Challenging norms on gender-based violence in Pakistani courts
Punjab recently established Pakistan’s first special court for GBV cases after its judges received ADB training to give women more access to justice.
She was nine years old; playful, carefree and innocent. One day, male members of her family killed a local boy. That made her a commodity in an appalling episode of human barter. She was given as compensation to the family of the murdered boy.
For the next 71 years, she was their servant—or rather their slave—under a Pakistani custom known as swara or vani which enables families to provide girls as compensation to settle a dispute or a blood feud.
Several years ago, I was part of a team of lawyers who filed a petition in the Supreme Court to stop this practice. When the now 80-year-old woman was rescued from her so-called home, more of a prison. a bright smile lit up her lined face and she kissed the forehead of our team leader.
This was the time I decided in my heart that I needed to do more than just practice corporate law. In 2016, I started a project to promote legal literacy for women with my comrades Imrana Jalal and Shanny Campbell.
This year, we jumped at the invitation of Syed Mansoor Ali Shah, Chief Justice of the Lahore High Court, to deliver gender sensitization training to his judiciary. This court has jurisdiction over Punjab, considered the epicenter of gender-based violence (GBV) in Pakistan. The invitation represents an unparalleled opportunity to address this issue, and actually make a difference.
Three factors characterize GBV in Punjab: the frequency and severity of GBV cases, restricted access to justice, and economic power imbalance leading to sexual entitlement of men and societal stereotyping.
On the first aspect, 17,581 cases of GBV were reported in Punjab in 2016, according to the Punjab Commission on the Status of Women. But this is a conservative figure. We should not forget that in patriarchal societies like Pakistan, women are unlikely to report many GBV cases.
It’s heart wrenching to talk about the severity of the cases. They range from physical and verbal domestic abuse to being burnt alive. Somewhere in between is vani, an order by an informal court or panchayat to gang-rape a woman to pay for a crime committed by their male family members.
Secondly, one wonders, despite such heinous crimes against women, why can’t women approach courts? What is stopping them? Why is justice so rare for them? The answer to this, at first glance, seems very simple, but in reality it’s quite complex.
While training more than 220 judges in Punjab, we realized that getting to the bottom of this issue was like peeling an onion with each layer more bitter than the previous one.
We learned that violence perpetrated by a husband against his wife is often perceived as a “private family matter”, not a crime, so it is not reported. We heard how a victim’s/survivor’s family pressures the wife not to seek divorce. We identified potential abuse of the court process when an overwhelming majority of judges stated that most rape cases brought to the courts were false.
False claims included allegations by the family of the man that had eloped or had consensual sex with the woman, to fend off accusations of abduction or rape of unmarried women/girls. There have also been revenge allegations of rape instigated by family members as part of other feuds. In addition, some judges said that witnesses often stay quiet due to threats, family pressure or even bribes. “Genuine” rape cases thus rarely come before the courts.
Generally, both male and female judges had limited understanding about indirect and structural discrimination, special measures for vulnerable classes, affirmative action (which is included in the Constitution), and the difference between gender equality and gender equity.
Judges frequently stated that their courts are fair because they decided cases based on the law, which is non-discriminatory, as well as on “gender-neutral” logic and common sense. Some female judges were more aware of discrimination against women in practice, often having experienced it in their own lives.
Most judges were not familiar with international law and the treaties that Pakistan had ratified on women and human rights. Furthermore, while judges were aware of physical or sexual violence, they did not seem to consider that psychological and economic violence is also part of GBV. This situation resulted in a shockingly low conviction rate last year in Punjab of just 2-3% in rape cases and 8.5% in honor killings.
Third, GBV is like an epidemic. The root cause is a power imbalance between men and women, aggravated by sexual entitlement and stereotyping, reinforced by an largely illiterate patriarchal and feudal society.
A large segment of Pakistani society believes in giving a female as compensation for a crime committed by their male family member; in killing a woman for dishonoring them by marrying her choice of partner, or by wearing clothes of her own choice. It’s also widely believed that, in a rape case, if a woman is dressed up nicely and speaks with confidence then she must have consented to the act.
Tellingly, in a survey we conducted prior to the training, 70% of the judges stated that rape occurs because men are unable to control their sexual urges when they are provoked by a woman’s behavior, such as wearing provocative clothing or makeup, engaging in flirtatious behavior, or staying out late.
Training in such an environment was not easy but well worth the effort. In the end, the head of the Punjab judiciary quickly took exemplary steps based on our report, like promulgating a gender equality policy together with guidelines to be followed in GBV cases.
He also formally directed courts to conduct trials in a gender-sensitive manner following international best practices, such as a specialized courtroom set-up responsive to the needs of women and vulnerable witnesses and specialized judicial conduct that is already outlined in one of the Pakistan Supreme Court’s cases.
These guidelines were immediately followed by the establishment of Pakistan’s first special court for GBV cases, set up with all required infrastructure and facilities and presided over by trained judges. This is a first not only for Pakistan, but also for Asia.
Being a practicing Muslim woman and a lawyer from the same province, I want to emphasize that Islam is not the problem, neither in religious texts nor Islamic law. In fact, the Quran instructs men to “live with [women] on a footing of kindness and equity.”
The problem is rather in the way we think and misinterpret the Quran based on a ordinary person’s limited understanding. This is why we worked with religious scholars to help the judges understand that Islamic law teaches the same principles as modern law, so Islam should not be an impediment to prosecuting GBV.
In the words of Jalal-ud-Din Rumi, the great Islamic thinker, philosopher, and scholar: “Woman is the radiance of God; she is not your beloved. She is the creator, not created.”