Image source: Arab News Pakistan, ‘In northwestern Pakistan, domestic violence up by 45% during coronavirus lockdowns’ (ANP, 15 March 2021) In northwestern Pakistan, domestic violence up by 45% during coronavirus lockdowns | Arab News accessed August 1, 2022.
Introduction
It is necessary to institutionalise measures to prevent and protect women, children, and other vulnerable people from domestic violence and matters related to or incidental to such violence. Considering increasing international standards, many States have ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),[1] which requires them to recognise domestic violence against women as a violation of fundamental human rights and to incorporate these international standards into domestic legislation. In 1996, Pakistan ratified CEDAkW. Domestic violence is not specifically addressed in the Pakistan Penal Code,[2] however, various sections address miscarriage, causing harm, restraint, and other difficulties. Despite these rules, women have been prosecuted rather than given aid and assistance.
Pakistan, the sixth most dangerous country in the world for women according to the Global Gender Gap Index of 2018,[3] was still without a Domestic Violence Bill until earlier this year. It was only in April 2022 that a Bill on the matter was approved by the National Assembly. Whilst the lateness of such measures is alarming, the road to the Bill’s adoption still finds obstacles in its way. The hindrances have ranged from similar bills on the matter not being approved by the Senate in 2009 because of the myriad reservations of the Council of Islamic Ideology (CII),[4] to facing procedural oppositions in 2012 and labelled as enacting “anti-Islamic values”. [5] These objections accompanied the Bill even after it was approved by the National Assembly in 2022. Punishing acts of “physical, emotional, psychological, sexual and economic abuse”[6] with potential imprisonment ranging from six months to three years, as well as a fine,[7] the Bill was still criticized for being anti-Islamic and threatening the family configuration.
In contrast to federal law, as aforementioned, all Pakistani provinces have adopted specific legislation tackling domestic violence; in 2013, Sindh enacted its domestic violence legislation, Balochistan in 2014, Punjab in 2016, and Khyber Pakhtunkhwa in 2021.
Sindh
The Domestic Violence (Prevention and Protection) Act, 2013[8] was enacted by the Sindh Provincial Assembly and signed by the Governor of Sindh in March, 2013. The Domestic Violence (Prevention and Protection) Act, 2013 includes criteria for victim protection and monetary assistance, as well as punishments in the form of fines or imprisonment for those who are found to have violated protection orders. Despite the fact that numerous laws have been enacted to protect women from abuse, significant violations continue to occur in Pakistan and in provinces such as Sindh. According to the information given by the Women Protection Cell, Sindh reported a total of 6,842 cases of violence against women. This illustrates a lack of enforcement of current legislation, worsening their situation.[9]
The most notable section of the Act is Section 6, which provides compensatory provisions for victims of domestic violence. The first violation of a protection order is punishable by imprisonment for a minimum of six months or with a fine of at least ten thousand rupees to be paid as compensation to the aggrieved person (or both). In a country where women are to some extent considered accountable for the violence against them, considering her as a victim and compensating for her ordeal accordingly was a first under Pakistani law.[10]
Balochistan
The Balochistan Assembly passed the Domestic Violence (Prevention and Protection) Act 2014.[11] The legislation generally follows the pattern of the aforementioned landmark Act passed on the same issue by the Sindh Assembly, It defines different forms of domestic violence, including physical, sexual and economic abuse, stalking, harassment,. as well as verbal and emotional abuse. The definition of the 2014 Act passed by the Balochistan Assembly, however, is not as wide-ranging as that in the Sindh legislation.[12]
The 2014 Act is classified as criminal and penal law. It covers the entire province of Balochistan, with the exception of the province’s tribal territories, which cover a large area. Domestic violence in Balochistan is defined as “any intentional act of gender-based or other physical, physical, or psychological abuse done by an accused against women, children, or other vulnerable persons with whom the accused is or has been in a domestic relationship.” Among other things, the Act tackles assault, criminal force, criminal intimidation, economic abuse, harassment, harm, mischief, physical abuse, stalking, sexual abuse, verbal and emotional abuse, and unjust imprisonment.[13]
It has also been observed that the judiciary, particularly in lower courts, is prejudiced towards women who seek help from the legal system. According to an Asian Human Rights Commission assessment, violence against women is regarded as inconsequential by Pakistan’s judiciary, particularly the lower judiciary.[14] Even though women in Pakistan may often be considered docile, some women do take action to battle such injustices. Examples of modernisation of Pakistani laws like the Domestic Violence Act are encouraging.[15] On every occasion, novel legislation is instituted to empower women, especially in oppressive cultures.
