Article 2: Islam to be state religion

Constitution Series – I

Discussion on important Articles of the Constitution of Pakistan, 1973 as amended (“Constitution”)

Topic for Discussion:

Article 2: Islam to be state religion.

I. History:

It is interesting to note that the Article under discussion was not part of the Constitution at the time of partition when the constitution of India was tweaked to form the constitution of the newly founded Pakistan. There were references, however, to Islam and the importance thereof, stemming from the Two Nation Theory and the use of Islam as a catalyst to achieve partition of India. It is noteworthy that Jinnah, an eloquent and competent lawyer, did not attempt at even a basic draft of the constitution of the newly founded state, nor firmly set the ground of a secular or Islamic state.

We are all very aware of his oft-quoted speech to the first Constituent Assembly on 11 August 1947. He is quoted to have said:

“You are free; you are free to go to your temples, you are free to go to your mosques or to any other place of worship in this state of Pakistan. You may belong to any religion or caste or creed, that has nothing to do with the business of the state. … We are starting with this fundamental principle that we are all citizens, and equal citizens, of one state.”

It appears that the state Jinnah envisaged seemed to be one where “religion” would have “nothing to do with the business of the state”. Though, contrarily, Jinnah never confirmed the involvement or non-involvement of religion in the affairs of the state; whether this was due to lack of foresight or an attempt to recognize the sacrifice of the muslim majority pouring into Pakistan from India, is a matter for academics to debate and beyond the scope of this discussion.

An interesting anecdote in this regard was recalled by Mr. Yasser Latif Hamdani in his article titled “Religion under our constitution” in the Daily Times, 1 November 2014:

“As a member of the Viceroy’s Council, Jinnah, the founding father of this country, had argued in favour of the bill to allow members of different communities to marry each other without compulsorily renouncing their links with their parent community. When a law member of the council objected on the grounds that this would be un-Islamic, Jinnah opined that as a matter of policy the legislature had the right to overrule religious and customary laws where necessary or where it is a matter of public policy.”

The topic, and recognition, of Islam as a state religion, did not enter the houses of parliament up until 1962. Further along, the separation of Bangladesh sparked the debate around religion with an increased fervor. Muslim brothers had separated from Muslim brothers. The ideology that a separate state needs to be created for the Muslims came under threat. There was a separate state created, why could the Muslim brothers not live peacefully in it? The fragility of internal institutions and the involvement of outside forces is a matter of constant debate but the ideology, nevertheless, took the hit. The 1973 Constitution, as it stands today, appeared to be the carrot that the then Bhutto-led government had to hand over to the religious parties, eager to be part of the state salad. With the appropriate amendments, the 1973 Constitution included, in letter, the involvement of the religion in the state but retained its state-supreme abilities such as: (i) the laws would be made by the parliament and the parliament would be elected by the general will of the citizens of Pakistan, all citizens, irrespective of “religion, creed and caste”; (ii) the interpreters of such laws would be the Supreme Court of Pakistan and not a religious body; and (iii) the freedom to practice religion, any religion, as a citizen of Pakistan. Theory is, however, very different from practice.

II. Implications of Article 2

Article 2 appears in the introductory part of the Constitution, distinguishable from the next part on “Fundamental Rights”. It may be argued that Article 2 is a direction to the Constitution and how the citizens of Pakistan are encouraged (not forced) to live their lives. They are basic principles on good values instead of an enforcement of a way of life.

The jurisprudence of the courts, in this regard, from 1970 onwards, show a general trend of the environment of the country. The judgments range from discussing it as a way of life or an emphasis on the principles of natural justice to a harsher and stricter implementation of the same.

Today, the legal mechanism of the country is prepared to instantaneously recognize a law abhorrent to Article 2 and strike it down. Article 227 of the Constitution, read with Article 228 of the Constitution, provide, unequivocally that “all existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah” and “no law shall be enacted which is repugnant to such injunctions”. Moreover, Article 228 constituted the Islamic Council whose functions involve making recommendations and advising the parliamentary bodies, the assemblies, governors and the President on how to bring the laws within the injunctions of Islam.

