An uphill battle?

Ayesha Shaukat examines the controversy around Punjab's legislation protecting women from violence

An uphill battle?
Key members of religious parties, scholars and madrassas earlier this week threatened a protest against what they considered to be “anti-Islam policies” and efforts aimed at the “systematic secularisation of the country” by the PML-N. A deadline has been announced - the 27th of March - for the Punjab government to withdraw the contentious Punjab Protection of Women against Violence Act (2016) passed by the Assembly last month.

This was not the first time that domestic violence was being discussed on the floor of an Assembly in Pakistan. Nor was this the first time that religious and right-wing parties and institutions, naysayers and opponents of the women’s rights agenda have protested against the state and the women’s rights movement’s attempts to hold perpetrators of domestic violence accountable. In fact, over the last few years, there has been a flurry of pro-women legislation in Pakistan after the 18th Amendment (2010) when all the provinces and the Islamabad Capital Territory (ICT) became responsible for legislation on devolved subjects, including women’s rights, and had been looking at contentious women related legislation. Yet none has attracted the ire of the combined opposition of conservatives more than the Punjab Protection of Women against Violence Act 2016, passed a few weeks ago.

Fauzia Viqar, Chair of the Punjab Commission on the Status of Women (PCSW)
Fauzia Viqar, Chair of the Punjab Commission on the Status of Women (PCSW)

Sindh put in place the first ever legislation on domestic violence in Pakistan

Two provinces have been successful when it comes to legislation on domestic violence. In 2013, Pakistan joined the ranks of 90 countries which have some form of legislation on this issue. Sindh put in place the first ever legislation on domestic violence in Pakistan. This was celebrated as a victory by the women’s movement, which had long been agitating and working behind the scenes. The next year, in 2014, the Balochistan Assembly also passed the Balochistan Domestic Violence (Prevention and Protection) Act, expanding the scope of the law to cover domestic servants while at the same time watering down some definitions of violence and the punishments for offenders as laid down in the Sindh Domestic Violence Act.

In Islamabad, however, the National Commission on the Status of Women and the Ministry of Law in Islamabad were disappointed more than once on this front. The ICT Domestic Violence (Prevention and Protection) Act, which had been first approved by the Senate in 2009, failed to become law and lapsed when the legislation did not pass through the National Assembly within three months after the Senate’s approval. Successive drafts were then prepared by the Ministry of Law in consultation with the Commission in Islamabad. In 2012, when it was reintroduced as private members’ bill, it died down again when it encountered objections from the religious parties.

Women marching in support of legislation for protecting women from violence - Photo credits - Nabiha Meher Sheikh
Women marching in support of legislation for protecting women from violence - Photo credits - Nabiha Meher Sheikh

Similarly, in the Khyber-Pakhtunkhwa Assembly, the Domestic Violence Bill tabled in the PML-N tenure, met with resistance from religious and other parties and was subsequently deferred to a Committee which ended its tenure with the Assembly. Under the current government of the PTI, a draft bill was forwarded to the Council of Islamic Ideology (CII) for review earlier in 2016. CII had earlier declared the Punjab bill un-Islamic and also shot down the Khyber-Pakhtunkhwa Child Marriage Restraint (Amendment) Bill 2014 as “anti-Islamic and blasphemous”. Therefore no one was surprised when last week the CII chief rejected this bill as un-Islamic too.

Where there are delays, opposition and challenges on these issues, should the blame be assigned to a slow, ineffective and predominantly male bureaucracy or to legislators unconcerned with the need for protection of women and girls? Or should the responsibility be laid at the door of the right-wing parties and the Council of Islamic Ideology, which is trigger-happy enough to call everything un-Islamic and blasphemous, struggling with the idea of change, of a subversive NGO - read ‘Western’ - agenda challenging patriarchy’s chief institution, the family?

Fauzia Viqar meeting stakeholders in law enforcement
Fauzia Viqar meeting stakeholders in law enforcement

According to Fauzia Viqar, Chair of the Punjab Women’s Commission, “the key issue is patriarchy and the mindset. While it was ok to beat up a woman in the house, people find it difficult to accept that the beater could also be punished. That if they could throw a woman out of the house on the slightest pretext with her children in the middle of the night, you could also send the offender out. It was a challenge to bring everyone on board even within the ruling party and extensive consultation was required - and it was conducted - and yet people still don’t accept the law.”

