Zeri Islam

The much threatened filibustering by the religious alliance of political parties — known as the Muttahida Majlis-e-Amal (MMA) — never materialized, as they just walked out. The bill barely crossed the necessary threshold barrier by obtaining the minimum number of majority votes.


Misleading Label

This bill aims to essentially achieve a single objective: to make one of the most controversial and misused Hudood Ordinances lose its teeth. According to its critics, this particular law, adopted by the last military ruler, General Zia, has often banefully inflicted injustice on Pakistani women. Arguendo, it conceivably could have been repealed long ago. But such are the inscrutabilities of politics in Pakistan: Rulers have often chosen to ignore the manifest necessity for expediency. What the present military regime has done vis-à-vis by this Hudood enactment is to purportedly make it less threatening for victims to report rape incidents to the police.

The label "Women's Protection Bill" is patently misleading. All it does is change the forum and modalities of making accusations only in rape cases; it is nevertheless a state action that has been noticed internationally in respect of Pakistan. It does not directly or indirectly protect or advance the case of women at all. This contention is amply proved and established: From the very next day, November 16, the government introduced another draft bill which aims to obtain for women other forms of "relief" from the seemly oppressive nature of the prevalent laws as well as from the machinations of a corrupt police establishment that apparently flourishes in this country.

The political head of the ruling alliance, Shujahat Hussain, while depositing the draft of the new proposed legislation on November 16 with the Assembly Speaker, said that

The National Assembly of Pakistan would do away with "evil customs like vani [giving the hand of women to settle murder disputes], swara [forcibly marrying young girls to members of different clans in order to resolve blood feuds] and honor-killings" in the remainder of its tenure. This is a follow-up move on the Women Protection Rights Bill which was passed by the National Assembly on Wednesday. The bill seeks to not only empower women, but also give them their due rights. The bill that we passed on Wednesday is the first step of our government towards protection of women's rights, and the new bill is part of our agenda to ensure that their full rights are given to them.

The federal Minister for Parliamentary Affairs, Sher Afgan Khan Niazi, said the new bill, seeks to put an end to six anti-women practices, as shown in the following:

One, it seeks action against those who deprive women of their inheritance or property rights. Two, it legislates against vani or the custom of giving the hand of women, mostly under-age girls, to settle murder disputes. Third, it criminalizes forced marriages. Fourth, it proposes legal action against those who issue three divorces to their wives in one sitting. Fifth, it makes women's marriage with the Qur'an a crime. Sixth, it puts an end to the custom of watta-satta [bartering bride for bride].

It is thus patently clear that the Women's Protection Bill is characterized by the following:

1. It does not repeal the Zina (rape) Ordinance designed for rape victims. The new law, when it comes into effect after it has been duly enacted, would only alter the procedural formalities of handling such cases. Under this bill, rape has been taken out of the Hudood law and included in the Pakistan Penal Code (PPC) as it was before General Zia decided to equate it with adultery, since it effectively made a raped woman liable of being punished for fornication if she failed to produce sufficient evidence. Such evidence is generally considered by many local lawyers who have commented on these evidentiary rules, as outlined hereinafter (see Section 8 of the Hudood Ordinance), to be the oral testimony of four male witnesses.

2. The second major amendment is to change the procedure for registering a zina case. The offense is no longer cognizable and only a court can decide whether the case has any merit; even if it does, the offense is bailable. Under the laws of England left as legacy in many contemporary Commonwealth countries, the police cannot embark upon jurisdiction in non-cognizable cases without the orders of a court of law. The term bailable connotes that the police and the courts have a duty to grant bail in such cases.

3. The "protection" aspects of the bill for women are exaggerated or misplaced.

4. Another provision in this bill makes lewdness (later changed to fornication, defined as consenting sex between unmarried couples) punishable under the PPC. In this provision, there is the opening of the door again to the norms and philosophy of the Hudood Ordinance, which incidentally remains, even after these amendments, the superior law to the amending bill.

