The Dignity of Man is Inviolable: A Feminist Perspective

Right to human dignity is an inalienable and inherent human right. It is enshrined in Article 1 of the Universal Declaration of Human Rights (UDHR) as ‘all human beings are born free and equal in dignity and rights.’ Recognition of human dignity is the foundation of the modern human rights protection system. The concept of human dignity entails a sense of self-worth, a right to be valued as a human being, and includes social inclusion, integrity and empowerment and it relates to the idea that all human beings are equal in their dignity. These two fundamental rights are guaranteed by international human rights treaties and often protected in the constitutions of countries.

 The fundamental right to equality, and non-discrimination is enshrined in Article 4 and Article 25 of the 1973 Constitution[1] of Islamic Republic of Pakistan. The Preamble to the Constitution[2] reads “Therein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law […]”. Article 25 reads “There shall be no discrimination on the basis of sex”. Article 4 states every individual is equal before the eyes of the law. And the right to dignity is enshrined in Article 14 of the Constitution which reads: “The dignity of man and the privacy of home shall be inviolable”[3].

Language is a powerful tool which reflects perceptions, behaviors and attitudes. It communicates the will and the wishes of the people; therefore it is imperative that the language of the law is as precise and as inclusive as possible. If the language of the law is not gender inclusive or gender neutral, it can create a feeling of exclusion for those not conforming to traditionally identified genders. The use of the word ‘man’ instead of ‘human’ in Article 14 prompted me to look at the language of the Constitution and to review the very notion of ‘equality’ enshrined in the Constitution of Pakistan. It undermines equality between the genders, by asserting superiority of one gender over another.

Feminist legal theorists assert that society and the legal order is patriarchal[4], and within the legal order the notions of ‘universality’, ‘objectivity’ and neutrality’ are gendered and biased – as a result ‘equality’ within the legal order is not ‘true’ rather it is a social construct and a product of male thought. In the present context the work of Finley^[5] is important. She wrote “Language matters. Law matters. Legal language matters.” Finley claims that legal language is crafted primarily by men and the legal language is gendered – it is derived from the powerful social position of men, relative to women, and it is informed by men’s experiences. She argues that law hasn’t ignored women as they are one of the intended subjects. However, law views women and women experiences (and of other genders) through a male lens,  hence, perspectives of women (and transgender) have been excluded and marginalized from the legal language.

Furthermore, the result of this process is claimed to be ‘neutral’, ‘objective’ and ‘universal’. Thus, the patriarchal framework of law views male perspective as the universal norm, and the neutral position around which entire areas of law are defined. Therefore, it is the male perspective which sets the standard for determining if evidential requirement in sexual violence cases is met or not; the male perspective which sets laws for selective prosecution of females (and transgender individuals) for prostitution – a crime without a ‘victim’; the male perspective which determines the definition of ‘family’ and sets standards for resolving family disputes ranging from divorce to maintenance to custody. She further claims that the language of neutrality is one of the devices which is used to silence feminist perspectives. For example, ‘neutral’ standards in labor laws, use a ‘gendered’ meaning of ‘work’ to ignore the work performed at home – work primarily done by women – from the ambit of labor law. She further argues how the language of the law is a language of dichotomies, oppositions and conflicts, it focuses on resolving disputes between conflicting interests[6]. This dichotomous nature of the legal language leads to it also being a reductionist language – it is only informed by male perspectives and thus, law has a hard time hearing or believing other languages. Example of this include giving lesser value to a women’s right over her own body and denying reproduction rights to women; equating women rights with the rights of an unborn fetus; marginalization of feminist perspective in the debate on pornography versus free speech; silence and failure of law in effectively dealing with cases of violence in domestic settings. Thus, the gendered language of law leads to an application of a gendered understanding of the notion of ‘equality’ which undermines feminist perspectives.

Although the feminists I refer to wrote in western contexts, the legal system of Pakistan presents similar problems of exclusion of feminist perspectives from the language of law. Examples of exclusion of feminist perspectives in the drafting of the rape laws under the Hudood Ordinance is a blatant example of the gendered nature of law in Pakistan[7]. Similarly, the current debate on the raising of the age of majority of girl child in Pakistan to 18 years is another example. The failure of the state to effectively regulate domestic work[8] – work primarily done by women belonging to poorer communities – is another example of laws blindness to feminist perspectives[9]. This has occurred despite constitutional guarantees of equality, i.e. the notion of equality enshrined in the Constitution is interpreted in a way which ignores and undermines feminist perspectives.

