LEGAL FRAMEWORK, JUDICIAL PERSPECTIVES,
AND CALL FOR COMPREHENSIVE ACTION
United Nation’s High Commission for Refugees (UNHCR) defines gender-based violence in these words, “harmful acts directed at an individual based on their gender. It is rooted in gender inequality, the abuse of power and harmful norms”. According to the UNHCR, the term “sexual and gender-based violence” also distinguishes individuals based on their gender from other types of violence. It includes violent acts such as honor killings, rape, physical and mental torture, mutilation, sexual slavery, forced impregnation, and murder.
Gender-based violence refers to any harmful act that is perpetrated against an individual based on their gender, often targeting women and girls due to entrenched patriarchal norms and discriminatory attitudes. This violence can take various forms, including domestic violence, sexual harassment, honor killings, acid attacks, forced marriages, and dowry-related violence. It is rooted in unequal power dynamics and social structures that perpetuate the subjugation of women and girls, leading to serious physical, psychological, and socio-economic consequences. Gender-based violence is a pervasive issue in Pakistan, affecting individuals across diverse socio-economic backgrounds and geographical locations.
Gender-based violence is a pervasive and deeply ingrained issue that affects women and girls across the country. It takes various forms, including domestic violence, sexual harassment, honor killings, forced marriages, acid attacks, and dowry-related violence. This violence is rooted in patriarchal norms, discriminatory attitudes, and unequal power dynamics that perpetuate the subjugation of women and girls. The issue of gender-based violence has been addressed by the High Courts in various cases; for instance, in the case of “PLD 2002 Lahore 444, Muhammad Siddique v. The State. The Court discussed the historical context of violence against women and the efforts made by Islam to curb such practices, including the pre-Islamic Arab practice of burying daughters alive, which was strongly condemned in the Holy Quran. The Court also acknowledged the ongoing incidents of violence against women despite the Qura’nic commandments and the penal law of the land.
In Akram Khan v. The State (PLD 2001 SC 96) the Supreme Court of Pakistan for first time saw the issue of so called “honour killings” in a different way. “The Court said that no one had the right nor should they be allowed to take law into their own hands to take the life of anybody in the name of ghairat (family honour)” (Ibid). The Court also held that law and religion did not permit the “honour killings” and that under the Article 8(1) of Constitution. “Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
In PLD 2023 Lahore 171 Gulsher v. Additional Sessions Judge Bhowana, the Honorable Lahore High Court observed that;
Gender Based Violence impairs women’s and girls’ fundamental rights particularly their right to and life and dignity.
The consequences of gender-based violence are devastating, not only for the immediate victims but also for families, communities, and society as a whole. It undermines the health, dignity, and rights of women and girls, perpetuates cycles of poverty and inequality, and hampers social and economic development.
Addressing gender-based violence requires a multi-faceted approach that involves legal reforms, enforcement of existing laws, awareness-raising campaigns, access to justice and support services for survivors, empowerment of women and girls, and challenging harmful gender norms and stereotypes. It also requires the commitment and collaboration of government institutions, civil society, religious leaders, and the broader community to create a culture of respect, equality, and non-violence.
Pakistan has taken a significant step in addressing violence against women by establishing over 1,000 courts dedicated to tackling such issues. Former Chief Justice Asif Saeed Khosa announced the initiative, aiming to provide a safe space for victims to speak out without fear of retaliation in a conservative society where domestic violence is often taboo. These courts were to be operated separately from existing ones and hold hearings specifically for domestic violence cases, allowing victims to testify in confidence. The move follows reports of thousands of cases of violence against women annually in Pakistan, including rape, acid attacks, sexual assault, kidnappings, and honor killings. Human rights campaigners and women’s rights activists had welcomed the initiative, highlighting its potential to encourage victims to come forward and seek justice.
Navigating Gender Bias in Judicial Responses to Gender-Based Violence
In the context of Pakistan, judges’ understanding of the sensitivity of gender-based violence (GBV) is crucial for effective adjudication and justice delivery. However, male bias or prejudice among judges can often complicate the handling of such cases for several reasons:
Societal Norms and Gender Stereotypes: Pakistan, like many other societies, has deeply ingrained patriarchal norms and gender stereotypes. These norms often influence judges’ perceptions and attitudes towards cases of GBV. Male judges, influenced by societal expectations, may have preconceived notions about the roles and behaviors of women and men, which can affect their decision-making process.
