Real Change on Anti-Woman "Hudood" Laws?

by Abira Ashfaq, Peacework

In November 2006, women in Pakistan and around the world celebrated the passage of the Women's Protection Bill, a rare instance of positive legislative reform offering some relief from Pakistan's infamous "Hudood Ordinances"—a set of religious-based laws that includes extreme restrictions and punishments for women. While celebration is justified, the women's movement in Pakistan has a long way to go.

While one dictator passed the infamous Hudood Ordinances, another, an Ataturk for the 2000s, delivered the Women's Protection Bill. But by all indicators, women have much to achieve. Sixty-four percent of Pakistani women are illiterate. Most work in the unregulated, informal sector, and play a limited role in governance. Elements of the Muslim right wing have developed strong ties with the military, and most governments have to take the Muslim right wing into account when making decisions. For many women's rights activists, while the new legislation does amend the Hudood laws to a limited extent, its greater significance is that it shows that persistent work by the Pakistani women's rights movement can make a difference.

The Hudood Ordinances

For 27 years the Hudood Ordinances have dominated the discourse on women's rights in Pakistan. In 1979, Zia-ul-Huq promulgated these laws in an effort to consolidate military power through an Islamization campaign. Passed on the eve of the Prophet's birthday, these were hastily drafted by a reconstituted Council of Islamic Ideology. Of its 17 members, only 4 had any legal background. The Ordinances, which changed rules for some offenses covered by the secular criminal laws inherited from the days of British rule (the Pakistan Penal Code) and also created new ones, covered: zina (adultery and fornication), zina-bil-jabr (rape), theft, armed robbery, qazf (false accusation of zina), the prohibited use of alcohol and narcotics, and the procedure for whipping. Zina offenses include adultery, non-marital sex, and related offenses.

Hudood is plural for hadd (limit). Offenses covered under the Hudood Ordinances are punishable by hadd, or maximum, punishment. For zina crimes, these punishments are whipping and stoning to death. These sentences are applicable only if the accused is a Muslim and if he or she confesses—or if four adult, pious, male witnesses testify as to the crime. If the evidence falls short, the accused is subject to tazir or lesser punishment, including "rigorous imprisonment" of four to ten years, whipping, and a fine.

The number of women imprisoned for zina went up an astounding 3000% from 1979 to 1988. Most convicted, though, were given a jail sentence under tazir versus hadd, as the government was rarely able to meet the rigorous evidence standard of four male eyewitnesses. In 2004, out of 77,420 Hudood cases, 3817 were zina cases. Of these zina cases fewer than 800 resulted in final convictions. As those accused were not eligible for bail, women undergoing trial ended up spending months in jail as their cases were funneled through the broken and bribery-ridden lower courts.

The Hudood Ordinances have primarily been used against women from the lowest socio-economic stratum. Nevertheless, the laws carry the dreaded potential of disempowering all women and establishing authoritarianism as dictated by the most conservative, patriarchal interpretation of Shariah. Hence, women's rights groups like the Women's Action Forum, the Aurat Foundation, and Shirkat Gah have mobilized against the Ordinances. Lawyers like Asma Jehangir and Hina Jilani, and activists like Mumtaz Khawar and Fareeda Shaheed have gradually became household names for their opposition to Hudood and their work for women's empowerment.

Rape: Whose Crime Is It?

A serious criticism of the Hudood Ordinances, one for which they have become notorious, is their conflation of zina (adultery or fornication) with zina-bil-jabr (rape). Rape was also punishable under Hudood. Quite perversely, when a rape victim was unable to convince the court that she was raped, her allegation of rape (or her pregnancy) was treated as a confession of zina. Women's groups used such cases to highlight the morbid injustice of the Hudood laws. One was the 1983 case of Safia Bibi, a blind 16-year-old girl who was raped by the sons of a wealthy landowner and was sentenced to three years in prison, 15 lashes, and a fine. Another was the case of Jehan Mina, a 13-year-old raped by her uncle and cousin. She too was convicted of zina after becoming pregnant. The Federal Shariat Court reduced her sentence, finding her "confession" faulty. Zafran Bibi's case hit the press in 2002. She was raped by her brother-in-law and became pregnant, and was convicted and sentenced to be stoned to death. In June 2003, the Federal Shariat Court acquitted Zafran Bibi, saying that a rape victim should not be considered to have committed a sexual offense and should not be punished.

Due to intense international and domestic condemnation of the state's misogynist punishment of rape victims, the opinion around the Hudood Ordinances has largely been negative. And under the scrutiny of civil society, Pakistan has never witnessed a stoning execution under Hudood. The Federal Shariat Court, created by General Zia in 1980 to hear appeals on Hudood cases, has overturned many cases. In 1981 the FSC found that the practice of stoning was repugnant to the injunctions of Islam. In 1989, it recommended that the rape law be amended to require two male witnesses instead of four. The Court has thus repeatedly expressed its own discomfort with the laws as they stood.

Typical Zina Cases

The rape cases demonstrate the worst of the law's enforcement. Most cases under the zina laws do not involve women who have been raped, but rather women who are victims of a different type of violence—women being punished by their parents or husbands in a continuing progression of psychological and physical abuse that starts at home and continues with the justice system. Unsurprisingly, a large number of the women I spoke to held for zina crimes at the Karachi Jail in 2004 had suffered domestic violence, were not literate, and worked the most menial jobs. Saman's and Zarina's stories were typical.