 Thus, the Constitution of Pakistan is not immune to feminist critique either. The most important communication between the state and the people, the Constitution, is a product of male thought and experiences. The National Assembly which introduced the current Constitution included 6 women on reserved seats[10] out of a total of 150 members[11]. The participation of women in the drafting was minimal, with half of the population of the country represented by only 6 women[12]. The exclusion of other genders also manifests in the literal language of the Constitution. Drafted in 1973 and subsequently amended over the years, the Constitution uses masculine nouns and pronouns. The drafters did not intend to exclude individuals not categorized as ‘man’ from the operation of the Constitution, therefore, to clarify this, Article 263 titled ‘Gender and Number’ in the ‘Interpretation’ chapter of the Constitution, was inserted. Article 263 reads “words importing masculine gender will be taken to include females”[13]. The usage of masculine pronouns is reminiscent of an era when it was common practice to use ‘man’ and ‘he’ to encompass all individuals, irrespective of their gender identity. The current language of the Constitution excludes references to gender other than male, and although, Article 25 in combination with Article 263 prohibits direct discrimination, implicit bias can manifest through language which isn’t neutral and may unintentionally reinforce gender norms and perpetuate stereotyping. Reading male pronouns leads to implicit bias and makes readers imagine ‘man’ as the intended subject. For example use of male nouns and pronouns for references to the members of assemblies, the President, the Prime Minister, the Chief Justice of Pakistan, the Attorney General, the Speaker National Assembly, the Chair Senate, the Ministers for State and provincials appointments, may make the reader imagine these posts as ‘male’ reserved for men, solidified further by comparatively less visibility of women on these posts.

The most glaring example of this is Article 14 of the Fundamental Rights Chapter, mentioned above. Article 14, along with Article 9 (security of person, interpreted as the ‘right to life’) and Article 25 has formed the basis for many landmark judgements by courts. Including the Supreme Court orders in 2009[14], which recognized the distinct gender identity of transgender individuals and ordered government functionaries to protect the right to life, right to dignity and property rights of transgender individuals, and eventually the legal recognition of transgender in the NADRA issued CNIC. Furthermore, the recent 2017 judgment of the Lahore High Court[15] which struck down redundant and offensive terms for differently abled individuals from the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981, incorporated by Punjab Assembly in 2015 is another example. Thus, it is imperative that such a crucial Article of the Fundamental Rights Chapter in the Constitution uses an inclusive language, i.e. the dignity of person is inviolable.

The solution to law’s blindness to feminist perspectives is not to ignore or give up on law, rather it requires speaking the language of law. Thus, women need to be empowered and their experiences need to be legitimized by bringing their definitions into law. Bringing contextual approaches to law will bring diversity and complexity to the legal language and it will make law more comfortable with diversity and complexity, and less focused on gendered notions of universality, and reductive principles. Once women perspectives are included, it will lead to a critical evaluation of the nature of legal language, and subsequently its reform.

This would include using gender inclusive language designed to avoid any implications that only one gender, i.e. male is the norm. Making the legal language of law gender inclusive will weaken the contribution of law in constructing, maintaining, reinforcing and perpetuating patriarchy. Calls for making the Constitution of Pakistan gender neutral of course would include re-drafting of the Constitution to include feminist perspectives on an equal basis, and to use gender neutral and gender inclusive language. Inclusion of women and other genders in the language of the Constitution on an equal footing would increase their visibility in traditionally men fields. It would empower other genders by weakening the perception that ‘male normativity’ is the ‘true’ normativity and empower them to question the objectivity of the law itself, and to work towards achieving gender equality de facto and de jure. Thus, e.g. if Article 41 used “she” instead of “he” to refer to the President of Pakistan, the impact would be strong. Firstly, it would help challenge the normativity of the male president, a post that till date has not been held by a female. Secondly, it will help female readers aspire towards occupying traditionally male fields, thus empowering them. The insertion of one Article, Article 263 (the Constitution has a total of 280 Articles), in the last Part of the Constitution does not make the Constitution less gendered. The interpretation Article is only designed for the judiciary and the lawyers, presenting a very small section of the society, whereas the examples mentioned above concern every citizen.

It is high time the Constitution is amended and with it a promise is made to take stronger steps towards making other laws more gender inclusive. Failure to amend the Constitution is an example of overt discrimination – and interpretation cannot excuse this blatant exclusion. An amendment in the language of the Constitution will combat the associated issues of discrimination, gender bias, and stereotypes. Although, there is a slight chance that such demands considering Article 263, may be dismissed as political correctness, it must be noted here that often privilege cloaks peoples’ judgements and people with privilege often fail to see the importance of inclusive and neutral language. Excluding entire genders from the language of the Constitution is not acceptable, if the situation was reversed and the male gender was excluded, I doubt there would not be any resistance.

