Critical mass: Protecting women's rights
Change is incremental, and while there is a lot to be desired when it comes to safeguarding the rights and lives of Pakistan women, considerable progress has been made. The increased participation of women in politics and public life has led to landmark legislation to protect women’s rights, which may just be a single step, but it is nonetheless a step in the right direction. Now what remains is for these laws to be implemented in letter and spirit
It was a trickle that has become a flood: in the past 15 years, Pakistan has amended or passed more pro-women laws than at any other time in its history. Even in 1999, it was hard to get an outright condemnation from senators for a simple case of honour killing, that of Saima Sarwar, who was murdered in her lawyer’s chambers in Lahore.
Why did it take so long for Pakistan to introduce laws protecting its women, and what caused this welcome change in attitude from our legislators?
“Women, in public life (professions, offices, parliament and so on), are a lot more present and visible than they ever were before,” says Sindh High Court advocate and women’s rights lawyer Maliha Zia Lari. “That has helped shape the movement regarding the pro-women laws that have come out. There is now a national discussion and awareness.”
As far as legislation goes, though, one development in particular stood out as a major milestone: the formation of the Women’s Parliamentary Caucus.
Chaired by then speaker of the National Assembly, Fehmida Mirza, the Caucus was formed to bring women legislators together, above party lines, to protect women’s rights and work for their empowerment.
This enhanced the role of women parliamentarians in proposing gender sensitive legislations and reviewing and amending discriminatory laws and practices. This was an important development especially when compared to 2002 when women parliamentarians worked mostly in isolation and found it incredibly difficult to influence change.
|Gang-rape survivor Mukhtar Mai.|
The formation of the Caucus had a major impact on ensuring that pro-women laws get passed in the country. “It was for the first time that women parliamentarian across the board came together to work together,” explains Lari, adding that in this instance, party lines were blurred and there was a general consensus, a sense of unity, regarding what their combined purpose was going to be.
The previous female parliamentarians were recent entrants, weren’t many in number and they didn’t collectively form a strong voice,” adds Lari, “Today, there are more women in government and other public spaces. The fact that the speaker of the National Assembly was a woman (Fehmida Mirza) greatly helped as well.”
This sentiment is echoed by the former head of the National Commission on the Status of Women and current chairperson of Women’s Action Forum, Anis Haroon: “That gap existed because I feel that only in the last five years of the previous government was there a will to do something. There were 73 women in the assembly; the speaker for the assembly was a woman. The NCSW was in contact with the civil society; we could create a political clout all the way from the top right to the bottom.”
But does simply introducing laws on paper solve all of the problems currently faced by Pakistan’s women? What about implementation? “At least now we have something to implement,” says Lari.
“Introducing laws to battle the crimes that are committed against women is one of the first major steps we have to take,” says Haroon, “Law making is a very crucial and very important aspect when working towards the betterment of women. We tracked progress and published reports, while I was still heading the commission, which are still available online. However, we still have a long way to go where effective implementation of these laws is concerned.”
That’s the main issue right there: implementation.
Gender-based violence keeps women in subordinate roles, resulting in low levels of participation in politics and a lower standard of education, skills and available work opportunities. What makes this worse is society’s attitude towards women in distress — their plight is still largely ignored and hidden under a shroud of ‘shame’. Worse still is the behaviour of those tasked with protecting them: often badly-worded FIRs harm prosecution cases, thus further obstructing women’s access to justice.
How effective is a law if those enforcing it don’t even know it exists?
“The police officers, the DIGs don’t even know when a law has been passed or changed,” claims Lari, “There is no system of updates or sensitisation of the police force. That’s because there is no effective budget or resource allocation of training to ensure that they are made aware of these. They don’t have money. They run out of funds for their petrol by the 15th of every month after which they’re supposed to incur the expenditure of policing from their own pockets. Most of them are on VIP duty anyway.”
But it’s not just awareness; what also impedes effective implementation is institutionalised sexism and misogyny in the system that, in theory, is supposed to protect the citizens of the country, irrespective of their gender.
“The manuals given to policemen have language that is so biased against women,” relates Lari, “There is a patriarchal bias in the police, and so most victims that come to them are asked to adjust or to compromise. The more well-meaning ones say they do it because they know the victims will spend 10-15 years doing rounds of the courts and still won’t get justice. They’re sparing them that effort. What they don’t realise is that the policemen need to give the victim the choice to do so.”