Need to Reform

I may further mention that months before this "reformist" trend attempting to introduce the new set of proposals for meeting the six tabulated legal "needs" of women suddenly found favor with the ruling political alliance, I had already written about this subject at length. Indeed, I had also given at least two major international lectures in 2006, one in July at Brigham Young University, Utah, and the second in September in London to a large collection of NGOs about the need for such a reform of laws concerning women in Muslim countries. (See "Women's Position in Muslim Family Laws: Needed Reforms.")

I had stated in the submissions contained in these addresses that irrespective of merits of perceptions, the time had come for an adverting to the treatment of women in the legal systems of the Muslim countries. I am happy to say that I was awarded in London the World International Islamic Award for my efforts in this behalf. When I had earlier made similar observations to the World Family Forum Seventh Annual International Conference in Provo, Utah, USA, I was most encouraged by most of the delegates from Africa, the Caribbean, the Americas, and Europe. The only dissent to these "progressive" ideas, I regret to note, came from a young Counselor of Egypt in the UN Mission who said, patently incorrectly in my submission, that such "reforms" would be rejected by Muslim countries. The overt reaction on this point from the recent Pakistani case, irrespective of causation or political overtones, establishes my concerns about this topic generally. I think that much of the injustice to women's rights is cultural and historical, stemming from age-old prejudices in the Third World and has nothing to do with Islam with its overall message of justice and fair treatment of the weaker sections of the society.

The passage of the Women's Protection Bill in this amended form (from the original recommendations of the House-Select Committee) indicates an attempt by the government to take a middle position between the liberal lobby and the conservative elements within its fold as much as in the country generally. The critics of the controversial Hudood Ordinance enacted by General Zia have maintained that instead of protecting the victims of rape, the law in fact helps the perpetrators of the crime by putting the onus on the woman to produce four witnesses to support the claim as purportedly required by the Islamic laws) or to be sent to jail on a charge of adultery. The ordinance, they argued, needed to be repealed in its entirety. On the other hand the supporters of the ordinance maintained that its misuse could be stopped by providing a few safeguards instead of changing its basic principles. It is important to mention that neither in the Hudood Ordinance nor in the present amendments through this WPB is there any direct reference to the Qur'an or the Shari`ah rules or precedents on this point.

Jurisprudential Aspects

Some comments about the jurisprudential aspects of this bill are now necessary. The Hudood Ordinance regarding rape or zina was essentially legislation on the pattern of the ordinary laws of Pakistan. Not a single provision was backed by a quotation from the Qur'an or Sunnah. Its amendment too has been again without any reference to the Qur'an or Sunnah. Conceivably there are rules of Shari`ah evidence for all the provisions of both the Hudood Ordinance and the WPB, but no one has bothered to dwell on this vital point. The real problem or matters at issue, as I see them, are not thus regarding Islam, but pertain to pretenses or (wrong) perceptions of Islam.

As a deterrent, this Hudood law might well have discouraged couples from freely and openly emulating Western or at least non-Islamic mores by living together without marriage. What it did do conceivably was to provide the Islamists a false sense of achievement. The administrative and cultural problems apart, the jurisprudential problem with the Hudood Ordinance is that it was arguably an attempt to induct Islamic legal provisions onto a common-law system generally prevalent in Pakistan. Clearly, Pakistan, like other South Asian countries, has a common-law system. However, it had shared values with the civilian systems of Europe, since most of the basic law stood codified. But then most of these Codes were made by the British themselves. The common-law system is based on individual enactments as well as on precedents of the superior courts. The Roman-Law system is based on the Codes of Justinian: not the first, but certainly one of humanity's most magnificent attempts to codify the law of a society.

The Shari`ah is based on interpretation of the Qur'an and Sunnah, not just by jurisconsults but also by judges in their courtrooms. The grafting of a Hudood Ordinance on rape onto the Pakistani legal system, which was devised by Macaulay in the late 19th century, was thus ab initio a difficult juridical format. A new legal system is more easily imposed in its entirety on a society than bits and pieces are imported from one society to another. The mores and the underlying norms of the Shari`ah, where provisions of the criminal or civil law have an inter se relationship with the rest of its structure, are easily applicable in a setup which fundamentally relies for its validity on a different pedestal. For example, the law relating to adultery also directly involves the Islamic law of evidence, as well as the law of marriage, not to mention the general provisions of criminal trials. There are also issues of the kind of policing that is in place and of the kind of society involved.

