Institutionalising minority rights

Pakistan has been facing severe criticism by the international community for many decades now due to the overall atmosphere of intolerance and systematic persecution meted out to its religious minorities. The newly-designated US ambassador to Pakistan, while giving a statement during his confirmational hearing at the US Senate stated that the religious minorities in Pakistan have long faced discrimination and that if appointed, he would raise the issue of the violations of religious freedom in Pakistan.

Last year, the US State Department re-designated Pakistan as a ‘country of particular concern’ for having engaged in or tolerated particularly severe violations of religious freedom. While Pakistan has been granted a waiver of the sanctions that accompany the CPC designation since it was first designated in 2018, there is no certainty that the same diplomatic leverage will continue in the coming years, given Pakistan’s deteriorating relations with the US.

Recently, the EU Parliament also adopted a resolution to review the GSP Plus status granted to Pakistan due to its lack of implementation of international commitments on human rights, minority rights in particular. Unfortunately, as in the past, Pakistan’s current approach to deal with violations of minority rights is directed more towards ad-hoc measures aimed at image fixing rather than problem fixing through permanent solutions such as institutionalising minority rights with proper mechanisms to help religious minorities access their rights and freedom.

The lack of institutionalisation of minority rights in Pakistan has been a major impediment in the delivery of rights and timely justice. The Supreme Court, in its widely quoted landmark judgment of 2014 pertaining to minority rights, directed the federal government to form a National Council for minorities to monitor the practical realisation of the rights and safeguards provided to the minorities under the constitution. Since then, there has been a tug of war for the formation of a national body between the government and the SC. Meanwhile, three private member bills were submitted before the National Assembly in 2015-2016 for the formation of a commission for minorities but they never sailed through the committee on religious affairs.

The SC in its judgment constituted a three-member bench to ensure implementation of the judgment and to entertain complaints of minorities. The same bench constituted a Judicial Commission – the Dr Shoaib Suddle/One-Man Commission in January 2019 – after a writ petition was filed in SC seeking implementation of the 2014 judgment.

In May 2020, instead of constituting an autonomous commission in line with the SC judgment, the federal government reconstituted the National Commission for Minorities (NCM) through an act of cabinet. This NCM was initially formed during Benazir Bhutto’s first tenure in 1990 and was welcomed as an important step against the intolerance embedded into the system under Zia regime, but her tenure was cut down short before the commission could mature. Subsequently, on paper, as per the reports submitted by Pakistan on the compliance of several international conventions, the commission always existed; however, it was nowhere to be found practically.

As of today, the legal status of the reconstituted NCM is no more than an ad-hoc committee. While it has drawn fierce criticism for being dependent on the Ministry of Religious Affairs with no autonomy, it also does not meet the minimum international standards under the Paris Principles that require independence in law, transparency in membership and control of resources. In total contradiction with the international commitments, the commission is headed by a PTI loyalist and has little to no role to play in the issues of non-Muslims.

While the SC’s proactive role in issues concerning minorities is laudable, it is problematic to establish its own judicial commission to implement its judgment instead of binding the government to establish an autonomous constitutional body to oversee minority rights.

Moreover, the legal status of both the commissions remains questionable. An NHRI has to be established with an act of parliament to ensure that it meets the basic criteria of being recognised as a rights body. While the government has several times vowed before the SC to legislate to constitute an autonomous commission to deal with the issues of minorities, no legislation has been tabled before the parliament to actualise it.

What really is required at the moment to institutionalise minority rights in essence is the formation of an independent and a permanent National Commission for Minorities based on the Paris Principles and duly backed by parliament. Furthermore, since the passage of 18th Amendment, the subject of minorities has been devolved to the provinces and any National Council or Commission for minorities will have its mandate limited to the federal areas, not the provinces. It is important that each province establishes its own commission for minorities.

Currently there is no autonomous commission in any of the provinces to deal with issues of non-Muslim communities. Sindh and Khyber Pakhtunkhwa, while repealing the Communal Properties Ordinance of 2001 through their respective acts in 2013 and 2014, provided impetus for a provincial commission for minorities. The scope of KP’s commission is restricted to give recommendations to the government for granting NOCs for communal properties. In Sindh, a private bill was introduced in the Sindh Assembly in 2016 which was sent back by the governor with several objections. Punjab and Balochistan are also yet to pass the required legislation in this regard.

Once the provinces do the required, an autonomous NCM can then act as a liaison body between the provinces and the state to ensure that the state as a duty bearer is able to meet its human rights obligations and that the citizens are able to access their rights.

It is about time the inclusion of minorities goes beyond symbolic commemorations and celebrations, and the legal framework is reformed to institutionalise minority rights. Pakistan’s approach should shift from temporary image-building to providing solutions to the problems.

The writer is a member of the human rights committee of the Sindh Human Rights Commission. He tweets @SukhdevHemnani_