Thursday, November 23, 2006
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39th CTP (OMG)
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Join Date: Jan 2006
Location: Karachi
Posts: 134
Thanks: 1
Thanked 176 Times in 44 Posts
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The Women’s Protection Bill
The Women’s Protection Bill - Women who alleged and then failed to prove rape charges were deemed to have confessed to zina (fornication)
- Rape victims preferred to keep quiet rather than face fresh trauma
- Classic case was of blind girl who was convicted of fornication after she failed to identify her attacker
- The Zina Ordinance permitted the gross abuse of divorced women
- Zina (fornication) defined as sex with any person not your “lawful” spouse
- Across Pakistan, formalities regarding divorce are little known and rarely followed
- i.e. husband will pronounce talaq three times and send wife home
- Legally, divorce requires certificate of confirmation, which few people know (especially in rural areas)
- Often when women remarried, first husband would file fornication charges against ex-wife and second husband
- Because offence of zina was cognizable, any report to a police station would result in an FIR being filed;
- since bail was very difficult to obtain in zina case, many women spent years in jail on trumped up charges of zina
The reason for the problems
- Zina Ordinance mixed Quranic punishments (hadd) with punishments under non-Quranic laws (tazir)
- Hadd punishments are different from tazir punishments
- Evidentiary requirements of hadd punishments are different
- i.e. hadd punishments require evidence of four eye witnesses
- tazir punishments can be based on the testimony of one person alone
- Zina Ordinance provided hadd punishments for some crimes which are not defined in the Quran
- E.g., Zina Ordinance provided a hadd punishment for rape (Zina bil jabr) even though there is punishment specified in the Quran for rape
- Judges under Zina Ordinance took a very broad view of what constituted a “confession”
o - i.e. pregnancy of an unmarried women deemed to be a “confession” of fornication
- Fornication (zina) was defined as a non-bailable crime
- Since punishment for zina was theoretically death, zina fell with the special range of cases in which it was very difficult to get bail
The Women’s Protection Act: the solution to the Zina Ordinance’s problems
- Women’s Protection Act therefore does five main things:
- Zina Ordinance limited to cover only hadd punishments, not tazir punishments
- i.e. Hudood Ordinance will no longer provide any tazir punishment for fornication
- if a person cannot meet evidentiary requirements of hadd punishment (i.e. four eyewitnesses) then accused will be set free
· - Zina Ordinance limited to exclude all those punishments not specified in the Quran itself
- i.e. no punishment in Quran specified for crime of rape
- rape therefore now defined as a crime under Pakistan Penal Code (just like murder and theft)
- All crimes whose punishment is not specified by the Quran itself now covered by the Pakistan Penal Code
- Means these crimes can be tried under the normal criminal laws, subject to normal rules of procedure and evidence
- Procedural safeguards introduced to protect women
- In order to lodge complaint, complainant must take four eye-witnesses to a sessions judge
- Judge must ensure that witnesses meet Islamic standards of moral probity
- If Judge believes that prima facie case is made out, then he issues a summons (not a warrant)
- If Judge does not believe the complainant, then the complainant and all four alleged witnesses can be punished with a sentence of 80 lashes for making a false accusation of zina
- The term confession has now been defined to mean an actual confession in court before a judge a
- Zina defined as a “bailable” crime
- Bailable means bailable as of right
- In practical terms, unless convicted, no woman will spend time in jail on zina charges
What the Bill does not do
- The Bill does not change the hadd punishment for Zina
- The Bill does not change the hadd punishment for any Qazf
- The Bill does not change the Quranic punishment for any crime
- It is common ground between religious scholars from all schools that there is no punishment specified in the Quran for rape
- Thus, the only punishment for rape is tazir punishment (i.e. that under man-made law)
- The urdu translation of the Pakistan Penal Code is “taziraat e Pakistan”
- “Tazir” is a generic word, not a word specific to Islamic law
Other things the bill does and why- Age of consent for women has been defined as 16 years
- As per existing law, minimum age of marriage for women is 16 years
- Crime of attempt and abetment have been removed from Zina Ordinance
- These crimes are not defined in the Quran itself
- Punishment for gang rape now includes imprisonment for life as well as death
- When death was the only punishment, judges often used to acquit rather than give such a drastic penalty
Common Misperceptions about the Bill- The bill will not lead to widespread immorality or indecency
- Prior to 1979, public indecency was not a major problem
- No reason why returning the law to pre-1979 status will cause a collapse in public morality
Why are some groups not supporting the Bill and why they are wrong- Some groups want a complete repeal and nothing less
- Politics is the art of the possible
- Original draft of the bill was a pure repeal but that is politically impossible
- Liberals cannot be so blind as to oppose a bill just because it is not perfect
- In the short run, this is the best chance of negating a law which has destroyed the lives of many women
- Some groups don’t want to support anything done by a military dictator
- To repeat, politics is the art of the possible
- What counts are the lives of those ordinary people which will otherwise be ruined by the corrupt administration of a deeply flawed law
- Some groups see their power base disappearing
- The mullahs thrive on fear and fanaticism
- Educated and free women are the best defence a society has against ignorance and intolerance
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["Satisfaction is death of Struggle"]
[Naseer Ahmed Chandio]
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