Editorial
The issue is simple, really. The idea of the state, as an institution, justifies itself as the ultimate arbiter and source of violence. The state, by its very nature, is the antithesis of informal violence. All informal violence, including the kind inflicted by parents on infants or by teachers on students, is, at least in the theory of the state, is a challenge to the writ of the state's monopoly over violence. That is why, in the developed countries, public schools provide emergency telephone numbers to all students. The students are encouraged to call state-operated help agencies if there is a threat of parental violence. 

Ongoing struggle
The advent of the Taliban is splitting our South Asian identity and leading to the existing schizophrenia and changing dress codes
By Beena Sarwar
A newly married young environmentalist who recently visited Quetta returned to Karachi somewhat rattled by being the only woman out in public. The experience compelled her to do something she doesn't normally do in Karachi: cover her head with her dupatta. Did it help? "No, because I was still the only woman in a public space, I had the dupatta on my head, not wrapped around so that only my eyes were visible. I still felt exposed but it was a little better."

Chand Bibi or Tara Bibi, someone got flogged, right?
The Islam of the Taliban might have any danger of being challenged from within were there an alternate "modern" interpretation of Islam
By A.H. Cemendtaur
First came a video of a girl being flogged by a bearded man, held down by two other bearded men, and watched by an all-male audience -- the conversation taking place in the video is in Pashto. It was claimed that the girl in the video was a 17-year- old named Chand Bibi of Matta, Swat, who, as seen in that video, was being punished for a suspected illicit relationship with a man. The airing of the video was followed by a public uproar, first nationally, then internationally.

Re-inventing strategies
The women's movement needs to learn how to deal with the compelling force of religious discourse that is completely co-opting liberal interpretation for patriarchal ends
By Afiya Shehrbano
In 1981, Pakistani women's resistance to the Islamisation of the state under Gen Zia ul Haq was a clear, cohesive and more effective movement than ever before or arguably, since. Why is it that some 30 years later, the women of Pakistan are still facing the same challenge while poised on the cusp of another wave of Islamisation under a different title, Talibanisation?

"It's Islam mixed up with custom and sheer male power"
People must be told about their rights and laws, says women's rights activist Khawar Mumtaz
By Farah Zia
The News on Sunday: What do we mean by Talibanisation? Since women's rights movement has always been fighting extremism, what's the difference now?
Khawar Mumtaz: There is a huge difference. The nature of extremism has changed over the years. When we talk about Talibanisation, we are referring to the kind of actions, approaches, attitudes and policies that were imposed in Afghanistan by the Taliban and which have now come to Pakistan. These included many issues: women's mobility, prescription of a particular dress code, limiting their activities, preventing them from public places, ban on girls' education etc. This strict segregation epitomised Talibanisation in Afghanistan.

Rigmarole of evidence
The fight for gender equality in Pakistan will be even harder than changing Zia's Hudood laws
By Sameer Khosa
Too often, the narrative of women's rights in Pakistan begins with General Zia-ul-Haq's Hudood Ordinances of 1979. There is little doubt or debate about the immense harm that was caused to the ideal of gender equality during the Zia years and as a part of his legacy. In truth however, the issue of gender equality and parity pre-dates Zia's rule and was obvious even to the framers of our constitution.

 

 

Editorial

The issue is simple, really. The idea of the state, as an institution, justifies itself as the ultimate arbiter and source of violence. The state, by its very nature, is the antithesis of informal violence. All informal violence, including the kind inflicted by parents on infants or by teachers on students, is, at least in the theory of the state, is a challenge to the writ of the state's monopoly over violence. That is why, in the developed countries, public schools provide emergency telephone numbers to all students. The students are encouraged to call state-operated help agencies if there is a threat of parental violence. This social welfare model of the state does not operate in third world countries but the political principle legitimising the existence of the state is the same. Therefore, a girl being flogged anywhere in Pakistan is not, and should not be, a source of traditional, religious, or moral dilemmas. All non-state violence, whether justified in the name of justice or religion, is a challenge to the state and should be treated as such.