Punjab
The Punjab Protection of Women against Violence Act, which establishes a protection system for women victims of domestic violence, was unanimously adopted by the Punjab Assembly on 24 February 2016.[16] Despite this, the adoption of the Act has been the object of debate and controversy by many, in particular by religious groups and the Council of Islamic Ideology (CII), who have considered the Act as anti-Islamic.[17]
The Act ensures protection from domestic, sexual and psychological violence, as well as economic abuse, stalking and cybercrimes.[18] It enables the victim, or a person authorized by this latter, or even the Women Protection Officers, to submit a complaint to obtain a specific order to prevent further violence.[19] Orders can be of a different nature: interim orders, protection orders, residence orders and even monetary orders. Interim orders can be passed by the Court at any stage of the proceeding when it appears to be “just and proper”.[20] Whereas protection orders impose the accused not to have any communication and to stay a designated distance away from the victim,[21] residence orders ensure that the victim is not evicted from the house.[22] However, the victims might be relocated into a shelter home for purposes of relief, protection and rehabilitation.[23] Lastly, monetary orders require the offender to pay monetary relief to the victim in compensation for the loss of earnings, medical expenses and any other harm suffered.[24] The violation of the terms of interim orders is punished with imprisonment of up to one year or a fine between 50,000 rupees and 200,000 rupees.[25]
Several disadvantages can, however, be highlighted. First of all, the definition of “aggrieved person” under the Act does not specify whether this is applicable exclusively to women, or even to girls.[26] Since no provisions deal specifically with girls, the definition of women needs to be broadened accordingly, so that women of all ages could rely on such legislation.[27] Moreover, the definition of domestic violence, as 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”[28] appears too restrictive, as it requires a strong existing relationship between the victim and the perpetrator. Lastly, the definition of domestic violence contained under section 2(1)(r) of the Act only elaborates on the definition of economic abuse and psychological violence but does not contain any specific definition of domestic and sexual violence, nor on stalking and cybercrime.
However, the main drawback of the Act is that it does not criminalize the act of committing domestic violence in itself. The offender might be punished only in those cases where there is an obstruction of a protection officer, a violation of a court order, or where a false complaint is filed.[29] This might represent a lack of will of the government to actively promote a policy that effectively eradicates domestic violence. There is no doubt that establishing strict penalties proportional to domestic violence would have been a stronger deterrent for further offences.
Khyber Pakhtunkhwa
Khyber Pakhtunkhwa was the last province in Pakistan to adopt a law on domestic violence. Although the first draft was presented in 2012 during the coalition government of the Awami National Party and the Pakistan Peoples Party, it was not until 2021 that the Khyber Pakhtunkhwa Domestic Violence Against Women (Prevention and Protection) Act, Act No. III of 2021 (hereafter Khyber Pakhtunkhwa Act) was enacted.[30] The delay was caused by the opposition of religio-political parties.
The Khyber Pakhtunkhwa Act[31] stipulates that domestic violence is punishable by imprisonment for no less than one year and up to five years as well as liability for a potential fine.[32] Domestic violence, as defined in the Khyber Pakhtunkhwa Act, includes inter alia psychological, economic, physical and sexual abuse, abetment, criminal force, harassment and confinement.[33] The aggressor in this case is a person having any family relationship with the victim whether created by marriage or kinship.[34]
The Khyber Pakhtunkhwa Act stipulates the formation of district protection committees that report to the Provincial Commission on the Status of Women and is consisted of 10 members each, including a female member of the provincial assembly, a gynecologist and a psychologist.[35] The meetings of this committee are presided by a woman member of the provincial assembly and in case of her absence; the deputy commissioner takes her place. [36] MPA Nighat Yasmin Orakzai introduced this amendment.[37] The committees’ decisions, are taken by the majority of the members present, and the chair of the meeting have a casting vote in case of a tie. [38] As per section 6 of the Khyber Pakhtunkhwa Act, the committees raise awareness on domestic violence, reporting it and the rights covered in this act, help the complainants by providing medical and shelter assistance and keep records of every incident.[39]
As per Section 8(2), the incident may be referred for mediation between one member from each side and a neutral mediator who shall try to resolve the matter within a period of 30 days.[40] Additionally, an application may be filed to the court of District within 15 days of the incident and the court should progress with a trial and decide the case in 60 days.[41] The court should not postpone a case unless it is in the interest of justice and, if so, the adjournment should not be made for more than two working days.[42]
Generally speaking, and before delving into the details, it is first important to mention that the Khyber Pakhtunkhwa Act is not gender-neutral. The victims are only women and this is reflected by the extensive use of the pronoun “her”, e.g. “The complainant or her guardian”. [43] The Khyber Pakhtunkhwa Act should be gender-neutral and gender-specific to address the needs of female survivors while also addressing and punishing the cases of violence against men.
