The information given under previous articles gives a fairly detailed picture of the letter and spirit of the Constitution relating to issue of equality among all citizens of Pakistan. The overarching framework is provided by Article 25 of the Constitution: “All citizens are equal before law and are entitled to equal protection of law. There shall be no discrimination on the basis of sex alone. Nothing in this Article shall prevent the State from making any special provision for the protection of women and children”.
Article 25 which establishes the principle of equality of all citizens before law and then goes on to disallow discrimination on the basis of sex and then to allow the state to make special provisions for the protection of women and children. It alone could have met the requirements of Article 15 of the Convention. However the Constitution also contains other articles, which significantly bolster the provisions of the Constitution relating to non-discrimination. These include the following articles:
Articles 3: The State shall ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his ability to each according to his work.
Article 4: “To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. In particular: - no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; no person shall be prevented from or be hindered in doing that which is not prohibited by law; and no person shall be compelled to do that which the law does not require him to do. which provides for the right of individuals to enjoy full protection of law and to be treated in accordance with law. This provision, as per superior court’s observation is the equivalent of the doctrine of “rule of law”.
The framework provided by Articles 3, 4 and Articles 25 is then strengthened by specific articles establishing the principle of non-discrimination in matters such as ownership of property, free choice of trade, non-discrimination in government employment etc. These have been discussed in previous chapters of the report.
The final tier of the non-discrimination regime insofar as women are concerned consists of Articles 27 and 34, which allow for affirmative action for women and Article 35, which confers special protection on the family, marriage, the mother and the child. On the whole the Constitution could be said to lay down a fairly comprehensive non-discrimination regime.
The Supreme Court of Pakistan has observed that the rights and principles enshrined in the Preamble as well as in the Chapter on Principles of Policy extend the scope of, and further strengthen the fundamental rights and freedoms, guaranteed by the Constitution.
Women and men enjoy equality in legal and civil matters, whether they relate to concluding contracts or administering property or practicing in courts of law or administering justice. There are many women lawyers, magistrates and judges in Pakistan. Any woman or man can sue or be sued.
States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.
Women have a legal capacity equal to men and have the same opportunities to exercise that capacity.
According to the Married Women’s Property Act, 1874 a married woman has the right of separate property and of taking legal proceedings in her own name. A married woman is liable for her contracts regarding her property. Legally and as per Islamic law, a woman has the same right as a man to own, acquire, manage and dispose off property.
In cases where women appear in courts, they can have their own legal counsels. Women lawyers are entitled to represent clients before courts and tribunals. Women are appointed as judges. At present all levels of the judiciary, except the Supreme Court, women judges. There is no bar on a woman from becoming a judge of the Supreme Court. So far however none has been appointed. Recently, a woman Judge of the Peshawar High Court has been nominated by the Government of Pakistan to the International Criminal Tribunal for Rwanda.
Men and women enjoy the same rights to enter into contracts on all civil matters except for a minor distinction as attesting witnesses to a legal contract under 17-2 of Qanun-e-Shahadat (law of evidence) which requires one male witness.
States parties agree that all contracts and all other private instruments of any kind with a legal effect which is directed at restricting the legal capacity of women shall be deemed null and void.
The issue addressed here is contracts and other private instruments directed at restricting the legal capacity of women. Such contracts and instruments do not have the sanction of the law and thus have no standing. It may however be noted that contracts under which one party, man or woman, allows a second party to exercise certain legal rights on his or her behalf do not fall under the purview of this article. Thus a wife allowing her husband to manage her property on her behalf is not suffering any diminution of her legal capacity.
States Parties shall accord to men and women the same rights with regard to the law relating to the movement of persons and the freedom to choose their residence and domicile.
There is complete freedom of movement in Pakistan. All citizens of Pakistan, regardless of gender, have the right to choose their residence and domicile. There is no discrimination between men or women on this count. Sometimes the entry of a particular person is prohibited in a certain area for the purpose of maintaining law and order. For instance in an area where political tension is running high with threat of violence, certain political leaders may be prevented from entry into that area for a specific period. However if the district in question is the district of residence of the person concerned then he or she cannot be prevented entry into that district.
