In Mst. Amara Waqas v Muhammad Waqas Rasheed and others (decided on 2 March 2026), the Islamabad High Court ruled that wives have a legal right to property accumulated during marriage under Islamic family law. Drawing on both Islamic and common law jurisprudence, Justice Kayani held that the principles of fairness require that a wife must share in the matrimonial property in addition to her other financial rights. He invoked the classical Islamic legal doctrine of partnership (shariqah), noting that where both spouses contribute to the acquisition of property, shared ownership may be recognised.

The judgment marks a significant milestone. For the first time, a superior court in Pakistan has recognised a wife’s legal right to matrimonial property and has held that the unpaid work she performs at home such as raising children, managing the household, supporting family life, has genuine economic value that the law must acknowledge. It is a landmark step forward in protecting women’s financial rights in the event of divorce in Pakistan, as argued in scholarly literature.

The judgment contributes to a growing body of Supreme Court jurisprudence that has progressively strengthened women’s rights within marriage. Recent Supreme Court judgments have reinforced this direction. In 2025, the Court held that a wife’s right to maintenance begins at the moment of marriage, not from the time she moves into the matrimonial home, and that her claim to unpaid maintenance has no time limit, since a husband’s duty to maintain his wife is a legal debt, not a moral favour. Taken together, these judgments mark a clear judicial direction: marriage in Pakistan is increasingly being formulated, via legal precedents, as a partnership between equals rather than a relationship in which the husband has superior position.

Yet the transformation is incomplete. One key area of family law that urgently needs reform is the remedy of restitution of conjugal rights. Rooted in Christian canon law and transplanted into Muslim personal law through British colonial court decisions rather than having any foundation in Islamic teaching, restitution sits uneasily with the contractual and consensual nature of Islamic marriage. In practice, it operates as a tactical weapon. When a wife files for maintenance, dower, divorce or custody of her children, her husband responds by filing a restitution petition — effectively asking the court to order her home rather than address her claims. Yet despite the incompatibility of restitution with the injunctions of Islam and its violation of the constitutional rights to dignity, equality, and non-discrimination, Pakistani courts have so far declined to strike it down. This is a striking omission that represents one of the most overdue reforms in Pakistani family law.

The recent judgments of superior courts reflect a decisive shift towards treating marriage as a partnership of equals. The restitution of conjugal rights belongs to the older, discredited model of marriage as ownership and control. It is a colonial relic that has no place in a legal order that now affirms the equal dignity and financial rights of wives. The case for abolishing the restitution remedy is as strong in Islamic law as it is in constitutional law, and the time for that judgment is long overdue.

Comparative Global South Analysis

Thailand: Military Coup and Constitutional Form

Thailand’s 2014 military coup exemplifies weaponized legalism in transitional contexts. The coup dissolved the government while maintaining formal constitutional procedure through an interim constitution granting the military “sweeping, unchecked powers” through Article 44.

Within days, the military summoned all media chiefs and ordered censorship of information deemed “provocative” or “detrimental to national security,” threatening to shut down non-compliant platforms. Thai PBS deputy director Wanchai Tantiwittayapitak was detained for broadcasting critical commentary, exemplifying how military power operates within nominally constitutional form.

Myanmar: Counter-Terrorism Law Misuse

Myanmar’s military junta, following its February 2021 coup, imprisoned 60 journalists using the Counter-Terrorism Law and Penal Code provisions. The junta’s September 2024 amendment removed requirements for Ministry notification before prosecution, establishing regional committees that “automatically approve” charges for journalism investigating military operations and casualties.

Pakistan: Sedition Law Weaponization

Pakistan’s sedition statute permits prosecution for speech bringing government into “hatred or contempt,” systematically violating international standards.  Pakistan’s 2023 caretaker government frequently used sedition laws to criminalize speech against the government. The government, led by Anwaar-ul-Haq Kakar, arrested journalist Asad Ali Toor in February 2024 for social media criticism of state officials. The UN Special Rapporteur identified Pakistan among countries currently using anti-terror laws to target journalists.

Egypt: Constitutional Capture

Egypt represents transitional constitutionalism where successive transitions have weaponized law while maintaining constitutional procedure. Tamir Moustafa’s analysis identifies how even bold rulings protecting press freedom eventually succumbed to regime efforts undermining judicial independence. Post-2013 military coup constitutionalism explicitly permits “reasonable restrictions” for national security—formulations allowing governments to achieve constitutional capture wherein courts nominally protecting rights become governmental control instruments.

The preceding comparative analysis discloses consistent patterns: Bangladesh, Thailand, Myanmar, Pakistan, and Egypt all weaponize nominally legal procedures—anti-terrorism statutes, sedition provisions, accreditation systems—to suppress press freedom while maintaining constitutional form. These parallel mechanisms expose fundamental weaknesses in international human rights enforcement.

