Chapter four:
The Pakistan contextThis chapter outlines some key features of the geographical, political, sociological and legal framework of Pakistan which give rise to the marginalisation of women. Where appropriate, it draws upon both contemporary documentation and analyses of the Pakistani context and, for illustrative purposes, includes quotations from some participants whose accounts were generated as part of the study.
Pakistan has complex internal social and political structures defined by its constitution at both governmental and legal levels, which are in turn structured by both urban and rural factors. This chapter considers these complexities and local (i.e. provincial) variations, as well as the consequences for women’s rights and the prevalence of domestic violence.
International events like 9/11, 7/7 and the so-called ‘war on terror’ have also had an impact on the social and political structures of Pakistan. The ‘war on terror’ for many Islamic states has been interpreted as a ‘war on Islam’ and this perceived attack has had the effect of encouraging a more inward looking perspective. As a result many Muslim communities increasingly feel a need to close ranks against what they perceive as ‘western imperialism’. Thus in considering the political and legal systems, it is relevant to keep in focus the international perceptions of Pakistan as a state with dominant Islamic influences. Alongside this, and in some respects precisely because of this, western (especially US) scrutiny of and support for Pakistan has also mediated relationships within Pakistan, in particular between the Government and border regions.
4.1 Rationale for regions studied
These regions were selected for two key reasons, arising both from the UK and Pakistan contexts. Firstly, the regions were chosen because of the composition of the Pakistani community in the catchment areas served by South Manchester Law Centre. Secondly, due to the size of the country and the difficulty in travelling outside urban areas and the necessity of limiting the scope of the study, a decision was made to focus on key cities and towns in the selected regions. Hence in the region of Punjab, the places visited and researched were Lahore, Faisalabad, Islamabad, Rawalpindi and Gujar Khan; in Sindh, Karachi and Hyderabad; and in the North West Frontier Province, Peshawar.
As is discussed later in this section of the study, the issues affecting women vary across the regions. They are influenced not only by patriarchal systems, perspectives, values and attitudes towards women, but also by conflict resolution systems such as the Jirga (tribal council of elders) the Panchayat (council of elders) in the villages, and civil and criminal courts in the towns and cities. Local customs and practices in these areas also have an impact on women’s lives.
4.2 Some key facts about Pakistan
It is helpful to begin with a reminder of some key facts about Pakistan.
4.2.1 Historical and geographical context
The Islamic Republic of Pakistan is located in South Asia and shares an eastern border with India and North-Eastern border with China. Iran makes up the country’s southwest border, and Afghanistan runs along its western and northern edge. The Arabian Sea is Pakistan’s southern boundary with 1,064 km of coastline.
One of Pakistan’s neighbours, Afghanistan is currently the focus of international intervention. Pakistan has had a turbulent relationship, both past and present, with another neighbour, India. In addition Pakistan is a military state. It therefore cannot help but attract high levels of international scrutiny.
The country has a total area of 796,095 sq km and is nearly four times the size of the United Kingdom.
Figure 1: Regional Map of Pakistan

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The Islamic Republic of Pakistan was created on 14th August 1947 as a result of the partition of India. It officially comprises four provinces: Punjab, Sindh, NWFP and Balochistan. In addition, NWFP and Balochistan have Federally Administered Tribal Areas (FATA) and the Federally Administered Northern Areas (FANA), which are governed by the Islamabad Capital territory. Pakistan administered Kashmir is known as Azad Jammu and Kashmir.
The World Health Organisation in 2005 estimated the population of Pakistan to be just under 158 million and growing at a rate of 1.92% annually. 97% of the population is Muslim, belonging to the sects of Sunni, Ahmadi and Jafari (Shia), while the remaining 3% belong to other faiths such as Christianity and Hinduism. Hence the strong links between Islam and the State and the fact that the law, customs and practices are strongly influenced by Islamic tradition.
Poverty remains a very serious problem in Pakistan. A substantial part of the population lives in poverty. In 2003/4 it was estimated that 28.35 of the population was living in poverty (calculated as adults getting less than 2350 calories/day or Rs748.56 (£7.50) equivalence per month). The estimated literacy rate for 2001 was 49.51% (people who are able to read with understanding and can write a short statement (CEDAW report submitted by Pakistan, 3.8.05). Only 20.8% of rural families are literate (HRP in South Asia 2001). The gross enrolment rate at the primary school level for urban women was 87% while that of rural women was 52%. The figures for males were 94% and 80% respectively. The gross enrolment rate for middle school level was 68% while that for rural females was 21%.105
These demographics illustrate that in general women’s literacy and educational levels are far lower than their male counterparts. Women in rural areas are even less likely to have access to educational opportunities.
The major Political Parties in Pakistan are the Pakistan Muslim League – Quaid-i-Azam (PML-Q); Pakistan Peoples Party (PPP); Muttahida-i-Amal (MMA) (a coalition which includes the Jamaat –i-Islam and the Jamia-e-Ulema Islami); Pakistan Muslim League – Nawaz (PML – N); Muttahida Qaumi Movement (MQM) and Awami National Party (ANP).
105 Statistics are taken from the report submitted by Pakistan to CEDAW (Convention on the Elimination of All Forms of Discrimination against Women on 3.8.05, accessed at: http://daccessdds.un.org/doc/UNDOC/GEN/N05/454/37/PDF/N0545437. pdf?OpenElement, last accessed, 19/11/07.
The table below is an indicator of the political affiliations of each party and indicative of their particular ideology, especially with regard to issues affecting women, and the political hold they have in the four regions of Pakistan.
Table 4: Political Affiliations of Pakistani Parties
Political Party
Political spectrum/ Ideology
Government representation
Geographical dominance
Pakistan Muslim League – Quaid-i-Azam (PML-Q)
Centrist (with right-wing Leanings)
Representation in National Assembly (342) Seats in total
Punjab, Sindh Balochistan
Pakistan Peoples Party (PPP)
Centrist
58 seats
Sindh, Punjab
Muttahida-i-Amal (MMA) (coalition which included the Jamaat–i-Islam and the Jamait-Ulema Islami
Right-wing Islamist
60 seats
NWFP, Balochistan
Pakistan Muslim League – Nawaz (PML – N)
Right-wing (Centrist)
18 seats
Punjab, NWFP
Muttahida Qaumi Movement (MQM)
Centrist
16 seats
Urban Sindh
Awami National Party (ANP).
Left-wing
None
NWFP

At the time of conducting this study the current Head of State (President) was General Pervez Musharaf, the Prime Minister was Shaukat Aziz and the Foreign Minister was Mian Khurshid Mehmood Kasuri.
Pakistan’s membership of international organisations includes the United Nations; the Commonwealth; the Organisation of Islamic Conference (OIC); and the Asean Regional Forum (ARF). There are various ethnic groups in the country including Punjabi, Sindhi, Pashtun (Pathan), Baloch and Muhajir (immigrants from India at the time of partition). Urdu is the national language; there are a number of regional languages including Punjabi, Pashtu, Sindhi, Hindko, Siraiki and Balochi. In addition to the regional languages there are a significant number of local dialects.
4.2.2 The constitution
In the context of this study, the following are the relevant articles of the Constitution of Pakistan.
The articles below from the Constitution of Pakistan state:
All citizens are equal before law and are entitled to equal protection of law. There shall be no discrimination on the basis of sex alone.
No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of sex…
Steps shall be taken to ensure full participation of women in all spheres of national life.
The state shall protect the marriage, the family, the mother…
The state shall….(ensure) that…. Women are not employed in vocations unsuited to their age or sex, and for maternity benefits for women in employment 106

106 Constitution of Pakistan – Articles 25, 27, 35, 37
This can be compared to the UN Declaration of Human Rights, of which Pakistan is a signatory.
All human beings are born free and equal in dignity and rights….
Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind….
All are equal before the law and are entitled without any discrimination to equal protection of the law…
Men and women of full age… are entitled to equal rights as to marriage, during marriage and at its dissolution.
Marriage should be entered into with the free and full consent of the intending spouses.
Everyone has the right to equal access to public service in his country.
Mother and childhood are entitled to special care and assistance.107

It could be argued that if the above cited articles of the Constitution of Pakistan were implemented then violence against women would be substantially reduced (see above). However, this has not been the case. Instead, Pakistan has witnessed an increasing number of crimes against women throughout the country. As Dr. Farzana Bari noted in an article published in the Pakistani daily newspaper The News: ‘A major reason for the increase in the incidence of violence against women is the weak response of our criminal justice system.’108 This arises in part because the Constitution directly conflicts with local laws and customs. It is widely acknowledged that local customs and practices often uphold the power of the powerful and dominant men in these communities. The Constitution espouses laudable principles but is of little relevance when custom and practice is allowed to influence relationships between men and women.
An example of which illustrates the contradiction between the Constitution and custom is the practice of ‘Swara’ (blood money in the NWFP). Under this practice where there is a dispute, girls are often handed over by their families to the aggrieved party in an effort to end blood feuds. They are used as commodities between families and tribes. This is clearly in breach of the Constitution where it states ‘All citizens are equal before law and are entitled to equal protection of law. There shall be no discrimination on the basis of sex alone’109. Young women/girls in the NWFP do not gain protection from the Constitution and the violation of their basic and fundamental human rights often goes unchallenged.
4.3 Government structure of Pakistan
4.3.1 Relevance of government structures
It is important to have a clear grasp of the organisation of government structures at federal, provincial and district levels, and their inter-relationships, in order to understand the impact and influence on lives of women. Indeed, many provincial and district government services have no significant relationship with the federal government, thus allowing local government a greater deal of autonomy in the interpretation and enforcement of key legislation. Hence legislation and decisions taken at federal level might espouse a positive slant on women’s lives, but when interpreted at a provincial level and carried out at district level, can get diluted and is often ignored in practice. It is widely acknowledged that local government at provincial and district levels often compromises the rights of women in the context of family and community.
4.3.2 Overview of the government structure
Decision-making within the legal context in Pakistan is influenced both by the geographical location and related government structures. In order to understand the decision making processes and their
107 Universal Declaration of Human Rights, Articles 1, 2, 7, 16, 21(2), 25(2), cited from the Human Rights Commission Pakistan –
State of Human Rights in 2006, http://www.hrcp-web.org/ar_anualreport-06/index.htm, last accessed 18/11/07.
