Women's Protection Law

 A MELEE OVER A WOMEN’S LAW

Maryam Sakeenah

That the clerics have handled the women protection bill very clumsily is there for all to see. In fact, some of their comments have been indefensibly misogynistic and chauvinistic. The damage goes deep- it conveys the outrageously false notion that Islam does not side with the victim of domestic violence, nor does it call for any measures to protect women from it. This clumsy handling by the clerics as well as their reckless, dimwitted and insensitive comments on the issue has created an outpouring of sympathy and support for those advocating the implementation of the bill as it is. Secondly, it has completely eclipsed any element of validity that may be there in the criticism coming from those opposing the bill or calling for its reform.

In fact, the narrative emerging from the ongoing melee implies that whoever views the law critically is a woman-hating chauvinist. This is inaccurate at best, and grossly unfortunate and unfair.

For one, the law is highly needful and vital, and noble in its intent. Few actually question its need and importance- and those who do, deserve not to be taken seriously. From the Islamic lens, any instance of violence to a woman is unequivocally reprehensible, hence any law to deter men from it, and punish those who commit it can in no way be called un Islamic. Those who term the law un Islamic for the simple reason that it criminalizes domestic violence do not represent Islam in its true essence.

However, having said that, the law- like any human endeavour to legislate- is not perfect. The refusal to listen to any call for reforming it or improving it and terming any such criticism as misogynistic is regrettable. It closes the door to discussion, constructive genuine debate and finding ways to improve the law in order to make it fulfill its purpose better. This state of affairs reflects the intensity of the polarization in this society between the liberals and the conservatives. It reflects closed mindedness, prejudices, unwillingness to engage the other, stubborn fixity and insecurities on both sides. Both sides have taken entrenched positions: the liberals dub their conservative counterparts as evil misogynists whereas the conservatives consider feminists to be working on a foreign agenda to ‘Westernise’ the society. In the midst of the clamour, any voice of reason drowns unheard.

To a large extent, this ridiculous melee has resulted due to the government’s reckless indifference and bypassing of the rules of procedure for enacting a law. The law seems to have been passed in indecent haste, without enough discussion around it. In a conservative Muslim society that espouses Islam as the official religion, to pass a law without consultation with the Islamic Advisory Council is unforgivable and bound to stoke up anger. Not surprisingly, the religious feel ignored, dispensable, marginalized and voiceless.  A lot of the anger reflected in their rhetoric emerges from this sense of disempowerment.

The reason why domestic violence should not be tolerated is not only because it violates the rights of a vulnerable human being, but also because the family should not be an oppressive institution. The welfare of individuals depends on the smooth functioning of the families that engender and nurture them, and this understanding is fundamental to the communitarian vision of Islam.  Hence for the law to truly achieve its purpose, it must be family-friendly as much as it is woman-friendly. In any instance of domestic violence, while the very real possibility of punishment ought to stand as an effective deterrent, the potential for reconciliation should not be ignored. The law does refer to the reconciliatory role of the Family Committees to be established, but somewhat inadequately and secondarily. This needs to be reviewed. In the first instance after a complaint is filed- except in cases of serious violence-  there should be warning, and the potential for reconciliation explored through mediation and counseling. Only after that fails should punishment be enacted. Regular and relentless domestic violence in which there is no possibility of reform, however, should definitely be a criminal offence. Victim women should have the right to seek help whether it is a one off instance or habitual. However, it should not be reported to the police as a crime-for that stirs up a vengeance closing all doors to reconciliation- rather, it ought to be reported to a family friendly facility  which will examine the situation listening to both sides and either ending an abusive marriage and enacting punishment, or warning and reconciling. Rather than immediately taking criminal action through a corrupt police system, a phased strategy should be laid down. This has been very clearly laid down in the Quran in any situation of marital discord. The need for the law is for the deterrent effect of making domestic violence a punishable crime; but at the same time, the law must prevent couples from acting in impulsive haste to permanently end what can be saved for their own long term benefit.

The current discourse from both sides on the issue is highly reactionary. The government needs to play its role as a mediator and explore the possibilities of achieving a consensus through exhaustive debate. It is a hallmark of a civilized society, an ideal worth striving for, and in no way impossible if there is a sincere willingness to reach such a consensus. Sameen Sadaf, a commentator on women’s issues through the Islamic perspective writes, ‘We also have a very genuine lack of tolerant discourse amongst the religious and secular factions of the society. The fact that the bill was passed before being sent to the Council of Islamic Ideology for discussion and then the complete rejection of it by the council are both quite representative of the lack of dialogue and communication between the two. It is quite evident that the sensible of both factions are for the protection of women and in consequence, the family and society. Both sides can come up with recommendations for improving the law and discuss their insecurities to reach a consensus. Consensus is an inevitable consequence of intelligent and conscientious discourse. The very inability of both the factions to reach one is alarming and not at all a good sign for a society or state.’

On the Women Protection Bill in Pakistan...

