Women’s Law, Women’s Rights

Here’s an essay I recently wrote on the history of women’s rights activism in Pakistan and how women have negotiated citizenship and its attendant rights in the nation-state. Seems apropos, given the recent passage of the Women’s Protection Act in Punjab.

The gendered individual and the family in the formation of Pakistani citizenship

In Pakistani historiography, the struggle for women’s rights has often been portrayed as a one-dimensional fight against Islamism. A more nuanced examination is needed into how activists from Independence onwards articulated claims for full citizenship in the nation-state that moves beyond the women vs. Islamism paradigm. In this essay, I argue that women’s fight for full citizenship is understood better when it is analyzed as a battle to supplant the family unit as the bearer of social citizenship in the nation-state. The family’s supremacy must be confronted to achieve citizenship rights for women, and the Pakistani women’s movement is a story of shifts from the legal realm to the street in pursuit of this goal. Shifting the focus towards women’s relationships with the family structure illuminates how militarism, economic instability, and class have played a role in affecting women’s access to full citizenship rights. To expound this argument, I will first provide a working definition of citizenship. Then, I will focus on a series of cases: the Muslim Family Laws Ordinance (MFLO) of 1961, the Hudood Ordinances of 1979 and their aftereffects in the 1980s-90s, and contemporary developments in civil society and NGOs.


Definitions of Citizenship

Two complementary definitions of citizenship provide a foundation for subsequent arguments: legal citizenship and social citizenship. Legal citizenship is defined broadly as rights ‘on paper’: guarantees of fundamental rights, such as freedom from discrimination and equal protection under the law, that are enshrined in the national constitution and legislation. Legal citizens can expect recourse to the judiciary if their rights are violated, and the state is responsible to ensure that its citizens’ fundamental rights are respected.[1] However, legal rights are tenuous if unsupported by the full social inclusion of putative citizens. Acceptance hinges on several factors, e.g. culturally defined gender roles and societal attitudes toward minorities. This leads to the concept of social citizenship. Social citizenship rights have been termed ‘contributory rights,’ entailing a commitment to ‘contributing to the national product,’ through civic and/or economic participation in national life.[2] The corollary to this claim is that a social citizen is one who is deemed deserving of contributory rights. Legal and social citizenship, rather than being separate, form two halves of a whole.

Regarding Pakistani women, at Independence their social citizenship was superseded by the family’s importance and its hold on members’ life-worlds, especially those of women. This status quo, where women’s autonomy is sacrificed for the social rights of the family, influences Pakistani women activists’ early attempts to gain rights through addressing legal inequalities.

Family Law and the Nation-State

The 1961 Muslim Family Laws Ordinance (MFLO) marks the first significant intervention in women’s rights in Pakistan spurred by a proto-feminist agitation. The creation of the ordinance was the outcome of activism by the All-Pakistan Women’s Association (APWA) and the United Front for Women’s Rights (UFWR), two collectives led primarily by elite women with connections to the central government and ministries, and whose membership comprised mostly urban, upper and middle class women.[3] The MFLO’s provisions include a requirement to register all marriages and a procedure to be followed by men who wanted to marry a second wife.[4] The aim of these provisions was to increase a woman’s rights within the family. For example, marriage registration documents would ensure her rights to divorce and record on paper the specifics of her right to mehr (dowry payable to the wife in Islamic custom).[5] Scholars differ on the ultimate effectiveness of the Ordinance, though its symbolic resonance for the women’s rights struggle is defended.[6] Mumtaz and Shaheed claim that the reforms were never widely applied or enforced.[7]

What these analyses of the MFLO miss is the implications of one of the first laws regarding women’s rights in Pakistan addressing the family structure. As Saba Gul Khattak argues, in Pakistan it is essential to consider the rapid militarization culminating in the Ayub Khan dictatorship. As she notes, ‘under military dictatorships, the army assumes the hyper-masculinist role whereby it is the arbiter, the patriarch, the institution that knows what is best for the nation.’[8] This ideal of the paternal dictator melds with the institution of the family, where male mini-authoritarians can control the actions of all members, especially women, thereby producing docile, passive subjects. The family-as-citizen serves well the practical needs of a military regime. The MFLO does little to reconstruct women as individual rights-bearers. Crucially, it continues to frame their rights within the masculinist family structure. Mumtaz and Shaheed point out that even in families where MFLO provisions like marriage registration were followed, women depended on their fathers or brothers to negotiate the terms of the documents.[9]

