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September 17, 2006
Pakistan: Islamic Law, Rape and Women's Rights
But even though honor killing is now illegal, it still allows a murderer to go free. Because of a clause called "compoundability", a person who performs an honor killing can escape punishment if the victim's relatives accept a payment. As most honor killing victims are murdered by their own families, this aspect of "islamic justice" becomes meaningless.
We reported on honor killings in Pakistan and other Muslim countries on April 28. Such killings are known as kari-karo, a term meaning "black", as such crimes involve a victim being perceived as a bad woman, and a bad Muslim. Though the vast majority of victims of honor crimes are women, some men too are murdered or mutilated for transgressing against notions of Islamic "honour".
Pakistan's Human Rights Commission (HCRP) estimates that up to 1,500 people, mainly women, are murdered in honour killings annually. Sometimes the authorities collude in such cases. On September 1, HCRP reported that for the "crime" of falling in love with the daughter of a local government official in Vehari near Multan, a 17-year old boy had his tongue cut off by police, and his family implicated in various crimes.
The situation of women in rural areas can similarly be made worse by the involvement of government officials. One leading proponent of women's rights is Mukhtar Mai (pictured below, right), herself a victim of a rape ordered by a Muslim village court in Punjab province. She had committed no crime, but her younger brother had been seen walking with a girl from another tribe. The village court ordered Mukhtar to be gang raped. She was publicly stripped naked after being raped and displayed to the village.
That event happened in June 2002, and President Musharraf announced that he would ensure justice was brought to her attackers. Six of those involved with her rape were given death sentences. But on March 2 this year, these six appealed to the Supreme Court and were acquitted. As they had influence and had made threats to potential witnesses, no-one dared appear to testify against them. And after their acquittal, Mukhtar Mai was threatened, and local police in her village were adding to the intimidation.
A leading police official threatened to have her imprisoned for fornication, to discredit and silence her. She even received death threats from an associate of Musharraf. With her rapists silenced, the police official would have been acting within the law to have her tried for fornication, or "zina" - illegal intercourse.
This is as a result of the so-called Hudood Ordinances, a set of laws which were introduced to Pakistan's Penal Code (PPC) on February 10, 1979. These laws were brought in by the dictator General Zia ul-Haq (pictured top left), who ruled from 1977 to 1988. He also introduced the notorious blasphemy laws in 1986, to appease Islamists. Under Section 295-C of the PPC, merely for defaming the prophet Mohammed, a person can be sentenced to death.
The Hudood Ordinances are equally pernicious, and they basically removed the distinction between rape and adultery. The full text of the Hudood laws can be found here. In both cases of zina (intercourse between people not validly married to each other) or zina-bil-jabr (illegal intercourse without consent) the perpetrator can be given a death sentence of being stoned publicly. Up to 100 lashes can also be given.
In article 8 of the Hudood laws, proof of zina or zina-al-jabr (rape) requires that either a) "the accused makes before a Court of competent jurisdiction a confession of the commission of the offence" or b): "at least four Muslim adult male witnesses, about whom the Court is satisfied, having regard to the requirements of tazkiyah al-shuhood, that they are truthful persons and abstain from major sins (kabair), give evidence as eye-widnesses of the act of penetration necessary to the offence: Provided that, if the accused is a non-Muslim, the eye-witnesses may be non-Muslims."
Very few cases of rape happen with four witnesses present, let alone four "reliable and truthful" Muslim witnesses. For this reason, there is currently a virtual epidemic of gang rape in Pakistan. According to HCRP, a woman is gang-raped every eight hours in Pakistan. Women are fearful of reporting cases of rape, as the law demands that she produces four witnesses. Unable to do so, she automatically is considered to have proved herself guilty of zina under clause 8 (a) by means of making a full confession.
Though no-one has yet received the ultimate punishment of "Hadd" and has been publicly stoned to death under these laws, at least 26 women have been sentenced to death for the crime of "zina", but in all these cases superior courts reversed the death sentences. However, the Hudood Ordinances are still enforced, and women are given lashes and sentenced to prison terms for "zina", even though they are rape victims.
The Observer today reports on the case of a 19-year old girl called Fareeda. She lives in a safe house for victims of rape on the outskirts of Shekhupura in Punjab province, which is run by an NGO. In spring last year, she was raped by a neighbour, who was a postman, and his teenage son. She got pregant and had a subsequent miscarriage.
She told her parents what had happened, and they agreed to her being tried under Hudood Ordinances for zina. She was sentenced to 100 lashes, and sent to prison. She only received 25 lashes, because she was young, and was freed from jail after four months because a relative paid a bribe.