Despite ratifying the ICCPR, these states systematically violate Article 19(3) standards requiring that restrictions on expression be prescribed by law, necessary for specified purposes, and proportionate. The universal nature of these violations—spanning South Asia, Southeast Asia, and North Africa—demonstrates that current international accountability mechanisms prove inadequate to address weaponized legalism’s distinctive challenge: suppression through formally legal procedures that exploit jurisdictional gaps, enforcement weaknesses, and interpretive ambiguities in international human rights frameworks.

The analysis now turns to specific international law violations and accountability gaps that enable weaponized legalism to persist across these diverse jurisdictions.

International Law Standards and Accountability Gaps

ICCPR Article 19(3) Violations

Bangladesh’s prosecutions violate fundamental ICCPR Article 19(3) standards requiring that restrictions: (1) be prescribed by law; (2) be necessary for specified purposes; and (3) satisfy proportionality requirements. Journalist prosecution for social media criticism lacks security justification; prosecution for constitutional discussion violates specified purpose requirements; 14-year sentences systematically violate proportionality requirements.

Transnational Repression

The UN Special Rapporteur identifies transnational repression—where states target journalists abroad through prosecution in absentia—as requiring expanded accountability. International mechanisms prove inadequate: the International Criminal Court focuses on conflict-context persecution; most accountability mechanisms require territorial jurisdiction; and asylum countries lack capacity to prosecute government officials. This creates jurisdictional vacuum wherein states target journalists across borders with minimal consequences.

Unregulated Financial Investigation

Financial investigation weaponization operates in international legal grey zones inadequately addressed by human rights frameworks. While privacy and property protections exist, international jurisprudence inadequately addresses how financial surveillance becomes political repression through ostensibly legitimate regulatory procedures. UN OHCHR acknowledges that “without freedom of the press, there are no human rights,” yet provides minimal guidance regarding financial investigation regulation.

Constitutional Vulnerability and Institutional Reform

Global South Constitutional Weakness

Bangladesh’s Article 39 constitutional framework—where fundamental rights are explicitly subject to “reasonable restrictions imposed by law”—exemplifies vulnerability to weaponized legalism. Contrast this with South Africa’s Article 36, which establishes that limitations must be “reasonable and justifiable in an open and democratic society.” South Africa presumes restrictions exceptional; Bangladesh presumes restrictions permissible if legislatively authorized.

Judicial Deference During Transitions

Bangladesh’s judiciary, reconstituted following Hasina’s ouster, systematically deferred to executive authority on press cases. Courts granted police remand extensions despite bare allegations; bail applications faced denial without evidentiary foundation; judges avoided confrontational review. This judicial deference represents a consistent Global South vulnerability during transitions, suggesting that constitutional protections require robust judicial independence from inception—not afterthought amendments.

 Institutional Solutions and International Accountability

Addressing weaponized legalism requires multifaceted reform:

Domestically: Constitutional incorporation of ICCPR Article 19(3) substantive standards; specialized constitutional courts reviewing broadly construed statute prosecutions with presumption against conviction; independent prosecutorial oversight insulated from executive pressure; and journalist safety commissions authorized to investigate persecution allegations.

Internationally: The UN Human Rights Committee should establish investigative authority regarding systematic press persecution; regional human rights courts should create specialized dockets for weaponized legalism cases; democracies should prosecute government officials responsible for press suppression under universal jurisdiction frameworks; and development institutions should condition assistance on demonstrable institutional protections.

Conclusion

Bangladesh’s transformation from democratic transition to systematic press persecution within eight months—despite explicit commitments to press freedom—exemplifies weaponized legalism’s dangers. The pattern transcends Bangladesh, appearing across Thailand, Myanmar, Pakistan, and Egypt: regimes recognize that overt totalitarianism invites international accountability, yet discover that nominally legal prosecution proves difficult to challenge.

Addressing this crisis requires reconceptualizing international law approaches to press freedom protection. Current frameworks assume constitutional text and treaty ratification provide adequate protection; weaponized legalism demonstrates form-substance dissociation allows substantive rights violations through procedurally legitimate mechanisms.

Domestically, Global South democracies must establish institutional mechanisms guaranteeing substantive press protection through judicial independence from transition inception; specialized review mechanisms for broadly construed statutes; and independent prosecutorial oversight. Internationally, accountability frameworks must extend beyond formal prosecution to address anti-terrorism law misuse, financial investigation weaponization, and transnational repression.

The Global South press freedom crisis reflects institutional weakness and international accountability gaps, not normative disagreement regarding expression’s value. Addressing this requires recognizing these dimensions rather than assuming constitutional text automatically generates compliance. Press freedom represents democracy’s prerequisite; when governments deploy law itself as suppression instrument, democracy itself becomes endangered.

In November 2025, the Pakistani government passed the 27^th Constitutional Amendment. Among other changes to Pakistan’s distribution of power, such as expanding presidential immunities and centralising military authority under the Chief of the Army Staff, the amendment created a new Federal Constitutional Court (FCC).

