THE BILL THAT GOT KILLED
By Sherry Rehman
Â Â Â Â Â Â Â Politics has been known as the art of the possible. When the regime introduced its draft of a Womenâ€™s Bill in parliament, many progressive forces that had been pushing for repeal of the infamous Hudood Ordinances imposed by Ziaul Haq on Pakistan saw an opportunity to effect change, even if it was a half-way house, for women in Pakistan. The regime had a manipulated majority in parliament but it had one where its allies were supportive of such change, a condition that had been absent for many progressive civilian governments like the PPP. No sane elements thought it would be right to stand in the way of some change, and hence support for the Bill was initially available.
Â Â Â Â Â Â This is because the Womenâ€™s Protection Bill had initially made some tentative attempts to alter the balance against women in a society which is heavily biased against women. Although many problems afflict half the countryâ€™s population, the injustices done to poor, resource-starved women through the man-made Zina and Qazf Ordinances had at least stood some chance of being removed from the justice system. Today the bill stands once again bogged on the Â Â bedrock of political expediency.This is obviously the case because the regime that had proposed it was not actually backed by a political party at all, but a group of individuals who had come together as political surrogates for the army chief, and therefore without any party manifesto or consistent policy on national issues.
Â Â Â Â Initially, the bill had sought to amend two of the four Hudood Ordinances, the Zina Ordinance and the Qazf Ordinance, through 30 amendments in the Protection of Women [ Criminal and Family Laws Amendment] Act.
The main positive thrust of the original Bill was to remove Zina [ consenting sex], from the Tazeer [ General law and Pakistan Penal Code]. If this was ever done, it would not have madePakistan a â€œfree- sex zoneâ€ as reactionary elements suggested, but would have takenPakistan half- way back to the position before 1979.
Â Â Â Â Â Â Â Â Why is that important? It is important because the Hudood Ordinances were used to award punishments under the Pakistan Penal Code or Tazeerat-i-Pakistan, not under the strict conditions required for Islamic Hadd, but on flimsy evidence trumped up by the assailant. What this did in effect was to convict a rape victim, who had complained of a crime against her, and acquit the rapist, or the accuser of any woman whom they sought to criminalize as an adulteress. By allowing the lower courts and gender biased judges at that level to confuse Zina with punishments for rape [ Zina bil Jabr], these ordinances were responsible for placing thousands of underprivileged women in lock-up from anywhere to six days to six years. No convictions would ever be awarded under Hadd when the case ever went up in appeal to the superior courts or theFederal Shariat Court, but the victimâ€™s life would be over when she was finally acquitted or released, as her family would rarely take her back after her name had been â€˜dishonoured.â€™ Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Under the original draft of the Womenâ€™s Protection Bill, many crimes against women were no longer cognizable, meaning that charges like zina or consenting sex could no longer be registered at the police level, but would have been taken to a sessions court. The Presiding Officer of that Court, would have at once examined the complainant and at least four adult eye witnesses, upon oath, of the act of zina necessary to the offence. This would always have been difficult to prove, as indeed even intended by Islam, and would have protected women. The fact that the amendment also made the offence bailable provided a great deal of relief to the ordinary woman who is made the hapless victim of such allegations.
Â Â Â Â Â Â Â Â Â Â Â Â Later, however, the extra-parliamentary changes proposed by the regimeâ€™s ulema consultants, not the Islamic Ideology Council, would have done two things: One, Zina would be awarded under Tazeer again, which had been initially changed. This would make a woman liable to zina punishments for five years, whereas the fig-leaf of two male witnesses to the charge could easily be circumvented by the rapist who could pay for the witnesses. Not only would a woman with a medical certificate for rape be sent to jail for â€˜ lewdnessâ€™ but the rapist could go scot free by implicating another innocent or missing man in the absence of DNA testing, which of course is not available at the basic health unit level. Neither would this change have been Islamic, as Islam requires four watertight witnesses not two, and nor would it be just by any universal standards.
