PAKISTAN LEGAL FRAMEWORK RE. WOMEN

Presentation by:Syeda Viquar-un-nisa

Hashmi Lawyer/Consultant

11th April 2012

Pakistan’s Legal Framework

Constitution of Pakistan, 1973• Fundamental Rights• Art.9. Security of Person• Art.10A. Right to fair trial• Art.11. Slavery, forced labour, etc. prohibited• Art. 14. Inviolability of dignity• Art.15 Freedom of movement• Art.17 Freedom of assembly • Art. 17 Freedom of association• Art. 18 Freedom of trade, business or profession• Art.19 Freedom of speech• Art. 24 Protection of property rights • Art. 25: Prohibition of inequality on the basis of sex alone• Art. 25A right to education• Art. 26 Non-discrimination in respect of access to public places• Art. 27 Safeguard against discrimination in services• Art. 34: Directive to the State to ensure full participation of women

in National Life• Art. 37: Promotion of Social Justice and Eradication of Social Evils.

Law Application target group

Harassment Act For all women at work in formal sector

Women Protection Act “

The Child Marriage Restraint Act (XIX of 1929)

The Muslim Family Laws Ordinance, 1961

Muslims

Family Courts Act, 1964 “

Marriages Act, 1939 “

Laws Application Target Group

Dissolution of Muslim Marriages Act, 1939

“

The Divorce Act, 1869 (IV of 1869) Christian

Parsi Marriage and Divorce Act, 1936 Parsi

The Dowry and Bridal Gifts (Restriction) Act, 1976

All citizens of Pakistan

Guardians and Wards Act (VIII of 1890)

Though applicable to all citizens of Pakistan but the communities may follow their own personal law instead

Domestic Violence (Prevention and Protection), Act 2012

All citizens of Pakistan

International Commitments of the

Government of Pakistan

Universal Declaration of Human Rights, 1948

• Articles, 22 to 27: Sets forth the economic, social and cultural rights to which all human beings are entitled. – Article 22: Acknowledges that, as a member of

society, everyone has the right to social security and is therefore entitled to the realization of the economic, social and cultural rights "indispensable" for his or her dignity and free and full personal development.

CEDAWRatified by Pakistan on 12 Mar 1996

• Prohibits any discrimination on the basis of sex … in the political, economic, social, cultural, civil or any other field.

• Art. 7 Mandates the States to ensure to women:– To vote in all election & public refrenda and to be eligible for

election to all publicly elected bodies– Participation in the formulation of government policy and the

implementation thereof– Participation in NGOs & Association concerned with public

and political life of the country.• Art. 11: Freedom to choose profession and employment• Art. 16: Freedom to choose a spouse

De Facto Status of Women in Pakistan

Variation in the status of women across classes, regions, and the rural/urban divide due to uneven socio-economic development and the impact of tribal, feudal, and capitalist social formation on women’s lives.

Key reasons for gender imbalance

• Religious extremism & socio cultural traditions

• Elements leading to the inefficiency the enforcement mechanism

• Gaps in the legal framework• Misinterpretation of Islamic injunctions and

legal provisions

Socio-Cultural TraditionsCases of Honour Killing:– Ismat Parveen– Anam– Salma Bibi– Shazia Khashkheli– Afsheen– Sher Bano– Shaista Almani– Dr. Mustufa Solangi and Dr. Amnat Solangi – Samia Sarwar– Noor Khatoon– Lal Jamila Mandokhel – Arbab Khatoon

Elements leading to Inefficiency of the Enforcement Mechanism

• Corruption• Lack of capacity• Inadequate resources• Mind-sets• Inadequate training

Gaps in the legal framework

• Gender neutral provision • Provisions in Qisas and Diyat Law– Exemptions from Qisas (Sec. 306 & Sec 307) – Compounding of Offences – (Sec 309 & 310)

Mis-interpretation of Islamic injunctions

–Ghulam Farid vs. The State 1997 P.Cr.L.J. 1411 [Lahore] Held: ‘Qatl’ committed on account of Ghairat

is not equivalent to ‘Qatl-e-Amd’ pure and simple and cannot be punishable with Qisas and the persons found guilty of such Qatl are entitled to concession and they can be dealt with u/s S.302©, P.P.C. read with S.338-F, P.P.C. The accused was acquitted.

