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INTRODUCTION
My
name is Mariam Kizilbash. I am a nineteen year old
Pakistani girl doing a LLB external programme from the University of
London. As law students, we are constantly being asked to study the
intertwining issues of law and morality, international treaties such
as the Geneva Convention and Internal Convention of Human Rights and
the usual fair notions of justice and liberty for all.
Unfortunately, the moment we raise our head from our textbooks, we
find ourselves living in a world, which offers nothing but
contradictions. The "war on terror" has drastically
changed the world on a profound level and the issue of zina (rape)
laws in my own country which are part of the "hudud
ordinances" left by late president Zia ul Haq, is currently the
subject of a huge political debate. Both on a national and
international level, I hope we students can talk about issues
in the world today which we feel are contrary to human rights, so
that we may grow up to be individuals that can contribute to make
this world rest on the very notions and ideals that we were first
taught. Margaret Mead once said:
“Never
doubt that a small group of thoughtful, committed citizens can
change the world. In fact, it is the only thing that ever has."
My attempt to share my thoughts with you is, therefore, hopefully,
only the beginning."
The
chairman of the Council of Islamic Ideology, while discussing the
implementation of the Shariah in Pakistan stressed that Islamic
Ideology stands for equality before law and social justice to
humanity.
The
Hudud laws were promulgated in 1979. The Ordinances are a collection
of five criminal laws. The Offences Against Property Ordinance, The
Offence of Zina Ordinance ( which deals with rape and adultery and
which will be the focus of this article), the Offence of Qazf
Ordinance and the Prohibition Order. The criticism against
them is on various levels. A common one is that
they are
“a gross violation of the Constitution”.
Those
who defend them say that they are Islamic.
Let’s
talk about the practical objections
of the hudud (zina) law that come to mind first. The proof of
zina or rape liable to hadd has to be in one of the two forms-either
a confession by the accused before a court of competent
jurisdiction, or, at least four Muslim adult, male witnesses who are
truthful persons and abstain from major sins and who give evidence
of eye-witnesses to the act of penetration. (hold on, a four
witnesses actually watching an
actual rape taking place and have not prevented it from happening in
the first place, in front of their eyes are being called as
witnesses who have abstained from major
sins?)
Then,
Tarik Jan in Pakistan between
Secularism and Islam, gives two hypothetical illustrations. A
Muslim man commits rape in a women’s hostel, the crime is
witnessed by Muslim women. Under the law, he cannot be awarded the
hadd penalty bases on their testimony.
Note
that under the Offences Against Property Ordinance, two
eye-witnesses are necessary and they must be male Muslims
except where the accused is a non-Muslim.
So,
now imagine a Muslim man and a Hindu man commit robbery in a church,
the crime is witnessed by hundreds of Christian men and women. Under
the law, the Hindu can be awarded the hadd penalty based on their
testimony but not the Muslim.
The
very existence of these provisions has placed a different value on
different categories of persons and created a hierarchy of human
beings, men having a higher value than women and Muslims having
higher credibility over non-Muslims. Gee, this sure negates
the very principle of equality of human beings. It sort of directly
affects the status of both women and minorities, questioning their
competence, honesty, reliability and relegates them to the status of
second –class citizens. Not good.
Furthermore,
in a country like Pakistan, the problems relating to rape are
multi-fold. Rape cases are rarely reported to the police because of
the social stigma attached to it and the fact that it is considered
a strain on the family’s honor. When reported, the FIR is usually
delayed because of extensive family consultations. Medical
examinations are often not carried out because of ignorance about
their significance or reluctance to submit to them. In the Human
Right Commission’s report in 2002, the total number of cases
recorded were shown as 2972. The number of victims were 3145. FIR
registered 577. 89 were held. Behold the figures!
Also,
what really irks one about the hudud (zina) law is the much-talked
about act of treating rape and adultery at par. Note the words used
in the presidential address on the occasion of the introduction of
these laws: “ From today, the Islamic punishment for this crime
has been enforced, it will be applicable to all forms of adultery,
whether the act is committed with or without the consent of the
parties”. Hey, the earlier Penal Code gives so much
importance to the issue to the consent that it clarifies : “
A consent is not such a consent as is intended by any action
of this Code, if the consent is given by a person under a fear of
injury, or under misconception of fact ..” ( 90) . And when it
comes to hudud, we are lightly dismissing the issue of consent,
blurring the obvious line of distinction between rape and
adultery to a blurry mess. Hmmm.
