Domestic Violence in Pakistan: Legislation still pending
Domestic Violence in Pakistan : 2006
The Current Proposal
The proposed bill, ‘The Prevention of Domestic Violence Bill, 2005’ is meant to rectify current shortcomings in the law by recognizing domestic violence as a free-standing crime. Modeled with reference to South African, Malaysian and United Kingdom domestic violence legislation the Bill develops an apparatus capable of dealing with domestic violence issues. Most important is to explain the relationship and range of persons covered by the legislation. The Bill provides an exhaustive list of the persons capable of presenting a case for domestic violence. Also defined is the actual ambit of the crime and the range of acts encompassed by domestic violence which ranges from psychological to physical abuse.
The Bill creates an office of ‘Protection Officer’ who has an array of powers to check the occurrence of domestic violence as well as guide the victim. The proposed Bill accounts for socio-cultural norms and understands that it is important to help families resolve differences and problems rather than broker separation agreements. It is meant to help women understand that violence is unacceptable and they have a right to their bodily integrity. To this end, the Bill envisages a Family Conciliatory Council which helps the victim and offender to come together and resolve the underlying problems. The remedy of Protection Order is created to help protect the victim from continued violence. A magistrate has the power to award a Protection Order prohibiting the offender from certain activities that are recognized as violence but the power of prohibition is qualified by considerations pertaining to both the victim and the offender. Contravention of the Protection Order results in a fine or fine and detention both.
‘The Prevention of Domestic Violence Bill, 2005’ represents a careful balance between socio-cultural norms and the victims need for protection. It is also cognizant of the problems faced by the offender and institutes a mechanism for balancing victim-offender needs by encouraging conciliation. The bill also covers the important provision of a mechanism that can cope effectively with covering domestic violence.
At present the Bill has been summarily dismissed by the Speaker of the National Assembly off the agenda, where it was introduced in early 2005. Support is needed by civil society to get it back into the National Assembly where it needs thorough debate and careful consideration.
Social and Cultural Background
Domestic violence implies intra-family violence, or violence that occurs in an intimate setting and results in the control of one person by the other. It is predominantly a feminized crime. To define domestic violence in terms of a singular act is near to impossible because domestic violence is a pattern of behaviour. This pattern of behaviour encompasses a number of acts all of which are capable of constituting domestic violence. This sort of violence refers to both physical and psychological abuse of a person and the following acts which can be identified as domestic violence are not exhaustive:
• Physical violence
• Threatening violence
• Economic abuse
• Emotional abuse
• Controlling behaviour
• Threatening to harm the victims children or extended family
• Forced relations
As far as the nature of violence is concerned, “public” violence has been much easier to address since it is open to scrutiny and public condemnation. “Privacy” is the main impediment to the recognition and consequent action against domestic violence. This is also because women have historically been relegated to the “private” sphere, and the home is viewed as a concealed location. It is necessary to avoid reducing domestic violence to essentialism and recognise that it needs to be viewed through the appropriate cultural lens of the country in question. The western model of domestic abuse looks at the problem through the lens of gender. While the abuse of women in the family continues to depend on structural inequality in the family unit, this inequality cannot be explained away through gender differentials or though the popular, one-word oversimplification that is “patriarchy.” The abuse of female servants in the domestic sphere may be at the hands of upper-class women – and here, the power hierarchy of class cuts through that of gender. Similarly, the burning of brides, for instance, is often perpetrated by the mother-in-law rather than the husband, which gives one the sense that women can be just as complicit in maintaining and perpetuating patriarchal structures as men can.
With a lack of statistical data, compounded by the fact that women do not come forth and report violence against their person it is difficult to estimate the frequency and magnitude of the problem. In Pakistan, problems within the family unit such as economic problems as well as high rates of unemployment and low status of women have aggravated or have been a major causal factor behind violence. Since publishing its 1999 report, Pakistan: Violence against women in the name of honour, Amnesty International has found that while few positive changes have taken place in the area of women's rights, the state in Pakistan still by and large fails to provide adequate protection for women against abuses in the family and the community.
