A long way to go

Asma Jahangir explains what the Protection of Women Act does and what is still
left undone.
The HRCP’s annual report on the human rights situation in Pakistan.

RELIGION has remained central to all political discourse in Pakistan. At the same time,
governments have been able to manoeuvre skilfully the force of religiosity into public
policy.

Every government has added its own brand of religious flavour to the political
environment in the country. A few have subsequently retracted or regretted falling for the
temptation of using religion, and yet it has repeatedly been used as a convenient tool for
survival. The passage of the Protection of Women Act (PWA) is no exception to the rule.
Those supporting the law insist that “its stated objective” is to bring the law in
conformity with the injunctions of Islam. For the consumption of international public
opinion, they boast of taking on religious stereotypes. The opposition to the PWA is
painting it as a piece of profanity. In essence the PWA has simply addressed some, and
by no means all, of the glaring discriminations and injustices meted out to women by the
promulgation of the Hudood Ordinances in 1979.

The amendments to two of the five Hudood Ordinances adopted through the PWA are
significant but these do not fully address all human rights issues thrown up by the Zia
enactments under the Hudood label. Mercifully, with the passage of the PWA false
accusations of zina against women should dramatically drop. As such the new legislation
has rectified the most conspicuous injustice meted out to women under the Hudood laws
and has taken a step further towards making marital rape a crime. However, while the
PWA is an important step in repairing some of the damage done by the so-called
lslamisation policies of the late dictator General Ziaul Haq, it has retained the overall
legal framework introduced by him. An unfocused attempt at partly rationalising Zia’s
handiwork is not a substantial conquest that may deserve the hype the government is
indulging in. It has in no way challenged the role of the mullah in institutionalising his
controversial brand of Islam within the legal system of Pakistan.

Both the government and the right-wing religious parties have expediently seized upon
the PWA to lend weight to their populist agendas. The government has finally shown a
plausible accomplishment to justify its claim of pursuing an agenda of “enlightened
moderation”. The MMA (a coalition of religio-political parties) too has seized upon this
opportunity to gain political mileage in an awkward phase of its political life. Its
lukewarm opposition to the government’s counter-terrorism measures in the provinces
that it rules had eroded its credibility. It was on the lookout to take up an alternative soft
agenda to oppose the regime. Human rights groups find themselves in a snare. While
welcoming the PWA they have to impress upon the public the need to watch out as the
roots of religious extremism have not all been weeded out of the Hudood laws.
 *****

The Hudood Ordinances comprised five separate laws. The Prohibition Order prescribed
punishments for using or carrying any kind of activity relating to alcohol or drugs.
Punishments for theft and armed robbery were prescribed in the Offences Against
Property (Enforcement of Hudood) Ordinance, 1979. The Zina Ordinance dealt with
sexual crimes, including rape. It made all sex outside of marriage a serious penal offence
and defined it as zina. Subsequently in 1997, the crime of gang rape was added, which
carried a mandatory death sentence. False accusations of zina (sex outside of marriage)
were made punishable in the Qazf Ordinance. Finally, the Whipping Ordinance laid down
the procedure for punishment through whipping.

By retaining the notion of recognising the evidence of Muslim males alone, lawmakers
have reinforced the impression that women and non-Muslims are inferior citizens.

A number of provisions of the Pakistan Penal Code (PPC) were simply carried over to the
Hudood Ordinances but the new elements these laws introduced raised controversy and
led to rigid formulations supposedly on the basis of belief. The Hudood Ordinances
introduced two sets of punishments — hadd and taazir. Hadd punishments included
stoning to death, amputation of limbs and public whipping. Until 1986, 26 hadd sentences
had been passed, 13 of amputation of limbs, seven of stoning to death and six of public
whipping. Stoning to death or amputation of hands was never executed. Eventually all
appeals (with the exception of one) were accepted and superior courts overturned the
decisions of trial courts or of the FSC.

Several fundamental reasons appear to have discouraged execution of such hadd

punishments — fear of adverse international and domestic public opinion, the strict
evidentiary requirements and the precise conditions for sustaining hadd sentences. In the
early ’80s medical professionals refused to amputate the hand of a convict while lawyers
and leaders of civil liberties opposed these punishments. Most importantly, Zia himself
did not want to execute hadd punishments and yet was keen on retaining them. This
reinforced his agenda of so-called lslamisation and served as an instrument of tyranny
without having to face an explosion at every execution of the hadd sentence. The PWA
retains hadd punishments except in the case of rape. Stoning to death for zina and
amputation of limbs remain intact in the Hudood Ordinances even after the amendments
made by the PWA.

