The Women’s Protection Bill

[Naseer Ahmed Chandio]

The Women’s Protection Bill

The Problem
The Hudood (Enforcement of Zina) Ordinance, 1979 has been the single most critiqued and controversial law in Pakistan’s history

• Two basic problems:

The Zina Ordinance silenced and intimidated victims of rape

• • • 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”

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• • • 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

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• • 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