Even if an ideologue justifies the incident of flogging by referring to Islam, it is to be remembered that Islamic punishments can only be administered, after a thorough judicial trial, by the state. Informal Islamic violence is also a challenge to the write of the state. Therefore, as the matter stands, the very nature of the state in Pakistan is at issue. The state has to convey to the entire citizenry whether it condones informal violence or not. If the state allows informal violence, then all ideological camps will feel justified in administering their own versions of trials and punishment. This is a dangerous position because it paves the road to anarchy.

There is only one course for the state at the moment: to define its nature and functions in relation to informal violence and come clean. Islam, tribal traditions, Talibanisation, war on terror, rebellion, and ground realities are not the real issues here. The state has to tell all citizens once and for all who has the right to administer justice. In other words, what is Sovereign in Pakistan?

 

Ongoing struggle

The advent of the Taliban is splitting our South Asian identity and leading to the existing schizophrenia and changing dress codes

By Beena Sarwar

A newly married young environmentalist who recently visited Quetta returned to Karachi somewhat rattled by being the only woman out in public. The experience compelled her to do something she doesn't normally do in Karachi: cover her head with her dupatta. Did it help? "No, because I was still the only woman in a public space, I had the dupatta on my head, not wrapped around so that only my eyes were visible. I still felt exposed but it was a little better."

Many women who drive their own cars even in Karachi now carry chaddars with them when out at night. For those who travel by public transport, a hijab or burqa is the norm, affords some protection (but no guarantee) against harassment. Nor is the hijab a new phenomenon.

An older single woman who lived alone and worked at a multinational bank took to wearing a full hijab -- black covering from head to toe -- some ten years ago in order to protect herself from the advances of her married male colleagues. Like so many other middle class urban women she had also been attending "Quran classes." Ninety nine percent of the women who attend such classes eventually take to the hijab, says Faiza Mushtaq, who is researching the phenomenon.

The trend is also visible at the lower socio-economic level. Some years ago, Sughra, who cleans homes for a living, began wearing a burqa when going to work, motivated by weekly religious meetings. She feels it is "better", both because it is ordained by religion and because it helps her to avoid the male gaze.

Her cousin Ameena, a cook, shrugs off the suggestion to wear a burqa. Although deeply religious-- she says her prayers regularly and fasts during Ramzan -- she does not see the need to alter how she dresses, which is perfectly modest by any standards.

"If a man harasses me, I beat him with his own shoe," she says. She did this six months ago when a man kept nudging her with his feet on the back of her bus seat. Some time before that, she thrashed a fellow who kept brushing against her in a crowded bazaar.

To cover or not to cover is essentially a personal decision. The motivation may be religious but much of it is due to factors based in fear, like social pressure, the desire to conform, and self-protection.

The atmosphere that compelled the woman visiting Quetta to cover her head is directly linked to political events three decades ago, before the word Talibanisation was invented. One of Gen. Zia's first moves after grabbing power in 1977 was to control women's morality and dressing in the public sphere as well as in private spaces. He used the media to indoctrinate audiences. The sole TV channel of the time, government controlled, presented 'good' women dressed conservatively, their heads covered whether sleeping or drowning. The bad ones were shown in western dress.

Women on television were directed to cover their heads. A few refused. The symbol of that refusal is Mehtab Akbar (now Rashidi), who then hosted a Sindhi programme. PTV authorities in Karachi allowed her to continue (head uncovered) since it was only broadcast in Sindh. In Ferozan, a national programme with college students, the producer got her out of the dupatta requirement by suggesting she wear a sari. "If the authorities ask why your head wasn't covered, we will tell them that it slipped."

Later the sari was also banned. Madame -- the flamboyant, glorious Noor Jehan -- refused to conform to this directive but was too big a personality to keep off the silver screen. Hundreds of other sari-clad women working in government offices or educational institutes did not have that option.

Mehtab Akbar walked out of another programme Apni Baat (in which she answered letters) after then Secretary Information General Mujib ur Rehman began objecting to her uncovered head. She finally called it quits when she got a call from the Presidency after a couple of programmes of Ferozan the following quarter, "saying that if your head is not covered, you won't come on TV."

