Impact of Employment Barriers on the Livelihood of Ex-Offenders in Pakistan

This article seeks to examine the derivation of the right to profession and livelihood from multiple sources, including Pakistan’s Constitution (which incorporates Islamic principles) and international obligations. It also explores the national legislation, rules, case, regulations, and orders that may violate these fundamental rights. 

1. Constitutional stance

(i) Article 18

Article 18 entails that “every citizen shall have the right to enter upon any lawful profession, or occupation and to conduct any lawful trade or business”. It is evident that the term  ‘every citizen’ entails all members of the state (Pakistan) and draws no distinction between ex-convicts and other individuals. This is further supported through Mian Rafat Mehmood v Director General Lahore Development Authority [1] where the court stated that every person has a right to choose a profession of his choice to earn livelihood. 

The term ‘profession’ is interpreted in Judicial Review of Public Actions by Justice (R) Fazal Karim [2] as “a vocation or occupation, requiring special, usually advanced, education, knowledge and skill, e.g. legal or medical professions. Even amongst general ex-convicts with a criminal record, there are individuals that have the potential and necessary skills required to enter a profession. The case of Government of Pakistan v Zamir Amhad Khan [3], held that the word “lawful” clearly involves an ethical content than does ‘legal’. Therefore, the re-integration of ex-convicts by providing them equal job opportunity complies with the ethical guidelines. Scholars [4] Johnson and Maruna have also highlighted that reintegration involves a two-way process where the individual prisoner and the community play active roles. They argue that reintegration aims at facilitating the “ability of the ex-offender to function within the community, within their family, employment and be capable of managing circumstances in a manner that circumvents risk and additional conflicts with the law”.  Hence, the perpetual denial of employment opportunities to individuals with a criminal record prohibits successful reintegration that violates their right to profession and livelihood.

(ii)Article 38 and Article 9

Article 9 of the constitution of Pakistan guarantees security of a person, a right that extends to include the right to life and liberty. In a Supreme Court judgment, the court extended the meaning of “life” under Article 9 to include all facets of human life. In Manager Printing Corporation of Pakistan Press v Muhammad Tahir [5] the right to life of a person was extended to include the right to livelihood. Similarly, an Indian precedent Olga Tellis v Bombay Municipal Corporation 1985 [6] further elaborates on this right stating that no person can live without the right to livelihood and if this right is not treated as a constitutional right, it would be the easiest way to deprive an individual from their right to life, as has been happening with ex-convicts as they are being deprived of all means of earning and supporting their family due to certain discriminatory laws. 

The provisions of Article 38(b) also guarantee that ‘all’ citizens are entitled to facilities for work and adequate livelihood as interpreted in the case of Benazir Bhutto v Federation of Pakistan [7]. These stance is further affirmed in the “Pavement Dwellers Case” where the Indian Supreme Court held that the ‘right to livelihood’ is borne out of the ‘right to life’, as no person can live without the means of living, that is, the means of Livelihood. The court observed: 

“An equally important facet of the right to life is the right to livelihood because no person can live without the means of livelihood.” 

Hence, the perpetual denial of employment opportunities merely on the basis of an individual’s criminal record eventually deprives a person from his right to livelihood.  

(iii) Article 31 

Under Article 31 of the constitution, the state is obligated to enable all Muslims (individually and collectively) to order their lives “in accordance with the fundamental principles and basic concepts of Islam”. One such principle guaranteed under this Article is that a Muslim has an inalienable right to earn his livelihood and he must not be deprived of it under any circumstances. This argument derives authority from authentic hadith of the Prophet (P.B.U.H) who said: 

“Seeking lawful earning is a duty after the obligatory duties.” [8]

The importance of this right is further reflected from the well-established practice of the Holy Prophet (SAW), who allowed even the prisoners of war to exercise their right to livelihood after they had earned their release. In relation to prisoners of war, the Prophet (PBUH) said:  

“Teach ten of your companions how to read and write, and for each one taught, you will be freed.” [9]

This incident highlights that prisoners of war could engage in productive activities, that would help them reintegrate into the society and contribute to their livelihoods. Through an analogy, it could be said that the wrongful act committed in the above stated Hadith was to retaliate against Islam for which they served their punishment by teaching ten companions. After they had earned their freedom, they resumed their exercise of the right to livelihood and profession. In contrast, where ex-convicts have served their sentence  for the crime committed are still deprived of their right to livelihood. This demonstrates the difficulties in the process of reintegration of ex-convicts into the society, a concept that is discouraged in Islam. 

