Report on FGDs with Civil Society on the Implementation Challenges of Pro-women Laws in Khyber Pakhtunkhwa
By Qamar Naseem, Program Coordinator, Blue Veins. April 2015.
Civil Society Focuses on VAW
Ten Focus Group Discussions (FGDs) with community service organizations (CSOs) focusing on review of existing and pending legislations were organised in the central zone of Khyber Pakhtunkhwa.
Two FGDs organized in district Peshawar, two FGDs were organized in district Charsadda, two FGDs were organized in district Nowshera, two FGD were organized in district Mardan, while two FGDs were organized for the CSOs of district Swabi.
A total of 261 civil society representatives including NGOs, CBOs, alliances, UN agencies, political activists, journalists, international NGOs, lawyers, housewives, teachers, labour union representatives, men from the community, labourers, and students participated in the FGDs, which included 180 male and 81 females who participated. The FGDs aimed to review the impact of existing and pending pro-women legislations and identify the gaps in these legislations.
Like the previous FGDs in the first quarter the focus group, discussions of the second quarter strongly reflected that the civil society actors who are engaged in the promotion of rights and working to reduce violence against women (VAW) and sexual and gender-based violence (SGBV) do not fully understand or own these laws and criticise them – and it is a major reason that they fail to play the watchdog role.
Stereotyping & Lack of Consultation
Lots of stereotyping exists among the civil society on the role of women in society, which contributes as an obstacle and challenge when it comes to providing rights given to women in the constitution of Pakistan. For example, journalists and lawyers and even the NGO workers are not gender-sensitized and often gender blind; therefore, they become part of the problem rather than the solution.
There is a strong sense among community that the pro-women laws that exist in Pakistan are not culturally suitable and that no consultation is made at the grassroots level with different sections of society or CSOs before these laws are pushed into assemblies.
The FGDs gave a strong reflection that the relevant segments of the civil society sees serious gaps in the pro-women laws; the majority of them are not fully aware of the laws and most of the actions taken by the civil society address practical gender needs. Also, there are rare actions by CSOs which address strategic gender needs of the population, especially in regards to sexual and gender-based violence.
The opinions, comments, and concerns presented by the participants of the FGDs provided a fair sense that civil society actors believe that because people of Pakistan live in a world which is structured by strict religious family and tribal customs, the laws which protect them should be well in alignment with these challenges – otherwise it will not yield the desired impact level.
They were of the view that women who face SGBV do not take the remedies offered by the laws because it is against the community stature and further subjugate her to the chains of violence and this is the reason that most of the women chose to remain silent.
Failures of the Existing System
The participants suggested that the process of law-making should be need-based and shoulder the capacity to address the issue in totality.
Half-baked solutions by the NGOs and legislation by the government – which remain only in the books of law, never provide relief to women in distress. The participants also expressed disappointment that NGOs as well as government have no programs to address the sexual and gender-based violence faced by men in society, while they also have strong assumption that laws made/amended in relation to women is under international or civil society pressure – and rarely did the government take any initiative itself.
Most of the laws are only made to gain political mileage by the governments.
CSOs also expressed concerns that NGOs make lot of efforts to bring new laws but they have little attention towards the issue that laws that exist are implemented or not, and therefore are equally responsible for this deteriorated situation. Civil society representatives expressed disappointment and concern that despite the fact that Pakistan is one of the most heavily legislated countries, the citizens of Pakistan do not get justice; dozens of laws and the constitution of Pakistan guarantees equal status and protection to women of Pakistan, but still they are vulnerable and the large majority of them are voiceless as well as the fact that major portions of the legislation remain non-effective.
The participants expressed their views that because there is no demand from women unanimously for the implementation of these laws, therefore governments do not take the issue very seriously.
NGOs have implemented thousands of projects around the country on SGBV but there are fewer examples of community-led actions and therefore, the NGOs working with women need to change or improve their strategies. Most of the organizations across Pakistan work on awareness-raising and very little is done when it comes to give practical help to women in need like legal aid and shelter services. The participants gave an example that there is only one private shelter in KP, and lack of protection services and structure reduces the impact of all the resources which is put into the awareness-raising.
There is very little experience sharing practise and channels among CSOs; most of the work is done is isolation which is also a challenge and this lack of coordination affects the target population and beneficiaries.