Khawar Mumtaz, the former Chair of the National Commission, sees the opposition to the Punjab Act differently: “There was no opposition to the Acts in Sindh and Balochistan once passed. Political parties opposing the Punjab Act were present in those assemblies too and the Sindh Assembly passed the Act unanimously. Any opposition to the Punjab Act should have been on the floor of the assembly. Why wait till a law is enacted to oppose it? It was deliberated in the Standing Committee where detractors had ample chance to thrash out differences. My view is that this is being used for political objectives.”

Activists at Charing Cross Lahore, near the Punjab Assembly, out in favour of the Punjab Protection Act - Photo credits - Nabiha Meher Sheikh
Activists at Charing Cross Lahore, near the Punjab Assembly, out in favour of the Punjab Protection Act - Photo credits - Nabiha Meher Sheikh

Women's rights activists were initially critical since the law did not criminalise domestic violence

That the NCSW generally faced delays in its work in Islamabad is also apparent: “The NCSW gave feedback, convened stakeholder consultations on new laws and for amendments in existing ones, prepared drafts for discussions and submitted them to relevant quarters for taking forward the legislation on domestic violence, Hindu marriage, amendments in the Christian Marriages and Divorce Act, Reproductive Healthcare Bill, etc. Moving this legislation is the responsibility of legislators and they decide on the timing of doing so. Then some bills get tabled, others are drafted but not moved - those are always political decisions”, she says.

The draft legislation, it is said, generally follows more or less the same pattern - the Islamabad draft, though not passed in the Assembly, is said to have been used as a template for work in the other Assemblies. “What may be a very good draft - from the point of view of the Commissions and drafters of a particular legislation - undergoes change during the debate in assemblies and in Standing Committees.”  So were these laws separate but similar and did they warrant such a ruckus? “The Sindh and Balochistan Acts differ in that they criminalise violence while the Punjab Act focuses on protection once the violence has occurred. The KP bill has not been passed yet”, she says.

Maulana Fazlur Rehman and his JUI-F have been stringent critics of the Punjab bill
Maulana Fazlur Rehman and his JUI-F have been stringent critics of the Punjab bill

Women’s rights activists and networks, especially the Women’s Action Forum, were initially critical of the law since it did not criminalise domestic violence. However, for the moment, the movement is busy just defending the current draft. Fauzia Viqar remains confident despite rumours that the law may even be revoked under pressure, “I am sure that will not happen, but it can be amended if agreed by the Assembly.”

Both the Punjab and KP bills have become a test for the two parties, PML-N and PTI, which are in power in these provinces. This should not have happened. This is after all PML- N’s third term in the Punjab. It is reasonable to expect that the government be able to handle the opposition to this contentious law. In KP, the women’s movement has long highlighted that PTI does not hold a good track record on pro-women legislation. Any positive developments on these bills would now perhaps redeem both PML-N and PTI with some grace as far as the women’s rights agenda is concerned. So can they do it?

Fauzia Viqar, a women’s rights activist and the chair of the Punjab Commission on the Status of Women, was one of the of the players working behind the scenes to get this law approved. Fauzia finds her two years’ work here to be “very interesting and also very tough”. We asked her some questions about her work and the recent legislation.

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How difficult has pursuit of the women’s rights agenda been in the local context?

Anything to do with women’s rights has been difficult, and women’s safety and progress is deliberately misrepresented as un-Islamic to misguide the gullible masses. We therefore work on two fronts: to get more rights and struggle to obtain given rights of women as citizens and, working to remove myths and misconceptions. We try to explain that these rights are a fundamental part of the Islamic framework of rights and as much a part of human rights that the East accepts as they are accepted in Western frameworks. It seems that you are fighting religious backwardness, culture and tradition simultaneously, whereas, we are actually fighting misinformation and misconceptions and the misuse of culture and tradition to deny women their rights.

The commissions across the country are generally seen as ‘’toothless agencies’’, sidelined and unable to ensure that they are taken seriously by the departments and ministries.  Is that really the case?

It actually depends on how the various commissions view their role. In my experience I have not found the these commissions to be toothless. My ability to function is due to the presence of political will for working and supporting women’s rights and it has in the Punjab context worked very effectively.

For instance we have obtained broad data on women and for the first time brought out the official Punjab gender parity report.  The gender management information system has been created which tracks implementation on government initiatives. Now that we have tracked the data, executive orders were issued, steps and a concerted plan of action are being developed and the Chief Minister has set up a timeframe for this. (This report is being reviewed and will be sent to print soon).

Then, a women’s helpline is run by the Commission and is proving to be very useful to help us understand issues which appear before us. We have received over 300 complaints and most of them deal with violence against women. When we pose questions to the police or at the highest levels of authority over inaction, violence or biased treatment of women, sometimes investigation officers are changed, and action is taken where none existed earlier on. I find that the criminal justice system has gaps in its functioning but as an institution and an authority they take the Commission seriously.

