March issue 2011

“There are already so many laws; why do we need new ones?” was one female politician’s response to enacting women-related legislation in the country. In January this year, in what was termed an ‘honour’ killing, a 21-year-old girl was electrocuted by her family because she wanted to marry of her own choice. So would murder charges alone be fitting for a crime of this nature? In any civilised state, the answer would be a resounding ‘no.’ But in the murky waters that are Pakistan’s legal canons, there are no absolute answers.

After a decades-long struggle for the rights of women, laws finally began to be enacted in the new millennium to reclaim the rights they had lost under the Hudood Ordinance. In 2004, some headway was made in this regard in the form of the Criminal Law (Amendment) Act, when the Criminal Procedure Code (CrPC) was amended to include ‘honour’ killings as a crime. But as evinced by events, often amendments are not enough. Even though the Criminal (Amendment) Act 2004 on ‘honour’ killings exists, it remains virtually ineffective. And given the ongoing and ever-increasing murders of this ilk, legislation criminalising killing in the name of ‘honour’ is imperative.

Similarly, while the amendments introduced to the CPrC through the efforts of Justice Fakhr-un-Nisa, Marvi Memon and Anoushey Rehman to criminalise acid attacks was a step in the right direction, they addressed only the crime. However, says Valerie Khan of the Acid Survivors Foundation (ASF), the legislation that has been drafted now goes beyond both the crime and punishment. “Burn care is extremely expensive,” she says, and so in addition to the punishment for the offence and a fine, the Bill includes making the perpetrator cover the expenses of treatment and rehabilitation of a victim.

The question is, in a country with corrupt law enforcers and a questionable justice system, how often are laws implemented — and how wide is their ambit? Says rights activist and professor, Dr Farzana Bari, “Laws do not mean the issues will go away, but at least one is forced to take notice of them.” Common wisdom holds that, at the very least, the existence of a law will act as a deterrent. Hina Jillani, a Supreme Court advocate, maintains that laws are an instrument of social change and even if inadequate, they should be used. “A law has a role if it is used. Its usage allows it to be developed through the courts, so it must be used as frequently as possible,” she says, citing the example of the Women’s Protection Act (WPA) 2006, which in her view is not complete reform, but is a step forward.

Studies reveal that the WPA brought substantive relief to women. Since its enactment, not a single woman has been charged with zina or made to languish in jail, as was the case prior to the law. Additionally, post the Act, several rape cases were reported and tried in court, and even though cases that were taken up by the media, like those of Mukhtaran Mai, Kainat Soomro and Naseema Lubano, are still ongoing, with the survivors awaiting justice, at least there is a glimmer of hope regarding the outcome. Furthermore, there are other instances where justice has actually been served. A case War Against Rape (WAR) Karachi was pursuing since December 2007, where a man raped his uncle’s wife, was concluded in December 2010 with the rapist sentenced to 10 years rigorous imprisonment and a fine of Rs 10,000. On an even faster track was another case: the attempted rape of a six-year-old girl that was reported in 2009 and was concluded in December 2010 with a sessions court sentencing the accused to 10 years rigorous imprisonment and a fine of Rs 50,000.

However, for all the good the law has done, it now lies in jeopardy. The Federal Shariat Court (FSC) verdict hangs over women’s heads like the proverbial sword of Damocles. The FSC, on December 22, 2010, declared that Sections 11, 25, 28 and 29 of the WPA were unconstitutional. It has directed the government to amend the laws and bring them in “conformity with the Quran,” and failure to do so by June 22, 2011, will make the cases that currently fall under these sections revert to the Hudood laws.

Photo: AFP

This would strike a devastating blow to the substantial progress that was made over the past few years. The government and other organisations have the right to file an appeal, and although, according to Dr Bari, it is the government that should go into appeal since it is the writ of the parliament that has been challenged, the government continues to procrastinate. However, Jillani, on behalf of the Women’s Action Forum (WAF), the Human Rights Commission Pakistan (HRCP) and Aurat Foundation has filed an appeal. This will, at least, prevent the verdict from becoming the law unchallenged.

