Arriving at the Women Protection Act
Many critics of President General Pervez Musharraf have been dismissive of his Protection of Women (Criminal Laws Amendment) Bill 2006, which was passed unchanged by both the National Assembly and Senate, and enacted into law on 1 December. The new bill has been attacked as being little more than the grande finale of the president's latest political reinvention tour, and for addressing just two of the five aspects of the country's oppressive Hudood Ordinances – adultery and rape.
Opponents insist that the principle purpose of the new legislation remains the consolidation of Gen Musharraf's 'enlightened moderation' creden-tials on the international stage. Indeed, even the bill's much-awaited parliamentary debut before the National Assembly in mid-November appeared to have been timed for maximum impact. It was on the same day that In the Name of Honor, the ghost-written memoir of Mukhtaran Mai – the gang-rape victim who has since become an international icon against female subjugation – went on sale in Pakistan.
Many have felt that this coincidence was orchestrated to dilute memories of the general's infamous 'rape-to-riches' faux pas at the 2005 United Nations General Assembly in New York, when he suggested that Pakistani women often alleged rape to secure either financial compensation or fast-track resident status to Western countries. It may also have been designed to erase memories of the president's placing of Mai, also in 2005, on the country's 'exit-control' list, which barred her from attending a conference in the US to share her ordeal. But while Gen Musharraf's critics continue to insist that any change in his approach to the plight of Pakistani women is merely cosmetic, it must nevertheless be noted that no political party in the country voted against his women's bill. Thus, the general has secured his place in history as the only Pakistani leader to have ever successfully challenged any aspect of the Hudood laws (See Himal December 2006, "Fighting Hudood, protecting women").
Firewall protection
The Women Protection Act (WPA) addresses the most controversial aspects of the Hudood Ordinances, a group of laws that date back to 1979 and Zia-ul Huq's rule – those pertaining to adultery and rape, which the new bill categorises as two separate offences. While adultery remains within the purview of Islamic law, the WPA abolishes the death penalty and flogging for those accused of this crime and also reverses its non-bailable status.
The WPA's most significant achievement, however, is the removal of rape from the jurisdiction of Islamic law, under the rationale that the Koran makes no specific mention of this crime. Instead, rape is now in the ambit of Pakistan's criminal legal system, under the Pakistan Penal Code. That this inclusion abolishes the Hudood prerequisite of four male witnesses is also a significant accom-plishment. The Hudood provisions pertaining to adultery and rape made no distinction between consensual and non-consensual unlawful sex. As such, any woman filing a rape charge would automatically find herself open to adultery charges if she were unable to fulfil the eyewitness criterion, since she would have inadvertently admitted to having had unlawful sexual relations. Thus Pakistanis must also welcome the introduction of safeguards to prevent a woman from being liable on adultery charges when, for whatever reason, she fails to prove her case before the courts.
Yet even before it entered into law, the bill's presentation before the National Assembly succeeded in upsetting the political applecart, with various parties fearing that the government had deliberately manoeuvred to shape possible alignments ahead of the forth-coming general elections. The Muttahida Majlis-e-Amal (MMA), a government coalition partner, was the most vociferous in protesting the bill. Indeed, although the six-party religious alliance, which heads the provincial governments in both NWFP and Balochistan, did not vote against the bill, it did boycott the assembly proceedings. Vehemently opposed to any changes to the Hudood Ordinances, the MMA leadership accused the government of tabling a bill in violation of Islamic injunctions set out by the Koran and Sunnah, simply to appease its Western allies on the 'enlightened moderation' front.
This was to be expected. Even during the bill's review process, the MMA refused to participate in the meetings of the parliamentary-approved committee appointed to ensure that the bill's provisions in no way violated Koranic injunctions. When the government subsequently responded by setting up a parallel body comprised of nine religious scholars outside of the parliamentary framework, Gen Musharraf's critics were quick to point to his unwillingness to jeopardise a parliamentary alliance with religious elements so close to the general elections, despite the fact that the Council of Islamic Ideology had already determined that none of the bill's provisions violated Islamic injunctions.
The image of the general 'kowtowing' to mullah pressure was further reinforced by the fact that the version of the bill passed by the National Assembly included a last-minute provision, in the form of three amendments, to appease the religious alliance. The criminal offence of 'lewdness' (later termed as 'fornication') was inserted into the Pakistan Penal Code, and defined as consensual sexual intercourse between any man and woman not married to each other. However, before a charge of fornication can be made, two eyewitnesses must now be produced; furthermore, anyone found guilty of levelling false allegations is liable to the same punishment – up to five years in prison and a PKR 10,000 fine. While it did cave in to the MMA by including the fornication offence, however, the government simultaneously introduced a 'firewall' to protect women from false accusations, by stipulating that no allegation of rape can be converted into an allegation of fornication.
Broken alliance
The MMA's refusal to back the Women Protection Act, along with its subsequent threats to resign from the National Assembly, will likely be taken in stride by the government, since it appears that Gen Musharraf had, to a certain extent, already been seeking to distance himself from the religious parties. Perhaps believing that the clipping of his enlightened wings is too high a price to pay for their support, he had begun looking beyond 'traditional' allies to keep his options open.
