March 4, 2004

This year, in view of the growing incidence of Violence Against Women, the HRCP, WAF and several NGOs and activist groups will commemorate International Women’s Day on March 8 with a discussion on this urgent and tragic issue. In response to the struggle of rights-oriented bodies, a Permanent National Commission on the Status of Women was established in 2000. To analyze the various viewpoints pertaining to Hudood and related laws, and to get an update of the situation first hand, Hilda Saeed discussed the issue with Justice Majida Rizvi, chair of the NCSW.
 

Q: What was the mandate of the previous women’s commissions and what happened to the recommendations put forward by them?

A: There have been several women’s commissions in the past; each was given certain terms of reference, and they did valuable work. The last one was the Commission of Inquiry on the Status of Women, in 1997, headed by Justice Nasir Aslam Zahid. But in each case, the commissions were wound up on completion of their tasks.

The present commission is a permanent one; thus it is a statutory body. Its profile comprises two members per province, and one each from FATA, FANA and Islamabad capital territory. In addition, there are scholars and three ex-officio members from the ministries of the interior, finance, and law and justice. The ministry of women’s development has been mandated to provide the commission a secretariat, and the additional secretary, ministry of women’s development is designated as secretary of the commission.

Each member’s appointment is for three years. They are all committed to the cause of women. Some members come well prepared for meetings, others tend to take matters lightly. Initially we formed committees on various issues, but it was not really working. But now we have temporary groupings which are issue-based, and which change from time to time, a system which is working much better. Our objective is to work for provision of justice for women.
 

Q: With all this in place, and with members giving their inputs, what are the legal reasons for women’s continued subservient status, and for the discrimination and violence against them?

A: It has partly been due to the frequent changes in government, and corresponding changes in policies. Every government has made promises, but the will to achieve positive change is not there.

Benazir Bhutto, although she lacked a majority, at least brought about some changes such as the establishment of women’s police stations, but Nawaz Sharif had no will to help women, despite the fact that he had majority backing. Women’s seats were not even restored. When there’s no will, then there are so many excuses.

We continue to strive for positive change, and hope the government will take some steps forward to facilitate this. There now appears to be national and international commitment to women’s progress.
 

Q: What is your view on the debate suggested by General Musharraf on the Hudood Ordinances?

A: The Hudood Ordinances have already been heavily debated — what more remains [to be debated]? The Commission of Inquiry on the Status of Women 1997 had also recommended repeal of Hudood. We ourselves have had a lot of deliberation on the subject. Dr Sher Zaman and Farida Ahmed, both Islamic scholars, have admitted defects in the ordinance. They want amendments.

The majority of sections included in the Hudood Ordinances are from the Pakistan Penal Code (PPC). In all four laws, the sections total 20.When we have PPC, why keep Hudood? If changes are required, they can be made in the PPC itself.

The Hudood Ordinances comprise a total of five: The Offence of Zina (Enforcement of Hudood) Ordinace,1979; The Offences Against Property (Enforcement of Hudood) Ordinance, 1979; The Prohibition Enforcement of Hadd Order IV 1979; The Offence of Qazf (Enforcement of Hudood) Ordinance1979; and The Execution of the Punishment of Whipping Ordinance ,1979.

In each of the four penal laws, with the exception of a couple of provisions about Hadd punishment, the rest of the provisions in the form of ‘tazir’ are practically the same as those which existed in the Pakistan Penal Code.

A law is introduced for the well-being of society — if 50 per cent of the population suffers because of it, if they have been inflicted so much pain and trauma that their total lives are destroyed, who is responsible? When a woman suffers, so do her family and children; when she comes out honourably after say, 10 years, who is going to compensate her for those lost years, and those lost lives of her children? Will society accept her? Can she hold the government responsible? The maulvis, society?

No one is against Islam, but this badnaami is what we want to correct. Why call it westernization? At present, around 72-80 per cent of the women in jails are there under zina’(adultery).
 

Q: The present commission is recognized as a recommendatory body, not as a decision-making one. In your view, how has this affected decisions for gender equality and women’s empowerment?

