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November 15, 2006
Pakistan: Islamic Rape Laws To Be Amended
Pakistan's laws on rape have been contentious, and attempts to amend them have foundered twice this year. Because they are based on Islamic Sharia Law, a woman who has been raped must provide four witnesses to the event, otherwise her reporting of rape is seen as a confession of "zina" or unlawful sexual intercourse, which can incur the death penalty and 100 lashes. So far, no-one has been executed, but several women victims of rape have been imprisoned as "adulterers".
The need for there to be four witnesses to "adultery" stems from the Koran, Sura 24 (An-Nur, "Light"), verse 13: "Why did they not produce four witnesses? Since they provide not witnesses, they verily are liars in the sight of Allah".
The punishment derives from the same Sura, verse 2: "The adulterer and the adulteress, scourge ye each one of them (with) a hundred stripes. And let not pity for the twain withhold you from obedience to Allah, if ye believe in Allah and the Last Day. And let a party of believers witness their punishment." (translations by Pickthall).
The so-called Hudood Ordinances are 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, 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 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-witnesses 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.
In September last year, Sadia Sihail, who works as legal aid lawyer in Karachi women's prison, said: "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, 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.
Article 25 of Pakistan's Constitution guarantees equal rights for all, irrespective of sex, religion race and creed, but the Hudood Ordinances blatantly discriminate against women.
A small concession to the Hudood rulings was made in summer. 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 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 this year. 1,500 women awaiting trial were ordered to be released. Only those accused of murder, drug trafficking and gangsterism were to be denied bail.
Many women were released, but for some, the stigma of being charged under the Hudood Ordinances made them too fearful to return to their homes. The government had made no provisions for such women, leaving them relying upon the assistance of NGOs to have roofs over their heads.
On August 2, a cabinet meeting approved in principle the removal of rape from the Hudood Ordinances, and bringing in a new law which would be within the secular laws of the PPC. The new bill was provisionally entitled the Protection of Women Bill, 2006. Yet on August 8, following opposition from Islamist politicians and leaders, this bill was delayed.
The main opposition to any changes in the Hudood laws has always come from the Muttahida Majlis-e-Amal or MMA, a coalition of Islamist parties who have 65 members within the full complement of 344 representatives sitting in the National Assembly.
The issue divided, and still divides, the nation. At the end of August, thousands of women from the liberal Muttahida Qaumi Movement marched in protest at the intransigence of the MMA. In Karachi, women called for the death of the MMA leadership (pictured, above left).
The MMA's approach to the subject of rape has been intolerant and medieval. 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".
The Women's Protection Bill suffered further obstacles, imposed by the MMA. The MMA announced that their members would all resign from the National Assembly if the bill went ahead. On September 5, Maulana Fazal-ur-Rehman, secretary general of the Mutahida Majlis-e-Amal (pictured right) told a news conference: "We will render every sacrifice for the protection of Shariat laws."
The cabinet had hoped to introduce the amended Protection of Women Bill, 2006 by September 11, but with widespread protest by the MMA, it was delayed until Wednesday September 13. A rushed compromise was made to the bill. 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."
The compromise went further than that, as it also allowed that adultery would be made a crime under civil law, the man-made laws described as "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 last-minute adjustments were condemned by Asma Jahangir of the HCRP. She called the amendments "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 compromise amendment had introduced a new crime onto the civil code - that of "lewdness", which was described as "a man and a woman are said to commit lewdness if they wilfully have sexual intercourse with one and another."
The presentation of the bill was delayed, with its expected introduction on Thursday, September 14, but before that day arrived, the government decided that the bill should withdrawn.
Yesterday, it was announced that amendments were to be made to the Protection of Women (Criminal Laws Amendment) Bill, proposing that Section 496B in Clause 7 of the PPC should forbid lewdness. The punishments for lewdness would be a maximum of five years' imprisonment, and a maximum fine of 10,000 rupees ($165).
The government said that any one making any charge of lewdness, without substantiating the allegation, would be liable to be punished for qazf. This exists in the Hudood Ordinances, though is rarely imposed. Qazf, according to Sura 24, verse 4, should be punished by 80 lashes. Under the proposed civil code amendment, Section 496C of the PPC, qazf will be dealt with thus: "Whoever brings or levels or gives evidence of false charge of lewdness against any person, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to a fine not exceeding 10,000 rupees."
Despite the draconian nature of the amendment to the Protection of Women Bill, by placing "zina" under the civil law, the MMA were outraged. Earlier today, Maulana Fazal-ur-Rehman of the MMA said to the lower house of parliament: "This is an attempt to create a free sex zone in Pakistan. Existing laws are correct and should be maintained. There is no need for any amendment. The changes are not in line with Islamic teaching."
The only advantage to this amended and emasculated Protection of Women (Criminal Laws Amendment) Bill is that finally, a woman who has been raped will not be forced to undergo the religious, Hudood Ordinance, trial by Islamism, where she would have to achieve the impossible by producing four witnesses, when four witnesses are rarely available in rape cases.
The vote has been made, and finally, according to Reuters and Agence France Presse, the removal of rape and adultery from the intransigent dictates of the Hudood Ordinances seems soon to become official law.
The lower house voted through the Women's Protection Bill amendments, and all that remains is for the bill to be approved by the upper house.
After the vote, prime minister Shaukat Aziz told the National Assembly: "It is a historic bill because it will give rights to women and help end excesses against them."
Before the vote took place, the members of the MMA stormed out of the parliament building.
Posted by Giraldus Cambrensis at November 15, 2006 10:29 AM
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