This is also reflected from a famous example of Zayd ibn Al-Hasi, from the Battle of Badr who earned his release by teaching as he could not afford to pay the ransom for his release. He was then allowed to continue with his normal life and exercise his right to work and earn livelihood. 

2. International stance:

(i) International Covenant on Economic, Social and Cultural Rights

Article 6 of ICESCR, provides the right to work and to gain living. This “core obligation” encompasses the obligation to ensure non‑discrimination and equal protection of employment. An example provided in the commentary [10] includes ensuring the right of access to employment, especially for disadvantaged and marginalised individuals and groups, permitting them to live a life of dignity. It is a well-established fact that ex-convicts are a marginalised and disadvantaged part of the community. Hence proving that the application of Article 6 extends to ex-convicts. 

(ii) Conventions of the International Labour Organisation (ILO)

ILO Convention No 122 on Employment Policy 1964 in Article 1 emphasises the promotion of freely chosen employment, raising living standards, and addressing unemployment [11]. It aims to ensure work for all job seekers, and provide freedom of job choice, allowing workers to use their skills regardless of race, gender, or background. Since it expressly requires that no discrimination may be done on the basis of background, it can be interpreted as a right to profession for individuals with criminal records as well. 

(iii) Universal Declaration of Human Rights  (UDHR)

Article 23 of the UDHR provides ‘Everyone’ with the right to work and free choice of employment, meaning that no group of society is excluded from the same. It has been quoted in many judgments and commentaries of the constitution, giving it significant importance. Its preamble itself provides that the rights contained within this are for inherent dignity and of the equal protection of all members of the human family. 

(iv) Customary International Law

Customary international law further emphasises the binding nature of the aforementioned conventions. In order to establish customary international law, a twofold criteria must be satisfied: (i) state practice (Emphasis Placed) and (ii) opinio juris. The right to profession and livelihood guaranteed in the above-mentioned conventions are binding by way of customary international law as the signatories constitute state practice. A total of 187 have ratified the ILO conventions, 172 countries have ratified the ICESCR and 193 states have ratified the UDHR, consequently upholding the right to profession and livelihood for all. It is also noted that the right to profession and livelihood for “ex-convicts” itself exists by way of customary international law as proven by state practice and opinio juris below.

Stance of other countries: 

1. USA

US has a federal rule that limits an employer’s ability to discriminate against ex-offenders. Under Title VII of the Civil Rights Act of 1964 [12], an employer may be held liable for treating individuals with similar criminal records differently. A significant development in this area is the “Ban the Box” movement, which aims to remove criminal background questions from job applications and allow ex-offenders the chance to demonstrate their qualifications before being automatically disqualified. 37 states and over 150 cities and counties have adopted “ban the box” which basically translates into four-fifths of the U.S. population living in a jurisdiction that has adopted this policy. 

For instance, under the New York State Human Rights Law and Article 23-A of the New York State Correction Law, it is illegal for an employer to deny employment to an individual based solely on “his or her having been convicted of one or more criminal offenses.” Major retailers such as Walmart and Target have also announced plans to remove the criminal history box from their applications nationwide. [13]

1. Singapore 

A movement similar to USA’s ban the box is the ‘Yellow Ribbon Project’ of Singapore [14] which started in 2004. This project aims to give ex-convicts a chance to reintegrate back into society by linking them to various employment opportunities and raising public awareness. In a report issued by the Yellow Ribbon Project and The Singapore Corporation of Rehabilitative Enterprises (SCORE), it was highlighted that over time, SCORE has broadened its focus to include aftercare support, offering services such as employment assistance for offenders and ex-offenders and coordinating these services through the CARE Network. 

