On 29th February 2016, with the assent of the Governor Punjab, the Punjab Protection of Women against Violence Bill turned into an act of the provincial legislature. The debate, as frequently happens in Pakistan, initiated after the law was passed. The views were expressed in binary terms: in black and white, good and bad, noble and evil, and ‘progressive’ and ‘retrogressive’.
For an informed view on the law, it is imperative that the legal provisions contained in the law be examined. This write-up will adumbrate the scheme and the ideas enacted in the law followed up with flagging issues that need some elaboration to put the things in conspectus with special reference to the justice system of Pakistan.
The conceptual, procedural and administrative characteristics of the law are:
a. The brief preamble, in its sole recital, states that the law will ‘establish a protection system’ for women. It further states that the protection system is established with the objective of ensuring that women ‘freely’ play their ‘desired’ role in the society;
b. The law does not come into force at once. Section 1(3) holds that the law shall come into force on such date and in such areas, which the provincial government specify through notification;
c. The definitions of different legal terms are provided in Section 2 to develop linkages with other legal concepts and components of the justice system of Pakistan.
First, the family courts already established under the Family Courts Act, 1964, have been declared ‘courts’ for the purpose of the law, hence, by implication, the domain of the family courts stands expanded, and all the matters related to the Act shall fall in the jurisdiction of these courts.
Secondly, the scope of the law is very wide as it provides that the ‘defendant’ (the male against whom the legal proceedings could be initiated under the law) shall be a person who is related to a woman by ‘consanguinity’, marriage or adoption.
Thirdly, the violence is defined in the broadest possible terms by including in it the ‘psychological violence’ and the economic abuse.
Fourthly, the protection system is defined through its components, which are yet to be established under different provisions of this law:
i. the District Women Protection Committee (Section 11)
ii. the Protection Centres and Shelters (Section 13)
Fifthly, the dependent child who will be extended the protection of a woman under the law shall be below the age of twelve years;
d. The measures of protection have been provided in Section 3 of the law and include the following:
i. Universal toll free dial-in number
ii. Protection centres and shelters for mediation and reconciliation
e. Three types of orders by the family courts against ‘defendants’:
1. Protection order (Section 7) containing specific orders not to communicate, wearing GPS tracker, stay at a distance, move out of a house, surrender licensed firearm, entering place of employment, etc.
2. Residence order (Section 8) containing specific orders of non-eviction, relief, protection, rehabilitation and to arrange for alternate accommodation.
3. Monetary order (Section 9) containing specific orders for compensation due to economic abuse, loss of earning, medical expenses and reasonable maintenance.
f. On the administrative side, the law provides for a District Women Protection Officer (Section 14) in every district of the province, who will be the linchpin and most instrumental to implementing the law. All the complaints are to be initiated by the District Women Protection Officer for formal processing and he/she has been empowered to request assistance of any agency including police.
Theoretical Perspective on Law Reforms
Dr Osama Siddique, former faculty of the law school of the Lahore University of Management Sciences (LUMS), in his book “Pakistan’s Experience with Formal Law” has identified typology of law reform approaches in Pakistan. The law reform approaches in Pakistan, according to him, fall invariably in one of the following approaches:
a. Specific-issues-based incremental amendment approach;
b. Institutional malaise approach;
c. efficiency plus approach;
d. human capital development approach;
e. Islamization of laws and legal system approach;
f. Judicial activism approach;
g. Access to justice as a function of access to economic and political empowerment approach.
The new law, theoretically, appears to be falling into the category of the last approach in which women will be provided access to justice at their doorstep, and by doing so, it is expected that they will stand empowered. How far the law changes the social fabric of the society is a test of its implementation, and in the instant case, it will also prove or disprove the approach to law reforms in Pakistan.
Comparison with Earlier Legislations
The Punjab Protection of Women against Violence Act, 2016 is not the first legislation of its kind in the country. Earlier in 2006, at the federal level, the Protection of Women (Criminal Laws Amendment) Act, 2006 was introduced with the aim of providing ‘relief and protection to women against misuse and abuse of law’. The comparison of the two laws might help put the things in perspective. In the first place, the objectives of the two laws differ substantially: whereas the earlier law of 2006 amended certain provisions of the Hudood Ordinance of 1979 and added some new offences to the Pakistan Penal Code, 1860, the new law introduced in the Punjab aims at providing a ‘protection system’. Another difference between the two is that the new law is essentially adjective in nature, whereas the earlier law of 2006 altered the substantive criminal law.
The Role of Police
The Punjab Protection of Women against Violence Act, 2016 envisions an expanded role of the police in the family matters. The law provides that the Protection Centres established under the law shall also ensure ‘proper investigation of offences’ [Section 3(1) (c)]. The family court has been enabled to direct the police to assist the Women Protection Officer for implementation of its orders [Section 9(6)]. A representative of the head of the district police shall also form part of the District Women Protection Committee [Section 11 (2) (b)]. The law, as it is enacted, provides enabling provision [Section 13 (2) (a) (d) and (e)] for the Protection Centres to act as covering point for all police services. A Women Protection Officer (who represents the state) has been empowered to file a habeas corpus case against wrongful confinement [Section 14 (2) (e)], which role he/she can only fulfill with the help of the local police. The Women Protection Officer can, with the collaboration of the police, enter into a premises [Section 15 (3)] to meet an aggrieved woman. Though the violence against women has not been criminalized by the law, the police have been given a role to assist the enforcement machinery as envisioned by the Act.
Compatibility with the Islamic Law
The compatibility of the law with Islamic Law is a consideration, which has been under discussion since the passage of the law in the provincial assembly. The law, in its present form, is essentially procedural and administrative in nature; on the touchstone of the Quran and the Sunnah, and in line with the constitutional dictates, fewer areas of the law may be questionable barring the issue of inclusion of ‘adoption’ in the definition. Likewise, on the basis of social considerations and, on the basis of consequences that flow from a formal legal process in family matters, the law might require detailed analyses and appropriate safeguards so that the family values are not easily tweaked by formal processes.
Compatibility with the International Law
The international law does not directly deal with family matters. It is, however, triggered into action in select domains especially in the area of armed conflicts as provided by the International Humanitarian Law and in the emerging International Human Rights Law, where in order to protect weaker segments of the society, certain protections have been afforded to children and women. As the new law does not enact any substantive rights, therefore, its compatibility with the international law might not be at odds.
If the proof of the pudding is in its eating, the proof of an effective piece of legislation is in its implementation. By all standards, its implementation calls for establishing full-fledged layers of administration with dedicated and well-trained human resource backed by institutional support of all the components of the justice system in Pakistan; sans these prerequisites, the new law might end up fortifying the failures of the past. Its unscrupulous implementation, on the other hand, may result in introducing formal actions to family dispute resolution mechanisms, hence imperilling the family values that sustain the family system in this part of the world.