108 Bari, F, ‘The politico-social aspect of rape’, The News, Feb. 07, 2005, p.6.
109 Constitution of Pakistan, Guarantees of Equality & Non- Discrimination: Articles 25, 26 & 27functions, it is necessary to outline the government structure of the country. It is also relevant to bear in mind that since the creation of Pakistan in 1947, the country has gone through 25 years of martial law, several constitutional crises and sectarian violence which has led to political instability.
Figure 2: Pakistani Government – Functions and Relationships

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Adopted in 1973 the Constitution of the Islamic Republic of Pakistan, provides for a Federal Parliamentary System with the President as Head of State and a popularly elected Prime Minister as Head of Government. The Federal Legislature is a bicameral Majlis-e-Shoora (Parliament), composed of the National Assembly (Lower House) and the Senate (Upper House).
A citizen of Pakistan has the right to vote for members of the National Assembly, provided they are 18 years of age or over. Seats on the National Assembly are allocated to the Islamabad Capital Territory, Federally Administered Tribal Areas and the four provinces (Punjab, Sindh, NWFP and Balochistan). The numbers of seats allocated are variable, as they reflect proportionally the local population in the identified areas. The parliamentary term served by National Assembly members is five years, subject to death, resignation or its dissolution. Majority of the members are Muslims, with about 3% of the seats
(10) being reserved for Minorities.
The President is the Head of State and is elected by members of the Senate, National and Provincial Assemblies. The President appoints the Prime Minister from members of the National Assembly. The Prime Minister is assisted by the Federal Cabinet i.e. a Council of Ministers whose members are appointed by the President, on the advice of the Prime Minister.
4.3.3 Provincial assemblies
The Provincial governments, via the Provincial Assembly, are delegated powers by the National Assembly to conduct their local affairs. This means that there are variable practices across the four provinces, depending on local interpretation and decision-making by the Provincial Assemblies. In the context of this study, it is important to understand how decision-making at this level influences and impacts upon services and practices related to women.
Each of the four provincial assemblies elects members from their respective provinces. The total number of seats in Punjab assembly is 371, out of which 66 are reserved for women. In Sindh, out of total of 168 seats, 29 are reserved for women; In NWFP, out of a total of 124 seats, 22 are reserved for women; In Balochistan, out of a total of 124 seats, 11 are reserved for women. Elections are held in the same manner as those to the National Assembly. The four provinces have a Governor, a Council of Ministers headed by a Chief Minister appointed by the Governor, and a Provincial Assembly.
Although the division of responsibilities is well defined between the Federal and Provincial governments, there are some areas where both can make laws and establish departments for the execution of their responsibilities. The Provincial government is responsible for providing services in areas such as health, education, agriculture and roads. Although the Federal government can also legislate in these areas, it only makes national policy and handles international aspects of those services.
This system is essentially based on the Devolution of Power Plan that has reserved 33% of the seats for women. These reserved seats are directly elected at village level for union councils and indirectly elected at district and sub-district levels for Zila (sub-district) and Tehsil (district) councils.110
However despite the positive intentions expressed in the Plan, the reservation of seats for women has not succeeded in giving them a real voice to women. By its very nature the system of representation discriminates against women. Given that the overwhelming majority of women in Pakistan are poor and have very limited literacy skills they are mostly dependent on the men in their communities. Consequently they remain under and unrepresented in local government and are susceptible to manipulation and pressure in decision-making.
4.3.4 District government
The District Government is responsible to the Provincial Government and its people for the improvement of governance and delivery of services. The Provincial Government can decentralise, through the creation of district government, the implementation of key decisions related to policies and services. These are established in every Tehsil or town in a city district depending upon its needs. There is no direct connection with Federal government and any link occurs through the Provincial government.
The Zila Nazim (Sub-district Chief/Manager) heads the District Government. Responsible to the District Government is the Tehzil Nazim (District Chief/Manager) who headed the Municipal Administration is responsible to the district government. The final tier is the Union Administration, which is a corporate body and covers both urban and rural areas across the whole district. It consists of the Union Nazim, Naib Union Nazim (Assistant Manager) one Union Secretary and other ancillary staff.
4.3.5 Gender representation
From the time of the creation of Pakistan in 1947, seats were reserved for women in the legislature in addition to their rights to contest general elections. This provision expired after the 1988 election and
110 Bari, F, Local Government Elections. December 2000 – (Phase 1) Local Government Elections. Islamabad: MOWD (Ministry of Women and Development), 2000.
was then revised in 2002 by the present government. 60 seats (17.5%) have now been reserved for women in the National Assembly and in the Senate and 17% of seats in the senate have been reserved in the Provincial Assemblies.
In terms of explicit measures on gender and political representation, both women and men have equality of political rights under the Constitution as regards voting and contesting all elective offices. The Fundamental Rights in the Constitution guarantee the equality of all citizens before the law and forbid discrimination on the basis of sex alone, but provide space for affirmative action for women by the State. The Principles of Policy further state that steps will be taken to ensure the full participation of women in all spheres of national life.
Despite the fact that women have been given representation in the legislative system, this has not had an appreciable effect on their position. This is particularly evident in the interpretation and enforcement of domestic and family law.
4.4 Legal systems
4.4.1 Introduction
This section will discuss the legal systems in Pakistan focusing on the judiciary, and the parallel judicial system (which includes the Federal Shariat Court, geographically specific parallel judicial systems, the West Pakistan Ordinance I and ll of 1968 and the tribal justice system). We will examine how these systems inter relate and how they collectively fail to positively support and protect women and their rights.
4.4.2 Judiciary
What may be described, as the ordinary judicial system comprises the “lower” and the “superior” judiciary. The lower judiciary operates at district level and consists of civil, district and sessions courts.
The superior judiciary consists of the provincial high courts and the Supreme Court and has original and appellate jurisdiction. The President appoints the Chief Justice of the Supreme Court and in consultation with him, the other judges of the Court. Appointments of judges to the Provincial Courts are made by the President after consultation with the Chief Justice, the Governor of the province and the Chief Justice of the High Court to which the appointment is made. It is a matter of record that the Chief Justice is independent from the President. This was confirmed in early 2007 during a political fall out, where the President was challenged about the independence of the judiciary and the Chief Justice was finally reappointed after public demonstrations.111
A further feature of the legal system is the office of the Wafaqi Mohtasib (Ombudsman). He enforces administrative accountability by investigating and rectifying any injustice done to a person through maladministration by a federal agency or a federal government official. This institution has been introduced to try and bridge the gap between administrator and citizen, to improve administrative processes and procedures, and to help curb misuse of discretionary powers.
4.4.3 Parallel judicial system in Pakistan
There are a number of judicial systems operating simultaneously in Pakistan that can be described as ‘parallel judicial systems’.
“Parallel judicial systems can be defined as forums functioning parallel to the ordinary courts.
Stated simply [they are] a complete hierarchy of forums under which particular person[s] or classes
of persons are tried or have their civil disputes adjudged under special laws to the exclusion of the
ordinary courts of the country.”(Ali and Arif 1998)
Some systems operate exclusively in the tribal areas, others throughout the country. Examples of parallel judicial systems are the Federal Shariat Court (FSC), Martial Law Courts, the Special Anti Terrorist Courts and the Tax Tribunals. These different systems have particular historical and religious roots.
111 See report in Pakistan Governance Forum e-newsletter which can be accessed at: http://theresearchers.org/PGF/Mar-07/ enews.htm, last accessed 17/11/07.
In order to understand the context of the legal system and evaluate its response to domestic violence, it is important to outline the parallel judicial systems that operate in the different regions of Pakistan.
4.4.4 Parallel religious judicial systems
The Federal Shariat Court (FSC) and Shariat Appellate Bench (SAB) function alongside the ordinary judicial system and their jurisdiction applies to the country as a whole. They came about as a result of the process of ‘Islamisation’ introduced by General Zia ul Haq in the 1970s. General Zia reactivated the Council of Islamic Ideology (CII) to codify the Hudood Ordinances (discussed later in Sec.4.5.2) which were promulgated in 1979.
The Shariat Benches were formed in the High Court and the Shariat Appellate Bench introduced in the Supreme Court to enforce the Hudood Ordinances. In section 4.5.1 we will examine how the Hudood Ordinances criminalised non marital rape and extra marital sex and provided Quranic punishments, including death by stoning for adultery as well as jail terms and fines. While there is no record of the Quranic punishment of death by stoning having been carried out, the Hudood Ordinances remain in force with many women imprisoned under them.
The courts advise the government on how to reformulate laws to conform to Islamic injunctions. In addition the FSC and SAB have been given power to strike down legislation that contravenes Islam. The FSC and SAB combine legislative, executive and judicial powers in one body. This jurisdiction is criticised by some for being neither representative of the people, nor autonomously constituted. The judges of the FSC are in fact appointed by the President and can be removed at will.
Furthermore, a number of ‘ulemas’ (religious scholars) sit on the benches of the FSC and SAB. In general, few of them are regarded as well versed in law and some are known to have misogynistic views. It would therefore be unlikely that they would interpret Islamic law in a manner favourable to women’s rights. Moreover, there is a conflict between the Federal Shariat Court/Shariat Appellate Bench and the Council of Islamic Ideology as to which of them is supreme.
4.4.5 Geographically specific parallel judicial systems
In addition to the parallel religious judicial systems, Pakistan has retained a number of geographical judicial systems, mostly inherited from the days of colonial rule. These systems gave power and influence to local leaders, whose loyalty to the British was rewarded by allowing local practices of custom and tradition to function without central interference. The legacy of this has allowed for the creation of a separate judicial system that does not come within a human rights framework.
