WUNRN
Asian
Human Rights Commission
October
5, 2010
Pakistan - Challenges for Domestic Violence Legislation
Rebecca Buckwalter-Poza
For more than a year, Pakistan's Domestic Violence (Prevention and Protection)
Bill has languished in legislative limbo, awaiting political resuscitation. The
National Assembly passed the bill on August 4, 2009, but the Senate failed to
do so within three months mandated by the Constitution, opting to let the bill lapse.
Mere consideration of a domestic violence bill constitutes a major development
in Pakistan, where gender-based violence is rampant. Approximately 80 percent
of married women in rural areas fear domestic abuse while 50 percent of women
in urban areas report having been subjected to spousal abuse. The Aurat Foundation reports that
gender-based violence increased by 13 percent from 2008 to 2009.
Men routinely attempt to disfigure or kill women who refuse to be forced into a
sexual relationship or marriage, particularly in rural areas. In 2008, five
women who refused forced marriages were shot, then buried alive in
Baluchistan -- and the province's representative defended the perpetrators'
"right" to do so. There has been an increase in abductions, forced
marriages, and forcible conversion by extremists in rural areas.
Current law defines abuse narrowly and makes it difficult for victims of
domestic violence to so much as prove a case against abusers and stops well
short of providing legal guidelines and institutional resources to ensure
investigation, prosecution, conviction, and punishment of offenders. In May of
last year, a
father and son who raped a widow in Dadu province escaped prosecution
despite their identities being known. In the same month in Naseerabad, an
elderly woman was beaten to death by a raiding party of policemen charged with
preventing such assaults.
The bill would establish protection committees to supervise the provision of
legal protections and guarantee medical care for victims of domestic violence.
Further, it would increase the consequences for perpetrators by making the
accused liable for the financial losses and damages inflicted on victims and
their dependents as well as imposing harsher sentences on convicted
offenders—with special sentencing guidelines regarding imprisonment and fines
for repeat offenders. The bill also requires regular review of domestic
violence legislation by the National Commission on the Status of Women. The
dual Augean tasks these conditions must accomplish will be to discourage
perpetrators from domestic abuse and encourage victims to report assaults by
shifting social and cultural norms.
Some of the same hurdles that led to the bill’s lapse in the Senate remain.
While some
cite the opposition of the Council of Islamic Ideology (CII) to the
original bill as a causal factor in its lapse, others accuse critics of playing
politics with religion by overstating religious opposition. The CII did
classify the bill as "discriminatory,"
pointing to the potential for its use by police as a justification for
violating the "sanctity of the home," and further objected that the
bill would increase
divorce rates. Yet the passage of the bill in the National Assembly and
support from within Islamist political parties suggest that the obstacles to
its passage in the Senate cannot be ascribed to religious opposition solely.
Attempts at implementation will have to address several potential flaws of the
legislation as well as contending with cultural resistance, the social legacies
of a broken justice system, and warped legal tradition. In particular, the
protection committees created by the bill may be inadequate, as the members of
the police force who comprise them may be among those contributing to the
prevalence of gender-based violence and ensuring impunity for offenders. The refusal to
report domestic violence is the most basic hurdle: women often do not
report domestic violence, in particular sexual violence, because of strong
social norms and fear of reprisal. Traditionally, there have been few
protections for victims. Filing a report and pressing charges often expose
victims to abuse, mistreatment, and deprivation of dignity at the hands of
police and within the justice system. In neighboring India, despite the fact
that the law now bans references to a victim’s sexual history or character in
sexual assault cases, police and physicians still use the "per
vagina," or the "finger test," in rape investigations to
determine whether or not an unmarried victim may have "been habituated to
sex" prior to assault. If the investigators suspect that a victim has been
sexually active, they may drop the case altogether, evidencing a wide
disconnect between legislative progress and the realization of rights for
sexual assault victims.
The most vocal critics of gender-based violence and the strongest proponents of
the bill come from within Pakistan. That the political debate has been
primarily internally driven is positive and may signal the presence of the
political will necessary to implement the bill and effect wide-spread change.
Last year’s Criminal
Law (Amendment) Bill, broadening definitions of sexual harassment and
increasing penalties for violators, also augurs well for future steps toward codifying
gender parity.
External actors and international organizations should contribute to the
efforts of supporters of domestic violence legislation in Pakistan by drawing
attention to the increase in gender-based violence and escalating severity of crimes
as well as explicitly raising the profile of the legislation, which has largely
disappeared from the radar of international media. Of course, would-be allies
must ground analyses and advocacy in the context in which this legislation must
operate. While Scandinavian countries, for example, have been exceptionally
successful in surmounting gender discrimination and promoting gender parity,
their legislative lessons and models are of little use in Pakistan, where those
who hope to enact legislation to prevent forms of gender-based and domestic
violence contend with fundamental debates, such as the question of whether
legislation that affects how men treat their wives should be considered a
violation of a widely acknowledged concept of rights. Protections for women
granted as basic and justified elsewhere in the world cannot be presumed in
Pakistan. The roots of gender-based violence and the mechanisms by which
legislation may attempt to influence its incidence differ, and actors and
allies must recognize these differences without attempting to oversimplify or
fall prey to political attempts to deflect debate.
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.