“It clearly shows that the people within the system don’t have faith in the system,” she adds, “Implementation is difficult because there is a lack of will. There are gaps in the legal system. But it’s not just this, it’s everything. The criminal justice system that comprises the police, medico-legal officers, public prosecutor and judges … all of this needs a major overhaul.”
A lot of work needs to be done equipping our law enforcers with the skills necessary to deal with the changing issues of our constantly evolving society, which now very much includes women in the public space. “There is a massive shortage of prioritising, funding, resource allocation to training, sensitisation and doing those trainings on a regular basis,” says Lari,
“There is no transparency or regular review to see how the policemen are doing their job. Who would you complain to if a policeman failed to do his job?”
Source: Aurat Foundation
Awareness of one’s rights is the first step towards securing those rights. Here are seven landmark legislations aimed at protecting Pakistani women.
By Madeeha Syed and Rizwana Naqvi
Protection of Women Act-2006, Anti-Rape Bill-2014
Before the introduction of the Protection of Women Act-2006, thousands of women languished in jails on unproven charges of adultery. “There was no distinction between zina and rape before,” says Anis Haroon, former head of the National Commission of the Status of Women (NCSW), “That’s why the law was being misused. The victim had to prove she had been raped and if she couldn’t, she would be charged with fornication.”
“This law was mostly used to punish women that came from poor backgrounds,” says Haroon, “Women from the middle or upper classes never landed in jail for this.”
But change has arrived, incremental as it might be.
“I think in 2011, when I was still a chair of the commission, we published a report on the effectiveness of introducing this act,” says Haroon. “According to that, there were no women prisoners to be found in the jail for the offense of zina anymore.”
“I believe there has been an estimated 80 per cent change ever since this law was introduced,” argues women’s rights activist and advocate at the Sindh High Court Maliha Zia Lari, adding that she did not have specific figures as yet.
“Now, if you want to accuse someone of having committed zina, you have to go to a sessions court, not the station,” explains Haroon, “If the person who accused you can’t prove you’ve committed the crime, then that person goes to jail.”
In a similar vein, one bill passed by a standing committee and currently pending before the National Assembly, seeks amendments to the Pakistan Penal Code-1860, Code of Criminal Procedure-1898 and the Qanoon-i-Shahadat-1984 to improve upon rape prosecution. The implementation of this, however, remains a problem for a variety of reasons.
“The process of reporting a rape is that you first file an FIR and then get your medical done,” says Lari. “The Medico-Legal department in the country is the most under-trained, under-staffed, under-developed and under-funded. There are only five to six medico-legal officers for the entire city of Karachi.”
Then there are problems with the procedure itself.
“They don’t even have space in which to conduct proper examinations. While questioning one MLO, we asked where they examined the victims and the response was: ‘on the couch you’re sitting on.’ Sometimes they don’t even have enough light and have conducted exams using the flashlight from their mobile phones.
“There are rape kits that are lying in the corner, not because they can’t be used because even today, these officers conduct the outdated two-finger test on a rape victim to ascertain whether she’s a virgin or not,” explains Lari.
The two-finger ‘method’ isn’t used anywhere else in the developed world anymore. It’s a gross violation of a woman’s body and in some countries it is also considered rape.
“Even if the doctor doesn’t want to conduct the two-finger test, there is a demand for it from the public prosecutor and the judge,” claims Lari.
Anti-Honour Killings Laws (Criminal Laws Amendment) Bill, 2014
It was a case that haunts the victim’s lawyers to this day. In 1999, Samia Sarwar, the daughter of a wealthy businessman and head of the Peshawar Chamber of Commerce was gunned down in the office of her lawyer Hina Jilani.
What was even more shocking was that the assassin was hired by her own mother, a well-known doctor. What did Samia do that warranted such a murderous reaction from her mother’s side? She wanted to divorce her abusive husband.
Later, a resolution was tabled in the Senate to condemn her murder and honour killing and violence against women in general. Out of 87 senators in the upper house of parliament, only four voted to condemn the killing of women. The resolution did not pass.
When the late Iqbal Haider, a lawyer and human rights activist who was then a member on the Senate, moved a resolution to define honour killings as ‘simple and brutal murder’ and to make them compoundable offences, he was “consistently told to withdraw the resolution.” To this day, no legal action has been taken against Samia’s parents. No one has been held accountable for her murder.
Fast forward to 2008 in Balochistan, three of five women were shot and buried alive on the orders of their tribal elders simply because they wished to contract a court marriage with men of their own choice. Senator Israrullah Zehri, who hails from Balochistan, defended the murder of these women on the pretext of such practices being “a part of our culture.”
