Judicial response to gender-based violence
Tassaduq Hussain Gillani
Exposing the tribal and feudal barriers for women in Pakistani society, the court observed in Humaira’s case (which has already been discussed in this series):
“Male chauvinism, feudal bias and compulsions of a conceited ego should not be confused with Islamic values. An enlightened approach is called for. Otherwise, obscurantism in this field may break the social fabric.”
Exposing the dichotomy between professed beliefs and empirical realities insofar as women’s rights were concerned, it remarked:
“As Muslims we loudly proclaim our commitment to the lofty ideals of an Islamic Ideology. The advent of Islam was a milestone in human civilisation. It came at a time when women were treated as serfs and chattel. Men used to bury their daughters alive. It was Islam which declared equality between a man and a woman. In matters of marriage a woman was given equal right to choose her life partner. After obtaining the age of puberty she could exercise her option and choice. Unfortunately, in our practical lives we are influenced by a host of other prejudices bequeathed by history, tradition and feudalism.”
Chiding state functionaries and reminding them of their obligations to uphold the rule of law under the Constitution and the state’s obligations to international instruments of human rights, the court said:
“…The police officials who handled this case passed orders, and acted in a manner, which betrayed total disregard of the law of the land and the mandate of their calling. Articles 4 and 25 of the Constitution of the Islamic Republic of Pakistan guarantee that everybody shall be treated strictly in accordance with the law. Article 35 of the Constitution provides that the state shall protect the marriage, the family, the mother and the child. As a member of the comity of nations we must respect the International Instruments of human rights to which we are a party.”
Pakistan is a member of United Nations and a signatory to the Convention on the Elimination of all Forms of Discrimination against Women, which in Article 16 enjoins all the member-states as follows:
“1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations; and, in particular, shall ensure, on the 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.”
The police officer who defied the High Court’s order by arresting Humaira and handing over her custody to her brother who was after her blood, was convicted and sentenced to one month’s imprisonment and fine.
The judgment led to a societal introspection, generated a healthy debate and a national seminar on enforcement of fundamental rights, with particular reference to women. Commenting on the judgment, the English newspaper The Nation said:
“The Humaira case is not just limited to two people or two families, but is a telling comment on the way in which the rights of individuals as granted under the Constitution are being flouted by the influentials, with full help from a state machinery sympathetic to cultural standards contradictory to those constitutional rights.”
Criticising the role played by the state functionaries, the newspaper Dawn said in its editorial comment:
“There are two vital social/political issues which have been thrown into focus by this case. One is that of safeguarding the institution of the family in a patriarchal society like ours… The second aspect of the matter is the propensity of men with political clout to exercise their influence to attain their unlawful and immoral goals. In Humaira’s case, her father, who is a Muslim League MPA from Okara, mobilised the Punjab police to force his daughter to return home, even though she feared for her life.”
Terming the judgment as a catalyst in changing social norms, The News said in its editorial:
“It has been seen that fables of threatened couples on the run always evoke a wave of general sympathy in what is believed to be a highly repressive, gender-biased society. The LHC verdict reinforces this propitious trend by granting legal and religious cover to changing norms, replacing an unreliable medieval ethos.”
In yet another instance, the Muhammad Siddique case, the court criticised the incidence of honour killings, called it a negation of Islam, and refused to sanctify the compounding of the offence, permission of which was sought by the legal heirs of a convict father who had killed his daughter, her husband and the child born out of the wedlock in the name of “family honour,” as the girl had married without the consent of the parents. The court observed that:
“A murder in the name of honour is not merely the physical elimination of a man or a woman. It is on a socio-political plane a blow to the concept of a free, dynamic and egalitarian society. In the great majority of cases, behind it at play, is a certain mental outlook, and a creed which seeks to deprive equal rights to women — i.e., inter alia, the right to marry or the right to divorce, which are recognised not only by our religion but have been protected in law and enshrined in the Constitution. Such murders, therefore, represent deviant behaviours which are violative of the law, against religious tenets, and an affront to society. These crimes have a chain reaction. They feed and promote the very prejudices of which they are the outcome, both at the conscious and sub-conscious levels, to the detriment of our enlightened ideological moorings.”
Although the number of forced marriages in Pakistan has decreased, women are still being subjected to forced marriages in situations where the victims receive no support from the family or the community to resist such a fait accompli. Such marriages may take many forms. Some marriages are performed when the bride is underage; some are performed as a trade-off to effect a compromise in a murder case; some are performed as exchange marriages. In the absence of any specific provision criminalising such modes of marriage, the Supreme Court of Pakistan has been taking suo moto notices and providing relief to the families.
It was on account of such court interventions that some of these inhuman, illegal practices were made criminal offences through the insertion of specific sections in the Penal Code. Section 310 prohibits trading off a female for marriage…and the sentence prescribed is 10 years, but not less than three years. On account of gender bias and misconstruction of certain religious tenets, there was a tendency among state functionaries, and at times even the courts, to sanctify honour killings and to treat the offenders leniently.
For the curbing of this tendency, two important developments are noteworthy: first, the Council of Islamic Ideology, a constitutional body in Pakistan, has categorically stated that such killings are not in conformity with Islamic injunctions; and, second, through the amendment of Section 302 of the Pakistan Penal Code, a murder committed in the name of honour has been made punishable with death or imprisonment for life.
The writer is a judge of the Supreme Court of Pakistan and co-chair of the Hague Conference mediation committee in family and international law. This article is an edited version of a part of his keynote address in the session on forced marriages and gender-based violence at the International Bar Association Conference in Vancouver, Canada, on October 4, 2010. The first three parts of the article appeared on November 3, November 4 and November 6.
Source: The News
Date:11/24/2010
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