Domestic violence as defined in the Khyber Pakhtunkhwa Act is broad and applies to all persons who have an intimate relationship, which is not limited to a marital one. It expands to include family and household relationships. Whilst a progressive measure, there remains scope for further amendments to ensure the broadest possible definition.
Regarding sentences, a fine should not be charged on its own. It should, for example, be coupled with an order requiring the perpetrator to undergo treatment/rehabilitation. This is because imposing fines can burden the survivor and can be considered as inappropriate because it is not enough to change the perpetrator’s behaviour.[44]
Services to assist survivors of domestic violence are also provided by the legislation and assigned to the district committees. Although special courts procedures such as timely management of the cases and the prohibition of adjournment are granted, neither special courts nor special police units are designated to address this issue.
Finally, and most importantly, is the issue of offering mediation. This is the weakest provision of the Khyber Pakhtunkhwa Act as it disregards the judicial power to look into the cases of domestic violence,[45] assumes that the victim and the aggressor have the same negotiating power, and both are accountable for violence, without really focusing on punishing the offender.
Conclusion
Overall, the adoption of domestic violence legislation in all Pakistani provinces is a step in the right direction. Despite this, statistics on violence against women and conviction rates demonstrates a lack of implementation of these laws.[46] Perpetrators are often not held accountable for their offences, and justice is not effectively ensured to victims.
Through its ratification of the U.N. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1996, Pakistan assumed the obligation to protect women from sexual and other forms of gender-based violence perpetrated by state agents and private actors alike. The United Nations remains concerned about women and girls’ lack of understanding of their rights, as well as the physical and economic difficulties they encounter in seeking justice. It also fears that alternative legal systems may discriminate against women. The United Nations, on the other hand, applauds the State Party’s efforts to strengthen the judicial system, including the allocation of adequate human, technical, and financial resources, as well as regular capacity-building on women’s rights and gender equality for judges, prosecutors, lawyers, police officers, and other law enforcement officials.[47]
The Pakistani government, along with the relevant statal agencies, need to put further efforts into implementing provincial legislation on domestic violence against women. The time is ripe to ensure wider dissemination of these laws, strengthen their application and ensure mechanisms to hold the government accountable when the law is not enforced.
[1] UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13.
[2] Pakistan Penal Code, Act No. XLV, 6 October 1860, <https://www.pakistani.org/pakistan/legislation/1860/actXLVof1860.html> accessed 27 July 2022.
[3] World Economic Forum, ‘The Global Gender Gap Report: 2018’, <https://www3.weforum.org/docs/WEF_GGGR_2018.pdf> accessed 31 July 2022.
[4] HuffPost, ‘Troubled History of Domestic Violence Legislation in Pakistan’ (7 October 2010), <https://www.huffpost.com/entry/troubled-history-of-domes_b_753400> accessed 31 July 2022.
[5] The Express Tribune, ‘Citing “controversial” clauses: Clerics vow to resist passage of Domestic Violence Bill’ (17 April 2012), <https://tribune.com.pk/story/365842/citing-controversial-clauses-clerics-vow-to-resist-passage-of-domestic-violence-bill> accessed 31 July 2022.
[6] Domestic Violence (Prevention and Protection) Act, 2020, s 3 <https://na.gov.pk/uploads/documents/1618907639_620.pdf> accessed 31 July 2022.
[7] Ibid, s 4.