One of these systems is the Frontier Crimes Regulation (FCR), which was retained post independence and was the first geographical parallel judicial system in Pakistan. Its focus is on the suppression of crime. It still operates in the federally administered tribal areas. Under this system, the accused has no right to legal representation, bail or appeal. The usual penalties consist of fines but sentences of up to 14 years imprisonment can be imposed. As Patel, (2003) notes:
“The FCR authorises the settlement of quarrels by the Jirga that arise out of zan, zar, zamin (women, money and land) It is worth noting that women are included as a subject matter for the Jirga to decide upon, along with money and land. This reflects the notion that all legal disputes include women, along with money and land, and that a woman is considered part of a man’s property, like other property. These are the characteristics of male domination and feudalism, exercising control over women as a matter of honour and prestige. This attitude is not confined to tribal Jirgas, it is an attitude which finds expression all over Pakistan” (Patel, 2003, p.153)
The implications and consequences of the geographical parallel judicial system could be argued as being even more detrimental for women than men, given the existence of traditional belief systems where women are still considered ‘property’ of men (in the same way as money and land). Moreover, the operation of the Muslim Family Laws Ordinance 1961 and the Family Courts Ordinance has not been extended to Provincially Administered Tribal Areas where the FCR is in force. Hence the power of Jirgas (see later) goes unchecked. Even where women’s rights have been established e.g. in relation to inheritance, child custody etc, women are unlikely to get relief from a Jirga since by its very constitution, it represents the interests of the male elite.
4.4.6 The West Pakistan ordinance I and II of 1968
This provides a special procedure for the trial of certain criminal offences that are heard by a tribunal, headed by a member of the executive appointed by the Deputy Commissioner. The tribunal submits its findings to the Deputy Commissioner who can either acquit, or convict or refer the matter to a second tribunal. The Deputy Commissioner’s powers are arbitrary. He can acquit an accused of murder, even when on the facts of the case he or she is guilty. There is no right of appeal to the ordinary courts.
As an example of the discriminatory nature of the ordinance section 14 of the Ordinance provides punishment “for a woman who knowingly commits adultery, but no such punishment is provided for the man who is an equal partner in the act” (Ali and Arif, 1998, p.48). Section 30 of the FCR makes similar provision.
4.4.7 The tribal justice system
Amnesty International describes the system of tribal justice in Pakistan as rooted in tradition; it has no formal legal recognition in the country except in specifically designated tribal areas.112 However it also operates outside designated tribal areas such as the interior of Sindh and rural areas of Punjab. The HRCP, State of Human Rights 2006 stated that: “Despite a ban in 2004 on Jirgas by the Sindh High Court they continued to be held across the province. From Jan – June 2006 at least fifty ‘Jirgas’ were held.”
Khan also notes:
“Informal mechanisms of dispute resolution have been functioning since many centuries in the
subcontinent. The administration sought to institutionalise them as Alternative Dispute Resolution
(ARD) mechanisms during the colonial era.” (Khan, 2004, p.6)
Article 247(7) of the constitution specifies that the jurisdiction of the higher judiciary i.e. the Provincial High Courts and the Supreme Court does not extend to the designated Federal Administered Tribal Areas (FATA) and the Provincially Administered Tribal Areas (PATA). These areas have their own legal and judicial systems, which incorporate some form of tribal adjudication that is often contradictory to the Constitution. The equality principles embodied in the Constitution are not reflected in the tribal justice system.
The tribal justice system is based on the ‘Jirga’ (meeting of elders) or ‘Panchayat’, which is headed by the Sardar (head of tribe). ‘Jirga’ literally means ‘meeting’ and ‘Panchayat’, means ‘council of elders’. In Sindhi the term is Faislo is used for both the meeting and the decision.113
Tribal Jirgas, consisting of elders of the tribe are headed by the Sardar – or if the dispute is of less importance - local heads of the tribe, can either be called upon on an ad hoc basis or take place regularly. They deal with a range of issues, including conflicting claims to land and water, inheritance, alleged breaches of the ‘honour’ code and intra-tribal or inter-tribal killings. An SDPI survey conducted by Khan (2004) indicated that 33% of people accessed informal structures (Jirgas) to resolve issues and only 22% went through the formal structures. Significantly, the informal method of resolving disputes is relied upon because of its expediency and avoidance of financial cost.
Sardars have no formal training in ‘adjudication’. In interviews with Amnesty International they were documented as saying that their knowledge as to how to conduct Jirgas has been passed down from their fathers. One Sardar was quoted as saying, ‘It’s all in my head, there is no need to codify it… I have my own intelligence to tell me what is just’114. Others have claimed that while not codified, the principles of tribal justice are well defined and understood by everyone. However Pakistani women’s organisations have expressed strong criticism of the effects of this system.
The Jirga system is rooted in tribal customs and controlled by the male elders. Many of the tribal leaders themselves are parliamentarians and in practice, the Faislo is often used by political party representatives to reinforce their social hold over their constituents. (Shah, 1998)
112 See ‘The Tribal Justice System’ – Amnesty Internal AI Index: ASA 33/024/2002 – 1 August 2002. 113 The Tribal Justice System – Amnesty Internal AI Index: ASA 33/024/2002 – 1 August 2002. 114 The Tribal Justice System – Amnesty Internal AI Index: ASA 33/024/2002 – 1 August 2002.
From our own study the worker from the Aurat Foundation (Karachi) told us that:
“The Chief Minister’s house operates a Jirga system even now.”
The widespread use of this system, mainly in rural areas, works to discriminate against women, particularly when dealing with the issue of ‘honour’. Moreover it is also extremely difficult to change the attitudes of the public in Pakistan when the Jirgas are led by politicians and accepted by the government as a form of resolving matters expediently. As discussed below, this is illustrated by how the government failed to intervene in the case of Mukhtar Mai who was punished by the Jirga for a crime she had not committed.
Indeed as HRCP (2005 – page 182) commented:
“Indeed, the increasing number of ‘Jirgas’ held in various parts of the country often resulted in
verdicts that greatly damaged the safety and interests of women.”115
To illustrate the use of the Jirga system and the anomalies with the Constitution we have two examples.
Case study: Mukhtaran Mai
In June 2002, Mukhtar Mai, a 30 year old woman of the Gujjar tribe from the village Meerawali in the Punjab province was sentenced by the Jirga to be gang raped as a punishment for her younger brother’s alleged ‘illicit affair’ with a woman from the Mastoi tribe. This is a significant example of the government failing to intervene. Effectively, the government accepted the Jirga’s decision
As has since been widely documented in the media, Mukhtar Mai has said that although she appealed to everyone present in her village for mercy (there were hundreds of residents present), no one dared to oppose with the Jirga’s decision that she should be gang raped as punishment for her brother’s actions. Mukhtar Mai was then gang raped, by four men, including one member of the tribal council, and made to walk naked through the streets of her village.
The Governor of Punjab set up an official enquiry which concluded the ‘illicit affair’ was fabricated to hide the sexual abuse of her brother, Shakoor, by three men from the Mastoi tribe. When Shakoor threatened to tell his family about the abuse, the tribesmen handed him over to the local police station. The Mastoi tribesmen then publicly alleged that Shakoor had an ‘illicit affair’ with an older woman of their tribe and summoned a Jirga. There were national and international protests after a local cleric mentioned Mukhtar Mai’s case in Friday prayers and a journalist picked up the news. The local police only accepted a complaint by her (she went to file the case against the wishes of her family) seven days after the offence, when a delegation of lawyers met the local police authorities and insisted on registering the complaint.
The progress of this complaint was far from smooth. In August 2002, the Supreme Court tried fourteen of the accused and condemned six of them to death. They were also ordered to pay 50,000 rupees in damages and costs. The other eight were freed. The six convicted appealed against their death sentences and Mukhtar Mai appealed against the release of the eight men.
In March 2005, five of the six convicted were acquitted by the Lahore High Court (LHC) and the sixth man was condemned to life imprisonment. The judgement issued by the LHC said that Mukhtar Mai’s statement was not backed by sufficient evidence and there was a delay in reporting the crime to the police. A few days later, the Federal Shariat Court (FSC) intervened and purported to suspend the order of the Lahore High Court. The Supreme Court then declared that the action of the FSC was unconstitutional and suspended the orders of both the LHC and the FSC. At the time of drafting this report (Autumn 2007), Mukhtar Mai’s case is now before the Supreme Court and their decision is pending.
The fact that this heinous crime was committed five years ago and the perpetrators in her case have still not been punished, is surely an indictment of Pakistan’s failure to secure and uphold women’s dignity and human rights. This case is an example of how cases of rape and those cases involving the Hudood Ordinances, honour killings and domestic violence are adjudicated under parallel laws and tribal practices and how women are denied protection under the legal and justice systems. In fact
115 Human Rights Commission of Pakistan, State of Human Rights, 2005, p.182.
Mukhtar Mai’s case illustrates perfectly how ineffectual the principles enshrined in the Constitution are. It further highlights how, depending on the urban-rural divide, women can benefit from very different (if any) levels of protection.
In terms of this study, it is the inconsistency in the laws and its application across Pakistan that makes the issue of ‘flight’ so significant. The wider implications for women who may want to flee to another area raise questions about the level of protection available to women when re-locating to a different region of Pakistan. Such relocations typically take the form of flight from rural to urban areas, and are also associated with women living in extreme poverty and destitution.
Case study: Dr. Shazia Khalid
Dr. Shazia Khalid, an employee of the Pakistan Petroleum Limited (PPL) in Sui, Balochistan, was raped in her bedroom on the 2nd January 2005. Dr. Shazia was unable to identify the rapist and at the time of the incident, in accordance with the Pakistani legal requirement to prove rape, she was required to produce four Muslim men who had witnessed the crime. The rape took place within the secure hospital precinct, allegedly by an army officer. In February 2005, a tribal Jirga concluded that Dr. Shazia’s rape had dishonoured the tribe and she should be murdered. Dr Shazia Khalid added:
‘the worst of it was, my husband’s own grandfather announced that I was a kari, a stain on the family. He said that my husband should divorce me, and that I should be expelled from the family. I was afraid of being killed!’ (Mai, 2006, p.125).
The rape provoked riots in Balochistan and the Pakistani army suppressed a large-scale tribal uprising. The Balochistani national leaders claimed that frontier corps personnel had committed the crime and accused the government of a cover up.
The Pakistani authorities advised her to leave the country and not to contact any of any human rights organisations. She was asked to sign a declaration saying that she had received assistance from the authorities, and had decided to take the matter no further. She was threatened that if she did not sign it, she and her husband would probably be killed. She is now in exile in the UK while her only son remains in Pakistan.