The ‘modernization’ rhetoric of the regime becomes critical to understanding this moment. The reign of Ayub Khan is cited as a period dominated by a modernizing ethos, evidenced by Ayub’s ‘Decade of Development’ and willingness to promulgate the MFLO.[10] Yet American involvement in Cold War Pakistan cannot be ignored when interrogating his intentions. María Josefina Saldaña-Portillo notes how developmentalist discourse advanced by the USA in Latin America called for the transformation of indigenous subjectivities into ‘ethical…progressive…and masculinist.’[11] This argument is applicable to Pakistan as well; the MFLO was Ayub’s attempts to feign progressivism by reforming misogynistic ‘Islamic’ practices, thereby appealing to international anti-communist states searching for strongmen allies in the Third World.[12]

The MFLO, therefore, must be read in light of Ayub’s lip service to modernization and the intentions of the regime. The practical imperatives of military governments require that the individual freedoms and political consciousness of the nation’s citizens remain restricted, lest a politicized citizenry challenge the state. Any reform in the field of gender rights that results in the development of greater individual freedoms for women as fully autonomous subjects, or that significantly undermine the cultural authority of pre-existing social institutions, would be precisely one such invitation to popular reaction, either in the immediate or long-term. Therefore, reform of women’s rights in ways that ultimately preserve the family structure was an ideal compromise. It defused energy for a larger women’s movement and reflected well on the regime internationally, without upending the social fabric.

Does this mean that the women’s movement, rather than achieving a true victory, instead delivered a political triumph to the regime? This conclusion is perhaps too dismissive. While it is true that the MFLO was an imaginary rather than tangible victory for women and preserved the primary oppressor, the family structure, it was nevertheless an attempt at negotiating women’s citizenship through legal means. This early legalistic strategy of women activists to work towards the full elaboration of a kind of parallel citizenship—primarily a formal one that enshrines fundamental equality—turned out to be the primary approach of women activists for decades. This strategy also explains why the women’s movement continued to remain relatively elite, since only women with education and access to the corridors of power could hope to achieve anything with this strategy in a stratified society like Pakistan.[13]
It is only in the 80s and 90s that this strategy undergoes a fundamental shift in the wake of military dictator Zia ul-Haq’s Islamization policies.

Redefining Citizenship, Strengthening the Family

Overall, the 80s mark a turn from a focus on legal citizenship, as expressed in the attainment of formal rights, to an emphasis on social citizenship, characterized by challenges to the state and laws designed to align women’s social rights with the legal rights granted to them by previous governments. This shift is exemplified by the history around one particularly egregious attack on women’s rights. Much has been written about the Hudood Ordinances of Zia-ul-Haq, particularly the Zina Ordinance that criminalizes ‘illicit sex’, meaning fornication or adultery.[14] In practice the accusation of zina is commonly deployed against women who have been raped, given the near impossibility under the law of proving nonconsensual sex occurred.[15] While many analyses tend to view Zia’s Islamization policies in a vacuum divorced from its contemporary political and economic context, others like Saadia Toor and Shahnaz Khan make valuable interventions in the historiography.

Toor emphasizes historical precedent by noting Zulfiqar Ali Bhutto’s turn towards a ‘pan-Islamic’ alliance with the Middle East after Bangladeshi independence. The liberation of Bangladesh dealt a critical blow to the two-nation theory that legitimized Pakistan’s existence. Its loss sparked reorientation of the relationship of Pakistan and Islam.[16] Under Zia-ul-Haq this process was accelerated, but not purely for reasons of Zia’s personal piety. Toor argues that Zia consolidated his rule by manufacturing consent from key groups, namely the economic elite threatened by Bhutto’s nationalization policies and, later, the Islamist parties.[17] In addition, Shahnaz Khan comments that the ‘policies . . . serve capitalist and patriarchal interests by regulating gendered and classed bodies in ways that produce docile citizens.’[18] This is achieved by conflating family interests with national interests, both of which are invested in the moral policing of women in the aim of defining proper, passive citizenship.[19] However, this alliance between the disciplinary capacities and moral interests of the family and state are not new, as has been discussed. What is illuminating about the Zina Ordinances is the way in which the dominance of the family as the true bearer of social rights is expressed in legal cases of the period, and way the turn towards cultural politics and its reinforcement by the law sparked a revolution in feminists’ tactics.

