THE Law Reforms Order, 2006 has seen the release process – still in progress — of nearly 1,300 female prisoners from 55 jails all over Pakistan. This direct order by President Musharraf has been acknowledged as a huge step towards improving the justice system for women in Pakistan.

The ruling, which included release and offer of legal aid and protection to the women prisoners, has given the president a ‘softer’ face at least in the eyes of the international community which still views his commitment of de-Talibanising Pakistan somewhat critically.

But the amendments to the Hudood Ordinances approved by the Senate, concurrent to the release order of female prisoners, did not receive the approval the government hoped for, mainly because the modifications simply skim the surface, leaving many lacuna still to be exploited by corrupt forces. The approved amendments to the blasphemy and Hudood laws (of 1979) by the Senate, only raise the level of police investigation which will be carried out by a superintendent of police. They rely on the surety that a woman accused of ‘zina’ shall not be arrested without permission of the court and an enhanced punishment will be metedout in cases of karo kari and other honour-related crimes.

While the MMA members have continued to oppose all amendments on the premise that changes contrary to the injunctions of Islam and the Shariat would not be accepted, the opposition and treasury members have been critical of the ambiguous ruling by the Senate, which accords no clear cut decree to the women arrested in cases of rape, nor has justice been defined for other so called honour crimes.

The sketchy amendments first approved by the Senate appear as an eyewash for those who believe that the MMA’s strong (and growing) presence in the country will never allow any substantial step to be taken regarding the absolute repeal of the Hudood laws, which is the actual need.

When the amendments were approved in the Senate, opposition senators were far from happy at the outcome, even if the president had scored a small victory with regard to the release order of the female prisoners. Senator Farhatullah Babar had stated that the bill was passed without giving any thought to the views of the opposition political parties, the NGOs, the women organisations and members of civil society.

Two weeks ago, the government came up with a draft law in which the proposed amendments outline the removal of ‘zina bil jabr’ from the Hudood Ordinances, to be included instead in the Pakistan Penal Code. The government’s proposed amendments also removes the punishment of ‘taazir’ for ‘zina’ but it allows ‘zina’ to be liable to hadd. The punishment for rape will be death or life imprisonment and the requirement of four witnesses has been overlooked, and indirect and circumstantial evidence will be applicable. This draft bill, however, still awaits its turn for a motion in the National Assembly.

One of the critical points that has not been included in any proposed amendment is the existing clause of ‘qisaas’, which gives relatives the right to waive punishment for the offenders. In cases of karo kari this lacuna has even more serious implications as powerful elements still have the means to easily suppress the victims’ families and thus escape justice. Contained in Section 309 of the Pakistan Penal Code (PPC), this clause still holds as much weight as it did when the ordinance was first made legal. Added to this clause is the provision of ‘sulh badl’ (Section 310 of the PPC) under which the offender can get away by paying a small sum in compensation. This clause too remains unchanged in the present amendments made to the Hudood Ordinances.

Hudood, which in simple Urdu is the plural of hadd, literary translates into ‘boundary’ of a place or ‘extent’ of an action. And to have a command over the actions of the citizens, the Hudood Ordinances were a crucial political weapon of General Ziaul Haq, who devised “the most abused law in the legal history of the country” in 1979 in order to legitimise his dictatorship by proclaiming himself the guardian of Islam and hence the true ruler of an Islamic state.

Even after successive changes in regime since Ziaul Haq’s death, the law could never be repealed, as extreme reactions followed whenever the issue came under discussion or debate. President General Pervez Musharraf, too, had initially referred to it as a ‘sticky issue’ and had criticised the majority’s close-minded attitude and unwillingness to have a debate on it.

With passions running high, there has never been any time when the Hudood Ordinances were discussed rationally and so it remained the ignoble thorn in our justice system. The Shariat courts, which came into existence after the Hudood Ordinances were proclaimed blatantly made their presence felt particularly in the lower classes. Its worst outcome was that it became an avenue through which landowners could extort anything they wanted of their enemies or their tenants (serving as serfs). The means through which it could easily be put to use, was women. Since the laws equated rape with ‘zina’ these elements wreaked havoc with the adultery or zina law within its ambit. Cases against women began to pile. Persecution was unleashed in every way; by parents against daughters who had married of their own will; by husbands whose abused wives sought divorce or whose divorced wives remarried; and by others who wanted revenge and sought it through raping their enemy’s women.

