Pakistan votes to amend rape laws 15 November 2006: Pakistan’s national assembly votes to amend the country’s strict Sharia laws on rape and adultery. Until now rape cases were dealt with in Sharia courts. Victims had to have four male witnesses to the crime – if not, they faced prosecution for adultery. Now civil courts will be able to try rape cases, assuming the upper house and the president ratify the move. The reform has been seen as a test of President Musharraf’s stated commitment to a moderate form of Islam. Religious parties boycotted the vote saying the bill encouraged “free sex”.
– BBC 31 July 2006, it was a stiflingly hot afternoon in Islamabad. The entire audience at a packed seminar titled ‘Hudood Ordinances: Time for Repeal’ had moved out from the conference room to the street in front of the hotel to hold an impromptu demonstration. Women and some men brandished banners and shouted slogans. Many of the demonstrators had been fighting these laws since 1981. That year, activists had launched the Women’s Action Forum (WAF), an umbrella organisation of women’s groups. They had been galvanised into action by sentences of 80 lashes of the whip and death by stoning respectively for a young couple. Fehmida and Allah Baksh had eloped after Fehmida’s father had refused to allow them to marry, and her father had filed a police report alleging that she had been abducted. The couple had gotten married two weeks after Fehmida became pregnant. The newly instituted Hudood laws made extramarital sex – zina – a crime, punishable by severe, supposedly Islamic, punishments. (The Supreme Court later overturned the conviction for lack of evidence. Many such appeals are also heard by Pakistan’s Federal Shariat Court.) One of WAF’s founding members was Zohra Yusuf, the petite, steel-willed head of the Star weekend magazine in Karachi, where I was an intern fresh out of high school. I became a member too. During the 1980s, a time when public dissent was dangerous, WAF became a significant voice against military rule and for gender rights. Through demonstrations, seminars and letter-writing campaigns, this headquarters-less movement became a thorn in the side of the military regime. When the Hudood laws were imposed, only the WAF activists risked public protests. One of those long-time activists, Nasreen Azhar, was at the 31 July Islamabad demonstration. I remembered her bold comment on a television talk show from earlier: “Whenever anything is done in the name of Islam, people keep quiet and are afraid to say anything.” As usual at such demonstrations, dozens of policemen and -women blocked the street, official pistols and steel-tipped batons clearly visible. We all knew what would happen if the demonstrators tried to move to a more public venue, such as the Supreme Court or National Assembly on nearby Constitution Avenue – sometimes called ‘Dissolved Assembly’ and ‘Amended or Suspended Constitution Avenue’. Pakistan’s political realities, after all, include a police force that is used to suppress political opposition rather than to protect the citizenry. It is quick to fire teargas or bullets, or use batons on unarmed protestors who move beyond the limits set by the authorities. The Zia laws One particular incident during General Zia-ul Haq’s military regime, which stretched from 1977-88, catapulted the nascent women’s movement into the political foreground. On 12 February 1983, the Punjab Women Lawyers Association in Lahore organised a public protest (one of its leaders was the prominent human-rights lawyer Asma Jahangir) against the proposed Law of Evidence that reduced the testimony of two women in court to that of just one reliable witness. Many WAF members were part of this first public demonstration by any group against a martial-law edict. Police fired teargas and baton-charged the women to stop them from marching towards the Lahore High Court, injuring several and arresting nearly 50. Zia had grabbed power in a military coup during 1977. Two years later his regime hanged the elected prime minister, Zulfiqar Ali Bhutto, and crushed political dissent with arrests and disappearances, torture, military trials and executions, and strict censorship. Zia declared that he would hold elections in 90 days and ‘Islamise’ the country. “The motive behind these laws was political, not religious,” says Aslam Khaki, a Supreme Court lawyer and honorary counsel to the Federal Shariat Court, which was established in 1980 with the exclusive jurisdiction to hear appeals against convictions under the Hudood Ordinances. “Gen Zia-ul Haq had come into power after toppling a popularly elected government, and he had to justify his act. The slogan of Islamisation was convenient for this purpose.” Zia never did get around to elections, but he began the process of Islamisation through media policies and various legislation, including the Hudood Ordinances and the Law of Evidence. The United States supported him because it needed Pakistan to help fight the Soviets in neighbouring Afghanistan. The use of religion to gain support for the Afghans’ struggle for freedom from foreign invaders subsequently developed this fight into a jihad. And in the name of religion, much harm was done in Pakistan. Zia enacted the Hudood Ordinances as a set of criminal laws for which hadd (‘God’s limit’; Hudood or Hadood is the plural of hadd) punishments could be prescribed, such as stoning to death and amputation of limbs. Fehmida and Allah Baksh had been charged under the Offence of Zina. Zina is an Arabic word that means ‘fornication’ or ‘adultery’, and was not in use in Pakistan before the introduction of these laws. The Offence of Zina encompassed rape, abduction of women, prostitution and adultery. Other Hudood offences relate to property (theft and armed robbery), qazf (bearing false witness or making false accusations) and prohibition (drug trafficking and alcohol consumption). The fifth Hudood law, the Execution of Punishment of Whipping Ordinance, prescribes the mode of whipping for those convicted under the Hudood laws. The Zina law has most adversely affected women, particularly the poor and the illiterate. It criminalizes consensual