Â Â Â Â Â Â Â Â Â The second change that the regime had proposed in a paper circulated outside the formal committee of parliament, but in the parliament cafeteria, was even more dangerous. This change would have imposed a clause to make all judgements in accordance, supposedly with the Quran and Sunnah in womenâ€™s cases, without ever having resolved the great Islamic discourse on which injuction of Islamic Fiqh or jurisprudence, or Quranic verse, or action of the Holy Prophet [ PBUH}Â would constitute the basis for common law. Its proponents say that it is a part of the Constitution, but then if that is the case, why does it not stay there, forming a general framework for social protections? What is the motive for it be specifically inserted in a Womenâ€™s Bill? In a utopian Islamic society, women would clearly be free, with as much rights as men to conduct their affairs freely and be subject to no discrimination. Under any circumstances, Islam would never allow injustice to be done, as it looks upon injustice as a sin bigger than all others. Under the circumstances, in modern-dayPakistan, it would become an instrument for reversing all the positive judgements and case law that have accumulated over the years from the higher courts and the FSC, wiping out all progressive interpretations of the law as precedents that are so critical in any justice system.
Â Â Â Â Â Â Â Â But this would not be its only effect. This clause could very easily create a situation where the sessions judges would be loath to pass a verdict in womensâ€™ cases unless they were advised by a religious scholar as amicus curiae, or assistants to the court. In other words the option of awarding Tazeer offences to victmised women under the Zina Ordinances would have been unimaginably magnified. No one would know who is the right scholar, from which sect or school of religious jurisprudence, and the justice system would not only become subject to a mind-boggling set of anomalies, it would provide a whole host of new opportunities for gender biases to come into play in a court-room.
Â Â Â Â Â Â Â The third clause proposed by this informal body of ulema would also have taken us back to the original situation prevailing under the Hudood Ordiances. The punishment for rape or Zina bil Jabr would be available under both the Hadd laws, as well as in Tazeer under the Pakistan Penal Code. Criminal lawyers are all agreed that on appeal, the retraction of the confession alone would stop the court from imposing Hadd. Nobody knows, given the legal confusion about the role of theFederal Shariat Courtto hear a Tazeer case, where this case would go, and if it would entail a re-trial. In the worst case scenario, the rapist could find shelter outside of Tazeer in the Hadd law, and tire out the complainant, who would then not be able to use the protection provided to her in the PPC as a rape victim.
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â What got lost in the political hype surrounding this legal debate is a fundamental point: Such crimes occur because the rapist knows he has impunity under these laws, and he is usually more empowered than the poor woman he is subjecting to his violence. For 27 years the campaign against the Hudood Ordinances inPakistanmay have been fought by the progressive PPP, because it resisted all reactionary laws imposed on the country by a dictator, but outside the political mainstream these laws were also contested hotly by womenâ€™s groups both in the tear-gassed streets of urbanPakistanas well as their offices. For many commentaries to denigrate both this political and civil society struggle as a â€˜ westernâ€™ or elitist formulation is both ill informed and unjust. The stark reality is that these laws have never hurt or criminalized women with resources, or access to expensive defence attorneys. They only target the level of victimised women who get paraded naked in the streets of rural Pakistan, or women whose former husbands or assailants have a feudal mindset, leaving the assailant comfortable in the knowledge that his victim will probably be forsaken by her community for even naming her rapist, let alone mentioning the crime. These laws victimize Â women in a social system where even bringing the word rape to her lips impliesÂ a level of complicity in her own actions. The world witnesses this accusation of female complicity in even the most Western societies, where the woman is often labeled in gender-biased courtrooms as having tempted the man, who is seen as unrestrained by any personal pr social responsibility. So what chance does a blind Safia Bibi have when a man attacks her, and the law inPakistanaccuses her automatically of zina, or consenting sex, just because she is pregnant after her ordeal?
Â Â Â Â Â Â Â Â Â Â Â Â Â Â It is the responsibility of all parliamentarians to have soberly studied these flawed laws, and to have supported any positive change that brought relief for women. To cynics who say that the PPP allowed the regime to split the opposition by supporting the regimeâ€™s proposed bill, the answer is then by that logic, when the Ulema brought in heavy amendments, should the PPP have looked the other way and not opposed those laws? If that opposition had not been vocal and strong, the regime may well have buckled under neo-Islamist pressure and allowed those anti-women amendments to go through. As it is, the message from this whole sorry saga is that the regime has caved in even with a parliamentary majority and allowed the national agenda to be dictated by forces that would takePakistanback into the dark ages, without the guiding and just hand of true Muslim tolerance.
