Image Source: Grisly murder of diplomat’s daughter sparks outrage over femicides in Pakistan | Reuters
Introduction
Domestic violence, also referred to as “intimate partner violence (IPV)”, consists of a pattern of behaviour used to “gain or maintain power and control over an intimate partner” through “physical, sexual, emotional, economic or psychological actions or threat of actions”.[1] In Pakistan, between 70% and 90% of women experience some form of physical, emotional or psychological abuse from an intimate partner during their lifetime.[2] The most frequent form of domestic violence is emotional violence (25%), followed by physical violence (23%). Sexual violence only accounts for 5%.[3]
The Global Gender Gap Index of 2018 ranked Pakistan as the sixth most dangerous country in the world for women, also highlighting that the number of recorded cases of sexual crimes and domestic violence is growing at an alarming rate.[4] Evidence also demonstrates that the COVID-19 pandemic increased cases of domestic abuse and other forms of gender-based violence (GBV).[5] It is also alarming that the vast majority of victims of domestic violence in Pakistan do not have access to any form of legal remedy, with only 0.4% of women bringing their cases to courts.[6]
The tortuous road towards a domestic violence bill
Pakistan ratified the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in 1996, according to which domestic violence against women constitutes a violation of fundamental human rights.[7] Under Article 2 CEDAW, read in combination with Article 1, Pakistan is obliged “to pursue by all appropriate means and without delay a policy of eliminating discrimination against women”, including “any distinction, exclusion or restriction made on the basis of sex which has the purpose of impairing or nullifying the recognition, enjoyment or exercise by women [..] of human rights and fundamental freedoms.”
Moreover, Article 25 of the 1973 Constitution of the Islamic Republic of Pakistan (Constitution of Pakistan) provides for equal rights and opportunities for all citizens before the law.[8] Nevertheless, domestic violence was not expressly considered in the first version of the Pakistani Criminal Code (PPC’),[9] which was promulgated in 1860 by the British colonial government and only adopted by Pakistan after its independence in 1947. However, several sections of the Code covered miscarriage, causing hurt, wrongful confinement and restraint.[10]
Only the adoption of the Protection of Women (Criminal Laws Amendment) Act in 2006, aiming to “provide relief and protection to women against misuse and abuse of laws”, was the first step towards change when the Pakistani government criminalised rape under its criminal law.[11] The Criminal Law (Amendment) Act of 2009, amending Article 509 of the PPC, then broadened the definition of sexual harassment and made the crime punishable with a maximum of three years of imprisonment or a fine up to five hundred thousand rupees.[12]
Moreover, in August 2009, the Pakistani National Assembly passed the Domestic Violence Bill, proposed by the Pakistani People’s Party’s activist, Yasmeen Rehman. According to this legislation, domestic violence “includes but is not limited to all intentional acts of gender-based or other physical or psychological abuse committed by an accused against women, children or other vulnerable persons”.[13] Whilst this constitutes a non-exhaustive list, the definition considers assault, criminal intimidation, economic abuse, harassment, mischief, physical abuse, stalking, sexual abuse, verbal and emotional abuse and wrongful confinement as some of the acts which fall under the umbrella of domestic violence.[14] However, the legislation failed to be approved by the upper house, i.e. the Senate, within the 90 days as required under Article 70 of the Constitution of Pakistan.[15] Some commentators cited the reservations expressed by the Council of Islamic Ideology (CII) as the critical factor that led to Bill not being approved.[16] The Council considered the law as “discriminatory” in referring only to women and children as potential victims of domestic violence and stated it would lead to increasing divorce rates.[17]
The lack of approval of the Bill constitutes a missed chance, as it would have required the Magistrate’s Court to set a hearing within three days from the complaint, with the aim to adjudicate the case within one month.[18] It would have also led to the establishment, in all provincial governments, of protection committees in charge of providing protection measures and assistance in filing cases.[19] Moreover, Section 9 of the Bill provided compensatory money for victims of domestic violence,[20] while the following section provided for the application of custody orders,[21] whose breaching would involve individuals being punishable with imprisonment between six months and one year and with a fine of minimum of one hundred thousand rupees.[22]