Lack of Understanding of Gender Dynamics: Male judges may lack a nuanced understanding of the complex dynamics underlying GBV, including power imbalances, systemic inequalities, and social norms that perpetuate violence against women. Without this understanding, judges may inadvertently minimize the severity of GBV or fail to recognize subtle forms of abuse.
Empathy Gap: Male judges may struggle to empathize fully with female victims of GBV due to differences in life experiences and perspectives. This empathy gap can manifest in judgments that seem insensitive or dismissive of survivors’ experiences, leading to further trauma and distress for the victims.
Legal Interpretation and Application: Male judges may interpret and apply laws related to GBV through a lens that reflects traditional gender roles and biases. This can result in decisions that prioritize preserving societal norms over protecting the rights and well-being of victims.
Challenges in Providing Fair Treatment: Male judges may face challenges in providing fair treatment to female survivors in the courtroom, particularly when dealing with sensitive issues such as rape or domestic violence. This can stem from discomfort or lack of training in handling such cases with sensitivity and respect. Addressing these challenges requires targeted efforts to raise awareness among judges about the realities of GBV, promote gender sensitivity training, and foster a culture of empathy and respect for survivors within the judicial system. Additionally, increasing the representation of female judges in courts can help mitigate male bias and ensure diverse perspectives in decision-making processes related to GBV cases. Overall, addressing male bias and prejudice among judges is essential for ensuring equitable access to justice for survivors of GBV in Pakistan.
Addressing Gender-Based Violence: The Role of the Judiciary and Specialized Courts in Pakistan
The judiciary in our country plays a crucial role in interpreting and applying the law, adjudicating disputes, and enforcing fundamental rights, which includes addressing issues of gender-based violence. The Constitution of Pakistan, through Article 25, guarantees equal protection of the law to all citizens irrespective of sex, which forms the basis for legal action against gender-based violence. However, despite these constitutional guarantees, the practical enforcement and protection of these rights can be challenging, as evidenced by reports of violence against minorities and gender-based violence.
The Punjab Gender Parity Report 2022 reveals a disturbing trend of gender-based violence against women in Pakistan, with 34,854 reported cases in Punjab alone, including kidnappings and murders. The decrease in reported cases is attributed to underreporting rather than a genuine decline. Rooted in inadequate law enforcement and a patriarchal culture, victims often face blame instead of perpetrators. Conviction rates are abysmally low, with only 4% resulting in convictions. The report underscores the urgent need for authorities to implement laws, provide support, and ensure safety for victims of violence and abuse.
The establishment of gender-based violence courts in Pakistan is a significant step towards addressing the pressing issue of gender-based violence, with the aim of prioritizing such cases and handling them with gender sensitivity. These courts are designed to cater to the victims of gender-based violence, which includes women, children, and other vulnerable segments of society, with a particular focus on the experiences of women and transgender individuals.
Despite the legislative measures and the creation of these specialized courts, the reduction of gender-based violence has been hindered by various systemic issues. These include a slow judicial process, procedural lethargy, an inefficient approach system, which collectively contribute to the delay in the delivery of justice.
The judiciary’s role is not only to interpret and apply the law but also to ensure that justice is delivered efficiently and fairly. The Constitution of Pakistan, through Article 25, guarantees equal protection of the law and prohibits discrimination on the basis of sex, while also allowing for affirmative action to protect women and children. Furthermore, the judiciary is recognized as an independent entity responsible for upholding fundamental rights and ensuring the rule of law.
While the establishment of gender-based violence courts is a positive development, the Pakistani judiciary faces challenges in reducing gender-based violence effectively. Addressing procedural delays, ensuring the integrity of the judicial process, and promoting gender sensitivity within the judiciary are critical steps towards achieving the goal of speedy and fair justice for victims of gender-based violence .
The National Judicial Policy Making Committee’s (NJPMC) directive in October 2019 to establish separate courts for gender-based violence cases is a step towards specialized adjudication in this area, which could potentially address some of the systemic issues in dealing with such cases. However, the effectiveness of these courts and the broader legal framework in curbing gender-based violence would depend on several factors, including the implementation of laws, the sensitivity and training of the judiciary, and the overall societal attitudes towards gender and minorities.
