Good for the Goose
By Hina Hafeezullah Ishaq
November 09, 2012
Islam does not discriminate against women. It is not Islam that robs women of their rights but the people who act as its custodians
In an ideal world, there should be no discrimination that is defined as unfair treatment or denial of normal privileges to persons because of their race, age, sex, nationality or religion. Watching a talk show on television recently, I heard one of the participants say that there were discriminatory laws against women in Pakistan, which ought to be repealed.
The question is, are the laws in Pakistan really discriminatory against women? Article 25 of the Constitution guarantees equality of all citizens before law and entitles them to equal protection of law. It states, “There shall be no discrimination on the basis of sex” and allows the state to make “any special provision for the protection of women and children”. Article 26 states that there shall be no discrimination on the basis of sex (among others) in respect of access to public places, except those intended for religious purposes only, and again allows the state to make any special provision for women and children. Article 27 provides a safeguard against discrimination in service, for which a citizen is otherwise qualified. It states, “Specified posts or services may be reserved for members of either sex if such posts or services entail the performance of duties and functions, which cannot be adequately performed by members of the other sex.”
In addition to all the constitutional provisions, Pakistan has included a host of protective laws in the Penal Code (PPC). These provisions are women-specific and criminalise offences that affect women, ranging from honour killings, abduction, prostitution, trafficking, slavery, forced marriages, deprivation of inheritance rights, marriage to the Holy Quran, exchange of women in evil customs like wani, swara, etc. These are also used in order to settle civil and criminal liabilities, acid and burn attacks, forced abortion and a range of offences relating to marriage and marital issues. The controversial offence of zina-bil-jabr was repealed from the Hudood Ordinance and put back under ‘rape’ in the PPC. As regards the offence of zina, it is not women-specific and procedural changes have been made to stop the provision from being abused as no FIR can be lodged directly by a person accusing anyone of the offence. A complaint has to be filed before a session’s judge who issues notices after hearing the complainant and his witnesses, fulfilling the requirement of tazkiya-tul-shahood (pious adult Muslim witnesses who saw the actual act of zina). In order to protect women against sexual harassment, section 509 of the PPC was amended and ‘Harassment against Women at Workplace Act 2010’ was promulgated so that women are able to work in peace and without any fear of being sexually harassed and are afforded a remedy against such acts.
Article 151(4) of Qanun-e-Shahadat Order, 1984, which allowed a man accused of rape or attempted rape to impeach the moral character of the female victim, was declared to be “discriminatory on the basis of sex”. It was also considered a violation of “Article 25(2) of the Constitution as it purports to impeach the credit of a woman, and above all it negates the concept of ‘gender equality’ as enshrined in the Holy Quran” by the Federal Shariat Court in 2009. An appeal is currently pending before the Supreme Court.
The Qanoon-e-Shahadat, which is Pakistan’s law of evidence, states that the competence and number of witnesses required to testify in any case shall be determined in accordance with the Quran and Sunnah. It provides: “In matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and in all other matters, the Court may accept, or act on the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant.” This provision is based on Verse 2:282 of the Holy Quran, which requires that loans/debts should be reduced in writing. The provision of two women witnesses is “so that if one of the women errs, then the other can remind her” and not discrimination as is often propagated. But the question here is, why stretch the word “loan” to include “financial or future obligation”?
A Pakistani woman can enforce her right to a maintenance, dower, dowry, custody/visitation rights of children, her personal property and belongings, dissolution and jactitation of marriage through the family courts. She can seek redress against her husband if he contracts another marriage. The Family Courts can also entertain a complaint against domestic violence, as specified in the list of offences given in the schedule, in addition to regular criminal courts. A woman over 16 years of age has the right to marry; above 18, she has the right to vote and acquire a driving licence.
Having discriminatory laws is different from having discriminatory practices. Pakistani women are not as much a victim of discriminatory laws as they are of discriminatory practices. They have the rights but denial and enforcement of those rights is a problem. Employed women in general are underpaid and have to juggle multiple tasks; being a working woman does not let her off the hook either at home or at work. If a woman contracts a second marriage, she is more often than not denied custody of her children in clear violation of Verse 23 of Surah Nisa, which makes a woman’s second husband, with whom she has consummated her marriage, a Mahram (someone within a prohibited degree) to her daughters. This practice is discriminatory and a violation of the provision in the holy Quran.
Articles 2-A and 227 of the Constitution require that “all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah...and no law shall be enacted which is repugnant to such Injunctions.” We cannot have laws that are not in consonance with the Quran and Sunnah but an interpretation of the existing laws should be in conformity with the criteria prescribed. Islam does not discriminate against women; if it did, it would not have placed a mother on a pedestal three times higher than that of the father. It provides the right of maintenance and accommodation to divorced women; it gives explicit property rights to women, whether they are mothers, wives, daughters or sisters. It gives the right of dower, the right to be treated equally: with kindness and compassion. It is not Islam that robs women of their rights but the people who act as its custodians. The Constitution prohibits discrimination against women and empowers the state to make additional provisions for their protection, in addition to those for men. Laws are not meant to be promulgated and then left to the whims and fancies of others: strict compliance and adherence to laws ensures that rights are given and no discrimination takes place. Empowering women through education, awareness and economic independence will act as a hurdle to the practice of discrimination and if any discriminatory law does remain, the people of Pakistan hope that the courts will step in and strike it down.
Generally, what is good for the goose is good for the gander and vice versa, but ideally, what is good for the goose can even be better for her regardless of whether it is good or not for the gander!
Hina Hafeezullah Ishaq is an advocate of the High Court