The Zina Ordinance both deprives women of legal rights to equality under the law and freedom from discrimination granted by the 1973 constitution and consolidates the position of the family unit as the true unit of social (and increasingly, legal) citizenship in Pakistan. This is due to the potential to utilize the law to assert familial economic interests over women’s individual rights. Cases in which the accusation of zina features show how the law is applied in classist ways and indicates the pressures on the family that make the control of women just as much an economic as a cultural imperative. Shahnaz Khan finds that in the context of increasing poverty in 1990s Pakistan, women’s sexuality had become a ‘valuable asset,’ and daughters were often married off to settle debts or build profitable kinship alliances.[20] When a woman attempted to assert her autonomy by choosing a spouse, families leveled the charge of zina to enforce their control over her body and its attendant economic benefits.[21] Predominantly poor and illiterate women, who could neither afford lawyers nor possessed knowledge of their legal rights, were victimized by state project to create a moral citizenry, given that upper and upper-middle class women did not as frequently face the economic pressures that drove such accusations.

While Khan’s study relies on fieldwork conducted in the 1990s, the reality of the classed nature of the Zina Ordinance was obvious to activists in the 1980s. There are infamous instances of the deployment of the Zina Ordinance against vulnerable, lower-class/ poor women that caught the attention of middle-class activists in the 1980s, such as the Fehmida-Allah Bux case and the Safia bibi case.[22] In opposition to the Zina Ordinance, groups of activists set up the Women’s Action Forum (WAF) to advocate on behalf of accused, provide legal assistance, spur public outrage against the laws through protest, and petition the state to reverse its Islamization policies.[23]

The activities of the WAF signal a key shift in the women’s movement. Until this point, women activists, by virtue of their connections to the government or political parties, accessed the state in ways which made working towards full citizenship in the realm of legal rights quite sensible. However, that approach neglected the uneven reach of rights in any society, where women on the lower rungs of the socioeconomic ladder often do not experience the benefits of the enunciation of women’s fundamental equality in the constitution. However, laws that target people for exploitation and control are frequently felt by those who are already marginalized, as happened in the case of women accused of zina. Once this reality became obvious to the mostly affluent women who constituted activist circles in urban Pakistan, they were forced to confront the previous inadequacy of their politics. Furthermore, the nature of the Zina Ordinance, with its control of women’s bodies, life choices, and very being-in-the-world, forced women’s activists to address the issue of social citizenship and how, no matter the amount of rights they accumulated in the legal registers of the state, in everyday society most women’s rights and autonomy were severely curtailed by the de facto citizenship rights enjoyed by the family unit in Pakistan.

Social Citizenship in the Weak State

The turn towards social citizenship was not taken by WAF alone. In subsequent years, the emphasis on the social and moral aspects of citizenship has attracted the attention of secular and Islamist women alike.

The role of civil society in providing social services and opportunities for educational and economic development to women has grown in the neoliberal era, as the state continues to recede from the public sphere. In Pakistan, this resulted in an explosion in the number of internationally funded NGOs from the 1980s onwards, many of which work on women’s issues.[24] However, as Amina Jamal states, while NGOs have achieved prominence in Pakistani society, successive governments have not viewed them as vehicles for social change as much as tools for the delivery of social welfare programs.[25] Nevertheless, the activities and projects that such NGOs undertake can be included in analytical framework of gendered citizenship. While most NGOs may not solely focus on improving women’s citizenship rights through activism, these groups do promote greater social inclusion of women through initiatives focused on education, family planning, legal aid, and access to credit.[26] The international development discourse these organizations are motivated by emphasizes the importance of achieving social citizenship through empowerment of women as individuals, in line with broader neoliberal rhetoric. As a result, this most recent approach by those invested in women’s rights in Pakistan, though apolitical and less adversarial toward the state than its predecessors, recognizes a need to replace the social citizenship right of the family with the social citizenship right of the individual. However, NGOs do not operate unopposed; in particular, Islamist groups such as the Jama’at e Islami are critical of their motives and advocate for their own version of gendered social citizenship.

