What is the state’s relationship with the girl-child?
There is actually no comprehensive and consistent definition by the State of who a ‘girl-child’ is
PHOTO: ONLINE
Main kya kahun ke jo mera tumhara rishta hai
Wo ashiqi ki zuban mein kahin bhi darj nahin
Likha gaya hai bauhat lutf-e-wasl-o-dard-e-firaq
Magar ye kaifiiyat apni raqam nahin hai kahin
Faiz Ahmed Faiz
In examining the state’s approach and attitude towards the ‘girl-child’ we must first ask the question who the ‘girl- child’ is in the eyes of the Pakistani State? In particular, how does the State recognise the important distinction between ‘a girl’ and ‘a woman’? The distinction is important because different rights and protections will apply whether it is an adult woman or a girl-child. As difficult as it is to believe, there is actually no comprehensive and consistent definition by the State of who a ‘girl-child’ is. Unfortunately, dangerous cultural and inaccurate religious shrouds have supported successive governments in their failure to address this lack of consistent definition. There are significant legal and social repercussions on generations of Pakistani girls that have flowed, and still flow, from this failure.
Child maid allegedly tortured by employer in Lahore
One would think that the Constitution would define who a ‘child’ is, which will in turn tell us who a ‘girl-child’ is? Article 25 of the Constitution offers protection from discrimination for both adults and children and provides that the State may make ‘special provisions for the protection of women and children.’ The Article does not, however, explicitly define who a ‘child’ is. The nearest we come to a definition is the recently inserted Article 25A, which provides that the State must provide free and compulsory education for all children between the ages of 5 to 16 years. It is implicit in Article 25A that a ‘child’ can not only be less than five years old, but a ‘child’ can also be older than 16 years, otherwise it makes no sense to have the upper and lower age limit.
While the Constitution does not explicitly define who a ‘child’ is, and by extension who a ‘girl-child’ is, some international conventions to which Pakistan is a signatory do provide definitions. The international conventions I have in mind are those that set out universal rights, as our Constitution does. These conventions are therefore comparable in nature and can help us flesh out the gaps in Article 25. One such convention is the UN Convention on the Rights of the Child (CRC). We can all be proud that Pakistan was the first Muslim country, and the fifth in the world, to ratify the UN Convention on the Rights of the Child, where a child is defined as any person below 18 years of age.
While CRC can help us support the argument that a ‘child’ under Article 25 is a person under 18 years, we can also look to other Acts to see whether or not they are consistent with this definition. Under the Contract Act of 1872, a contract is valid only when entered into at the age of majority, which is clearly defined as 18 years of age. Only at 18 can one enter into any form of contract, including with the State, such as applying for a national identity card or voting.
So far it appears to be reasonably clear as to who comes within the definition of a ‘child’. However, the 1929 Child Marriage Restraint Act puts a spanner in the works by defining a male child as “under 18 years of age” and female child as “under 16 years of age.” Under this Act we suddenly find there is a divergence in the protection offered to male as opposed to female children. A 16- year-old boy is protected from being a child groom, but a 16-old-girl is not given the same protection by the State. This distinction begs the question as to how this can be squared with Article 25(2) of the Constitution, which prohibits discrimination on the grounds of sex. This fundamental violation of the Constitution has been addressed, in neither case law nor any government policy. Further, this law contradicts international conventions and certain national laws.
In violation of the Constitution, the State has managed to recognise that the ‘girl-child’ is mentally able to marry, physically able to bear and nurture children and physiologically deal with the many cultural and societal burdens placed on a married woman. In other words, the State says to the ‘girl-child’ you are a child for all purposes — voting, driving and buying a SIM card — but for marriage you are ready and able. Apart from the fundamental legal contradiction, I do not believe I need to expand on the absurdity of this rationale.
What is perhaps the most disturbing aspect of the State’s inconsistent and discriminatory approach is the implicit acceptance that girls far younger than 16 years will get married off. Punjab, where amendments to the law call for stronger penalties against marriage of a girl-child before 16 years of age, faces major implementing difficulties. One of the biggest challenges is the unfortunate reality that most people still do not hold birth certificates. Therefore, a girl’s age is often determined by a subjective decision, namely, “she looks old enough to be 16.”
Girl repeatedly ‘gang-raped’ in Gujranwala
The question, therefore, arises as to when a ‘girl-child’s’ rights begin and when the protection of a child ends? In Pakistan, do overarching constitutional provisions, contradictory national laws, puberty, international covenants, or subjective and patriarchal social norms determine who a ‘girl-child’ is? There are no injunctions provided in Sharia law and therefore Fiqh, the science of ascertaining the precise meanings of Sharia, must be applied on the subject. And precisely because there is no clear injunction, Muslim countries around the world have varied laws on the subject, taking into consideration their own environment, including life expectancy, nutrition, population growth, violence against women and literacy levels when determining the marriageable age. In Turkey, the UAE, Bangladesh, Malaysia, Tunisia, Nigeria, Azerbaijan, the Maldives, to name a few Muslim countries, the marriageable age is 18 years for both sexes. But we do not even need to look to other shores. In 2014, Sindh’s lawmakers dealt with the disparity in the law between boys and girls and increased the marriageable age for girls to 18 years.
How a state defines its relationship with its citizen can reveal not only how the state views itself, but also reveals where in the ‘pecking order’ any particular category of its citizen fit in. For too long we have let discriminatory legal provisions, arbitrary social injunctions and a laissez-faire attitude determine a matter as important as who a Pakistani girl is and what the State’s responsibility is towards her wellbeing? A new government reliant on youth support has so far also been silent on who a girl is. Needless to say it is our obligation to demand of our State that this be resolved with utmost urgency. We owe this to the millions of Pakistan’s girls, and the many more to come.