Â Â Â Â Â Â Â The other message the regime gave by succumbing to its own internal dissent is that it cannot effect change on any real issues. This constitutes a serious vote of confidence on its abilities to govern. It also put the seal on the long-derided pointlessness of this parliament, or the value of standing up for oneâ€™s beliefs. If no change comes about in the near future, then no one should be charged with cynicism if they saw the Womenâ€™s Bill as only a ploy to divide the opposition, or maybe a ticket for Musharrafâ€™s warmer reception to the White House. In either case, the regime stood more divided than the opposition but also exposed, naked and shivering to the world for what it is: a military dictatorship that has played out all its cards. Â Â Â Â Â
Sherry Rehman is a Member of the National Assembly and Mover of Five Womenâ€™s Bills in Parliament on behalf of the PPP.
Explanation: After the Hudood Ordinances entered the Pakistan Penal Code, they made rape victims liable to zina [ adultery] charges, and open to further abuse. Women would get raped and become liable for zina or adultery charges under the PPC, not Hadd, as Hadd judgements had come into the PPC. What used to happen is that Zina or adultery could never be awarded a punishment under Hadd, as one had to produce four male witnesses etc, but the gender-biased sessions judges would award it on circumstantial evidence in Tazeer. This used to make rape or zina bil jabr victims liable to punishments for zina [ adultery]. Hundreds of women would languish in jail without conviction on flimsy charges of zina, and when they left jail after trial, would not be allowed back in their homes because their families and communities saw them as colluders in crime and of bad character.
Â The 19th Century British Penal Code that is now the Pakistan Penal Code still carries no punishment for zina for a woman, as the British judges had observed that a woman is already discriminated enough in society, and we do not wish to add the burden of proving innocence in an adultery case on women. Therefore under the PPC before the Hudood Ordinances 1979 came into tazeer, punishments for adultery were only liable on men, not women.
PPP supported this change, of removing Zina from Tazeer, or Penal Code, as it stops women being liable to zina punishments, and zina bil jabr or rape, would not be confused with zina by the judges.
OTHER POSITIVE PROPOSALS IN THE BILL
Â Ã˜ Articles 17 A and 17 B are being inserted in the Qanun-i-Shahadat order, 1984, to stipulate the requirements of Zina and Qazf respectively. It has also been provided that failure to prove zina will result in punishment for qazf [ giving false evidence] without any need for bringing a separate and independant prosecution. This is good for women, as when they are falsely accused of zina, after acquittal the burden of bringing a fresh case against their persecutors/ accusers is not on them The court will proceed automatically to punish false accusers, which will be a great deterrent to crimes against women. [.PPP supported the making of Qazf punishment [ for giving false evidence] automatic after a victim has defended herself in court against charges of adultery, so the accusers may not go scot free and think twice before accusing women of zina. False accusers will be charged automatically .]
Â Ã˜ The good news is that WhippingÂ Â punishments have been removed from Tazir for Zina and for Rape under PPC 375 and 376. Sections 11-16 of the bill, in fact, remove all whipping punishments under 365 B, 376 A, 371 A, 371 B, 493, 496 B of the PPC.
Â Ã˜ Zina bil Jabr has been shifted to PPC as Tazeer,definition changed; which is good, and punishment is death or 25 years imprisonment or not less than 10 years; case can be decided on circumstantial evidence but still with 4 Mulsim male eyewitnesses. [ See Dissenting Note]Section 5 of the Bill inserts sections 375 and 376 into the PPC. These make rape punishable as per the normal law of evidence without the requirement of 4 male witnesses. 496 B will negate this if introduced. [ See Dissenting Note on 496 B]
Â Ã˜ Lesser punishment for gang rape , than death, which is good since courts were reluctant to award death and rapists were getting no convictions. This clause has been asked for by all womens lawyers.
Â Ã˜ The definition of marriage has been deleted. Another good thing. The Zina Ordinance also defines “marriage” as a valid marriage. In rural areas, in particular, nikahs generally and divorces particularly are not registered. It becomes difficult for a person charged with zina to establish “valid marriage” as a defence. Non-registration has its civil consequences. These are sufficient. Failure to register a nikah or have a divorce confirmed should not entail penal consequences. This is in consonance with the Islamic norm that Hadd should not be imposed whenever there is any doubt about the commission of the offence. The misuse of the law in such cases has made it an instrument of oppression in the hands of vengeful former husbands and other members of society.A triple talaq is pronounced. The woman returns to her parental home. She goes through her period of iddat. After a while the family arranges another match and she gets married. The husband then claims that sans the confirmation of divorce by the local authorities the marriage is not over and launches a zina prosecution. It is necessary to delete this definition to shut this door. The bill so far deletes it.