[8] Provincial Assembly of Sindh, The Domestic Violence (Prevention and Protection) Act, Act No. XX of 2013 (19 March 2013), <https://www.af.org.pk/Acts_Fed_Provincial/Sindh_Acts_since_2002/Sindh%20%202013/The%20Domestic%20Violence%20(Prevention%20and%20Protection)%20Act,%202013.pdf> accessed 8 July 2022.
[9] Ali, Mumtaz & Tunio, Shabana & Bhutto, Niaz & Baloch, Gul. (2020). Violence against Women: A case of Sindhi Press. 86-106.
[10] Nadeem Bhatti, ‘Domestic Violence against Women: A Case Study of District Jacobabad, Sindh Pakistan’ (2011), <https://pdfs.semanticscholar.org/f592/d26355001faf3122c3d814242fc75a005d58.pdf> accessed 27 July 2022.
[11] Balochistan Provincial Assembly Secretariat, The Balochistan Domestic Violence (Prevention and Protection) Act, Act No. VII of 2014 (12 February 2014), <https://pabalochistan.gov.pk/pab/pab/tables/alldocuments/actdocx/2018-10-23%2014:37:37act072014.pdf> accessed 8 July 2022.
[12] Jacqui True, ‘Ending violence against women in Asia: International norm diffusion and global opportunity structures for policy change’ (2016) UNRISD Working Paper, <https://www.econstor.eu/handle/10419/148758> accessed 28 July 2022.
[13] Salman Muhammad Soomar, ‘Determinants of domestic violence among women of reproductive age (15–49 years) in Quetta, Balochistan—a mixed-method protocol’ (2022) 12(5) BMJ Open 2022, <https://bmjopen.bmj.com/content/12/5/e057299> accessed 27 July 2022.
[14] Reema Omer, Pakistan: Crucial human rights review <http://www.humanrights.asia/news/forwarded-news/AHRC-FAT-002-2018/> accessed 28 July 2022.
[15] UN Women ‘Legislation on Violence against Women and Girls’, <https://asiapacific.unwomen.org/en/countries/pakistan/evaw-pakistan/legislation-on-vaw> accessed 19 July 2022.
[16] The Punjab Protection of Women against Violence Act (2016) <http://punjablaws.gov.pk/laws/2634.html> accessed 24 July 2022.
[17] Lums Law Journal, ‘The Punjab Protection of Women Against Violence Act 2016: A Legislative Review’, <https://sahsol.lums.edu.pk/law-journal/punjab-protection-women-against-violence-act-2016-legislative-review> accessed 25 July 2022.
[18] The Punjab Protection of Women against Violence Act (2016), s 2(1)(r).
[19] ibid, s 4.
[20] ibid, s 6.
[21] ibid, s 7.
[22] ibid, s 8.
[23] ibid.
[24] ibid, s 9.
[25] ibid, s 20.
[26] ibid, s 2(1)(a).
[27] Legislation Watch, ‘The Punjab Protection of Women Against Violence Act 2016: A Critique’, <https://www.af.org.pk/newsl/1486547583.pdf>.
[28] The Punjab Protection of Women against Violence Act (2016), s 2(1)(h).
[29] ibid, s 18-20.
[30] ‘KP finally legislates to criminalise domestic violence’ Dawn (16 January 2021) https://www.dawn.com/news/1601824 accessed 31 July 2022.
[31] Khyber Pakhtunkhwa Domestic Violence Against Women (Prevention and Protection) Act, Act No. III of 2021 (Khyber Pakhtunkhwa Act) https://www.pakp.gov.pk/wp-content/uploads/The-KP-Domestic-Violence-against-women-provention-and-protection-act-2021.pdf accessed 31 July 2022.
[32] Khyber Pakhtunkhwa Act, s 3(2).
[33] ibid, s 2(1)(p).
[34] ibid (n 5), s 2 (1).
[35] ibid (n 5), s 4(1).
[36] ibid (n 5), s 5(3).
[37] ibid (n 1).
[38] ibid (n 5), s 5(5).
[39] ibid (n 5), s 6.
[40] ibid (n 5), s 8(2).
[41] ibid (n 5), s 12 (1).
[42] ibid (n 5), s 12(2).
[43] ibid (n 5), s 8(1).
[44] Department of Economic and Social Affairs, ‘Handbook for Legislation on Violence against Women’ 2010.
[45] ibid (n 5), s 8(2).
[46] Legislation Watch, ‘The Punjab Protection of Women Against Violence Act 2016: A Critique’ (n 25).
