Asif Mahmood
Regardless of how much weight there is in criticism of the transgender Act, the question is: Is this the proper way to legislate ?
One of the most disturbing problems, our society is grappled with, is that whenever a problem arises, our scholars immediately turn to the front on the basis of nihilism. Those with religious leanings will side with the religious class and those with secular views will throw their weight into the fold of the secular narrative. This alignment actually holds the society hostage. The result is that the tendency to understand the issue with reason and form an opinion on it is shrinking.
I have deliberately refrained from giving any opinion on transgender law. The truth is that the position of each of the two groups admits the possibility of both error and soundness. The text of this law is now under discussion. Soon, it will be revealed along with the merits and demerits of its rate. Until then, let’s consider some other questions instead of the text. These questions are related to commonality. That is, these questions are related to the issues that have the status of consensus in the form of constitutional arrangement.
The first question is: Does the Transgender Act comply with the legislative norms that are generally accepted in parliamentary history around the world? Remember that we are not talking about the text here, only the procedure is being discussed.
When this law was presented in the Senate during the PML-G government, the term of many senators was ending on that day. It was teir last day in the Upper House. Is it a good parliamentary tradition to introduce a bill in haste on such an occasion and is this the etiquette of legislation?
The second question is related to paragraph number two of the reply filed by the Ministry of Human Rights in the Federal Shariat Court later in the Imran government, where it was written that before the implementation of this law, we consulted widely with the various institutions. They included the Islamic Ideological Council. The question is, did the Islamic Ideological Council agree with this law? If there was an agreement, any proof of it? Any statement , any press release, any announcement, anything? Why it was not clarified? Was this ambiguity in the response of the Ministry of Human Rights accidental or deliberate?
The third question is also related to the same answer of the Ministry of Human Rights of the Imran government. In paragraph number seven, the government referred to the Yogyakarta Principles. The question is : what is the relationship between the principles of Yogyakarta and the Ministry of Pakistan? Was the Imran government bound to follow the principles of ‘YogyaCarta’? Has Pakistan ever accepted any such responsibility that the laws of its country will be subject to ‘YogyaCarta’? This question is also important because Yogyakarta clearly recognizes the right to homosexuality, while it is a crime in Pakistani law. The Imran government’s reference to this Yogya Carta in the Federal Shariah Court stirs many crunch questions.
The fourth question is that if an international regulation has not been recognized by your country, and that regulation is in conflict with your constitution, then your constitution will prevail in this country or this regulation? They do not have status in any country until they are accepted or accepted as universal principles or customary international law. How was Yogyacarta referred to in the court of Pakistan and what was the actual intention behind doing so.
The fifth question is more intriguing. this position of the Imran government has not been withdrawn from the court yet, so should it be considered as the position of the PDM government as well?
In a semi-literate society where the standard of literacy is simply writing one’s name, the principle is that ignorance is no excuse from the law. This principle is understandable in the common law, because the common law of Great Britain means that the laws which were ‘common’ in the court of the kings of ancient England were called common . But how many parliamentarians are there in Pakistan who have the ability to understand the draft law prepared in English? . The sixth question seemed to be that why this whole exercise of disagreement and agreement does not happen and why is it not allowed to happen when the law is being made?
The seventh question is : Why the English draft is often different from the Urdu draft at the time of such legislation in Parliament. The same is the case with the transgender law. So now some members of parliament are complaining that the draft that was given to us is different from the one that was passed into law. Will the Speaker of the National Assembly and the Chairman of the Senate explain whether this was an accident or an arrangement?
The eighth question is related to this unusual consensus of PML-N and PTI. PML-N introduces a law and Tehreek-e-Insaf defends it. Let’s celebrate, at least there is a point on which PML-N and Tehreek-e-Nisaaf agreed.