The writer is a freelance columnist.
Ever since the emergence of the feminist wave in Pakistan, there has been an accentuated tendency towards the legislation and active enactment of women protection laws. Before that, women were suffering the ordeals of Draconian laws. Many unfortunate used to be committed to prison for years under Hudood Laws due to a lack of cogent evidence or/and other reasons to meet legalities. Unfortunately, the burden of proof fell heavily on the shoulders of the victim and in case she was unable to adduce sufficient evidence to corroborate her claim, she would meet fatal repercussions under the Qazf laws. As a result, the accused went scot-free from the trial while the victim was criminalised. The insidious after-effects kept haunting the subsequent movements and exerted utmost force to repress them in the face of patriarchy. Despite the dearth of enactments in favour of women, the Zia-remnants are being opposed against all odds.
During the Musharraf regime, Pakistan became a signatory of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Universal Declaration of Human Rights (UDHR). Musharraf was avid to bring enlightenment to wipe out the obscure image of our legal system from the eyes of the international community. For these ends, he started hiring various religious scholars to bring the punitive law’s incompatibility with the international standards of legal principles. He tried to mirror a modern and balanced ideal of the state. Endeavours were put forth to get Hudood Ordinance repealed. Nevertheless, the Zina Clause was replaced with Section 375 and 376 of PPC, which facilitated the courts to try the offence under the ambit of Tazir instead of trying it under rigid, orthodox and subjective standards of Hudood. That legal evolution in women laws was coupled with the promulgation of the Women Protection Act 2006 and later the Prevention of Electronic Crime Act 2016. However, it also failed to solve the core issue as only 19.5 per cent of crimes were reported in 2010-15 and according to HRC reports, 50 per cent of women were harassed in job interviews and at the workplace.
Coming to the pivotal discourse, women are embracing modern tendencies. Some even argue that they now seem more susceptible to fall into the hands of harassers. For our patriarchal norms are not yet prepared to outgrow from its stereotypical misogynistic approach. They are run by the impetus of their domineering instinct to enslave women. Thus, the responsibility falls on the sturdy shoulders of state-machinery to ensure the regulation of laws to protect the women as equal citizens; entailed in Article 4 and Article 25 sub-Clause 2 read with Section 509 of PPC, which extends a guarantee to every individual, regardless of gender, to be treated alike on the lines of dignity and honour.
In 2010, following the huge demand from the length and breadth of the state, the legislature was finally obliged to legislate upon the issue of harassment against women at the workplace and the act of The Protection against Harassment of Women at Workplace, 2010 was passed. The act was meant to achieve the milestone through curbing the gender-based menace prevailing in society. Apart from the enforcement, the act itself suffers from ambiguity and narrowness as compared to the Sexual Harassment of Women at Workplace (prevention, prohibition and redressal) Indian Act, which unequivocally lays down a wider legal framework to entail every arising issue. The ambiguities, which The Protection against Harassment of Women act 2010 suffers from, for instance, the definition of employee. This seems incomplete as it does not entail the students while the Indian act vividly covers students and domestic women. Secondly, the member of the inquiry committee to sort the issue of harassment between the parties includes the member from the organisation in which there are glaring chances of bias as any of the members may tilt to favour its interested party and prejudice the interest of another party. Meanwhile, I believe that all members should be outsiders to minimise the susceptibility of prejudice. Thirdly, there is no mention of incidental proceeding therein despite declaring its powers incidental to Civil Court. The main flaw of the act is that in the case of mala fide allegation, the case is referred to the ombudsman and IC abdicates itself from proceeding with the case as IC stands subservient to Ombudsman while the case is otherwise in Indian laws. Lastly, the confidentiality of statements and evidence is in gross contravention to the rules of civil court wherein all proceedings take place openly.
There is a dire need to rectify the laws and review the legislations as far the basic jurisprudence is concerned. For instance, American Courts have deflated from the traditional concept of the burden of proof and here, we still stick to legal orthodoxy. In most harassment cases, women have no proof beyond their oral testimony to corroborate their claim. Secondly, the principle of “in the eyes of prudent man” should be supplemented with the phrase “the prudent woman” either in form of the conjunctive clause or a disjunctive clause to remove the gender-biased approach.
Taking all the above-mentioned reservations into account, there is room to amend the legal jurisprudence to large extent. Nevertheless, our legal norms-like our ethnic values- will take time to get over this malady. Till then, jurists are bound to raise voices for the rights of women through their prudential judgements (as done recently by Lahore High Court in its landmark judgement of Asif Saleem VS GBO University of Lahore). They should break stereotypes by safeguarding the interests of this marginalised class as was once exclaimed by Alexander Pope:
“This to disclose is all thy guardian can
Beware of all, but most beware of Man!”
https://dailytimes.com.pk/827711/women-protection-laws-and-defective-legal-norms/
Women Protection Laws and Defective Legal Norms : Op-ed by Hamza Hashmi in Daily Times, Oct 11th, 2021
The writer is a freelance columnist.
