Where Pakistan’s domestic violence law fails

ISLAMABAD:

Muhammad Zayan, 14-months old, sitting in his mother’s lap at a private shelter home in Rawalpindi, is continually trying to divert his mother’s attention as tears roll down her face whilst narrating her two-year long ordeal of violence perpetuated by her husband and in-laws. Although the child is not of the age to understand the sensitivity and complexity of the situation, Zayan’s activities during the interview clearly suggest that he is deeply perturbed by his mother’s tears.

Neelum, a resident of Rawalpindi, along with her child Zayan, is currently living at a private shelter home. Three weeks ago, Neelum and Zayan were shifted there due to a risk to their lives. Since then, Zayan has established a kind of closeness with other children of his age at the shelter home. “He usually enjoys playing with children He rarely demanded my special attention at home or even here at the shelter, but in the last few days, he has started behaving strangely,” said Neelum.

Psychologists are of the opinion that children get affected by the environment in which they are brought up, and it leaves a life-long impact on their psychological wellbeing and personality.

 

In Pakistan, Zayan is not the only child in this plight. Sadly, there are hundreds of thousands of children like him who are exposed to various types of violence and abuse. Sometimes, their traumas lead them to violence later in their lives. Rawalpindi Division SSP (Investigation) Ghazanfar Ali Shah says that a large majority of offenders of such type of violence and abuse are themselves victims of similar traumas.

According to Sahil, a non-profit organization working for child rights, as many as 2,960 major crimes against children were reported in 2020 in the four provinces, and Islamabad, Azad Jammu Kashmir, and Gilgit-Baltistan regions. On average, in Pakistan, eight children were abused every day in one form or the other; 51 percent of the victims are girls and 49 percent boys. The report states that 2020, compared to the previous year, saw a four percent increase in child abuse cases.

Psychologists say that children who witness domestic violence are at a serious risk to long-term physical and mental health problems. Children who witness violence between parents may be at a greater risk of being violent in their future relationships. Mental health experts say that young children who experience spousal violence are prone to unsavoury habits such as thumb-sucking, increased crying, and whining.

What will be the future of little Zayan, only God knows.

A two-year ordeal

According to Neelum, she was a victim of perpetual violence since her marriage to Irfan Hussain. Her husband started beating her just two weeks after their marriage, and after that, it become a routine affair. She was not even spared during her pregnancy, adding that it was a special blessing of the Almighty that she could survive her pregnancy. Violence didn’t end even after childbirth. It happened two weeks after her child's delivery, causing rupturing of stitches, leading to months-long complication and pain. Her husband has issued threats against her in case she fails to return to him. She said that he even lit a fire outside her parents’ home as a warning of his intentions.

Weak investigation system

A team from the Saddar Bairuni police station, after receiving a call from a neighbour, rescued Neelum from her husband’s captivity. The neighbour said that Neelum was crying for help as she was being severely beaten; someone heard her cries and informed the local police. ASI Waqas, along with his team, raided the house and rescued her.

In the presence of her in-laws, her husband brutally beat her, injuring her nose and decreeing divorce thrice. When she tried to flee, he dragged her to the washroom and locked her there in her injured condition, according to Neelum. “When the police team raided, I was locked in the washroom. I was rescued and taken to the police station, but Irfan’s uncle was already there.”

Whether to call it lack of coordination between police, medical team and Dara-ul-Aman officials, lack of support behind the victim, or weak will of the officers concerned, Neelum’s medical check-up took more than two weeks, by which time her injuries, which can clearly be seen in a video and photos available to this correspondent, had been healed. The police team that rescued Neelum were also witness to her condition caused by physical torture. According to Neelum, the medical team didn’t examine the areas she highlighted. “I asked the medical officer at the Benazir Bhutto Shaheed Hospital that I have pain in my ribs and shoulders, but the team didn’t pay any attention.” As a result, the medical report didn’t establish a solid case against Irfan, and he is still at large, despite the fact that four months have passed since the incident took place.

However, the investigation officer Waqas, a witness of torture against Neelum, when contacted said that there is no law that allows police to interfere in a couple’s personal affairs. He said that it was a conflict between a husband and a wife, and police don’t interfere in such domestic matters, adding that despite that he rescued the girl on human grounds. It is to be noted that ASI Waqas was leading the police team that rescued Neelum from her former “husband’s custody” in her injured condition.

Regarding the delay in FIR, the investigation officer responded that the victim’s medical report is not strong enough to file a case against the offender. “If the victim has any fracture or a deep wound, a strong case could be registered against him,” ASI Waqas said in his telephonic interview with this correspondent.

Does the law prevent protection of women?