All forms of domestic violence, for a number of reasons, are even harder to tackle than other crimes against women. Stove burning – a popular form of domestic violence in Pakistan – is frequent because this mode of murder is easy to pass off as an accident and can easily go undetected. When it was pointed out that most of the stoves that were being used were of the non-pressure kind that could not “burst”, the stories changed from stove explosions to nylon clothes catching fire. The majority of burn victims succumb to their injuries before they reach hospitals and therefore the police do not get a chance to record their statements. Women who report rape or sexual assault encounter a series of obstacles. These include not only the police, who resist filing their claims and mis-record their statements, but also medico-legal doctors, who focus on their virginity status and lack the training and supplies to conduct adequate examinations. Women who file rape charges open themselves up to the possibility of being prosecuted for illicit sex if they fail to "prove" rape under the 1979 Hudood Ordinances, which criminalize adultery and fornication. As a result, when women victims of violence resort to the judicial system for redress, they are more likely to find further abuse and victimization.
Women victims of domestic violence encounter high levels of unresponsiveness and hostility, as actors at all levels of the criminal justice system typically view domestic violence as a private matter that does not belong in the courts. Police respond to domestic violence charges by trying to reconcile the concerned parties rather than filing a report and arresting the perpetrator, and the few women who are referred to medico-legal doctors for examination are evaluated by skeptical physicians who lack any training in the collection of forensic evidence. When asked about the domestic violence victims who have been examined at his office, the head medico-legal doctor for Karachi explained that "25 percent of such women come with self-inflicted wounds. " Research has further indicated that domestic violence cases are virtually never investigated or prosecuted, which makes it even more difficult to understand from which angle the issue needs to be approached.
Some Facts and Figures
• A study by the Punjab Women Development and Social Welfare Department released in October 2001 said that some 42% of women accepted violence as part of their fate, while over 33% felt too helpless to stand up to it; only 19% protested and only 4% took action against it. The perpetrators of such violence were male relatives (53%), husbands (32%) followed by other women (13%) and other relatives (2%). The report stated that only some five per cent of rape and 'honour' crimes were reported.
• Studies on violence against women estimate that a woman in Pakistan is raped every two hours; approximately 70-90 percent of women suffer from some form of domestic violence; and there were at least 3,296 cases of violence against women in 2002. The Human Rights Commission of Pakistan (HRCP) documented 895 cases of abuse against women for the first part of 2003, consisting of 260 murders and 124 cases of gang rape.
• The human rights organisation Lawyers for Human Rights and Legal Aid in Karachi in the year 2000 recorded 736 cases of physical abuse of women; some 600 cases of sexual abuse, including about 400 cases of rape; 490 cases of abuses of children of both genders, including 190 rapes of girls; 540 women's suicides, 482 kidnappings of women and 160 women burned to death. According to the Pakistan Institute of Medical Sciences, over 90 per cent of married women report being kicked, slapped, beaten or sexually abused when husbands were dissatisfied by their cooking or cleaning, or when the women had 'failed' to bear a child or had given birth to a 'wrong' gender child, a girl.
• The same organisation reported that ten women on average were physically abused every day during the first eight months of 2004. The report stated 2,367 cases of physical abuse were reported throughout the country of which 1,518 were reported in Punjab, 565 in Sindh, 225 in NWFP and 59 in Balochistan. Of the 2,367 cases, 940 women were murdered, while others had been victims of torture or beatings. In most cases the perpetrator was related to the victim.
• Estimates of the percentage of women who experience spousal abuse alone range from 70 to upwards of 90 percent.
• Further figures from HRCP indicate that 4,101 people had fallen victim to honour killings across the country in the past four years. Out of this number 2,774 were women.
• Stove burning, indigenously known as chula deaths are common in Pakistan. HRCP recorded 91 incidents of burning, 43 of which were stove burning incidents and 48 of women who were set on fire. More alarming is the fact that only 22 of these cases were ever registered while only nine persons were arrested. In 1997, there were only three burn centre hospitals in all of Pakistan, an indication of structural weakness in the face of crisis. The cost of treatment for serious burn cases can be close to Rs.10,000 a day, a sum that most cannot afford.
