06/24/2022

The Growing Need For Equal Representation In Digital Policymaking

The concept of gender equality cannot be fully realised without gender equality in law and policymaking. Women and gender minorities of any society look up to the state and lawmakers to provide them with the necessary rights and protection within legislation, without which these groups would be excluded from social and economic development. Unfortunately, women and gender minorities are often not the priority of those in power, especially during lawmaking, who at times are motivated by political goals and agendas, disregarding the gendered implications of the laws leaving gaps in legislation which impacts the weakest in the society.

Gender mainstreaming in legislation is often misunderstood as including as many provisions as possible that provide a safety net to women and gender minorities. However, gender mainstreaming was defined in 1997 by the United Nations Economic and Social Council (ECOSOC) as follows: “Mainstreaming a gender perspective is the process of assessing the implications for women and men of any planned action, including legislation, policies or programmes, in all areas and at all levels. It is a strategy for making women’s as well as men’s concerns and experiences an integral dimension of the design, implementation, monitoring and evaluation of policies and programmes in all political, economic and societal spheres so that women and men benefit equally and inequality is not perpetrated.”

The definition posits that enactment of a law is only the first step to achieving what we can also call “Gender Sensitive Legislation.” It ensures that the people the law is intended to serve benefit from it as well, and that the gendered implications were taken into consideration during the development of the law. For gender to be fully considered in law, it is essential that women and gender minorities are given a space on the decision-making table as well.

In recent years, Pakistan has been recognised in the international community for steps taken to ensure gender mainstreaming in lawmaking. For example, the comprehensive Protection against Harassment of Women at Workplace Act which provided women a proper legal recourse to tackle the increasing problem of sexual harassment at workplaces. However, despite some commendable developments in legislation and policy, its position in the Gender Equality Index put together by the UNDP, remains low.

In addition to struggles with social and economic progress, lack of access to justice remains one of the major issues to plague the nation. The country has one of the poorest responses to crimes against women which have now been translated into online spaces, giving rise to new and unique forms of violence that require special protection. In the past decade, countries around the globe have been forced to legislate on digital platforms and media as the internet continues to change the way we communicate with each other and impact the decisions we make daily. Pakistan, too, has witnessed many new media-related laws and bills such as the Prevention of Electronic Crimes Act, 2016 (PECA); the Personal Data Protection Bill; and legislation related to journalist safety in the country to keep up with the changing online landscapes. Laws such as PECA, were initially passed in order to protect women but failed to achieve that goal which can be attributed to the lawmakers failing to consider the gendered implication and gender sensitivities while drafting these laws. 

Prevention of Electronic Crimes Act, 2016 (PECA)

Much has been written about PECA’s notoriety, with the law constantly coming under heat since its inception in 2016, after it was passed through Parliament by the ruling PML-N government at the time. The irony with PECA is that it was initially labelled as a law that would “protect the daughters of the nation,” which often resulted in any criticism of the bill being labelled as anti-women. Farieha Aziz, who is the Director of Bolo Bhi and has been at the forefront of campaigning against the law since its inception, says, “The government at the time was not only resistant to receiving any feedback on the bill, but hostile to anyone who objected to it. It could also not be predicted at the time how big of an impact the law would have on women.”

Her organisation also documented in great detail the entirety of the consultative process that was held between the government, civil society and rights activists, laying bare the failure of the state to effectively subject the bill to a thorough legislative review by unbiased legal experts. While the civil society remained steadfast in its stance that the bill would violate fundamental rights such as freedom of expression and right to information under Articles 19 and 19-A of the Constitution, no one was able to predict the impact it would specifically have on women and marginalised gender groups, as in the case of those fighting to raise their voice in the #MeToo movement.

Interestingly, despite the fact that PECA was passed at a time when a woman was heading the Ministry of Information Technology and Telecommunication (MoITT), the interests to pass the legislation were more political in nature, rather than a genuine concern for the safety of women on the internet.

Perhaps the most famous example of PECA’s weaponisation against women is that from the case of Meesha Shafi and Ali Zafar, where seven internet users found themselves implicated in a defamation case under Section 20 of the Act that criminalises online defamation, after voicing their support for Shafi in her sexual harassment allegation lawsuit against Zafar. This encouraged other alleged abusers to use Section 20 as a silencing tactic against anyone who dared to expose them, a group that mainly involves women and young girls, many of whom suffering from abuse at the hands of their teachers or within school campuses. They are repeatedly forced to remain quiet for the sake of their own safety and to avoid the traumatising process of being implicated in a criminal defamation case.