Advocate Agha Sajid Shah, when asked under which law cases of domestic violence are prosecuted, states that the law is strong enough and gives protection to women against violence, but that is only possible if the law is implemented in its true letter and spirit. In our justice system, laws protect those victims who have strong financial or political backgrounds. In Neelum's case, she neither has a strong political nor financial background.

Advocate Sajid Khan Tanoli, when asked whether the country needs amendments in laws or a new legislation should be introduced, said: “Pakistan is overflowing in legislations. The thing that lacks is implementation, which seems to be impossible in the prevailing investigation and justice systems.” True implementation of the domestic violence laws needs a transparent system and merit-based unbiased police force as well as a responsive court system, but unfortunately, “Our country is very much in crisis in this regard”, Sajid Tanoli commented.

Laws are strong or are, in fact, more supportive of women, but only for those with a strong backing. Neelum’s case is muddled. Despite the availability of proof of torture against her, the offender could not be brought to justice. Although police have registered a case now, delays in obtaining a medico legal certificate (MLC) have weakened her case.

Is delay in issuance of MLC punishable?

Senior Superintendent of Police (Investigation) Rawalpindi Division Syed Ghazanfar Ali Shah when asked if delay in a MLC is punishable said that under the police rules the investigation officer is required to approach the hospital for an MLC of the victim within twenty-four hours of the incident. If any investigation officer commits a delay, and there is evidence of that, the department is required to take a strict action against that officer. When told that such delays continue to occur during an investigation process, he explained that most of the time, non-availability of a medical team at a hospital, particularly in rural areas, could cause a delay in the issuance of an MLC.

Law concerning domestic violence is not an issue, but implementation is circumvented by outside influence and interference, poor execution of courts’ decisions, and lack of honesty, dedication and will of enforcers, explains Advocate Agha Shah. There are thousands of women in our society who are forced to tolerate violence in their homes due to various push and pull factors, he adds.

In this regard, SSP (Investigation) said that police operate under certain terms and conditions whereas domestic violence is a compoundable offence. When a case has been reported in a police station, many informal channels are activated to settle the dispute. In such situations police cannot stop interventions. Often, in cases in which a husband or in-laws commit violence or torture against a woman, elders or other members of family get involved to advise reconciliation or a patch-up after reporting of the incident.

Helpless Women Complaint Cell

To control gender-based violence, Punjab government has established special women compliant cells at district level. Inspector Shahida Yasmeen, In-charge Women Complaint Cell Rawalpindi, explains, “We have received many complaints that show an increased ratio of domestic violence in the district. But none of the complainants allowed us to take action against their partners or in-laws. Most of them [women] sought help to deter violence against them.” When asked what reasons prompted that behaviour, Inspector Yasmeen says that women’s financial dependence on their husbands is the leading factor that bars them to go against the offender, “Growing inflation has further aggravated women's vulnerability against domestic violence. Most of the complainants when suggested a separate life instead of bearing everyday mental and physical torture say that they have nowhere to go with their children as they don’t have any alternative support. Financial dependence and other societal pressures force women to bear violence.”

According to the data released by the CPO office under the Punjab Transparency and Right to Information Act 2013, cases of domestic violence saw an increase in the last five years. Same is the situation in courts; an estimated forty percent of cases in courts are family cases, and the remaining sixty percent involve crimes like murder, kidnapping and theft, says Advocate Shah. For example, if a court has 150 total cases for hearing, at least eighty-five cases are family cases, mainly of violence.

Practices versus gaps

During a recent meeting, Parliamentarians Commission for Human Rights Executive Director Shafique Chaudhry said that gender-based torture is absolutely prohibited in international law, and Pakistan is party to various human rights instruments, which explicitly ban violence and torture in all forms and shapes and in all circumstances.

Article 14 of the Constitution provides for prohibiting torture for purposes of extraction of evidence. Chaudhry says that although Pakistan had ratified the UN Convention Against Torture six years ago, the legislation has not been actualised.

 

In 2021, the Torture and Custodial Death (Prevention and Punishment) Bill, presented by Senator Sherry Rehman, was passed by the Senate, but it has yet to be taken up in the National Assembly, even though the practice of torture is deeply entrenched not only in the policing system but also in our whole law-enforcing system.

HRCP Council Member Farhatullah Babar explained during a meeting that prohibition of torture is absolute under all circumstances. Neither a state of war nor political instability nor an order of superior authority is any defence against torture. Victims of torture have the right to compensation and rehabilitation. All incidents of torture must be investigated, and perpetrators brought to justice, he emphasized.

Advocate Tanoli says that there is no specific section of the law that is applicable in domestic violence cases, but certain sections of the criminal law can be combined and applied. Besides, there is no fixed timetable to prosecute family cases, which discourage women to approach courts. Due to the absence of a dedicated law on domestic violence, Advocate Bilal Ahmed says domestics violence cases are addressed under the Pakistan Penal Code.

