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July 8, 2006

Pakistan: Islamic Rape Laws Amended - 1,300 Women To Be Freed From Jail

The controversial Islamic laws knows as the Hudood Ordinances (sometimes called Hadood) were introduced by the Islamist dictator General Zia ul-Haq in 1979. The Hudood Ordinances are "limitations imposed by Allah" and relate to sharia law. The most controversial aspect of these laws, as we mentioned on April 6 relate to adultery.

In a bizarre act of jurisprudence, both rape and adultery fall under one category, that of zina, (Islamic) unlawful intercourse. Because adultery and rape are defined as the same, if a woman has been raped, reporting the crime can lead to dire consequences. Unless the woman can produce "four witnesses" to testify that she was raped against her will, she can be charged with adultery. As a result, many women rape victims are imprisoned for adultery.

The maximum sentence for a crime of "zina" is to undergo Hadd, i.e. to be stoned to death, though in practice this has not happened. Hudood covers other areas, which are listed here. The Hudood Ordinances also prescribe that drinking be punishable with 80 lashes, theft with the amputation of the right hand.

Currently 6,000 women are jailed in Pakistan, with 80% imprisoned for breaching these ordinances. A large proportion of these are imprisoned under the "adultery" laws.

We wrote on May 25 that the federal minister for law, justice and human rights, Wasi Zafa, announced that the Hudood Ordinances would be repealed because they were being "misused". I was skeptical about this, as the laws are regarded as sacrosanct to many Islamists in government, particularly among the opposition six-party alliance known as the MMA ( Muttahida Majlis-e-Ama), who are committed to introducing even more sharia-based laws into Pakistan's Penal Code.

As expected, these parties, led by the ferociously Islamist Qazi Hussain Ahmad, ameer of the Jamaat-e-Islami party, mounted a fierce campaign against any tampering with the Hudood laws, as they are supposedly "God's laws". Zia ul-Haq introduced Hudood, as well as other discriminatory laws, such as Qisas and Diyat and the Law of Evidence, as part of a campaign which he called "Islamization". In effect, the dictator sought to appease the mullahs and their followers while he ripped apart Pakistan's democracy.

Problems have existed with Hudood Ordinances as they sometimes involved non-Muslims. On Sunday May 28, Javed Ahmad Ghamdi said on Geo TV: "Minorities should be exempt from the Hudood Laws and be punished in accordance with their own laws." He noted that Islam does not advocate the jailing of women. "The interpretation of divine laws in Hudood Ordinance is totally against Islamic knowledge and wisdom," he said.

On Monday, June 5 a new chief justice of the Federal Shariat Court was sworn in at the Supreme Court's ceremonial hall, and he said his first duty would be to review the Hudood laws, as he said they were "man-made". Haziqul Khairi said: "The Council of Islamic Ideology (CII) has not finalised the recommendations on the amendment to Hudood laws. However the CII recommendations are not binding on the government." He denied that the West was pressuring Pakistan to repeal the Hudood Ordinances.

On June 11 in Karachi, a group of religious scholars convened and, aware that to save the Hudood Ordinances, they had to be amended as certain "loopholes" existed within them. They agreed ZIna should only be considered if four witnesses are brought. Many instances of Qazf existed, where false accusations of Zina had been brought. The scholars agreed that if an accuser did not bring four witnesses then his or her punishment should be 80 lashes. They acknowledged that imprisoning women was detrimental. Islam protected women's respect and when a woman was sent to jail, they claimed, her acceptability and respect within the family, community and society were compromised.

The following day, it was announced that The Law and Justice Commission of Pakistan (LJCP) had set a deadline of three months to dispose of Hudood cases. Chief justices of provincial high courts and the chief justice of the Federal Shariat Court were present at the meetings. The law commission observed that many women were in jail for committing adultery under the Hudood Ordinance.

On Friday, June 30, The National Solidarity for Equal Rights (NSER), a group of 11 human rights organisations passed a resolution to demand the repeal of the Hudood Ordinances.

NSER's statement reads: "While the Council of Islamic Ideology - which does not include representatives of human rights organisations or religious minorities - reviews the Hudood Ordinance, NSER is of the view that amending the ordinance won't undo the injustice existing in the very approach and text of these laws."

"The Hudood Ordinance has inbuilt religious discrimination, as under these laws non-Muslim citizens can neither be full witnesses nor can a non-Muslim judge preside over a hearing even if they have the same qualifications as Muslim judges. Non-Muslim lawyers are barred from pleading Hudood cases in the Federal Sharia Court. These laws therefore contradict the fundamental rights of citizens pledged in Article 25 of the Constitution, which guarantees equal rights for all irrespective of sex, religion, race and creed."

Women's groups have campaigned against Hudood and the other laws mentioned, but Hudood in particular has been seen as a violation of women's rights. On July 4, an alliance of women activists released the following statement: "Over the last more than two decades, we had been fighting hard to get rid of Hudood ordinances introduced by a despot just for his personal interests. Therefore, total repeal is the only way out and those who talk about amendments, are actually supporters of these laws."

However, Musharraf decided to ignore the MMA, who are constantly threatening revolution in the streets, and calling for him to be overthrown. On July 1 he asked a council of Ulemas (Islamic scholars) to work towards a concensus regarding amendments to the Hudood laws. The Ulema did not comply and stated on Thursday 6 July that there should be no changes to the Hudood Ordinances. According to Dawn, the convention stated that the punishments for adultery, slander and liquor offenses had been prescribed by Holy Quran and Sunnah.

Yesterday, according to Dawn, the BBC and Al Jazeera, Musharraf ordered that 1,300 women who are currently in prison under the Hudood Ordinances shall be set free. The government has promised that it will assist those among the women who are in need of shelter or legal protection.

The freeing of the women was announced by Sumaira Malik, the minister for women's and youth affairs, who said: "President Musharraf has taken a bold decision to protect the rights of women and save them from the misuse of Islamic laws."

Malik (pictured) called it a "great day in the history of Pakistan with regard to promotion of women's rights." She also promised that the government would abolish other un-Islamic laws affecting women.

Musharraf said: "I am on women's side for their empowerment." He stated that women were also becoming empowered by better representationin government and also by specific women's loans provided by Khushhali Bank. "Education will be a key factor in emancipation of women," he asserted.

Women who are in jail for offenses such as murder or terrorism will not be freed from jail.

In practice, though a great step forward, particularly for women imprisoned for adultery, the amendment is only that - an amendment. The only part of the original 1979 Hudood Ordinances that has been changed is clause 497, which relates to women being allowed bail which was previously unavailable to them. The new amendment is called "Law Reforms Ordinance 2006."

It is still possible for a woman accused of adultery to receive Hadd, and be stoned to death, though even the dictator Zia ul-Haq never allowed this to happen, knowing the international condemnation it would provoke.

There is still anger from the Islamist fanatics in Pakistan that the Hudood Laws were tampered with at all, even though Islam does not advocate imprisoning women. Beating women, lashing them, and stoning them, all these Islam supports, but not jail.

Another reason why the punishments such as hand amputation and stoning have not been carried out is because of the Byzantine nature of Pakistan's legal system. A judgement passed in one court, a civil court, can be overturned in a Federal Shariat Court, and a judgement passed in a Federal Shariat Court can be overturned by the Supreme Court, and only judgements deemed acceptable to all the varying judicial bodies can become final.

While some groups rejoice, there is no cause for long term optimism. Women who have been raped must still produce four male witnesses, who must be Muslim, to prove their cases, otherwise, they will still be charged with adultery.

Posted by Giraldus Cambrensis at July 8, 2006 4:58 PM

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