Amina Jamal, in her study of Islamist Jama’at e Islami (JeI) women and their approaches to women’s citizenship, identifies their key tensions with the secular women’s movement and NGOs. JeI women leaders condemn the ‘Women’s Rights as Human Rights’ agenda pushed by secular activists and NGOs, as well as a development discourse that they claim advances Western hegemony by, in part, prioritizing gender as an area for intervention.[27] Crucially, these women view this so-called Westernized conceptualization of rights as detrimental to the family unit as it allows women more individual autonomy.[28] JeI women see it as essential to preserve the centrality of the family unit as the true bearer of socio-cultural rights in Pakistan, rights that can supersede any legal rights granted to women that contradict their version of Islam. Instead of promoting the cause of individual rights for women, JeI women see it as the responsibility of the men of the family to provide security and maintenance for women, even if women work outside of the home.[29] Therefore, even as more women become participants in the economic life of the country, JeI leaders insist upon demarcating between occupation of the public sphere and the ownership of rights in the public sphere. JeI in political power has also made forays into the legal realm to enforce their vision of Islamic moral citizenship, with the failed attempt to promulgate the Hisba Act in 2005. One of the provisions of the act aimed to ‘hold to account people who disobey their parents.’[30] As has been shown above, such initiatives, that essentially legalize the cultural rights of the family, have been historically used to control and oppress women.

In these two differing approaches to women’s rights and empowerment, there is one commonality—the turn towards reevaluating the meaning of social citizenship in Pakistan. While legal citizenship has not been abandoned entirely as a realm for political action, recent developments have shown that women activists, secular and Islamist alike, find it more productive to push for the evolution of social citizenship for women that can then be formalized by law in the long-term.

Conclusion 

Women in Pakistan began their new lives as members of an independent nation-state as incomplete citizens. It was the family that was the true unit of social citizenship. However, the drive to displace the family unit’s symbolic importance and cultural power in the social realm was not a primary concern of women’s groups, who saw working through the law and alliances with the government as the best way forward for attaining rights. With the advent of Zia and feminists’ loss of influence in the government and political elite, it became necessary for activists to both demand re-institution of legal rights and newly engage in activism around social citizenship. This manifested in fights over women’s sexual autonomy, their ability to occupy public space without being policed or harassed, and their right to live as individuals and not as a subordinate part of the family structure—in other words, an effort to make the individual the true social citizen. This process continues to the present day. Women’s rights are still asserted and expanded in legislation, but more importantly, the meaning of female citizenship as a matter of inclusion in everyday social and political life, as well as access to economic opportunity and education, continues to be negotiated in the streets, in the culture wars, and on women’s bodies.

Bibliography

Ansari, Sarah. “Polygamy, purdah and political representation: engendering citizenship in 1950s Pakistan.” Modern Asian Studies 43, no. 6 (2009): 1421–61.

Gul Khattak, Saba. “Gendered and violent: inscribing the military on the nation-state.” In Engendering the nation-state, 1:38–52. Lahore: Simorgh Women’s Resource and Publication Centre, 1997.

Howard-Hassmann, Rhoda E. “Introduction: The human right to citizenship.” In Slippery citizenship, 1–18. Pennsylvania Studies in Human Rights. Philadelphia: University of Pennsylvania Press, 2015.

Jahangir, Asma and Hina Jilani. The Hudood Ordinances: A divine sanction?: A     research study of the Hudood Ordinances and their effect on the disadvantaged             sections of Pakistan society. Lahore: Sang-e-Meel Publications, 2003.

Jamal, Amina. “Gender, citizenship, and the nation‐state in Pakistan: willful daughters or free citizens?” Signs 31, no. 2 (2006): 283–304.

_______. Jamaat-E-Islami women in Pakistan: vanguard of a new modernity? First Edition. Gender and Globalization. Syracuse, New York: Syracuse University Press, 2013.

Khan, Shahnaz. Zina, transnational feminism, and the moral regulation of Pakistani women. Vancouver: UBC Press, 2006.
Mumtaz, Khawar, and Farida Shaheed. Women of Pakistan: two steps forward, one step back? London: Zed, 1987.