The biggest difference is in the relative flexibilities available to respective institutions. Under the common-law system, the Sovereign Assembly (or sovereignty of a military regime, in the Hudood Ordinance's case) passes a law, which later turns out to be flawed, but the courts are bound to administer it. Under Shari`ah, the People's Assembly, or even the executive ruler, are powerless to make any changes so long as the courts agree on how to interpret the Qur'an and Sunnah on a particular issue. This is the same result in a secularist system where the Constitution stands at the apex of law-creating norms. That is where I feel the challenge to this WPB might well come from. The Pakistani Constitution though, made by civilians in 1973, has undergone two long periods of military rule. These acts of usurpation have left their impact upon the directions and fundamentals of this organic document of this country. In total, there are no less than at least a dozen direct articles in the Constitution that ordain that the country cannot enact any legislation contrary to Islam. Ex hypothesi, if the proponents of the movement against this WPB feel that it is un-Islamic, they can certainly challenge it before the superior courts of the country.

Legal Analysis

Now let me turn to a substantive legal analysis of what was attempted by the National Assembly of Pakistan on November 15 while adopting the Women's Protection Bill. The criminal law of several South Asian and Commonwealth countries contained in the Penal Code of 1860 was drafted by Lord McCauley and is based in its entirety on the common law of England. In its Section 375, the following was provided:

Rape: A man is said to commit rape who except in the cases hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following description:

Firstly against her will;

Secondly without her consent;

Thirdly with her consent, when the consent has been obtained by putting her in fear of death;

Fourthly with her consent when the man knows that he is not her husband;

Fifthly with or without her consent when she is under the age of 14 years.

This section was followed in the context of the present analysis by Section 497 of the Pakistan Penal Code, which outlines the crime of adultery. This section reads as follows:

Adultery: whosoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another person, without the consent or connivance of that man, such sexual intercourse not amounting to rape shall be guilty of the offence of adultery …

In 1979 under the military government of General Zia ul Haq, the Offence of Zina (Enforcement of Hudood) Ordinance No. VII was legislated. This law included the two above-mentioned sections but removed them from the penal law of the land by incorporating them in this new legislation. In this law, ostensibly carrying the label of Hudood, presumptively a clear message of vast political proportions was given that the Islamization of laws was underway in Pakistan. Section 4 of this ordinance deals with "rape," which it labels as zina; in Section 6 it deals with adultery, which it labels as Zina bil Jabar. The definitional phrases of the Penal Code are retained while transposing these crimes from one law into another. This is clearly a change of "laws" in which the same wrongdoing is proscribed. The causation of retention of the same criminal wrongs is easily comprehended.

However, the most crucial aspect that has been causing great criticism is section 8 of the Hudood Ordinance. It mandated that

Proof of Zina or Zina bil Jabar liable to Hadd shall be in one of the following forms:

…

(b) At least four Muslim adult male witnesses about whom the court is satisfied having regard to the requirement of "tazkiyat ash-shuhood" that they are truthful persons and abstain from major sins, give evidence as eye witnesses of the act of penetration necessary to the offence.

So in sum, the Women's Protection Bill has withdrawn these crimes from the 1979 Ordinance and put them back in the Penal Code as it existed before these amendments. While there are always controversies about this level of proof, the simple point to emphasize is that ultimately the court has to be satisfied about the guilt of an accused. In either view of the matter, it has to be kept in mind that women in distress will find it difficult to prosecute such heinous crimes, given the nature of the society that exists in a country like Pakistan.