Her own parents said nothing to discourage her, "even my mother, whose own head was always covered," she recalls. "I realised that this was because it was an issue of empowerment, the need to have the option to choose, to decide how you want to live. It took me a second to decide. I thought, if I say yes to this today, I will be compromising on other things tomorrow."

Gen. Zia would present the women in his Majlis-e-Shura with 'chaddars' to cover themselves with. Today he might have handed out a hijab -- a covering that is alien to our South Asian culture.

The advent of the Taliban in Afghanistan highlighted the "Middle Easternisation" -- or "Wahabisation" -- of Pakistan, a process that has split our South Asian identity and led to the existing schizophrenia and changing dress codes.

The reverberations of Taliban rule in Afghanistan echoed in Karachi soon after their ascent. My mother, a college professor, was threatened by an elderly Pashtun for not covering her head at a weekly open air market. It was a Friday and the man was perhaps fired up by the afternoon sermon. She tried ignoring him but he followed her, calling her names and telling her to cover her head. Finally, she told him, "Baba, keep your eyes to yourself". Shopkeepers kept the man from approaching her further but the incident left her shaken.

The word 'Talibanisation' was not even part of common discourse at the time. Policies supporting the Taliban and the local jehadi organisations with the intention of bleeding Kashmir in India process kept the fire burning that Zia had ignited. Prime Minister Nawaz Sharif's 15th Constitutional Amendment (CA 15) fanned it further.

"This is not the first time that a so-called Shariat Bill has been introduced here -- always by a floundering government seeking to divert attention from its weaknesses. But never before has such a move seemed so threatening, thanks to the geo-political situation. On Pakistan's west lies Taliban-ridden Afghanistan and to the east is the India of the BJP. The rise of religious militants in both countries provides an impetus to extremist religious outfits in Pakistan, who are encouraged by one and find a windmill to tilt at in the other," I wrote November, 1998, talking about how the introduction of CA 15, whether passed or not, had "intensified fears about the Talibanisation of this area".

Despite the partial reversal of policies following 9/11, the struggle continues. Whether or not the trend is reversed or accelerated depends on the stand the Pakistani people take and how the government enforces the law to deal with these issues. The video of the girl being flogged in Swat that caused such intense outrage may well prove to be a turning point. Hope springs eternal.

 

Chand Bibi or Tara Bibi,

someone got flogged, right?

The Islam of the Taliban might have any danger of being challenged from within were there an alternate "modern" interpretation of Islam

 

By A.H. Cemendtaur

First came a video of a girl being flogged by a bearded man, held down by two other bearded men, and watched by an all-male audience -- the conversation taking place in the video is in Pashto. It was claimed that the girl in the video was a 17-year- old named Chand Bibi of Matta, Swat, who, as seen in that video, was being punished for a suspected illicit relationship with a man. The airing of the video was followed by a public uproar, first nationally, then internationally.

The public commotion woke up the human rights activists and the political leaders of Pakistan. The Supreme Court of Pakistan got into action and took suo moto notice of the situation; newly reinstated Chief Justice Iftikhar Chaudhry ordered the Inspector General of the NWFP to produce the girl in his court.

And now we see the denial. We are told that Chand Bibi is fine, that the girl in the video is somebody else, that the flogging shown in the video did not take place in Swat, that the incident must have happened somewhere else.

What is that refusal telling us? That the video is fake? The people in the video don't look like they are acting. If they are indeed actors, then the producer of the video should be really proud of the film and the video can easily be claimed to be Pakistan's befitting reply to the iconic horror movie The Blair Witch Project. But speaking more seriously, the video is real, the incident did take place -- where it actually happened, or what is the name of the girl being whipped is beside the point. The crux of the matter is that some people understand Islam to be about flogging and beheading, and want everybody living in their sphere of influence to live according to their particular interpretation of Islam.

The Islam of the Taliban might have any danger of being challenged from within the Islamic faith were there an alternate "modern" interpretation of Islam on the scene. But such an entity does not exist. Let us be more specific. Osama Bin Laden, Mullah Omar or Qazi Hussain Ahmed has a beard because the Prophet Muhammad (pbuh) had a beard. But if you have a Muslim name such as Asif, Yousuf, Iftikhar, Ashfaq, Nawaz, Imran, or Altaf, and you don't have a beard then you need to explain your "Islamic" logic of not keeping a beard. If Munawwar Hussain's wife or Baitullah Mehsud's daughter remains in hijab then it is because the Prophet's wives and daughters remained in hijab. But if you claim to be a Muslim and don't keep your wife and daughter under hijab then you have to make clear the "Islamic" rationale under which these female members of your family don't observe purdah.