Additionally, the injunctions of Islam are preserved in various other important laws as well, such as inter alia, in the criminality of alcohol and blasphemy laws, marriage, family and custody laws, inheritance laws, property laws, etc.

Due to Article 40 of the Constitution, the foreign affairs of Pakistan are also affected by the injunctions of Islam, in that, the state shall “shall endeavour to preserve and strengthen fraternal relations among Muslim countries based on Islamic unity, support the common interests of the peoples of Asia, Africa and Latin America, promote international peace and security, foster goodwill and friendly relations among all nations and encourage the settlement of international disputes by peaceful means.”

Arguably, the controversial Article 62 and 63, also find their basis in the Islamic influence of the Constitution.

With the inclusion of the Objectives Resolution in the Constitution vide Article 2A, the principles of Islam were reinforced as an essential, albeit introductory, component of the Constitution. Certain resolutions are stated herein below to give a synopsis of what the annexure entails:

“Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust;

…. Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed;

Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah…”

III. Courts interpretation of Article 2 of the Constitution

  1. The trends of the jurisprudence of the courts have remained fluid in the discussion of Article 2 of the Constitution, a few examples are provided to understand the variety of views of the courts:

(1) In PLD 1976 Lahore 930, the courts held that the courts could enforce only basic judicial principles and concepts of Islam where permissible by the Constitution but the entire way of life as envisaged by Islam cannot be enforced by the courts;

(2) In PLD 1983 Supreme Court 457, the courts held that the injunctions of Islam were only used as emphasis of the principles of natural justice and used as the principle of “due process” is used in the American Constitution. Article 2 was not a fundamental right as it only embodies the rule of law and cannot be used to invalidate a law but only to invalidate an action which does not have the sanction of law.

The Supreme Court in this case further held that Article 2 was not at par with Article 6 in so far as it places limitation on power of legislature to legislate so as to deprive a person of his life, liberty and property.

(3) In 1997 MLD 229 (Lahore), the Lahore High Court held that this Article being a substantive part of the Constitution, certainly has meaning, purpose and practical utility and “is singularly different from an empty slogan”. The purpose is to declare unequivocally that in the State of Pakistan, the Islamic way of life shall be following and that it shall be governing in accordance with the Islamic Sharia.

(4) The Lahore High Court in 1997 PCRLJ 1437 Lahore seemed to equate it with the general good principles of life and held that laws that promote immorality and vices are neither valid nor permissible.

(5) The Supreme Court, in PLD 1998 Supreme Court 388, held that Articles 2, 2A and 227 of the Constitution have given Islamic character to the Constitution by fully securing the independence of the judiciary and by providing that all existing laws should be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah.

  1. The superior courts have remained fluid in their discussion of Article 2 and have either held that Article 2 merely introduces a good way of life or, conversely that it is the controlling provision for all the laws of the land. A study of the laws of the land suggests that in certain matters such as family, inheritance, marriage, custody, murder, rape (and other criminal provisions), the injunctions of Islam are supreme with limited involvement of the legislators. There have also been times in the history of Pakistan where the Islamic provisions of the Constitution have been held as the justification for certain diplomatic and foreign relations. In any case, a purview of history suggests that the involvement of religion is a marked diversion of the supposed (and contested) secular notion of the newly founded state in 1947; there are many academics who suggest that the involvement of religion was foreseen if not deliberately included in the affairs of the state.

With the recent, uncontested, dismissal of Dr. Atif Mian, it seems that the influence of religion is rooted in the internal workings of the state wherein even an outspoken, and valiant attempt by a democratically elected government could not sustain the pressure and had to succumb to it.

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Whistleblower Protection in Pakistan

A whistleblower is a person who raises concern or awareness about a wrongdoing in their workplace, either state or private. 