A: The recommendatory functions include being a watch body to review government decisions and their impact on women. We review all laws, discriminatory or otherwise, and then recommend repeal, amendment or new legislation.

We conduct research on women’s issues, and have regular interaction with members of civil society and with similar international commissions, plus any other assignment which the government gives.

We are not satisfied with the recommendatory position of this commission. If we are the watch body, and are only required to give recommendations, then we cannot really implement decisions. The outcome of our deliberations will be put forward to the president, the Majlis-i-Shoora, and the parliament, as has been done in the past in several cases.

For instance, the Citizenship Act is patriarchal; it talks only of the ‘father’, ‘he’, no spouses or parents. If a woman marries a foreigner, she cannot apply for citizenship — only her kids are eligible for that — it’s very discriminatory. It’s very necessary to remedy this as there are court cases pending because of it.

Our effectivity [for a specific recommendation] ceases once the report is submitted, therefore advocacy and lobbying are very important to us. We try to raise awareness on all issues pertaining to women. Our reports are regularly made public.

All reports indicate that the Hudood Ordinances are discriminatory. Sometimes we take up individual cases, such as Zafran Bibi’s case or Rukhsana Bunyad’s, who was jailed for blasphemy. Often, the police does not file an FIR or investigate such cases.

As a part of advocacy and lobbying, I have started giving lectures to groups of officers at NIPA, to sensitize them (especially men). Only by having them with us will change be achieved.

We aim to achieve the maximum despite a lot of frustration. For instance, we received only one computer from the Ministry of Women’s Development — and even this was taken away when we subsequently got a computer as donation. The same is the situation for the commission’s office car. We have minimal staff strength.

The Islamic Ideology Council (IIC) doesn’t give straightforward answers — why wasn’t Hudood looked at on a primary basis? Why weren’t recommendations of the IIC made public? How many of the laws has the IIC reviewed? Nothing has been made public.

For the bureaucracy, it is as if women’s issues are not issues. It’s frustrating. Bureaucrats have no commitment to women; the same people are around even when the government changes. Even in something like employment quotas for women, in 1989 a five per cent quota was allocated for women — but here too we found inadequate use of the quota, as if there is a planned way of ousting women. Nor does it look as if this matter of Hudood will be seriously taken up.
 

Q: There was a report that an international conference on Islamic laws was being planned. What happened to that plan?

A: We did start the process for such a conference: “Islamic Laws and Building Consensus”. Ten very significant Islamic scholars agreed to come, but we did not get clearance from the Ministry of Women’s Development and we were asked to stall it. We wanted consensus to be achieved on laws pertaining to women, the money was granted, but it could not be used even now it is lying unused.
 

Q: What are the legal hurdles in repealing the Hudood laws? What is the political background to these hurdles?

A: In my view, there is no legal hurdle, the hurdle isone of will. Women’s evidence is not included in Hudood — this in itself is entirely un-Islamic. No non-Muslim can give evidence unless the accused is also non-Muslim. In Hudood cases, the presiding officer cannot be non-Muslim, nor can there be a non-Muslim lawyer.

In general, criminal law is public law but here Islamic law has been made part of criminal law. It is violative of minorities and their rights as citizens. Adultery (zina) and rape (zina bil jabr) are considered the same; victims are punished repeatedly under Hudood. Yet only adultery is mentioned in the Holy Quran.

Another aspect is the girl’s age of attaining majority. Under Hudood, this means upon reaching puberty, which may be as young as eight or nine years, when a girl’s mental and physical capacity is insufficiently developed to deal with the stress of married life. Where then is the Child Marriage Restraint Act, 1929, according to which marriage of girls is not permissible before the age of 16 years?

Witnesses are supposed to be those who have never lied or committed major sins —those who satisfy the criteria of Taskiyah-ul-Shahood (mode of inquiry adopted by a court to satisfy itself as to the credibility of a witness). How many witnesses meet these strict standards?

Above all, we need the political will and determination to achieve change.