COMMENT: Violence against women and legal snags —Samina Ijaz
The Federal Shariat Court has struck down the clauses 11, 25 and 28 from the Women’s Protection Act 2006 and has ordered to restore the original wording of the Hudood Ordinances. The reversal of these provisions of the Hudood laws might open wide the doors of women’s persecution
It is hard for any woman violence victim or Razia Bibi, a prey of incest in Golra, to find justice in the true sense. Precedents are obvious, just like Mukhtaran Mai or many other victims who have not been dealt fairly by the system. In this recent case, the police has registered the FIR only on the charges of attempted murder but not on the accusation of sexual assault committed by her father. The unfortunate victim is insisting that she has been raped, but her plea is unheard by the cruel system which is blind and deaf to the rights of victims.
It is assumed that the legal system in any country should be consistent with the constitution and must protect all citizens without discrimination of sex, race, age, class, etc. The constitution of Pakistan guarantees the same in Article 25 and vows to specially protect women. Regrettably, the judicial system of the country, a product of the colonial period, blended with dictatorial structures and entrenched in bigoted culture cannot protect women from violence. Instead, it supplements the plight of women who intend to seek justice through procedural gaps that exist in the system and non-implementation of laws in general.
The legal system of the country witnesses only 11 percent conviction rate, which warrants changes in the ancient Code of Criminal Procedure 1898, Pakistan Penal Code 1860, and Law of Evidence 1984, which largely regulate the domain of police, courts and prosecution services. The system undertakes a long period for litigation and places a major burden on victims to prove the incidence of violence committed against them. It is based on the principle that an accused is deemed to be innocent until proved guilty. In the absence of scientific evidence collection methods and low capacity building of human resources, the police and prosecution officers just rely on the confession of the accused, which is rare due to corruption, political interference and dearth of a spirit of accountability in the system. It is a matter of record that a number of cases of violence against women, which came into the limelight, suffered either before trial or during the prosecution and could not see the conviction of the guilty. Gaps in the FIR, outdated methods of investigation and evidence collection, lack of professionalism in police and prosecution services and gender bias altogether hamper the process of a fair trail and provide justifications for the acquittal of culprits.
Like the regulatory framework, some discriminatory laws have also undermined women’s position in society and their access to the justice system. Discriminatory sections 17(2) and 151(4) in the Law of Evidence victimise women before and during the trial phase and contradict their right of equality in society. Controversial sections 309 and 310 in the Pakistan Penal Code make all the crimes compoundable against human body in the form of qisas (retribution) and diyat (blood money). It has become a trend in rural areas that in order to make money and to secure the benefits of such laws, the male family members often batter and murder their women in the name of honour. These grounds are accepted in the law as valid and promote a culture of immunity for regressive forces and impunity for the criminals. This hampers access to justice and strengthens the patriarchal cultural values against women.
Recently, the Federal Shariat Court has struck down the clauses 11, 25 and 28 from the Women’s Protection Act 2006 and has ordered to restore the original wording of the Hudood Ordinances. The reversal of these provisions of the Hudood laws might open wide the doors of women’s persecution. In their original form, these laws were manipulated against rape victims or innocent women to falsely implicate them in Hudood cases. A number of women were punished unjustifiably, because, under the Hudood laws, it was impossible to prove their innocence by producing four male witnesses in the court. The government has filed an appeal in the Supreme Court to reverse the judgment. This raises questions about the parallel judicial structures, which are oppressive political tools of undemocratic forces to exercise undue influence.
Laws for protection of marriage and family life, i.e. Marriage Restraint Act 1935, Muslim Family Laws Ordinance 1961, Dowry Act 1976 and Muslim Marriage Dissolution Act 1939 are very old and need to be amended according to the challenges of today’s age. The family laws lay down difficult and lengthy procedures for women to file cases for dissolution of marriage. Further, penalties placed in laws are insufficient to forbid any person from violation of the rules. Despite all the provisions available in these laws, it is also difficult to confirm that in violation of these laws somebody is held accountable by the system. Most of the time the culpable in violent crimes are close family members, which makes it even more difficult for women to take them to court.
These defects in the system have severely affected the empowerment of women in society and restricted the process of democracy and development. Now it is the time to change the system, which does not represent the aspirations of people in the present day.
The writer is associated with Centre for Peace and Development initiatives (CPDI). She is based in Islamabad and contributing in area of gender and development