Controversial and Sensitive Issues
The participants of the Focus Group Discussions also recognized gender-blind Jirga system as one of the major challenges to the access for justice for women.
They believe that because women have limited mobility to the formal justice system, presence of parallel legal system in Pakistan is a contributing factor which leads to the injustice, inequality, and violation of fundamental rights. The established different courts and forums under Common Law, Sharia Law, and Tribal Law – and all of them parallel to each other, sets paths towards an unequal and unjust criminal legal system. Moreover, the presence of informal justice system, known as Council of Elders has led to certain inhuman decisions.
The FGDs also reflected that a considerable portion of civil society is gender-blind.
During the FGDs, several civil society representatives expressed their views that NGOs of Pakistan should not raise controversial and non-issues which reduces their legitimacy among community and civil society. Some of the examples of the controversial issues by these civil society representatives were issue of polygamy, child marriages, reproductive rights, abortion, family planning, blasphemy laws, and marriage by choice. According to the comments made, these are sensitive issues and all such issues which are interlinked with religion and belief should not be addressed by NGOs.
In support of their argument, they provided the example of the Council of Islam Ideology (CII), who recently made a statement that the law seeking consent from first spouse for a second marriage is un-Islamic; Sharia does not bind a man. The council discussed Islamic Family Laws 1961. The CII declared one section of the law un-Islamic under which a man is bound to seek approval from first wife in black and white for second marriage.
Similarly, the Islamic Ideology Council (IIC) ruled that Pakistani laws prohibiting marriage of under-age children are un-Islamic, the CII said there is no minimum age of marriage according to Islam.
These statements from Islamic Ideology Council (IIC) were highly criticized by CSOs but they were enjoyed and appreciated by general population.
Confusion About the Laws
The participants of the FGDs in the second quarter also raised the issue of branding and showcasing of women laws as one the area which causes confusion among the general population about the laws.
Some of the relevant examples provided by the participants of Quarter 1 and Quarter 2 are compiled below.
- Criminal Bill amendment 509 provides protection from sexual harassment to the citizens of Pakistan. It is true that in most cases it's women who suffer from the incidents of sexual harassment but the fact cannot be denied that men also face cases of sexual harassment in streets and bazaars. The law is showcased by NGOs in a manner that only women are harassed by man. All information, education, and communication (IEC) materials (pamphlets, flyers, posters, etc.) produced by NGOs portray men as harassers, which is based on stereotyping.
- There are cases of acid-throwing against women and men also. But the media portrays stories as if only women are victims of the acid attacks. There are large number of cases of acid throwing against men, too; they need to be highlighted as well so that society can understand its effects and raise their voice in a just and equitable way.
- The issue of honour killing is also an evil which affects both males and females, but cases of honour killing are often quoted in a way which only show women as a victim of practice. This strategy has to be changed because honour killing is not only a violence against women, but a violence against society and humanity.
- The law which protects the citizens from harassment at work is called “The Protection against Harassment of Women at the Workplace Act, 2010”. This legislation provides relief to both male and females, but the title of the law causes confusion and results in the rejection among males. The government has so far failed to take any measures regarding compliance and implementation of this legislation. The ombudsperson, whom the government was supposed to hire to look into the cases of sexual harassment, has still not been hired, which makes the law very ineffective.
- Whenever the issue of child marriage is raised, the focus is only on the girl child. It is a fact that male children equally suffer from the evils like child marriages, but they are rarely discussed or streamlined. The NGOs fail to showcase the issue in culturally sensitive way because of which it was completely rejected by the legislators in the Khyber Pakhtunkhwa Assembly.
- The Constitution of Pakistan provides legal guarantees to safeguard the rights of both genders without any discrimination under Articles 4, 8, 14, 25,26, 27, 34, 35, 37 and 38, but still dozens of laws are made while there is never an emphasis on their implementation.
- The drafts of the bill are desk work of consultants who never consult grassroots women who suffer from GBV. If the civil society drafts the bills, the content of the bill is entirely changed and in case of consultation, the recommendations of the civil society are never taken into consideration. For example: the criminal bill amendment 2004, or domestic violence bill.
- Seven pro-women laws were enacted by the government in the last decade but no measures have been taken for their implementation.