The existing legal framework in Pakistan has been criticized for its inadequacies in protecting against gender-based violence, with societal norms and prejudices often influencing the outcomes of such cases. The Human Rights Commission of Pakistan Report, 2013, highlights the grim reality of sectarian and gender-based violence, indicating that constitutional text alone is insufficient to protect minorities and vulnerable groups from violence. This suggests that there are significant gaps between the constitutional guarantees and their practical realization.
In summary, while the Pakistani judiciary has a constitutional mandate to uphold the rights of all citizens and address gender-based violence, there are notable challenges in the existing system of adjudication and legislation. These challenges include societal intolerance, the prevalence of hate speech, and violence against women and transgender individuals, which require serious policy reforms and proactive measures by the state and judiciary to ensure that the rights guaranteed by the Constitution are honored in practice.
Courts’ approaches toward gender-based violence in Pakistan have evolved over time but continue to face challenges in effectively addressing this pervasive issue. Judicial effectiveness in delivery of justice for victims of violence is an integral part of the State’s commitment to eliminating violence against women.
The Islamabad High Court condemned cultural norms that not only tolerate but endorse violence against women (Imran Javed Aziz v. Federation of Pakistan through Secretary, Ministry of Interior, Writ Petition No. 753/2020, per Athar Minallah CJ)
“In defiance of the explicit commands of Islam, child marriage, rape and honour killings are not uncommon in our society today. Women are forced into marriage against their will. Heinous traditions of Karokari, Swara, Wani and other forms of exploitation are being practiced in a State where 97% of the population professes to be Muslim. The tribal and other societal norms seem to have taken precedence over the Islamic injunctions. Female children are not safe and there cannot be a more offensive illustration than the unimaginable pain and agony suffered by the little innocent “Zainab.” The alarming aspect is that there is no outrage against the practices and mindsets which are a blatant violation of the unambiguous injunctions of Islam. The practices and attitudes highlighted above are prevalent in our society and are public knowledge. Evidence of these practices are the female victims whose heartrending stories are heard by the Courts across the country on a daily basis. These norms are not only offensive but blasphemous”
Here are some key aspects of Courts’ approaches:
1. Legal Framework: Pakistan has enacted various laws aimed at addressing gender-based violence, including the Protection of Women (Criminal Laws Amendment) Act, the Acid Control and Acid Crime Prevention Act, and the Domestic Violence (Prevention and Protection) Act. Courts play a crucial role in interpreting and applying these laws to ensure justice for survivors.
2. Legal Remedies: Courts provide legal remedies for survivors of gender-based violence, including protection orders, restraining orders, and compensation. They adjudicate cases involving domestic violence, sexual assault, honor killings, and other forms of violence against women and girls.
3. Sensitization and Training: Efforts have been made to sensitize judges, lawyers, and court personnel to the gender dimensions of violence and discrimination. Training programs aim to enhance understanding of gender-based violence dynamics, survivor-centered approaches, and gender-sensitive legal procedures.
4. Prosecution and Accountability: Courts play a pivotal role in prosecuting perpetrators of gender-based violence and holding them accountable for their actions. However, challenges such as weak law enforcement, corruption, and societal pressure often impede effective prosecution and conviction rates.
Addressing Coercion in Domestic Violence Settlements
The coercion of female, victims by male family members to settle domestic violence cases with the accused persons is a concerning issue in Pakistan. This practice often stems from various factors, including cultural norms, societal pressures, economic dependency, and fear of retaliation. For a crime committed by a male member of the family, particularly sex or affair outside the marriage, the village council (an assembly of landlords, local leaders, or influential persons to settle the issue without involving courts) often punishes the culprits by giving either a young sister or daughter in a marriage to the victim’s family as compensation. Although it is illegal in Pakistan, the culture is still followed in villages or remote tribal areas. In this situation, it is always a female member of the family that suffers without any fault or for the crime of a male member. Though under Criminal Law (Third Amendment) Act, 2011 section 310-A, P.P.C., has been introduced which has criminalized such Act, but despite legal prohibitions, the persistence of such practices underscores the need for continued efforts to ensure the effective implementation of laws and to address the underlying social and cultural factors that perpetuate harmful practices against women and girl.
Here are some key points to consider regarding this issue:
Patriarchal Norms: Pakistan, like many societies, has deeply ingrained patriarchal norms that prioritize male authority and control within families. In such contexts, female victims of domestic violence may face pressure from male family members to maintain family honor or avoid tarnishing the family’s reputation by pursuing legal action against the accused.