In the recent years, with the testimonies of Edward Snowden (an American computer professional, former CIA and US Government employee who copied classified information from the United States National Security Agency (the “NSA”) in 2013 without prior authorization. This information revealed numerous global surveillance progams and brought the issue of privacy, security and surveillance to global discussion), Julian Assange (the founder of Wikileaks that publishes secret information, news leaks, and classified media from anonymous sources), and Bradley Manning (a US army officer who disclosed information to Wikileaks), whistleblowing has become a much discussed topic receiving equal amounts of support and opposition.

Whistleblowing, however, has been practiced for centuries. From the Ramayana, where Vibhishan, younger brother of the King of Lanka, Ravana, informs Ram about the whereabouts of Sita, the consort of Ram, to the Watergate scandal that toppled the presidency of Richard Nixon on the information provided by a secret informant known as Deep Throat (revealed in 2005 as Mark Felt). Whistleblowing has grave consequences for the accused and the accuser. The whistleblower, though seemingly working for the greater good, is oft seen as dangerous and misguided (e.g. why did he have to make the information public, why didn’t he use the correct mechanisms) and forced to live either in hiding, never revealing his identity, or in exile.

In Pakistan, there is no specific legislation on whistleblower protection on a Federal level. Within the provinces, only Khyber Pakhtunkhwa, vide the Khyber Pakhtunkhwa Right to Information Act, 2013 (the “KPK 2013 Act”), provisions for the protection of whistleblowers (Section 30). Section 30 of the KPK 2013 Act provides for protection of whistleblowers as follows:

30. Whistleblowers.—(1) No one may be subject to any legal, administrative or employment related sanction, regardless of any breach of a legal or employment obligation, for releasing information on wrongdoing, or which would disclose a serious threat to health, safety or the environment, as long as they acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing or a serious threat to health, safety or the environment.

(2) For purposes of sub-section (1), wrongdoing includes the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or serious maladministration regarding a public body.

The other provinces also have similar acts: Punjab has the Right to Information Act, 2013; Balochistan has enacted the Freedom of Information Act, 2005; and Sindh has enacted the Sindh Freedom of Information Act, 2006 (collectively referred to as the “Acts”). However, there is no provision in the Acts which is analogous to Section 30 of the KPK 2013 Act or provides for protection of whistleblowers.

The fate of whistleblowers is, therefore, left to the jurors deciding each case upon its facts. The following factors act as a deterrent against whistleblowing:

  1. Red-tapism; no outcome of the complaint made using the correct procedures, if any, available.
  2. Defences, such as national security, interest of the state, and confidentiality obligations, argued, usually successfully, by the accused.
  3. No procedure for the protection of the identity of the whistleblower.

The Eighteenth Amendment to the Constitution of Pakistan, 1973, with the insertion of Article 19A, allowed citizens the right to have access to information in all matters of public importance. The Eighteenth Amendment was an attempt to bring information “in all matters of public importance” to the public sphere. Public bodies, officials, institutions were now required to record, store and be accountable for the information used and processed by them. Unfortunately, the Eighteenth Amendment was qualified with the proviso “subject to regulation and reasonable restrictions imposed by law” that resulted in curtailing the rights of citizens. The proviso provided an opening for the holders of information to restrict access. The only remedy available to citizens seeking information under Article 19A is challenging any refusal in the courts which include the usual issues with court proceedings, i.e. years of litigation, costs, waste of time, etc.

The text of Article 19A is as follows:

19A. Right to information.−Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

The Resignation of the Prime Minister under the Constitution and Long March Politics

26 August 2014

The following note is a brief memorandum on Article 95 of the, oft-ignored, foundation document of Pakistan, the Constitution of Pakistan, 1973 (the “Constitution”), long march politics and relevant examples from India.

A. The Constitution

(1) Article 95 of the Constitution provides as follows:

  1. Vote of no-confidence against Prime Minister.− (1) A resolution for a vote of no-confidence moved by not less than twenty per centum of the total membership of the National Assembly may be passed against the Prime Minister by the National Assembly.

