Photo Credit: WAF Lahore
The Struggle for Women’s Rights Legislation
Dr. Rubina Saigol
Historical Context
The struggle for women’s rights legislation is historically a long one and began before partition. Women, individually and collectively, fought for their rights in the face of immense onslaught from religious, cultural and traditional patriarchies. The struggle has been an arduous one as there were constant attempts to revoke, repeal or otherwise undo the few gains women made in the domain of their rights.
In the 19th and early 20th centuries, there were few, if any, struggles for women’s own rights. Women were a part of religious and nationalist struggles and participated significantly in the Khilafat and independence movements. This participation led to an understanding of their own oppression and subordinate status in the social, political and legal structures once independence was achieved.
However, some of the earliest struggles by women were waged against social exclusion and discrimination particularly in the area of education, purdah (veiling) and polygamy. For example, in 1921, while addressing a rally in Lahore, the iconic Bi Amma, the mother of the jailed leaders of the Khilafat movement, addressed vast rallies across India and publicly removed her veil by saying that since most of the males in the movement were her sons and brothers, she did not need purdah. It was a defiant act at the time but she was protected by her age, status and respectability for being the mother of leaders fighting for a religious cause.
The Educational Reform Movement sought women’s right to modern education. In these efforts, the Begum of Bhopal, Muhammadi Begum, Chand Begum and the Faizi sisters, especially Attiya Faizi played outstanding roles. Over time, increasing numbers of women began to be educated. In 1922, Sultan Begum of Bengal became the first woman to receive her Master’s degree in law. As women of the elite classes became educated they began to voice their demands for political inclusion and rights.
In 1917, a delegation led by Begum Hasrat Mohani met the Secretary of State Montagu and demanded equal franchise for women in the forthcoming Montagu-Chelmsford reforms. In 1918, both the Muslim League and the Indian National Congress announced support for women’s franchise. However, in 1919 when the reforms were instituted, the colonial government refused arguing that conditions were not conducive in India for women’s franchise and left the matter to the provinces. In 1921 Madras granted women’s franchise and by 1925 all the provinces except Orissa and Bihar granted voting rights to propertied persons, men and women.
In the First Roundtable Conference in 1930-31 a memorandum was presented by Jahanara Shahnawaz which demanded rights for all, irrespective of religion, caste, creed or sex. In 1932, the All-India Muslim League expressed its support for women’s demands. The Government of India Act of 1935 enfranchised six million women and, for the first time, six out of one hundred and fifty reserved seats for women were allocated in both the Council of State.
In the anti-colonial nationalist movement, several hundred Muslim women in India took an active part leading processions, organizing rallies and fighting against the colonial state which for the first time committed violence upon the protesting women.[1] In January 1947, sixteen League leaders, including Salma Tassaduque Hussain, were arrested and Section 144 was imposed which prohibits any public gathering of over four people. The arrested women were kept in Gora Barracks, and in February three young burqa-clad girls entered the criminal wards for women, climbed the building and hoisted the Muslim League flag. The Superintendant Jails arrived and had them beaten up by other inmates before they were dragged out of the premises.
News of women breaking into jail and facing barricades and batons spread like wildfire and, towards the end of February, a large number of women marched towards the Secretariat Building. Thirteen year old Fatima Sughra climbed up the gate, removed the Union Jack and replaced it with her dopatta fashioned to look like the Muslim League flag. In 1947, when the Civil Disobedience movement was launched, Pathan women marched unveiled in public for the first time and scaled walls to hoist the Muslim League flag. They went to jails and were tear-gassed and baton-charged. On April 3, 1947 fifteen hundred Pathan women publicly protested in the form of picketing. They also formed the ‘War Council’ and set up mobile radio stations and an underground radio station called, Pakistan Broadcasting Station, which operated right up to the time of independence in August 1947.
Post-Independence Struggles
Indian men were willing to grant women the right to vote and get an education in the interest of the national liberation movement however the impetus grew after independence. The first legislature of Pakistan had two women representatives, Jahanara Shahnawaz, the Muslim League veteran who had been elected to the All-India Muslim League Council in 1937; and Shaista Ikramullah from the Suhrawardy family of East Pakistan. In the early period of Pakistan’s history, women began to make demands for their own rights now that the nationalist struggle was over.