Furthermore, when the 2009 Bill was reviewed in 2012, procedural objections were raised. It was observed that, after the enactment of the 18th Constitutional Amendment, many of the areas covered by the Bill had become a provincial matter.[23] Even on this occasion, strict opposition from several members of the government’s religious rights ensued. These included the Jamiat Ulema-e-Islam-Fazl (JUI-F),[24] who described the Bill as legalising “anti-Islamic values in the name of so-called rhetoric of women’s emancipation”[25] and prevented the bill from being approved at the national level. In the end, the only jurisdiction passing the Bill was Islamabad Capital Territory.[26]
However, in the meantime, all the other provinces have conformed, adopting their own legislation on the matter. In 2013, the Sindh Assembly unanimously enacted a legislation against domestic violence,[27] while Balochistan passed an analogous law in 2014.[28] The two provinces consider domestic abuse as a crime, punishable with imprisonment or fines. Punjab adopted the “Punjab Protection of Women Against Violence Act” in 2016, according to which domestic violence is treated as a civil infraction, but certain preventive and remedial measures might be imposed.[29] Lastly, the long-waited legislation on domestic violence was passed by the Khyber Pakhtunkhwa Assembly in January 2021.[30]
Domestic Violence against Women (Prevention and Protection) Bill (2021)
In April 2022, a new version of the Domestic Violence Bill was introduced by the federal minister of Human Rights, Shireen Mazari, and approved by the National Assembly. However, the Senate blocked the immediate passage of the law by one vote, requesting the deliberation of the Committee on Human Rights.[31] After the Bill passed in the Senate in June 2021 and returned to the National Assembly for its final approval, the Adviser on Parliamentary Affairs to Pakistan’s Prime Minister recommended the necessity of a review from the Council of Islamic Ideology (CII), which is the constitutional advisory body on Sharia’s law.[32] Sharia, acting as a code for living that all Muslims should adhere to, maintains male authority over females as the cornerstone of family relations in Muslim societies.
The Bill aims to establish a legal protection and relief system against domestic violence in the Islamabad Capital Territory, [33] considering that all the other provinces already have their own legislation in place.[34] The definition of domestic violence is similar to the one contained in the 2009 Bill, as it includes “all acts of physical, emotional, psychological, sexual and economic abuse”,[35] and the Bill punishes domestic violence not falling under the PPC with imprisonment between six months and three years and a fine between 20 and 100 thousand rupees in compensation.[36] The Bill also provides court protection from domestic violence, along with the possibility to issue interim, protection, custody and residence orders, as well as monetary relief to victims.[37] It also contains specific provisions on the role and powers of the Protection Committee, which is in charge of informing the victim of her right, assisting with medical treatment and preparing petitions or reports.[38]
However, once again, the Bill raised concerns from parliamentarians, political leaders, religious scholars and opinion-makers. The Federal Minister for religious affairs, and the CII chairman, stated that the bill was anti-Islamic, as several provisions contradict Pakistan’s social values and culture.[39] The Bill was also criticised for being too broad and open-ended, constituting thus a threat to the family structure.
Domestic violence between culture and religion
Despite a number of progressive laws that have been enacted to date in all provinces of Pakistan, the absence of a coherent and clearly defined national legal framework on domestic violence is evident. Several other challenges can also be identified around the lack of adequate responses to domestic violence in the country. Issues of deficient implementation and execution of the current legal framework, along with a lack of coordination between different institutions and stakeholders, are just some of these issues.
Domestic violence is often underreported due to the risk of women being stigmatised and blamed for the violence or being considered false accusers. Traditionally, the Pakistani society is primarily governed by patriarchal ideals, according to which the authority of men over the other sex justifies violence against women as socially. Domestic violence seems, therefore, to be intrinsic to the familiar Pakistani social fabric.
