Negotiating away the rights of women

CII's proposals go against the basic legal principle of marriage.

Far be it for me to be facetious, but the two proposals of the Council of Islamic Ideology (CII) do bring to the mind images of unsuspecting Lolitas being led off like lambs to the slaughter to the havelis of middle-aged, rich lechers whose first wives stand cursing the innocent intruders, while their delighted husbands chortle with glee at the situation. It is a win-win game for the lechers, but a losing one for the old wives and the young brides.

The CII has started dismantling Ayub Khan’s family laws, which were framed by a famous scholar, Dr Fazlur Rahman, Professor of Islamic Studies at the University of Chicago. These laws were considered more enlightened than those of most Muslim countries and they did modify the behaviour of men, at least, in urban settings. Taking permission for a second marriage by the first wife was a constraint for men though, of course, really callous men could always divorce the first wife. But marriages are family affairs in Pakistan, so it was not always easy to defy the whole extended family and that put a damper on men’s amorous propensities. As for child marriage, that too went on surreptitiously, but in the urban areas, girl-children were less likely to be married off than before.

One would have expected some enlightened ulema to have practised ijtihad and decreed that the age of marriage be raised as the rate of urbanisation has increased and girls have to complete their studies before they can get married. Child marriage was in practice in pre-modern societies living on the land, but those were societies in which women did not have to study nor did they have any kind of professional lives. Conditions have changed and we should have changed too, but the only change proposed by the CII is to bring back child marriage.

But I have other than just social objections to the phenomenon of child marriage. In my view, it violates legal principles too. After all, it actually goes against the crucial condition of marriage — that of the consent of the bride and the bridegroom — which exists in all systems of law, including that of Islam. In our country, even adult girls are not consulted when they are married off. It is assumed that the parents know what is best for them so the young bride-to-be is reduced to praying that the man chosen for her is not a wife-beater or something worse. In the cities, at least in middle-class families, she does see the boy but hardly gets to talk to him before the maulana hurries in with the register and the uncles urge her to put her signature and sign away her life to a stranger.

This is what happens to adults, so you can well imagine what happens to minors. They are completely at the mercy of their guardians and are tied for life, even if the bride actually goes to the husband’s house (rukhsati) later. So, even if the CII has decreed that the rukhsati will be held when the girl attains puberty, she would have been tied for life to a man without meaningful consultation, without any real understanding of what she is agreeing to, much before she is even physically mature. In any case, the onset of puberty is quite early in Pakistan — between 12 to 14 — and that is not the age of anything like mental or emotional maturity. So, this decision of the CII actually goes against the basic legal principle of marriage, i.e., real and meaningful consent of the bride and the groom for that marriage.

I do not know what shape the negotiations with the Taliban will take, but my fear is that it too may take a misogynist form. Our Constitution of 1973 is deliberately vague on Islamic provisions. If read with the Objectives Resolution, it can mean whatever the interpreter wants it to mean. Interpretations are not the province of scholars as some of us imagine. You may be Dr Fazlur Rahman holding a doctorate and a chair in the world’s top universities, but the interpretation which will govern society will be that of the man with the deadliest guns. So, the 1973 Constitution can mean different things for different interpreters. The same Constitution may be interpreted to mean that women cannot go out of the house without a male (mehram), or that they cannot study in universities with men, or that they have to wear the veil from top to toe, or merely take a hijab with the face uncovered, or that they cannot drive cars or that they can drive cars but not bikes, etc.

It is possible that when we negotiate with the Talban, we agree merely to impose the Islamic provisions in the Constitution, but that women lose all their present freedoms. You see, the framers of our 1973 Constitution — yes, yes, I mean Mr Bhutto primarily — wanted to co-opt the religious parties. They thought they could fool the religious pressure groups merely by making cosmetic changes and putting in the vocabulary of Islam. The religious forces went along with this charade because they knew they might have the last laugh as the bluff of the ruling elite could be called some day. This is exactly what happened and now the ruling elite are negotiating with hardliners, who can get their narrative actually obeyed simply by interpreting the Constitution as they wish to.

Even if it is not the Taliban who interpret the Constitution, the religious parties may do so. They have been waiting in the wings since this country was created and could seize this moment as their opportunity and negotiate away the rights of the women of this country. After all, if we can give little girls in lifelong slavery because the men of their families murdered somebody from the family which will enslave her (vani, swara), we can negotiate away their rights too!

Published in The Express Tribune, March 17^th, 2014.

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