- In 2004, after persistent efforts of women’s rights organizations and committed activists along with active women in political parties, some legal amendments were made to the Pakistan Penal Code to address the issue of honour crimes through an act of Parliament. The bill was passed in December 2004, and became a law in January 2005. It is otherwise known as the Honour Killings Act and is full of flaws and gaps; what is challenging is the fact that these gaps are deliberately kept in this law because they were identified in time. Civil society raised its voice against it, but the government paid no attention. The result is that today this law is not effective and is not providing relief to the women.
- Criminal Law (Amendment) Act, 2010, which intended to counter the cases of sexual harassment in the public sphere completely fails as there is no implementation strategy to implement this law, and the law is made without looking at addressing the ground reality surrounding the issue of sexual harassment in the public sphere.
- The domestic violence bill was also introduced in the KP assembly, but it has the same fate as the Child Marriage Restraint Act because the legislators considered the content of the bill as anti-Islamic and against the cultural norms. The NGOs failed to bring up the issue in a strategic manner.
- The domestic violence bill can provide relief to women and men equally, but the NGOs are showcasing it in the way that domestic violence legislation will not provide relief to men.
- The content of the domestic violence bill is full of flaws and gaps and passing such legislation without addressing these gaps will not only nullify the objective of this bill, but will further contribute in oppressing women who want remedy from this legislation. For example:
- The law suggests that penalty for filing a false complaint is punishable with simple imprisonment for a term which may extend to six months or with fine which may extend to 50,000 rupees, or with both. It means that if anyone files a complaint of domestic violence and is unable to prove it for whatsoever reason – also noting that this will be difficult to prove in the first place, they will in turn be punished for false accusation. This would mean that practically no aggrieved party/victim/complainant will ever file a case in fear of reactionary punishment to them.
- In the definition of domestic violence in Section 4, the word ‘unintentional’ should be included so as to avoid the possible dismissal of a large number of cases if the act of domestic violence is not proved to be ‘intentional’. Excuses such as ‘mistake’, ‘ignorance’, and ‘accident’ could be easily used to counter any complaint of domestic violence, resulting in immediate acquittal.
- While the civil society fully endorses the need of legislation to put an end to the cases of domestic violence, realistic legislations must be made because if the state sends a person to the jail for the term of six months or one year or may be two years, is the state ready to support the livelihood needs of the family? As in most families, there is only one breadwinner in the family. If the breadwinner is sent to jail and the family is left alone to meet its needs, it will encourage begging and forced prostitution in society.
- There is a joint family system in Pakistan; if the woman sends the men in her life to jail – because of the existing gender realities of Pakistan and especially Pukhtoon culture, it will escalate violence at the home and family level.
- More than women, men will use these laws against women, which will put them in a very difficult situation.
- There are not enough spaces in Pakistani jails to cater to large numbers of people who will be charged under the domestic violence bill. Jails in Pakistan are crime universities and there is fear that people who will go to jail under domestic violence crimes will come out as criminals or become more violent citizens, which will increase violence in society.
- Laws related providing protection to women in Pakistan are not restorative in nature, they offer punishment but there are fewer opportunities for rehabilitation for women, and because of their dependent situation, women do not choose to go for the legal options.
The Biggest Challenges to Implementation of Laws
The participants of FGDs identified the following as the biggest challenges in relation to the implementation of the laws related to women in Pakistan and access to justice:
- The major impediment in the implementation of laws that protect women is the patriarchal mind-set. We need more voices (from men to support women’s equality and empowerment).
