Transcript Pakistan Legal Framework re. Women

PAKISTAN LEGAL
FRAMEWORK
RE. WOMEN 11
th
April 2012
Presentation by:
Syeda Viquar-un-nisa Hashmi
Lawyer/Consultant
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
Harassment Act
Application target group
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
Dissolution of Muslim Marriages Act,
1939
The Divorce Act, 1869 (IV of 1869)
Application Target Group
“
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.
CEDAW
Ratified 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 Traditions
Cases 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 558
Muhammad 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 29
Muhammad 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!