(2) A resolution referred to in clause (1) shall not be voted upon before the expiration of three days, or later than seven days, from the day on which such resolution is moved in the National Assembly.

(3) A resolution referred to in clause (1) shall not be moved in the National Assembly while the National Assembly is considering demands for grants submitted to it in the Annual Budget Statement.

(4) If the resolution referred to in clause (1) is passed by a majority of the total membership of the National Assembly, the Prime Minister shall cease to hold office.

Article 95 provides the democratic procedure to remove the Prime Minister from his office if he loses confidence of the majority of the members of the National Assembly. In this respect a resolution for a vote of no-confidence is moved by not less than twenty percent (20%) of the total membership of the National Assembly. If the resolution is passed by majority of the total membership of the National Assembly, the Prime Minister immediately relinquished powers.

B. The History of Long Marches to Oust the Government in Pakistan

In Pakistan, “long march politics” has been witnessed during the regimes of elected governments since 1990. These have basically been exercised to bring about regime change, with the help of the army.

(1) 1992 – Benazir Bhutto formed the National Democratic Alliance and marched towards Islamabad from Lahore, against the government of Nawaz Sharif. The long march failed due to the lack of preparation from Bhutto and support from the then Chief of Army Staff (“COAS”), General Asif Nawaz.

(2) 1993 – Bhutto planned another long march against the Sharif Government. This time, more prepared, and with the support of COAS, managed to achieve the abdication of the President and the Prime Minister and elections within ninety (90) days.

(3) 1996 – Sharif became Prime Minister after the dismissal of Bhutto’s Government by President Sardar Farooq Ahmed. Bhutto formed the Grand Democratic Alliance in 1998 and initiated the long march with the support of the then COAS, General Pervez Musharraf and the United States government.

(4) 2009 – Sharif joined the hype of the Lawyers Movement and led a long march from Lahore to Islamabad for the restoration of the judiciary and the resignation of the government. The COAS, General Ashfaq Kayani however, asked him to call off the march before he had reached Islamabad, confirming that his demands had been met.

C. Examples under Indian Jurisprudence:

1. In 1971, after a re-election victory over the opposition, Indira Gandhi became the fourth Prime Minister of India. However, during the next few years she presided over increasing civil unrest brought on by food shortages, inflation, and regional disputes. Moreover, the Socialist Party hailed charges that she had defrauded the 1971 election leading to a national scandal. In 1974, the Allahabad High Court convicted her of a minor election infraction and banned her from politics for six (6) years. She, instead, refused to resign and declared a state of emergency, which allowed her to arrest dissenters, censor the press, restrict various personal freedoms, and rewrite India’s Constitution.

In 1977, long-postponed national elections were held, and Gandhi and her party were voted out of office by a clear majority. The next year, Gandhi’s supporters broke from the Congress Party and formed the Congress (I) Party, with the “I” standing for “Indira.” Later in 1978, she was briefly imprisoned for official corruption. In 1979, divisions with the ruling Janata Party led to the collapse of its government. New elections were held in January 1980, and the Congress (I) Party, with Indira as its head, won back the lower Indian parliament in a stunning reversal of its political fortunes. Gandhi again became prime minister. The legal cases against her were subsequently dismissed.

2. Important points to consider:

(1) Gandhi was voted into power by a clear majority in 1975;

(2) Due to flawed governance and a strong opposition, she was tried and convicted for electoral fraud by the Allahabad High Court and banned from politics for six (6) years;

(3) She refused to resign and instead declared a state of emergency which allowed her to control to affairs of the State and amend the Constitution;

(4) She was eventually voted out in the next elections, in 1977;

(5) With the collapse of the government in 1979, and the elections in 1980, her party won back the lower parliament with Gandhi as its head.

