|Sindh High Court|
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We are one step closer to having maternal health recognised as an inalienable right in the Constitution. The Sindh High Court recently ordered the government to make good on its commitment to set up four fully functioning obstetric fistula repair centres in the province, in response to a petition pending since 2015.
The positive outcomes from this case show how the judiciary can provide space for civil society to monitor the government and hold it accountable on its promises. In an interim order in 2015, the court ordered the formation of a committee comprising government officials and public health professionals to develop a plan to implement policies for the prevention and treatment of obstetric fistula. In effect, the court put into place a three-way partnership — government, judiciary and civil society — to fix the problem of obstetric fistula.
The fruits of this advocacy strategy are already under way. The Sindh government has begun the process of establishing four fistula repair centres and training doctors to perform fistula repair surgery. The health department has disbursed half of the Rs11.76 million funding allocated for this purpose, and the Sindh government has begun to recruit gynaecologists to staff the centres in Hyderabad, Nawabshah, Sukkur and Larkana. As a result of the court orders, the government also produced crucial information regarding the gaps in its implementation of policies. For example, the government revealed that only 97 of the 147 sanctioned posts for gynaecologists in government hospitals in Sindh have been filled.
Obstetric fistulas are a preventable complication of prolonged obstructed labour, resulting in internal damage to a woman that renders her incontinent. Without surgical repair, she risks being ostracised in her own community and suffers enormous damage to her quality of life. Hundreds of women a year across Pakistan become victims of fistulas because they receive inadequate prenatal care and are denied effective emergency obstetric services. Although the federal and Sindh governments have adopted a number of policies to address reproductive health, including the 2005 National Framework on Maternal Newborn and Child Health, the implementation of these policies remains weak and inconsistent.
Public interest litigation filed in the Sindh High Court in 2015 argued this violates women’s right to life (Article 9) and the right to dignity (Article 14), both guaranteed under the Constitution. Petitioners included Kiran Sohail (a fistula survivor), Tehrik-e-Niswan (a performance group) and Dr Shershah Syed (a well-known gynaecologist and expert in fistula repair). Petitioners also argued that the failure to implement maternal health policies is a violation of the government’s international treaty obligations, including the Convention on the Elimination of all Forms of Discrimination Against Women and the International Covenant on Economic Social and Cultural Rights.
For over three years, lawyer Sara Malkani diligently pursued the petition, pushing stakeholders to support the process of taking the government to court for failing to honour its own policy commitments. The opportunity to use the court to ensure government accountability in this way is unfortunately underutilised. Readers are more familiar with court action in cases involving the government’s financial corruption instead, which inevitably have an air of political motivation about them, or cases where judges take suo motu notice of public interest matters that attract their attention.
In this case, however, experts and activists drove the fistula petition to push the Sindh government to act positively, ie to fulfil its own policy commitment and start implementing a programme that may have sat on the shelf indefinitely because it lacked political immediacy. This is an example of effective use of public interest litigation to enforce the fundamental rights of those who are among the most marginalised: low-income women of reproductive age.
This is what rights-based accountability should look like. The Sindh government should welcome this order because it empowers those public-sector stakeholders who care about women and health to renew their commitment. Reproductive health stakeholders and activists, too, will welcome this opportunity to support the government to do its job better.
The ultimate winners are women in Sindh. Perhaps the time is right to initiate a rights-based accountability process to benefit women across the other provinces of Pakistan, so that all Pakistani women can benefit. The ideal outcome of a case along these lines would be a judgement recognising that maternal/women’s health is an integral component of women’s human rights, thus enriching the rights discourse and application in the Pakistani context.
This article originally appeared as an op-ed at Dawn.com