A key factor of significance in this case is that the Pakistani government did not feel able to protect Dr.Shazia. This demonstrates the very real power differential between government and tribal justice systems. Dr.Shazia is still waiting for justice from the government of Pakistan.
4.5 Legal context impacting on women
Alice Bettencourt, from the Human Rights Advocacy Clinic in her litigation report (Spring 2000) on ‘Violence Against Women in Pakistan’ writes:
“Women in Pakistan live in a world structured around strict religious, family and tribal customs that essentially force them to live in submission and overall fear. In a nation where Islamic law dictates traditional family values and is enmeshed in the legal system, Pakistan’s government, law and society discriminate against women and condone gender-based violence. Though Pakistan ratified the United Nation’s Convention on the Elimination of Discrimination Against Women in 1996, (herein after referred to as the Women’s Convention), it has failed to bring in new laws and to enforce existing laws that protect women from discrimination and violence. Pakistan has yet to integrate many of the Women’s Convention’s provisions into domestic law and to raise the awareness of the general public of it’s (i.e. state’s) responsibilities under international law to promote women’s rights. Due to these failures, women’s rights in Pakistan are deteriorating.” 116
In examining the legal context that impacts on women fleeing domestic violence, it is necessary to begin with the Hudood Ordinances. These ordinances illustrate the conflict between religious and civil laws, and provide a significant indication of the position of women in Pakistani society. Furthermore, when considering laws concerning women, for example around divorce, it is important to keep the Hudood Ordinances in mind as these impact on how family laws might be interpreted, and highlight the tensions between law, policy and practice.
116 Bettancourt,A, Violence Against Women In Pakistan, Human Rights Advocacy Clinic, 2000, accessed at: http://www.du.edu/ intl/humanrights/violencepkstn.pdf, last accessed 19/11/07.
4.5.1 The hudood ordinances
General Zia ul Haq came to power through a military coup in 1977. Under the pretext of ‘Islamisation’ he introduced the Hudood Ordinances (HO) in 1979. This campaign to Islamise society focused particularly on women, their dress, behaviour and legal status. This change occurred because the religious right in Pakistan had gained a foothold in the state. Since their introduction the Ordinances have widened the category of criminal sexual activity (the implications of this will be examined later). In addition, a woman’s testimony is considered half that of a man’s and there is widespread agreement that rather than promoting justice, the Ordinances constitute “an instrument of oppression against women”117.
The Hudood Ordinances 1979 consist of several ordinances including:
The Offences Against Property (Enforcement of Hudood) Ordinance deals with the crimes of theft and armed robbery.
The Offence of Zina (Enforcement of Hudood) Ordinance deals with offences of rape, abduction, adultery and fornication. This is only considered under the Shariat laws.
The Offence of Qazf (Enforcement of Hadd) relates to a false accusation of Zina (adultery and fornication)
The Prohibition (Enforcement of Hadd) deals with the manufacture, possession and use of intoxicants (alcohol and narcotics).

The ordinances recommend two forms of punishment. Firstly, Hadd (limit) is defined as punishment ordained by the Holy Quran or Sunnah (sayings of the prophet Muhammad). Secondly Tazir (to punish) includes any punishment other than Hadd. Hadd punishments are fixed. The judge has no discretion or flexibility when dealing with them. Tazir is given when the offence is considered proved, but does not fulfil all the requirements relating to the imposition of Hadd.
Requirements for the imposition of Hadd:
The accused must be an adult
The accused must confess to the crime or there must be eyewitnesses to the crime
Two eyewitnesses are required for all crimes, except in the cases of Zina (adultery or fornication) and Zina-bil-jabr (rape), where four eye witnesses are required.
The witnesses must be adult Muslim men. The testimony of Muslim women or non-Muslim men and women is not accepted against a Muslim accused. However, witnesses can also be non-Muslims (men and women) if the accused is a not a Muslim

Table 5: Examples of Hadd punishments are:
Offence
Punishment
ZINA by adult married Muslim
Stoning to Death
ZINA by adult non Muslim or adult single Muslim
100 Lashes
RAPE by adult married Muslim
Stoning to Death
RAPE by adult non-Muslim or adult single Muslim
100 Lashes plus any other punishment including death
Drinking of intoxicating liquor by adult Muslim
80 Lashes
Theft from an enclosed space of goods of more than a specified value
Amputation of the Right Hand (1st offence) Amputation of the Left Foot (2nd Offence), etc

117 National Commission on the Status of Women (NCSW), Report on Hudood Ordinances 1979, 2003. There is some disagreement on this view, particularly by some Islamic scholars who argue that the injustices against women have been exaggerated.
There has been opposition from Pakistani based Civil Society organisations, particularly women’s and human rights groups, along with individual activists, political groups and several prominent jurists who have called for the repeal of the Ordinances. International pressure has added to these local campaigns. The Commission of Inquiry for Women, headed by a serving Supreme Court Justice recommended repeal in 1997. In 2003, the National Commission on the Status of Women (NCSW), a statutory body, called for their repeal. The Ministry of Religious Affairs referred the legislation to The Council of Islamic Ideology who having recommended the implementation of these ordinances in 1979, acknowledged that certain clauses are in conflict with the spirit of Islam118.
General Zia introduced the Hudood Ordinances without any legislative bill being laid before the National Assembly or Senate. Opponents highlight the lack of due process in enactment and enforcement as fundamentally undermining the Ordinances legitimacy (Women Aid Trust, 2005). Counter arguments (among others, from the Women Aid Trust – a Pakistan based Islamic women’s organisation) claim that this initial lack of democratic process has been rendered irrelevant by the National Assembly’s adoption of the Ordinances in 1985, and, that the ‘implicit’ ratification by subsequent Assemblies has ‘continued with the laws (Justice and Iqbal, 2006). However, since General Zia set the condition that the Constitution and democracy would be restored only if the laws promulgated by him were given legal cover, it appears that a ‘trade-off’ replaced proper constitutional procedure.
While the Hudood Ordinances have a wide remit, this study focuses on the Zina (adultery) Ordinance, which criminalizes rape, adultery and fornication and has redefined how such cases are handled by the legal system. The Zina Ordinance is recognised as having had ‘a profound effect on the rights of women’.119 We examine the two ordinances (adultery and rape) and the use of these against women. We will also briefly examine the Qazf ordinance.
4.5.1.1 Offence of Zina (enforcement of hadd) ordinance 1979
This Ordinance covers Zina (fornication and adultery); Zina-bil-jabr (rape), kidnapping, abducting or inducing a woman to have illicit sex or compelling her to marry against her will; enticement or detaining a woman with criminal intent; selling or buying a person for purposes of prostitution.
Under this Ordinance, for the first time in Pakistan’s history, fornication (non-marital sex) has become illegal and, along with adultery, is non-compoundable120, non-bailable and punishable by the maximum sentence of death. The offence of rape, which had previously been part of the Pakistan Penal Code, is now included in the Ordinance. Significantly, marital rape and statutory rape (previously defined as sex with or without consent of a girl under the age of 14) are no longer crimes.
A key element widely identified as leading to injustice against women is the inclusion of both Zina (adultery) and Zina-bil-jabr (rape) within the same category. In practice, this has led to many women who had been raped, to then be accused of Zina (adultery). An example of this is the Dr. Shazia’s case. An overview of decided cases reveals that it has become almost impossible for a woman to prove a case of Zina-bil-jabr (rape), since the evidence required for Hadd punishment is the eye-witness account of four adult, male, Muslims with good morals (Justice and Iqbal, 2006). It is unlikely that a man would choose to rape a woman before four such witnesses, or that these witnesses would not try to prevent the rape but would then testify against the rapist.
According to the Zina Ordinance, the definition of adulthood for women is the age of 16 or attainment of puberty (for men it is age 18 or attainment of puberty). This means that once a girl has reached puberty, however young she might be, she can be charged with engaging in illicit sex. Furthermore, since she is regarded as an adult after puberty, it is also not regarded as a crime for a husband to have sex with her as a child-wife.
118 The NCSW was established in 2000 to review all laws and policies affecting women and to make recommendations to eliminate discrimination. The NCSW Special Committee that reviewed the Hudood ordinances included ex-judges of the Supreme Court, High Courts and Federal Shariat Court, religious scholars, representatives of the religious minorities, lawyers and the Chairman of the Council of Islamic Ideology.
119 See Human Rights Watch, Section VI. The State Response to Violence Against Women at: http://www.hrw.org/reports/1999/
pakistan/Pakhtml-06.htm, accessed 17/11/07.
120 A non-compoundable offence is one which the police or government may continue to investigate and prosecute even if the
original complainant withdraws his or her statement implicating the accused.In this context, women attempting to seek justice for sexual violence are thus in an impossible situation in that if they report a rape they are unable to produce the required number of witnesses. They then risk being accused of Zina because their testimony itself acknowledges that intercourse took place. Yet women who do not report a rape, and go on to become pregnant, risk being charged with Zina. There have been cases where courts have converted a rape conviction to one of fornication, on the grounds that the woman had no visible signs of injury and hence was deemed to be a willing party121. While the courts have generally required rape charges to be proven beyond reasonable doubt, they would often accept a woman’s failure to prove an allegation of rape as prima facie evidence of her participation in illicit consensual sex. However more recently, a number of courts have explicitly stated that this should not be the case122.
4.5.1.2 Zina (adultery) – a crime against the state
The Hudood Laws have made a sexual relationship outside marriage a crime against the state. Hence a woman attending court after registering a case of rape, may be punished by the court for Zina, should rape not be proven. It has been highlighted that whilst adultery has been made a public matter, the murder of women may be treated as a private matter, since a murderer can escape punishment by being ‘forgiven’ by a woman’s family and/or paying them compensation123. It would appear that controlling women, and particularly their sexuality, is more of a state priority than preventing their murder.
Under the Hudood Ordinances, at least until the Amendments in December 2006, anyone could go to the police with a complaint against anybody else. There is widespread agreement, that the making of false allegations under the Zina Ordinance has been used to victimise women perceived to be defying the norms of society simply by exercising their legal or human rights. Women fleeing domestic violence are particularly vulnerable. Most cases are registered by parents whose daughters have married someone of their own choosing, or by former husbands on the remarriage of their previous wives. This view is supported by Khan who notes
“the women incarcerated under Zina-related charges are not there because of sex crimes but
because their families or former husbands used the Zina laws to jail the women when they went
against their families’ wishes.” (Khan, 2003, p.77).