Another rape victim at the safe house in Shekhupura, Sharma Zia, said: "I know I can't stay here for ever. My home town isn't that far away, but I can't return. The men who raped me live close to my parents and even they took the side of my rapists. My allegations only brought them shame. Sometimes I feel like I only bring people shame. I wish I could leave, go abroad, but I know that will never happen."
Rape is used as a punishment, with its perpetrators safe in the knowledge that they can get away with the crime. At the start of this year, 26-year old nurse Rubina Kousar from Punjab refused to perform illicit abortions. As a result, three men broke into her lodgings in a health center in Mattrai, western Punjab province, and raped her.
And the accusations of zina are often brought against another person as a weapon of spite. On January 18 2005, 45-year old Hidayat was arrested under Hudood laws, after her former husband accused her of adultery with a tenant. She was arrested and spent three weeks in a Peshawar jail with her two-year old daughter. Even though a medical examination showed she had not had sex for months, and she was released, the shame of the accusation made her life unbearable.
"All my relatives have severed ties with me. They treat me as inhuman. What wrong have I done? The man who falsely accused me is still at large and I was punished for my uncommitted crime," Hidayat said.
Sadia Sihail, who works as legal aid lawyer in Karachi women's prison, said in September last year: "About half of the women in this prison are here because of zina. Some of these women are here for enticing another woman into zina. Most of these cases are acquitted and many of the charges are false.
If a girl escapes from home and marries against the will of her family, they sometimes forge a prior marriage certificate to try and prove that she has married twice. By the time the case is heard and she is released, she could have spent years in jail.
These women are totally illiterate, hardly aware of their rights, they don't know about zina laws and know nothing of the problems that exist for women in Pakistan. Most of them are here without any support. Sometimes, their family is the cause of their plight."
On May 25 Western Resistance reported that Pakistan's federal minister for law, justice and human rights, Wasi Zafar, announced that the Hudood Ordinances would be repealed. At that time, according to HCRP, of the 6,000 women and children being held in prison in Pakistan, the vast majority (80%) were imprisoned because of the Hudood Ordinances, most of these being charged with adultery.
We warned that the opposition coalition of Islamist parties, the Muttahida Majlis-e-Amal or MMA would fiercely contest any changes to the Hudood Ordinances, and we have been proved right. We reported on the struggle by the Islamist groups to make the government abandon its plans to tamper with the Hudood laws on July 8.
One small concession was made to justice, and this had to be verified by various Islamic bodies. The vocal supporters of Hudood insisted that these were Islamic laws, ordained by Allah, and therefore could not be revoked. The Hudood laws are blatantly discriminatory, as evidence from non-Muslims is disallowed, thus contravening Article 25 of Pakistan's Constitution which guarantees equal rights for all, irrespective of sex, religion race and creed.
It was argued that Islam does not advocate the jailing of women, and some religious scholars argued that instead of prison, lashes would be a "less detrimental" punishment for women. With no consensus on the issue, the small concession was made, whereby the keeping of women in custody awaiting trial was abolished. Clause 497 of the Criminal Procedural Code (CrPC) which had refused women bail was revoked under the new "Law Reforms Ordinance" on July 7. Musharraf ordered that 1,500 women who were in jail awaiting trial should be released. Only those on charges of murder, drug running and gangsterism were to be denied bail.
45 women from Karachi were due to be released. In Punjab, where 1,022 women were in prison, 400 were due to be allowed bail. 189 of these were women charged under Hudood laws. In Adiala Jail in Islamabad, the capital, where 202 women were imprisoned, 106 who were held under Hudood laws were eligible to be freed. Several of the women in jail had their children with them.
In eastern Pakistan, five days after the announcement by President Musharraf, only 70 women had been released. The next day, 69 more were released from Punjab prisons. But for some women, the notion of returning to their homes was hard. On July 15, it was reported that several women eligible to be released from Peshawar Central Jail could not handle being freed to return to their communities.
Peshawar is in the North-West Frontier Province, a fiercely tribal region where issues of "honour" are fought over with guns, and for many Pashtun communities women are mere chattels. With the stigma of being charged with zina they feared going home. 37 women were eligible for bail, but at least seven refused.
The government had made a grand statement about how it was advancing women's rights, but in practice, it had made no recommendations for the safety of such women, once released. There were no plans from the government to provide accommodation for these women, forcing them to rely upon safe-houses provided by NGOs. Dr Fakharul Islam, the director of social welfare, special education and department of women, said: "Our department has not received any directives from the federal government to provide shelter to women prisoners who do not want to return home after their release."
In a joint statement, numerous NGOs working for women's rights demanded that such provisions be made.