“These are centuries-old traditions, and I will continue to defend them,” he had said, “Only those who indulge in immoral acts should be afraid.” His comments were met with protests from other parliamentarians who called the killings barbaric. The leader of the house, Raza Rabbani condemned the murders.
“What these two events show is the change in mindset,” argues Sindh High Court advocate and women’s rights activist Maliha Zia Lari, “The difference is that honour killings are now visible and are condemned.”
Last year, the Senate passed the Anti-Honour Killings Laws (Criminal Laws Amendment) Bill, 2014. “The previous defence rested on ‘provocation’ — that it was excusable for a person to fly into uncontrollable rage and kill someone. This was justified as an acceptable defence. Now there is a minimum sentence that must be followed, irrespective of what the defence is.”
What has the impact been so far?
“A lot of cases have been reported, however, at the same time there are cases where judges have dismissed them, but mostly in Punjab,” relates Lari, “There is an increasing trend of looking at honour killings as terrorism cases and [a feeling] that they should be treated in the anti-terrorism court. There is a great discussion in Karachi surrounding this.”
But what makes implementing any law against honour killings difficult is that the killers often know the victim and the victim’s families very well.
“Honour killings are almost like a mafia. The killer(s) knows who the victim is, what they are going to do, who the plaintiff will be, who to intimidate etc. and they get away with it because of the qisas and diyat provision. What our recommendation is that it should be considered a crime against the state. Only the state should be allowed to compromise, not individuals.”
Protection against Harassment of Women at the Workplace Act, 2010
One of the most important pro-women laws introduced in the country this century is the ‘Protection against Harassment of Women at the Workplace’ Act.
It was signed into law by then president, Asif Ali Zardari on January 30, 2010 despite strong criticism from religious parties during its passage.
As a gesture of compromise, some last-minute amendments extended the protection mechanism to men too. Introducing this law was important because of the increasing number of women becoming part of the workforce in the country, in rural as well as urban areas.
The law clearly defines harassment as “any unwelcome sexual advance, request for sexual favours or other verbal or written communication or physical conduct of a sexual nature or sexually demeaning attitudes, causing interference with work performance or creating an intimidating, hostile or offensive work environment, or the attempt to punish the complainant for refusal to comply to such a request or is made a condition for employment.”
Where introducing this law may, on the outside, come across as a sign of progress for women and a step towards increasing gender equality in the country, a major issue lies in its implementation.
Most companies prefer to adopt their own standard operating procedures when dealing with cases of harassment even though the law clearly states the employer’s responsibilities as: incorporating a clearly defined code of conduct; formation of a ‘competent’ inquiry committee to investigate complaints, and finally, that the code must be displayed at prominent places at work place within six months of introducing the Act.
Any failure to comply with the above allows an employee of any organisation to file a petition before the district court and, on having been found guilty, the employer will be liable to a fine that may be up to Rs100,000 and not be less than Rs25,000.
One loophole in this law is that, stepping out of the corporate workplace, how do domestic workers report being sexually harassed by their employees? They often work alone, without any kind of formal documentation or agency looking out for their welfare.
There is no legal requirement of registering your domestic worker on a municipal, provincial or national level. They might constitute a major portion of the workforce where women are dominant, but legally, most of them don’t exist.
“Some laws are being implemented such as this one; there is a mechanism in place when reporting or dealing with sexual harassment,” argues Anis Haroon. “There is a national ombudsman for dealing with this crime.”
On the other hand, Sindh High Court advocate and women’s rights activist Maliha Zia Lari contends that the bill criminalising workplace harassment has had limited success.
“Regular monitoring is needed. We have an ombudsman and his office is dealing with complaints but the other issues we face are lack of awareness in the workplace and in educational institutions regarding this law. People are also not clear as to what constitutes harassment,” said Lari.
Domestic Violence (Prevention and Protection) Act, 2012
On February 20, 2012, the Senate unanimously passed the Domestic Violence (Prevention and Protection) Act, 2012. This Act was passed by the National Assembly on Aug 4, 2009 but lapsed as it could not be presented in the Senate within the given three months period as required under the Constitution.
When it was first passed in the National Assembly in 2009, objections were raised from various forums, including the Council of Islamic Ideology and some parliamentarians, that this legislation would increase intolerance in society and break up families.