The FCC assumes the Supreme Court’s prior jurisdiction over constitutional interpretation, federal-provincial disputes, and the enforcement of fundamental rights. The consequence is a bifurcation of supreme judicial authority in Pakistan: the Supreme Court retains appellate jurisdiction over non-constitutional matters, while the FCC is the authoritative voice on constitutional adjudication. These latter matters are typically the most crucial in protecting democratic rights and norms against the state’s authoritarian intervention.

Justification of Specialised Constitutional Courts

Removing constitutional adjudication from the Supreme Court is argued to reduce that court’s significant case backlog, which stood at 56,169 cases in October 2025.

In addition to increased judicial efficiency, the Bill’s objects and reasons refer to improved consistency of constitutional adjudication by employing judges with “demonstrated expertise in constitutional law.” Constitutional decision-making is a specialised discipline involving complex, value-laden, systemic reasoning. Arguably, establishing a court with these specialised skills, rather than the more varied legal reasoning required in mixed courts, improves constitutional decisions.

Specialised constitutional courts also have a normatively important function in establishing constitutional respect. The argument is that a specialised court, in protecting its institutional interests, reinforces the salience of the constitution for both political actors and civil society. This constitutionalism-promoting function is especially important in countries where politicians have historically disregarded the constitution. This is true of Pakistan, where once-military and now increasingly authoritarian leadership has consistently ignored judicial pushback.

Institutional Capture

However, specialised constitutional courts are not necessary to protect democracy and human rights. Ordinary courts in successful constitutional democracies such as Australia, India and Canada exercise both constitutional jurisdiction and supreme appellate authority. Conversely, countries such as Turkey and Hungary maintain specialised constitutional courts that are criticised as ineffectual due to executive control. Judicial independence, rather than judicial specialisation, is the primary determinant of a court’s effectiveness in protecting democratic rights and norms.

Pakistan’s judicial history underscores this. Following the military leadership’s firm control over judicial elections and tenure from the 1950s, the judiciary took control of its own appointment process in the tenuous civilian rule of the 1990s. Consequently, under the military leadership of General Musharraf (1999–2008), the Supreme Court became progressively more assertive, challenging the regime’s violations of civil rights and the unconstitutional accrual of executive authority.

This independence has recently eroded. In 2024, the 26^th Constitutional Amendment reintroduced political control over judicial appointments by reconstituting the Judicial Commission such that only five of its thirteen members are now from the judiciary. Nonetheless, the Supreme Court in Sunni Ittehad Council v Election Commission of Pakistan (2024) challenged the consolidation of reserved seats among ruling parties. This indicates the court’s ongoing independence from, and sporadic resistance to, the regime.

The 27^th Amendment can plausibly be read as a response to such resistance. The first FCC judges are to be appointed by the President on the Prime Minister’s advice. No objective criteria or accountability procedure exists for this appointment. While subsequent appointments will be made by the Judicial Commission, as mentioned, this body is increasingly subject to executive capture. In reconstituting the bench of the country’s highest constitutional court, the regime reduces the likelihood of judicial intervention against its authoritarian interests.

Ultimately, the effectiveness of judicial institutions in protecting constitutional, democratic, and human rights norms depends primarily on their institutional independence. Eroding this independence in Pakistan appears to be the real reason behind the FCC’s creation. As these reforms form part of a broader global trend of judicial capture and associated democratic backsliding, the warning is clear: we should not allow institutional labels to mask democratic erosion.

Even though there have been legislative advancements, such as the Anti-Honour Killing Laws (Criminal Amendment Bill) of 2016 which aims to identify the legal loopholes enabling killers to be acquitted by the victim’s families, the tradition of ‘honour’ killings still persists. The acquittal of Muhammad Wasim (Muhammad Wasim v. The State), demonstrated judicial inability to apply the law strictly, accepting family compromise despite the Act. These cases, alongside 2025 killings, highlight difficulties in enforcement amid societal tolerance.

These developments, while leading to arrests and momentary public outrage, underscore a struggle to dismantle entrenched cultural justifications undermining Pakistan’s obligations under international human rights law. A major part of this challenge lies in the legislative gaps persisting even after the landmark Anti-Honour Killing Laws (Criminal Amendment Bill) of 2016. The law’s crucial weakness is the insertion of the word ‘may’ instead of ‘shall’ when mandating life imprisonment (Tazir) for honour killings, even if the victim’s family grants a pardon. This small legislative detail grants judges vast discretion, allowing judicial officers to be swayed by patriarchal cultural pressures to accept a family’s waiver of Qisas (retribution) and let the perpetrator walk free, as painfully demonstrated by the acquittal of Muhammad Wasim. Furthermore, the defence often feeds on the argument that the murder was explicitly committed ‘in the name of honour’ which enables the case to revert to ordinary murder charges where family forgiveness is permissible.