3. The Role of Employment in Reducing Recidivism

Shadd Maruna, an academic Head of Sociology, Social Policy & Criminology Department at University of Liverpool provides in his book titled “Making Good: How ex-convicts reform and rebuild their lives” provides that: 

“The stigma of a criminal record can impede an individual’s successful reintegration into society, making it difficult to find employment, housing, or education. We need to support individuals in crafting a ‘redemption script’—a narrative of positive change that fosters a reformed identity.”  

Another point of view stated by Nargis Zokirova, director of the Tajik Bureau for Human Rights and Rule of Law, emphasises that: 

“Ex-prisoners are less likely to reoffend or join extremist groups if they can secure stable employment and earn decent wages after their release. This makes it essential for both the state and public organisations to prioritise their reintegration into society.” 

Kristal May S. Vivares in her Article, “The reintegration of ex-convicts in society: A case study” observes studies that have reported that employment reduces recidivism tendencies and facilitates ex-convicts’ adjustment to civilian life in several ways [15]. It is also noted that after being released some of them reoffend due to the stigma, discrimination and instability they receive from the people in the community. This illustrates that if given adequate opportunities and right to profession, the ex-convicts are likely to not re-offend. 

Examples of some of the legal provisions that violate the aforementioned right to livelihood and profession:

Right to profession, although constitutional, is a qualified right which is subject to certain restrictions that have to be ‘reasonable’, indicating that arbitrary exercise of power to deny this right to a class of individuals is prohibited [16]. It was also clarified by the Supreme Court in the case of Arshad Mahmood v. Government of Punjab [17]  where it was held that although the Government has authority to regulate a lawful business or trade, it does not mean prohibition or prevention completely.  

There are a variety of such laws that clearly violate this right by imposing unreasonable restrictions on the recruitment of individuals with criminal records. Some of the examples include:

1. Police Forces:

Police order 2002 section 43(h) restricts appointment in District Public Safety Commission of individuals with criminal record. Similarly, paragraph No.23 of Standing Order No.6 of 2015 issued by the Inspector General of Police also stipulates that candidates having criminal record or affiliation with any prescribed organizations shall not be appointed to the police service.  

1. Majlis-e-Shoora:

Another example of such restrictions is found in the elections act 2017. It is provided in Article 231 of the Election Act that the disqualification of the members of Majlis-e-Shoora pursuant to Article 63(1)(h) and (p) of the Constitution of Pakistan. The two applicable restrictions are as follows: 

“63(1)(h) he has been convicted by a Court of competent jurisdiction on a charge of corrupt practice, moral turpitude or misuse of power or authority under any law for the time being in force; and 

63(1)(p) he has been convicted and sentenced to imprisonment for having absconded by a competent Court under any law of the time being in force”. 

The case of Syed Mehmood Akhtar Naqvi v Federation of Pakistan [18] distinguishes between pre-election disqualification, referring to a person being disqualified “from being elected or chosen,” and post-election disqualification, referring to a person being disqualified “from being a Member of Majlis-e-Shoora.” This interpretation reflects both pre and post-election disqualification criteria as outlined in the Constitution.  

State is in breach of its international obligations: 

As aforementioned, there are very explicit provisions that violate the right to profession and livelihood of individuals with criminal records by outrightly disqualifying them from being employed in service. In the commentary on Article 6(2) of ICESCR, lawmakers affirmed the principle that respect for the right to work imposes on States parties an obligation to take measures aimed at the realisation of full employment. This clarifies that if states fail to provide employment opportunities to ex-convicts or produce laws discriminating against ex-convicts, they will be held in breach of international obligation. The commentary further states that states are obliged to protect the right to work include and take other measures ensuring equal access to work. 

Another relevant provision is Article 2 of ILO Convention No. 111 (ILO Convention No. 111 on Discrimination (Employment and Occupation) (1958), which provides that states parties should “declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof”. Following these provisions, any law that does not allow ex-convicts to employ themselves would be in breach of this Article, thereby putting the state of Pakistan in breach of its international obligations.