But why do you -- if you are a Muslim -- need to have an Islamic interpretation of things you do in your private life? Because you are a Muslim and according to the "other" group, the Quran asks all Muslims to enter the faith completely. But why should the "other" group tell all Muslims what should they be doing, because, unless a particular "modern" Muslim belongs to a minority and marginalised group, she/he is -- at least in the matters of religion -- living a paradoxical life. She/he wants Islam to be a private matter, but accepts the religious leadership of people who by and large believe Islam to be a complete way of life that should be governing all aspects of our existence including the government, the economy, social life, punishments for crime, and everything else in between. The "modern" Muslim accepts the leadership of the "other" side of the Islamic leaders by praying behind them (regular, Juma, Eid, or burial prayers); by accepting their captaincy during birth, marriage, and death rituals; by performing Haj under their mentorship and by seeking religious advice from them.

The dichotomy described above -- considering faith a private affair and accepting the religious leadership of the people who are against keeping faith a private affair -- would have any chance of survival were there an alternate leadership that would speak the language of the present guardians of Islam and approve the "modern" Muslim's attitudes towards life through arguments based on Quran and Hadith inferences. Where is that alternate leadership in Islam? Where is that Maulvi, Mufti or Imam who would acknowledge that whereas flogging was a routine affair in Islamic history; that whereas women were stoned to death in those times -- times hailed by many as the golden era of Islam; that whereas people are still being beheaded in Saudi Arabia, the flagship of Islamic countries but would say that whereas all that is true, the flogging, the stoning, the beheading should all now be considered un-Islamic?

In short, presently no such non-bearded, feminist, human rights activist, Hafiz-e-Quran or Alim-e-Hadith walks this planet who would challenge the Taliban interpretation of Islam and galvanize the "modern'" Muslims around him/her. Till that happens, religious people who have done their homework and are ready to precisely tell Muslims what Islam is about -- that Islam is about living the way life was lived in the 6th century -- would keep flogging the followers of the wishy-washy Islam.

 

 

Re-inventing strategies

The women's movement needs to learn how to deal with the compelling force of religious discourse that is completely co-opting liberal interpretation for patriarchal ends

 

By Afiya Shehrbano

In 1981, Pakistani women's resistance to the Islamisation of the state under Gen Zia ul Haq was a clear, cohesive and more effective movement than ever before or arguably, since. Why is it that some 30 years later, the women of Pakistan are still facing the same challenge while poised on the cusp of another wave of Islamisation under a different title, Talibanisation?

The direction of religiosity in Pakistan has taken a turn over the last three decades. In the Zia years, the state was overtly theocratised in its attempt to institutionalise its own brand of Islam. In Nawaz Sharif's tenures, the legacy of Zia gathered democratic legitimacy, such that non-Muslims became vulnerable targets too. The phenomenon of Talibanisation is commonly associated with those who were conscientised by madrassahs to form jehadi groups and used by our state to fight the Soviet occupation in Afghanistan. What was state complicity under Gen Zia, changed into a policy of renouncement under Gen Musharraf. The latter (ostensibly) sought to distance the state from Talibanisation, as a foreign imposed, militant and unenlightened religious ideology.

On the other hand, what has been neglected by activists and analysts are the internal sociological changes that have taken place simultaneously in all parts of the country. Although this is loosely called Talibanisation, the reference is to the un-named growing momentum of faith-based groups and piety movements which are more indigenous than the "foreign" imposition of the Taliban. Hence, today the challenge is not only from an overtly theocratic state that is pushing this agenda but also from fragmented, organised faith-based interest groups.