The attempt to render women-related laws ineffective seems to have been part of a sustained campaign in Pakistan. The major grouse with the amendment for ‘honour’ killings is that while karo-kari, etc., are recognised as crimes under the Pakistan Penal Code (PPC), and are punishable, the offence is a compoundable one — i.e. in most cases, the family of a karo-kari victim is responsible for the killing, yet it is with them that the power to waive the punishment resides, rendering the law ineffectual.

Efforts are also currently underway to render the Domestic Violence Bill (DVB) ineffectual. The DVB seeks to provide protection to women and children who suffer domestic abuse in their homes at the hands of relatives/in-laws. If this legislation comes into effect, a woman whose husband has beaten her up cannot be told by a policeman: “Jaien bibi ghar jaien, yeh aap ke ghar ka muamlah hai” (Go home and deal with it, this is your personal problem). Instead, the husband can be prosecuted under law. However, an addition in the form of a clause “penalty for filing a false complaint” has been made to the DVB, which did not exist in the original draft of the document. This was also proposed for the Protection Against [Sexual] Harassment Act 2010 when it was under discussion, but fierce resistance managed to get the bill converted into law without the insertion of the clause.

The main concern and objections expressed with regards to both bills were of their possible misuse. Ironically, the same concern is glaringly absent vis-à-vis the Blasphemy Law, which has repeatedly been misused and caused the loss of several lives. Yet, it seems to be a major determining factor for a law that hasn’t even seen the light of day yet, and that certainly does not carry the death penalty. While the matter remains unresolved, jurists and activists alike surmise that what the insertion of this clause would do is deter a victim from coming forward, reporting the crime and seeking justice — which is the whole point of the legislation.

What is even more ironic than the concern about misuse of the DVB is the complexion of some of the biggest dissenters to women-friendly legislation. Says Jillani: “Institutions such as the Council of Islamic Ideology or the Federal Shariat Court, or for that matter, maulvis in parliament, are easily distinguishable. It is the conservative elements within mainstream, progressive/secular parties that are not, and a lot of resistance comes from there.” Both the Protection Against [Sexual] Harassment Act and the Domestic Violence Bill were unanimously passed in the National Assembly, but the hiccup came at the last stage — in the Senate, where the objections were raised.

Political appeasement also contributed to either stymieing altogether, or making an already slow and tedious legislative process even more so. Dr Bari says the PPP’s need to keep the JUI-F on board led to the stalling of the DVB, as the latter had raised objections to it, and that led to its lapse. Interestingly, after the withdrawal of the 18th Amendment, the DVB was turned over to the provincial legislatures, no longer remaining under the purview of the federal legislature — a development that has confounded many civil society organisations. Understandably so. How can a law on domestic violence not be applicable to the whole country? Jillani, however, advises: “Accept the changes and provincial autonomy, and move on and pursue [the issue] at the provincial level.”

This process has begun. In Sindh, the Home Department — with whom the Domestic Violence Bill surprisingly lies at the moment rather than the law department as one would imagine — has asked civil society organisations such as Aurat Foundation and the HRCP to present their recommendations.

Certainly, this is the right approach. Traditionally, civil society has been instrumental in the drafting and enactment of such legislation. It is due to the relentless effort and tireless work of organisations such as ASF, AASHA (Alliance Against Sexual Harassment), Aurat Foundation, HRCP and many others, on legislation, political engagement and lobbying with media and civil society that today even this much has been achieved. Another positive indication is the constitution of government-sponsored committees such as the National Commission on the Status of Women and the National Implementation Watch Committee, one headed by a former director of Aurat Foundation (see Interview: Anis Haroon), and the latter by the chairperson of AASHA (see Interview: Dr Fouzia Saeed). The commission and committee serve as unofficial intermediaries between the government and civil society — vital to push legislation through, since government bills carry the weight private bills do not.