Ever since the emergence of the feminist wave in Pakistan, there has been an accentuated tendency towards the legislation and active enactment of women protection laws. Before that, women were suffering the ordeals of Draconian laws. Many unfortunate used to be committed to prison for years under Hudood Laws due to a lack of cogent evidence or/and other reasons to meet legalities. Unfortunately, the burden of proof fell heavily on the shoulders of the victim and in case she was unable to adduce sufficient evidence to corroborate her claim, she would meet fatal repercussions under the Qazf laws. As a result, the accused went scot-free from the trial while the victim was criminalised. The insidious after-effects kept haunting the subsequent movements and exerted utmost force to repress them in the face of patriarchy. Despite the dearth of enactments in favour of women, the Zia-remnants are being opposed against all odds.
During the Musharraf regime, Pakistan became a signatory of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Universal Declaration of Human Rights (UDHR). Musharraf was avid to bring enlightenment to wipe out the obscure image of our legal system from the eyes of the international community. For these ends, he started hiring various religious scholars to bring the punitive law’s incompatibility with the international standards of legal principles. He tried to mirror a modern and balanced ideal of the state. Endeavours were put forth to get Hudood Ordinance repealed. Nevertheless, the Zina Clause was replaced with Section 375 and 376 of PPC, which facilitated the courts to try the offence under the ambit of Tazir instead of trying it under rigid, orthodox and subjective standards of Hudood. That legal evolution in women laws was coupled with the promulgation of the Women Protection Act 2006 and later the Prevention of Electronic Crime Act 2016. However, it also failed to solve the core issue as only 19.5 per cent of crimes were reported in 2010-15 and according to HRC reports, 50 per cent of women were harassed in job interviews and at the workplace.
Coming to the pivotal discourse, women are embracing modern tendencies. Some even argue that they now seem more susceptible to fall into the hands of harassers. For our patriarchal norms are not yet prepared to outgrow from its stereotypical misogynistic approach. They are run by the impetus of their domineering instinct to enslave women. Thus, the responsibility falls on the sturdy shoulders of state-machinery to ensure the regulation of laws to protect the women as equal citizens; entailed in Article 4 and Article 25 sub-Clause 2 read with Section 509 of PPC, which extends a guarantee to every individual, regardless of gender, to be treated alike on the lines of dignity and honour.
In 2010, following the huge demand from the length and breadth of the state, the legislature was finally obliged to legislate upon the issue of harassment against women at the workplace and the act of The Protection against Harassment of Women at Workplace, 2010 was passed. The act was meant to achieve the milestone through curbing the gender-based menace prevailing in society. Apart from the enforcement, the act itself suffers from ambiguity and narrowness as compared to the Sexual Harassment of Women at Workplace (prevention, prohibition and redressal) Indian Act, which unequivocally lays down a wider legal framework to entail every arising issue. The ambiguities, which The Protection against Harassment of Women act 2010 suffers from, for instance, the definition of employee. This seems incomplete as it does not entail the students while the Indian act vividly covers students and domestic women. Secondly, the member of the inquiry committee to sort the issue of harassment between the parties includes the member from the organisation in which there are glaring chances of bias as any of the members may tilt to favour its interested party and prejudice the interest of another party. Meanwhile, I believe that all members should be outsiders to minimise the susceptibility of prejudice. Thirdly, there is no mention of incidental proceeding therein despite declaring its powers incidental to Civil Court. The main flaw of the act is that in the case of mala fide allegation, the case is referred to the ombudsman and IC abdicates itself from proceeding with the case as IC stands subservient to Ombudsman while the case is otherwise in Indian laws. Lastly, the confidentiality of statements and evidence is in gross contravention to the rules of civil court wherein all proceedings take place openly.
There is a dire need to rectify the laws and review the legislations as far the basic jurisprudence is concerned. For instance, American Courts have deflated from the traditional concept of the burden of proof and here, we still stick to legal orthodoxy. In most harassment cases, women have no proof beyond their oral testimony to corroborate their claim. Secondly, the principle of “in the eyes of prudent man” should be supplemented with the phrase “the prudent woman” either in form of the conjunctive clause or a disjunctive clause to remove the gender-biased approach.
Taking all the above-mentioned reservations into account, there is room to amend the legal jurisprudence to large extent. Nevertheless, our legal norms-like our ethnic values- will take time to get over this malady. Till then, jurists are bound to raise voices for the rights of women through their prudential judgements (as done recently by Lahore High Court in its landmark judgement of Asif Saleem VS GBO University of Lahore). They should break stereotypes by safeguarding the interests of this marginalised class as was once exclaimed by Alexander Pope:
“This to disclose is all thy guardian can
Beware of all, but most beware of Man!”
https://dailytimes.com.pk/827711/women-protection-laws-and-defective-legal-norms/
Published in Pak Media comment and Pakistan