The faith-based interest groups compete for legitimacy in routine politics and for relevance in the social fabric of the country. This growing piety movement includes many women religious leaders and home-based preachers, several of whom have successfully activated networks and mobilised communities to spread the word. Often, though not always, these are purported for the cause of women's rights in Islam. What used to be the strategies and vocabulary of the liberal and upper class NGO women activists, have been claimed by these supposedly more indigenous Islamic women's rights activists. These women may not be overtly politicised as yet but certainly are involved in (what is commonly known in NGO vocabulary as) advocacy towards this end. The Jamia Hafsa incident in 2007 is simply a precursor of the potential of the personal religious agency of women being converted in to political activism.

This development is not accidental. One section of the progressive women's movement from 1991 debated the virtues of strategising and reclaiming feminist interpretations for women's rights, from the insider position, within the Islamic framework. The concept of Islamic Feminism caught the imagination of Muslim women, as they were convinced they could reclaim their divine rights by reinterpreting Islamic texts. Diasporic Muslim women (living in secular countries) were most enthused by this project. Organisations such as Women Living Under Muslim Laws (WLUML) have entire testimonies of Muslim women as evidence of how religion could be used to reshape disadvantageous gender relationships. What they didn't account for is how such personally empowering strategies can and at some point, must be converted into political activism. Madrassah education for girls, the veil, polygamy, women leading prayers and other such matters were rethought as symbols and practices that could subvert patriarchal oppression. Just because under some circumstances, these practices took place against male wishes and invoked historical references from Muslim history, Islamic feminists considered them successful feminist strategies.

Some politicised radical Islamist women, however, wish to appropriate the same symbols and practices, not for feminist ends but to argue women's domestication or compatibility with patriarchy. They do so far more successfully because ultimately, all the above symbols represent separation, non-neutrality and unequal status for women. They are temporary and limiting strategies. Also, material issues such as equal inheritance, maintenance, custody of children and so forth are always up for negotiation rather than guaranteed unequivocal rights. Thus working from within patriarchal religion will always remain a slippery slope for women and the debate will only give more and more legitimacy to the Islamists rather than feminists.

The question of alliances too has become complicated. While women representatives in our Parliament have increased considerably due to the reserved seats, we see they are increasingly becoming symbolically and politically submissive to patriarchal norms and male leadership in the Parliament. This used to be the criticism of women in right wing political parties but today has become the accommodative behaviour of women belonging to self-acclaimed liberal secular parties. If these women disempower themselves under the patriarchal compulsions of male stream politics, what should we expect of them for social change?

Other forms of alliances are equally worrying. After the terrorist attacks in Mumbai in Nov 2008, the pressure on the Pakistani government led to a crackdown for hunting suspects believed to be part of the banned extremist religious group, Lashkar-e-Toiba (LeT). In defence of the LeT, some 200 Hindu women in Sindh came out to protest against this state action in support of the banned terrorist organisation. They claimed that LeT supported their poor community and gave them protection and services. Importantly, these women crossed gender and religious boundaries to support those who would ordinarily be their religious antagonists. I submit, the progressive Women's Action Forum has difficulty mobilising 200 Muslim women to protest on cases of rape or violence, leave alone reaching to minority communities to support their causes. This, despite the fact, that many NGOs have been involved in service delivery and developing relationships with the communities for some 30 years now. The contention is then, that religious affiliation and empowerment from within may be completely independent of delivering or receiving rights and development (quite different from philanthropy).

Taliban may be an easier target of criticism by virtue of their overt, public and unambiguous agenda. However, the political agency of other Islamist groups and individuals has moved far beyond mere attitudes or misinterpretation of religion. Religious movements have genuine grassroots support in many cases and it is precisely through their methods of service delivery and provision of social justice that in many cases, they have successfully institutionalised their cause. This cause presupposes a social order in which women have separate but not equal rights and are subject to moral regulations not applicable to men.

It remains for the liberal progressives to either confront and challenge such structural take-over through convincing alternatives or be absorbed by this larger force. Anything in between, such as reinterpreting religion and using cultural/religious practices as tools for empowerment is likely to fail or merely be co-opted by the very sophisticated and nuanced Islamist movement which includes women within such movements.