These ambiguities are amplified by concerning judicial trends. Pakistan’s higher courts frequently show a troubling tendency by leaning towards technical acquittal, procedural flaws and retracted confessions over the clear intent of the Anti-Honour Killing law, especially when a compromise is reached. This trend underscores a continued societal and judicial deference to customary practices and the concept of family ‘honour’ over the state’s obligation to uphold the rule of law. While there is a counter-trend of the State challenging these acquittals in the Supreme Court, the persistence of these loopholes and the routine acceptance of family pardons serve as a constant reminder that without eliminating judicial discretion and definitively closing the door on forgiveness for honour crimes, legal reforms will remain insufficiently effective in protecting vulnerable individuals and ensuring justice.

A Shared Human Rights Imperative: Deconstructing ‘Honour’ and Upholding Rights

The inability to prosecute honour murders signals systemic failure. Despite the 2016 Act amending the Pakistan Penal Code (sections 299-311) to treat honour killings as murder punishable by death or life without family pardon discretion in most cases, enforcement remains irregular due to jirgas protecting offenders. Resource shortages and poor investigations lead to misclassifications and acquittals.

The failure of the state is also apparent in its disregard for its preventive responsibilities. Numerous instances demonstrate that at-risk persons, frequently young women asserting their fundamental right to select a mate, remain unprotected despite evident risks to their lives. These failures constitute a direct infringement of established international commitments, including Article 16 of the Universal Declaration of Human Rights and Article 23 of the International Covenant on Civil and Political Rights, as well as Pakistan’s obligations under the Convention on  the Elimination of All Forms of Discrimination Against Women (CEDAW)

Pakistan’s challenge stems not from absent laws, but from failing to enforce them against patriarchal authority, bias, and the myth of ‘honour’. To fulfil international obligations, lawmakers must replace judicial discretion with mandatory life sentences, dismantle jirgas, and invest in prevention like shelters for at-risk women. Only then can South Asia reclaim the right to life from the shadow of ‘honour’.

The UN Guiding Principles on Business and Human Rights (UNGPs) establish that companies have a responsibility to conduct HRDD to identify, prevent, and mitigate their adverse human rights impacts. Amnesty concludes that the companies supplying Pakistan “failed to conduct adequate HRDD.” This finding, however, prompts a more granular question: what constitutes “adequate” diligence within complex, multi-jurisdictional supply chains?

It is important to note that the UNGPs themselves are not a legally binding document in international law. However, they establish the global standard of practice expected of all businesses and are integrated into various binding domestic laws and regional instruments, such as the German Supply Chain Due Diligence Act (LkSG) and the EU’s Corporate Sustainability Due Diligence Directive (CSDDD), creating a legal obligation for in-scope companies domiciled in those jurisdictions.

The Utimaco-Datafusion Case

A case outlined in the report, involving the German company Utimaco and the UAE-based Datafusion, serves as a poignant illustration. Utimaco manufactures the “Lawful Intercept Management System” (LIMS), a powerful software that allows for the deep inspection of digital communications. Datafusion purchases this software, integrates it into larger monitoring centres, and exports the complete system to Pakistani telecommunications providers. Under Pakistani law, these providers are forced to install such systems and grant direct access to the country’s intelligence agencies, notably the Inter-Services Intelligence (ISI). Crucially, as revealed in a 2024 Islamabad High Court case, this surveillance apparatus operates “without any supervision, oversight or control,” and without obtaining the judicial warrants mandated by Pakistan’s own Investigation for Fair Trial Act, 2013 (FTA).

This layered corporate structure presents a core legal challenge under the UNGPs, which differentiate between a company causing harm, contributing to it, or being directly linked to it through its business relationships. The extent of a company’s responsibility to act, specifically, to exercise leverage or, in the extreme, to disengage hinges on this precise distinction. A key question arises: was Utimaco, as the original technology maker, contributing to human rights abuses, or merely linked through its partner, Datafusion?

Utimaco possessed meaningful leverage (the ability to effect change in the wrongful practices of its business partner) that could have been exercised. Its LIMS product includes a technical safeguard, which is a warrant management system designed to log and audit lawful interception. The court’s revelation that Pakistani authorities had never used this system to file a single warrant in over a decade is a glaring red flag, and raises an important question: did Utimaco’s HRDD obligation extend to verifying the functional use of its own built-in compliance features? Should it have required contractual commitments from Datafusion on end-use monitoring? Arguably, yes.