- Lack of legal aid and counsel
- Provision of legal aid services is obligatory only for criminal cases
- Complexity of the legal systems and legal counsel is intimidating
- Fear/lack of trust of formal institutions
- Fear of reprisal/social ostracism
- Lack of physical access
- Gender-blind Policing System
- Gender-blind Judiciary
- Legal and institutional discrimination
- Insecurity/fear and lack of trust of formal systems
- Physical access to information and services
- Legal discrimination/lack of legal protection
- Gender insensitivity in the justice system
- Lack of institutional technical capacity and services
- Inadequate public services and outreach of NGOs
- Lack of economic independence
- Branding and showcasing of the laws related to women
- Lack of local contextualization of the issues related to women
- Confusion of the gender issues with violence against women issues
- Absence of restorative judicial system
- Radical feminist agenda getting mixed and confused with issue of gender and VAW
- Parallel judicial system
- Absence of women in the Jirga system (gender-blind Jirga system)
- Lack of knowledge in women about their rights
- Absence of protection structures in all districts
- Social pressures and wrong religious interpretations
- Lack of participatory approach by NGOs and donors
- Barriers in relation to international law and lack of knowledge about the United Nations' Human Rights Mechanism
- Gaps in the legal framework
- Constitutional and legal discrimination
- Criminalization or non-recognition of certain groups
- Laws that contradict human rights standards
- Discriminatory social and cultural norms
- Societal attitudes towards disadvantages groups
- Absence of adequate laws and policies to protect people with disabilities
- Discrimination and exclusion
- Lack of adequate facilities
- Barriers in communication between different stake holders
Following are the recommendations by the participants of the all focus group discussions:
- Before pushing for any legislation especially related to women, NGOs and government must examine their status both within the domain of the family as well as within the larger cultural and socio-political context, which structures their opportunities and defines their capacity for action.
- There is a need to highlight the achievements of Pakistani women and push for effective implementation of laws to achieve gender equality in the country.
- The ineffectiveness of Pakistani criminal justice system has repercussions not only for domestic and international security, but is also a major contributing/supporting factor to the gender based violence in Pakistan, there is need to bring major changes in the criminal justice system.
- The justice system in Pakistan carries a great trust deficit by the marginalized sections of society including women, religious minorities, and labour organizations. Gender-based violence cannot be eliminated fully unless the criminal justice in Pakistan in made uniformed, unbiased and effective. The government of Pakistan must take concrete and measureable actions to improve this situation.
- Need an especially gender-responsive policing system and a gender-sensitive judiciary.
- Build the capacity of all stakeholders on human rights approach especially on UN mechanism of human rights.
- Civil society should closely follow the post-UPR (Universal Periodic Review) recommendations related to violence against women and gender mainstreaming and contribute in tracking the implementation of these recommendations by the state.
- Civil society organisations (CSOs) must reach boys and men and work with them on behavioural change in relation to reduce the prevalence of GBV.
- Improve the branding and showcasing of the laws – especially those related to women so that acceptance for these laws can be increased in society.
- The civil society respects all views, opinions and ideologies; however, the radical feminist agenda should not be mixed with GBV, gender mainstreaming and VAW which is causing a lot of confusion not only in community, but also among CSOs and policy makers.
- Instead of giving in to “ready made solutions” to the community, the CSOs must engage the community in finding solutions and help them implement these solutions which will be more sustainable and participatory, and there will be more ownership among community.
- All actors must work to introduce the concept of restorative judicial system.
- Civil society must build pressure on the government to provide protection facilities and structures in all districts.
- Need to work with religious leaders and prayer leaders (Paish Imams.
- Civil society must work to educate and sensitize all citizens (men and women) about their fundamental rights and freedoms and the rights guaranteed to them under the constitution of Pakistan.
- Before any legislation, there needs to be more consultations with civil society groups at grassroots level.
- An online information and legal aid centre should be established so that CSOs and a larger segment of society should benefit from it.
- More pro-bono lawyers should be identified and trained so that they should better understand and respond to the cases of SGBV, and opportunity should be provided to them so that they can learn from the good practices of lawyers from other countries and take technical assistance if required.
- Training and capacity-building, capacity development, and capacity- enhancement sessions must be organized for the NGOs and CBOs especially for their gender related intervention.
- The relevant segments of civil society should work with women and not for women, strategy for women make interventions less sustainable.
- Organizations working to reduce SGBV must work with women and the community to help them find solutions which can prevent and respond to the cases of SGBV. Ready-made solutions often do not meet the context and need of community and are less effective and less sustainable.
- The government of Khyber Pakhtunkhwa (KP) should establish women's shelters and women's crisis centres in all districts of KP.
- There is need for more private shelters and transitional shelters by CSOs.
- Parallel judicial system should be banned at once.
- Male members should be appointed in the Provincial Commission for the Status of Women (PCSW) or should be given the observer status.
- There are several gender gaps between policy and practise: theProvincial Commission for the Status of Women (PCSW), and National Commission for the Status of Women (NCSW) – in collaboration with CSOs, should build a mechanism to monitor and find gaps in the implementation.