Despite the expansive and inclusive interpretation of the Constitution, I cannot help but cringe every time I read the Constitution. The constitution of any country is the edifice on which the entire structure of the state is built. It is one of the most powerful expression of the will of the people. It is the basic guarantee of the protection of the rights of the people and the biggest check on the use of power. The Constitution and the guarantees it provide need to be ‘truly’ inclusive. As a woman I cringe at the fact that my most fundamental right, the right to be recognized first as a human being and then as a woman in the eyes of the law is not given enough value in the Constitution. I cringe at the fact that my inherent right to human dignity is protected by blatant sexist language. My right to be valued and respected as a woman is not protected by inclusive language. My right to a distinct gender identity, and with it my intrinsic human worth is glossed over and ignored. To think despite a constitutional guarantee against discrimination based on sex (Article 25), we still have a constitution which does not use a language which creates a sense of inclusion for all is offensive to say the least. Every time I teach Constitutional Law, I flinch when female and transgender students are included in the classroom but excluded from the language of the law. It is time this was addressed. The Constitution needs to be amended to use a more gender inclusive and gender-neutral language. Finally, I don’t need to make the case for inclusion – my right to be visible in the eyes of the law is an inherent right, ultimately coded in the Constitution – the burden is on those who want to exclude me.

[1] The First Constituent Assembly of Pakistan included on Female. See: Official Website of National Assembly at: http://www.na.gov.pk/en/content.php?id=75, and http://www.na.gov.pk/en/content.php?id=121.

[2] Using the language of The Objectives Resolution, 1949.

[3] Full text reads: Inviolability of dignity of man, etc.

• The dignity of man and, subject to law, the privacy of home, shall be inviolable.
• No person shall be subjected to torture for the purpose of extracting evidence.

[4] A cursory reading of the work of feminist legal theorists, such as Catherine MacKinnon, Scales, Gilligan, Patricia, Dalton, Cain, etc. show this. liberal feminists view equality as having access to equal opportunities; radical feminists focus on differences between men and women and support affirmative measures to challenge inequalities between sexes; cultural feminists view these differences as positive, and use the rhetoric of equality to advocate change that supports the values of this difference, i.e. support the values of caring and relational connectedness; post-modern feminists view equality as a social construct and product of patriarchy, and argue that equality needs to be reconstructed from a feminists perspective, while simultaneously denying that a single theory of equality will benefit all women. They all agree that informed by male experiences and excludes feminist perspectives, thus discriminating between the sexes. They challenge laws claim to objectivity and impartiality.

[5] Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning”. L. M. Finley. (1989).

[6] She explains that the Western liberal thought orders the world in dualisms: culture/nature, mind/body, reason/emotion, public/private. Where male is associated with the cultured, reasonable and public, the higher side of these dualisms, female is associated with nature, body, emotions and private – the lesser side of these dualisms. Law is associated with male and has a confined understanding of the other side of these dualisms.

[7] It was partially reformed after decades of struggle by women rights activists (2006). The application of ‘objective’, ‘neutral’ and ‘universal’ standards of evidence leave many victims of rape, sexual assault and violence from the protection of law.

[8] Application of ‘neutral’, ‘universal’ and ‘objective’ definitions of ‘work’ excludes domestic workers, part time workers, on-contract workers form the protection of law.

[9] Likewise, the failure of the state to include transgender individuals in the discussion and drafting of the Transgender Persons (Protection of Rights) Act, 2018 is another example of the gendered nature of law. A survey conducted by CHRJ showed that transgender individuals in Lahore were unaware of the law. The same ‘affirmative action’ approach was applied by the lawmakers as used while drafting laws for women and differently-abled individuals. It reflects the understanding of the drafters from a privileged position and their understanding of the position of these individuals relative their own. Thus, the ‘affirmative action’ approach seeks to help those considered less privileged than them. This includes reservation of quotas, representation in public, priority treatment in education and health matters, etc.

[10] This increased to 7 when in 1976 Mr. H.M Andrews, an elective on Minority Seat passed away and his wife, Mrs. Najma Andrews became a member after the by-election. She did not contribute to the drafting of the Constitution. See: http://www.na.gov.pk/en/content.php?id=121.

[11] 138 General Seats, 6 reserved seats for women and 6 reserved seats for minorities. See: http://www.na.gov.pk/en/content.php?id=121.

[12] The same ‘affirmative action’ reserved seat approach is applied today. Women are members of the National Assembly and the Provincial Assemblies on reserved quotas.

[13] It can be argued that after the 2009 Supreme Court decision it will include references to transgender individuals as well.

[14] Constitutional Petition No. 43 of 2009.

[15] 2018 PLD 300