can’t see the forest

A Step Towards Greater Rights for Women in Pakistan

Posted in middle east, Social and Politics, Violence Against Women by Curtis on 9/10/06

Let’s show some support for the rights of women in places where more equality is sorely needed: 

From Eteraz:

This will appear in Pakistani press later this week:

For most of the past three decades, the rallying cry for Pakistan’s feminists has been “Repeal the Hudood Ordinance.” If all goes according to the government’s plan, much of what is undesirable in the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (to give the law its full name) will be quietly gutted through the proposed Protection of Women’s Act. That should make General Musharraf very popular with the liberal community. But instead of being welcomed, his efforts have been attacked as “grossly inadequate.”

Unfortunately, the liberals have gotten it wrong. The only thing “grossly inadequate” about the Protection of Women’s Act is the response it has received. The proposed act marks the absolute limit of what is possible in terms of today’s political climate. More importantly, the Protection of Women’s Act is not a whitewash job: instead, it addresses and fixes the major sources of women’s oppression under the Hudood Ordinance.

Since its introduction in 1979, the Hudood Ordinance has been criticised for two main reasons. Firstly, women who alleged that they had been raped faced the danger of being convicted on fornication charges if they failed to prove their charges. In one case, a blind girl, Safia Bibi, who had been raped was convicted on charges of zina because she could not identify her attacker. Many women therefore preferred to suffer their outrages in silence rather than take the risk of further punishment and social ostracism.

The second main problem under the Hudood Ordinance arose from the fact that it defined zina as sex between two people who were not “validly” married. Most people in Pakistan, especially in the rural areas, are ignorant as to the formalities regarding divorce. For example, no marriage is legally dissolved until a certificate of confirmation of divorce is issued. In practice, however, husbands often simply send their wives home after having pronounced talaq three times. When those women subsequently remarry, their former husbands will often file charges of zina against them on the grounds that the first marriage had not been legally dissolved. The women would spend years rotting in jail before they would be eventually cleared. But by then, their marriages and their lives would be finished.

The most important reason for the problems caused by the Hudood Ordinance was that it covered crimes for which the appropriate punishment was provided in the Quran (hadd punishments) as well crimes for which the appropriate punishment was provided by common law, or statutory law (tazir punishments). More importantly, it provided hadd punishments for some crimes (such as rape) even though there is no specific punishment identified in the Quran itself for rape.

The problems arising from this fundamental confusion were then exacerbated by the very broad view taken by judges of what constituted a “confession.” Pregnancy, by itself, was deemed to be a confession. The presence of two people in a room was deemed to be a confession. Finally, under the current procedures, any person can accuse any other person of zina. If the accusation is then recorded as an FIR by the local SHO, the accused will be arrested, and because the ostensible penalty for zina is death, the accused will essentially have no chance of bail for at least the next two years.

The Women’s Protection Act address each and every one of these problems. The Hudood Ordinance has now been limited to cover only those crimes for which punishment is specified in the Quran itself. All other crimes, such as rape, have been taken out of the Hudood Ordinance and moved into the Pakistan Penal Code where normal criminal and evidentiary procedure will apply. This means that in rape cases, the evidence of a woman will now be worth the same as a man.

Most importantly, there is now no longer any tazir punishment for zina. In other words, a person can only be convicted of zina if, and only if, there are either four eyewitnesses to the actual act of penetration or the accused voluntarily confesses in open court. Over the past 27 years, no conviction on that basis has ever, repeat, ever been upheld.

With respect to the rights of divorced women, the definition of zina has been amended so as to exclude cases in which people reasonably believe themselves to be married. Divorced women will now no longer need to live in fear of their former husbands.

Furthermore, a number of procedural protections have been added. Confession has been defined to mean confession in court and all previous judgments defining confession have been specifically excluded. No person can be asked to confess unless and until a session court issues a summons (not a warrant) asking them to appear. No sessions court can issue a summons until it has first satisfied itself after having examined the evidence of the four eyewitnesses that an act of zina has, prima facie, occurred. Furthermore, no case can be registered unless and until the sessions court concludes that a case is actually made out. And if the sessions court comes to the conclusion that the complaint is not justified, it can immediately sentence the complainant to a punishment of 80 lashes (qazf). Finally, even if a case of zina is registered, zina has now been defined as a bailable offence. Since bailable means bailable as of right, no woman will ever have to spend a day in jail on a zina charge unless and until she is actually convicted. And over the last 27 years, no conviction of zina has ever been maintained on the evidence of four eye-witnesses.

As noted earlier, the response from women’s groups to the Women’s Protection Act has been either hostile or, at best, tepid. Instead of supporting the bill, women’s groups have been content to reiterate their demand for the complete repeal of the Hudood Ordinance. What these groups forget is that politics is the art of the possible. The Women’s Protection Act may not be perfect but it will certainly bring relief to millions of oppressed women. In any event, the fight for repeal can always be carried on later.

Those who believe in women’s rights must fight for this bill. To stay silent now, or to insist upon an impossible goal, is to betray all those women who have suffered under an evil law.


One Response

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  1. Maryam said, on 12/31/06 at 4:32 pm

    NO details given about ‘limitations for rape case’ in ‘portection bill’ in above chapter.
    Zina is taken as a limited sense in women’s protection bill , they restrict it to the remarried women but in broader sense zina is a vast chapter including younge unmarried teenagers invloved in adultry situations and for if zina is ‘bailable’ theres no worse act then this bill for convicts who are desirably involved in such cases of fornication.

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