It was presented again in the upper house of parliament as a private member’s bill by Senator Nilofar Bakhtiar, before being turned into law.
With the passage of this legislation, violence against women and children has become an offence punishable by jail terms and the imposition of fines. The bill defines domestic violence as acts of physical, sexual or mental assault, use of force, harassment, confinement and deprivation of economic or financial resources.
The bill’s Statement of Objects and Reasons says: “Through this bill, domestic violence is brought into the public domain, and responds to the national policy for development and empowerment of women and convention for the elimination of all forms of discrimination against women of adopting zero-tolerance for violence against women and introducing positive legislation on domestic violence.”
It is clear from the statement that the state now considers it its responsibility to provide protection to all its citizens, including women, in what was previously considered a private domain.
Put another way, being signatory to international conventions regarding violence against women has meant that the responsibility to protect women, even in the privacy of their homes, rests on the government’s shoulders.
Now, a person who has been wronged, or anyone authorised by that person, can file a petition in the court to seek relief under this Act.
The court is required to fix the first date of hearing within seven days of receiving a complaint, and fix the next date of hearing within 30 days, while the petition should be disposed of within a period of 90 days.
The court has been granted the power to pass “protection orders” and “residence orders” that prohibits the accused person from committing further acts of violence, and from making any attempts to communicate in any form with the victim. The court also has the powers to direct the accused to pay monetary relief to the victim.
If an accused commits a breach of the protection order, he can face six months imprisonment with a fine of Rs100,000 or more.
If the protection order is violated for the second time, the imprisonment will be enhanced up to two years with a fine of Rs200,000.
Of course, as is the case with such legislation, awareness of the law and implementation of the law are crucial.
As far as awareness goes, Maliha Zia Lari, advocate Sindh High Court believes the process is already underway.
“Women are now beginning to realise that they can report abuse, and while no reports have yet been lodged in this respect, they are using the law as leverage and telling their abusers that they will report the matter if they use violence again,” says Lari.
NGOs working at grassroots level, she claimed, were trying to create awareness about the law. “Women threatening to report the matter shows that some success has been achieved,” she argues.
Women in Distress and Detention Fund (Amendment) Act, 2011
In December 2011, the Senate passed the Women in Distress and Detention Fund (Amendment) Bill-2011, to amend the Women in Distress and Detention Fund Act 1996, and extend financial and legal assistance to the women languishing in jails under different allegations and those who are faced with extreme hardships.
The Bill was moved by Leader of the House Syed Nayyer Hussain Bokhari, on behalf of Adviser to the Prime Minister on Human Rights Mustafa Nawaz Khokhar.
These funds were previously administered by the human rights wing of the Ministry of Law, Justice and Human Rights but after the establishment of the Ministry of Human Rights as a separate entity in November 2008, the fund was transferred to them. However, the Ministry could not operate the fund without necessary amendments in Women in Distress and Detention Fund Act 1996.
The new bill therefore gives complete authority to the Ministry of Human Rights to use this fund for the benefit of women throughout the country. Under the Women in Distress and Detention Fund Act-1996, financial aid was to be provided to women “in need of financial assistance to alleviate … their miseries due to detention, litigation for similar connected matters”.
Women inmates languishing in prison often stay trapped behind bars for the simple reason that they do not have the financial resources to arrange a lawyer to represent them or to pay for bail and other expenses.
Their cases are thus not brought up in court and they remain confined without any court hearing. While it is heartening to see the government making efforts by way of legislation to help women in distress, the benefits of such legislation are not reaching the people they are meant for. A lower court advocate working especially on women’s’ cases, speaking on condition of anonymity, confirmed that women in prisons are yet to receive any funds or facilities to help them in any way.
The Criminal Law Amendment Act, 2010 (on sexual harassment)
The Criminal Law (Amendment) Act, 2010 (on sexual harassment) was signed into law by President Asif Ali Zardari on Jan 29, 2010. Prepared by Sherry Rehman, the Act added a clause to section 509 of the Pakistan Penal Code (PPC)-1860 whereby “insulting the modesty or causing sexual harassment” was more comprehensively defined than in the un-amended law, thereby removing questions of interpreting what constitutes sexual violence and what does not.
This time around, the term incorporates sexual advances and requests for sexual favours; written and verbal communication or physical conduct of sexual nature; sexually demeaning attitude(s); as well as creating an intimidating, hostile or offensive environment.