The issue with PECA is hardly limited to the law itself, but more so with its application, implementation and blatant misuse by the enforcement agencies. This is evidence of how often lawmakers fail to consider the aftermath of enacting a law, whether it will even be accessible to those it was intended for, and whether the law enforcement agencies are equipped to implement the statute. The Federal Investigation Agency (FIA) was tasked to deal with all matters and complaints under PECA, but it had not been prepared or trained to take on the task of managing a cybercrime unit that had been created to “protect women” from online abuse. The rules of business for FIA under PECA were not notified until almost three years later in 2019, and the state did little to ensure that they were set in place in time to allow for smooth processing of complaints and investigation by the FIA.

Almost seven years since the enactment of the law, women and gender minorities keep finding themselves being let down by the very institutions that vow to protect them. Online abuse is a severe and sensitive matter since a large number of abusive posts are also sexual in nature, which requires the agency to be trained in gender-sensitivity. However, too many FIA officials have been accused of victim-blaming and non-serious attitude towards female victims, often not understanding the scale of the impact the abuse may have on their lives. In such situations, even the most flawless of legislation would fail to operate in the victim’s favour.

But in addition to training the law enforcement agencies to aptly deal with such cases, it is also the job of the lawmaker to guarantee easy access to legal recourse for those who need it. If PECA was in fact a law made to protect women, then it must also take into account the difficulty women face when trying to access police stations, or FIA complaint centres that, apart from only having presence in major cities and leaving behind many women in smaller cities across the country, are situated in areas that are not easily accessible for those who want to file complaints. And where they are accessible, they are heavily occupied by men, making the ordeal even more uncomfortable for an already stressed woman.  It is a vital part of law making to add supporting rules or guidelines with the statute itself that addresses issues such as these, keeping in view the plight of a regular woman who lives under various restrictions dictated by the patriarchal structure of Pakistani society.

Data Protection, Privacy and Surveillance

Technology is embedded in social relations, and it should come as no surprise that surveillance and data processing reproduce, entrench and deepen various forms of discrimination, marginalisation and oppression already present against women and gendered minorities in a society. Mardiya Siba Yahaya, a feminist researcher, writes in her essay, “What Can Digital Surveillance Teach Us About Online Gender-Based Violence?” about the “cybergaze” used by the state and those in power to “organise violence and discipline those who default from norms, allowing the control of women’s expression and autonomy online.” She further writes, “On Instagram, when people are on display, communities of people play the ‘policing’ role, punished through violence online and offline.”

When talking about gendered implications of any law, one must bear in mind the cultural nuances of the society in question and its treatment and perception of women. In Pakistan, a woman’s reputation is considered the most fragile and priceless possession by the men around her who would go so far as to kill these women to protect the so-called honour of the family. This is one of the major reasons why many women are still heavily policed by their families on what they are allowed to post online, and pictures of themselves landing on the internet are often strongly frowned upon. In such a scenario, a woman’s online privacy is arguably at a higher risk than that of a man.

Owing to the lack of trust in the justice system and the law itself, many victims and survivors of online abuse never report the incident. This is in part also because of the lack of support around them which leads to them being victim-blamed for their experiences. As a result, a number of women have died by suicide as law enforcement authorities failed to provide them necessary support.

It is also worth noting that personal data, even when collected legally for business, economic or social purposes, can end up in the wrong hands within the institution that is responsible for storing, processing and protecting this data. An example of this is the CCTV footage of couples in a cinema in Lahore being leaked, which resulted in harassment of the couples. In such situations, if the woman’s family members were to learn of this footage, her life could have been potentially at risk.

It goes without saying that the implications of any data breach or misuse would be significantly severe for women and gender minorities compared to others. So when laws fail to protect this data as a priority towards safety of those at risk, it is not just an oversight but in fact is an attempt to put this population in harm’s way.

It is important to acknowledge that data protection is the balance of power between data subjects and data controllers which has the potential to be abused. A data subject must consent to their data being used; however, in case of women and gender minorities, they may not be in a position to refuse consent.

Patriarchal laws such as the Personal Data Protection Bill (PDPB) create a barrier between beneficiaries like the regular citizens and the justice system for their ability to intimidate and push people away from seeking recourse.