Corruption, including electoral fraud, was alleged in India against a Prime Minister who refused to resign. As no further action was permissible and/or effective under the laws of the country, she was able to refuse resignation, declare a state of emergency and mould the State to her favour. She was eventually voted out of office in 1977.

3. On 5 April 2011, Anna Hazare began his hunger strike at Jantar Mantar in Delhi as a reaction to the rejection by Prime Minister Manmohan Singh of his request for the formation of a joint committee comprising government and civil society representatives. Hazare had wanted the committee to draft an anti-corruption bill containing stronger punishments and giving more independence to the Ombudsmen in the States). He said that he would continue the fast until the bill was passed and attracted considerable support, including about one hundred and fifty (150) people who joined him in fasting. No politicians were allowed to join in the fasting.

Protests spread to Bangalore, Mumbai, Chennai, Ahmedabad, Guwahati, Shillong, Aizawl and a number of other cities in India. There were also gatherings in solidarity around the world, including Washington, London, Glasgow, Los Angeles, New Jersey, Paris and Houston.

The Government responded as follows:

(1) The resignation on 6 April of Agriculture Minister, Sharad Pawar from the group of ministers that had been charged with reviewing the draft bill.

(2) The realization of the demands by the Government on 8 April. The Government stated that it would table the bill in Parliament in the upcoming session.

(3) The government’s agreement to have an equal distribution of the Government appointed officials and the members of the civil society on 9 April.

(4) On 13 May, Prime Minister Singh stated that the Indian Government had completed the ratification of the UN Convention against Corruption.

The bill however, being week initiated another wave of Hazare’s “Infinate Fast” protests. On 1 August 2011, public interest litigation was filed in the Supreme Court of India by Hemant Patil, a social worker and businessman, to restrain Hazare, alleging that Hazare’s demands were unconstitutional and amounted to interference in the legislative process.

On 16 August 2011, Hazare was arrested four (4) hours before the planned hunger strike. After four (4) hours in detention he was released unconditionally on a request by the police, but refused to leave Tihar Jail where he demanded unconditional permission to fast at Ramlila Maidan. Hazare continued his fast inside the jail and continued to receive support from people across the country. His fast continued until he was hospitalized for weight loss and dehydration.

His supporters started the campaign known as “I am Anna Hazare”, with his cap (topi) becoming a sign of resistance and to be displayed whenever someone asked for a bribe.

In 2011, Hazare demanded an amendment to the electoral law to incorporate the option of “none of the above” in the electronic voting machines during the Indian elections. The “none of the above (“NOTA”)” is a ballot option that allows an electorate to indicate disapproval of all of the candidates in an electoral system, in case of non-availability of any candidate of his choice, as his right to reject. The Chief Election Commissioner of India, Shahabuddin Yaqoob Quraishi supported Hazare’s demand for the electoral reforms.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

Human Rights under the Constitution of Pakistan

4 January 2014

Human Rights in Pakistan have come a long way. When the National Assembly of Pakistan undertook the drafting of the Constitution in the early 1970’s, it was inevitable that it could not be oblivious to the international trends towards strengthening Rule of Law in domestic regimes. Influenced by these developments, at the regional and international level and, undoubtedly, by national experiences, the 1973 Constitution made a commendable commitment to the declaration and protection of a broad range of fundamental rights covering the right to life, safeguards against arrest and deletion, right to dignity, freedom of movement, freedom of association and assembly, freedom of trade, business, or profession, freedom of speech and freedom to profess religion, and the right to acquire, hold and dispose of property. Equality of citizens and provisions on non-discrimination are also included in the Fundamental Rights.

For this post, we will briefly evaluate the right of Freedom of Information in light of the provisions of the Constitution of Pakistan.

Freedom of Information and the Constitution of Pakistan

Article 19A was inserted in the Constitution of Pakistan, 1973 (the “Constitution”) by Section 7 of the Constitution (Eighteenth Amendment) Act, 2010:

7. Insertion of new Article in the Constitution:

In the Constitution, after Article 19, the following new Article shall be inserted, namely:

“19A. Right to information:

Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.”

