The Condition Of Elderly Persons And Their Right Of Care And Maintenance In Pakistan
The American Psychological Association (APA) reports that every year, an estimated 4 million elder Americans are victims of physical, psychological or other forms of abuse and neglect. These statistics may not tell the whole story. For every case of elder abuse and neglect reported to authorities, experts estimate as many as 23 cases going undetected. The quality of life of older individuals who experience abuse is severely jeopardized, as they often experience worsened functional and financial status and progressive dependency, poor self-rated health, feelings of helplessness and loneliness and increased psychological distress. The APA Research also suggests that older people who have been abused tend to die earlier than those who have not, even in the absence of chronic conditions or life-threatening disease.
The story in our society is not much different. Rather, due to the prevalence of a higher level of poverty, the situation here is graver than in most Western nations. Our elderly are pretty much hopeless and helpless. We don’t consider care and maintenance of the elderly to be our legal duty. We just consider it a moral or religious duty and hence not enforceable by law. Anyhow, this is nothing else than our ignorance form our own law. The concept of social security, although introduced by the second Caliph Umar (RA), has been developed and practised by Western nations. The Muslim countries, including Pakistan, have failed to develop a state system of social security and welfare even in today’s modern era. We are still relying on the traditional family system of social welfare for our elderly persons.
Elderly care, or simply eldercare (also known as aged care in parts of the English speaking world), is the fulfillment of the special needs and requirements that are unique to senior citizens. This broad term encompasses such services as assisted living, adult day care, long term care, nursing homes (often referred to as residential care), hospice care, and home care. Since there is a wide variety of elderly care found nationally, as well as differentiating cultural perspectives on elderly citizens, eldercare cannot to be limited to any one practice. For example, many countries in Asia use government-established elderly care quite infrequently, preferring the traditional methods of being cared for by younger generations of family members.
Work is in progress in the province of Punjab to table a Bill for maintenance and maintenance allowances of the elderly. The details of this Bill are yet to be finalized and made public. Anyhow we have to see whether this right is dependent on the passing of legislation or whether this right is already available to the elderly in Pakistan.
Rights are the phenomena of the civilized world where people accept corresponding duties. Rights are recognized within the boundaries and jurisdiction of a state and even outside them. But civilized and definite enforcement of such rights is possible within the boundaries of state only, while beyond boundaries and jurisdictions of states such rights remain dependent on just morality.
In Pakistan the basic framework of Pakistani laws is British common law as inherited by us after Independence. Pakistan was finally partitioned from the rest of India on the basis of religion and to experience principles of the Islamic justice system in light of the wishes of the majority of founders of Pakistan, so with the passage of time it has been developing Islamic principles of justice, so much so that now under Article 2 of the Constitution of Islamic Republic of Pakistan 1973, no law shall be made against the injunctions of Islam.
In a case titled Haji Rana Muhammad Shabbir Ahmad Khan vs. Federation of Pakistan [cited as PLD 2001 SC 18] it has been held that,
“After addition of Article 2A in the Constitution, the Holy Qur’an and Sunnah have become the supreme law of Pakistan and the courts are obliged to enforce the existing laws with such adaptations as are necessary in the light of Holy Qur’an and Sunnah to uphold the holy provisions thereof.”
With this scenario we can say that for the determination of any of the rights, duties, responsibilities or obligations of citizens of Pakistan or anyone living in Pakistan, or to see the limits or scope of rights, duties, responsibilities or obligations, we have to look into Islamic principles of law and jurisprudence. We can conclude that our substantive law is to be based on Islamic principle of jurisprudence and law as enshrined in the Quran and Sunnah and as explained and developed through authoritative and persuasive rulings or decisions. In this sense, even Islamic law recognizes the principle of stare decisis.
The Holy Quran ordains respect of the elderly in the following terms:
- “…and don’t speak to them in a harsh manner…” (17:23).
- “…say to them beautiful, generous speech…” (17:23).
- “…give them optimistic phrases…” (17:28).
- “and make du’aa for them, “Oh Allah, have mercy on them as they raised me…” (17:24).
- “Worship none but Allah, and show ihsaan to your parents…” (2:83).
Prophet Muhammad (peace and blessings be upon him) was a pioneer in this field. He taught about caring for the elderly irrespective of sex, color or religion and he himself set a great example in practising the principles he taught. In this respect the following Ahadith can be referred to:
- “If a young man honors an elderly on account of his age, Allah appoints someone to honor him in his old age.” (Hadith in At-Tirmidhi)
- “He is not one of us who does not show mercy to our young ones and esteem to our elderly.” (Hadith in At-Tirmidhi)
- “It is out of reverence to Allah to respect the white-headed (aged) Muslim.” (Abu Dawud; ranked hasan by Al-Albani)
- A man once consulted Prophet Muhammad about taking part in a military campaign. The Prophet asked the man if his mother was still living. When told that she was alive, the Prophet said: “(Then) stay with her, for Paradise is at her feet.” (Hadith in Al-Tirmidhi)
D.F. Mulla in his book Muhammadan Law compiled the following:
- S.371. Maintenance of Parents: (1) Children in easy circumstances are bound to maintain their poor parents, although the latter may be able to earn something for themselves.