Unfortunately, victims of sexual abuse or gender-based violence are often viewed with suspicion, and criminal complaints are rarely seriously investigated by Police. Much of the society lives under a so-called “honour” code, where women who bring “shame” on their families can be subjected to violence or murder.
Economic Dependency: In many cases, female victims may be economically dependent on their male family members, making them vulnerable to coercion and manipulation. The fear of losing financial support or being ostracized from the family may compel them to agree to settlements against their wishes.
Fear of Retaliation: Victims of domestic violence often fear further abuse or retaliation from the accused or their associates if they pursue legal action. This fear may be heightened if the accused persons are influential or well-connected within the community or if the legal system is perceived as ineffective in providing protection.
Lack of Legal Awareness and Support: Many female victims of domestic violence in Pakistan may have limited knowledge about their legal rights or access to support services. They may face barriers such as lack of legal aid, social stigma, or inadequate protection mechanisms, which can make it challenging for them to seek justice through formal channels.
Sensitization of Investigation Officers Handling Gender-Based Violence Cases
Sensitizing investigation officers who handle cases of gender-based violence in Pakistan is crucial for improving the quality of investigations, ensuring survivor-centered approaches, and enhancing accountability. Furthermore, any inappropriate conduct exhibited by the police can create or increase the risk of violence to the victim. Here are some key aspects of sensitization efforts:
1. Gender Sensitivity Training: Providing comprehensive training programs to investigation officers on gender sensitivity, human rights, and the dynamics of gender-based violence. These programs should cover topics such as understanding the impact of gender norms and stereotypes, recognizing different forms of violence, and communicating effectively with survivors.
2. Survivor-Centered Approaches: Emphasizing survivor-centered approaches in investigations, which prioritize the safety, dignity, and autonomy of survivors. Training should focus on techniques for conducting trauma-informed interviews, supporting survivors through the legal process, and minimizing re-traumatization.
3. Legal Framework: Ensuring investigation officers have a thorough understanding of relevant laws and regulations related to gender-based violence, including the Protection of Women (Criminal Laws Amendment) Act, the Acid Control and Acid Crime Prevention Act, and the Domestic Violence (Prevention and Protection) Act. Training should cover procedures for evidence collection, documentation, and filing of charges.
4. Sensitivity to Marginalized Groups: Sensitizing investigation officers to the specific needs and vulnerabilities of marginalized groups, including women from rural areas, ethnic minorities, religious minorities. Training should address intersectional forms of discrimination and ensure inclusive and non-discriminatory approaches to investigations. For example the issue of forced conversion, particularly of Hindu girls in Pakistan, is a complex and sensitive matter that has legal, social, and human rights dimensions. It is important to note that forced conversion is a violation of human rights and is contrary to the principles of freedom of religion and belief. The Pakistani legal system, based on the principles enshrined in its Constitution and international commitments, is expected to protect the rights of all individuals, including religious minorities, and to provide remedies against coercion and discrimination. This matter involves religious, cultural, and human rights considerations, and any mishandling or oversight can exacerbate tensions and injustices. Investigations into forced conversion cases must prioritize the protection of the rights and well-being of the individuals involved, ensuring their safety and security throughout the process.
5. Addressing Bias and Stereotypes: Challenging biases and stereotypes that may influence investigation officers’ perceptions and responses to gender-based violence. Training should promote awareness of common myths and misconceptions surrounding gender roles, sexuality, and victim-blaming attitudes; In the land mark judgment of Lahore High Court, reported as the Sadaf Aziz v. Federation of Pakistan and others (2021 PCr.LJ 205) the practice of subjecting female rape survivors to virginity tests was outlawed. The court declared the practice as having no legal basis and stated that it violates the personal dignity of the victim. Justice Ayesha Malik, delivering the judgment, described virginity testing as highly invasive and humiliating, emphasizing that it is used to cast suspicion on the victim rather than focusing on the accused and the act of sexual violence. The ruling is significant in challenging the patriarchal structures that perpetuate victim blaming and will help dismantle barriers preventing women from reporting cases of rape. This decision is a culmination of activism and efforts by the feminist movement in Pakistan. TFT is based on the unscientific and misogynist assumption that a woman who engages in sexual intercourse is less likely to have been raped hence she lacks the moral authority to make an accusation of rape or sexual violence.