A number of strict evidentiary requirements for awarding hadd are an important

safeguard against the passing of severe sentences but some prerequisite qualifications
establish a discriminatory pattern in the legal system of Pakistan. The evidence of women
is not accepted for a hadd conviction. The testimony of non-Muslims is only accepted if
the accused is also a non-Muslim. The confession of the accused is liable for hadd
punishment. These principles have been retained in the Hudood Ordinances; they are not
 affected by the adoption of the PWA. Gender discrimination in the law of
evidence has seriously undermined the legal status of women. Subsequent
legislation on the value of evidence also discriminates against women.
Denying equal rights to religious minorities is a serious violation of their rights and gives
rise to religious intolerance. The execution of extreme punishments based on confessions
can be risky and has been interpreted in a bigoted manner — such as punishing pregnant
complainants for rape. The government argues that since hadd is never executed, the
discriminatory nature of the law becomes meaningless. On the contrary, hadd
punishments have an enormous appeal amongst the orthodoxy and even an authoritarian
government will refuse to lay its hand on them. Their endorsement justifies Zia’s
Islamisation process and more importantly leaves the temptation for the orthodoxy to
agitate for their implementation at an appropriate moment in time. In the past, religious
groups have used such opportunities to make governments nervous, often under a covert
partnership with the military.

As stated earlier every offence under the Hudood Ordinances prescribes two sets of
punishments: hadd and taazir. Punishments of taazir and the evidence required for
establishing an offence are virtually the same as in the post-Hudood legal system. Thus,
the common argument that a victim of rape had to produce four adult male Muslim
witnesses to prove the offence or that unless she did so she would be punished for zina
has caused much harm.

Absence of evidentiary requirements for attracting hadd punishment would automatically

be followed by taazir punishment and the procedure under it. Rape can be proved by the
testimony of the victim, medical and other circumstantial evidence. Punishment of taazir
for rape under the Hudood Ordinances extended to 25 years of imprisonment. The
predicament for women was the implementation of a law that permitted the indictment of
those complaining of having been raped and the introduction of zina as a serious offence
with a broad definition. Those who married against the wishes of their families, wives
who wished to seek separation and single women could effortlessly be accused of zina
and promptly arrested by the police. Decisions of superior courts reported in law journals
include those awarding pregnant single women hadd punishments for zina after they
complained of rape but were unable to prove it under ordinary law of evidence. Proof of
rape in all jurisdictions is testing but that does not put the complainant at the risk of being
punished for zina. Pakistan’s courts have also used a bizarre logic for interpreting
extramarital pregnancy of a female as a confession of having committed zina.

A number of notorious cases raised serious concerns but the law was not reformed.
Instead, the executive colluded with the judiciary in managing the outcome of each case
so as to make its impact less dramatic. Allah Bux and Fehmida had got married. Fehmida
was found pregnant and the date of nikah was under dispute. The court awarded Allah
Bux stoning to death and Fehmida 100 lashes in public. Following public outrage, a
retrial was ordered. Jehan Mina, a 15-year-old girl, was awarded hadd. She had
complained of being raped by her relatives. Her pregnancy was treated as a confession of
zina. Subsequently her sentence was converted to taazir and she was sentenced
imprisonment and whipping. Shahida Parveen and Muhammad Sarwar were sentenced to
be stoned to death. Shahida had remarried and the court found that her divorce from her
previous husband suffered from some legal flaw. Again, after a public outcry the case
was ordered for retrial. In the same way, the FSC intervened, on the request of Zia
himself, to rescue Safia Bibi, a blind girl, from being punished for zina. She too had
complained of rape. There are several reported cases where courts have passed strictures
against women and degraded them. Women of over 70 years to girls as young as 11 have
been imprisoned on charges of zina, mostly as taazir punishment for zina. One therefore
appreciates the fact that the PWA has made some amendments that ensure zina charges
cannot be made with ease and the taazir punishment for it is now lighter and the offence
has been made bailable.

Pakistan’s penal code did not prescribe punishments for women for sexual crimes before
the introduction of the Hudood Ordinances. The offence of adultery did not prescribe any
punishment for the female co-accused. It was a matter for private complaint and did not
leave the police free to take action. It was a bailable offence and the complainant could
withdraw the allegations. Cases of adultery before zina became a crime — and when
women could not be punished for sexual crimes — were rare. It is thus evident that once
the law made it possible for a woman to be punished, it was invoked viciously and
unscrupulously.

