The Punjab Protection of Women Against Violence Act 2016: A Critique
The Punjab Protection of Women Against Violence Act, 2016, is gaining more space than what it really deserves in print and electronic media. This is all due to a heated debate on it from various quarters of the society. There are precisely two main camps which are sharply divided on the law’s authenticity from Islamic perspective. The religio-political parties are of the opinion that the law violates Islamic principles and sanctity of family, and hence, should be repealed straightaway. On the other hand, the provincial government is of the view that the law has not gone against any provision of Islamic Law and that is why it merits to be brought into execution. But due to hue and cry made by the religious segment of the society, the government has shown willingness to review some of its provisions which have been claimed to violate Islamic Law. This apparent leniency on the part of the government seems to be a political move to bring the religious parties on table and preclude them from coming out on roads and streets for protests.
Irrespective of the prevailing political scenario, the law is an important piece of legislation which should be analyzed from various perspectives. One may point out many issues with the law from theoretical to its practical implementation and unintended consequences. It is need of an hour to analyze laws from a bigger canvas rather than squeezing the analysis to the black letters of any law. It is from this perspective the author has made an endeavor to highlight some complexities of the law and of those aspects which at least seems difficult to execute.
From theoretical perspective, at the root of this piece of legislation, there is an issue of legislative competency of a State; whether a State could enact a law which penetrates into a private sphere of a family. The religio-political parties of Pakistan are not willing to accede that a legislature can enact any law in this sphere unless the same has been explicitly mandated by the religious texts, i.e. the Quran and Sunnah of the Holy Prophet (PBUH). The ulema are adamant that their opinion must be treated as final in matters of family laws. Moreover, there is a wide spread suspicion among the religio-political parties that any interference in a family sphere would ultimately disrupt its peace and destroy the family institution. Surprisingly enough, demarcation of family laws from the rest of the laws was initially introduced by British colonial government of Indian Subcontinent for their own purposes which is still endeavored to be protected by the religio-political parties by splendid religious zeal.
There is an entirely false assumption on which the law is founded. That assumption is our present legal system, if not condones, at least tolerates violence against women. There is no need to point out that women are included in definition of ‘person’ provided in our penal laws. Similar to any aggrieved person, they could initiate all legal remedies prescribed by the legal system. If this is so then why are we determined to protect women against violence through a new legislation exclusively? Though the law has established a new protective system for women, but in many respects it has relied on present legal apparatus for its execution. Now a question to ponder is: if present legal apparatus has failed in protecting women under present legal system, how would it start protecting them through a new piece of legislation?
Another important aspect of the law is its hasty enactment with little debate and scrutiny at all levels. This aspect is evident from the ill-thought structure of the law and its confusing provisions which seem to interfere and conflict with other settled principles of law. For example, definitions of the law have not been arranged in a logical sequence. Normally, those words should have been defined earlier which are used in other defined words for avoiding any absurdity and confusion. This has not been done while enacting the law. For example, word ‘domestic violence’ has been defined earlier than word ‘violence’ itself. The word ‘resident’s’ definition is dependent on word ‘shelter home’, but the latter is defined after the definition of the former. An important phrase ‘complaint’ has not been given any special connotation and one has to speculate about it despite the fact that it is at the very foundation of all processes carried out in a court.
According to Section 7(e), an owner of a house could be expelled from his/her own house on violence. The Dissolution of Muslim Marriages Act 1939 provided an aggrieved wife an option of getting her marriage judicially dissolved on the basis of cruelty/violence more than 70 years ago. Interestingly enough this law steps backward by enacting that the perpetrator of violence would be expelled from his house and the marriage will remain intact. How the marriage will remain intact in this situation and who will take care of that aggrieved wife’s maintenance are some of those questions which needed to be contemplated and addressed appropriately by the Provincial Legislature before enacting the law. Coming back to the issue of expulsion from one’s own house, someone can be punished for committing an act of violence, but that punishment can be in form of expulsion from his own house seems somewhat tricky. This provision may not appear inappropriate when someone is subjected to this treatment after a thorough investigation, but the mode of investigation mandated in the law is summary procedure only. Does this provision not undermine the property rights of an owner protected and sanctified under the Constitution of Pakistan?
The law envisions compulsory wearing of ankle or wrist bracelet GPS tracker for offenders of violence which appears to be quite innovative. But again the issue which needs to be analyzed from the Constitutional perspective is whether by doing so his personal liberty is not jeopardized or compromised? The State can inflict punishments on offenders but they should not be inhuman and against the dignity of the culprits. Let us go beyond the constitutionality of this provision and refresh in our minds that the same mechanism of wearing wrist bracelets GPS trackers was contemplated for suspected terrorists sometime back. Have we achieved our goal and made all the suspected terrorists to wear such bracelets? If that target is stilling crying for its execution, how would it be implemented in a familial sphere is a question worth considering.
A legal system based on adversarial system which is unable to deliver justice to those who sufficiently prove their grievances in courts is being burdened with a parental responsibility of protecting a woman who could likely to be subjected to violence through a new legal regime. This protective arrangement is not less than a legislated fantasy of the provincial legislature. Shifting towards a parental system of protection requires a thorough evaluation of the present legal system: whether it possesses those characteristics which are bedrock for newly introduced system? At the moment, we are experiencing parental system of protection for children in matters of their guardianship. How far the system is effective and efficacious in this matter is an open secret. Therefore, the system which has disappointed in one respect, can that be expected to deliver in other respects? The answer to this question is not difficult to discover. Piece meal medical treatment of a chronic patient may psychologically satisfy someone, but that would not be enough to raise the patient on its legs.
The law lays down for appointment of protection officers and then promises to provide them with requisite training for their sensitization to gender related issues. Why do not we sensitize the available State machinery, including police officials and workers of basic health units, to make it more caring in matters of violence against women? If newly envisioned establishment is not expected to deliver goods without formal and extensive training, then the same sort of training to the present machinery may also bring some benefits if we make ourselves willing to get out of fantasy of brand new and fanciful enactments.
Establishing shelter homes in far fringe areas of the province is a noble desire which must always be praised at all levels. But before thinking about its phased implementation, we as citizens have a right to ask: how many hospitals in Punjab have a state of the art burn centers? No need to refresh in our minds that majority of burn victims in our society are women. How accessible are maternity facilities to women in various areas of the Province? Have women been provided universal free education in the province so that they become aware of their rights under prevent legal system? Many of such questions would revert back to us with satanic silence. The author wants to clarify that he does not argue that we should not enact a new law before implementing the mandates of present legal regime. The purpose of these questions is to give a wake-up call that first there is a need to enhance the capability and competence of the State in terms of delivering goods and executing laws, before entrusting it with delicate issues such as domestic violence.
Imaginary provisions of stretching jurisdiction into four walls of a house may appear fanciful, but would remain elusive because of the reality that our State has so far been unable to effectively establish this kind of writ in public spaces. And in this dismal reality talking about extending its arm of justice to inaccessible places of a house seems not less than a fairy tale which could only appease some worthy legislators of Punjab.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.