Standard for Adequate HRDD       

This shows the need for a more robust and legally nuanced application of the UNGPs, where ‘adequate’ HRDD in multi-layered supply chains is understood as a proactive, iterative, and continuous process, encompassing several key, non-exhaustive obligations:

1. Context-Aware Assessment: Pre-export evaluations must scrutinize the ultimate deployment environment, not just the immediate customer. For Utimaco, this would have entailed analyzing Pakistan’s documented pattern of warrantless surveillance, evaluating the likelihood that technical safeguards would be bypassed, and anticipating how integration into state-run networks could magnify systemic rights violations.
2. Downstream Contracting: Contracts with distributors and integrators within the supply chain should not merely transfer products but embed enforceable HRDD obligations. A framework between Utimaco and Datafusion could have required independent verification of warrant system usage, mandatory reporting of compliance breaches, and escalation protocols, converting abstract responsibility into measurable duties.
3. Ongoing Monitoring: HRDD should be ongoing, recognizing that risks may change over time as the business enterprise’s operations and operating context evolve. For technologies that enable human rights violations, adequate HRDD cannot end at the point of sale but must include mechanisms for tracking the functioning of safeguards post-deployment [see Corporate Sustainability Due Diligence Directive]. Continuous monitoring would have revealed that Pakistan’s authorities systematically ignored the built-in warrant system, triggering a duty to intervene or reconsider the business relationship.
4. Clear Disengagement Triggers: When monitoring shows that leverage fails and abuse persists, companies must be prepared to terminate partnerships. Defined thresholds, such as repeated bypass of audit systems, translate the UNGPs’ guidance on ending complicity into concrete operational standards. The OECD Due Diligence Guidance too, provides that companies should consider ending relationships where efforts to mitigate risk prove ineffective. Notably, Pakistani law lacks mandatory HRDD in the context of business impacts on human rights, a gap that deters meaningful oversight, weakens incentives for companies to monitor downstream use, and ultimately allows high-risk technologies to operate without enforceable accountability safeguards.

As the Utimaco-Datafusion case makes clear, human rights due diligence isn’t a tick-box exercise. It’s about sustained attention – anticipating risks, enforcing responsible terms in contracts, and keeping oversight alive across every link in the supply chain to make sure dual-use tools are deployed in line with global rights standards.

Constitutional Guarantees

Pakistan’s Constitution offers a strong legal foundation. Article 9 ensures the right to life and liberty, recognizing personal identity as central to human dignity. Article 25 promotes equality and prohibits discrimination based on gender. Every child, thus, enjoys these guarantees right to personal identity for the children along with the rights to life and liberty, without discrimination.

Judicial precedents

Pakistan’s judiciary has repeatedly underscored the state’s obligation to protect children without parental care. In a landmark case in 2014, the Supreme Court directed provincial chief secretaries to assist the National Database and Registration Authority (NADRA) in registering orphans and abandoned children. The petition, filed by philanthropist Abdul Sattar Edhi, responded to NADRA’s refusal to register children without legal guardians.

Justice Azmat Saeed Sheikh noted that such children should not suffer for being abandoned and that their welfare is state responsibility. In two other cases, the Sindh High Court and the Lahore High Court ordered authorities to take prompt action to register identities of children with unknown parentage and to uphold the fundamental rights of the children provided in the constitution. These cases, in combination, assert the responsibility of the state to ensure welfare of children, of which right to identity is a crucial part.

Lack of Implementation

Despite clear directives and frameworks, implementation remains patchy. A UNICEF report highlights Pakistan’s alarmingly low birth registration rate—only 34% of children under the age of five are registered. The report cites inconsistent provincial implementation of Local government laws related to birth and death registration of children. and limited outreach. This disproportionately affects abandoned children and those born to single or unwed mothers—exposing them to exploitation, trafficking, and child labor.

Although Pakistan has ratified multiple international conventions on child rights such as United Nations Convention on the Rights of the Child (UNCRC) and it’s Optional Protocol on the sale of children, enforcement lags. These conventions together create a web of policy recommendations and laws that define, promote, and protect the basic rights of all children. Furthermore, they define state responsibility to prevent harm to children.

Weak institutional capacity, lack of resources, and bureaucratic red tape create serious implementation challenges. Orphans and abandoned children, in particular, struggle to access legal identity due to inconsistent enforcement of international conventions across provinces. This disconnect between policy and practice underscores the urgent need for systemic reform.

Recommendations

More inclusive registration mechanisms are needed to ensure that all vulnerable children, including those outside institutional care, are not excluded. Lessons from international best practices provide valuable insights. Bangladesh significantly improved registration rates between 2005 and 2008 by linking birth registration with immunization services. Case studies in the Gambia and Ghana show that linking child registration with health programs can significantly improve child registration.

Pakistan can adopt similar models by leveraging its robust public health infrastructure. Integrating birth registration with immunization and child health services could accelerate outreach, especially in rural areas. Mobile registration plants in Albania, for example, were able to identify and register mobile populations.

Another promising approach is to link registration with social safety nets. Nepal’s Child Grant Programme made birth registration a prerequisite for cash support. Bolivia tied school stipends to children’s registration status. These conditional cash transfer models incentivize early registration.