Saman, 18, from Parachinar in the north, married against her parents' wishes. Enraged, they had her lawful husband arrested on zina charges. She was arrested a few days later. Her parents procured a fake marriage certificate and claimed that she had been married before. Therefore, her "new" marriage was invalid and a crime under Hudood.

Zarina, 30, was forced by her stepbrother to marry Hanif, her first husband. He was about 30 years older than she was, and she suspected he received a payment for the transaction. He would beat her when he was high on drugs. She complained to her brother about the domestic violence. About three years ago, she left her husband and married Falak, a carpenter. She had a daughter with this man, a child she has held onto tightly even while in jail. Her ex-husband got a police officer involved in the case. "When I appeared before the magistrate I told him how Hanif abused me, but I was still sent into jail custody." She says Falak shows up at court and threatens to kidnap her daughter.

It isn't easy for women who have limited education to obtain divorce decrees and use the legal system.

Resistance to the Hudood Laws

In 2003, the National Commission on the Status of Women in Pakistan, a statutory body created by the government, recommended repealing the Hudood Ordinances. They pointed out several errors—a minor could be punished for zina instead of being considered a victim of statutory rape; witnesses' testimony was evaluated based on gender and piety instead of on their credibility; stoning is not mentioned in the Quran.

In 1997, the Commission of Inquiry of Women asked for repeal, saying the laws violate both the UN Convention on the Elimination of Discrimination Against Women (ratified by Pakistan in 1996) and Article 25 of the Pakistani constitution guaranteeing women and men equal rights.

In 2006, a new body of the Council of Islamic Ideology recommended serious amendments to the Hudood Ordinances. The voices representing support for the laws have remained on the fringes, lumping together all resistance to Hudood as part of a conspiracy between Western interests and local NGOs.

The Women's Protection Bill of 2006

In 2006, GEO TV initiated a debate on the controversial nature of the Hudood laws and presented its audience with the views of diverse religious scholars, thus further normalizing criticism of the laws. In the wake of this event, the Women's Protection Bill was passed. It does not repeal the Hudood Ordinances, but makes some significant changes to the zina sections. The Bill passed on November 23 in the Senate. Many abstained from voting and many staged a walkout.

The women's movement was split; while some ardently favored a complete abrogation of the laws, others were pleased with the semblance of a shift, the first in 27 years. The Hudood Ordinances had survived despite efforts to repeal them by prime ministers Nawaz Sharif and Benazir Bhutto. Their existence had seemed to be etched in stone.

Since the passage of the Bill, rape and other crimes whose punishment is not prescribed by the Quran will be covered by the Pakistan Penal Code and be punishable under tazir. The complaint process is amended to discourage the filing of false accusations of zina. The complainant must take four male eye-witnesses to a sessions judge. To issue a summons, the judge must then ensure that the witnesses meet Islamic standards of morality and truthfulness and that a prima facie case exists. Lying witnesses may be punished. The term "confession" is amended to be an explicit and voluntary admission in court before a judge. Zina defendants are now eligible for bail. Most importantly, complaints of rape can no longer be turned against the victim.

The Women's Protection Bill does function as a safety valve—easing off some of the most intense international and domestic pressure against Pakistan's anti-woman laws—but it does not really change the balance of power (mullah-military versus women). The Hudood Ordinances' provisions for crimes against person and property, and their corporal punishments, still stand. Zina and false accusations are still punishable by stoning. Arguments that the high evidentiary standard provides a safeguard do not give solace. A woman I met at the Karachi Jail said her husband filed a zina complaint against her. He conjured up sixteen witnesses, mostly family members, who claimed to have known about the affair. Under the current complaint process—even since the passage of the Women's Protection Bill—if he is able to produce four "eyewitnesses," she could still be sentenced to death by stoning.

Activist and lawyer Asma Jehangir writes that "[t]he level of morality in Pakistan was better prior to the promulgation of the Hudood laws in 1979." An appeal to "morality" appears hypocritical in a country where the state immorally denies women political and economic rights, yet one can see its pragmatism. Pakistan is a place where a vibrant, urban women's movement, a largely tolerant civil society, and a liberal higher court system co-exist with the powerful Jamat-i-Islami, a robust system of right-wing religious education, and a misogynist police force. A lot of work has to be done ground-up to tip the balance toward equality. Working for women's health, education, and economic autonomy is the only way.

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Abira Ashfaq has worked as a detention attorney in the United States for over five years representing non-citizens detained by the US immigration authorities. She has also worked in Pakistan with War Against Rape and Lawyers for Human Rights and Legal Aid.

This story originally appeared in the February issue of Peacework,
American Friends Service Committee (AFSC), Cambridge, MA
http://www.peaceworkmagazine.org/node/452

References available on request.

From our weblog:

Pakistan: rape laws challenged, Islamists exploit backlash
WW4 REPORT, Nov. 26, 2006
http://classic.countervortex.org/node/2839

Pakistan arrests rape victim
WW4 REPORT, June 14, 2005
http://classic.countervortex.org/node/622

Pakistan: girl was poker debt bride
WW4 REPORT, Feb. 28, 2005
http://classic.countervortex.org/node/3251

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Reprinted by WORLD WAR 4 REPORT, April 1, 2007
Reprinting permissible with attribution