to hold property under Hindu law will also be discussed in this part. Part II will attempt to trace the laws of succession as applicable to Muslims. It will touch upon the issue of unilateral divorce and payment of alimony through the Shayara Bano case. It will also underscore the rights of daughters and widows where inheritance is concerned. Part III shall discuss the inheritance rights of women under Parsi law. It will also touch upon the issue of marriage outside the community and how this affects women in particular. Part IV will discuss Christian laws of succession, with a focus on the rights of widows, daughters, and mothers. Part V shall operate as the conclusion and will briefly touch upon the possibility of a uniform civil code conferring greater rights to women.

The High Court of Punjab and Haryana in Avtar Singh vs. Jasbir Singh (RSA No. 29/1988 (O&M) in its decision dated 11.02.2014) held that a lacuna in the position of Hindu wife qua their property and maintenance rights, whose husband is unable to provide maintenance to her under Section 18 of Hindu Adoptions and Maintenance Act, 1956 was identified. This Article is divided into six parts:

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In this essay, family reform was an issue for minorities in contact with foreigners in the first half of the century, but not until revolutionaries left the cities in the late 1920s. Even then, pressure for change was weak, constrained by the need for political support from a conservative male farmer. In the opening paragraph, "Man's supremacy over woman has been abolished"-a political commitment that many women in the West have yet to achieve. The new Marriage Act not only places children under the same financial obligations as in traditional society, but also adds a generation exempted from the 1950 Marriage Act. But it breaks with tradition and extends this duty to the younger generation. Nevertheless, the Communists promulgated the first law after the revolution. Although the Marriage Act of 1950 applied only to parents, the new birth control program created serious problems for couples who had a daughter. Unless the woman and her husband are forced to support her parents and his parents, her parents face an uncertain old age. If daughters can (and should) fulfill the same functions as sons, the calamity of giving birth to a girl child will be somewhat reduced.

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Islam is perhaps the first religion which has given women the rightful place in the society of man, acknowledging her as a respectful entity and a personality unto herself due to Islamic reforms through the Quran and the authentic Hadith of the Prophet Muhammad between 610 and 632A.D. However, the situation has not last long, Muslim women are not considered a homogeneous group with their own vertical and horizontal divisions due to customary laws, the region and sect to which they belong, and the traditional school of Islamic jurisprudence. But, in contemporary Muslim countries, governments' desire for legal modernization, combined with the need to show respect for the Shariat (Islamic law), has resulted in several significant reforms. In the era of personal status, a number of reforms, by and large have been enacted in Muslim countries with a view to improving the status of women and empowering them in respect of their matrimonial rights. Subsequently, in India, the first major changes in Muslim law happened after the case This paper attempts to analyze how Muslim Personal law and judicial proceedings have been improving the marital status of women under Islamic law and empowered them in respect of their matrimonial rights in India and abroad.

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