August 03, 2006

“While circumstances are perhaps the best teacher, how can I ever undo the damage? You know the kind of stigma attached to a woman who spends even a night at the police station, however innocent she may be; my daughter, now of marriageable age, has been in prison for three years! How can that be undone, how will she get those years and reputation back?” reports Zofeen T. Ebrahim

It’s been three years and five months to be exact, since I came here,” says under-trial Mumtaz Liaqat, 40, sitting comfortably in the jail superintendent’s office in Karachi’s Central Prison. She is among the 1300 that have been given relief under the presidential order – Code of Criminal Procedure (Amendment) Ordinance 2006 – made by President Pervez Musharraf on July 7, 2006.

Released on bail, Mumtaz, a former domestic servant, was booked for a dacoity along with her husband and two children, a daughter (now 19) and a son (20). “Now that I’m free, I will try to get my husband and son out of prison as well, although I’ve heard, on August 14, they too will be released,” she says, hopefully, adding: “I now know how to go about things and file an application etc.” Her in-laws live in Punjab and she hopes that when she calls them to tell them of her release, someone will come to Karachi to meet them and bring her young son along.

“While circumstances are perhaps the best teacher, how can I ever undo the damage? You know the kind of stigma attached to a woman who spends even a night at the police station, however innocent she may be; my daughter, now of marriageable age, has been in prison for three years! How can that be undone, how will she get those years and reputation back?” After some contemplation Mumtaz says, “But then without her by my side, I’d surely have died.”

Unlike Mumtaz and her daughter, Sonia, Sadaf and Riffat, three teenage girls, booked under zina, have been luckier. They had just spent 11 days in jail before their release orders came.

“Our parents don’t know we’ve been in jail,” says Sonia sheepishly. “We’re from Punjab and had come to visit relatives here. We had just made a new friend and had gone to visit her; unaware that she was having some trouble with her brother. When the police came to haul him, on seeing us, they took us away too and slapped zina on us.” “It’s so unfair, and we’ve put our parents to shame,” adds Sadaf.

Each released woman has her own story to tell… but a common underlying concern with each one of them is how to wash off the stain on their character.

The President’s recent order closely followed a public debate, hosted last month by a private television channel, in which religious scholars and jurists among other aspects discussed whether women should be kept in prisons. All the experts were of unanimous opinion that it was undesirable in Islam to keep women in prison and a directive from the President for a review of the Hudood Ordinances (HO), yet again, this time by the Council of Islamic Ideology, was a step forward.

“There are 167 under-trial women in Sindh, and 125 will benefit from this order, of which 79 are from Karachi alone,” informs the new IG Prison, Sindh, Colonel Tariq Shah, who, along with his team was able to provide a complete data of the women in ‘a record three days time, even before the official orders had come.’ Not only that, he says, “We made applications for bail for each of the 79 women in Karachi.” This marathon, he concedes, has helped compile a district-wise data for times to come.

The new ordinance, however, does not apply to under-trial women languishing in prison on charges of murder, acts of terrorism and financial corruption and not all of the 1300 women being freed face trials under these laws. However, all under trial, accused for crimes such as adultery and rape and booked under Zina Ordinance, will also be released. According to rights groups a large number of rape victims are incarcerated and falsely accused of adultery.

Without any public discussion or parliamentary debate, Hudood Ordinances were enforced on February 10, 1979, by General Ziaul Haq, in a bid to Islamise Pakistan. These laws remain in tandem with the country’s secular legal system. Subsequent governments tried to do away with them but eventually gave in to the arm-twisting by religious groups. Even the current government did not want to face the wrath of the right and backtracked after promising to amend the laws when it assumed power five years ago.

These cover a range of crimes, of which the more controversial pertain to a woman providing four witnesses to prove rape, or face a charge of adultery. The maximum punishment is stoning to death. “These laws have been unjustly used for 25 years to victimise people, especially women,” says Ayesha Mir, Programme Coordinator for Shirkat Gah’s Women Law and Status Programme.

According to the Human Rights Commission of Pakistan (HRCP) of the nearly 6,000 women and children in prison of which, 80 per cent have been charged with adultery under these ordinances, practically all of them belong to the disadvantaged section of society.