Naseem, M. Ayaz. Education and gendered citizenship in Pakistan. Palgrave Macmillan’s Postcolonial Studies in Education. New York: Palgrave Macmillan, 2010.

Saldaña-Portillo, María Josefina. The revolutionary imagination in the Americas and the age of development [electronic resource]. Latin America Otherwise. Durham: Duke University Press, 2003.

Toor, Saadia. “The state, fundamentalism and society.” In Engendering the nation-state, 1:111–46. Lahore: Simorgh Women’s Resource and Publication Centre, 1997.

________. The state of Islam: culture and Cold War politics in Pakistan. London: Pluto, 2011.

Villadsen, Kaspar, and Bryan S. Turner. “Tracing the roots of social citizenship: Jane Addams’ thought between formal rights and moral obligation.” Citizenship Studies (November 3, 2015): 1–17.

Weiss, Anita. Interpreting Islam, modernity and women’s rights in Pakistan. Basingstoke: Palgrave Macmillan, 2014.

Notes

[1] Rhoda E. Howard-Hassmann, “Introduction: the human right to citizenship,” in Slippery Citizenship, Pennsylvania Studies in Human Rights (Philadelphia: University of Pennsylvania Press, 2015), 3.

[2] Kaspar Villadsen and Bryan S. Turner, “Tracing the roots of social citizenship: Jane Addams’ thought between formal rights and moral obligation,” Citizenship Studies (November 3, 2015): 2.

[3] Khawar Mumtaz and Farida Shaheed, Women of Pakistan: two steps forward, one step back? (London: Zed, 1987), 52, 56; see also Sarah Ansari, “Polygamy, purdah and political representation: engendering citizenship in 1950s Pakistan,” Modern Asian Studies 43, no. 6 (2009): 1421–61.

[4] Anita Weiss, Interpreting Islam, modernity and women’s rights in Pakistan (Basingstoke: Palgrave Macmillan, 2014), 23–24.

[5] Mumtaz and Shaheed, Women of Pakistan, 58.

[6] Weiss, Interpreting Islam, Modernity and Women’s Rights in Pakistan, 23.

[7] Mumtaz and Shaheed, Women of Pakistan, 58–59.

[8] Saba Gul Khattak, “Gendered and violent: inscribing the military on the nation-state,” in Engendering the nation-state, vol. 1 (Lahore: Simorgh Women’s Resource and Publication Centre, 1997), 47.

[9] Mumtaz and Shaheed, Women of Pakistan, 59.

[10] Ibid., 57.

[11] María Josefina Saldaña-Portillo, The revolutionary imagination in the Americas and the age of development, Latin America Otherwise (Durham: Duke University Press, 2003), 9.

[12] See Saadia Toor, The state of Islam: culture and Cold War politics in Pakistan (London: Pluto, 2011), 81-116 for elaboration of American Cold War influence in Pakistan.

[13] Ansari, “Polygamy, purdah and political representation” provides especially good insight into class composition of APWA and allies.

[14] Shahnaz Khan, Zina, transnational feminism, and the moral regulation of Pakistani women (Vancouver: UBC Press, 2006), 8.

[15] Ibid., 9.

[16] Saadia Toor, “The state, fundamentalism and society,” in Engendering the nation-state, vol. 1 (Lahore: Simorgh Women’s Resource and Publication Centre, 1997), 117.

[17] Ibid., 116–118.

[18] Khan, Zina, Transnational feminism, and the moral regulation of Pakistani women, 56.

[19] Ibid., 57.

[20] Ibid., 60.

[21] Ibid., 60–62.

[22] Mumtaz and Shaheed, Women of Pakistan, 71–75.

[23] Ibid., 104–105.

[24] Amina Jamal, Jama’at-E-Islami women in Pakistan: vanguard of a new modernity?, Gender and Globalization (Syracuse, New York: Syracuse University Press, 2013), 181–183.

[25] Ibid., 181.

[26] Weiss, Interpreting Islam, modernity and women’s rights in Pakistan, 82.

[27] Jamal, Jamaat-E-Islami Women in Pakistan, 188–190.

[28] Ibid., 185.

[29] Ibid., 187.

[30] Ibid., 240.

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