Khan also draws attention to the class, as well as the gendered dynamics of the Hudood Ordinance. Since it is generally applied to poor working class women, Khan links this to the increasing emphasis in Pakistani society on women’s sexual purity at a time of demoralisation and disaffection with national political accountability –
“These (Hudood) Ordinances led to an increase in injustice against women and, in fact, became an
instrument of oppression against women”124.
Since the commission of Zina is a non-bail-able offence, women implicated in such cases are not allowed bail by the lower courts. If a woman succeeds in getting bail from the High Court, only male relatives can give a surety bond for her release. Clearly, not only does this consolidate male power over women, also if her male relatives have been involved in getting her arrested in a false case, it is unlikely that they will facilitate her release.
This persistent misuse and injustice led the Federal Shariat Court to state:
“We are constrained to make observations that such reckless allegations are being brought so
frequently that something should be done to stop this unhealthy practice. The prosecution agencies
before putting people on trial for offences of Zina on flimsy allegations should be mindful of
injunctions of the Holy Quar’an and the message conveyed through the decisions from the early
period of pious Caliphs” (S.G.W.R.C, 2004, p.4).
121 See Human Rights Watch, Section VI. The State Response to Violence Against Women at: http://www.hrw.org/reports/1999/
pakistan/Pakhtml-06.htm, accessed 17/11/07.
122 See Human Rights Watch, Section VI. The State Response to Violence Against Women at: http://www.hrw.org/reports/1999/
pakistan/Pakhtml-06.htm, accessed 17/11/07.123 Under the Qisas (retribution) and Diyat (compensation) Ordinance, crimes of ‘honour’ can be pardoned by relatives of the
victim and monetary compensation for female victims is assessed at half the rate of male victims.
124 National Commission on the Status of Women (NCSW), Report on the Hudood Ordinances 1979, 2003 can be accessed at:
http://www.wluml.org/english/newsfulltxt.shtml?cmd%5B157%5D=x-157-3260, last accessed 19/11/07.Ironically this concern was not based on the injustices to women but was actually about not bringing Sharia law into disrepute.
4.5.1.3 Action on false accusations of Zina (Qazf)
“The argument that every law can be misused may be correct to some extent. But, thus stated, it addresses the wrong question. The relevant test is not whether a piece of legislation can ever be misused but rather whether it is worth enacting at all given the potential for its abuse and the results which its enforcement would produce. This Commission is strongly of the opinion that the Zina Ordinance fails this test. Abundant data testifies that the result of this law has been the victimisation rather than the protection of people, and that the law has had a particularly adverse effect on the least privileged members of society.”125
The law of Qazf (bearing false witness) provides that a person can be punished for making false allegations of Zina. In practice, despite a 95% acquittal rate in Zina cases, with all the potential for the bearing of false witness, prosecution for Qazf is less than 1% of the number of Zina cases (S.G.W.R.C, 2004). Few women have the resources to institute Qazf proceedings and its use is limited since a husband cannot be punished on allegations of Qazf.
4.5.1.4 Implications for non-Muslims
The testimony of non-Muslims is regarded as acceptable in the prosecution of non-Muslims only, but not in the prosecution of Muslim men in cases where Hadd can be imposed. The testimony of women in Hadd cases is unacceptable. Hence, a Muslim man who rapes a Muslim woman in the presence of other Muslim women, or who rapes a Christian woman in the presence of male or female Christians cannot be given Hadd punishment based on the witnesses’ testimony. (see sec. 4.5.5)
4.5.1.5 Implications of the hudood ordinances for women from poor working class backgrounds
It is largely poor women, unaware of their legal rights and with no one to advocate on their behalf, who have suffered most under the Zina Ordinance. As Khan has pointed out:
“Zina laws are unevenly exercised, and the most vulnerable members of society – impoverished and illiterate women – are the most affected” (Khan, 2003, p.77).
Similarly, one of our participants, a resident at a women’s shelter in Lahore (2006), poignantly noted:
“We are in the 21st century but in our society, a woman is still destined to be stoned to death. It is said that the world has become a global village, I am unable to understand the global village’.
While conducting fieldwork in Pakistan, press coverage of campaigns against the Hudood Ordinance also paid considerable attention to the women imprisoned, often without being convicted, for Hudood offences. These women often faced long delays in cases being heard and were in custody for unacceptably long periods of time126. The National Commission on the Status of Women identified that ‘80% of the women languishing in our jails are there as a result of the ambiguous legislation of the Hudood Ordinance127.’
4.5.1.6 Wider effects on all Pakistani women
The operation of the Hudood Ordinances not only means that hundreds of women are wrongly held in jail, and that women who have been raped have little recourse to justice, but also that the ever-present threat of these Ordinance acts as a powerful means of control over women. Cases reported in the press and by Human Rights and women’s organisations highlighted the day-to-day impact on women’s lives:
Our fieldwork generated first hand accounts of such issues. The director of a Peshawar NGO recalled:
“There was a woman who married out of choice. Her family said that she had run away with a boy, did an FIR [First Information Report, discussed in Chapter 5] against her and she was put in jail. She
125 Pakistan: COI Report, Home Office, London, 1997 p.70.
126 Pakistan’s Chief Justice Iftikhar Muhammed Chaudhry directed courts to dispose of all Hudood cases within 90 days following a finding by a Commission that he chaired that trials of women charged with Zina offences had been ‘inordinately delayed’. ( CJ
wants early disposal of cases; Daily Times Islamabad, 18/07/06).
127 National Commission on the Status of Women (NCSW), Report on the Hudood Ordinances 1979, 2003. was helped to do a case, but when she came out, where would she go? She came out and the
family murdered her.”The director of a well known nationally based NGO, in his interview, reported another example arising from their organisation’s work:
“In Multan, a woman took refuge in her sister’s house after escaping from her husband’s torture and filed a suit for dissolution of marriage. The husband registered a report (FIR)on the basis that this woman was committing Zina with her sister’s husband. He used his influence with the police in order to fabricate a charge of Zina. As a consequence his wife and her brother-in-law were both arrested. The arrested woman’s sister and other relatives protested in the police station that it was a false case, but the police did not release them. At last they were released on bail under my orders after spending two weeks in jail.”
Alongside substantial evidence that the Hudood Ordinances were being used as a means of controlling and victimising women, feedback from women’s rights activists highlighted the extent to which these Ordinances hamper the efforts of organisations and individuals to support women seeking protection and justice. The coordinator of a very well known women’s NGO in Islamabad discussed in her interview how she herself was charged:
“I was booked under Hudood laws for abetting a woman to commit adultery when I offered support to her to get a divorce, even though a Judge had allowed her to escape from his court and she came to our shelter. It took 3 years to fight this case. I was terrified as the sentence would have been 30 years. This was one reason why I had to close the shelter as I was facing threats at least 10 times a day. Instead of getting protection I was facing all the problems.”
4.5.1.7 Progress towards amendments/repeal
As a result of extensive campaigning a Law Reforms Ordinance 2006, introduced by President Musharraf in July 2006, amended the Code of Criminal Procedure allowing the courts the power to grant bail to all women detained on charges, other than for terrorism, murder and financial corruption. Amendments were also made to section 497 of the Pakistan Penal Code that makes all offences committed by women bail-able, with the exception of special cases.
It was estimated that about 1300 women of the 6500 in jail would benefit. Most of these were detained under the Hudood Ordinances. The Minister for Women’s Development and Youth Affairs, Sumaira Malik, stated: ‘All women incarcerated because of controversial and discriminatory laws will now be legally empowered with this legislation’ and added that ‘Any legislation which infringes upon the rights of women should be repealed128.’ It was unclear whether the Ordinance applied to jails in the Provincial Administered Tribal Areas (PATA) of NWFP129.
Concerns were raised that many women would be disqualified from release, as they needed to provide a financial surety and be accompanied by a male family member. The release of women in the period after the Bail Ordinance was reported extensively in the Pakistani press, which highlighted the widespread concerns about where they would go, and the extent to which they would be accepted back into Pakistani society. Whilst government ministers stated that women would be given accommodation and support within shelters, the findings from the present study suggest current resources for this are minimal.
4.5.1.8 Suggested amendments to the Hudood Ordinances
In response to intense pressure from both within the country and outside, Pakistan’s National Assembly proposed changes to the Hudood Laws in August 2006 and aimed to seek approval through Parliament for these. Amendments drafted by the Council of Islamic Ideology (CII) included a proposal to remove the crime of rape from the Hudood Ordinances and incorporate it back into the Pakistan Penal Code (PPC). Human Rights Watch deemed the proposed changes ‘grossly inadequate’130. A Bill
128 Legal Reforms Ordinance 2006 - Law useless if women can’t pay surety: jurist and landmark law brings relief to jailed women, The News, Islamabad, 09/07/06.
129 The News, ibid.
130 Brad Adams, Asia Director of Human Rights Watch. HRW website can be accessed at: http://hrw.org/english/
docs/2006/09/06/pakist14124.htm.proposing the changes was deferred from going before Parliament when the Muttahida Majli-i-Amal (MMA), which is a 6-party alliance of religious groups) threatened to withdraw from the National Assembly and Provincial governments, if the government continued with the Bill.
The MMA called for the reconstitution of the CII to include ‘Muslim scholars belonging to all schools of thought’131 and launched a countrywide campaign to protect the Hudood Ordinance132, saying that the Bill was contrary to Islam for seeking to change punishments for Zina (rape and adultery) and Qazf (false allegation of Zina). They criticised opponents of Hudood as being secular elements working to a foreign agenda. The MMA deputy parliamentary leader Hafiz Hussain Ahmed described the Bill as a ‘present’ President wanted to take to the United States133.
Those calling for repeal argued that the Ordinance is actually contrary to Islamic teachings and the Constitution. They also argued that the government was amending the laws in order to create the impression globally of promoting women’s equality, without a genuine intention of doing so134. The arguments about amending the Hudood Ordinances reflect a wider debate in Pakistan between ‘liberals’ and ‘traditionalists’ (the latter being those who regard anyone suggesting such changes as being an agent of the West and of the agenda imposed by the United States post 9/11).
