Daily Times

Since the higher courts in Pakistan are empowered under the Writ Jurisdiction to enforce all fundamental human rights, guaranteed under the Constitution, therefore, the ultimate enforcement of transgender rights remains vested in the High Courts and the Supreme Court of Pakistan. However, the judgments of the higher courts and provisions of the Act of 2018 have repeatedly called for the Government functionaries to take action to safeguard the rights of transgender persons. This has led to the evolution of some other enforcement channels on the executive side, as derivatives from the court judgments and by way of the implication of the legislative provisions on the subject.

For this article, it may be appropriate to discuss these enforcement mechanisms under two categories. Firstly, those institutions, which have been specifically tasked to perform functions of enforcement of rights of transgender persons under the Act; and secondly, all other enforcement channels, which have emerged as derivatives from the Court judgments, the Act of 2018 and other policy directions of the Federal or any of the Provincial Governments. While looking into the domain of provincial governments, we shall only restrict ourselves to the province of Punjab as the referral point for the scope of this article.

The Transgender Persons (Protection of Rights) Act, 2018

In Chapter VI titled Enforcement Mechanism, if we breakdown different parts of Section 18 of the Act, it is clear that three specific enforcement institutions have been designated therein. Any other constitutional, criminal or civil remedies as are available to all citizens of Pakistan under respective laws, the transgender persons are also equally entitled to them. Although provisions of Section 18 of the Act are widespread, it may be appropriate to briefly see as to what are these institutions, which have been specifically mentioned as designated enforcement bodies for safeguarding rights of transgender persons.

Federal Ombudsman

According to the Presidential Order No 1 of 1983, the institution of Federal Ombudsman is mandated to diagnose, investigate, redress and rectify the injustice done to any person from maladministration of an agency of the Federal Government, which includes a Ministry, Division, Department, Commission, corporation or other institution established or controlled by the Federal Government. This does not include the Supreme Court, the Supreme Judicial Council, the Federal Shariat Court or a High Court.

The Act of 2018 has specifically mentioned the office of Federal Ombudsman as one of the three enforcement bodies for safeguarding rights of transgender persons. However, this institution does not have any dedicated institutional setup to deal with grievances of transgender persons.

National Commission on Status of Women

A permanent National Commission on Status of Women (NCSW) was established through a Presidential Ordinance in 2000. Subsequently, the National Commission on Status of Women Act was passed in 2012. The role of NCSW is to promote social, economic, political and legal rights of women as provided in the Constitution of Pakistan and accordance with international declarations, conventions, treaties, covenants and agreements relating to women.

Enforcement of rights is a proactive exercise and redressing general violations is ordinarily reactive

Although the Act of 2018 has provided for the role of NCSW to act as the enforcement body for rights of transgender persons, however, there is no institutional arrangement available in the Commission to assume that role.

National Commission for Human Rights

The National Commission for Human Rights (NCHR) was created through an act of the Parliament in 2012. NCHR published an interim report in January 2017, on mainstreaming of the transgender persons and safeguarding their rights by calling for the need to bring in comprehensive legislation. Similarly, another report published by the NCHR, on the marginalised segments of Pakistani society, also finds special mention of the alienation of the transgender community.

Conclusion

From the analysis of legal provisions of transgender rights in Pakistan and their assessment carried out in the international context, we can safely conclude that the legal corpus of Pakistan, not only sufficiently, rather very affirmatively, through special legislation, covers all essential aspects of transgender rights. The entire legal framework in Pakistan offers some of the most progressive legal guarantees available to the transgender community around the world. Instead of getting into controversies of LGBT movements and their demands, which go contrary to the religious narrative and attract penalties under the criminal laws of the country, Pakistani law has solidified its grounds based on historical evidence of transgender rights in Islam on principles of social equity. This has led to legal provisions for not only the identity of transgender persons but also an elaborate procedure for the determination of their share in the inheritance of family properties.

Although the sufficiency of rights of transgender persons in Pakistan leads us to believe that theoretical foundations of the subject are correctly laid, however, these have not translated into enforceable rights as yet. Such gaps have occurred due to ineffectiveness of enforcement mechanisms provided under the Act of 2018. It is observed that neither the National Commission for Human Rights nor the offices of Federal Ombudsman and the National Commission on Status of Women have designed any enforcement tools specifically for transgender persons to which they can take recourse for enforcement of their rights. The absence of devising any proactive methods to ensure rights of transgender persons is further necessitated, all the more, because hardly any members of the transgender community have shown any familiarity with these organisations, as depicted in results obtained through a community survey conducted in Lahore. Perhaps, it is one of those flawed provisions of the Act of 2018, in which, these bodies have been wrongly declared as enforcement channels merely on presumptions of their complaint management responsibilities in case of violations of rights. It is to be understood that the enforcement of rights is a proactive exercise and redressing general violations is ordinarily reactive. Therefore, these organisations are not essentially designed as enforcement or implementing agencies.

The situation analysis of the enforcement of transgender rights in the province of Punjab through its executive arrangements in the shape of high-level cum multi-departmental monitoring committees at the provincial level and district implementation committees are hopeful signs that the subject issue is finally getting its due recognition in the Government domain. However, these institutional designs are still ad hoc arrangements which may not yield any positive outcomes until and unless some permanent body is set up to achieve objectives of 2018 Act for mainstreaming the transgender community. Chapter VI, Section 18 of the Transgender Persons (Protection of Rights) Act, 2018, which enlists the enforcement mechanisms may be suitably amended. There is a need to either provide for a National Transgender Council such as the one given in the Transgender Persons (Protection of Rights) Bill, 2016 of India or identify more potent government agencies such as the provincial departments of the Social Welfare and designate them as the statutory-bound enforcement agencies for rights of transgender persons in Pakistan. Federal Ministry of Human Rights in Pakistan has an Administrative Tribunal for the Disadvantaged Persons, as one of its attached arms. One of the policy options could be to declare the transgender persons as disadvantaged persons under the respective laws and the Tribunal may be activated to function as the prime body for enforcement of their rights under the Act of 2018.

There is a definite requirement to sensitise stakeholder departments at Federal, Provincial and District levels, particularly the Health, Education and the Land Revenue departments so that they must assume roles assigned to them under the 2018 Act relating to the right to education, health and inheritance of transgender persons in Pakistan, in a more proactive fashion.

Concluded

The writer has done MPA and is associated with Public Policy Think Tank