How is this law different from its counterparts in Sindh, Balochistan, Islamabad Capital Territory and KP?

It is in some ways the law is weaker here in Punjab because it does not criminalise the first act of violence. The law in Punjab provides civil remedies and is much stronger in terms of the support infrastructure that it creates. There are Women Protection Committees and Violence against Women (VAW) Centres that are very a heavily resourced service providing all related facilities under one roof for the women survivors of violence. So there is, on the whole, a strong element of prevention and protection, as well as a focus on rehabilitation.

You give the impression that the law puts in place adequate measures, provides for specialist support and services for women facing domestic violence.  Like for other pro-women legislation, isn’t there a danger that in the end lack of implementation would drag it down?

No absolutely not. Lack of implementation would not be the issue here.

First of all, violence inside the home was not punishable under any law because there were no penal provisions attached previously.

The criminal justice system poses problems for both men and women and the law has issues of implementation where it relates to both men or women, but to disregard a law because you are skeptical about its implementation is unfair. Take the instance of the law that deals with murder: it is a stringent law, yet the conviction rate is extremely low. The law is misused, implementation is poor but it doesn’t mean you can do away with the law. We have issues with implementation of law across the board so in the case of domestic violence, if there is no law you first create the deterrence that comes with the law.

This is not the first time that domestic violence related legislation has been passed in the country, yet it has faced the strongest opposition. Why is that the case in Punjab?

There are two factors. The provisions within the law to create an effective infrastructure for implementation created panic that it was actually going to be implemented, especially among the religious parties. But this is not a universal view. I have met many men and women who are perplexed on who is opposing the law. Decent men actually find the law unproblematic. Then there is the timing of it and of course the law is being used to gain political traction and religious parties used this law to settle other scores.

Was the law designed after detailed consultations with stakeholders? Did the stakeholders include conservative parties and leaders, especially women leaders from these parties?

Absolutely. Actually involving the women was not a problem at all. In Punjab, the PTI also supported the law, although initially PTI members had some reservations. They were therefore included in the Select Committee set up to review it which they did.  Later there were extensive consultations in which the religious parties were brought in and afterwards the law was tabled on the floor of the House.

Conservative voices argue that the law is deliberately designed to irk the conservatives and men, and that the law only put in place measures which would further strain the marital bond. How would you respond?

As I’ve said, anything that goes in favour of women and their rights is declared harmful to our culture or ‘’un-Islamic”. The protection of women is absolutely guaranteed under our constitution. In this case, the constitution expressly provides for protection of women and children in Artcile 25 (3).  Women and men are equal and there is protection of both men and women in article 25 (3) of the constitution.

The Council of Islamic Ideology examined the constitution at length and they gave their report after seven years that nothing in the constitution is in contravention to the principles of Islam so I’m surprised with their reactions to these laws because they fall within the ambit of the constitution and Article 25 (3).

Do you see the religious and right-wing parties continuing with the politics of opposition as before and getting more extreme in the future or is there hope for defining new relationships and arriving at a common standpoint on women’s rights?

We’ve already seen a change taking place. Jamat e Islami has publicly stated that while they consider this law unsuitable for our culture and Islamic traditions, they stand firmly behind the protection of women and repudiate all forms of violence against women. In a TV programme recently Fareed Paracha said that the JI was working on a law for the protection of women which they were bringing to the Assembly very soon. So you can see that these religious parties do not also want to present themselves anti-women. It is a smaller segment of hard-line religious parties - whose following comes mainly from men and who hold a militant fundamentalist philosophy - who take a stand that excludes women and their protection.
"Anything in favour of women's rights is declared harmful to our culture or un-Islamic by some religious political forces"

Considering the tremendous social, economic and demographic change in Pakistan, women are educated, working and challenging patriarchal norms. At the same time, we have a lot of Farhat Hashmi followers, for instance. Do you see her followers as opposition or allies to the agenda of women’s rights? 

I see them as opposition. They have a skewed and dated concept of women’s rights and equality. Then you see these women working and living in ‘Christian’ and Western societies, which they don’t have to do, though they say they are there to change it. But I do see their stand diluting the women’s rights agenda. Even parties like the Jamat e Islami are not necessarily opposed to women’s rights and they have openly come out stating that they are supporting women in public life. So I don’t see all religious political actors as opponents.

What has been your experience of working in the Women’s Commission as opposed to non-governmental organizations or NGOs? 