The recent Lawyers' Movement for the restoration of Chief Justice Iftikhar Chaudhry has many lessons for civil society and the women's movement in particular. First, it has been the single largest, sustained and successful, non faith-based movement this country has witnessed in a very long time. The right wing support to it was an appendage, not the driving engine by any means. The Lawyers' Movement was also not concerned about any policy reform or whether a liberal, democratically elected government was in power or indeed, about giving up agency to the parliamentary process for interpreting correctives to the Constitution. Instead, the agenda of the Movement was always about a structural corrective and an institutional balance of power. They achieved this, symbolically and in practice and it has become a milestone for restoring street activism and reviving a fledgling civil society.

The women's movement has lessons to learn about the limitations of civil society and the need to rethink its politics, strategies and alliances on how to deal with the compelling force of religious discourse that is completely co-opting liberal interpretation for patriarchal ends. Ironically, secular resistance may be the only realistic strategy to prevent the very subversion of the traditional approach used by women activists who were seeking rights from within religion.

 

"It's Islam mixed up with custom and sheer male power"

People must be told about their rights and laws, says women's rights activist Khawar Mumtaz

 

By Farah Zia

The News on Sunday: What do we mean by Talibanisation? Since women's rights movement has always been fighting extremism, what's the difference now?

Khawar Mumtaz: There is a huge difference. The nature of extremism has changed over the years. When we talk about Talibanisation, we are referring to the kind of actions, approaches, attitudes and policies that were imposed in Afghanistan by the Taliban and which have now come to Pakistan. These included many issues: women's mobility, prescription of a particular dress code, limiting their activities, preventing them from public places, ban on girls' education etc. This strict segregation epitomised Talibanisation in Afghanistan.

TNS: What indicators of Talibanisation have been observed in Pakistan?

KM: There are many - women's education is being stopped, schools are being bombed, teachers are being victmised and killed, there's been imposition of burqa where there was none. The latest is that women should not get ID cards, or see a doctor, or have polio drops administered to children. It is said it is being done in the name of Islam but that itself is questionable because it is Islam mixed up with custom and sheer male power.

TNS: How have people working on rights functioned in areas with such strong tribal customs?

KM: Customs vary with geographical locations. Many a time, people don't understand the difference between custom or law, or religion or custom. Often, customs transcend religion because they predate religion.

So [we need] to be able to first separate those issues, and then on the basis of that understanding work with individual communities and tell them about their rights as well as about the laws and to create awareness around that. And when you go in those areas, whether it is Malakand or Swabi or Khairpur, you find there are people who are champions of that awareness. We work with those champions, give them the wherewithal, link them with institutions and processes that support that position.

Things are not always smooth. But once the understanding comes, something gets triggered at every level. There is a public sentiment against certain things and that is where the change starts coming - like in this video footage of a girl being flogged.

TNS: You have talked about the distinction between custom, law and religion. But to have the writ of law established at a particular place, do you get any help from the government?

KM: In many instances, the government functionaries flow with the existing structures, which also happen to be the power structures. But, with processes like elections where there is more public participation, such attitudes start getting questioned. And when you ask for accountability from local duty-bearers, you find that they do respond. You find that in a community, at the local BHU, if the doctor is not coming, the locals get together and protest and there is a response. So I think we have to acknowledge and realise that if there is a collective demand for something, usually there is a response.

In Pakistan people have always waited for things to come from the top. We now have to start a process where people should claim their rights.

It is basically common sense approach, very low key, not aggressive - just trying to get people together who were not getting what they should be getting, helping them understand that they can demand that this is their right.

I think this is a slow process but this is the only sustainable way to go about it.

TNS: But people in these areas own many brutal incidents as part of their culture?

KM: After the alleged burying alive of five women in Balochistan, I too met a lot of people across that province in various seminars, who said this was their rivayat. But we have to start addressing the issue. What is more important in a country - constitutional provisions, writ of the law or your rivayat? It's a huge challenge but we have to start talking about it. Honour killing is such a big issue country-wide and internationally now because people have started talking about it.

TNS: Why weren't earlier incidents like the bombing of girl schools taken as seriously as the flogging video?

KM: There was a lot of ambiguity and disinformation around the whole issue. Some people said it was the army sitting in those girls' schools that was being attacked. Then there are many people who support Taliban: some see them as anti-imperialists; others see them as legitimate flag-bearers of an Islamic society. There is also a designed and planned obfuscation campaign - through electronic media or through the pulpit.