In 1948, the first attempt was made to secure economic rights for women during the budget debate. When the Shariat bill was removed from the agenda of the assembly, the women legislators were furious and took up the issue with the Muslim League Women’s Committee. Thousands of women marched to the Assembly chambers shouting slogans, led by Jahanara Shahnawaz and other women leaders and finally the Muslim Personal Law of Shariat (1948) became effective recognizing women’s right to inherit property. The first piece of legislation may have been for the propertied classes only, but women took a stand against their male colleagues in the assembly for their own rights as women.
The first Constituent Assembly had several special committees in which Jahanara Shahnawaz and Shaista Ikramullah countered male chauvinists and religious ulema. In the Zakat committee the ulema refused to sit with women members, arguing that only burqa clad women above the age of fifty should be allowed to sit in the Assembly, a demand that was to be raised again by the Ansari Commission in the decade of the 1980s. The earliest echoes of contestation and challenge between the women and the religious lobby had begun to be heard.
The women leaders had begun to make political demands also, for example, they had raised the issue of 10% reserved seats for women in the legislatures at the Round Table Conference in the 1930s. At that time, they could only get 3% reserved quota. In September 1954, at the final meeting of the Constituent Assembly, when the draft bill for the Charter of Women’s Rights prepared by Jahanara Shahnawaz was discussed, the reserved seats remained at 3% for both the central and provincial assemblies.
The other demands in the Charter included equality of status, equality of opportunity, equal pay for equal work and guarantee of inheritance rights for Muslim women under the Islamic personal law of Shariat. In 1951, the Muslim Personal Law of Shariat became effective and women received the right to inherit agricultural land for which they had been fighting since 1948. The Democratic Women’s Association (DWA), formed in 1948, was unique in that it organized women at the political level and was established along Marxist principles. Led by the Marxist activist, Tahira Mazhar Ali, the DWA worked with working class women in factories and low-income areas, while focusing on political awareness and the creation of a socialist society. The DWA wanted equal pay for equal work, educational opportunities for girls and women, hostels and transport facilities for working women, crèches and nurseries at places of work and expanded employment opportunities for women.
In 1949, Ra’ana Liaquat Ali’s efforts led to the creation of the All-Pakistan Women’s Association (APWA) which, in the context of the time, made invaluable contributions not only to welfare but also in the arena of legal reform. In 1955, women’s organizations ran a campaign against Prime Minister Mohammad Ali Bogra’s second marriage and this was spearheaded by the All-Pakistan Women’s Association (APWA). The combined pressure by United Front for Women’s Rights and APWA forced the government to appoint a commission headed by the Chief Justice of the Supreme Court, Justice Rashid, to examine laws of marriage, divorce, maintenance and custody of children. The Report was formulated in 1956 with a lengthy dissenting note from Maulana Ehtashamul Haq Thanvi.
In the 1956 Constitution, the principle of female suffrage for women’s reserved seats was accepted on the basis of special women’s territorial constituencies, thus giving dual voting rights to women for both general and reserved women’s seats. Ayub Khan’s takeover and martial law in 1958 led to the abrogation of the constitution of 1956. The Family Laws Ordinance (MFLO) of 1961, which gave women a few rights with regard to marriage, the custody of children, divorce and registration of marriages and divorces, was passed as a result of APWA’s efforts. It was basically an attempt to discourage polygamy as the first wife’s written permission became necessary for a husband’s second marriage.