The Pakistan government has delayed progressing amendments to the Ordinances, stating that it seeks to reach a consensus. Although a large range of Civil Society organisations, prominent jurists and government Commissions demand repeal, the government and CII and other influential voices, including the MMA, propose reform that at most, simply countenances changes to implementation.
The Women’s Protection Act was introduced on 1st December 2006. In this report we focus only on amendments related to Zina, Zina-bil-jabar (rape) Qazf and the enforcement of Hadd. The amendments still include the Hadd punishments to all offences including rape, adultery, theft, wrongful accusation and robbery. Rape has been moved from the Hudood Ordinance and moved back into the Pakistan Penal Code. This means that the condition of providing four male witnesses is no longer required in the case of rape. In the case of Zina the tazir punishment could also be given.

In terms of cases of ‘repentance’, this has been given legal validity and the person will not be liable to a Hadd punishment. The laws concerning Zina and Qazf will be combined as one ordinance. Section 17 of the Zina Ordinance, concerning the mode of execution of the punishment of stoning to death, would be amended to whipping and it includes suggestions of the materials of which the whip should be made.
The Act will delete Section 10 of the Zina Ordinance, so that a person accusing another of Zina without proof, would automatically be charged with Qazf.
These amendments have been introduced because of strong opposition from the religious extremists. They have not met the demands of the human rights and women’s activists who have demanded the complete repeal of the Hudood ordinances.
It will be some time before anyone knows to what extent these amendments will protect the civil liberties of women.
4.5.2 Family law: marriage, divorce, child custody, maintenance and inheritance.
Some key features of Family Law in Pakistan need to be outlined in order to understand the position of women.
4.5.2.1 Marriage
The Muslim Family Law Ordinance 1961 introduced compulsory registration of all marriages and divorces and standardised the Nikah nama (marriage certificate).
4.5.2.2 Divorce
A man can divorce his wife by pronouncing talaq (Divorce) three times. There are variations between the different Muslim sects as to the method of pronouncing talaq. The husband has to submit a
131 Clerics say no to Hudood changes, demand new CII, Daily Times, 07/07/06.
132 MMA will defend Hudood Ordinance, Daily Times, 14/07/06.
133 MMA will defend Hudood Ordinance, Daily Times, 14/07/06
134 MMA will defend Hudood Ordinance, Daily Times, 14/07/06notice to the chairman of the arbitration council. If no reconciliation takes place within 90 days, the divorce becomes final. Women do not have a similar right and have to apply to the court for a suit for dissolution of marriage135.
Talaq-e-tafwiz
This defined as ‘the delegated right of divorce’ and is permission given by the husband to his wife to divorce him. This right is stated in column 18 of the Nikah Nama, but it is often struck out because families consider it to be a bad omen to discuss the possibility of divorce at the time of marriage. Permission can be given by the husband subsequent to the marriage ceremony, but rarely is.
Khula
Where permission has not been granted by the husband, his wife can still apply for divorce. She can apply for Khula on the basis that she has irreconcilable differences with her husband and can no longer live with him. The wife has to forego her Huq Mehar (dower) and return benefits she has received from her husband at the time of marriage. Under this procedure a woman has no entitlement to any monetary or other benefits, if she divorces her husband. (The practicability of return of the dower may be a further barrier to her instituting Khula proceedings). The dissolution of the marriage does not become effective until after a ninety-day period.
4.5.2.3 Maintenance
It is considered to be the legal duty of the husband to maintain his wife. If during the marriage, the husband does not maintain his wife properly, she can complain to the chairman of her relevant union council/committee. The chairman can order a decree for the past and future maintenance of the wife. If the husband still fails to pay maintenance, the wife can file a case in court for recovery of the maintenance.
A divorced woman can also file for the recovery of her past maintenance allowance in court only for the period of ‘iddat’136, which is three months and begins from the date the divorce becomes effective. The limitation for filing a maintenance case is six years after the dissolution of marriage.
In reality, given the fact that women are overrepresented in both the poverty and illiteracy statistics, they often do not have the knowledge or support to ensure that men are accountable for their maintenance. Moreover, in rural areas, particularly where the Tribal Justice system operates, a breakdown in marriage is seen as failure on the part of the woman and her family, and is looked upon as dishonourable as it is considered the family honour is compromised. In reality for many women who are poor and illiterate, divorce is not a solution. For women experiencing domestic violence will consider flight as their only option.
In practice, there are problems enforcing maintenance orders due to:
Delays in obtaining decrees resulting in accrual of unpaid monies making it difficult for the
husband to pay and leading him to evade responsibilityThe husband not having regular income
Delay in service of Notice of Execution
Male bias in the legal system
The court having no power to stop the husband disposing of the property
Appeals taking a long time to be decided

Like the Constitution, the provisions around divorce and settlement remain on the statute book and often do not reflect the reality of women’s experiences. The key issue lies in their enforcement and the inability of the government to ensure the letter of the law is abided by.
At a focus group conducted with residents at a shelter in Lahore, there was a unanimous claim amongst the women that ‘there is no justice for women in Pakistan’.
135 This is known as ‘Khula’ – the dissolution of marriage by a woman 136 Iddat – Under Muslim Law a divorcee has to wait for a period of three months before re-marrying
4.5.2.4 Inheritance laws
Inheritance in Pakistan is governed by Islamic Shariah as codified in the MFLO, 1961 and the West Pakistan Muslim Personal Law (Shariat) Application Act (V 62) that consolidated and amended the various Muslim Laws. Inheritance laws for non Muslims are considered under their own personal laws, relating to their religion.
In Pakistan women are often manipulated out of their inheritance because they are made to forfeit their share in favour of a brother or son. Several of the women we interviewed for this study claimed they were unable to pursue their inheritance in court, because of threats of murder from family members.
4.5.2.5 Child/custody issues
Pakistani law considers the welfare of the child to be a guiding principle in deciding custody and guardianship issues. Religious laws relating to custody and guardianship do not overrule the welfare principle, but it is assumed that they play an important part in the courts decision making.
A minor is anyone under 18. A court which has assumed guardianship of a minor will terminate the arrangement when the minor reaches 21.
There is an assumption in Islamic law that a Sunni girl remains in her mother’s custody until puberty (presumed age15) or even until marriage. For a Sunni male child, the presumption is that he stays with his mother until aged seven. A Shia boy is presumed to be in his mother’s custody until aged two and a girl until seven. These are only presumptions and are subject to the welfare of the child. The principle will be applied only if the court considers that the welfare of the child will be served equally by either parent.
The guardianship of a minor always belongs to the father (unless contested). This means in practice, the father is obliged to pay for their child’s expenses and in return, has the right to decide on the child’s education and other aspects of his/her upbringing. As a consequence, both custodial and non custodial mothers do not have an equal say in bringing up their children. Thus if a mother lives abroad, the courts will be reluctant to allow her to take the children with her, if this means the father cannot exercise control and supervision. The same principle does not apply to a father who lives abroad.
This has significance for women with children fleeing domestic violence as the father’s guardianship role can impede the ability to find a safe place to live. It is not uncommon for the guardianship laws to be used not only to prevent women from flight, but also as a tool to trace women who are in flight.
4.5.2.6 Laws applicable to christians
Custody and guardianship are determined in accordance with the Guardian and Wards Act taking into account the Personal Laws of the Minor with welfare of the minor a significant factor.
The father is automatically granted guardianship of a child’s property. In the absence of the father, the mother has to apply for a guardianship certificate.
4.5.3 Swara
As already noted, Swara is a custom widely followed to end blood feuds amongst the different tribes. ‘Swara’, known as ‘blood money’, is the giving of young girls, who often have no choice in the matter, as compensation for ‘murder’ or ‘honour’. If the family of the girl agrees to pay money, called diyat, the handing over of the girl can be avoided. Swara is the term used in NWFP, but in the Punjab it is known as Vani.
Girls are handed over as commodities without any consideration for their welfare. Their wellbeing is sacrificed, whilst perpetrators of the crime escape punishment.
Ali (2001) describes the situation graphically as below:
“The reality of woman as a piece of property, a commodity, is reflected in the ways in which society
continues to dispose of her body. She can be offered as compensation for damage to life and
property. Thus she can be given as khoon-baha or blood money to compensate for murder….. The
custom of watta satta is yet another marriage transaction in which a man can acquire a wife by
offering a woman that belongs to him – a daughter or a sister in exchange. Such an exchange can also link the fate of one woman to the fate of the other; thus if one is divorced or killed, the other is likely to suffer the same fate in retaliation.” (Ali, 2001, p.22)
Swara is used in the hope of establishing peace or resolving disputes between aggrieved and aggressor. In cases where young girls are given in marriage, it is assumed the hostility between the two parties will end. If it does not, it means that the young girl will have to suffer for the rest of her life.
The UN Convention on the Rights of the Children (1989) (CRC), article 2 (2) states:
‘…parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians or family members….”
The Jirgas rely on these customary practices as an acceptable method of ending feuds. More often than not, the family is too poor to pay compensation, and therefore have no option but to hand over their daughter.
This practice reinforces the view that women are treated as commodities in these areas.
“The father of Amna Niazi recently challenged the decision taken by the Jirga in 1996 regarding his daughter now aged 22, her two sisters and two cousins. The children were aged between six and thirteen. Amna’s uncle had shot a man, and the Jirga had ordered that the five girls be handed over as ‘Vani’. When the father refused to comply, the Jirga ordered that they be abducted, raped or killed. The father has since paid the blood money and refused to hand over his daughters.”137
It is difficult to determine how many girls have been ‘given away’ as a result of this practice, as statistics are not available to quantify the extent of the abuse. Cases are only exposed when they are exposed to the public eye. It is unlikely that the majority of the cases from rural areas ever go to court, as decisions taken by the Jirgas are regarded locally as an acceptable method of resolving disputes.
4.5.4 Honour killing
“The government of Pakistan vigorously condemns the practice of so-called honour killings. Such acts do not find a place in our religion or law. Killing in the name of honour is murder and will be treated as such.”138
‘Honour Killing’ is a term used when a woman is accused of ‘dishonouring’ the family by having allegedly committed an immoral, sexual or other inappropriate act.