The police are also generally reluctant to investigate and prosecute cases of domestic violence, and instead considering it a private family matter.[40] Police officers also tend to conduct their duties in an unethical manner, accepting bribes from suspected perpetrators or harassing victims to the point that they drop the charges.[41] Even in court, the judiciary operates with a judicial bias that often leads victims to be disbelieved.[42] The criminal justice system in Pakistan is also exceptionally time consuming, and victims need to wait for several months before their cases are heard in court.
Lastly, the limited outreach of civil society, coupled with considerable resource constraints, leads to a lack of awareness and education of the general community on what rights are available to victims of domestic violence.
Conclusion
The government of Pakistan has passed various laws to prevent and punish domestic violence. However, the conviction rate is still low, and domestic violence is still a widespread common practice in Pakistan. There is an urgent need to tackle the impunity gap and cultural misconceptions that still exist around domestic violence. Pakistan needs to develop broader and more effective legislation to eradicate domestic violence. With the media in Pakistan reporting several stories of domestic violence around the country, concerns over the missed approval of the 2021 Bill are high.[43] Civil society and international organisations must strengthen their contribution towards an effective system of protection, relief and rehabilitation of women victims of domestic violence.
[1] UN, ‘What Is Domestic Abuse?’, <https://www.un.org/en/coronavirus/what-is-domestic-abuse> accessed 20 June 2022.
[2] UNODC, ‘Gender and Pandemic: Urgent Call for Action’, <https://www.unodc.org/documents/pakistan/Advocacy_Brief_4_Gender_-COVID-19-Punjab.pdf> accessed 20 June 2022.
[3] Ministry of Human Rights Government of Pakistan, NCSW, UN Women, ‘Gendered Impact and Implications of COVID-19 in Pakistan’, available at <https://asiapacific.unwomen.org/en/digital-library/publications/2020/04/gendered-impact-and-implications-of-covid-19-in-pakistan> accessed 20 June 2022.
[4] World Economic Forum, ‘The Global Gender Gap Report: 2018’, <https://www3.weforum.org/docs/WEF_GGGR_2018.pdf> accessed 20 June 2022.
[5] UNODC, ‘Gender and Pandemic: Urgent Call for Action’ (n 2).
[6] ibid.
[7] UN Human Rights Treaty Bodies, ‘Ratification Status for CEDAW’, <https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?Treaty=CEDAW&Lang=en> accessed 20 June 2022.
[8] Constitution of the Islamic Republic of Pakistan (11 August 1947), <https://www.pakistani.org/pakistan/constitution/> accessed 20 June 2022.
[9] Pakistan Penal Code, 1860, available at <https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/64050/88951/F1412088581/PAK64050%202017.pdf>.
[10] Shahzadi Pakeeza, ‘Domestic Violence Laws and Practices in Pakistan’ (2015), <https://www.vfast.org/journals/index.php/VTESS/article/viewFile/205/296> accessed 20 June 2022.
[11] Protection of Women (Criminal Laws Amendment) Act (1 December 2006), <https://www.pakistani.org/pakistan/legislation/2006/wpb.html> accessed 20 June 2022.
[12] Criminal Law (Amendment) Act, 2009, <https://aasha.org.pk/Women_Harassment_Docs/update2018/Amendment-in-Criminal-Procedure-Code-and-PPC-2010.pdf> accessed 20 June 2022.
[13] The Domestic Violence (Prevention and Protection) Act, 2009, Section 4, <https://joshandmakinternational.com/resources/laws-of-pakistan/general-category/family-laws-of-pakistan/the-domestic-violence-prevention-and-protection-act-2009/> accessed 20 June 2022.
[14] ibid.
[15] Human Rights Watch, ‘Pakistan: Expedite Domestic Violence Legislation’ (11 January 2010), <https://www.hrw.org/news/2010/01/11/pakistan-expedite-domestic-violence-legislation> accessed 20 June 2022.
[16] HuffPost, ‘Troubled History of Domestic Violence Legislation in Pakistan’ (7 October 2010), <https://www.huffpost.com/entry/troubled-history-of-domes_b_753400> accessed 20 June 2022.