Enter the Pakistan People's Party (PPP). That the general-president managed to secure the support of Benazir Bhutto's secular liberal party, despite the last minute MMA-friendly amendments to the bill, has further fuelled rumours of a secret deal between the former prime minister and the ruling Pakistan Muslim League (PML), as well as of Bhutto's possible return to the political scene in the run-up to the elections. Indeed, Gen Musharraf must be aware that any inclusion of Bhutto in a future government would further enhance his reformist image in the eyes of Washington DC, especially at a time when the US is becoming increasingly sceptical of Islamabad's claims of reigning-in pro-Taliban elements in its tribal areas and curbing crossborder militant attacks into Afghanistan.
An added bonus of PPP support for the bill was the proverbial slap in the face it gave to the Pakistan Muslim League-Nawaz (PML-N). This party, overseen by Nawaz Sharif, co-signed the Charter of Democracy with the PPP in May 2006, formalising the two parties' commitment to use the power of the ballot to oust Gen Musharraf's military regime. Sharif's party had long slammed the women's bill as a government tool calculated to divide a united opposition. That PPP support for the bill vindicated the PML-N charges was of little satisfaction, however, since it became apparent that Benazir Bhutto had readily ditched her alliance partner in service of her own political interests.
Like the PPP, when the PML-N was in power it had unsuccess-fully challenged the Hudood Ordinances. But while the PPP has seized the opportunity to support the current leadership – thereby claiming the moral high ground by publicly placing the safeguarding of women's rights above and beyond political rivalries – the PML-N decided "on principle" to abstain from voting on the bill, proudly boasting that it would never do business with a "usurper's government". Perhaps realising that he had devastatingly misplayed his cards, however, Sharif soon engaged in a rather clumsy political about-face. Thus, soon after the women's bill was approved, the PML-N decided to throw its weight behind an additional bill, the Prevention of Anti-Women Practices (Criminal Law) Amendment Bill, tabled by PML President Chaudhry Shujaat Hussain. This legislation addressed such issues as women's inheritance and divorce rights, as well as the marrying of women to the Koran, a principally tribal custom whereby families and clans coerce their daughters into not marrying.
Yet the Anti-Women Practices Bill throws up another intriguing political fact. From the outset, Shujaat had reportedly been recommending that these additio-nal clauses be incorporated into the women's bill, and was taken aback that the draft presented before the National Assembly made no mention of them. One explanation for their exclusion is that the government did not wish to further delay the bill's approval by Parliament, especially given that on 14 November the ruling MMA government in NWFP had successfully passed the Hasba Bill, legislating the rule of Islamic law in that province – although this was subsequently blocked by the Supreme Court in mid-December. Thus, if the government were made to further postpone its much-touted reformist bill, this would have indicated to Gen Musharraf's critics and the international community that the mullahs were more efficient and committed to pushing through their mandate than was the moderately enlightened leadership in Islamabad.
Custodians of honour
The issues raised by the passing of the women's bill and its enforcement into law go beyond questions of political manoeuvrings and the quest for power. Rather, they highlight the ongoing power struggle over Pakistan's very identity as a country. Gen Musharraf has correctly noted that this struggle is being conducted by "religious extremists" on the one side and "liberal fundamentalists" on the other – both of whom show no hesitation in exploiting the plight of women to serve their respective agendas.
It is unfortunate that it is becoming increasingly difficult to differentiate between the two sides. On the one hand, the MMA charges the Women Protection Act with promoting a "free-sex zone" in Pakistan, as well as encouraging "promiscuity among young girls". On the other, many educated Pakistani women, including those committed to promoting women's rights, believe that there is too much coverage of rape in the country. The fallout of this, they fear, is that "the international community has the wrong image of women in Pakistan."
Thus, both the political establishment and certain sectors of civil society are complicit in positioning Pakistani women as the un-elected custodians of national honour. When a woman's right to self-determination is thus negated, any move aimed at transferring the burden of responsibility for sexual violence against women from victim to perpetrator ceases to be limited to the domain of fundamental human rights. It instead becomes linked to notions of morality and the promotion of Pakistan's 'soft side' on the international stage, for which women are made to bear exclusive responsibility.
This state of affairs needs to be reversed if any new legal framework to protect women is to be truly effective. Unless we recognise the safeguarding of women's rights as an a goal in itself – central to the development of the country, and of great moral value – we will continue to exist in a twilight zone where we qualify the plight and position of women according to the particular audience to whom we are playing. Pakistanis saw this in 1979, when Pakistan simultaneously introduced the Hudood Ordinances and ratified the international Convention on the Elimination of All Forms of Discrimination against Women. And Pakistanis have seen this again in 2006, with the passing of both the Hasba and the women's bills, albeit that the central government is trying to challenge the Hasba Bill in the Supreme Court.
The answer, therefore, lies not in criticising any reformist moves (however tentative) by the current leadership for the simple reasoning that they are coming from a military regime. Rather, we must give the government the benefit of the doubt, and then strive towards holding it accountable to fulfilling its commitments. Gen Musharraf must be pressured to honour his pledge to introduce more legislative safeguards to protect the fundamental rights of the women of Pakistan. Finally, Pakistanis must care less about what the international community thinks about the plight of women in Pakistan, and start caring more about what the country's citizens themselves think about the situation. Gen Musharraf has taken the first step. It is up to the country to complete that journey.