In this case it was so tangible; to see a woman, crying and screaming and being held back in such a brutal manner triggered the reaction and then what the spokesman of the Taliban said made it even worse.

TNS: How is the development work being affected in this situation?

KM: It has virtually stopped in areas where there is conflict. For instance, schools and clinics are closed, female doctors are not coming, economic activity has stopped, hotel business is gone; everybody's life has been affected. There is no development work because everybody feels threatened. The latest threat is that a whole vehicle has been abducted and NGO workers slaughtered. NGO offices have been burnt down. It has been said that women can only be attended to by women, then they stop women from coming in the field. What are they trying to do? Strangulate all women in their own community? It's criminal.

TNS: From the time when you started your struggle in the 1980s and brought women's rights on the national agenda to the point where you see such brutal things still happening as a matter of routine, isn't there a sense of frustration?

KM: There is deep frustration. On one hand, we have travelled quite a distance in 20 years, where there is no longer silence on a whole range of issues, laws have changed, there's more representation for women even if as a principle acknowledged, while on the other hand there is deep frustration. The frustration is because the state has not fulfilled its responsibility - by letting such elements come centre-stage, by giving them so much space to operate and challenge the government. I think we need to now, as people of this country, establish the rights of citizenry of Pakistan, and stop a few people from taking the law into their own hands.

The people of Pakistan have to realise that what is happening is detrimental to them and it should not be camouflaged as anti-imperialism or a clash of civilisation or serving the cause of our faith. It is downright violation of basic human rights and the use of religion to justify it is criminal.

 

Rigmarole of evidence

The fight for gender equality in Pakistan will be even harder than changing Zia's Hudood laws

By Sameer Khosa

Too often, the narrative of women's rights in Pakistan begins with General Zia-ul-Haq's Hudood Ordinances of 1979. There is little doubt or debate about the immense harm that was caused to the ideal of gender equality during the Zia years and as a part of his legacy. In truth however, the issue of gender equality and parity pre-dates Zia's rule and was obvious even to the framers of our constitution.

The constitution of Pakistan clearly envisages discriminatory acts by the State except that it envisages positive discrimination. Article 25 of the constitution guarantees the fundamental right of equality before the law and equal protection of the law. It further guarantees that there "shall be no discrimination on the basis of sex alone". There is only one exception: that the state can make any special provision for the protection of women and children. Clearly, the framers of our constitution recognised that gender discrimination was prevalent in Pakistani society and needed to be counter-acted.

But what happens when the protector turns predator? Pakistan found out. Barely half a decade after the promulgation of the constitution of 1973, Gen Zia-ul-Haq tossed it out of the window. Many are now familiar with the injustices that Zia enacted in the name of Islam and Islamisation. One of the fundamental flaws in the Hudood Ordinances was the conflation between adultery (Zina) and rape (Zina bin al jabr). Consider this, an unmarried woman alleges that she has been raped, but does not have four male eye-witnesses. After the allegation and during the trial it emerges that the woman is pregnant. The fact of pregnancy could be used to assert the fact that the woman clearly did have sex outside of marriage and therefore could be charged with Zina! Although she could not get the maximum punishment (as that is only available once four adult, male, Muslim witnesses testify), it was still the case that rape victims faced the possibility of being convicted for adultery, if they did not produce four adult Muslim male eye-witnesses who had witnessed the rape. Further, under all Hudood offences the police could arrest without a warrant therefore, false allegations could result in devastating consequences.

Through the Protection of Women (Criminal Laws Amendment) Act, 2006, Pakistan took what can best be described as only the first step in undoing a legacy of gender discrimination that has seeped deep into societal sensibilities. The Protection of Women Act, 2006, amended portions of Zia's Hudood Ordinances, particularly in relation to Zina (adultery). Most notably, it amended the possibility that rape victims could face prosecution for adultery and the requirement of four adult, male, Muslim witnesses needed to prove rape. The Act also amended the procedure through which charges against the accused could be brought by making the offence non-cognisable i.e. it took away the powers of the police to arrest the accused without a warrant. This meant that a case could not be registered for Zina merely through filing a police complaint. A complaint could only be made to a court and registered only after the presiding officer of the court had examined four witnesses on oath and reduced their testimony in writing.