Â Ã˜ Lian is a form of dissolution of marriage after a husband accuses a wife of adultery falsely . A woman who is accused of adultery by her husband and denies the charge can seek dissolution of the marriage. Section 14 of the Qazf Ordinance refers to Lian and provides a procedure for it. A form of dissolution of marriage has no place in a penal statute. Accordingly, Lian has been introduced as a ground for divorce under the Dissolution of Muslim Marriages Act.
PPPPÂ DISSENTING NOTE UNTIL SEPTMBER I 2006
1. Repeal the Hudood Ordinances entirely.
See attached paper for details.
PPPP Proposed change. Dissenting note from PPPP
2. In the preamble to the Bill, the following should be added:
” Whereas Article 25 of the Constitution guarantees that there shall be no discrimination on the basis of sex alone.”
PPPP proposed change. Accepted by Chairman and so amended.
3. Changes in 502 b. A woman should be able either conceal her identity and not have her rape reported, or be able to publicise it for protection if she so desires. The words, ” in case of zina or rape or without her consent” should be inserted to give women the option to speak to the press if they face local or family persecution. Cases like Mukhtaran Mai would require this clause, and would also provide some relief to the press, who have provided women victims with a great deal of support recently, on the whole.
PPP proposed change [ Accepted by Chairman of Committee and so amended]
4. Changes in 203 A of the Pakistan Penal Code. The term four adult eye witnesses should remain as in original draft of bill. The re-assertion of the words “Muslim, male” will take us back to a situation where women’s evidence is not acceptable as a full citizen, nor is a minority citizen’s. This is in direct contradiction to Article 25 of the Constitution.
CHANGE FROM ORIGINAL DRAFT. Major Dissenting note from PPPP
5. 203 B [ 3] Complaint in case of Qazf. A woman should not have to produce to two witnesses to prove a charge. This clause is being re-inserted in the bill after an original draft without it.
CHANGE FROM ORIGINAL DRAFT. Dissenting note from PPPP
6.The age of consent in Section 5 section for women is 16.
It should be deemed as 18, as in the 1973 Constitution and the same as men . But they are now amending it by adding the words â€œ if not validly marriedâ€ to state that if a girl under 16 is married then she cannot complain of rape. There is widespread consensus that this will mean that whenever a girl under 16 is raped the man will say they are married.
The Child Marriage Restraint Act, 1939, also does not permit a girl to be married under 16.
The words â€œ if not validly married â€œ must be deleted from the new draft of the bill.
CHANGE FROM THE ORIGINAL DRAFT: Major Dissenting note.
7. A person can be convicted for zina either on a confession or when there are
four witnesses. The procedure for four witnesses has been provided. This is a good thing. But there is still no procedure for confession. The Session Judges have been treating pregnancy as confession. See the cases of Safia Bibi ( a destitute blind girl who was raped) Jehan Mina and Zafran Bibi. There is no reason why confession should not be defined in the Zina Ordinance. Section 11 of the Bill will have to be amended as follows:
Â 11. Amendment of section 2, Ordinance VII of 1979.- In the Offence of
Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of
1979), in section 2, clauses (c) and (e) shall be omitted, and after clause
(a) the following shall be inserted, namely:
(aa) “confession” notwithstanding any judgment of any court to the contrary
means an oral statement, explicitly admitting the commission of the offence
of zina, voluntarily made by the accused before a Court of Sessions having
jurisdiction in the matter or on receipt of a summons under Section 203 A of
the Code of Criminal Procedure, 1898 (Act V of 1898).
This will ensure that a woman will get hadd for zina only when she confesses
and not when the Sessions Judge assumes she has confessed.
PPPP Proposed Change, Major Dissenting Note.
9. Stoning to death, or rajam, should not be retained as a punishment. It is nowhere mentioned in the Quran, and is contradictory to the standard of punishments in conjunction with current norms of human dignity. Stoning to death was actually never awarded by the Caliphs Abubakr, Omar and Ali, on being too extreme, and even when the Prophet [ PBUH] awarded it he did so
PPPP Proposed Change. Dissenting Note.
10. The punishments of whipping under sections of the Zina Ordinance [ liable for Hadd] should be replaced with imprisonment. They remain under Hadd, but that is never executed, even it is awarded by a lower court. However, it would be best if all whipping were done away under all laws.
PPPP Proposed Change. Dissenting Note.