To create meaningful change, NADRA, which is the national body for the issuance of national identity cards, must expand its orphan registration policy to cover street children and those at risk of exploitation. Officers must be trained to facilitate registration even in the absence of one or both parents.

In conclusion, lack of legal identity continues to be a formidable barrier for Pakistan’s most vulnerable children. Despite constitutional guarantees, judicial directives, and progressive policies, the absence of effective implementation leaves many excluded from basic rights and protections. Implementation of the already given framework by international organizations, supported by the judicial precedents, and international best practices, is necessary. Only then can Pakistan fulfill its constitutional and international obligations to ensure that every child is recognized, protected, and empowered through legal identity.

The tension between talaq, khula, and dissolution of marriage (faskh) has long been a central part of Muslim jurisprudence. The reasoning adopted in this judgment, however, strikes closer to the core of the problem than most prior judicial attempts, suggesting the beginnings of what might be called a decolonial jurisprudence in the field. I will unpack the doctrinal background of these forms, albeit briefly, below.

The distinctions among talaq, faskh, and khula are subtle and often lost upon those not acquainted with Islamic legal tradition. Classical Islamic law granted men a unilateral right to divorce (talaq) exercisable extra-judicially. For women, a right to divorce existed, but it could only be realised with the husband’s consent in the same extra-judicial space (extra-judicial khula). If consent was refused, a woman’s only recourse was to the court, which could grant dissolution either through khula (judicial khula) or through grounds of faskh.

The two forms, judicial khula and faskh, differ in their structure of exchange and proof. A woman seeking dissolution (faskh) is required to establish one or more recognised grounds such as cruelty or failure to maintain. If successful, she retains her dower (mahr) or may claim it if unpaid. In contrast, khula requires no proof of fault: a woman’s mere request suffices, but she must typically forgo or return her dower in return for release from the marriage.

Pakistan’s courts have long struggled to maintain a coherent relationship between faskh, the statutory path to dissolution, and khula, the judicially developed mechanism for unilateral exit. In Khurshid Bibi v Muhammad Amin PLD 1967 SC 97 and its progeny, the judiciary introduced khula as a progressive solution to liberate women from intolerable marriages. Yet this innovation did not address the central problem, which was the evidentiary burden that made faskh practically unattainable for most women under colonial evidentiary standards. Instead of reforming the rules that rendered dissolution rights largely illusory, the courts constructed a parallel escape route through khula, providing relief in some cases while leaving the original evidentiary structure intact. The result was a jurisprudence that appeared reformist on the surface but remained doctrinally uneasy, with khula and faskh sitting side by side in unresolved tension.

It is in this context that Justice Malik’s judgment in Dr. Seema Hanif Khan assumes significance. Her reasoning signals an incipient decolonial turn, for she identifies the true source of injustice: the evidentiary and epistemic standards that have historically silenced women. She observes that in cases of dissolution of marriage, courts should apply not the criminal standard of proof beyond reasonable doubt but the civil standard of balance of probabilities – requiring only that the evidence make a fact more likely than not. On this basis, she faulted the lower courts for ignoring testimony relating to cruelty and for insisting upon documentary corroboration, such as First Information Reports. Equally striking is her rejection of the patriarchal vocabulary that pervades family litigation, such as the use of expressions like ‘disobedient wife’, declaring them inconsistent with constitutional guarantees of dignity.

Verily, the judgment could have gone further in clarifying the doctrinal independence of khula and faskh. Yet what it achieves is no small feat. It reopens interpretive space within Islamic jurisprudence by dislodging colonial habits of proof and patriarchal presumptions of guilt. In doing so, it gestures towards a decolonial jurisprudence – one that recognises both khula and dissolution as distinct and coexisting rights available to women, grounded not in imported liberalism but in the integrity of women under Islamic law.

The Public Order and Peaceful Assembly Act came into force on September 6th, 2024. Despite outcry from the opposition parties, the bill was rushed through the National Assembly and granted assent by the President. The Government of Pakistan showed inordinate speed in ensuring the bill was passed by both houses of Parliament within a week.

This new legislation dangerously attacks the freedom of assembly protected by Article 16 of the Constitution. The Act is exclusively applicable to the capital, Islamabad. The Act imposes restrictions on public, religious, or political gatherings of more than fifteen persons without express permission from the District Magistrate. It increases the powers of the District Magistrate to impose a ban on assemblies if deemed to pose “a risk to national security or public safety”, “substantial risk of violence or public disorder”, or to “disrupt daily activities of the community” (s. 5). The District Magistrate, prior to granting permission, shall examine the prevailing law and order situation and obtain security clearance from law enforcement agencies leaving unfettered discretion at the hands of the Magistrate (s.4). The Act further authorises the Government to designate a specific area of Islamabad as a ‘red zone’ or ‘high security zone’, prohibiting all types of assemblies in that area resulting in a blanket rule effect banning all forms of gatherings (s. 4(8)).