Placation

Thus the human rights activists' criticism against the law has admittedly — since 1979 — been that it created at least confusion if not outright injustice, allowing powerful religious lobbies to manipulate the judicial system by virtue of the high deference that is traditionally accorded to the religious laws of Islam. It is trite knowledge that in most cases there are professional-touted and false witnesses that parties bring to the courts to pursue their causes. So whatever the law requires as a formality will be readily fulfilled by a determined litigant. If the bill becomes the law, rape will be tried under civil law, namely the Pakistan Penal Code. Sex outside marriage, which has always been illegal, will still be triable. Pakistan's religious parties called the new legislation "a harbinger of lewdness and indecency in the country" and against the Qur'an and Shari`ah law. They have threatened nationwide protests over the revised bill.

A point of tremendous legal significance not really noted by most writers on this subject is that the Musharraf regime went outside of the Constitution to placate the religious elements in the country. In a panic, the government set up an extra-parliamentary committee of religious scholars to pacify such extremist "Islamists" and created a new kind of "criminal conduct." This new section says that rape should fall under both religious and secular law. It introduced a new, very broadly defined category of "lewdness" into the penal code, and reinstated a clause giving the Hudood Ordinances pre-eminence over any law with which they might come into conflict. Liberal political parties, civil and human rights activists, and lawyers can certainly argue that these changes essentially eviscerated the "reform" and allowed influential religious lobbies to manipulate for their political aims what is seen as a weak judicial system.

Despite vociferous objections from the Islamic parties known as the Muttahida Majlis-e-Amal (MMA), the bill had been approved by a parliamentary committee with the support of the main secular opposition Pakistan People's Party (PPP). The committee proposed removing rape from religious law and putting it instead in the secular penal code where normal rules of evidence would apply. The MMA cried foul, threatening to resign en masse from the Parliament if the bill was passed.

The political opposition to General Musharraf is split precisely along ideological lines over the bill. The PPP parliamentarians voted with the government, deciding to risk its anti-regime credentials and choosing principles over political expediency. The Pakistan Muslim League-N, never warm to the bill in any case and the most resolutely anti-government force of all, chose to abstain from voting. The MMA walked out angrily from the Assembly but, significantly, failed to resign en masse as it had threatened to do. Most significantly, it failed to put on record in the parliamentary debates a reasoned point of view.

The government was able to persuade potential supporters of the bill — most notably the PPP and the Muttahida Qaumi Movement — that it was in fact not so different from the scuttled bill approved by the parliamentary select committee some months back. It also managed to include parts of the bill approved by the Ulema Committee, but not enough to frighten away its allies or too little to alienate the MMA altogether. In the end, it was this hybrid bill that was tabled in the National Assembly, the contents of which created just the right amount of confusion to carry the day. There will no doubt be endless debates about the merits and demerits of the bill in the days ahead. It will clearly disappoint those seeking a complete repeal of General Zia's Hudood laws of 1979. On the other end of the political spectrum, the bill will be criticized for opening the floodgates to "free sex," as Maulana Fazlur Rehman put it so colorfully.

The truth is that, as pointed out above, while looking "progressive," the bill does little to advance a matter that is firmly rooted in the cultural history of this country. The bill is at best a modest first step towards a more rational policy on sexual assault and rape and will bring relief to women who refrained from reporting such crimes in the past because they were afraid of being arrested on zina charges. For starters, it takes away the power of the police to arrest a woman accused of rape and gives this to a sessions court, and the latter too will only be able to summon a woman to attend a court hearing or in the case of conviction. Consensual intercourse between unmarried people has been made an offense punishable by up to five years imprisonment and a ten-thousand rupee fine, but the bill imposes similar punishment on those who file a complaint that such an act has taken place and then fail to prove their charge.

