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Under the aegis of his organization the Insaan Welfare Trust, Mr. Aslam Khaki, advocate, filed a constitutional petition (Constitutional Petition no. 63/2009) under article in the Supreme Court alleging the infringement of the fundamental rights of “Eunuch’s” (a term that is used as an English translation for “Hijra”).
The incident that forms the basis of the petition is “the case of molestation, humiliation and arresting the most vulnerable the most oppressed section of the society i.e. Eunuch or middle sex (also called as She males) by the Taxila Police on 23/1/2009″. The petition asserts that the rights of this community are collectively violated by their families who reject them and send them to the “Gurus”, by society in general, which marginalizes, discriminates and shuns them, and by the government, whose coercive apparatus threatens, maltreats and harasses them. All this, states the petition, constitutes a violation of “the right of dignity enshrined by Qur’an as well as Article 14 of the Constitution” specifying that this is manifested in a denial of the right of Islamic inheritance to the “Shemales” by the parents, lack of education opportunities, lack of respect, little or no employment opportunities, and restriction of movement by the “Gurus”.
In response to the arguments presented by the petitioner regarding the oppression and breach of fundamental rights of the “Shemale” community perpetrated by their families, the government and the society at large, the Supreme Court, in a judgement dated 17/8/2009, directed the Secretaries of the Social Welfare Department through the Additional Advocate General to conduct surveys of the “Shemale” population to determine their numbers and conditions and also the facilities available to them. They must also register individual members of the community so that the court may determine whether they stay with their Gurus of out of their own free will or there are elements of coercion involved. Lastly the court also directed that henceforth all such children handed over to the “Gurus” shall be documented so that it can be found whether the child was given away out of free will or compulsion.
A second provisional judgment ordered that income support should be provided to this community from the Bait-ul-Maal and the various government-run income support programs. Law enforcement agencies were directed to protect “Shemales” from harassment from different criminal elements, and the social welfare departments were directed to come up with projects to support the “Shemale” community and provide lists of registered “Shemales” for the next hearing.
This petition however inadequate addresses the denial of fundamental rights to an entirely marginalized community. It is a step in the direction where issues that were previously completely invisible are at the very least being highlighted and discussed in open court. The social, cultural and legal climate of Pakistan ranges from denial of to hostility towards alternative sexualities, gender identities and expression. Given this situation, it is commendable that the Supreme Court has taken up this cause and given it some legitimacy.
However, we must remain cognizant that this is a complicated issue and this precedent will have far reaching consequences. The structural discrimination, marginalization and violence that Hijra and the Zanana communities face in terms of the cultural, social and legal barriers to integration into the mainstream must be systematically addressed before criticism and sanction is levied against the alternative support structure that they have created over time.
It is also important to remember that the majority of the harassment that they face is from the law enforcement agencies and suddenly expecting those agencies to protect them is unrealistic; furthermore, giving law enforcement the additional powers challenging the communities’ internal structures while handing them a census that details the name and location of its members may compound the communities’ problems.
There are still outstanding legal issues around the ability of these individuals to be recognized as full and equal citizens by the state. The legal reforms that could be instituted are the recognition of the third gender within the national identity card system (a measure that subsequent petitions have attempted to address, which I will cover in a future column); the ability of these individuals to legally change their sex from male to female if they so desire; enactment of laws against harassment, discrimination and violence within the home, on the streets and at the workplace.
In fact due to systematic and systemic oppression faced by hijras and zananas over a prolonged period of time, any substantive amelioration of their condition requires affirmative action to be instituted for their benefit. Such provisioning must be undertaken by the Parliament. Although the Court may bring this issue to the Parliament’s attention or even strike down laws that are prime facie discriminatory, it is not empowered to make new laws, which is, in the final analysis, the purview of the legislature.