Published in The Express Tribune, October 30th, 2018.
Wo ashiqi ki zuban mein kahin bhi darj nahin
Likha gaya hai bauhat lutf-e-wasl-o-dard-e-firaq
Magar ye kaifiiyat apni raqam nahin hai kahin
Faiz Ahmed Faiz
In examining the state’s approach and attitude towards the ‘girl-child’ we must first ask the question who the ‘girl- child’ is in the eyes of the Pakistani State? In particular, how does the State recognise the important distinction between ‘a girl’ and ‘a woman’? The distinction is important because different rights and protections will apply whether it is an adult woman or a girl-child. As difficult as it is to believe, there is actually no comprehensive and consistent definition by the State of who a ‘girl-child’ is. Unfortunately, dangerous cultural and inaccurate religious shrouds have supported successive governments in their failure to address this lack of consistent definition. There are significant legal and social repercussions on generations of Pakistani girls that have flowed, and still flow, from this failure.
Child maid allegedly tortured by employer in Lahore
One would think that the Constitution would define who a ‘child’ is, which will in turn tell us who a ‘girl-child’ is? Article 25 of the Constitution offers protection from discrimination for both adults and children and provides that the State may make ‘special provisions for the protection of women and children.’ The Article does not, however, explicitly define who a ‘child’ is. The nearest we come to a definition is the recently inserted Article 25A, which provides that the State must provide free and compulsory education for all children between the ages of 5 to 16 years. It is implicit in Article 25A that a ‘child’ can not only be less than five years old, but a ‘child’ can also be older than 16 years, otherwise it makes no sense to have the upper and lower age limit.
While the Constitution does not explicitly define who a ‘child’ is, and by extension who a ‘girl-child’ is, some international conventions to which Pakistan is a signatory do provide definitions. The international conventions I have in mind are those that set out universal rights, as our Constitution does. These conventions are therefore comparable in nature and can help us flesh out the gaps in Article 25. One such convention is the UN Convention on the Rights of the Child (CRC). We can all be proud that Pakistan was the first Muslim country, and the fifth in the world, to ratify the UN Convention on the Rights of the Child, where a child is defined as any person below 18 years of age.
While CRC can help us support the argument that a ‘child’ under Article 25 is a person under 18 years, we can also look to other Acts to see whether or not they are consistent with this definition. Under the Contract Act of 1872, a contract is valid only when entered into at the age of majority, which is clearly defined as 18 years of age. Only at 18 can one enter into any form of contract, including with the State, such as applying for a national identity card or voting.
So far it appears to be reasonably clear as to who comes within the definition of a ‘child’. However, the 1929 Child Marriage Restraint Act puts a spanner in the works by defining a male child as “under 18 years of age” and female child as “under 16 years of age.” Under this Act we suddenly find there is a divergence in the protection offered to male as opposed to female children. A 16- year-old boy is protected from being a child groom, but a 16-old-girl is not given the same protection by the State. This distinction begs the question as to how this can be squared with Article 25(2) of the Constitution, which prohibits discrimination on the grounds of sex. This fundamental violation of the Constitution has been addressed, in neither case law nor any government policy. Further, this law contradicts international conventions and certain national laws.
In violation of the Constitution, the State has managed to recognise that the ‘girl-child’ is mentally able to marry, physically able to bear and nurture children and physiologically deal with the many cultural and societal burdens placed on a married woman. In other words, the State says to the ‘girl-child’ you are a child for all purposes — voting, driving and buying a SIM card — but for marriage you are ready and able. Apart from the fundamental legal contradiction, I do not believe I need to expand on the absurdity of this rationale.
What is perhaps the most disturbing aspect of the State’s inconsistent and discriminatory approach is the implicit acceptance that girls far younger than 16 years will get married off. Punjab, where amendments to the law call for stronger penalties against marriage of a girl-child before 16 years of age, faces major implementing difficulties. One of the biggest challenges is the unfortunate reality that most people still do not hold birth certificates. Therefore, a girl’s age is often determined by a subjective decision, namely, “she looks old enough to be 16.”
Girl repeatedly ‘gang-raped’ in Gujranwala
The question, therefore, arises as to when a ‘girl-child’s’ rights begin and when the protection of a child ends? In Pakistan, do overarching constitutional provisions, contradictory national laws, puberty, international covenants, or subjective and patriarchal social norms determine who a ‘girl-child’ is? There are no injunctions provided in Sharia law and therefore Fiqh, the science of ascertaining the precise meanings of Sharia, must be applied on the subject. And precisely because there is no clear injunction, Muslim countries around the world have varied laws on the subject, taking into consideration their own environment, including life expectancy, nutrition, population growth, violence against women and literacy levels when determining the marriageable age. In Turkey, the UAE, Bangladesh, Malaysia, Tunisia, Nigeria, Azerbaijan, the Maldives, to name a few Muslim countries, the marriageable age is 18 years for both sexes. But we do not even need to look to other shores. In 2014, Sindh’s lawmakers dealt with the disparity in the law between boys and girls and increased the marriageable age for girls to 18 years.
How a state defines its relationship with its citizen can reveal not only how the state views itself, but also reveals where in the ‘pecking order’ any particular category of its citizen fit in. For too long we have let discriminatory legal provisions, arbitrary social injunctions and a laissez-faire attitude determine a matter as important as who a Pakistani girl is and what the State’s responsibility is towards her wellbeing? A new government reliant on youth support has so far also been silent on who a girl is. Needless to say it is our obligation to demand of our State that this be resolved with utmost urgency. We owe this to the millions of Pakistan’s girls, and the many more to come.
Published in The Express Tribune, October 30th, 2018.