What is domestic violence?

The definition of “torture” in the legal sense involves deliberate infliction of pain. According to human rights activists, domestic violence is of various types. If someone from a family, including husband, father, and brother, physically abuses a girl or a woman, it is deemed as domestic violence. If a husband doesn’t talk to his wife, doesn’t react, or keeps his wife deprived of her basic support or position, it is considered a form of violence. Under the Domestic Violence (Prevention and Protection) Act, 2009, men cannot physically torture women, children, and domestic employees.

The Punjab Protection of Women against Violence Act 2016 was introduced specifically to address the issue of domestic violence; under this Act, special women's protection cells have been established in police stations across Punjab. Section 4 of the law states that a woman can’t be forced to leave the house where she is living; it is her right to continue to live there. If her husband forces her to leave the house, she can make an application to restrain him. Section 7 of the law states that if the husband is involved in violence, wife has the right to expel him from the house until the matter is resolved to both parties’ satisfaction. Section 17 allows the aggrieved person to make an application and the concerning police officials are required to respond within twenty-four hours.

Legislative framework exists to provide basic protection to women against domestic violence, but its implementation is extremely flawed. The starting point would be for women to be afforded respect and support to access their legal rights. Self-accountability is essential, asserts Advocate Ishtiaq Chaudhary of Human Rights Society of Pakistan.

There is an urgent need to update TRPCs and other police rules. “The police follow the rules drafted in 1934,” says SSP (Investigation) Rawalpindi. An updated draft comprising new rules has been pending for long in the Punjab Assembly for approval. Much time has passed but no debate on the draft or any other related development has been commenced.

The way forward

The way forward must be on different levels:

There is an urgent need for federal and provincial governments to make the prevention of violence against women and children one of their topmost priorities with clear directions and resources. All legislation, rules and directives related to this subject need to be identified and pulled together for an overall review, updating and implementation.

The first port of call for victims is usually the local police station. What happens there usually determines the outcome of the situation as happened in the case for Neelum. There is an urgent need for an appraisal of training of police officers on the subject of domestic violence to ensure that that they understand their legal responsibilities and are equipped with skills to receive reports and initiate proper, speedy investigations. At every police station, there should be a designated, trained team of officers to deal with cases of domestic violence. Wherever possible and resources permit, women police officers should be designated as specialists.

Steps should be taken to support the police to be able to function independently and objectively without political or any other type of pressure or influence. This is extremely important because our politicians see interference as their right.

Specialist domestic violence units should be established within the court system to advise victims of domestic violence regarding legal processes and protocols. Pakistan’s court system is ancient and cumbersome, lacking in proper resources and planning. Courts are flooded with cases but lack resources to handle the workload. A judge has hundreds of cases. A single case decision needs at least a day, leaving the remaining cases pending, says Advocate Shah. Not only criminal but family cases take years for a verdict, a practice that discourages women to prosecute cases of gender-based violence against them.

Relevant authorities can supplement their implementation efforts by working in sync with community sector stakeholders. This would need better working relations based on trust and mutual support. Also, authorities can benefit from accessing good practices, regular briefings and trainings developed by third sector organisations. Community sectors can provide valuable channels for cascading information to communities and the targeted groups.

One of the most frequent complains that victims of domestic violence make is that they are not believed by police officers when they make a complaint about violence against them by their husbands or in-laws. Most police officers, mainly male, have biases and are untrained on how to deal with cases of domestic violence, and they usually start with disbelieving women, thus discouraging them to make a formal report.

In countries where law enforcing agencies take violence against women and children extremely seriously have a starting point: victim’s complaint is taken as a matter of fact and investigation is initiated accordingly. The onus of the proof is shifted to the perpetrator. This is also the case for complaints involving violence, abuse, sexual harassment, and rape.

In societies where violence against women and children is treated as a major crime, specialist units are set up to support victims with the authorities working closely with third sector stakeholders. Arrangements are put in place for regular briefings, consultations, joint trainings, reviews and updating of legislation, protocols and rules.

In Pakistan, the legislation framework exists and can be improved, but it is implementation, lack of coordination, lack of resources and investment, gender biases in a patriarchal setup where women are generally treated as second class citizens, and political and community influences that combine to circumvent women and children from getting justice—their basic human right. As society we may have travelled a lot, but we still have a very long way to go when it comes to rights of women and children.

Shazia Mehboob Tanoli is a freelancer, a PhD student and an investigative journalist based in Islamabad. Shazia tweets @shizrehman. All information and facts provided are the sole responsibility of the writer.