No
wonder, rape cases are not coming forward. After the suffering and
humiliation caused by the act , now the victims can be punished for
zina. A hundred lashes . When I started my LLB a year ago, we were
before anything else made familiar with the fundamental principle of
criminal jurisprudence: “ an accused person is to presumed
innocent until proven guilt beyond all reasonable doubt”. The
hudud zina law teaches us : If you happen to be a woman, you are
always guilty unless proven otherwise-even if you are the victim.
And oh yeah, you need 4 male eye witnesses for your proof.
Perhaps
one of the most damaging aspect of the Ordinance has been that it
has redefined adulthood for girls. While the Majority Act declares
adulthood at the age of 18 for both girls and boys, the zina law
declared that a girl attains adulthood when she reaches puberty. So
physical puberty has been equated with mental maturity. As a result,
even girls of 9 years of age-who has started their menstruation, who
would never be considered competent as a witness for hadd cases,
are, nevertheless, considered capable of comprehending criminal acts
and being subjected to imprisonment
and whipping.
As
per Tarik Jan ,75 to 80 % of women in jails are on
charges of zina.
A
boggled mind tries to find sense in this law. We could suppose, that
because the punishment for zinabil jabr is harsh ( is committed by
adult married Muslim-stoning to death-,for adult non-Muslims and
adult single Muslims-a hundred lashes along with any other
punishment the court may think fit, including the death sentence),
the requirement for evidence should be proportionally strict as
well( four male Muslim witnesses ) We could hope, that in certain
cases the Federal Shariah Court will intervene. In the well known
case of Safia Bibi, the Session court acquitted the alleged rapist
for want of evidence but convicted her for zina and sentenced her to
3 year imprisonment, 15 lashes, and a RS 1000 fine. She was
acquitted eventually by the FSC following a public outcry. But then,
no principle of law was laid
down to prevent this from happening again. The criticisms are
too strong.
For
my readers who belong to the Islamic Republic of Pakistan, I would
like to share some words from the Universal Source of laws which we
are supposed to be following. As Sharif Khan has pointed out
in an article, the Quran treats both men and women as equally and a
woman victim of rape cannot, thus, not be blamed for the crime that
has happened to her. God severely condemns ALL sexual crimes:
“Tell the believing men that they
shall subdue their eyes and to maintain chastity. This is purer for them. GOD is fully
Cognizant of everything (24:30)
they do.”
“
You will not force your girls to commit prostitution, seeking
materials of this world, if they wish to be chaste. If anyone forces
them, then GOD, seeing that they are forced is
Forgiver, Merciful (
24:33)
The
Quran is also an advocator of modern science. Modern science allows
us to convict accused rapists immediately on physical facts such as
semen, saliva, blood, hair, fibres, and skin scraps.
This
does not quite coincide with what we are doing with the hudud zina
law.
So
why are we still following it? Should the hudud laws not be
repealed completely as opposed to merely amended which does not come
close to eradicating the same problem? And can the amendments which
would save the lives of millions of people such as Safia Bibi, come
close to being implemented without the interference of political
motivations?
Let’s
move forward with science, education, enlightenment and
true religion.
Let’s
repeal the hudud law and finish the suffering of women.
While
we are on the subject of the suffering of women, let me ask you all,
why are you so hard on us women? I think God, was careful to
acknowledge both sexes, equally, sometimes even repeating His words
if He had to get the point across:
To
men is allotted to what they earn and to
woman what
they earn” (
4:32)
From
what is left by parents and those nearest related there is share for
men and a share for women (4:7)
He
even said in Surah Talaq:
“
Let woman live in the same style as you (65:6-7)
With
such careful protection given to women, why is there an insistence
by our current legal structure, culture and society to treat us
as if somehow we are the inferior
of the lot? As per an article by Dr Riffat Hassan, though Surah Nisa
begins with the words “ Ar-rijal-o-qawwamun-a-ala an-nisa” which
has been used to elevate men to the status of “ hakim” (
sovereign) and women to the status of “mahkum” (or rules) the
intent of this Quranic verse is to provide protection for women. It
must be noted that the Quran always assigns the function of
“qawwamun” ( from the root word “qama”-meaning to support-to
all men (“ar-rijal) and not just husbands. So you see, it’s
really in your interest, and indeed God’s Favour upon you, to protect
us and not suppress or abuse
us. Because, with all due respect to male dominance and ego, if
God looks down at the abuse you are subjecting us to now, and,
furthermore ,worst for you, if God turns out to be a woman, boy,
will She be Pissed.
Sources:
Tarik Jan “ Pakistan between Secularism and Islam”
“Dawn” newspaper.
The HRCP 2002 Report on rape figures
The Holy Quran
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