The offence of zina under the Hudood Ordinances was punishable under taazir with
rigorous imprisonment extending to 10 years and with 30 lashes as well as with a fine. It
was a non-bailable offence, though women had a better chance of being granted bail than
men. In its initial years, a zealous judiciary and a ruthless police system harshly
implemented the law. Police reports for the offence of zina show that each year over
1,500 cases were registered against women. Between 1980 and 1987, the FSC heard
3,399 appeals in zina cases. Statistics collected in 1988 showed that around 46 per cent of
all female prisoners were accused of zina, while in 2005 the figure had dropped to 18 per
cent. The Offence of Qazf Ordinance, which was ostensibly promulgated as a safety
valve against false accusations of zina was weak and ineffective. It was further watered
down by court decisions, where no one making false accusations against his wife could
be punished under qazf. Understandably, only 1.24 per cent of complaints of qazf were
filed as against accusations of zina, despite the fact that over 90 per cent of zina offenders
were eventually acquitted in appeal.

The PWA has amended two out of the five Hudood Ordinances. The Whipping
Ordinance was made ineffective by banning all whippings except in cases of hadd. As
hadd has never been executed, it virtually abolishes whipping. No punishment of taazir
carrying a whipping sentence has been executed since 1988 and a new law finally banned
it in 1996. The Prohibition Order and Offences against Property Ordinance remain
untouched. The Qazf Ordinance has been amended in a slipshod manner and
effectiveness of change is yet to be tested. The Offence of Zina Ordinance has been
radically amended. All its provisions with the exception of hadd punishment for zina
have been moved back to the PPC with some modifications. An addition in the law
requires all complaints of zina falling under hadd to be lodged in a court along with the
evidence of four male Muslim witnesses of unimpeachable character before the accused
can be indicted or even summoned. In addition the PWA has repealed hadd punishment
for rape.

Under the post-PWA legal regime, the offence of zina liable to taazir falls under the PPC.
It requires all complaints of zina (attracting taazir punishment) to be lodged in a court
after two eyewitnesses depose on oath having seen the commission of the crime. As such,
the police can no longer have a free hand in arresting people who are accused of zina and
filing of whimsical complaints of zina will no longer be possible. More importantly,
punishment for the offence of zina liable to taazir has been reduced. The maximum
punishment is imprisonment for five years and the offence has been made bailable. These
commendable amendments should protect women against being dragged to prisons on
phoney charges of zina but they do not in any way acknowledge an equal status for
women under Pakistan’s laws. Actually it’s quite the reverse. By retaining the notion of
recognising the evidence of Muslim males alone, lawmakers have reinforced the
impression that women and non-Muslims are inferior citizens.

The PWA has made other important changes too. Gang-rape no longer carries a
mandatory death sentence. Imprisonment for life is provided as an alternative sentence.
Sexual act on a female under the age of 16 with or without her consent will be defined as
rape. Complaints of rape cannot be converted into accusations of zina. The PWA appears
to have mildly strengthened the law of Qazf but its cumbersome procedure may
discourage prosecution under it. Marital rape has been made an offence. In the pre-
Hudood laws, marital rape against a wife under 13 years of age was a crime. The PWA
has not prescribed any ceiling on the age of the wife. Often marital rape has been
associated with western values, but criminalising it in Pakistan’s culture is relevant and
just. It is an acceptable tradition in our society for a couple to contract formal nikah even
years before rukhsati takes place. A legal marriage is contracted but the wife may
formally be given away after a few months or years. After the promulgation of Hudood
laws such ‘paper’ wives could be abducted by their husbands and raped with impunity.
Revenge rapes by paper husbands have been reported following a dispute between the
families of such spouses.

Pakistan’s lawmakers need to be encouraged to act independently and with courage.

Blindly following military dictates will earn them neither credit nor credibility. Ironically
an important number of legislators who supported the PWA on the orders of Musharraf’s
military rule had previously voted to protect the Hudood Ordinances in 1985, on
instructions from Zia. Many of them are on record as having justified them and indeed
expressed their firm belief that the Hudood Ordinances were divine laws. One military
regime endorsed them while its successor has found it fit to partially reverse their impact.
Political parties have invariably avoided taking principled positions out of fear of
criticism from the religious groups and their military allies. Nevertheless, political forces
still expect another face of the same military to defang the mullah and roll back their
extremist agenda. The few issues of concern in the Hudood Ordinances redressed by the
present parliament can at best be received as a windfall but not as an indication of a
policy shift regarding human rights. This is not an occasion to salute dictatorship.
Excerpted with permission from
State of Human Rights in 2006
Human Rights Commission of Pakistan. Aiwan-i-Jamhoor,
107-Tipu Block, New Garden Town, Lahore-54600
Tel: 042-5864994
hrcp@hrcp-web.org
www.hrcp-web.org
ISBN 969-8324-23-2
344pp. Rs300