• Ghulam Yasin and 2 others vs. The State PLD 1994 Lah. 392 Held: The provision of section 338-F of the P.P.C. do give

some authority in Courts to notice the Injunctions of Islam on the subject of Qatl on account of Ghairat and to take benefit of the same while dealing with such cases.

Further held that a Qatl committed on account of Ghairat is not the same thing as Qatl-e-Amd pure and simple and the persons found guilty of such Qatl do deserve concession which must be given to them. The least that can be done in the present stage of law is to convict such – like persons guilty of Qatle-e-Amd committed on account of Ghairat, u/c © of sec.302, P.P.C., as such, a Qatle cannot be said to be punishable with Qisas as pre Injunctions of Islam. The accused was acquitted.

• Sardar Muhammad vs. The State NLR 1999 Criminal 11 Held: Murder committed after being overpowered by wave

of family honur and GHAIRAT, would be no offence. Accused acquitted on murder of his wife and a man.

• Nazir & another vs. The State 2000 P.Cr.LJ. 175 In case involving element of “Ghairat” there is a tendency to

justify imposition of lesser penalty. Sentenced to imprisonment for life and fine of Rs.10,000/=.

Zenaib’s case of torture

• Imam Masjid Qari Sharif tortured his wife named ‘zenab’, to death by give electric shock to her private parts of the body.

• Terrorist Court awarded punishment of consecutively 10 years imprisonment on 3 counts.

• Lahore High Court, Rawalpindi Bench on Appeal changes it to concurrent (10 years on 1 count only)

• Qureshi medical store paid Rs.63,000/= by way diyat and got the convict released only after 7 years of punishment.

Does this justify the criteria set out by shar’iah?

Positive trend in Judgment, but still ………..

PLD 2002 SC 558Muhammad Saleem vs. State

Crl. Appeal No.436 of 2000, decided on 4th April, 2002

• Held: Nobody had the legal or moral right to take the life of a human being in the disguise of “Ghairat”. Conviction and sentence of death had been rightly and lawfully recorded against the accused by way of “Tazir” which did not admit of any interference by Supreme Court.

• Accused had neither acted under grave nor sudden provocation and no such plea was advanced by him after his arrest or at the trial.

• Plea of family honour might have been available to him if he had seen the deceased in a compromising position

• In Muhammad’s case (supra), this Court laid down certain illustrations for accepting plea of grave and sudden provocation namely provocation consisting of three elements the act of provocation, the loss of self-control, both actual and reasonable and the retaliation proportionate to the provocation---their relationship to each other—particularly in point of time, whether there was time for passion to cool, would be of the first importance.

2002 P.Cr. L.J. 859 [Lahore]Ashiq Hussain vs. Abdul Hameed

Criminal Revision No.197 of 1999, heard on 26th September, 2001

• Held: No Court could and no civilized human being should sanctify murders in the name of tradition, family honour or religion.

• If the prosecution evidence was disbelieved and the accused had taken plea to bring the case within those exceptions[1] the onus would shift on the accused to prove existence of circumstances which would bring his case within those exceptions.

• • Accused having killed two teenagers in a brutal manner, no mitigating

circumstances existed to bring his case within the ambit of S.302©, PPC.

• [1] General Exceptions:• Art.121, Qanoon-e-shahadat, 1984: when a person is accused of any offence the burden

of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code (Act XLV of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence, of such circumstances.

• Illustration (b) A, accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power and self-control.

• Case decided u/s.100, PPC: 1986 P.Cr.L.J.493: Deceased seen in a compromising position.

PLJ 2001 SC 29Muhammad Akram Khan vs. State

Criminal Revision No. 410 of 1994, decided on 20th September, 2000

• Held: There was nothing on record to show that deceased had bad eye on H (sister of appellant), therefore, defence version could not be given undue importance.

• Held further: Plea of “Ghairat” could not be deemed to be a mitigating circumstances as motive was not directly against deceased.

Way Forward

• Reforms in the policy / legal framework• Improvement in the enforcement mechanism• Awareness of rights of women in Islam • Understanding of the legal rights of women• Gender sensitization of both men and women

Thanks!