Killings in the name of ‘honour’ are considered a legitimate defence to murder. The following are examples of conduct which are considered by families as inappropriate:
A woman committing adultery or suspected of committing adultery
A woman exercising her right to marry a man of her choice
A woman seeking divorce without the consent of her family
A woman seen speaking to a man who is not a member of her family
A woman who has been raped but who has either not been believed or whose family consider she was to blame for the assault.
A woman’s family believe they have been ‘dishonoured’ in some way or form.

Under tribal justice law, ‘Honour Killing’ is looked on as a legitimate means to avenge the violation of honour.
The killing of a woman is ordered and carried out predominantly by male members of a family. It is intended to erase the shame of and restore honour to that family. According to the custom of honour, the husband, father and possibly brother and son are deemed sufficiently closely related to be
137 See www.boloji.com/wfs5/wfs649.htm Samar Minallah – Anthropologist and Executive Director of the NGO Ethnomedia and
Development, 30/7/06 quoted by arrangement with women’s feature service
138 General Parvez Musharaf, President of Pakistan April 2000, accessed at: http://web.amnesty.org/library/Index/
engASA330102002?OpenDocument, last accessed, 15/11/07.aggrieved by the act of dishonour. Other relatives and non relatives would not have justification to kill, unless authorised to do so by the Jirga. Commentators agree that honour killing is pre-Islamic and not supported by Islam (Patel, 2003).
In the interior Sindh, honour killings are referred to as ‘Karo Kari’ (Karo means black man, Kari means black woman). In the Punjab they are called ‘Kala Kali’, In the NWFP ‘Tor Tora’ and in Balochistan ‘Siyah Kari’. They all refer to the man and woman as ‘Black’, equating this with being bad and evil.
4.5.4.1 Legal response to honour killings
Under state law Honour Killing is a crime, but in the vast majority of cases the fact that the murder is purportedly carried out in the name of honour, serves to mitigate the severity of the punishment. The perpetrator is either acquitted or receives a reduced sentence.
The Pakistan Penal Code (PPC) used to provide that the killing of a person due to ‘grave and sudden provocation’ was culpable homicide but not murder as such. Honour Killings come into this category.
In 1991 the Criminal Law (Fourth Amendment) Qisas (life for a life) and Diyat (compensation) Ordinance amended the PPC by abolishing provisions relating to the defence of grave and sudden provocation. Intentionally causing death (Qatl-i-Amd) was to be punished by:
(1) Qisas (punishment causing similar hurt or death – retaliation)
(2) Tazir (death or imprisonment for life) or
(3) Prison for up to 25 years.

However Qatl-i-amd is not liable to qisas where the wali (heir) of the victim is the child or grandchild of the offender. Thus where a husband murders his wife, as their child is the wali, the offender would not therefore be liable to the death penalty.
An adult male wali has the right to waive qisas. Where there is more than one wali, then any one of them may waive the right to qisas. In cases where the offender cannot be punished by death as qisas, the offender is liable to diyat. Where diyat has been agreed and paid, the courts still retain the power to punish the offender by sentencing him to up to 14 years imprisonment on tazir, but this rarely happens where the parties have settled the matter.
An adult wali also has the right of badal-i-sulh (a mutually agreed compensation in cash or kind). This can include the acceptance of an offer of a female in marriage.
The above-mentioned changes to the PPC have made it possible to compound (forbear from prosecuting) the offence of murder and have exempted some murderers from the death penalty. These changes have in effect made incidences of honour killings even more prevalent.
“To date there is not a single case of death penalty being awarded in cases of Honour Killing and
several cases go unreported, are not prosecuted or dismissed for lack of evidence” (Patel, 2003,
p.152).
At a conference of police officials in 2001, it was recommended that the Qisas and Diyat Ordinance should be reviewed to prevent compounding of offences in the cases of Honour Killings.
“Post mortem exemption must not be granted in the Honour Killing cases. Investigation officers
must be given ‘in service’ training so as to distinguish between pre-planned murders and Honour
Killings”139
Although the exemption of “grave and sudden provocation” was removed from S302 of the PPC, the defence has subsequently been allowed in a number of court judgements e.g. Abdul Nabi v the state [1997] SD 115, p.169-70)
Muhammad Faisal v the State 1997 MLD 2527, pg 171-172.
Prima Facie, it appears that the deed was done by Muhammad Faisal , petitioner, in a fit of rage when he lost control over his senses under sudden and grave provocation.
“The question is whether the plea of grave and sudden provocation is still available or not. The
139 Review of Qisas Ordinance Suggested’, Dawn, Peshawar newspaper, 25/5/2001.
answer is to be found in the Quranic injunctions contained in verse 34 of Surah Nisa ordaining that ‘Men are in charge of women’. A husband, father, and the brothers are supposed to guard the life and honour of the females, who are inmates of the house and when anyone of them finds a trespasser committing Zina with a woman of his family, then murder by him whilst deprived of self control will not amount to qatl-I-amd liable to qisas because the deceased in such a case is not a masoom-ud-dam (innocent).” (Patel, 2003, p.171)
Statistics recorded by the Police Gender Crime Cell in Karachi for the province of Sindh show that from 1993-2004 a total of 432 cases were registered.
Unpublished figures from Sindh police show the following for the period 1980-2000.
“1,998 women were reported killed. Of these, 1099 wives were killed by their husbands, 56 daughters were killed by their fathers, 189 sisters were killed by their brothers, thirty mothers were killed by their sons, 612 women were killed by distant relatives, and twelve women were killed by non relatives” Patel further added “the number of women victims has doubled from 1980-2000.”
(Patel, 2003, p.173)
“This increase of cases of Karo Kari [Honour Killing] points to the mounting discrimination against women, the growing double standards for assigning blame and punishment on women and the difficulty for women to flee to avoid being killed.” (Patel, 2003, p.173)
Honour Killings do not get pursued because:
The state as prosecutor does not pursue investigations and prosecutions diligently.
There is often little co-operation from families of the victim.
The family rarely considers Honour Killing to be a crime.

As a consequence of this, not all incidences of Honour Killing are reported to the police. Another factor of course is that the perpetrator is often the husband, father or brother and they are unlikely to be reported by their own family.
Perhaps the starkest example of how the laws and customs discriminate against women is in the burial rites, following the killing of a woman perceived or alleged to have committed an act of dishonour, and her co-transgressor. The funeral prayer is not allowed to be recited for the woman and she is buried in an unmarked grave, whilst the man is buried in the family graveyard and prayer is allowed for him.
Shah (2002) also makes the point that men have greater mobility and resources, which allows them to escape the revenge of family or community by physically running away. Women are rarely able to exercise that option and when they do, they are pursued more arduously than men by male relatives who are determined to avenge their sense of ‘honour’ even if they have to cross international borders to do so.
4.5.4.2 Case study: Samia Sarwar – a question of justice?
The following example documented widely in the press is, unfortunately, indicative of what is discussed above.
Samia was from Peshawar married with two children. She sought refuge in a shelter in Lahore after a decade of violence from her husband. She had instructed her lawyer to initiate divorce proceedings when she was tracked down and murdered in the presence of her lawyer.
She was 29 years old when she was shot dead in her lawyer’s office in Lahore on 6th April 1999. Her parents had planned her murder because they alleged she had dishonoured them by seeking a divorce. Her mother requested a meeting with her at the lawyer’s office. She was accompanied in the office by Samia’s uncle and their driver. The father, also an accomplice, was waiting in the car outside the office. As Samia stood up to meet her mother the driver shot her at point blank. Although the perpetrators could easily be identified no one was arrested. ‘Tradition decrees only one method to restore honour – to kill the offending woman.’140
140 Amnesty International News, Sept 1999, Vol 29, no.5.
This case raises the key question of how safe women really are when relocating from one region to another in Pakistan, and what safety mechanisms are available to those fleeing violence.
In the Samia Sarwar case, a woman was murdered in the offices of her lawyer, a place which offers women protection, legal representation and support. Moreover, instead of the perpetrators being punished, several religious organisations supported the father and ‘declared her killing was in line with tribal laws’. They also demanded that the two human rights lawyers, be punished in accordance with ‘tribal and Islamic law’ for ‘misleading women in Pakistan and contributing to the country’s bad image abroad.’ The ulema141 issued fatwas142 (religious edicts) against the two women declaring them Kafirs143 who deserved to be killed’ (Ali, 2001, p.33).
In this case, all the right steps were taken to pursue some justice for her – challenging the domestic violence and seeking legal protection and support from internationally acknowledged services. A (FIR) First Information Report (see section 5.5) was registered with the Police against her parents and the uncle. Arrest warrants for them were issued, but no arrests took place. The accused obtained bail and they filed a counter claim against the lawyers for abducting and murdering their daughter.
It is perhaps ironic to note that the police in this case are recorded as taking no action to protect the lawyers or the victims of these injustices. On the contrary, they are instead pursuing them as the ‘criminals’. Furthermore, the perpetrators of this crime have never been punished. This case raises the question of the role played by the police and the judiciary in prosecuting and highlights the pervasive character of gender discrimination that is prevalent at every level.
4.6 Ethnocentrism, racism and discrimination
We will examine below how one particular minority group of women experience the different forms of persecution and discrimination in a country where the Muslims are in the majority.
4.6.1 Non Muslim women
As we have seen, non Muslim women are not just discriminated against in law but are also victims of religious ethnocentrism, racism and discrimination by the wider society. We focus specifically on the position of Christian women based on interviews conducted as part of the study.
During the fieldwork visits and interviews conducted with Christian NGOs, providers and service users expressed concern at the pervasive discrimination meted out by the state and the lack of intervention to protect them when they, or their communities, were faced with attack or siege after false allegations of blasphemy were made against them. The perpetrators of these allegations would usually be seeking revenge or the punishment of the individuals alleged to have committed blasphemy.
These women victims/survivors spoke about the discrimination by police in the implementation of registration of this kind of crime and the lack of police acknowledgement and protection for women who had been victims of serious sexual assaults. Furthermore, the women interviewed said they had encountered direct and indirect racism in the workplace or when seeking work, and were persecuted because of their Christian beliefs. The women were mostly employed as domestic servants in urban areas, and bonded labourers and brick kiln workers in the rural areas. They reported that they were often victims of physical and sexual violence and were paid poor wages. The Christian women interviewed claimed that minority communities are treated as second-class citizens. Although the Constitution of Pakistan decrees freedom from religious discrimination such practices prevail.
