Legal reforms and the gender paradigm

Saturday, June 7th, 2014 7:51:22 by

Glance through the last 10 years of parliamentary legislation, and you may find our state reformist, and possibly feminist. With laws promulgated to stop harassment of women at the workplace, to counter the injustices meted out under the Zina Ordinance, and to criminalise acid violence and the deprivation of a woman’s right to inheritance, such a conclusion may not be out of place.

That we have finally witnessed a real commitment on the part of our state to the ideal of a woman’s selfhood on a par with the male citizen would be an instinctive, triumphant (albeit premature) reaction.

The law protects a woman’s right to marry of her free will to a man of her choosing, and has reinforced such protection by penalising forced marriages, swara and vani. Those she may offend by the exercise of her choice should rest warned that under the law, murder committed on the pretext of honour is qatl-e-amd, and considerations of ghairat provide no ground for mitigation. Killing for honour is punishable by death or imprisonment for life — sentences that the provincial governments, despite wide powers under criminal procedure, can neither suspend nor remit.

The law (and the state it embodies) is the equaliser, guardian and saviour in a society, which is structurally patriarchal. The law empowers and emboldens the Pakistani woman, through assurances of protection and the narrative of rights. ‘You are an independent, free citizen,’ the law says to the woman, ‘critical to the development of this state. So live as you choose, defy norms and expectations if you must, secure in your knowledge of my care and scrutiny’.

The woman, arguably in her naïveté, is reassured.

It is May 27, 2014. A woman is killed with bricks in the indifferent presence of the men, guardians and enforcers of the very law that guaranteed her the freedom of choice she was eventually punished and murdered for. Farzana Parveen died seeking validation of her legal right to marry of her free will, while the law, in its various manifestations, watched on paralysed, uncaring and infirm.

As Farzana’s story unfolds, laying bare a complex plot of other murders committed in the name of honour or for love, one thing becomes painfully clear: a woman’s life in Pakistan can, despite legal assurances and guarantees, be done away with incredible ease.

In the wake of last week’s gory incident, the law’s promises appear hollow, farcical, and a mere ruse to instil in the woman what may at best be a false sense of security.

Farzana’s tragedy has led many to discuss and comment on the lacunae and contradictions in Pakistani law, which condemns honour killing and forced marriage at one end but at the other, permits, under the qisas and diyat laws, exoneration of the accused — oftentimes the father, husband or brother of the victim — by another family member.

There is merit to the argument for reform and a lot has been said on it already.

My question is this: what can the Pakistani woman expect from reform of the law?

Legal lacunae are remedied; qatl-e-amd committed in the name of honour is exempted from the operation of qisas and diyat; or even better the qisas and diyat laws are altogether abolished.

Will we witness an end or, at least, a decline in incidents of honour killing? Will forced marriages become an exception? Armed with the additional protection accorded by the laws of the state, will women be better able to stand up against domestic violence?

Admittedly, answers to the above can only be ascertained with the hindsight of experience.

Yet one must ask whether the law is even an effective tool for feminist reform.

The law, according to Catherine MacKinnon (a renowned American feminist), is seen as the ‘mind of the state’, and therefore a manifestation of state direction and policy. At the same time, the law represents an ideal. The law, at least in democracies (and we claim to be one), is to be principled, non-partisan and fair. State intervention to cure injustice, gendered or otherwise, through the instrument of the law is then logical.

Legal reform, however, can target only overt demonstrations of what are embedded structures of gender inequality and dominance. The law may provide strict censure against sexual harassment or domestic violence, but the relations of power and dependence that underlie such injustice remain entrenched and beyond the reach of law.

Gender relations are premised, here and elsewhere in the world, on the paradigm of control. Others often determine a woman’s access to health, education or livelihood. She is dependent, even when the law grants her the status of an independent citizen of the state. A woman lives, many a time, in accord with the wishes of her men and (even) womenfolk.

Farzana was punished for her deviance, her rejection of control and of what is deemed to be the norm.

Why does the brutality of Farzana’s murder or the indifference of on-lookers — the men/women of law — seem so appalling? These men and women are equally steeped in the culture/norm of control, attuned to the social consequences of deviance and possibly unconvinced and uncommitted to the guarantees of freedom in law.

The law then means little confronted with the paradigm of control.

The state cannot hope to achieve gender equality through the discourse of women’s rights and protective guarantees in its laws. The state has to garner social consensus and acceptance for the changed paradigm of power relations that feminist legal reforms represent. Structures of dominance and dependence, our systems of belief and understandings of the normal will need to be displaced through instruments of social reform. Our apparently feminist and reformist Parliament will otherwise remain engaged in an exercise in idealism, disconnected from the real experiences and opportunities of women.

Published in The Express Tribune, June 8th, 2014.

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