sex between adults not married to each other (like Fehmida and Allah Baksh). It also blurs the distinction between adultery and rape, making fornication a criminal offence, and rape a private one in which the survivor has to prove her innocence – or risk being accused of having had illegal sex. Hudood punishments carry stringent requirements of testimony, and can only be administered on confession of the accused, or if the act has been witnessed by four adult Muslim males who are ‘truthful’ and abstain from major sins. Non-Muslims can only bear witness if the accused is also a non-Muslim, and women’s testimony is excluded by default. Hadd punishments cannot be prescribed if these requirements are not met, but the accused can be given a tazir punishment (tazir simply means punishment). Many religious scholars have opposed these laws as un-Islamic. Even the Federal Shariat Court ruled that the punishment of death by stoning was not Islamic; but Zia changed the bench, and the new judges upheld the punishment as acceptable. At the anti-Hudood laws seminar in Islamabad this past July, Mohammad Farooq Khan, an Islamic scholar from Mardan in the North-West Frontier Province, called the laws “the biggest insult to Islam”. The Council of Islamic Ideology, a constitutional body that advises Pakistan’s legislature, recently reviewed these laws as well, and reported them to be flawed and not in keeping with the teachings of Islam. Prior to the imposition of the Hudood Ordinances and the Zina law, the Pakistan Penal Code (PPC) did not consider sex outside of marriage a criminal offence. Extra-marital intercourse involving a married woman was a private offence for which only the man could be punished. Only the husband of an adulteress could file a complaint against her, but women could not be punished under this law. When it came to an accused man, the offence was compoundable and bailable, and if the prosecution dropped the charges, criminal proceedings were automatically abandoned. The punishment was five years or a fine, or both. The state could not be a party to the case. According to a 1997 report by the Commission of Inquiry for Women: In the pre-Zina Ordinance period, there were only a handful of reported cases of adultery. As soon as the law was changed to include women within the scope of its punishment, allegations of zina started to run into the thousands. This clearly indicates that as long as it was only the male who could be punished for adultery, there was a reluctance to prosecute. The Ordinance became a tool in the hands of those who wished to exploit women. The Commission also noted that the number of women in prison had risen drastically since the imposition of the Hudood and Zina laws. In 1979, there were only 70 women in Pakistani prisons. A decade later, in 1988, this figure had risen to 6000, with zina complaints comprising the majority of cases against women and girls. Tepid reform After Zia died in a mysterious airplane explosion in 1988, general elections brought Zulfiqar Ali Bhutto’s daughter Benazir Bhutto to power as the world’s first Muslim woman prime minister. However, her government did not have the necessary majority to overturn laws such as the Hudood Ordinances. She also faced fierce opposition from the religious parties that had gained strength during the Zia years. Post-Zia governments did not pursue Hudood cases with the same zeal, but thousands of women nevertheless continued to be prosecuted for zina. And more recently, their numbers increased from nearly 3300 in 2001 to more than 3800 in 2004. However, more cases ended in acquittal than in conviction. In 2002, a district court in the town of Kohat sentenced a young woman, Zafran Bibi, to death by stoning for sex outside of marriage. Zafran had alleged rape by her husband’s younger brother, as a result of which she had become pregnant. Because she could not prove that she was raped, and the pregnancy occurred while her husband was in prison, the district court took Zafran’s pregnancy as proof of her guilt. Once again, Pakistan’s women’s-rights activists led a massive public outcry. In August of that year, the Federal Shariat Court acquitted Zafran, and re-established the principle that a woman’s pregnancy could not be taken as proof of adultery. Coverage by the newly established private television channels raised public awareness in a way that newspapers cannot in a country with a literacy rate of barely 40 percent. Meanwhile, the current head of state, General Pervez Musharraf, who had seized power in a military coup in 1999, was trying to undo Zia’s legacy and ‘de-Talibanise’ Pakistan. He had already restored the provision of reserved seats for women in Pakistan’s assemblies and at local councils. In 2003, the National Commission on the Status of Women (NCSW) released its report* on the Hudood laws, recommending repeal. Majida Rizvi, Pakistan’s first woman High Court judge, headed the commission and its 17-member Special Committee, which reviewed laws relating to women. The committee included members of the president-appointed Council of Islamic Ideology, as well as religious scholars, lawyers and retired judges. They agreed that these laws do not fulfil the criteria for providing justice under national, international or religious law. Two dissenting votes came from Sher Zaman, chairman of the Council of Islamic Ideology, and Farida Ahmad Siddiqui, president of the women’s wing of the religious political party Jamiat Ulema Pakistan. Again, private television channels reported on the proceedings, and viewers saw veiled women from the religious parties demonstrating in Islamabad in favour of retaining the Hudood laws, as well as women’s-rights groups demonstrating in Islamabad and Karachi for their repeal. The NWFP assembly passed a unanimous resolution condemning the NCSW recommendation as a part of a “conspiracy against Islam”. Working as a news producer at the time, I brought out a couple of documentaries on women in prisons and the Hudood laws – the first time that the issue had been presented on Pakistani television in this format. Not much had changed since the 1980s, when I first started writing about the issue.