In its 2022 manifesto, Aurat March Lahore called for the Safe City Projects throughout the country to be defunded, keeping in mind the gendered implication of surveillance after leaked CCTV videos emerged of women in vehicles who were later harassed. Their contention was that the surveillance project did not make the city any safer for citizens, especially women, and has resulted in more harm than good. Zoya Rehman, an Aurat March organiser from Islamabad, discusses how there is little proof of whether the safe city CCTV cameras provided sufficient protection to victims, and how over-securitisation of public places scared people more than giving them a sense of protection. She adds, “This kind of surveillance encourages moral policing, intrusion and paternalism. We are always wary of such kind of protection being imposed upon us as women, non-binary people and gendered minorities who face the strongest kind of moral policing.”

Pakistani lawmakers still have a long way to go before they are able to successfully familiarise themselves and keep up with the development in the field of gender and tech.  During the much delayed and outstretched process of the development of the country’s data protection law, there has been little to no attention paid to the disproportionate impact on women and gender minorities. While the bill in its present form duplicates most provisions from the General Data Protection Regulation (GDPR), the gold standard for data protection guidelines around the world, it certainly fails to take into account the impact on women and gender minorities, and whether the law will be effectively used to protect them.

Protection of Journalists and Other Media Professionals Act 2021

A good example of considering gendered implications of lawmaking is the journalist safety legislation in Pakistan. It is a known fact that journalists are regular targets of online attacks, but women journalists face a double burden: being attacked as journalists and as women. They are often subjected to threats of physical and sexual violence which in many extreme cases can result in self-censorship, forcing themselves to leave the male-dominated field of journalism. For this very reason, a law to protect journalists must consider its impact on women, and how it can provide special protections to those who are the target of different kinds of attacks more than their male counterparts.

The Sindh Protection of Journalists and Other Media Professionals Act 2021 is one law that has managed to be passed successfully by the Sindh Government to protect journalists in the province, while other similar laws in the country are expected to follow. The Act does not create new offences per se but uses existing laws like PECA and the Pakistan Penal Code (PPC) to offer remedy to victims. It establishes a commission for the protection of journalists and media workers who are mandated to receive and adjudicate upon complaints registered by journalists and media workers.

The act was widely appreciated by the media community, coming into force almost a year after women journalists released a collective statement on the increasing violence against them on social media. The act, however, does not provide additional or special protection to women media workers and journalists, and because it utilises existing laws to prosecute perpetrators, the issues with the implementation of these existing laws would be translated under this act as well. For instance, if the commission decides to prosecute under PECA, the FIA would need to get involved for investigation and other procedural purposes, and a woman complainant would be exposed to the same treatment by the law enforcement agency as she would under PECA.

Amber Shamsi, Director of the Centre for Excellence in Journalism (CEJ) at the IBA, says, “Journalists are a particular class that also derive their rights from Articles 19 and 19-A of the Constitution of Pakistan which protect right to freedom of speech, freedom of the press and right to information, and since crimes against journalists are carried out with impunity, there was a need for specialised mechanisms that protect them.” She further adds, “The required legislation exists, but the process needs to be streamlined, for example, the Commission mandated under the [Sindh Protection of Journalists] Act has not been notified yet. In addition, the law must make it mandatory for female representation in the Commission itself.”

In a country where women media workers are constantly targeted on the basis of their gender, a legislation with generalised provisions is not enough, especially considering that a significant number of cases of abuse occur within the newsrooms where varying power dynamics come into play, often forcing victims to remain quiet.

Mr. Owais Aslam Ali, Secretary General of the Pakistan Press Foundation, says, “The government must do more than just produce law, it must take steps to ensure that the Commission on Safety of Journalists and Other Media Professionals is formed and its rules and regulations are notified so that the implementation of the law begins in full effect.” He adds, “It is important for the Commission to be functional at the earliest, so that SOPs for dealing with sexual harassment cases are in place, and gender-sensitive training can be conducted in order to adequately deal with harassment complaints from women journalists.”

In order to fully realise the gendered implication of legislation in Pakistan, there is a strong need for the lawmaking process to be revisited in the light of gendered issues in the country. There seems to be a common theme in almost all laws related to women and gender minorities, which is the exclusion of regular citizens who are the most important stakeholder in this process, and most vulnerable whenever the law is misused, or its implementation is weak. In addition, the lawmaking process seems to end once the Parliament passes the law, but as we have observed the United Nations Economic and Social Council’s (ECOSOC) definition, a gender sensitive law would establish mechanisms to carry out monitoring and evaluation of the effectiveness and implementation of the law, and whether it fulfils the goal the Parliament initially hoped to achieve. Through such mechanisms, numerous issues may arise that could act as a learning curve for lawmakers to prevent them from making the same mistakes in future legislation.

Salwa Rana is a lawyer who specialises in digital human rights policymaking.

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