The Act includes all kinds of harassment — be it at the workplace, home, markets or the street. Stalking someone on the road, for example, is now considered a crime and is punishable by law. Any person found guilty of sexual harassment is liable to be penalised with imprisonment of up to three years or a fine of up to Rs500,000 or both.
A large number of women routinely face sexual harassment in public places such as markets, streets and parks, public transport and in private gatherings or homes. In the past, such predatory behaviour was met with a dismissive attitude, coupled with a culture of blaming the woman for the sexual violence that she suffered.
But now, sexual crimes have been brought into the public domain, where women have the right to lodge a complaint and seek redress.
And yet, there are certain impediments in the implementation of this law: as with most pro-women laws, there is little awareness among women about their rights and the laws that provide them with protection.
When women are not aware, many tend to passively accept injustice. Also, from past experience, they are not sure if their complaint will be heard if they were to take action.
Another problem, as pointed out by lawyer Maliha Zia Lari, is that a number of policemen don’t have much awareness and information about this law and hence they feel handicapped whether they can take any action or how to act if a complaint is lodged.
Implementation of the law seems difficult due to the difficulty in identifying culprits when a crime such as harassment is committed in a public place: how is the victim going to pinpoint or identify the perpetrator when he has disappeared into the crowd without leaving any clues of identification? Of course the offender is not known to the victim; she can only describe what he looked like. Only a handful of women in our society pursue the offender in such cases and drag him to court.
However, as Lari points out, there are ways and means to take action, difficult as they might be. For instance, one can draw the attention of the police if they are nearby or ask someone else to help or take a picture using one’s phone etc.
Criminal Law (Amendment) Bill, 2011
Earlier this month, anti-Terrorism Court-II of Multan handed down a sentence of 117-year rigorous imprisonment along with a Rs1 million fine, to a man for throwing acid on his former wife and her husband. Mohammad Amjad trespassed into the home of his ex-wife Javedan Bibi and threw acid on her and her husband Mohammad Riaz. Javedan Bibi later succumbed to her injuries.
As heinous as this crime is, the fact that the perpetrator was held accountable for it and punished accordingly is a sign of the “visible success”, according to Sindh High Court advocate and women’s rights lawyer Maliha Zia Lari, of the Criminal Law (Amendment) Bill 2011, formerly known as the Acid Control and Acid Crime Bill-2010, that was introduced in Pakistan’s National Assembly and passed without debate in 2011.
Since 2010, this crime managed to receive international attention in two ways: the first when Pakistani documentary filmmaker Sharmeen Obaid Chinoy won the Oscar in 2012 for Saving Face, a film she made about a Pakistani plastic surgeon who travels to Pakistan to help victims of acid attacks. The second was when acid attack victim Fakhra Younus, who had been granted asylum in Italy, committed suicide in 2012.
Work on introducing a bill to combat acid crime in Pakistan, however, had begun much earlier.
Legislator Marvi Memon was inspired by the case of Maria Shah, who was a 22-year-old midwife from Shikarpur who died after an acid attack in 2009. She had rejected a marriage proposal by rickshaw driver Aslam Sanjrani and he threw acid on her in an act of revenge while she was working in her clinic. Memon visited Maria as she clung to life in the hospital and promised her that she would do what she could to put her attacker in jail and introduce a law to make this heinous act a punishable offence.
The bill was eventually tabled by Memon, Begum Shahnaz Sheikh and Advocate Anusha Rehman. It hands a maximum sentence of life imprisonment and a minimum sentence of 14 years with a fine of Rs1million for anyone found guilty of having committed an acid attack.
There are many issues that pose a hindrance to the effective implementation of this law: lack of proper training of medical officers who don’t know how to prepare a proper medico-legal report when a victim comes to them for examination. The law also doesn’t control the purchase of acid which is readily available and often used as a household product for cleaning.
Having said that, according to Lari, since the introduction of this law, there have been many cases such as the Javedan Bibi and Mohammad Riaz one, where the victims have been given justice. Acid attack cases are relatively easier to prosecute as well because the evidence is evident. You don’t have to ‘prove’ if the plaintiff is in fact an acid attack victim.
Statistics compiled by the Aurat Foundation in a report reveal that from January to September 2014, around 42 cases of acid attacks have been recorded in Punjab only. These included 51 women and eight men as victims. Where passing the Acid Control and Acid Crime Bill 2010 into law was a step in the right direction, clearly it will be some time before there is a visible decline in acid-related crime.
Published in Dawn, Sunday Magazine, May 31st, 2015
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