Asian Human Rights Commission
October 5, 2010
Pakistan - Challenges for Domestic Violence Legislation
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.