[47] UN, Convention on the Elimination of All Forms of Discrimination against Women, ‘Concluding observations on the fifth periodic report of Pakistan.
Bibliography:
Primary Sources
Balochistan Provincial Assembly Secretariat, The Balochistan Domestic Violence (Prevention and Protection) Act, Act No. VII of 2014 (12 February 2014), <https://pabalochistan.gov.pk/pab/pab/tables/alldocuments/actdocx/2018-10-23%2014:37:37act072014.pdf>.
Domestic Violence (Prevention and Protection) Act, 2020, s3 <https://na.gov.pk/uploads/documents/1618907639_620.pdf>
Khyber Pakhtunkhwa Domestic Violence Against Women (Prevention and Protection) Act, Act No. III of 2021 (Khyber Pakhtunkhwa Act) https://www.pakp.gov.pk/wp-content/uploads/The-KP-Domestic-Violence-against-women-provention-and-protection-act-2021.pdf
Pakistan Penal Code, Act No. XLV, 6 October 1860, <https://www.pakistani.org/pakistan/legislation/1860/actXLVof1860.html>.
Provincial Assembly of Sindh, The Domestic Violence (Prevention and Protection) Act, Act No. XX of 2013 (19 March 2013), <https://www.af.org.pk/Acts_Fed_Provincial/Sindh_Acts_since_2002/Sindh%20%202013/The%20Domestic%20Violence%20(Prevention%20and%20Protection)%20Act,%202013.pdf>.
The Punjab Protection of Women against Violence Act (2016) <http://punjablaws.gov.pk/laws/2634.html>.
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Arab News Pakistan, ‘In northwestern Pakistan, domestic violence up by 45% during coronavirus lockdowns’ (ANP, 15 March 2021) https://www.arabnews.pk/node/1825321/pakistan accessed August 1, 2022
Department of Economic and Social Affairs, ‘Handbook for Legislation on Violence against Women’, 2010. https://www.un.org/womenwatch/daw/vaw/handbook/Handbook%20for%20legislation%20on%20violence%20against%20women.pdf
HuffPost, ‘Troubled History of Domestic Violence Legislation in Pakistan’ (7 October 2010), <https://www.huffpost.com/entry/troubled-history-of-domes_b_753400>.
Legislation Watch, ‘The Punjab Protection of Women Against Violence Act 2016: A Critique’, <https://www.af.org.pk/newsl/1486547583.pdf>.
Lums Law Journal, ‘The Punjab Protection of Women Against Violence Act 2016: A Legislative Review’, <https://sahsol.lums.edu.pk/law-journal/punjab-protection-women-against-violence-act-2016-legislative-review>.
Nadeem Bhatti, ‘Domestic Violence against Women: A Case Study of District Jacobabad, Sindh Pakistan’ (2011), <https://pdfs.semanticscholar.org/f592/d26355001faf3122c3d814242fc75a005d58.pdf>.
Soomar S M, ‘Determinants of domestic violence among women of reproductive age (15–49 years) in Quetta, Balochistan—a mixed-method protocol’ (2022) 12(5) BMJ Open 2022, <https://bmjopen.bmj.com/content/12/5/e057299>.
The Express Tribune, ‘Citing “controversial” clauses: Clerics vow to resist passage of Domestic Violence Bill’ (17 April 2012) <https://tribune.com.pk/story/365842/citing-controversial-clauses-clerics-vow-to-resist-passage-of-domestic-violence-bill>.
True J, ‘Ending violence against women in Asia: International norm diffusion and global opportunity structures for policy change’ (2016) UNRISD Working Paper, <https://www.econstor.eu/handle/10419/148758>.
UN Women ‘Legislation on Violence against Women and Girls’, <https://asiapacific.unwomen.org/en/countries/pakistan/evaw-pakistan/legislation-on-vaw>.
World Economic Forum, ‘The Global Gender Gap Report: 2018’ <https://www3.weforum.org/docs/WEF_GGGR_2018.pdf>.
Authors
Hamza Haroon, Research Assistant, RCIL & HR (hamzaharoon534@gmail.com)
Leila-Maria Faddoul, Research Assistant, RCIL & HR (leilamaria.faddoul@gmail.com)
Sara Ciucci, Research Assistant, RCIL & HR (sara.ciucci3@gmail.com)