The new ordinance holds its magic for four months only. “On November 7, if the parliament does not enact this into a law, the bailable offences will again become non-bailable, and this ordinance will die its own death,” says Justice Nasir Aslam Zahid, who, in 1997 had recommended for a complete repeal of HO in his famous ‘The Commission of Inquiry for Women’ report. Running a legal aid centre for women located next to the female prison within the precincts of Karachi’s Central Prison, he is personally involved with the recent spate of release of women prisoners.

While President Musharraf’s reform has been widely hailed by civil society as a ‘positive step’, there is some scepticism. “Like the HO, even this was an overnight order without a proper consultative process,” says Nuzhat Shireen, regional coordinator of Aurat Foundation’s Legislative Watch Programme. “If we’d been involved, this could’ve been done in a more planned manner,” she says terming it a mere “cosmetic surgery” done in a hurry. “On the face of it the measure taken was great, but looking closely and having discussed it with legal experts, one finds it to be steeped with lacunae,” she said at a recent seminar on the same theme organised by the Pakistan Press Foundation.

“What about the stigma attached to the woman who has been in prison? Will the family accept her? The same family who put her in prison in the first place, should they act as her guarantors? Will she be safe with them? Who will arrange for the surety money?” asks Zohra Yusuf, of the HRCP. “Why fix such an enormous sum? Did the judges not look at the financial status of the women who were being released?” asks Shireen. According to the IG the bail money ranges anywhere from Rs2500 to 5,000,000. And then again, how will they come for their future hearings?”

“The problem was not the bail law; it was women’s inability to find sureties and thus they were being abandoned by families. Many of them have no place to go,” says I.A Rehman, noted rights activist and director of the HRCP.

“Even we had feared that women who were charged under zina would not want to go back to their families or that they would have no place to go. Except for two cases, in Sindh, which I consider exceptions, all the women have shown their eagerness to go back to their own parents or even their in-laws. Our concerns seemed out of place,” says Justice Zahid, putting to rest some of the concerns shared by women groups.

According to Justice Zahid, in most cases, relatives have come to take away the women. Where that was not possible, the latter have been sent with a jail matron in a taxi to the addresses given and personally handed over to their relatives.

“We have been working on the issue for the past 27 years and yet the government did not find it fit enough to consult us,” retorts Uzma Noorani, member of the HRCP.

Dr Saeeda Malik, Minister for Women’s Development, Government of Sindh, responds by saying, “We’re all working together, not on different platforms and the idea is to win this battle together. We know women groups have worked on this issue relentlessly for over two decades and we respect that. They have extensive experience and we have never excluded them in our consultations.”

In the six committees that the ministry has formed, said the minister, those on Violence against Women and Women Prisoners in Jails, notified in 2004, have members from all sections of society including NGOs. “So it’s a bit unfair for them to say they were not taken into confidence. We had done our homework and had thought of rehabilitation of these women, too. This was not an order that was enforced as is the general perception, it was very much a consultative process and meetings were being held regularly.”

Pleading for some appreciation for the bold steps taken by the Musharraf government, she adds, “Even the women crisis centres (Karachi, Nawabshah and Hyderabad), renamed Women Centre, which though not as yet functional, can accommodate over a dozen women for a few hours till they can be sent to various shelters, is run by management committee whose members are from well reputed citizen organisations. You have to be patient, the government machinery takes time to get into motion, and it does not work like the private sector.”

Conceding that all the fears shared by rights groups were not totally unfounded, especially the stigma attached to women in prison, Dr Malik, nevertheless, believes, “If we stop taking any positive steps for fear of repercussions that are in our mind only, then how can we move on and make a difference?

“Media and the citizens groups have to step in and keep this issue alive. We need that pressure for our enthusiasm to sustain. The work has just begun and it’s not going to be easy, but support us instead of being negative. We’re committed and there is a definite political will, I assure you. We’re also open to all suggestions, so share them with us to make our work better.”

When asked about the deficiencies in the new order, Justice Zahid was very clear. “Instead of excluding those charged of financial corruption, in which most women are hardly ever involved directly, being made an accomplice by their husbands or male family members, the ordinance should not have let the drug peddlers off the hook, which may be the case.”

