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Justice for women: too little and too slow

By: Tanveer Jahan

This month, both Houses of parliament unanimously passed two bills to further bolster legal protection for Pakistani women against nefarious practices, denoting gender-based discrimination in society.

The first bill has increased the punishment of acid attacks against women to a minimum sentence of 14 years that could extend to life imprisonment, besides a mandatory fine of Rs 1 million. The second law mandates a minimum prison sentence of three years for forcing a woman to marry, including marriages contrived to settle tribal feuds, five years for preventing a woman from inheriting property and three years for a practice known as ‘marriage to the Holy Quran’.

The significance of the legislation cannot be overstated as more than 8,000 acid attacks, forced marriages and other forms of violence against women were reported during 2010 alone. The World Economic Forum’s Global Gender Gap Report (2011) placed Pakistan at third from the bottom with only Chad and Yemen lagging behind Pakistan. The report encompassed the magnitude of gender-based disparities in sectors like health and education.

The previous legislation, denoting gender sensitivity, pertained to the protection of women against harassment at the workplace. The bill was passed on March 11, 2010 and the criminal code was amended accordingly.

This recent spate of gender-based legislation was triggered by the Women’s Protection Bill, passed by the National Assembly of Pakistan on November 15, 2006, in an attempt to amend the controversial Hudood Ordinance laws, imposed by the Zia dictatorship in 1979 as a part of the notorious campaign to Islamise Pakistan. While rights groups across the country found the Women’s Protection Bill inadequate to offset the wrong wrought by a sadistic regime, the so-called Islamist lobby launched a vicious campaign, calling the bill a violation of Articles 2 (a) and 227 of the Constitution of Pakistan.

In essence, the Women’s Protection Bill (2006) did nothing to set aside the basic postulates underlying the Hudood laws. It merely introduced a few procedural mechanisms (albeit of great significance), aimed at removing some glaring ambiguities in laws (concerning rape and adultery) that have been the source of great injustice to thousands of ill-educated, impoverished and socially vulnerable women of the country.

The bill brought the offence of rape under the Pakistan Penal Code (based on civil law) instead of shariah laws. That means the victims of rape, instead of being forced to produce four adult Muslim eyewitnesses of the crime (or face a charge of consensual sex) can draw upon circumstantial or forensic evidence. The law further mandated that those suspected of having sex outside of marriage can be detained only if formal charges are brought before a court of law. It removed the arbitrary authority of the police to detain couples on mere suspicion of fornication and destroy their lives in a highly conservative society.

In fact, the legislation to protect women from gender-based discrimination and injustice, howsoever laudable, can have only a limited impact in view of two basic factors, largely lying outside the ambit of normal administration of the law. First is the primitive social fabric that denies basic human equality on almost all possible counts including gender; the second factor is the deformed constitutional scheme that undermines the authority of the elected law-makers to dispense their obligations without supervisory interference of unelected institutions and elements, armed with Articles 2 (a) and 227 of the constitution.

Both the social matrix and the constitutional imbroglio have been seized upon by the unscrupulous clergy to cement their own social and political influence. In fact, the inordinate influence enjoyed by the clergy has held both society and parliament hostage in any possible initiative to introduce forward-looking and egalitarian norms in the country. The clergy, never privileged with electoral success at a national level, has not even flinched from violence to impose their minority view upon society. While the clergy has always been found wanting when it came to presenting a cogent or workable blueprint for the nation, an unholy synergy of weak political structures, illegitimate military dictatorships and a holier than thou judiciary have continued to play into the hands of predatory self-appointed custodians of the collective agenda.

There have been at least five major attempts by different governments in Pakistan to define an agenda for legal and social reforms aimed at raising the status of women. Each time, a clerical member of the commission introduced a note of dissent that echoed a familiar sounding regurgitation of a retrogressive and redundant set of conservative arguments.

The Commission on Marriage and Family Laws (1956), headed by Justice Abdul Rasheed, found a dissenting note to the Report by Maulana Ehtisham-ul-Haq Thanvi. The Pakistan Women’s Rights Committee was formed in 1975, chaired by the then attorney-general of Pakistan, Yahya Bakhtiar. Its recommendations were shelved after the military coup of General Zia. The Begum Zari Sarfaraz Commission on the status of women presented its report in 1985 and it carried a venomous note of dissent by Nisar Fatima, an ultra-conservative woman who later orchestrated the passage of the dreaded blasphemy law.

The Senate appointed the Commission of Inquiry for Women under the leadership of Justice Nasir Aslam Zahid, a jurist known for his egalitarian approach. His report carried a dissenting note by a certain Maulana Tahseen. It is noteworthy that both the Nasir Aslam Zahid Commission (1997) and the National Commission on Status of Women Report (2002) forcefully advocated the repeal of the Hudood laws, which have never been properly legislated by parliament but stand indemnified through the 8th Amendment (since repealed).

The response of the clerical circles to even diluted efforts by successive governments, aimed at the restoration of the dignity of Pakistani women can be gauged through a widely-circulated piece entitled, ‘Reality of Women’s Protection Bill’ written by Mufti Taqi Usmani, the architect of the bulk of Islamic legislation during the Zia era. The fact that the Federal Shariat Court (a parallel judicial structure introduced by the Zia regime) declared the very term ‘gender equality’ as un-Islamic on December 15, 2008 shows that the question of the equal status of women as citizens and their protection against a plethora of gender-based social practices is not just a question of legislation but one that pertains to the polarised character of our polity.

The unenviable status of women in the country is not just about eradicating the most conspicuous forms of injustice against women but one that is essentially linked to the economic and political character of the envisioned national future. While relevant legislation by parliament is commendable but it hardly meets the enormity of the issue.

It necessitates a consensus across the political spectrum that must encompass a set of strategies devised to restore the lawful status of Pakistani women. Dispensing justice to the victims of acid attacks is laudable but the incidence of such heinous practices can only be controlled effectively in a polity where the state and society join hands to ensure that women enjoy equal citizenship without any discrimination on the basis of anatomy.

Source: Daily Times

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