• Another common form of violence against women in Pakistan is acid burning. The last ten years has seen 15,000 cases of acid burns and in most cases, women who were victims of acid burns had suffered at the hands of their husbands or in- laws.
The Penal Code has sections mandating liability for causing “hurt” (Sec 319) or “Grevious Hurt” (Sec 320). The latter is defined as including:
- permanent privation of the sight in either eye
- permanent privation of the hearing in either ear
- privation of any member or joint
- destruction or permanent impairing of the power of any member or joint
- permanent disfigurement of head or face
- fracture or dislocation of a bone or tooth
- or any hurt that endangers life or which causes the sufferer to be [sic] during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits.
The punishment for causing grievous hurt includes imprisonment for up to ten years and a fine. Judging from this description, many cases of domestic violence would fall into the category of having been “grievously hurt.” But the police do not register cases of domestic abuse under this section. In addition, women themselves often do not want to bring charges against their abusers for fear of the repercussions.
Pakistani law not only fails to criminalise domestic violence, but particularly marital rape, which is a common form of violence against women. An earlier provision of the Pakistan Penal Code treated marital rape of girls under the age of 14 as an offence, however, this provision was removed with the introduction of the Hudood Ordinance. All complaints regarding acts of domestic violence that fall within the ambit of the criminal law, such as assault or attempted murder, are routinely ignored or downplayed by the police as a result of biased attitudes, ignorance and lack of training with respect to the scope of the law. Such resistance on the part of the police to recognize domestic violence as a crime allows the battering of women to continue with impunity and contributes to a climate that deters women from reaching out for safety and justice.
The presence of domestic violence is compounded by a lack of specific legal provisions. The Pakistan Penal Code contains provisions regulating the criminal offences against the person, but domestic violence is governed by the provisions of the ‘Qisas and Diyat Ordinance 1990’. This particular Ordinance deals with Islamic criminal laws on bodily harm (intentional and unintentional). Although domestic violence is capable of being covered, the lack of a distinct set of legal principles has encouraged judges to treat the matter as a private family matter or at best, dealt with under the civil jurisdiction. If a case on domestic violence does come forth for prosecution, under the ‘Qisas (retribution) and Diyat (compensation) Ordinance 1990’ the victim or victim’s legal heirs have a right to retribution/compensation or pardoning of the offender. Based on these factors, the Ordinance suffers from manifold problems. Firstly, by vesting the right to remedy/forgiveness in the victim’s hands it makes disempowered victims i.e. women or children vulnerable to more powerful segments in society. In cases of interpersonal violence, it makes the victim more susceptible to pressure to pardon. Where compensation is accepted the results are skewed as the money flows from one nuclear family to the other and the victim herself may not receive any benefit. Consequently, in the absence of explicit criminalization of domestic violence, police and judges have tended to treat it as a non-justiciable, private or family matter or, at best, an issue for civil, rather than criminal, courts. This "privatization" of crimes by the qisas and diyat laws has particularly damaging consequences in cases of intra-family violence, the majority of which involve domestic abuse or spousal murder. As a result of the law, not only are women victims of domestic violence and their heirs susceptible to pressure and intimidation to waive qisas, but the concept of monetary compensation can be meaningless in a situation where payments flow from one member of the nuclear family to another.
When the qisas and diyat laws were first proposed in the early 1980s during General Zia's Islamization campaign, the testimony of women was not accepted in the execution of qisas, which meant that a woman accused of committing an offense requiring retribution was not allowed to testify on her own behalf. Moreover, when the victim was a woman, the amount of diyat was halved. The language of the current law does not distinguish between the sexes with regard to payment of diyat, but both the amount of the diyat and the validity of a woman's testimony have been left to judicial discretion, the former to be decided "subject to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah." Since traditional interpretations of Islamic law contemplate the diyat for a woman victim to be half of that for a man, the gender-neutral language of the current codified law on diyat is practically meaningless.