The World Health Organization (WHO) has condemned the practice, stating that it has no scientific validity and can cause physical and psychological harm.
The Honorable Supreme Court in Atif Zareef v. The State (PLD 2021 550), observed held that recording the sexual history of the survivor by carrying out the TFT and questioning the survivor on her sexual history or character in order to discredit her credibility is unconstitutional and illegal.
6. Collaboration and Coordination: Encouraging collaboration and coordination between investigation officers, prosecutors, social workers, healthcare professionals, and civil society organizations. Training should highlight the importance of multi-disciplinary approaches to addressing gender-based violence and promoting holistic support for survivors.
7. Monitoring and Evaluation: Establishing mechanisms for monitoring and evaluating the effectiveness of sensitization efforts, including feedback mechanisms from survivors, stakeholders, and community members. Training programs should be regularly reviewed and updated based on lessons learned and emerging best practices.
Overall, sensitizing investigation officers is a critical step toward improving responses to gender-based violence in Pakistan. By promoting gender sensitivity, survivor-centered approaches, and collaboration among stakeholders, we can enhance accountability, support survivors, and prevent further violence in our communities.
Affirmative Action for Gender Equality: The Imperative of Increasing Female Investigation Officers
The scarcity of female investigation officers in Pakistan is a significant barrier to accessing justice for victims of gender-based violence (GBV). Female victims may feel more comfortable and secure reporting their experiences to female officers, and the lack of such officers can deter them from coming forward. This issue is part of a broader set of challenges within the criminal justice system, which includes a weak agency for the detection of crimes and inefficient machinery for prosecution, contributing to delays in the disposition of criminal cases and a higher percentage of acquittal orders.
The presence of female investigation officers is crucial in handling cases involving women, as it can help ensure that the victims are treated with sensitivity and respect. The police rules emphasize the importance of appropriate treatment of female suspects and witnesses, including the requirement that arrests of women should be carried out by police officers not below the rank of assistant sub-inspector or, in their absence, by a head constable in the presence of responsible male relatives and village or town officials. Furthermore, women in police custody should not be lodged in a police station overnight except in unavoidable circumstances and should be accompanied by a responsible male relative or other respectable person during police investigations.
To address this issue, it is essential to recruit and train more female investigation officers and ensure their availability across all police stations. This step would not only align with the constitutional guarantees of equal protection of the law and non-discrimination on the basis of sex but also support the affirmative action for the protection of women and children as envisaged by the Constitution of Pakistan.
In summary, the scarcity of female investigation officers is a barrier that needs to be addressed to improve access to justice for GBV victims. Ensuring the presence of female officers in the police force is a critical step towards creating a more gender-sensitive and responsive criminal justice system.
Survivor Comfort and Trust: Survivors of gender-based violence often feel more comfortable and are more likely to trust female officers, especially when disclosing sensitive information or recounting traumatic experiences. Female officers can create a safer and more supportive environment for survivors to come forward and seek assistance.
Gender Sensitivity: Female officers are generally more attuned to the specific needs and experiences of survivors of gender-based violence. They possess a deeper understanding of the cultural, social, and gender dynamics that contribute to such violence, enabling them to conduct more empathetic and effective investigations.
Overcoming Barriers: In many cases, survivors face cultural or religious barriers that prevent them from interacting with male officers or disclosing incidents of violence. Female officers can help overcome these barriers by providing a gender-sensitive response and ensuring survivors feel heard and understood.
Enhancing Credibility: Female officers bring added credibility to investigations involving gender-based violence, particularly in cases where survivors may doubt the impartiality or competence of male officers. Their presence can increase confidence in the investigative process and lead to more successful outcomes.
Role Modeling: By actively participating in investigations and taking leadership roles in addressing gender-based violence, female officers serve as powerful role models for women and girls in their communities. They inspire confidence and empower others to speak out against violence and seek justice.
Legislation for Combating Gender-Based Violence in Pakistan
In the year 1996, Pakistan ratified the U.N Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Under CEDAW, State of Pakistan assumed the obligation to protect women from sexual and other forms of gender-based violence perpetrated by state agents and private actors alike.
