A violation of law

The writer is a lawyer.

The Council of Islamic Ideology (CII) has recently proposed its version of a ‘Women’s Protection Bill’. The draft is alarming for many reasons. First, it allows the ‘light’ beating of women by their husbands. Second, it prohibits women from working in a mixed-gender environment, which essentially implies that women cannot work. Third, while it allows women to participate in politics, it negates that very provision by stipulating that women cannot receive foreign dignitaries when delegations visit Pakistan.

There are several other shocking features of the CII’s proposed bill and, when taken holistically, the whole bill is in serious contravention of Pakistan’s own constitution as well as the state’s international legal obligations.

Article 25 of the Constitution of the Islamic Republic of Pakistan safeguards the equality of all citizens before the law. Article 25(2) further stipulates: “There shall be no discrimination on the basis of sex”. The CII’s proposed draft is in clear violation of Article 25 of the constitution since, if it were to ever be enacted, it would create an environment where women are excluded from all public spaces. This is also a violation of Article 26 of the constitution which protects against discrimination with respect to accessing public spaces. A similar provision is also found in Article 27 of the constitution which prohibits discrimination in services.

Further, Article 34 of the constitution, which safeguards the full participation of women in national life, is also violated through this proposed draft as the CII’s intent, as clearly manifested in the bill, is to not only prohibit women from working but also limiting their access to any and all public spaces. Wasn’t the constitution of Pakistan the standard for fundamental rights for Pakistani citizens and/or minorities? Has the CII proposed a law that is in blatant violation of our constitution?

Additionally, under domestic law, women are also provided with specific legislative safeguards, for instance Section 2(viii)(a) of the Dissolution of Muslim Marriages Act 1939, which allows a woman the right to obtain a decree for dissolution of marriage if her husband ‘treats her with cruelty’, including habitual assaults or cruel conduct that does not amount to physical ill-treatment.

Interestingly, Maulana Sheerani has issued a clarification regarding the term ‘light beating’, used by the CII, to state that it must not leave any marks and must be done with a handkerchief or something of a similar nature. Clearly, the CII itself recognises the negative connotations and wide scope for abuse of a law that would use the term ‘light beating’. The question that then arises is: why was such a negative term used by the CII?

The CII’s draft is also detrimental with regard to Pakistan’s international legal obligations pertaining to the protection of human rights, particularly under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Pakistan acceded to this convention in 1996, which means that Pakistan must comply with the provisions of the convention and ensure legislative and other policies are in accordance with the latter. As a result of acceding to CEDAW, Pakistan has also submitted several periodic reports to the CEDAW committee.

The preamble of CEDAW sets out that the convention intends to set in motion a “change in the traditional role of men as well as the role of women in society and in the family” in order to “achieve full equality between men and women”. Article 1 of CEDAW lays out the definition of “discrimination against women” as: “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”

The stereotypical roles assigned to women require the immediate attention of states parties, including Pakistan, as they are required to “take all appropriate measures” to modify the same, as per Article 5 of the convention. Similarly, Article 10(c) of the convention specifically requires that Pakistan take all appropriate measures to eliminate “any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education”, which is plainly opposed by the CII’s proposed draft.

By stating that women should not work in offices where there are also men, the CII has essentially advocated the deprivation of the right to work for all Pakistani women. What exactly is ‘work’ supposed to mean for women then? Are they curtailing women’s ambition and expertise to state-run educational institutions since gender segregated schools seem to be the only acceptable place based on the CII definition? Clarity on this front is required.

This is in direct contravention of Article 11(1)(a) of the convention which provides that states parties must take all appropriate measures to eliminate discrimination against women in the field of employment in order to secure “the right to work as an inalienable right of all human beings”.

In addition to CEDAW, Pakistan has ratified the International Covenant on Civil and Political Rights (ICCPR) as well as the International Covenant on Economic, Social and Cultural Rights (ICESCR). If the CII’s bill were ever to be enacted, Pakistan would find itself in violation of both these conventions. Article 3 of the ICCPR mandates that states parties undertake to “ensure the equal right of men and women to the enjoyment of all civil and political rights” set out in the convention.

Article 25 of the ICCPR safeguards the right of all citizens to “take part in the conduct of public affairs” and to “vote and to be elected”. If women who are elected cannot perform their functions, which include receiving foreign dignitaries and missions as well as interacting with their male counterparts in various legislative assemblies, Pakistan will find itself in breach of Article 25 of the ICCPR.

Similarly, Article 3 of the ICESCR stipulates that states parties undertake to ensure “the equal right of men and women to the enjoyment of all economic, social and cultural rights” embodied within the convention. This includes the right to work, as provided for in Article 6, as well as the right to education, safeguarded in Article 13 of the ICESCR.

Under the GSP-Plus status granted to Pakistan, we are to ensure compliance and effective implementation of 27 named conventions. Within these are included the ICCPR, ICESCR and CEDAW. Equally important is compliance with international legal obligations undertaken by Pakistan in the area of labour law. For instance, Pakistan ratified the Convention Concerning Discrimination in Respect of Employment and Occupation in 1961. Pakistan has incorporated legislative safeguards pertaining to non-discrimination under articles 27, 37 and 38 of the constitution. Further, Pakistan’s National Labour Policy (2010) specifically mentions this convention and discusses the creation of jobs where men and women would be subject to non-discrimination and equal pay.

Were the CII’s draft to come into effect, Pakistan would face the possibility of losing out on the GSP-Plus status owing to not only non-compliance but direct violation of these conventions. Further, when Pakistan’s own constitutional safeguards and legislative instruments protect against such law, it becomes imperative for the relevant state institution to not only refuse the draft but also send a strong warning that such damaging bills should never be proposed again.

Email: saadrehman@rsilpak.org