Further, the Act sets a high threshold for maximum penalties (s. 8). It creates an offence punishable by imprisonment up to three years, or a fine, or both. Upon being convicted under this Act, for every subsequent offence, it allows imprisonment for a term that may extend to ten years. The maximum penalties brought by the Act allow an increase from the previous penalty of 6 months imprisonment.

These wide and draconian laws undermine and infringe upon the basic guarantee of the freedom of peaceful assembly, as reported by Amnesty International. Pakistan ratified the International Covenant on Civil and Political Rights (ICCPR) in June 2010 and continues to be a state party. Article 21 of the ICCPR protects the right to peaceful assembly with reasonable restrictions necessary in a democratic society. However, this recent Act is deemed as a tactic to suppress expression and assembly due to the political unrest generated upon the arrest of the former Prime Minister and founder of the political party Pakistan Tehreek-e-Insaf (PTI), Imran Khan.

The history of protests in Pakistan has been notorious. Protestors have been met with harassment and intimidation in annual women’s marches and the recent politically motivated protests and rallies by PTI supporters. The deadly crackdown that occurred in November 2024 including harsh policing and detention of protestors requires an urgent and objective investigation. However, the Public Order and Act sets a chilling precedent within the country, suppressing the guaranteed right to peaceful assembly.

DV is a major barrier to gender equality in Pakistan, which ranks 145th out of 146 countries in the Global Gender Gap Report 2024 which measures gender parity across economic, educational, health, and political-related indices.

Globally, 27% of women aged 15-49 report experiencing physical and/or sexual violence from their intimate partner. In Pakistan, however, 70 to 90 percent of women experience some form of physical, emotional, or psychological abuse from an intimate partner.

The law on domestic violence in Sindh, Pakistan

Sindh was the first province in Pakistan to enact a law on preventing DV. It enacted the Domestic Violence (Prevention and Protection) Act in 2013 (DV Act) and formulated rules in 2016. The DV Act and rules together form the DV law in Sindh. The law provides grievance redressal mechanisms and sets up institutions to protect the rights of women, children, and other vulnerable persons. This includes protection and reporting mechanisms, such as protection committees (which consist of medical practitioners and psycho-social workers) and the Commission on Domestic Violence.

Additionally, gender-sensitive systems for protection such as direct petitions to the Courts were also introduced. The Courts are empowered to pass protection, residence, and monetary relief orders. Further, it has been mandated that the petition should be disposed of within 90 days by the courts for expedited redressal.

Following this, all provinces except the Islamabad Capital Territory (ICT) enacted specific laws to prevent DV.  Sindh is also the first province in Pakistan to adopt a roadmap for addressing domestic violence through the implementation of the DV law. The roadmap was developed by the Sindh Human Rights Commission(SHRC), an independent government institution with the mandate to promote and protect human rights. The roadmap provides a comprehensive analysis of the DV law, outlining the areas where the law must be amended to effectively protect victims/survivors.

Key recommendations of the roadmap for addressing domestic violence

Currently, the law does not explicitly state that the police can register a First Information Report (FIR). An FIR is the first step in initiating a criminal investigation and taking the case forward to court. The roadmap revealed that about 1,491 cases of DV were reported during January and May 2024 to the provincial police in Sindh but only 5 FIRs were registered under the DV Act during the time-period of January 2023 and March 2024. Hence the roadmap recommended that the law should be amended to explicitly provide powers to the police to lodge an FIR to increase access to justice.

The roadmap outlines specific actions for government departments, civil society organizations, and academic institutions to prevent DV, protect victims/survivors, prosecute offenders, and provide rehabilitation to those affected. For example, section 7 of the DV Act allows a victim/survivor to lodge a direct petition in the Court against the perpetrator. However, it was revealed that only 320 cases were filed under the DV Act since its enactment in 2013. The roadmap revealed that the Courts are not victim-friendly, hence victims/survivors do not access the courts for redressal. Hence the roadmap suggested that the judiciary should conduct gender-sensitization training of judges along with strengthening victim-protection mechanisms such as video-link evidence.

Additionally, the roadmap recommended that the ‘Commission on Domestic Violence’ as provided under section 4 of the DV Act should be established to protect the victims/survivors of DV. Under Section 4(2)(a), it can review and suggest amendments to the law ensuring evolving protection for victims/survivors.

Currently, shelter homes have not been established in all districts across Sindh. Shelter homes are crucial in rehabilitating victims/survivors of DV. Therefore, the roadmap also provided a comprehensive analysis of Pakistan’s international law obligations, including under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The roadmap highlighted the Concluding Observations by the CEDAW Committee received by Pakistan on 17 March 2020 which highlighted that Pakistan ‘ensure the availability of inclusive and accessible shelters for women who are victims of violence…’’.