[17] Dawn, ‘Domestic Violence Bill to push up divorce rate: CII’ (25 August 2009), <https://www.dawn.com/news/855084/domestic-violence-bill-to-push-up-divorce-rate-cii> accessed 20 June 2022.
[18] The Domestic Violence (Prevention and Protection) Act, 2009 (n 13) section 5.
[19] ibid, Section 18.
[20] ibid, Section 9.
[21] ibid, Section 10.
[22] ibid, Section 13.
[23] Dawn, ‘Domestic violence bill gets new look’, (7 April 2012) <https://www.dawn.com/news/708581/domestic-violencebill-gets-new-look> accessed 20 June 2022.
[24] The Express Tribune, ‘Opposition Forces Government to Defer Women Domestic Violence Bill’ (5 April 2012), <https://tribune.com.pk/story/360560/opposition-forces-government-to-defer-women-domestic-violence-bill> accessed 20 June 2022.
[25] 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 20 June 2022.
[26] The Express Tribune, ‘Senate unanimously passes Domestic Violence Bill’ (20 February 2012), <https://tribune.com.pk/story/339308/senate-unanimously-passes-domestic-violence-bill> accessed 20 June 2022.
[27] 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.
[28] 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.
[29] The Punjab Protection of Women Against Violence Act, Act No. XVI of 2016 (29 February 2016), <http://punjablaws.gov.pk/laws/2634.html> accessed 8 July 2022.
[30] Provincial Assembly Secretariat Khyber Pakhtunkhwa, The Khyber Pakhtunkhwa Domestic Violence Against Women (Prevention and Protection) Act, Act No. III of 2021 (8 February 2021), <https://www.pakp.gov.pk/wp-content/uploads/The-KP-Domestic-Violence-against-women-provention-and-protection-act-2021.pdf> accessed 8 July 2022.
[31] Library of Congress, ‘Pakistan: Domestic Violence Bill Referred to Council of Islamic Ideology’, <https://www.loc.gov/item/global-legal-monitor/2021-08-11/pakistan-domestic-violence-bill-referred-to-council-of-islamic-ideology/> accessed 20 June 2022.
[32] ibid.
[33] Domestic Violence (Prevention and Protection) Act, 2020, <https://na.gov.pk/uploads/documents/1618907639_620.pdf> accessed 20 June 2022.
[34] See, n. 27.
[35] Domestic Violence (Prevention and Protection) Act, 2020 (n 30), Section 3.
[36] ibid, Section 4.
[37] ibid, Part III.
[38] ibid, Part IV.
[39] Daily Times, ‘Minister, CII chief criticises Domestic Violence Bill, terms un-Islamic’ (15 July 2021), <https://dailytimes.com.pk/791993/minister-cii-chief-criticises-domestic-violence-bil-terms-un-islamic/> accessed 20 June 2022.
[40] Courting The Law, ‘Domestic Violence in Pakistan: Is Legislation Available?’ (6 January 2016), <https://courtingthelaw.com/2016/01/06/commentary/domestic-violence-in-pakistan-is-legislation-available/> accessed 20 June 2022.
[41] Research Directorate, Immigration and Refuge Board of Canada, Ottawa, ‘Pakistan: Domestic violence, including effectiveness of the Protection of Women (Criminal Law Amendments) 2006; protection and services available to victims’, <https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=454350> accessed 20 June 2022.
[42] The International News, ‘What is the Domestic Violence Law?’ (27 August 2021), <https://www.thenews.com.pk/print/883594-what-is-the-domestic-violence-law> accessed 20 June 2022.
[43] The Express Tribune, ‘Twitter reacts to Domestic Violence Bill under review by CII’ (6 July 2021), <https://tribune.com.pk/story/2309072/twitter-reacts-to-domestic-violence-bill-under-review-by-cii> accessed 20 June 2022.
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The Express Tribune, ‘Senate unanimously passes Domestic Violence Bill’ (20 February 2012), available at <https://tribune.com.pk/story/339308/senate-unanimously-passes-domestic-violence-bill>.
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Author
Sara Ciucci, Research Assistant, RCIL & HR (sara.ciucci3@gmail.com)