Constitutional Position of Islam

Before concluding this analysis, it is necessary to examine briefly the position of Islam under Pakistan 's Constitution of 1973. I t is axiomatic that all state action of the republic should be in accordance with the Constitution and with Pakistan's ideology. Why? Because Pakistan's creation and arguendo continued existence depend on it. Pakistan is not a state in which, by emphasizing "secularism," it can be concluded that Pakistani existence has been doctrinally secured. Without adherence to this country's history and ideology, the prospect of disunity, chaos, internal disorder, and possible breakup are always on the cards. In this context the following major points need to be kept in proper perspective:



1. Let us briefly simply look at the salient Islamic features of the Pakistani Constitution. Article 2 says "Islam shall be the state religion ofPakistan." This is followed by Article 31, which appears in Chapter 2 of the Constitution entitled "Principles of Policy" and contains a mandate in Article 31 to adopt comprehensively in Pakistan "the Islamic way of life." The provisions of this chapter provide guidelines for policy-oriented decisions of all state functionaries. This article says that "steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam, and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Qur'an and Sunnah." It is further provided in this provision that "The State shall endeavor, as respects the Muslims of Pakistan, to make the teachings of Holy Qur'an and Islamiyat compulsory, to encourage and facilitate the learning of Arabic language." Further, the state has to promote unity and the observance of the Islamic moral standards.

2. In addition to these articles, there are a large number of other constitutional provisions relating to, for instance, enforcement of religious laws and the oaths of every notable state functionary contained in the Third Schedule of the Basic Law, which emphasizes the highest supremacy of the teachings and laws of Islam. Further reference can be made to Articles 62 and 63, which address the matter of qualifications of membership of national elected bodies, in which it is candidly said that no one devoid of complete obedience to Islamic values can be given any office of authority in the country. Indeed, ironically, under a subprovision of these articles, it is an affront to the Constitution to speak against the Islamic ideology of the nation, which is precisely what seems to be taking place in a diversity of ways by Musharraf directly or indirectly for him.

3. Furthermore, there are Articles 227 to 231 of the Constitution in a chapter entitled "Islamic Provisions" that ordain that all state action should be in conformity with Islamic teachings. As such all legislative and executive actions can be challenged before the superior courts on the ground of repugnancy to the basic law. It is clear that once such bill becomes law, there might well be constitutional challenge in the courts.

4. Finally, a point of high significance is that, as pointed above, the Third Schedule to the Constitution contains oaths of office of each high functionary of state and is applicable to all members of the elected assemblies of the country, requiring them to strictly adhere to Islamic teachings. Deviance from this oath is arguably treason under Section 6 of the Constitution as being tantamount to be subverting the Constitution. At a minimum, a case can be made out for removal from office against anyone who manifestly stands in violation of this oath.

Hence it seems reasonable to conclude that real constitutional battles may well lie ahead with the judiciary, assuming great position of significance in this matter. Islamic teachings are the harbinger of justice that received only grudgingly global recognition. I feel that Pakistan's political survival in its present state setup may itself be put to test in such social upheavals that many predict may arise here as a consequence of this bill.



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Farooq Hassan has distinguished credentials: DPhil; BA Juris; MA; MLitt (Oxon); DCL (Columbia); DIA (Harvard); Of Lincoln's Inn, Barrister at Law, UK; Attorney at Law, US; Senior Advocate Supreme Court (QC) of Pakistan; David M. Kennedy Visiting Scholar and Professor of International Studies, Kennedy Center; Visiting Professor, Fellow, Center for International Affairs, Harvard University. The author has been adviser to four Pakistani prime ministers on foreign affairs and law, member and delegate to the UN Human Rights Commission, and to the UN Sub Commission on Human Rights, Geneva . He has also represented Pakistan delegations to the UN GA and was the leader of Pakistan Delegation to the International Criminal Court (ICC). He is the UN Special Ambassador for Family and the President of the American Institute of South Asian Strategic Studies, Boston . He was awarded the highly prestigious King Faisal Memorial Award for 2002 by Saudi Arabia, and in 2003 he received the International Professor of the Year of Human Rights Award in Riyadh, Saudi Arabia . In 2004 he became the first Pakistani scholar to be appointed a distinguished visiting professor by JNU in Delhi, and to give Memorial Lectures at the Benaras Hindu University; University of Mumbai, Goa; and at Ambadkar University in Auranagbad. In 2006 he received the London World Islamic International Award.