4.6.2 Linguistic barriers
In Pakistan, service providers do not, as a common practice use interpreters for women who are unable to communicate in the national or regional languages. Communication between the worker(s) and the women is often severely limited because of the language barrier. Women service users are, therefore, unable to fully access services including treatment from counsellors or psychologists. This is an issue
141 Ulema – religious scholar 142 Fatwas – religious edicts 143 Kafir – infidels
particularly for women who have been trafficked and come from Bangladesh, Sri Lanka or Burma. The women who end up in shelters are usually isolated and, further, unable to communicate their experiences of physical or sexual violence.
4.6.3 State response
The Christian communities consulted as part of the study described the state’s failure to respond to their reports of persecution based on their religion, including forced conversions. The government has, allegedly, failed to protect and introduce non discriminatory legislation or make any real changes to improve the rights of minority groups. The Hudood ordinance and blasphemy laws are examples of legislation which are discriminatory and used against minority groups (as well as women).Moreover, as State of Human Rights (2006) noted, although there are laws against bonded labour and trafficking of humans, these laws are hardly ever implemented and vulnerable sections of the communities are exposed to exploitation and persecution.
Religious intolerance and discrimination has continued to create wider divisions and hatred between the different communities. The Human Rights Monitor in its 2006 report on the religious minorities in Pakistan, described how the ‘Zakat’144 fund was used to set up dispensaries and vocational training institutes. Non-Muslims who tried to access these government run institutions were denied the facilities. A complaint was made to the government who referred the matter to the Council of Islamic Ideology (CII) to give an opinion of whether the Zakat funds could be used for non-Muslims. One of the committee members of CII shared his personal view on this matter and stated
“It is not possible for the government to collect money from Muslims and spend it on the welfare of the minorities because it would not only be un-Islamic but would also be unjust to the poor Muslims of the state.”145
This illustrates how state reinforcement of prevailing discrimination impacts upon the social and economic status of the Christian minority. This minority group is, thus, more vulnerable to human rights violations and the government colludes in the discriminatory practices against them.
4.6.4 Trafficking of women and children
“Pakistan faced a significant internal trafficking problem reportedly involving thousands of women and children trafficked from rural areas and sold to settle debts and disputes or forced into sexual exploitation, forced labour or marriage. The sale of women in open markets, mainly in the NWFP, continued.”146
Many sources indicate that Internal trafficking of women and children, particularly from rural areas in Pakistan, is an increasing problem. This trend was exacerbated by the Earthquake in October 2005 when displaced single women and children were targeted for trafficking because of their vulnerability and levels of poverty. In addition, Pakistan is dealing with increasing numbers of women trafficked from abroad. The United Nations Population Fund (UNPFA) in its annual report 2006 stated that Pakistan was a major country of destination for trafficked women and children as well as a transit point into the Middle East where children are used as camel jockeys. The US State Department, in its Trafficking in Persons report 2006 states that women and children from Bangladesh, India, and Afghanistan are trafficked to Pakistan for sexual exploitation and involuntary confinement. The Lawyers for Human Rights and Legal Aid in their report on Trafficking in Women and Children stated:
“Over 200,000 Bangladeshi women are present in Pakistan and at least 2000 are languishing in jails and shelters all over the country.”147
144 Alms giving- Sunni Muslims are subject to a religious tax of 2.5% of their income
145 Daily Times, ‘CII deliberates whether Zakat funds can be spent on minorities’, June 28, 2006, accessed at: http://www.
dailytimes.com.pk/default.asp?page=story_28-6-2005_pg7_34, last accessed, 19/11/07.
146 Human Rights Commission Pakistan, State of Human Rights in 2006, at: http://www.hrcp-web.org/ar_anualreport-06/index.htm, last accessed 18/11/07.
147 For more information see Lawyers for Human Rights and Legal Aid, Trafficking in Women & Children, http://www.lhrla.com/
trafficking.html, last accessed 18/11/07.Women trafficked into Pakistan may have been initially persuaded to move from their countries of origin on the pretext of marriage or employment. The women in these situations did not have legal residency in the country and are at risk of being prosecuted under the Hudood ordinances. Some women interviewed for this study in both shelters and jails described how they managed to escape from “pimps.” In general, such women rely on the good will of individuals to provide financial assistance for their repatriation. For example, women from Bangladesh do not receive any assistance from their High Commission as it refuses to take responsibility for the women. Women in these situations arrive in the country without documentation and so are unable to leave and are faced with the prospect of spending long periods of stay in shelters or jails.
The picture that is emerging is that trafficked women and children may then be sold to settle debts, disputes or are forced into marriage. In some areas of the NWFP the sale of women in open markets still continues. A shelter resident at the focus groups in Karachi had this to say:
“Women are bought and sold through auction and exchanged for a small piece of land. Even a dog
is free in his life but women live worse lives than street dogs.”
They may be kidnapped and forced into prostitution or forced to work as domestic workers where their mobility is controlled and are often victims of physical and sexual violence.
4.6.5 ’Camel jockeys’
Children from Pakistan are trafficked to Dubai (United Arab Emirates) and are used as camel jockeys. The children’s ages range between three and ten years. When in Dubai the children are typically mistreated and tortured. Some of the children have been abducted or come from poor families who believe that their children will have better lives abroad. The children are underfed to keep them light. During the study visit to the Ansar Burney Trust (Karachi) in 2005 workers there introduced the researcher to four young boys between the ages of three and six who had been rescued from Dubai. The researcher was told that the Trust had been doing extensive work in this area and had rescued thousands of children since this practice was first exposed in 1986. Although Pakistan has banned human trafficking the problem remains uncontrolled.148
4.6.6 Recent events in Pakistan
On the 3rd November 2007 General Pervaiz Musharraf, Chief of Army Staff and President of Pakistan imposed a state of emergency through out the country. He suspended the constitution and promulgated a Provisional Constitutional Order (PCO). The PCO has wider implications for Pakistan’s judiciary because it prohibits the courts from holding or issuing any decree against the President, the Prime Minister or other government officials. The President has accused the judiciary of interfering with ‘war against terror’ and ‘growing militancy’ which he claims was threatening the stability of the country.
The recent events have not only paralysed the judicial system but given rise to major confrontations between the police and demonstrators, with the police using force and tear gas to control the civil society and the judiciary, and many opposition activists arrested. A Supreme Court Lawyer was out of the country when emergency law was imposed but she has been issued with an arrest warrant. A UN Rapporteur has been placed under house arrest and fifty four other human rights activists were arrested although due to international pressure they have been released on bail. At the time of drafting this report, democratic and legal process is severely curtailed within Pakistan, and the timetable for the scheduled elections remains unspecified.
4.7 Summary
As demonstrated in this chapter political and legal systems in Pakistan, rather than supporting the principles embedded in the Constitution, serve instead the maintenance of laws and systems that work against the rights of women. Within this context, marginalised communities such as Christian and other non-Muslim minorities experience discrimination at different levels thus infringing their civil and
148 Human Rights Commission Pakistan, State of Human Rights in 2006, at: http://www.hrcp-web.org/ar_anualreport-06/index. htm, last accessed 18/11/07.
human rights. The different forms of violence used against women by family, society and institutions can be understood as a key manifestation of prevailing unequal power relationships between men and women. These relationships work to maintain a situation where women have little choice but to accept gender hierarchies in all social relations of production and reproduction.
In later chapters the position of women in Pakistan will be examined in relation to police reaction and response to reported violence against women. We will also examine how a First Information Report (FIR) is registered and the process of response adopted by the police and a description of the different types of shelters in Pakistan.
Jamila’s case
Jamila has five children. She cannot read or write. She and her eldest daughter (now an adult) had endured years of physical and sexual abuse, not just from her husband but also her husband’s extended family.
Jamila’s husband had moved to work in France. During a visit to Pakistan, he decided to take Jamila and the children to the UK. He never discussed with her why he was doing this and she had become too frightened over the years of enduring violence to go against his instructions or his wishes. Once in the UK he coerced Jamila to apply for asylum. He fabricated a story concerning a land dispute in Pakistan, which had led to him going into hiding somewhere in Pakistan and had led to Jamila and the children fleeing to the UK for their own safety. He stayed with the family to see what would happen to the asylum claim.
The Home Office rejected it. The court rejected Jamila’s appeal (which she lodged on instruction from her husband) on the basis that the family could have sought protection from the Pakistani authorities in a land dispute matter. Throughout the claim and appeal, Jamila’s husband continued his violence towards her and the children.
Soon after the appeal decision, the police arrested him following a violent incident against Jamila and the children. She and her children were placed in a women’s refuge. Soon after his arrest he was released. He has since vanished and his whereabouts are unknown.
The refuge workers supported Jamila and her children to access therapeutic help and to access further legal advice about their immigration status. It emerged through sessions with counsellors that Jamila and her adult daughter had been subjected to extensive abuse.
Jamila lodged a fresh asylum claim with her new representatives, based on the domestic violence she had experienced in Pakistan. She admitted that the first asylum claim was false, albeit one lodged under duress. Her new asylum claim did not record the sexual abuse her adult daughter had been subjected to in Pakistan. Furthermore, her representatives were charging privately for work done. A distant family member in the UK was meeting the costs.
The Home Office rejected the asylum claim as a ‘fresh claim’. They wrongly treated the application as a claim under the immigration rules on domestic violence. The Home Office’s actions wrongly prevented Jamila from appealing against the Home Office’s decision. The Home Office’s mistakes had to challenged by way of a judicial review.
In the meantime, Jamila had lodged a further asylum claim with expert evidence. Her claim was based on her husband’s family’s violence against her and her adult daughter.
The Home Office, recognising that they had made errors, offered to reconsider their decision. Out of the blue, the Home Office granted the family indefinite leave to remain. The Home Secretary can exercise discretion whenever s/he wants to. However, this case highlights the types of dangerous and life threatening errors the Home Office often makes. In Jamila’s case, because of their errors and their effort to rectify them by offering indefinite leave to remain, they avoided having to deal with all the other serious asylum issues in her case.