He sees this as a problem for the country, especially in the Frontier province which acts as a conduit for heroin from Afghanistan, of which 90 per cent reaches Karachi and which is then sent to Lagos (Nigeria) and Cameroon. “More women will be involved by drug barons who will be happy to bail them out if caught,” he fears.

The same was endorsed by Zia Ahmed Awan, president, Lawyers for Human Rights and Legal Aid and Shamim Kazmi of the Association of Business, Professional and Agricultural Women. “It is common knowledge that touts are standing outside the jail gates, waiting to trap vulnerable women,” said Nuzhat Shirin.

Another point made by Justice Nasir Aslam Zahid, and which was touched upon by Zia Awan was that the ordinance applies to women alone and not juvenile prisoners or even under trial men. “The scope should be enhanced to include them also.”

The next logical step, according to Justice Zahid is to bring this as a bill to the parliament and pass it into a permanent law, otherwise it would be an “ad-hoc benefit” and an exercise in futility. “At the same time repeal the Zina ordinance and revive it in the Pakistan Penal Code, as a new section, after Section 377 that is based completely on Surah-e-Nur of the Quran in its letter and spirit.” If Qisas and Diyat can be included in the PPC, he says, there is every reason not to separate the Zina law either. “But don’t call rape zina-bil-jabr, instead use a different word as the word zina is being used for adultery.”

“A complete repeal, not an amendment to the HO is the need of the hour. I don’t see any discussion among parliamentarians to turn this into an Act,” says Awan. “While parliament is the right forum, currently it is more conservative than the President,” says Zohra Yusuf.

“I support Awan and demand scrapping of these discriminatory laws. An amendment is not acceptable. How many lengthy procedures will it take and how many reviews before this can be decided?” asks a frustrated Uzma Noorani, council member of the HRCP, referring to President Musharraf’s directive early this month, to draft an amendment to the HO with consensus taking along all schools of thought as “these were authored by one man and can be changed.”

Another issue pointed out by Zia Awan is that it is necessary to bring about speedy justice to the accused. “Our judicial system is known to elevate the miseries and suffering of those trapped in it due to justice either delayed or denied.” Terming it “state-sponsored persecution,” he fears the release on bail will be unable to rectify the injustice of those under trial prisoners who have spent years in jail without being proven guilty.”

“We need to give quick relief to the under trials and reforms need to be brought in the judicial system,” says Justice Zahid, adding, “Till we give priority to the justice system, provide attractive and respectable packages to the civil judges/magistrates, we cannot attract quality people to join the profession.” Right now, says he, there are only 450-500 judges in Sindh when the figure should at least be 1,000.

Further taking up the point about bail money that is being arranged by the government or through some philanthropists (to the tune of Rs17,000,000 to date), Justice Zahid opines, “This is again an ad-hoc measure. We have to think of a more permanent solution in the form of a revolving fund kitty and that is only possible if the bail bond, discharged once the trial is complete, remains available for cases in future. So cases have to be decided quickly for this to be effective.”

He feels that the Probation of Offenders Ordinance 1960, which is present in the statute books, needs to be re-activated. “In this the accused under trial prisoner when convicted is not sentenced and sent to prison but handed over to relatives/friends or kept in their control under the supervision of probationary officers. The probation regime is not working at all in Sindh and there is an urgent need of it being made operational.” Neither, he says, is there need for such a huge sum to be kept for surety money in the form of property/vehicle documents or securities owned by the guarantor, always a third person, as it’s difficult for the poor to get hold of such a huge amount. “Perhaps personal surety could be considered a good enough guarantee that the accused will come for the hearings?”

While Justice Zahid does not yet see all this as a ploy to pacify rights activists in the wake of the coming elections, I.A Rehman, is circumspect. “At the moment it [the government] wishes to garner ordinary women’s votes and if in the process the feminists and civil society lose some support it would be an added bonus.”

”With an election coming up, they are hedging all their bets (including placating the western powers). The government is not concerned about rights activists and their apprehensions,” says Zohra Yusuf.

 

Please Visit our Sponsor (Ads open in separate window)