The 1960s and 1970s witnessed a proliferation in the growth of women’s organizations most of which were focused on welfare, development and reformist agendas. In 1972, the PPP formed a constitution-making committee which included two women, Nasim Jahan and Ashraf Abbasi. The 1973 Constitution gave more rights to women than in the past. Article 25 of fundamental rights declared that every citizen was equal before law and Article 25 (2) said there would be no discrimination based on sex alone. Article 27 of fundamental stated that there would be no discrimination on the basis of race, religion, caste or sex for appointment in the service of Pakistan. Article 32 of the Basic Principles of State Policy guaranteed reservation of seats for women, and article 35 stipulated that the state shall protect marriage, family and mother and child. The constitution was unanimously ratified in the Assembly and later Article 228 was amended to accept the principle of at least one woman member on the proposed Council on Islamic Ideology. In spite of women’s efforts, however, the idea of female suffrage for reserved seats for women was rejected, both in the constitution committee and the National Assembly.
In the period of General Zia (1977-1988), the entire legal structure was reconstructed to institutionalize discrimination against women and non-Muslim citizens. A number of discriminatory laws including the Hudood Ordinances of 1979, the Qisas and Diyat Ordinance, and the Law of Evidence of 1984 were promulgated. The Zina Ordinance conflated rape and adultery and women who reported rape, but were unable to produce four adult male Muslims of good character as witnesses, were booked for adultery and jailed. A large number of poor and rural women languished in jails for years for being unable to fulfill the impossible requirement of witnesses. The Qisas and Diyat law privatized the crime of murder and saved the perpetrators of ‘honor killing’ who could pay the blood money and go scot-free. The Law of Evidence reduced women’s testimony in a court of law to half that of men. In 1983, the Ansari Report of the Council of Islamic Ideology recommended that women’s participation in politics should be limited to nominated women over the age of fifty. In 1985, the Shariat Bill (9th Amendment) threatened to abolish the Family Laws Ordinance of 1961.
The Women Action Forum, formed in 1981 to resist the spate of discriminatory laws against women, has struggled for decades for the repeal of the 8th amendment passed by General Zia to protect the legislation passed by him. This struggle has not succeeded so far and any potential changes in the unjust laws are quickly resisted by the religious lobby and declared un-Islamic by the Shariat Court, a parallel judicial structure created by General Zia, or by the Council of Islamic Ideology created by General Ayub Khan.
During Benazir Bhutto’s two stints in government (1988-1990 and 1993-1996) some women-friendly measures were taken such as the setting up of Women’s Studies Centers in various public sector universities.[2] Furthermore, the First Women Bank was established in part as a development institution for women and one of its functions was to provide loans to women entrepreneurs on easy terms. Separate women’s police stations were set up although it is difficult for women, due to mobility issues, to reach even the nearest station, let alone one in a central place. In 1995, Benazir Bhutto attended the 4th World Conference in Beijing, and in 1996 Pakistan acceded to the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW). In 1998, the government of Nawaz Sharif endorsed the National Plan of Action developed by women activists after the 4th World Conference, but the focus was only on two areas: health and education.
In 1994, a Commission of Inquiry for Women was constituted by the Government and asked to review all existing laws with a view to removing discrimination, and to suggest appropriate measures for improving the status of women in the society. Justice Nasir Aslam Zahid, a Judge of the Supreme Court of Pakistan, headed the Commission, which had ten other members. The Commission presented its report in 1997, recommending the repeal of discriminatory laws, amendments to others and setting up institutions for monitoring the enforcement of laws.
In the Local Government Act of 2001, women’s representation was increased to 33% in local bodies, while 17.5% seats were reserved for women in the provincial and national assemblies. For the first time there were around sixty women on reserved seats in the National Assembly. In 2003, the National Commission on the Status of Women (NCSW), constituted as a statutory body in July 2000, brought out a report recommending the repeal of the Hudood Ordinance as it degraded women and deprived them of their rights thereby making the law iniquitous. The Commission also recommended the removal of sections of the Penal Code that carried enabling provisions. The Chairperson of NCSW, Justice (Retd) Majida Rizvi, along with most of the other members strongly supported the suggestions with only two members dissenting.
In 2006, the Women Protection Act was passed and the crime of rape was taken out of Hadd (maximum) punishment and placed in Taazir, Pakistan’s criminal procedure.[3] A long-standing demand of the women’s movement was met as rape would now be investigated in the manner done in other countries and the conflation between rape and adultery would end. However, in December 2010, the Federal Shariah Bench struck down several sections of the Women Protection Act arguing that they were contrary to the injunctions of Islam. This reversal showed that women’s empowerment is not a one-way road to progress; rather the struggle is permanent and ongoing as there are persistent pressures for the reversal of rights granted earlier.
