Laws to protect victims of evil customs

Pakistans Founding Father, Quaid-i-Azam Muhammad Ali Jinnah, gave a momentous direction during a speech he delivered at a meeting of the Muslim University Union, Aligarh, on March 10, 1944. He said: No nation can rise to the height of glory, unless your women are side by side with you. We are victims of evil customs. It is a crime against humanity that our women are shut up within the four walls of the houses as prisoners. There is no sanction anywhere for the deplorable condition in which our women have to live. According to Article 3 of the Constitution of Pakistan 1973, it is the States duty to ensure the elimination of all forms of exploitation; whereas Article 25 prohibits discrimination on the basis of sex alone and categorically permits the making of special provisions for the protection of women and children. However, Pakistani women have a tumultuous legal history. Lately, the Quaids words echoed in the corridors of power and the government passed the Protection Against Harassment of Women at Workplace Act 2010. It provides adequate protection and remedy to working women. It reflects the intention of legislators, which is to create a better and conducive workplace for women, despite the fact that it is not gender-specific. It is mandatory for the employer to ensure proper implementation of its provisions, but not limited to incorporation of the code of conduct as part of their management policy. The employer is also required to form an inquiry committee comprising at least one woman and designate a competent authority to protect women from harassment. The committee may instruct the parties to treat the proceedings as confidential. It shall submit recommendations to the competent authority within 30 days. If the committee finds the accused to be guilty, it shall recommend imposition of minor or major penalties. However, an aggrieved person reserves the right to file a complaint directly to the ombudsman and right to appeal against the decision is also provided to seek redress from the higher courts. Another good step by the government was the Criminal Law (Amendment) Act 2010, which amended Section 509 of Pakistan Penal Code 1860, wherein sexual harassment that might occur in a public or private (home) place, the perpetrator shall be punished with imprisonment that may extend to three years or fined up to Rs500,000 or both. In 2009, an additional measure adopted to eliminate evil customs was the Domestic Violence (Prevention and Protection) Act 2009 passed by the National Assembly; the law provides protection to defenceless women, children and families. It is also not gender-specific and provides remedy to a vulnerable person, including the mentally ill, physically disabled or a domestic servant. It includes all forms of domestic violence, including, but not limited to insult, verbal and emotional abuse, physical abuse, threat to cause physical pain, threat of malicious prosecution, wrongful confinement, criminal intimidation, and economic abuse. It empowers provincial governments to constitute protection committees in every tehsil consisting of two women councillors, a female SHO, a gazette officer as its secretary and one police officer to assist the aggrieved persons in obtaining medical or legal support in case of their relocation to a safer place. Further, an aggrieved person may directly approach the court within whose jurisdiction the offence was committed, while the statutory period to decide the application will be 30 days. The court may direct the accused to pay compensation to the aggrieved person to meet the losses suffered, expenses incurred and her maintenance and of children. The aggrieved person shall not be evicted from household, including the one that may belong to the joint family of which the accused is a member, irrespective of whether the accused or aggrieved person has the right in such a shared household and if satisfied, the court may pass an order restraining the accused or his relatives to enter it. The court may pass a protection order, wherein prohibiting the accused to enter the workplace of the aggrieved person and if the aggrieved persons are children, then in their educational institutions and not to communicate with them in any manner. At any stage, the court may direct the accused to undergo mandatory counselling with an appropriate service provider. In addition, it stipulates commendable consequences for the perpetrators. The delinquent will be liable to a maximum sentence of two years or fine up to Rs200,000 and minimum sentence of six months and fine of Rs100,000. The court will ensure that the money is paid to the victim. However, in case of false application, the applicant shall be punished with imprisonment, which may extend to six months or fine up to Rs50,000 or both. In general, it will be a praiseworthy legislation. However, it is sincerely stated that it should be reviewed in consonance with the social and economic realities to avoid deterioration of family unit and misuse of law. For instance, the provisions about residence are not in conformity with the economic realities and will indicate that someone is blamed for others faults; hence, it will offend the principle of justice and the divorce rate will also increase that will jeopardise the society. The intent of legislation should be to protect the victims of evil customs by creating gender equity, not to confirm novelty. The proposed legislation, once reached the Senate, but lapsed; after the passage of the 18th Amendment, the subject comes in the domain of provincial governments. It is need of the hour to protect human rights enshrined in the Constitution. It is time that the provincial governments should take ownership of the proposed legislation because the underlying principle to achieve the height of glory lies in the words of the Founding Father: "No nation can rise to the height of glory unless your women are side by side with you. The writer is a barrister practicing in Islamabad and has been visiting lecturer of law at Nust Business School and Bahria University, Islamabad. Email: barristerafzal@gmail.com