On July 24 the All Pakistan Minorities Alliance (APMA) argued that Hudood laws discriminated against Christians and other minorities, and therefore should be abandoned altogether. It issued a statement claiming that these laws destroyed interfaith harmony.
Two days later, a cabinet member said that Musharraf had been advised not to repeal the Hudood Ordinances as a result of political pressure. It was for this reason that he had placed the issue before so many religious committees, hoping to get their approval, rather than moving to abolish the law. The MMA, as expected, were threatening to have countrywide protests should the laws be tampered with in any way. Cabinet members had said that changes to these laws would damage their own election campaigns.
On July 31, it was announced that a report by former chief justice of the Lahore High Court Dr Javaid Iqbal had found that the Hudood Laws had never been introduced properly by Zia ul-Haq following legal procedure. Writing for the Aurat (Women) Foundation, Iqbal wrote that "these laws were not passed through proper constitutional procedure; rather these were retained as a 'trade-off' or 'give and take' at the expense of the restoration of the constitution by the then political government." The same day, it was reported that the chairperson of HCRP, Asma Jahangir, warned that if the Hudood Ordinances were not repealed, human rights groups would mount nationwide protests.
On August 2, a cabinet meeting approved in principle the removal of rape from the Hudood Ordinances, and bring in a new law which would be within the secular laws of the PPC. The draft proposals would have to be submitted to the National Assembly and then passed through several consultancy stages before being put to a vote.
But at the end of this year, there are elections, and these are threatened by the issue of changes to the Hudood laws. Musharraf promised rights activists that he would back moves to amend or repeal the Islamic laws at that time.
On August 8 the proposed amendment bill, given the name Protection of Women Bill, 2006 was, following opposition from Muslim bodies and politicians, a decision to delay it. Many wanted the whole issue delayed until after the elections. Musharraf agreed to a delay, but said it would not be delayed for a long time.
At the end of August the Islamist coalition, the MMA, announced that it would be holding nationwide protests against the proposed amendments on September 1. A leader of the MMA, Maulana Abdul Malik, said that the government wanted to give the right of presenting evidence in a rape case to non-Muslims, whereas Islam "only believed in the statements of pious Muslims".
There were protests of thousands of people at the end of August from people who wanted the Hudood laws to be changed. These came from the liberal Muttahida Qaumi Movement. In Karachi (pictured left), thousands of women shouted for the "death" of the leaders of the Islamist MMA, who were behind the obstructions to the law.
On Friday September 1, politicians of the Pakistan People's Party Parliamentarians (PPPP) were voicing dissent from the amendment as it still was making zina an offence under Tazeer or "man-made law", rather than under Hadd, or "divine law".
On September 4, a parliamentary select committee approved the draft bill, but removed adultery from being an offence under the PPC. The meeting had been boycotted by members of the MMA and another party, the PML-Nawaz.
The MMA took its dissent a step further by announcing that if the bill went ahead, they would then resign from the government. When a report on the bill was announced at the National Assembly, members of the MMA and PML-Nawaz stormed out, shouting "Go, Musharraf, go". Maulana Fazal-ur-Rehman, secretary general of the Mutahida Majlis-e-Amal (MMA) said to a news conference: "We will render every sacrifice for the protection of Shariat laws."
With 65 members threatening to go, and the National Assembly having 344 members, a walkout on this scale could force by-elections to take place.
On September 9, it was announced that the government was going to push forward the Protection of Women Bill, 2006 with it being presented on Monday, 14 September. Sher Afgan, minister for parliamentary affairs said that "we will get it approved by the National Assembly at all costs."
But by this time, 65 members of the National Assembly, belonging to the MMA were blackmailing the government with threats of resignation. The day before, after Friday prayers on September 8, the MMA staged demonstrations outside city mosques in Karachi, demanding no changes be made to the Hudood laws. They claimed the Women's Protection Bill was "anti-Islamic".
The government announced that it hoped to pass the bill on September 11, while the day before, various Muslim scholars, Maulana Mufti Usmani, Maulana Hasan Jan, Ghulam Rehman, Maulana Zahid Rashdi and Maulana Hanif Janlindhri told the leaders of the PML that the bill contradicted the Koran and Sunnah. The politicians had arued that the bill should be passed, and changed later, but the Muslim scholars refused to accept this. The same day, the Prime Minister, Shaukat Aziz said that the Ulema committee, which was due to convene on Saturday 9 September to discuss the bill, was only a recommendatory body, not a legal requirement. The Ulema committee failed to sit on Sunday.
