by Safeer Ullah Khan with inputs from Benazir Jatoi and Valerie Khan
Bad laws are more dangerous than no law at all
Khyber Pakhtunkhwa is the only province that does not have a law that deals with domestic violence. Though a bill was prepared a year ago, but the coalition of right wing parties that rule the province unnecessarily sent this bill for review by Council of Islamic Ideology (CII). I say ‘unnecessarily’ because provincial assemblies are not legally/constitutionally bound to get CII’s opinion on any bill. It is interesting to note that in the four years of the current coalition government, it has not sent any other bill for review by CII. It is also pertinent to mention that the bill was prepared after thorough consultations with all the stakeholders including religious scholars.
Anyhow, CII, as expected, declared some of the clauses of the bill against the teachings of Islamic Shariah. The KP government did not table the bill then. It has taken another year to revise the bill in the light of the objections raised by CII. Now the bill is ready and it has been announced that the bill would be tabled soon. The current draft is approved by the CII. However, this time the women rights organizations and activists reviewed it, and found it a useless and meaningless exercise.
The most fundamental flaw in the law is under section 22 titled Exemption from the operation of the Act and reads as follows: “Nothing in this Act applies to corrective measures taken by parents or spouses within the constraints of the injunction of Islam as laid down in the Holy Quran and Sunnah.”
This section is widely open to discretion of patriarchal mindsets, including institutional positions such as the judiciary and police to interpret this section in such a manner so as to always be to the detriment to women and girls. The section further reinforces stereotypes and the false belief that religion allows for the hitting of women.
It is important to note that ‘corrective measure’ has not been defined by the Act, leaving it up to the judge to define it. there is a serious need to define this; otherwise, anything and everything can be described as corrective measure, and can be considered exempt. This section further perpetuates physical violence as the section seems to positively promote this – that it is considered legally correct to use violence in certain situations. In fact, this section leaves the rest of the legislation meaningless to hold no real meaning or substance. Because of this section, this bill is merely paying lip service to protecting women in KP.
The Bill is attempting to institutionalize discrimination against women and girls through a legal framework. This clause in itself is discriminatory and further plays into the already existing structural inequality and unequal power relations. It not only promotes the status quo but further jeopardizes it.
We consider this bill not just detrimental to the cause of women and girls of KP but positively dangerous because it leaves women and girls more vulnerable and unprotected.
Another glaring mistake is the age of a child. A child is defined as 15 years or younger. This is a problematic definition and contradicts national laws such as the Child Marriage Restraint Act 1929 and international conventions/treaties to which Pakistan is a signatory. As per UN Convention on the Rights of the Child, a child is defined as a person below 18 years of age.
Yet another major flaw is that this bill deals with physical and sexual violence only. Psychological abuse is not included in the definition of domestic violence.
There are many other minor flaws, overlaps with other laws, and some instances of bad drafting, or wrong choice of words. Cruelty to child is already defined in Pakistan Penal Code; domestic violence is defined as physical violence, but economic abuse, and sexual violence are also included in the definitions chapter. Cruelty to child is defined as something ‘likely to cause unnecessary mental and physical suffering’, which leaves one wondering if there is any ‘necessary’ mental and physical suffering. Then, there are vague words which need to be defined properly.
The overall impression one gets is of a haphazard effort to put together a draft, which has many inconsistencies. The human rights activists need to stand up and voice their objections to such a harmful, and dangerous legislation that actually legalizes violence.