A MIMETIC RELIGIOSITY

Maryam Sakeenah

The refusal of the Pakistani religious right to allow the criminalization of domestic violence does not just reflect misogyny and a sense of insecurity over a perceived loss of patriarchal control. On a deeper level, it shows a mindset that reduces religion to a mere mimetic replication of the first Islamic society of Arabia over fourteen centuries ago.

One of the major justifications given by clerics for opposing the Women Protection Bill prescribing punishments for domestic violence is that such a law is essentially ‘against the Shariah’, as it innovates laws not hitherto specified by the primary sources of religion.

This mindset has surfaced elsewhere too- one of its starkest manifestations is ISIS’s revival of institutionalized slavery as an ‘Islamic’ practice, as slavery had not been explicitly criminalized by Islam.

The problem with this thesis is that it is literalist in interpretation and mimetic in implementation. This literalism and mimesis vindicate and endorse as ‘Islamic’ many an authoritatian and misogynistic practices dating from the time and place in which Islam was first set, unacceptable today in the light of the fundamental rights and principles over which humanity has achieved a quiet, universal consensus.

But what needs to be examined is whether Islam actually calls for an exclusively literalist reading of its sources and a mimetic replication of seventh century Arabia everywhere and at all times?

The Quran and even its elaboration in hadith stipulate few legislations, especially for phenomena characteristic of modern society. There is a wisdom in this silence- it understands the essential condition of human society- flux. This means that as societies evolve and grow over time, their needs change, and for a law system to be relevant, it must be flexible and adaptive to novel situations and conditions as they arise. Hence there is a deliberate purpose in this silence- to allow space for lawmaking relevant to the time and place. Yet the sources of Islam are complete in themselves- because they leave pointers, guidelines and suggestions that must inspire and lead such lawmaking in the right direction.

This understanding was not lost on the earliest generation after the Prophet (PBUH) who made Ijtihad a vital institution for progressive juristic innovation, such as Umar (R.A)’s innovations in the divorce laws to cater to the trends in his time.

Secondly, the purpose of law is to safeguard values which are at the core of Islam. The legal aspect of the shariah exists to protect the ‘maqasid ul shariah’- the core values. At times such law is explicitly laid down by the sources. Often, it is not. The scholars of Islam are in agreement that to ensure the achievement of the maqasid, juridical innovation may be made within the parameters defined by Islamic sources. Hence, Ijtihad.

One of these core values is human dignity and sanctity of one’s personal integrity. When a woman goes through domestic abuse and violence, it violates her dignity and respect as a human being and her fundamental rights as a partner in marriage. There is absolutely no equivocation in Islamic sources about this being condemnable behavior. The acceptability of domestic violence as the husband’s prerogative in Arabia predated Islam. Nor is the absence in the Quran and sunnah of a fixed penal law regarding it a bar to formulating such a law. There is no equivocation in the sources of Islam regarding the reprehensibility of domestic violence. By making gentle physical admonition exclusively tolerable in extreme cases of ‘nushuz’ (rebellion/defiance as in the case of unabashed disloyalty) and only after exhausting all other preferred strategies, Islam actually rejects domestic violence as the man’s prerogative to have his way with his spouse. The strictest conditions are laid down to ensure that neither pain is inflicted nor a mark left. Islam does not really require of men to put this exceptional permissibility to action in any situation at all. Simultaneously, the Prophetic conduct shows this never really has to be done, and there are better ways to resolve marital discord. He said, "How does anyone of you beat his wife as he beats the stallion camel and then be intimate with her?” (Bukhari, vol. 8, Hadith 68)  

The Quran says that spouses are to ‘dwell in tranquility with each other’ (Ar-Rum 21). It instructs husbands to ‘Live with them on a footing of kindness and equity.’ (An-Nisaa 19) 

In a society where honour killings, acid throwing, domestic and sexual violence are far too common, legislating in order to curb these horrendous practices works well to fulfill the maqasid of the shariah. Any legislation to ensure the provision and protection of the human rights recognized by Islam is commendable, just like the Prophet (PBUH)’s praise for the pre Islamic peacemaking document ‘Half ul Fuzul’ which laid down rights.

While the Women Protection Bill needs to be examined and modified to rule out its misuse and there can be a healthy debate around it, there can be no doubt that in its objective it fulfills the demand Islam makes on us_ to deter violence against the vulnerable and provide access to justice.

While constructive criticism and suggestion should be welcomed, the tirade from the religious against the law is tragic in that it seems to imply that Islam stands on the side of the male abuser and slights the issue of domestic violence. That is a dangerous and ugly untruth which ought to have been dispelled by those who claim to stand for Islam’s defence.      

Addressing the issue of the revival of slavery as ‘Islamic’, Michael Perez writes, ‘…we must refuse the position that limits our contemporary ethical horizons. To do so, we can take the Prophet’s statements against slavery as our contemporary responsibility… Such a perspective is critical today… Muslims have a role to play in the elaboration of Islam, and push forth a future in which slavery is no longer a question.’

Those who insist on an uncreative mimetic religiosity need to remember what Iqbal had meant when he wrote, ‘The movers have gone ahead… the unmoving ones have been crushed.’