Farhatullah Babar challenges FSC’s verdict against Transgender Act 2018

ISLAMABAD: Former Senator Farhatullah Babar on Monday challenged the verdict of the Federal Shariat Court that struck down the Transgender (Protection of Rights) Act 2018.

The civil appeal filed before the Shariat Appellate Bench of the Supreme Court of Pakistan by Farhatullah Babar and Sherkan Malik through Supreme Court Advocate Khwaja Ahmad Hosain who is also representing Farhatullah Babar in the Supreme Court in another case involving the internment centres in Pakhtunkhwa province.

The appeal contends that the Shariat Court verdict is “discriminatory, illogical, unlawful, unconstitutional and not founded on any sound legal or religious reasoning and is beyond the jurisdiction vested in the Shariat Court by the Constitution”.

The verdict is based on apprehensions instead of the provisions of the law and does not identify which injunction of Islam and which verse of the Holy Quran had been violated, it says.

The Shariat Court verdict is more in the nature of a lecture on morality rather than a decision based on the court’s jurisdiction, Farhatullah Babar, who is also president of the human rights cell of the Pakistan People’s Party, contended. He said that the verdict under challenge failed to appreciate that God created all humans, including transgender persons who were entitled to certain rights inherent to all by virtue of being part of larger humanity.

He said the verdict was contradictory in that while it recognised certain categories of genders other than male or female, yet made findings based only on two categories of genders, namely males and females.

He said that ignoring the plight of the transgender community is equal to ignoring some of the most fundamental tenets of Islam and “the failure to acknowledge transgender persons’ right to exist leaves a legal black hole”.

If the gender identity of transgender persons is not affirmed by the laws of the state, they cannot be granted any further rights of protection from discrimination, of protection from harassment, he added.

The appeal urges the Supreme Court to set aside the Shariat Court’s verdict in its entirety as unlawful and unconstitutional and also to declare the Transgender (Protection of Rights) Act 2018 as a valid piece of legislation in their entirety.

The former senator contended that he participated in the parliamentary process and debates resulting in adoption of the Transgender Persons (Protection of Rights) Act 2018 and was also a member of the Task Force on Transgender set up by the Honorable Wafaqi Mohtasib.

He said that he felt impelled to clarify and give answers to all objections raised against it and defend the 2018 Act struck down by the Shariat Court.

Later, talking to media, Farhatullah Babar said that under Article 203 (2) (b) of the Constitution, no decision of the Shariat Court “shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal”. He said that under the law, the government had six months to file appeal against Shariat Court’s verdict but private petitioners only had two months to do so.

He said he hoped that the government will also file appeal but thought it was necessary that he filed his appeal within the stipulated two months time period.