In Pakistan, several legislative measures have been enacted to address gender-based violence and promote gender equality. Some key pieces of legislation include:
1. Protection of Women (Criminal Laws Amendment) Act, 2006: This law amends various provisions of the Pakistan Penal Code (P.P.C.) to strengthen legal protections for women against crimes such as rape, acid attacks, honor killings, and domestic violence. It also criminalizes practices such as forced marriages and deprivation of inheritance rights.
2. Acid Control and Acid Crime Prevention Act, 2011: This legislation aims to regulate the sale and distribution of acid and impose stricter penalties for acid attacks. It provides for the rehabilitation and compensation of acid attack survivors and establishes specialized courts to expedite the trial of acid-related offenses.
3. Domestic Violence (Prevention and Protection) Act, 2013: This law provides legal mechanisms for the prevention and protection of victims of domestic violence. It allows for the issuance of protection orders, restraining orders, and residence orders to ensure the safety and well-being of survivors. It also establishes protection committees at the district level to facilitate the resolution of domestic violence cases.
4. Criminal Law (Amendment) Act: This Act introduces amendments to the P.P.C. to strengthen legal protections against sexual harassment, including workplace harassment. It defines sexual harassment, prohibits retaliation against complainants, and mandates the establishment of internal complaint committees in workplaces.
5. Transgender Persons (Protection of Rights) Act, 2018: This legislation recognizes the rights of transgender persons and prohibits discrimination based on gender identity. It provides for the establishment of protection committees to address issues faced by transgender individuals, including violence, harassment, and discrimination.
6. Cybercrime Legislation: Pakistan has enacted cybercrime laws, such as the Prevention of Electronic Crimes Act, to address online forms of gender-based violence, including cyberstalking, revenge porn, and online harassment. These laws criminalize various cyber offenses and provide mechanisms for reporting and prosecuting cybercrimes.
7. The Sindh Child Marriage Restraint Act, 2014: The Sindh Child Marriage Restraint Act, 2014, passed by the Provincial Assembly of Sindh on April 29, 2014, criminalizes child marriages. Under Section 3 of the Act, a male above eighteen years of age who contracts a child marriage can face rigorous imprisonment of two to three years and a fine. A “child” is defined as anyone under eighteen years of age. The Act also penalizes those who perform, conduct, or facilitate a child marriage under Section 4, and parents or guardians who promote, permit, or negligently fail to prevent a child marriage under Section 5.
8. The Anti-Rape (Investigation and Trial) Ordinance, 2020. In December 2020 the Ordinance was passed with the title “The Anti-Rape (Investigation and Trial) Ordinance, 2020 so also the amendment was made in the Pakistan Penal Code titled Criminal Law (Amendment) Ordinance, 2020. The concept of promulgating of both the Ordinances was only to provide speedy dispensation of justice to all victims of sexual violence or rape. The preamble of the Ordinance shows that the said Ordinance was enacted to ensure expeditious redressal of rape and sexual abuse crimes in respect of women and children through special investigation teams and special Courts providing for efficacious procedures, speedy trial, evidence and matters connected therewith or incidental thereto. After the lapse of the Ordinance, the bill was passed by the Majlis-e Shoora (Parliament) regarding the Anti-Rape (Investigation and Trial) Act, 2021, and under section 24 of the Act, the Anti-Rape (Sex Offenders Register) Rules, 2023 have been framed which also provides a full mechanism and provide speedy justice to the victims of sexual violence or rape.
The prevalence of gender-based violence (GBV) against women, along with low reporting and conviction rates in our courts, necessitates immediate and thorough examination of the effectiveness of legal-judicial processes, as well as societal norms and practices. It is not acceptable for domestic judicial decisions to exhibit a lack of efficacy and a certain degree of tolerance with no discernible preventive or deterrent effect.
Some of land mark cases from Pakistan Implementing International Law on the subject are:
1. Mst. Mumtaz Bibi v. Qasim (PLD 2022 Islamabad 228). Justice Babar Sattar of the Islamabad High Court analyzed the two schools of thought and declared that irrespective of the branch of law – i.e., criminal, civil, family and administrative – the age of consent to enter into a marriage will be 18 years and the defence of an accused in a criminal proceeding related to rape and sexual abuse, under sections 375 and 377-A of the Pakistan Penal Code, 1860 (P.P.C.) respectively, shall not be entertained. He heavily relied on the United Nations Convention on the Rights of Child, 1989 (UNCRC) in his judgment besides pinpointing the conflicts and discrepancies within different statutory instruments.