In 2010, the government appointed Maulana Muhammad Khan Shirani of JUI (F) as the head of the Council for Islamic Ideology. The Women’s Action Forum protested against this appointment as the Maulana had taken strong stands against pro-women legislation. He objected to the law against sexual harassment on the facile basis that provocatively dressed and immodest women were themselves responsible for inviting harassment. Maulana Shirani walked out of the assembly during the passage of the law. He objected to the domestic violence bill on the grounds that it is not a problem in Pakistan and has been created by Western-educated women. The Maulana regards domestic violence as a private family matter and opposes the state’s intervention. The Domestic Violence Bill was passed in the National Assembly in 2009 but fell prey to political bargaining in the Senate.
Nevertheless, during the period of the PPP government (2008-2013) a number of positive and significant laws were passed thanks mainly to the Parliamentary Women’s Caucus and the National Assembly Standing Committee on Women which worked closely and tirelessly with women’s groups for this legislation. Some of these measures include a law against sexual harassment in the workplace (2010).[4] There was a long-standing demand by women activists for such a law however, AASHA (Alliance Against Sexual Harassment), set up and led by Fouzia Saeed, played the major role in getting the legislation passed. Sexual Harassment was defined and the procedure for investigating and addressing complaints was outlined.
Another law, authored by Donya Aziz, was passed against anti-women practices to ensure inheritance rights and criminalize abduction and forced marriage (2011).[5] An act of parliament created the National Commission on the Status of Women (2012) which is an autonomous body authorized to investigate cases of violence against women while also proposing legislation necessary for ensuring and enhancing women’s rights and equality. In 2012, a domestic violence bill was passed which would apply only to the Islamabad Capital Territory but serve as a model for the provinces which can legislate on women’s issues which are now a provincial domain after the passage of the 18th constitutional amendment. With PPP’s Fehmida Mirza as the Speaker of the National Assembly, and strongly vocal women such as Nafisa Shah, Bushra Gohar and Sherry Rehman as members of the assembly, pro-women legislation was passed despite sustained opposition from the clergy.
Provincial Legislation for Women’s Rights
The provinces have made some significant strides toward progressive legislation to ensure women’s rights. The Sindh provincial assembly passed the Child Marriages Restraint Act, 2013 which stipulates that any person under the age of eighteen is a child and anyone who contracts a child marriage shall be punished with rigorous imprisonment which may extend to three years but shall not be less than two years and shall be liable to fine.[6] This was a big step forward as previously a very large number of young girls, often no more than thirteen years old or those who had attained puberty, would be married off to men aged fifty or above. The Sindh Assembly also passed the Domestic Violence (Prevention and Protection) Act, 2013 to criminalize the pervasive use of violence by families and kin to force women into submission.[7]
In 2014, the Balochistan provincial assembly passed the Balochistan Domestic Violence (Prevention and Protection) Act which, like the domestic violence law of the Sindh assembly, defined domestic violence comprehensively by including not just acts of physical abuse, but also covering psychological and emotional aspects including threats, intimidation and economic violence against women, children and the vulnerable members of the family.[8] The laws passed by the Sindh and Balochistan assemblies constitute landmark developments as women’s rights campaigners, mainly Women Action Forum, had for years lobbied for a comprehensive and all-encompassing view of violence.
However, the domestic violence law passed by the Punjab assembly leaves much to be desired. The Punjab Protection of Women Against Violence Act of 2016 is seriously problematic as it fails to criminalize domestic violence.[9] The approach in the legislation is welfare-oriented rather than rights-based as the emphasis is on rehabilitation instead of prevention and protection. It is based on the traditional and flawed notion of reconciliation between the two parties rather than making domestic violence a criminal offence. There are no provisions for what happens to a perpetrator, but several on what women should do post abuse. The focus appears to be on remedies rather than prevention and protection. Furthermore, the law has several issues including definitions that could leave young girls out of the protection umbrella, the limitations of Family Courts, the vague definition of violence committed against a woman, and no mention of sexual abuse along with the exclusion of emotional, psychological, verbal and economic abuse from the definition of violence.