There’s a huge difference. My ability to bring about change has multiplied manifold. In Punjab we have 55 million women and even a small policy change will change the lives of 55 million women. There is also greater confidence in whatever is being proposed by the Punjab Commission on the Status of Women, being a government institution. Small executive decisions which you are able to get executed by another agency may not require any financial costs but working in civil society, I would have to spend millions to get access to policymakers. Here I have both access and ability to influence.

The Punjab Protection of Women against Violence Act 2016 – what the fuss is about

Important definitions

  • An “aggrieved person” is defined as a female who has been subjected to violence by a defendant;

  • “Domestic violence” means the violence committed by the defendant with whom the aggrieved is living or has lived in a house when they are related to each other by consanguinity, marriage or adoption; “violence” means any offence committed against the human body of the aggrieved person including abetment of an offence, domestic  violence, sexual violence, psychological abuse, economic abuse,  stalking or a cybercrime;

Explanations in this clause:  (1) “economic abuse” means denial of food, clothing and shelter in a domestic relationship to the aggrieved person by the defendant in accordance with the defendant’s income or  taking away the income of the aggrieved person without her  consent by the defendant; and (2) “psychological violence” includes psychological deterioration of aggrieved person which may result in anorexia, suicide attempt or clinically proven depression resulting from defendant’s oppressive behaviour or limiting freedom of movement of the aggrieved person and that condition is certified by a panel of psychologists appointed by District Women Protection Committee.

Measures for the implementation of the Act

  • A universal toll-free dial-in number for the aggrieved persons;

  • Protection Centres and shelter homes with necessary staff for mediation and reconciliation between the parties, rescue, medical examination, medical and psychological treatment and legal help of the aggrieved persons and proper investigation of offences committed against aggrieved persons; as well as the setting up of a District Women Protection Committee in each district

Complaint to court

  • An aggrieved person, or a person authorised by the aggrieved person or the Women Protection Officer may submit a complaint for obtaining a protection, residence or monetary order in the Court.

  • The Court can fix the first date of hearing within seven days from the date of the receipt of the complaint.

  • The Court shall issue a notice to the defendant to show cause within seven days of the receipt of notice and decide the complaint within ninety days from the date of the receipt of the complaint.

Right to reside in house

The aggrieved person, the victim of domestic violence: shall not be evicted, save in accordance with law, from the house or in arrangement with the defendant as per his financial resources, or in a shelter home.

Interim order       

If the Court is satisfied that the complaint prima facie shows that the defendant has committed an act of violence or is likely to commit an act of violence, it may issue an order on the basis of an affidavit

Protection order

The Court’s protection order in favour of the aggrieved person can direct the defendant to:

  • not have any communication with the aggrieved person,

  • stay away from the aggrieved person, with or without exceptions stay at such distance from the aggrieved person

  • wear an ankle or wrist bracelet GPS tracker for any act of grave violence

  • move out of the house in case of an act of grave violence if the life, dignity or reputation of the aggrieved person is in danger

  • surrender any weapon or firearm or prohibit the defendant from purchasing a firearm or obtaining license of a firearm

  • refrain from aiding or abetting an act of violence

  • refrain from entering the place of employment of the aggrieved person

  • refrain from causing violence to a dependent, or her other relatives.

The Court may require the defendant to execute a bond, with or without sureties, for preventing the commission of violence. The Court may pass an order directing the Women Protection Officer to provide protection to the aggrieved person or to assist the aggrieved person or the person making a complaint on behalf of the aggrieved person or direct the police to assist the Women Protection Officer in the implementation of the protection or residence order.

Residence order

The Court, in case of domestic violence, may pass a residence order.

Monetary order

The Court may, at any stage of the trial of a case, pass orders directing the defendant to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person.

Power to enter

  • The District Women Protection Officer or a Women Protection Officer, at any time, can enter in any place or house for the purpose of rescuing an aggrieved person but such officer or official shall not rescue the aggrieved person without her consent.

  • They shall give reasonable notice before entering.

  • If access to such a place or house cannot be obtained it shall be lawful for the District Women Protection Officer or a Women Protection Officer to enter such a place or house in collaboration with district authorities including police and to meet an aggrieved person residing or kept in the place or house, and in order to effect an entrance into such place or house, to force her entry into the house or place.

  • If the District Women Protection Officer or a Women Protection Officer who enters a place or house under this Act is detained in the house or place, she may force her exit from any house or place.

  • Notwithstanding anything contained in this section, the powers of entry in a house or place of abode of a woman shall only be exercised by a female officer of the protection system.