In conclusion, denying individuals with criminal records access to employment opportunities not only undermines their right to profession and livelihood under the Constitution of Pakistan but also hinders their rehabilitation and reintegration into society. By introducing “non-conviction” as a job criterion, this practice violates Pakistan’s international obligations to uphold human rights. Reforming these employment practices is essential to fostering an inclusive society, reducing recidivism, and ensuring justice is delivered fairly. A more balanced approach, focusing on rehabilitation rather than punishment, would strengthen both individual rights and social cohesion.

References :

1. Mian Rafat Mehmood v Director General Lahore Development Authority [2016] CLC 408
2. Constitution Petition Nos D-209, 913 and 1092 of 2015, p 719, ch 10, vol 1.
3. Government of Pakistan v Zamir Ahmad Khan [1975] PLD 667 (SC); see also 1958 PLD 929 (Lah).
4. Santhosh R, Mathew E, ‘Social Reintegration of Released Prisoners: An Empirical Analysis from Two Indian States’ (2022) International Annals of Criminology (Cambridge University Press) <https://www.cambridge.org/core/journals/international-annals-of-criminology/article/social-reintegration-of-released-prisoners-an-empirical-analysis-from-two-indian-states/C398026797928DF35436E21619568B75#r7> Last accessed 12/11/24.
5. Manager Printing Corporation of Pakistan Press v Muhammad Tahir [2014] PLC (CS) 393; see also Imdad Hussain v Province of Sindh [2007] PLD (Kar) 116.
6. Olga Tellis v Bombay Municipal Corporation [1985] 3 SCC 545, AIR 1986 SC 180.
7. Benazir Bhutto v Federation of Pakistan [1988] PLD (SC) 416.
8. Musnad Ahmad, Hadith 6763.
9. Sunan Ibn Majah, Book 1, Hadith 224.
10. Committee on Economic, Social and Cultural Rights, Commentary on Article 6 ICESCR, Thirty-fifth session (2005), United Nations <https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=4slQ6QSmlBEDzFEovLCuW1a0Szab0oXTdImnsJZZVQfUKxXVisd7Dae%2FCu%2B13J25Nha7l9NlwYZ%2FTmK57O%2FSr7TB2hbCAidyVu5x7XcqjNXn44LZ52C%2BIkX8AGQrVyIc#:~:text=The%20International%20Covenant%20on%20Economic%2C%20Social%20and%20Cultural%20Rights%20(ICESCR,inherent%20part%20of%20human%20dignity> Last accessed 12/11/24.
11. ILO, Convention No 122 on Employment Policy (1964).
12. Dallan F Flake, ‘When Any Sentence is a Life Sentence: Employment Discrimination Against Ex-Offenders’ (2015) 93 Wash U L Rev 45 <https://openscholarship.wustl.edu/law_lawreview/vol93/iss1/7/> Last accessed 12/11/24 
13. Jonathan J Smith, ‘Banning the Box but Keeping the Discrimination? Disparate Impact and Employers’ Overreliance on Criminal Background Checks’ (2014) 49 Harv CR-CL L Rev 197 <https://www.researchgate.net/publication/298415251_Banning_the_Box_but_Keeping_the_Discrimination_Disparate_Impact_and_Employers’_Overreliance_on_Criminal_Background_Checks> Last accessed 12/11/24
14. Singapore Corporation of Rehabilitative Enterprises, Annual Report (2005) <https://www.yellowribbon.gov.sg/docs/default-source/module/annual-reportfiles/17ef469f-fa7b-4f71-8cac-e83b27afeca6.pdf> Last accessed 12/11/24
15. Kristal May S Vivares, ‘The Reintegration of Ex-Convicts in Society: A Case Study’ (2023) International Journal of Social Science and Human Research <https://ijsshr.in/v6i10/52.php> Last accessed 12/11/24
16. Landi Renzo Pakistan (Pvt) Ltd v Federation of Pakistan [2013] MLD 601; see also City School Pvt Ltd v Government of Punjab and Others [2018] PLD (Lah) 509.
17. Arshad Mahmood v Government of Punjab [2005] PLD (SC) 193.
18. Syed Mehmood Akhtar Naqvi v Federation of Pakistan [2012] PLD (SC) 1089.