The Protection Against [Sexual] Harassment Act, for example, was introduced as a government bill and thereby significant progress has been made since its enactment. The federal ombudsperson has been appointed. A code on gender justice has been adopted by government organisations and committees to hear complaints of harassment at the workplace and committees have been set up. As for the Acid Crime Bill, that currently lies with the Ministry of Law and Justice and Parliamentary Affairs, waiting to be vetted before proceeding to the cabinet. The Acid Control Bill, which deals with the monitoring and regulation of acid, is currently in the purview of the provincial ministries for industry and production.

All the positives notwithstanding, there is still a long, long way to go. While the struggle for the enactment of women-friendly legislation continues relentlessly, the war needs to fought be on several fronts, among them, educating and changing mindsets and lobbying with concerned individuals and the government.

Dr Bari reveals that on her visits to Adiala and Sargodha Jails for her research on the WPA, many policemen expressed their disapproval of the law contending that it “encouraged immorality.” Said one police constable, to bolster his anti-WPA stance: “Previously, women were put in jail. Now they are just killed because they can’t be sent to jail [on charges of zina].” And this mindset is not restricted to the police.

“I have judgments from the Lahore High Court (LHC) prohibiting marriage between consenting adult females and males,” says former senator and advocate, Iqbal Haider. “There was a case of a doctor who got married of her own free will, and the court said she could not do so. ‘Iss se berah rawi phele gi muashray mein. Muashra tabah hojai ga’ (If love marriages are sanctioned, waywardness will increase in society and destroy it). Their marriage was annulled and it was declared that without the consent of the head of the family, a marriage cannot take place. There is no justification for preventing an adult girl from marrying of her own free will. It has got nothing to do with Islam.” Haider took the case to the Supreme Court and had the LHC judgment set aside. Nonetheless, he maintains, “The fact is that there are certain judges who think like this and this [obscurantist] thinking has to be corrected. Our judiciary is still infected by the values promoted by General Zia-ul-Haq — not the entire judiciary, but some judges.”

And similar misogynistic attitudes are reflected in other sections of the judiciary too. There have been instances where session court judges have made a mockery of rape survivors in court, allowing the prosecution to do the same. This state of affairs requires “gender sensitisation,” training on a war footing and the “screening of people” joining the police and judiciary, says Dr Bari — especially at the senior level. Iqbal Haider says that a lot depends on the temperament, character and the will of the rulers. “Benazir Bhutto did not allow any ‘honour’ killing case to go unnoticed. We always used to go to the place of the incident and check the facts and figures,” he recounts. “My proposal was that if the SHO of the area fails to register a case of ‘honour’ killing, or does not arrest the killers, he should immediately be suspended and prosecuted for aiding and abetting the crime. I am a firm believer that moral and cultural norms and practices should be promoted, protected and encouraged by the ruling elite.”

Changing mindsets developed over years is long process. Says Omer Aftab, director White Ribbon Campaign, an initiative where men seek to end violence against women, it has taken 10 years to convince men that it is not okay to beat their wives — that too, by approaching the issue in a roundabout manner. As a campaign that is directed at the perpetrators of violence, Aftab found an unwillingness among men — factory and other blue collar workers being the main target audience — to listen to someone saying, “you should not beat your wife.” So to get the message across somehow, the issue was broached in another way: the men were told of the effects domestic abuse and conflict have on children. And that is when they started being more receptive.

There is no one absolute formula to effect change in this regard. It is neither a top-down approach nor a bottom to top route that is the answer or key to resolving the hurdles; rather it is a combination of both, and more. Mindsets remain key to introducing and enacting legislation, implementing it and creating a woman-friendly society. Clearly, awareness among the masses, police and judiciary is required as much as at the government, legislative and particularly, bureaucracy level. So whether it is by handing out appropriate punishments, adopting policy positions and implementing them, or campaigning and lobbying through workshops, trainings, seminars and media campaigns — all of it is required simultaneously. Only when more hearts and minds are converted, can real change begin.