Responding to the law

To become truly transformative, women’s movement will have to invest in a strategic and critical engagement with the legal domain

Responding  to the law

Written in 1766, Waris Shah’s narration of the Punjabi folk story Heer Ranjha tells the tale of young Punjabi women who rebel against patriarchal and feudal structures in their village. The female protagonist Heer not only refuses to be married into a rich and influential household against her will, her resistance challenges the very basis of the feudal system, which she was herself a beneficiary of.

This is the most beloved and well-known folktale of the same province where, in 2016, the religious parties are up in arms against a law that purports to protect women against violence in domestic settings.

The right wing critique of the Punjab Protection of Women Against Violence Act 2016 hinges on the assumption that the Act threatens the ‘privacy’ of the home, and the sacredness of the family. In the words of the Chief of Jamiat-i-Ulema Islam-Fazl Maulana Fazl-ur-Rehman, this act is an attempt to make Pakistan into a ‘colony again’. They fear that by entering into the realm of the family, this law is bringing ‘western ideas and concepts’ into the Pakistani legal framework.

This is rather ironic, considering the conception of the family sphere as ‘private’ and beyond the reach of the law, is precisely a "Western" legal import. In effect then, Faz-ul-Rehman’s critique is not so much Islamic as it is the classic example of a modernist legal position. It is also much more reminiscent of British coloniality than the law it critiques. It was after all the British Raj, which in its obsession with consolidating its political power over the subcontinent without stirring up too much resistance, turned to strictly regulating what it defined as the "public domain" through laws around property, revenue, labour, administration etc., while simultaneously garnering approval from local elites by ostensibly refusing to interfere in the "private sphere" of personal and family laws.

Nonetheless, unwilling to contend with personal laws that were rich, varied and boasted multiple interpretations and schools of thought, British Raj codified Muslim and Hindu personal law -- stripping them of their pluralism, local and regional differences and rich internal debates, and presented a truncated form as monolithic Islamic and Hindu law, that could fit their worldview of centralised colonial governance.

Lest we forget, it was also modern law under the British Raj that ossified the categories of "tradition", "culture" and "custom" into an unchanging, stagnant and patriarchal mould, ignoring radical local histories.

Punjab’s folk-lore is brimming with the radical feminine voice, a voice that critiques not only patriarchal oppression within the home and the family, but also its inherent connection with the larger feudal economy and means of production. It is indeed only when one looks through a colonial lens, steeped in the vocabulary of modernism, progress, and civilizational discourse that there appears to be a rigid category called tradition, which is devoid of the voices of women, working classes and minorities, with its identity solely built upon their oppression.

If it is the modern law that constructs the private in the first place, by refusing to intervene and closing off that arena as inappropriate for its own intervention, how does one respond to laws that purport to overcome that binary, and seek to regulate the private sphere? In other words, what stakes should movements seeking gender justice in Pakistan place in the legal domain as emancipatory?

Here it is important to point out that State’s abdication of regulation of the private sphere is itself a form of regulation, as it assumes that a certain conception of the family and the domestic relationship is worth defending much more than the lives, and bodily and emotional integrity of women. In this view, recognising the absolute right of privacy of the home versus the right of women to live with dignity and without violence and abuse are differential forms of regulation by the State, rather than the mere absence or presence of it.

That modern law is essentially two-faced is a fact borne out by both legal and academic scholarship and activist engagements with the law. It exhumes potential towards radical readings and subversion of the status quo (exemplified by certain legal reforms brought about by feminist, labour and indigenous movements the world over) as well as proving to be a potent force for the conservation of the status quo, sometimes by concealing its rationality in the garb of ‘tradition’ and ‘culture’ (as witnessed by the arguments made by the religious right in favour of protecting the privacy of the home).

Relying on law as the primary tool for emancipation is therefore tricky business. Any new legislation passed has to contend not just with its own spirit and context, but the intricate socio-political relationships in which the entire legal framework is embedded; and structures of power long cultivated are not so easily dismantled by piece-meal legislation.

For a rejuvenating women’s movement in Pakistan today, this raises an important issue vis-à-vis the place of law, and the seemingly liberal face of the State in its struggle. While there is an urgent need to support government attempts at progressive legislation and wrest space from the right wing demagogues who make anti-women and anti-people world-views the basis of their politics, this cannot be done in complete isolation from the wider context of the embedment of colonial legality as well as a State that is deeply invested in neo-liberal and anti-labour policies.

Additionally, in the past two decades, movements for gender justice in the country were largely confined to non-profits and governmental initiatives. While some of their achievements are commendable, they run the risk of becoming entrapped in a technocratic governmental rationality, which is anything but democratic, inclusive and transformative. They can also afford to see issues of gender justice as divorced from issues of class, race, caste etc., whereas for real women these multiple forms of oppression are intricately linked and often irreducible.

To become truly transformative then, women’s movement in Pakistan will have to invest in a strategic and critical engagement with the legal domain, which can challenge its false binaries of traditional/modern, custom/law, and can work through its many contradictions.

It would also need to rediscover the roots of feminist voices within its local histories, as well as align itself with other progressive movements to be able to speak to issues of women from widely divergent backgrounds holistically and in all their rich complexity.


Responding to the law