However, in one crucial aspect the Protection of Women Act made no change to Zia's Ordinances: evidence. To this day, the law as it stands states that in cases of Zina, or in fact of any crime punishable under the Hudood Ordinances for the maximum mandatory punishment (Hadd), the testimony of adult, Muslim and male witnesses is required. There is only one inescapable conclusion that can be drawn from such a law: only men are to be believed. So, if one must falsely accuse someone of Zina, one should do it in front of women -- that's as good as doing it in front of no one. It is an open question how such a law can be reconciled with the provisions of Article 25 of the Constitution mentioned above.

In defence, it is usually stated that the point is merely academic. It is argued that such are the stringent requirements about the nobility and veracity of witnesses for punishments to be made under the mandatory maximum, that in fact the witnesses themselves undergo a trial first. For that reason, no cases are actually brought under that provision. Hence it does not result in actual tangible discrimination to women. Nonetheless the point remains, that according to this law men alone can have the requisite veracity and credibility -- and if such a distinction can legally be drawn for one category of punishments then what is there to stop it being drawn for a different category?

This controversy carries on into Article 17 of the Qanun-e-Shahadat Order 1984, which states that in financial matters which are reduced in writing, it "shall be attested by two men, or one man and two women, so that the other may remind her, if necessary". The obvious conclusion has to be that this is a law which discriminates on the basis of sex alone as well. Furthermore, and quite unfortunately, despite the fact that the use of the words, "if necessary" clearly envisages that it may not be necessary to remind the woman, the courts have interpreted the provision so as to invalidate documents not attested by two women. The article leads to an interesting conundrum -- it clearly envisages that it may not be necessary to remind the woman, and therefore accepts that one woman on her own in the witness stand would be perfectly competent to give testimony. Yet, because of the use of the word "shall" it requires that all financial documents must be attested by two women for them to be valid. One extra woman just to spice things up!

The Muslim law of inheritance remains another area where utmost care needs to be taken while challenging the conventional interpretation and understanding. The law for example, entitles to the male child, a portion equal to that of two females, and one-eighth to the widow compared to male child. The last time a High Court judge made a reference in his judgment to the need for reconsidering the law in view of the inherent discrimination, the matter was almost raised before the Council of Islamic Ideology. Perhaps it should be, if it can be done without the hysteria. Ultimately, the issue subsided after the judge decided not to seek confirmation on the Bench. Unfortunately, if our experience with Zia's Hudood laws is anything to go by, it seems whole areas of law will have to wait till public (read male) opinion is softened for the benefit of more than half of our population.

Returning to the Protection of Women Act, three years since its passing there is one important respect in which it has failed to have the desired impact which is also illustrative of a broader problem which laws alone cannot fix. As explained above, in Pakistan there may be offences for which the police can arrest without warrant (cognisable), and offences in which the police do not need warrants to arrest (non-cognisable). In situations where a person is accused of multiple crimes, even if one of the crimes is cognisable, then the police are entitled to take cognizance and arrest the accused without warrant. This has resulted in one of the key elements of the Protection of Women Act failing miserably. The Act made the offence of Zina non-cognisable to protect women from undue harassment and false allegations. All that people are now required to do is make two, not one, false allegations -- that of Zina, and for example theft (cognisable offence). Thus magically, the police power of arrest is restored. Anecdotal evidence at least suggests that this is exactly what has started happening.

Unfortunately, gender-neutral laws do not guarantee gender equality. Undoubtedly, laws, legal systems and the moral values which underpin those laws do help and are essential to change attitudes but it is not the fault of a kidnapping law that families register false cases of kidnapping against a husband and wife who marry wilfully but against the wishes of their families. A law against murder does not prevent numerous incidents of families burning their daughters-in-law. A law against hurt did not prevent a husband from cutting off his wife's nose recently. Truly, the law leaves much to be desired, but the fight for gender equality in Pakistan will unfortunately be even harder than it was to change Zia's Hudood laws.

The writer is a barrister based in Lahore.

 

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