Zina [all sex outside marriage] remains an offence but the procedure for its complaint has been made stricter and those making an accusation of rape cannot be punished for zina. Thus, false accusations of zina will dramatically drop.
The myth that the Hudood Ordinances cannot be touched without the wrath of the mullahs tearing the country asunder has finally been laid to rest with the passage in the National Assembly of the Protection of Women Act, 2006. That’s good news.
The Bill has still to be passed by the Senate. The MMA has threatened to resign and the leader of the PMLQ has graciously offered to resign in case an un-Islamic element is discovered in the law. Meanwhile, the president of Pakistan is exhilarated.
In his statement to the press, he has claimed to do away with the requirement for a victim of rape to bring four witnesses "otherwise she is imprisoned". In similar fashion, he has asserted in his book that under his rule the national assembly passed a law banning "honour killings". Such killings were always banned ; but like all murders could be compromised unless the court specifically overruled it.
The president is either misinformed or deliberately misleading his constituency. The Hudood laws did not require the evidence of four male adult Muslim witnesses to punish a rapist under tazir, which prescribes for punishment of a maximum 25 years of imprisonment. All trials of zina and rape are carried out under tazir with regular rules of evidence applying during trial. Medical evidence, the victim’s testimony, and any other forms of proof are all taken into consideration. However, since zina (all sex outside marriage) is also an offence, the risk remained that during investigation if a woman were suspected of having consented to the rape the victim was arrested on charges of zina.
This has largely been taken care of by the new amendments. Zina remains an offence but the procedure for its complaint has been made stricter and those making an accusation of rape cannot be punished for zina. Thus, false accusations of zina will dramatically drop. The Select Committee of the National Assembly and the President has taken a positive first step. At the same time it is critical to realise that a clear vision is needed while legislating.
Laws cannot discriminate on the basis of sex or religion and the objective of criminal legal system is to enhance the principles of justice. Orthodox interpretation of Islamic law cannot come in the way of principled norms of justice. The remaining portions of the Hudood laws are discriminatory against religious minorities, women, and the poor. Islamisation of the criminal legal system has paved the way to serious forms of injustices. An important example is the law of qisas and diyat. Murder can be waived or compromised but zina can still be punished with stoning to death. A person who can pay his way out of death penalty or manoeuvre a compromise can be set free but lesser offences can beget imprisonment.
The present Bill on the Protection of Women has made some amends and resisted the temptation of introducing a controversial clause bordering on censorship. Initially, it was recommended to punish anyone disclosing the identity of the victims or their families, involved in zina or rape cases. In most cases the press needs to exercise restraint but a number of victims want to be heard and it is their right to do so. Moreover, a number of incidents make news purely because of the identity of the actor. Indulgence in immoral acts by those who profess to act as its custodians is news worthy.
The parliamentary debate in the national assembly on the Bill was quite revealing. All sides vowed to abide by Islamic norms, yet had different approaches in resolving the issue. The speakers from MMA including Saad Rafiq of the PMLN called the Bill - a fahashi Bill. In particular, the women parliamentarians of MMA were most disparaging of Pakistani society. In their view, a softer law on zina would open the floodgates to immorality. They argued that Pakistan was created to be a theocratic State. They often referred to the dreams of Quaid-e-Azam Muhammad Ali Jinnah and appealed for the Hudood Ordinances to remain intact. Their leaders lamented that like many Western countries people would start living out of wedlock and have illegitimate children. In addition, they asserted that there were fewer women arrested under zina than was being alleged.
Those who are now convinced that Pakistan was designed to be a theocratic state were the very elements who opposed its creation precisely because they feared it was not to be so. The Quaid or any of his followers never promoted laws similar to the Hudood Ordinances. The level of morality in Pakistan was better prior to the promulgation of the Hudood laws in 1979. The temptation to commit immoral sexual acts is not dependant on penal sanctions but upon the leading values of the times. Figures on the number of reported cases show that there were only two cases of adultery before the promulgation of the Offence of Zina Ordinance. Since then there have been hundreds of such cases. As far as the numbers of affected women are concerned, it is vital to recall that these were far greater in the early days of the enforcement of the zina law and that hundreds are bailed out every week. The total exceeds the few hundred that were recently granted bail. The zeal with which the Jama’at women pleaded for morality is never expressed when scandals of people belonging to their own ideological beliefs appear so prominently in the press.
The passage of the Women’s Protection law is no victory for anyone. It is a great sense of relief that fewer women will end up being imprisoned on trumped up charges. The present amendments have virtually reduced the Zina Ordinance to only a few sections. At the same time a more fundamental issue has to be resolved - the fate of law making ? Is it going to be based on principles of equality or politicized in the name of Islam ?
While there is respite in one area, there are dark clouds in another. The passage of the Hasba law has allowed the mullah a free hand in setting up a network of morality enforcers in the NWFP. There has hardly been any resistance to it by the government. It indicates that Pakistan is following a dual policy, a politics of give-and-take. A position based on principles is often seen as extreme, perhaps because it cannot be whimsical. Instead, politics of convenience has been the vogue in Pakistan, based as it is on pure opportunism.
Such enterprise is bound to falter because it lacks clarity and sincerity.