Similarly, the Eighteenth Amendment also added Article 10A on the right to a fair trial and due process:

10A. Right to fair trial.—For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.

Article 19A confers on all citizens a right to have access to information in all matters of public importance, subject, however, first to regulations and secondly to reasonable restrictions by law.

This right would be essential for a fair trial and due process guaranteed by Article 10A. Non-framing of the regulations cannot have the effect of rendering the right under Article 19A as nugatory. Therefore, even if no regulations are framed, this right is available to all the citizens. In the absence of regulations and in the absence of restrictions, the court is required to determine whether a request for information in a particular case or a denial of information in a particular case is reasonable or with lawful authority or not. But the Article also provides that it must be in “matters of public importance”. Accordingly, it must be a matter in which the public at large or at least a substantial section of population is interested (see, Muhammad Masood Butt vs. S.M. Corporation (Pvt.) Limited, PLD 2011 Karachi 177).

Acknowledgment: The above is part of the research conducted for the Paper presented at the First Asia Pacific International Colloquium on Environmental Rule of Law organized by the United Nations Environmental Programme (UNEP), and held in  Kuala Lumpur, Malaysia, on  11-12 December 2013 by Dr. Parvez Hassan (B.A. (Punjab), LL.B. (Punjab), LL.M. (Yale), S.J.D. (Harvard), Senior Advocate, Supreme Court of Pakistan, Senior Partner, Hassan & Hassan (Advocates), Lahore, and President, Pakistan Environmental Law Association)

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Myra Khan Qureshi is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

How to use www.pakistanlawsite.com

3 January 2014

New entrants in the field of law often find themselves struggling with basic research tools. For the internet raised generation, http://www.pakistanlawsite.com (the “Law Site”) provides an easy, efficient and comprehensive first step to researching law, precedents, judgments, commentaries, articles etc.

Usually law firms and lawyers maintain an account with the Law Site (much like an email account) by making periodic payments for the permission to use the same.

To subscribe for a new account, you have to register on the website.
The details, payment terms and terms and conditions are provided on: http://www.pakistanlawsite.com/RegistrationHelp.asp

If there is already an account maintained then the user may insert the “username” and “password” and tick the box next to “I accept the terms and conditions” on the homepage to login to the website.

Once logged in, the left side of the Law Site offers “Case law Search”, “Advance Search”, “Statute Search”, “Courtwise Search”, “Citation Search” and “Article Search”.

1. Case Law Search
To search the relevant case law on a matter, click the tab “Case law Search” and insert the matter that you require case law on. For example, insert “ultra vires” in the search box and click enter.

The search engine will provide all those cases/judgments that have mentioned “ultra vires” in the document. To get an idea of the judgment read the “Case Notes”, however, it is standard and good practice to read the complete judgment before providing reference to the same.

If you know the particular Section of an Act/Ordinance or Rules or Regulations (the “Statute”), you may access the Statute and click on “Cases” under the relevant Section.

Access to Statutes is provided below.

2. To search for a Statute, click the tab “Statute Search”. The Statutes (Acts, Ordinances, Rules and Regulations) are provided alphabetically. However, if you are unsure about the name, you may search the statute by inserting the year in the search bar.

An easier way is however to type out the statute name (or as much as you know of it i.e. Contract Act Pakistan) in http://www.google.com and find out the correct/complete name of the same including the year. It is then easier to find it alphabetically on the Law Site.

Google also generally has the popular statutes however, the completeness and the authenticity of the same can not be verified. It is often safer to rely on the Law Site.

3. If you are aware of the citation of the case (i.e. PLD 2003 Karachi 1) then you may access the case notes of the judgment in “Citation Search”.

For beginners, the above three (3) provide the easiest and most effective research ability online.

Be sure to always confirm whether a judgment or statute is still valid and always provide the citation of the same.

Good luck!

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Myra Khan Qureshi is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com