(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
Pakistan’s penal code provides for the criminalisation of what it calls ‘unnatural offences’. Article 377 in Chapter 26A ‘Of Wrongful Constraint and Wrongful Confinement’ is a broad provision that states that whoever has voluntary carnal intercourse against the order of nature with a man, woman or animal is liable for a fine and/or between two and ten years imprisonment.
In the Constitution, Section 2 of Article 25 ‘Equality of Citizens’ specifically prohibits discrimination on the basis of sex. There is no mention of discrimination on the basis of gender identity or sexual orientation. Furthermore, 203D ‘Powers, Jurisdiction and Functions of the Court’ provides that the Federal Sharia Court may make decisions against legislation that is ‘repugnant’ to the Injunctions of Islam, and that the President or Governor must amend the law in order to bring it in line with the decision of the Court.
In April 2011, under the judgment of Chief Justice Iftikhar Chaudhury, transgender persons were provided with the legal recognition of a ‘third gender’ the khwaja sira. In November 2011, the Court ordered the electoral commission to collect data and register transgender persons as voters.
In September 2012, again under Chief Justice Iftikhar Chaudhury, transgender people were confirmed as having equal rights to all Pakistani citizens, including the right not to be deprived of inheriting property from their families. The order is to be communicated to all courts of Pakistan and strictly enforced.
Pakistan is not a signatory to the 1951 Refugee Convention or the Convention relating to the status of Stateless Persons 1954. Pakistan is a signatory to the ICCPR and ICESCR, but made a reservation to Article 40 in the former which provides in section 1 that parties to the covenant agree to submit reports on the progress made in enforcing and extending the rights recognised in the ICCPR.
The case of M.A.M. v. Switzerland is about the applicant’s possible expulsion to Pakistan. M.A.M. is a Pakistani national asylum seeker in Switzerland. In 2015 his asylum request was rejected. He first arrived in Switzerland claiming he was fearing persecution in his home country due to a dispute with his former neighbours that attempted to kill him. After arriving in Switzerland, the applicant converted from Islam to Christianity.
The European Court of Human Rights argued that if the applicant were to be returned to Pakistan, it would be a violation of Articles 2 and 3 of the European Convention on Human Rights, as the asylum authorities previously failed to make a thorough assessment of the possible risks that people that convert to Christianity face in Pakistan, all on top with the fact that the applicant was interviewed without the presence of a lawyer. The Court also noted that people who convert from Islam to any other religion might be at risk of persecution for being members of a religious group but also because they could be considered to have committed apostasy, which, in some territories, could be punishable by death.
The respondent (the asylum seeker) was denied asylum and withholding of removal on grounds that crimes he committed in America (consisting of sexual acts with minors) denied him these rights. The court reviewed the question of whether the crime must be an ‘aggravated felony’ in order to bar these rights (even when a claimant faces torture on refoulement). They concluded that Matter of N-A-M should be applied as the standard for evaluating when a claim for asylum may be barred on grounds of criminal conduct; the lesser threshold of ‘particularly serious crime’ was found to be the appropriate measure.
As with other rejections for asylum by the Australian courts, the claimant was not considered to be ‘homosexual enough’. Here the majority of the court agreed with the Refugee Review Tribunal and determined that the homosexual activities he had engaged in were unlikely to continue and that one trip to Pakistan and another to the UK both rebutted any claim for subjective fear of persecution in Pakistan. The High Court even went so far as to make a public announcement defending the decision. In re Appeal for the Cancellation of Denied Refugee Status Recognition, Seoul Administrative Court, South Korea, 24th December 2009 South Korea awarded a gay man from Pakistan refugee status by considering the claimant’s ‘well founded fear of persecution’ and thereby giving effect and deference to the 1951 Convention.
An asylum case of a transgender Pakistani was reconsidered without full hearing at the UK High Court in August 2009. Judge Mark Ockelton QC remarked that he had ‘real difficulty’ in understanding why the Pakistani national was still being litigated against by the home office. Due to the strength of the asylum seeker’s case Ockelton cut the hearing short and dismissed the Home Office’s appeal.
PUBLIC ATTITUDES AND/OR STATE’S CAPACITY TO PROTECT
The U.S Department of State’s ‘Country Reports on Human Rights Practices’ (section 6) 2012 corroborates other news sources regarding societal attitudes and state enforcement of laws against homosexuality. That is, in practice, cases that fall within Article 377 of the Penal Code are rarely prosecuted. Systematic discrimination against LGBT persons is widespread but no definitive data exists. This may be due to the reluctance of sexual minorities to come forward in complaint of discrimination for fear of greater difficulties within their communities should they do so. According to LGBTI News the law is rarely enforced in the courts.
Gender re-assigned individuals were accorded the same legal status as other citizens following an International Gay and Lesbian Human Rights Commission report that called for measures to be taken in the aftermath of the case of Shumail Raj and Shahzina Tariq which reached the Supreme Court after the couple were imprisoned for being found to be in a same-sex relationship by the High Court in Lahore, even though Shumail had had an operation to become male and subsequently married Shahzina.
The US Department of State’s 2012 report notes, however, that despite recent legal and political progress, transgender persons, eunuchs, and hermaphrodites, who are named under the term ‘hijras’ in Pakistan, remain generally shunned and only accepted as dancers at carnivals and weddings. Hijras have been denied places in schools or admission to hospitals, as well as refusals of renting or buying property; they are also often denied inheritance of property even though this is now illegal.
Most recently, transgender candidates have stood for election in the 2013 rounds.
Activities organised in aid of highlighting the plight of LGBTI persons in Pakistan have stirred up significant opposition. The ‘Muslim Youth Front’ launched a campaign in Lahore in early 2012 and directed it primarily against two American organisations: GLIFAA (Gays and Lesbians in Foreign Affairs Agencies) and GLSEN (Lesbian and Straight Education Network). In 2011, a GLIFAA event was opposed by MYF, Jamaat-e-Islami and Jamaatud Dawa. These groups couch their rhetoric in terms of the ‘twin evils’ of America and homosexuality, the former they see as having brought the latter over as an otherwise non-existent phenomenon in Pakistan.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
We do not currently list NGOs working with LGBTI groups in Pakistan, but welcome suggestions.
COUNTRY OF ORIGIN SPECIALISTS
Rubab Mehdi is the Chair of International Imam Hussain Council based in the UK and Pakistan, Chairperson International Human Rights Association; lawyer, interfaith campaigner and a human rights defender. Rubab belongs to a philanthropic background and was the Chief European Co-Ordinator/Spokeswoman Ministry of human Rights Pakistan. She is a qualified British lawyer and was taught at BPP Law College and Holborn College of Law. In Pakistan she assisted Barrister Wasim Sajjad (Acting President of Pakistan, Chairman Senate & Advocate Supreme Court of Pakistan) in formulation of Federal laws and also took on cases ranging from civil litigations to criminal prosecutions involving family disputes, regulatory compliance, corporate frauds and contracts. Over the years, she worked systematically and quietly on a number of significant human rights issues in Pakistan: ranging from female education, orphan care/rehabilitation, disability equality, domestic violence and police torture. Her passion and confidence to speak out regarding the country’s misnomers and taboos has been stated by many as the catalyst through which they themselves entered political/campaigning life. She is prepared to consider serving as a Country of Origin expert witness for asylum seekers from Pakistan, including LGBTI cases.
Researched by: Katherine Burrows