The domestic violence law framed by Khyber Pakhtoonkhwa, framed in 2016, suffers from serious deficiencies.[10] The most fundamental flaw in the law is under section 22 titled Exemption from the operation of the Act and reads as follows: “Nothing in this Act applies to corrective measures taken by parents or spouses within the constraints of the injunction of Islam as laid down in the Holy Quran and Sunnah.” This provision militates against both prevention and protection as it gives parents and husbands to take ‘corrective measures’ which could be interpreted to mean that they can use violence to force women to submit to their will. This section is widely open to the discretion of patriarchal mindsets, and the judiciary and police are most likely to interpret this section to the detriment to women and girls. It reinforces stereotypes and the widespread belief that religion allows violence against women.
It is important to note that ‘corrective measure’ has not been defined by the bill, leaving it up to the judge to define it. There is a serious need to define this otherwise anything and everything can be described as corrective measure and therefore exempt. This section perpetuates physical violence it seems to promote the idea that it is legally correct to use violence in certain situations. This section leaves the rest of the legislation meaningless and the bill seems to merely pay lip service to protecting women in KP. The bill fails to define domestic violence and offers no remedy mainly due to the strong influence of religious lobbies that feel threatened by the empowerment of women.
Reflections for the Future
While progressive legislation for ensuring women’s rights and equality has been passed at both the federal and provincial levels, a great deal still needs to be done. The implementation of laws is extremely weak and there are consistent attempts by religious lobbies to reverse the few rights women have gained legally in Pakistan. For example, in certain parts of Pakistan women are not allowed to vote during national, provincial and local government elections. Such reports have been received from across the country where several political parties, including the ones believed to be liberal and secular, have made pacts with one another to exclude women voters. Although this is against the law and rules of the Election Commission of Pakistan, not all the cases are necessarily reported.
Whenever such reports have been available, women’s groups and the National Commission on the Status of Women have protested to get the election results annulled. Nevertheless, this is an impediment in the women’s exercise of their political rights and activists need to address it every time there is an election. This is closely related to the attitude of the majority of male political party members and legislators who actively participate in such pacts with religious parties.
The struggle for women’s rights and equality is a long and painful one. Nevertheless, it must go on and activists cannot afford to become complacent because they need to fight not only for more rights and equality, but also to prevent the reversal of their hard-won rights. Pakistani women have come a long way since the creation of the country but the road ahead is long and paved with dangers and pitfalls. However, the spirit of challenge and resistance continues to guide the march toward a just world.
*First published in ‘Pakistan’s Women in Law’, Lahore Education and Research Network, 2018.
[1] For a detailed analysis of women’s participation in religious and nationalist struggles, see Mumtaz, Khawar & Farida Shaheed, Women of Pakistan, Two Steps Forward, One Step Back, London: Zed Books, 1987.
[2] For a detailed overview of the post-Zia periods see Rubina Saigol, Feminism and the Women’s Movement in Pakistan: Actors, Debates, Strategies, Frederich Ebert Stiftung (FES), Islamabad: 2016.
[3] Protection of Women (Criminal Laws Amendment) Act, 2006.
[4] The Protection Against Harassment of Women at the Workplace Act (2010).
[5] The Prevention of Anti-Women Practices (Criminal Law Amendment) Act 2011.
[6] The Sindh Child Marriages Restraint Act, 2013. Sindh Act No. XV of 2014.
[7] The Domestic Violence (Prevention and Protection) Act, 2013, Sindh Act No. XX of 2013.
[8] The Balochistan Domestic Violence (Prevention and Protection) Act 2014 (Act No. VII of 2014).
[9] The Punjab Protection of Women Against Violence Act, 2016 (Act XVI of 2016).
[10] KP Domestic Violence (Prevention and Protection) Bill 2016.