In addition to actual legislation, judicial attitudes are also crucial in understanding the never-ending cycle of violence against women. No formal studies have been done on the subject, but a survey conducted in a neighbouring country in which 109 judges were interviewed is revealing. 74% felt that preservation of the family should be a woman’s primary concern even if violence was a problem, 48% felt there were certain occasions when it was alright for a husband to slap his wife, and 90% said that they would not opt for legal redress in case of domestic violence involving their own daughters female relatives. While these statistics are several years old, it is probably safe to assume that attitudes towards women have not changed radically in the past five or six years.
Pakistan’s International Obligations
Pakistan is obliged by its ratification of international treaties to ensure respect for women's human rights and fundamental freedoms. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to which Pakistan acceded in 1996, requires the government to take action to eliminate violence against women as a form of discrimination that inhibits women's ability to enjoy rights and freedoms on a basis of equality with men. Pakistan's CEDAW obligations extend to the provision of an effective remedy to women victims of violence. The International Covenant on Civil and Political Rights (ICCPR), to which Pakistan is not party even though it is a crucial covenant in international human rights law, requires governments to ensure the rights to life and security of the person of all individuals in their jurisdiction, without distinction of any kind, including sex. Pakistan should not only refrain from, but should also prevent private actors from committing, acts of violence against women. According to Human Rights Watch, rather than responding actively to violations of women's rights to life, to security of the person, the government has acted, through its police, medico-legal, prosecutorial, and judicial systems, to block access to redress and justice for women victims of violence.
The Government’s Response
General Musharraf has acknowledged that women in Pakistan face an uphill task in securing justice, and hence promised a range of commitments to ensure adequate protection. While the government has made statements saying that it is committed to combating the practice of domestic violence practices through administrative instruction ensuring that the due process of law takes place without hindrance, the status of women in Pakistan stays largely the same. According to international organisations, in fact, there has been an alarming increase in the numbers of victims that fall prey to this crime. At present such incidents are usually ignored by government officials, especially in rural or tribal areas, where some culprits are either powerful or well-connected or simply manage to bribe their way out of punishment. The real test of the government's commitment to abolish mistreatment of women in the domestic sphere would lie in the elimination of all possible escape routes for the offenders.
In order to prohibit eventually in law all acts that constitute violence against women, the present government needs to review existing laws, including the zina law and the qisas and diyat law with a view to ensuring their consistency with the UN Women's Convention; laws found to discriminate against women or to allow for or condone violence against women or to hamper legal redress should be removed or suitably amended. It should ensure that legislation prohibiting slavery, debt bondage and the trafficking of women is strengthened and strictly implemented. All law enforcement officers, police personnel and judicial staff should be thoroughly familiarized with the laws protecting women and Pakistan's obligations under the UN Women's Convention. A specific set of laws should be enacted explicitly criminalizing all forms of domestic and familial violence against women, including assault, battery, burns, acid burns, sexual assault, forced abortions, and illegal confinement, at the hands of husbands, in-laws, and other relatives.
A means of measuring the government’s commitment to issues of gender can be gauged through the political activities of the past several years. The presence of 205 women MNAs, MPAs and Senators played a part in generating debate on women’s issues within assemblies. The Hudood Ordinances, the need for laws against Honour Killings and karo-kari and domestic violence were some of the issues that were discussed. A bill against honour killings which increased the sentence for such killings to a minimum of ten years in prison and laid down capital punishment as the maximum penalty, was passed at the end of October. The bill passed amidst opposition and failed to remove the crucial provision for compoundability of “honour killings” cases through compromise and waiver of Qisas. HRCP and Citizens Action Groups Against Honour Killings established a few weeks prior to the campaign against honour killings states that this raised fears ground realities would not change. There was only limited headway in moving forward legislation that could ensure greater safety to women. The PPP-P’s Protection and Empowerment of Women Bill 2004, which sought a repeal of discriminatory laws, met with opposition by the ruling party in March and could not be passed. The efforts to repeal the Hudood Laws were blocked when the Federal Government, under Chuadry Shujaat, decided in July that they would be sent to the Council on Islamic Ideology for comment. A proposed draft by the PPP for a bill against honour killings was thrust aside by the government-sponsored bill, containing many loopholes, hastily passed in October. HRCP held one of the motives behind the bill was to quash the PPP-moved bill. Now, a draft law against domestic violence in the Punjab, sent to a house standing committee in 2003, still awaits final decision on its fate. The second Hudood Repeal Bill moved by the PPPP emerged on the National Assembly agenda by 7 Feb, 2006 and was summarily sent to Committee without debate.It is feared that the legislation will sit there gathering dust, or will be summarily disposed with in the Committee on Women’s Affairs.