Conclusion

Violence against women is preventable. The ripple effect of DV extends far beyond the immediate victim, impacting families, communities, and society at large. Both the provincial and federal governments in Pakistan must coordinate efforts to end DV and pave the way for a gender-equal society.

The roadmap developed by the SHRC is a step in the right direction for the prevention of DV in Sindh. Other provinces should draw inspiration from Sindh’s initiative and create similar roadmaps to prevent DV. Additionally, the Parliament of Pakistan must enact a law to protect victims of DV in the ICT.

The Ahmadiyya were founded in the British Punjab in 1889 by Mirza Ghulam Ahmad, who claimed to be a Messiah, Mahdi, and Prophet. Ghulam Ahmad ordered his followers to convert the world to Islam, and as a result his missionaries created amongst the first Muslim institutions and communities in the West, most notably in England and the United States of America. Despite their success in globalising Islam, Ghulam Ahmad’s claim to prophecy has proved very controversial amongst Muslims, because of its supposed violation of the doctrine that Muhammad was the last Prophet. In 1974, the Pakistani Prime Minister Zulfiqar Ali Bhutto and the National Assembly amended the Constitution to declare the Ahmadiyya non-Muslim. In 1984, President Zia ul-Haq issued Ordinance XX, which amended the Pakistan Penal Code to criminalise the Ahmadiyya’s claim to be Muslim and their practice of Islam.

Ahmadis appealed Ordinance XX, arguing that it violated the religious freedom guaranteed in Article 20 of the Pakistani Constitution. However, in 1993, the Supreme Court upheld the Ordinance’s constitutionality. Ahmadis are frequently denied access to civil and political rights (for example, discriminatory voter regulations have led to their effective disenfranchisement) and are disproportionately targeted under Pakistan’s blasphemy laws (under which the criminal offence of defiling the Prophet Muhammad is punishable by the death penalty). These prejudicial legal frameworks encourage persecution of Ahmadis from wider society; for instance, they are the targets of mob violence, which the police do little to prevent, and are discriminated against in educational and professional settings.

Governments, NGOs, and international organisations have drawn attention to the persecution of the Ahmadiyya, highlighting how this persecution violates international human rights law. Rights violated include freedom of religion, freedom of expression, the right to life, and cultural and social rights such as the right to work and education. In 2021, the United Nations Special Rapporteur on Freedom of Religion or Belief, the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, and the Special Rapporteur on Minority Issues highlighted the plight of the Ahmadiyya. Lawyers, anthropologists, and historians have also chronicled Ahmadi persecution in depth. A common theme is whether human rights are able to protect religious freedom in Muslim contexts like Pakistan. This is an old debate, which revolves around arguments about whether Islam can be ‘compatible’ with human rights. Such debates could benefit from looking to history, which demonstrates that the Ahmadiyya are not just victims to be saved by international law. From this perspective, it becomes clear that they played an important role in the creation of the human rights regime that now decries their persecution.

The most explicit example is the contribution of leading Ahmadi, Muhammad Zafrulla Khan, to the creation of Article 18 of the Universal Declaration of Human Rights, regarding religious freedom. Zafrulla was the first Pakistani Foreign Minister, and became the President of the International Court of Justice in 1970. In the first of these positions, he intervened in the final debates on the drafting of the UDHR, declaring that the freedom to change religion was not only compatible with Islam but fundamental to it. This was a vital intervention, because it countered the opposition of other Muslim States, such as Saudi Arabia. In fact, Zafrulla’s intervention was merely the most recent in a long history of the Ahmadiyya campaigning for religious freedom in the language of human rights across the globe. He theorised this project in depth, and in fact eventually argued that human rights could only be realised through uniting the world under Islam, rather than through a system caught between the sovereignty of nation states and the justice of international law.

This forgotten history of human rights provides a different perspective to the growing literature detailing Christianity’s well-known influence on the human rights project, and on religious freedom in particular. These histories have been used to explain the struggles of non-Christian religions in international law; the struggles of Muslims at the European Court of Human Rights, for example, is well-documented. However, paying greater attention to the role and agency of Muslims in the development of international human rights law, rather than seeing them solely as victims, provides a very different perspective. Such an approach of course challenges arguments that Islam is necessarily ‘incompatible’ with human rights, instead underlining that both entities are contextually, or historically, constructed. And it also suggests that taking the thought of persecuted minorities seriously provides an important avenue for exploring the difficulties that international law faces in protecting minorities from discrimination.

Want to learn more?

• Suffering in Silence: The Persecution of the Ahmadiyas in Pakistan
• Inequality and Discrimination Faced by Religious Minorities in Pakistan
• Federal Shariat Court of Pakistan Declares the Custom of Swara as un-Islamic and unconstitutional
• Blasphemy Human Rights: The Intervention of the Supreme Court of Pakistan in the Manshamasih Case
• Blasphemy Laws and Human Rights in Pakistan
• Pakistan: A Paradoxical Divinity