As a result of the chaos and confusion, the government decided on September 11 to once again defer the bill. It was rescheduled for Wednesday 13 September. According to Associated Press, the government had apparently made a compromise deal on the law. Under this compromise, a victim of rape could choose to have those they accused tried under either the Hudood Ordinance, by which she should provide four witnesses, or under the civil code (PPC). Senator S.M. Zafar said: "It's a compromise which doesn't make difference in the substance (of the law), but provides two different procedures for prosecuting a rape case." Hafiz Hussain Ahmed of the opposition MMA said: "Now they have acknowledged that the amendment was in conflict with the Quran."
According to the Daily Mail the compromise with the Islamists went much further. It also agreed that adultery would be made a crime under the new bill under the civil code or "Tazeer". The government had also agreed to an overarching clause in the law, which stated that the teachings of the Prophet Mohammed would have effect "notwithstanding anything contained in any other law".
The exact wording of this compromise (one of three amendments) was: "In the interpretation and application of this ordinance, the injunctions of Islam as laid down in the Holy Quran and Sunnah shall have effect notwithstanding anything contained in any other law for the time being in force."
As well as making adultery a crime, punishable by up to five years in prison, a fine could also be imposed.
In essence, the bill would have made a mockery of the existing principles of law in Pakistan, which are already open for ridicule. Asma Jahangir of the HCRP was not amused. She said: "Last night was the nail in the coffin.....They have hoodwinked women into believing that this is a law for the protection of women. It is a law for the protection of religious extremists."
The Information Minister, Muhammad Ali Durrani, announced that he thought the changes were satisfactory. He said: "We have tried to create a consensus in a democratic fashion that is acceptable to all parties. No substantive changes have been made to the original proposals. The original spirit of the bill remains unchanged."
A draft of the new bill, expected to be presented on Wednesday, never happened. On Monday September 11, women clad in burkas and hijabs (below right) had gathered outside the National Assembly in Islamabad to protest the Women's Bill.
But the loudest voices of rage came from the human rights groups. The government had inserted a clause of "lewdness" (adultery) to the civil code, and the Women's Action Forum (WAF) stated that this insertion was "yet another tool to harass innocent citizens."
The lewdness/adultery clause, where "a man and a woman are said to commit lewdness if they wilfully have sexual intercourse with one and another," is still not Islamic, as it would still require the evidence of four witnesses to be proven, states the WAF. Sura Nur (Sura 24 - "Light"), verse 15 states that there must be four witnesses, and no punishment is stated. "Moreover, the Quranic verse (16 of Surah Nur) which refers to punishment is for lewdness of men. The insertion of this crime clearly contradicts the claim of amending the bill in light of the Quran and Sunnah."
Though scheduled to be passed in the National Assembly on Wednesday, on Tuesday the government announced it would take place on Thursday. Altaf Hussain, head of the liberal Muttahida Qaumi Movement and an ally of the government, said that his party would oppose the bill in its amended form. He said the changes were "totally against Islamic tenets and against the sanctity of women's rights."
With the government's ally preparing to sabotage the bill (sabotaged already beyond its original measures), the Bill was finally withdrawn, reported the BBC on Wednesday. The laws would be revised again, in an effort to gain consensus. But, as described in Dawn, consensus was never going to be possible. If the government had not caused a crisis in Baluchistan, where it had killed a leading activist, Nawab Akbar Bugti, perhaps it could have pushed the bill through and ignored the whinings of the MMA.
And as the government decided to put the bill on ice again, Pakistan was being criticised for its poor track record on women's rights when he met with members of the European Parliament's foreign committee.
Ali Durrani, the information minister, said the government was in "no hurry" to pass the Protection of Women Bill, justifying that a consensus needed to be achieved. Even though the redrafted bill had been changed to satisfy the demands of the MMA, the MMA secretary general Fazlur Rehman was still complaining after the announcement of the delay. He said that the bill still contained clauses that the MMA felt were contrary to Islamic values.
On Friday September 15, the US criticised Pakistan for its "discriminatory" laws. The State Department, in a 22 page document, rebuked the government for retaining its legal bars on the Ahmadiyya Muslims which are contained in its blasphemy laws, introduced by the distator Zia ul-Haq. It also listed the Hudood laws as discriminatory.
"These laws are often used to intimidate reform-minded Muslims, sectarian opponents, and religious minorities, or to settle personal scores," the report stated.
The way that the progress of the Protection of Women Bill has gone from a movement of positive intent to become a pig's breakfast is a sign of just how politically weak Musharraf is right now. A small faction of Islamists, comprising 20% of the National Assembly has effectively sabotaged any possible reform of the Hudood Laws. Forget Article 25 of the Pakistan Constitution, where equal rights are guaranteed for everyone, irrespective of gender, race, religion or creed. With Islamists around, such concepts are meaningless.
Posted by Giraldus Cambrensis at September 17, 2006 11:05 PM
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