Under the ‘zina’ ordinance which became the most exploited tool of the Hudood Ordinances, the number of women imprisoned multiplied drastically. In 1979, there were 70 women in jails in Pakistan. By 1988 – less than 10 years after the Hudood Ordinances were proclaimed – the recorded number of women in Pakistan jails had reached a shocking of 6,000 with 80 per cent booked under the ‘zina’ laws. According to the 2002 annual report of the Human Rights Commission of Pakistan, more than 200 women were killed by family members in so-called honour killings and 80 per cent of adultery-related Hudood cases were filed without supporting evidence.

Now, with the amendments approved by the Senate and those outlined in the Criminal Law Amendment Bill, 2006, overlooking the deeper implications of the ordinance, the critics are justified in their protests as its inequitable aspects will continue to nurture the evil practised under its legal cover. At the very least, suggestions of the National Commission for the Status of Women should have been included as these were jointly presented by eminent scholars, jurists and specialists comprising the commission.

In its barest form, the law as it still stands states that a woman who has been raped is required to provide four ‘tazkiat-uz-shahood’ (pious muslim men as witnesses) — or else risk being accused of adultery. The hadd punishment which follows adultery is stoning to death, and the ‘taazir’ punishment for ‘zina’ is up to 10 years of imprisonment and whipping – up to 30 lashes and/or a fine. The ‘taazir’ punishment for ‘zina’-bil-jabr is up to 25 years of imprisonment and whipping up to 30 lashes – provided of course the witnesses are at hand. In the case of Mukhtaran Mai this particular clause became the key issue as hundreds knew of her rape ordeal at the time it was happening, there were no apparent ‘aini shahid’ – clear cut witnesses – who had observed the act first hand.

Besides ‘zina’, the blasphemy laws and those for stealing and murder also remain as is and minorities cannot be presented as witnesses or represented by non-Muslim lawyers.

The lower courts have pronounced severe sentences under the Hudood laws over the past three decades and many terrible tales of women’s victimisation have become our legacy. The 13-year-old girl’s saga of rape in 1980, (she was abused and made pregnant by an uncle and his son) resulted in a sentence of 100 lashes which were later reduced to 15 because of her age. In 2002, the case of Zafran Bibi from Kohat gave the foreign press enough spice to malign Islamic extremism at a time when Islamic fundamentalism was under heavy fire anyway. Under the Hudood Ordinances, Zafran Bibi was sentenced to death by stoning for adultery in a case which was initially reported by her as rape at the hands of a neighbour. Apparently, she was used by her relatives to avenge a family feud, and was asked to name her neighbour as the culprit.

There are too many cases that prove that the Hudood Ordinances has been exploited in every way possible. Though most cases have been just convictions with humiliation being the price borne by the victims, there were two or three actual cases of flogging which took place when the laws were first framed. Lal Mai was administered 15 lashes in the year 1983. She was publicly flogged for adultery, before a crowd of 5,000 spectators in Bahawalpur.

After the principle idea of ‘tauheed’, Islam stresses on justice for all. Before Islam, crime had become rampant in heathen Arabia, where almost all of the teachings of the previous religions had been forgotten. Hence, most references found in the Holy Quran are of the practises of the era and of the land when and where the Quran was sent. And knowing that the situations would change greatly after development of civilisations, it was also declared that logic be used and then ‘ijmah’ – consensus after debate – be carried out.

It was Islam that first introduced a revolutionary concept of criminology. While ‘diyat’ (blood money) and ‘taa’zir’ are included as forms of punishment, it also emphasises that first the crime be proved beyond doubt and that there linger no doubt regarding the accused’s crime. With the less than perfect system of criminal justice in Pakistan, the ‘qisaas’ and ‘diyat’ laws need extensive re-designing as per ijtehad, a crucial aspect which has been left out in the recent arbitrary amendments.(Dawn)

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This is the sign of 1 who loves GOD that his chief care z goodness n devotion n his words r mostly in praise n glorification of GOD.