2. Hafiz Abdul Waheed v. Mrs. Asma Jahangir and another (PLD 1997 Lah. 301). The Lahore High Court addressed the issue of Saima Waheed’s marriage to Arshad Ahmad, which she entered into of her own free will, without her father’s consent. The court ultimately held that the marriage could not be declared invalid and that Saima Waheed was at liberty to reside wherever she pleased, thereby affirming the right of an adult Muslim woman to marry by her own choice. This decision was a significant step in recognizing women’s autonomy in marriage under Pakistani law.The case raises significant questions about the fundamental rights and freedoms of Pakistani women, including their freedom of movement and the right to marry of their own choice. The father’s counsel argued that according to their religious sect, a woman cannot leave her father’s custody until she is married by him, even if she is legally an adult. However, this view is contested by other religious authorities who believe that an adult Muslim woman is free to marry as she chooses. The case highlights the tension between traditional values and the evolving norms of individual freedom and rights in Pakistan.
3. Atif Zareef v. The State (PLD 2021 SC 550), wherein the Honorable Supreme Court observed that dragging sexual history of the rape survivor into the case by making observations about her body including observations like “the vagina admits two fingers easily” or “old ruptured hymen” is an affront to the reputation and honour of the rape survivor and violates Article 4(2)(a) of the Constitution, which mandates that no action detrimental to the body and reputation of person shall be taken except in accordance with law. Similarly Article 14 of our Constitution mandates that dignity shall be inviolable, therefore, reporting sexual history of a rape survivor amounts to discrediting her independence, identity, autonomy and free choice thereby degrading her human worth and offending her right to dignity guaranteed under Article 14 of the Constitution which Right to dignity under Article 14 of the Constitution is an absolute right and not subject to law.
4. Najib Zarab Ltd. v. The Government of Pakistan (PLD 1993 Karachi 93). The issue before the Court was whether international law, of its own force and without the aid of municipal/domestic legislation, is applicable in Pakistan. The Court held, “[w]e are of the view that nations must march with the international community and the municipal law must respect rules of international law, even as nations respect international opinion; the community of nations requires that rules of international law may be accommodated in the municipal law even without express legislative sanction provided they do not run into conflict with the Acts of the Parliament.”
5. Mst. Saima v. The State (PLD 2003 Lah 747). The question whether petitioners Nos. 1 and 2 were committing an offence within the mischief clause of section 10 of Ordinance VII of 1979 would require a careful understanding of the penal provisions under the said law. […] In the instant case petitioners Nos. 1 and 2 were of the view that they are validly married. Hence the condition precedent for the offence alleged prima facie does not exist. The Court is also conscious of the protection given to the marriage and the institutions of family under the Constitution of Islamic Republic of Pakistan and the U.N. Convention on Elimination of all Forms of Discrimination against Women. Article 35 of the Constitution enjoins the State to protect the marriage and the family. Article 16 of the Convention on the Elimination of all Forms of Discrimination against Women reads […] ‘States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage […] and in particular shall ensure, on a basis of equality of men and women:– (a) the same right to enter into marriage, (b) the same right freely to choose a spouse and to enter into marriage only with their free and full consent, (c) the same rights and responsibilities during marriage and at its dissolution.’ For what has been discussed above, the prosecution launched against the petitioners prima facie reflects not only malice in fact but also malice in law.
6. Humaira Mehmood v. The State (PLD 1999 Lah 494). In this case of Zina (adultery or illicit intercourse) filed by a father against his married daughter, the court drew attention to CEDAW Article 16 on the right of women to family life on the basis of equality with men. Common law has evolved in most common law countries to not requiring the legislature to promulgate legislation to adopt/domesticate international treaties before its applicability nationally. The case of Humaira Mehmood v. The State PLD 1999 Lah 494 involved a father filing a case of adultery against his married daughter. The judge referenced CEDAW Article 16, emphasizing women’s rights to family life on equal terms with men. The court noted that its decision aligned with various international instruments safeguarding women’s rights, including CEDAW and the Cairo Declaration on Human Rights in Islam 1990. These documents underscored equality in marriage matters and the right to consensual marriage, as well as women’s entitlement to human dignity, civil status, financial independence, and the preservation of their name and lineage.