A Recent Case Study Illustrating the Problematic Role of the State in Cases of Domestic Violence
Friday, November 25, 2005 – The Daily Times
Agony of Rehana Bibi: From Domestic to State Violence
By Ali Waqar
LAHORE: Despite all the tall claims by the government, getting help against domestic violence for women is still a herculean task in Pakistan as the state does its best to discourage the victims.
Rehana Bibi’s case is a glaring example in this regard. Rehana has tried to get justice against her violent husband for thrashing her and dumping her in front of her parent’s house, but to no avail. Her real ordeal started when she tried to get a case registered against him. Currently, under protection with AGHS Legal Aid Cell, Rehana is now fed up with the state organs that are supposed to get her justice. Belonging to Shahdara Town, Lahore, Rehana married Muhammad Riaz, a factory worker, almost 11 years ago in Murdekey and she has a child. Though her husband abused her regularly her plight increased when she found out that her husband had an affair with a woman named Naveeda. Not tolerating criticism from Rehana for his affair, Riaz thrashed her with a baton on November 10 and then told one of his relatives to leave her at her father’s home in Shahdara. She needed medical treatment when her parents found her lying on their doorstep.
Her father took her to a local hospital but it did not treat her and sent her to a bigger hospital in the city. She was denied emergency treatment at Mayo Hospital on November 11 and Lahore General Hospital (LGH) on November 12 because she did not have a medico-legal certificate. Hospitals still ask for medico-legal certificates before treating violence or accident victims despite the fact that the federal government passed a law in 2004 making emergency treatment compulsory before a medico-legal certificate is necessary. The law also states that female medico-legal officers must deal with cases of women. Also, medico-legal certificates are denied without a police report, which was refused by the local police station to the victim’s father despite repeated requests. Still untreated, she rushed to the Punjab inspector general of police (IG) on November 14. She was not allowed to meet the IG but a guard referred her to the AGHS Legal Aid Cell.
The AGHS Legal Aid Cell received Rehana and on the same day, an AGHS team and the victim went to a women’s police station to lodge a case and seek justice. She was turned away and no legal help was offered by the police station because the case occurred out of their precincts. Later, the team and the victim went to LGH but were denied treatment again. They were told to seek a local magistrate’s help if they were unable to manage a police report for a medico-legal certificate. The team and the victim went to a magistrate for a medico-legal certificate but magistrates sent the case from one to another. Ultimately, the victim succeeded in getting a magistrate’s permission and went to the LGH for a medico-legal certificate.
Although part of the victim’s agony ended here, another began as Rehana was repeatedly received by the male MLO (Medico-Legal Officer) in the LGH. The officer first blamed her for the incident and said that she was framing her husband. Later, he not only humiliated other victims waiting for their turn but also delayed the examination unnecessarily. The AGHS team witnessed that the LGH MLO also hit some victims.
Later, he asked Rehana to recite the Kalma (one of the five tenets of Islam), which had nothing to do with her medico-legal examination. When the AGHS team protested, he unnecessarily delayed the final report of ML certificate till 10.00pm. Finally when the victim went to the LGH additional medical superintendent, he said that doctors had left and that she should return next morning for better treatment. However, Rehana managed to get a prescription late in the night on November 15 and never returned to hospital. Her father is still attempting to lodge an FIR (First Information Report) against domestic abuse.
AGHS Legal Aid Cell member Hina Jillani said the case was a glaring example of the state’s appalling role in assuring women rights. She said Rehana had become a symbol of Pakistani rural women suffering from agony of domestic violence and denied justice.