August 8, 2002

According to the HRCP report, a woman is raped every two hours in Pakistan. Other sources show that a staggering 70 per cent of the women prisoners in Pakistan are detained under the Hudood Ordinances. What are these Ordinances where a raped victim can be arbitrarily charged with adultery? Shehar Bano Khan reports

Ask the victims of the Hudood Ordinances about living in Pakistan, and they are sure to say that it is a dangerous place for women. Indeed it is. Ask Zafran Bibi from Kohat, who recently fell prey to the Zina ordinance. Her terrified look will sum up the humiliation she underwent as a consequence; with the entire world following the most intimate details of her life. Go on to take a look at Mukhtaran’s case in Meerwala. The gruesome act of her gang-rape makes one wonder about the triviality of being a woman. And these are just two of the numerous incidents ravaging the lives of those women who find themselves asphyxiate by the deathlike vice of the Hudood Ordinances. It is not even necessary to err because under this Ordinance, as an accused woman, your chances of indiscriminate justice are automatically reduced.

By comparison, the Hudood Ordinances descend less heavily on men. In fact, it would be legally viable to say that they do not stand in harsh judgement the same way as women. Although they should in principle, figures collected from various organizations reveal that a staggering 70 per cent of the women prisoners in Pakistan are detained under the Hudood Ordinances. In colloquial terms it means that men are usually spared the fatal blow of these biased ordinances. So, what are these Ordinances where a raped victim can be arbitrarily charged with adultery under the Zina ordinance? Where they are gang-raped to satiate a petty custom with the implicit approval of an all-male panchayat that will not hesitate to twist the ordinance to its advantage; where minor girls are traded off by their own family, under the laws of qisas and diyat, in exchange for life pardon? They are the kind of laws which have undermined the law of this land and stand accused of wreacking havoc in a society by creating a plural system of justice.

After 23 years of the promulgation of the Hudood Ordinances, the women of Pakistan are as vulnerable today as they were in the dark ages of civilization. But, before building a strong case for the annulment of these misogynist laws, a brief rundown of what these laws are will give a clearer picture of why they should be stamped out.

In 1978 General Ziaul Haq changed the structure of the Pakistani law by announcing that any laws passed by the legislative bodies would have to conform to Islamic law. Ignoring the sounds of informed dissent, the General went on to establish the system of Nizam-i-Mustafa. Nobody had the gall to go against such a system, which clearly did not bode well for women. Their days of relative freedom had drastically come to an end.

A year later, Zia decreed the establishment of the Shariah courts which were to try cases under the Islamic law. The following year came the announcement of awarding Islamic punishments for violating the Islamic code of behaviour. It was the beginning of life after the Hudood Ordinances.

The Penal Code of Pakistan (PPC) amended in 1979, introduced ‘Islamic’ forms of punishments in the form of the Hudood laws, (in Arabic, hadd means punishment ordained by the Quran and Sunnah). These Hudood Ordinances include, theft, qazaf (bearing false witness), prostitution, consumption of alcohol and a few others. But the ones denigrating women to an inferior position of existence are the Zina ordinance, qisas and diyat, Qanoon-e-Shahadat and the Federal Shariah Court’s ruling on certain sections of the Muslim Family laws promulgated in 1961 during General Ayub Khan’s regime.

The Hudood ordinance of the ‘Offense of Zina’ can be clearly seen as gender-biased and comes with a grave failure of not distinguishing between zina, adultery and rape — zina bil jabar. To prove the allegation of rape, a woman has to produce four pious, Muslim male witnesses to convict a man in a court of law. Not only does a woman need four men witnesses, she also has to show the physical signs of resistance. In most cases they are thrown in prison if they fail to produce witnesses or evidence of resisting rape. (A woman can be charged and convicted of adultery if she is believed to have put up no resistance during the rape.) The sentence for adultery is 100 lashes or stoning to death at a public place.

“It puts a woman in such a position that even if she is raped, in the end she is left to face charges of adultery. It is next to impossible for a rape victim to produce four male witnesses. Nobody times the act to make sure that four men are present,” says advocate Mehboob, who works at the Human Rights Commission of Pakistan in Lahore.

Introduced into the PPC in 1990, the Qisas and Diyat Ordinances also affect women more than men. Based on Islamic injunctions, the Diyat ordinance calls for the paying of blood money in case of loss of life or limbs as compromise. The latest fatalities to these ordinances were the trading off of eight minor girls in a savage tribal tradition called Wani, in Mianwali, in return for life pardon of four members of their family on death row. The deal, struck between the bereaved and the accused, required the latter to pay eight million rupees as diyat (blood money), as well as marry the girls to the ageing members of the victim’s family.

The law of evidence (Qanun-e-Shahadat), incorporated into the Constitution in 1984 by the Federal Shariah Court, further undermines the status of women as equal citizens in Pakistan. It reduces their worth of court testimony to half as compared to Muslim men. The law provides that the testimony of two women is equal to that of one man.

“These laws are not reflective of the true spirit of Islam,” says Dr Zaheer Khalid, a professor of Islamic banking at the Lahore University of Management and Sciences. “I differ with the Islamic scholars on the interpretation of the Hudood Laws. They were never intended to differentiate between men and women. In the instance of two women’s testimony equalling one man’s, the Quran is very clear. This law was introduced to strengthen the evidence of women, not to be flouted by men.”

The Zia legacy, however, relates a different tale. Through a constitutional amendment, Article 203-D, he established the Federal Shariah Court, which was empowered to examine, question and rule whether any law or provisions of law were ‘repugnant to the injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet (PBUH) hereinafter referred to as the injunctions of Islam’. “People did not want to question Islam and the majority did not dare question what was put down as Islamic law by the Federal Shariat Court,” explains advocate Mehboob.

According to the Shariat Act passed in 1991, the Islamic Sharia is established as the supreme law of the Pakistan. Section 4 of this Act reads, “...while interpreting the statute-law, if more than one interpretation is possible, the one consistent with the Islamic principles and jurisprudence shall be adopted by the court...”

“The promulgation of the Hudood Ordinances has harmed the Muslim Family law Ordinance of 1961. It provided women, among other things the right to divorce and placed limitations on polygamy. But after the Federal Shariah Court’s recent amendment to the Muslim Family laws, a man does not need a 90-day notice period to divorce his wife. The judgement has also made it unnecessary for a man to divorce his wife on paper. All he needs to do is repeat the words three times and it is done,” says Mehboob.

All this is bad news for women. But not all the laws under Hadd are discriminatory or so Dr Zaheer Khalid says. “I can’t equate discriminatory laws with Islam. They are distortions of this most tolerant religion.”

He is right. Islam is flexible, pliable and progressive. But, in the meanwhile, as the debate rages on about what is misinterpretation and distortion, the following figures should not be ignored to make the case for repealing the Hudood Ordinances stronger.

From January 2002, the number of reported rape cases in the Punjab are roughly 46. As stated by the annual report of the Human Rights Commission of Pakistan, a woman is raped every two hours in Pakistan, the unofficial figure could be much higher than 46. Half of them were gang-raped. There were 20 recorded incidents of minors being raped. The police registered 32 FIRs and apprehended only seven of the accused in 46 different cases. It is about time somebody made this country safer to live in than to rule.

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