Modest relief Given two decades without public debate on the Hudood Ordinances – and with religious militancy increasing all the while – it was still only the women’s- and human-rights activists that were willing to stick their necks out on this issue. Parveen Parvez, a lawyer in Karachi’s City Courts, says that most zina cases are still “registered by parents against their daughters who have married of their own choice, or former husbands whose ex-wives re-married after the divorce”. Khalida Parveen, of the anti-gender-violence organisation War Against Rape, says that rape victims who are unable to prove their ‘innocence’ still risk being accused of fornication and imprisoned for adultery, “just like Zafran Bibi”. On the other side, members of the religious parties continued to oppose any move to amend or repeal this law, even though some accepted that it was being misused. Farida Ahmad, one of the two dissenting voters in the NCSW Committee’s recommendation to repeal the Hudood laws, even listed five categories of women whom she agreed are unjustly imprisoned: rape survivors, women who marry against their parents’ wishes, divorced women contracting another marriage whose ex-husbands accuse them of zina, “Then there are prostitutes – but some dalal (pimp) or other gets them out. And fifth, girls are forced into this profession by their fathers and brothers. I have met such girls in jail myself, who say they were forced [into prostitution] and arrested during a police raid.” So why did she oppose repealing these laws, which have sent thousands of innocent women to jail? “But thousands of women have only been shut away in prison,” she retorted in 2003. “No one has ever been punished under the Hudood laws, because of the condition requiring four witnesses. That is what has saved them.” “If there were only administrative problems, it would be another matter,” said NCSW Committee member Shaiq Usmani, a retired Sindh High Court judge. “But the law itself is deeply flawed.” He argues that the driving principle in Islam is the provision of justice, so any law which leads to injustice cannot be Islamic. Speaking at the Islamabad conference in July, he suggested that the Hudood laws be re-named the ‘Zia Laws’ in order to remove the religious connotation. However, under pressure from the religious lobby, the President Musharraf-led government let slip the opportunity provided by the NCSW’s recommendation to amend or repeal the Hudood laws. The issue lingered on until May 2006, when the channel Geo TV started a public awareness campaign about the Hudood laws, Zara Sochiye (Just Think). The Geo campaign included talk shows and interviews, featuring not those who had for years been campaigning against these laws, but religious scholars who admitted that the Hudood Ordinances and their associated legislation are not divine. For the first time since the Hudood laws were promulgated, the issue was being debated in the public arena. Soon afterwards, on 7 July, President Musharraf issued a directive that allowed women detained for minor crimes other than terrorism and murder to post bail before trial, an option previously unavailable to zina prisoners. Around 1300 women in prison were immediately released on bail. While welcoming the step, human-rights activists noted that most under-trial prisoners are entitled to bail but cannot afford it. Nor did this step address the root cause of the problem – the Hudood Ordinances and the related laws, which kept sending women to prison. The government promised to amend the Zina Ordinance through the Protection of Women (Criminal Laws Amendment) Rights Bill in the previous assembly session, starting in August 2006. Four months later, Parliament finally accepted this amendment on 15 November. “One drawback of the law [after amendment] is that adultery still remains ‘a crime against the state’,” comments Zohra Yusuf. It also is still punishable with stoning to death under the Hudood Ordinances. These amendments “are not a substitute for the repeal of the Hudood Ordinances,” emphasises Supreme Court advocate Iqbal Haider, General Secretary of the independent Human Rights Commission of Pakistan. “However, this is a positive step, although much needs to be done.” It has been a long fight. But it is not over yet. This article is based on a longer paper originally written for the Harvard South Asian Journal. *Available online at www.new.ncsw.gov.pk/index.php