- (2) A son though in strained circumstances is bound to maintain his mother, if the mother is poor, though she may not be infirm.
- (3) A son, who though poor, is earning something, is bound to support his father who earns nothing.
- S.372. Maintenance of grandparents: A person is bound to maintenance of his paternal and maternal grandfathers and grandmothers if they are poor, but not otherwise, to the same extent as he is bound to maintain his poor father.
Another Islamic scholar, Jamila Hassain, in her book Islam; Its Law and Society (2011, third edition), at p. 115, concluded:
“According to Sunnah, the Prophet emphasized the necessity of respecting, obeying and caring for elderly parents, and gave preference to the rights of the mother, saying that paradise lay at the mother’s feet. The Prophet also spoke of obligations owed to grandparents, other elderly relatives and aged and infirm neighbors. Children, both sons and daughters, are under an obligation to contribute to the maintenance of their parents: the father when he is unable to maintain himself and the mother regardless of her ability to earn money for herself. If he children cannot maintain both parents, then according to some scholars the mother has priority; other say that available maintenance should be divided between mother and father. If the children cannot maintain the parents in a separate household, then they should make room for them in their own. The obligation to provide maintenance should be shared among the children according to their means. The same principles apply to needy grandparents and other more distant relatives, provided that there is not some other family member who has primary responsibility for their maintenance, and that the family member has sufficient means to support himself and his own family. These rules also apply in respect of relations who are not Muslims. No elderly person should be left to fend for himself or herself without the support of some family. If a person has no family at all, then the state must assist through the resources of the Baitulmaal (state treasury) or waqfs (charitable endowments).”
Even according to rational approach, the relationship demands acquiescence and performance of various duties and liabilities. Providing maintenance is one such duty which is attached to a husband or father. This is the concept of maintenance that is also commonly known to our society and to the courts in Pakistan. Who have the right to be maintained and who have duties to maintain – are questions the answers to which do not lie in learning who is entitled or obligated to these duties or rights, rather the answers to these questions are much easier and can be deduced from the observation of generalizations given in any legal system. In our case, we have ample examples to observe such generalizations in the Islamic legal system. These may be in the shape of duties of the rich towards reciprocal rights of the poor via tax, zakat or sadaqat; duties of fathers towards rights of their children; and duties of husbands towards their wives, etc. With these generalizations we can deduce and develop a principle or rule whereby “the one with power or means, owes a duty to maintain the weaker”. The elderly thus become the weaker in this case vis-a-vis the power of youth.
Unfortunately, our state, society and courts have not been able to understand and sensitize this right in its true sense. Thus, many of the “weaker” groups of our society are being ignored, neglected or even abused and denied their basic right of care and maintenance. At the top of this class are the elderly people of the society. They are suffering far more than the minors because the state, society and courts are totally ignoring and neglecting the enforcement of their rights. The state legislature has also left this matter to the sweet will and whim of the persons responsible for their maintenance. Poor parents, grandparents and other elderly relatives are unable to knock the doors of any forum in order to maintain the breaking threads of their lives. On one hand they are suffering from physical disabilities due to old age and on the other hand they are facing mental agony caused by carelessness of the state, society and courts. They are the most hopeless and helpless persons in our society and hence are in dire need of care and maintenance.
Due to such reasons, the right of these elderly people for maintenance cannot be left dependent on any fresh legislation. A child cannot deny maintaining his or her parents even under the present Pakistani law. Similarly courts are duty-bound to enforce this right in its letter and spirit. What is required is to sensitize and educate the society and courts for the enforcement of this prime right. Anyhow, for the purpose of recognition, sensitization and enforcement of this right, the importance of legislation cannot be denied. Various countries, including our neighbors India and Bangladesh, have legislated in this field with successful results. The state and courts must not leave this right to the mercy of morality. This is not merely a matter of morality, because the state, society and courts are themselves outcomes of the hard work of these elderly people who made this system available to us. They made these institutions grow in their present form so these intuitions owe prime duty to pay for their jobs and remunerate for duties performed. We ought to add value to this system so that we may not become so hopeless and helpless in our old age too.
—–
Bibliography and References:
- The Holy Quran.
- Books of the Hadiths; Tirmdhi and Abu Dawud.
- The constitution of Islamic Republic of Pakistan, 1973.
- Muhammadan Law, by Mulla.
- Islam: Its Law and Society, by Jamila Hussain.
- Case law titled as “Haji Rana Muhammad Shabbir Ahmad Khan vs. Federation of Pakistan”, cited as PLD 2001 S.C. 18.
- Wikipedia, retrieved on July 17, 2016, from, https://en.wikipedia.org/wiki/Elderly_care
- APA, retrieved on July 17, 2016 from, http://www.apa.org/pi/aging/resources/guides/elder-abuse.aspx
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.