7. Sarwar Jan v. Abdul Rahman (2004 CLC 1785). In a divorce application by a wife on the basis of cruel and inhumane behavior of her husband toward her, the court referred approvingly to CEDAW and the Cairo Declaration of Human Rights 1990.
8. Suo Motu case No. 1K of 2006 (PLD 2008 FSC 1). Facts in brief of this case were that in an application by a foreign husband for citizenship, the court drew on the Constitution, Islamic law, and international human rights law (i.e., UDHR, CEDAW, and the Convention on Nationality of Married Women). The Federal Shariat Court, in exercise of its powers under Article 203-D of the Constitution of Islamic Republic of Pakistan, took suo motu notice of a news item that under the Citizenship Act, 1951, a married Pakistani woman was denied the right to get Pakistani citizenship for her foreign husband, while a married Pakistani man was entitled, under section 10(1) of the said Act to obtain Pakistan citizenship for his foreign wife. Issue involved was whether gender discrimination in Section l0 of the Citizenship Act is discriminatory and unconstitutional. The FSC found the discriminatory provision to be contrary to Islam and invalidated it. In addition, it drew on the Constitution and international human rights law, i.e. the Universal Declaration on Human Rights, CEDAW, and the Convention on Nationality of Married Women.
9. The Lahore High Court recently in W.P No.32798 of 2023 Azka Wahid v. Province of Punjab and others his Lordship Justice Mr. Shahid Karim, addressed a constitutional petition challenging the definition of ‘child’ in the Child Marriage Restraint Act of 1929 vide order dated 09.04.2024. The petition contended that the Act’s definitions, distinguishing between genders with ages under eighteen for males and under sixteen for females, were unconstitutional due to gender bias. The Court considered arguments regarding puberty, gender differences, and physiological factors. Ultimately, the Court ruled that the Act’s gender-based age distinctions were discriminatory and unconstitutional. The Government of Punjab was directed to revise the Act within fifteen days based on the Court’s judgment.
Breaking Down Barriers: Ensuring Access to Justice for Gender-Based Violence Victims
The barriers to accessing justice for victims of gender-based violence (GBV) in Pakistan are multifaceted and deeply entrenched in societal norms and legal system inefficiencies. Pakistan’s low ranking in terms of gender parity reflects the significant challenges women face in accessing justice and exercising their rights.
One of the primary barriers is the lack of awareness among women about their rights, coupled with the absence of support or outright disapproval from family members when attempting to seek justice. This is exacerbated by the patriarchal mindset prevalent in society, which manifests itself at every stage of the legal process, from reporting the crime to the police to seeking redress in the courts .
The judiciary’s role in addressing GBV is critical, yet it is hindered by various factors, including problematic interpretation and implementation of laws, lack of gender sensitivity, and unconscious biases among judges. These issues contribute to a lack of confidence in the police and judicial process, which discourages victims from reporting GBV cases.
The Human Rights Commission of Pakistan Report, 2013, highlights the grim reality of violence against minorities and women, indicating that constitutional guarantees alone are insufficient to protect these groups from violence. This suggests that there are significant gaps between the constitutional guarantees and their practical realization.
The Constitution of Pakistan provides for the independence of the judiciary and entrusts it with the responsibility of enforcing fundamental rights, which includes addressing GBV. However, the effectiveness of the judiciary in this regard is contingent upon its organization and the efficiency and independence with which it operates.
In the short to medium term, the implementation of existing amendments to the Pakistan Penal Code (P.P.C.) and the Criminal Procedure Code (Cr.P.C.) is necessary to provide protection for witnesses and shelter for complainants. In the long run, it is crucial to review and amend the judicial and prosecutorial training curriculum to make it more gender-friendly and to ensure regular training for concerned authorities.
Despite constitutional provisions aimed at improving the status of women in society, not all legislative measures and policy guidelines are effectively implemented. There are discriminatory provisions in the statute book, and issues persist with the enforcement of laws beneficial to women, such as those regarding inheritance. Socio-cultural norms often work against women’s rights and interests, leading to lapses in law enforcement.
In conclusion, addressing the barriers to accessing justice for GBV victims in Pakistan requires a multifaceted approach, including legal reforms, enhanced awareness and support for victims, and a shift in societal attitudes. The judiciary, while independent and responsible for upholding fundamental rights, must also evolve to become more efficient, effective, and sensitive to gender issues to ensure that justice is not only promised but delivered.