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Old Friday, March 20, 2009
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Post Women's Protection Bill

The Women's Protection Bill which was passed by the National Assembly of Pakistan on 15 November 2006 is an attempt to amend the heavily criticized Hudood Ordinance laws which govern the punishment for rape and adultery in Pakistan.

Impact of the Bill

The Hudood Ordinances, enacted by military ruler Zia ul-Haq in 1979, criminalize adultery and non-marital consensual sex. They also made a rape victim liable to prosecution for adultery if she cannot produce four male witnesses to the assault. The chief architects of the bill are reported to be former Attorney General Makhdoom Ali Khan who was responsible for it taking legal shape and the Chairman of the Council of Islamic Ideology Muhammad Khalid Masud.

The new Women's Protection Bill brings rape under the Pakistan Penal Code, which is based on civil law, not Sharia (Islamic law). The Bill removes the right of police to detain people suspected of having sex outside of marriage, instead requiring a formal accusation in court. Under the changes, adultery and non-marital consensual sex is still an offence but now judges would be allowed to try rape cases in criminal rather than Islamic courts. That does away with the need for the four witnesses and allows convictions to be made on the basis of forensic and circumstantial evidence.[citation needed]

The amendments change the punishment for someone convicted of having consensual sex outside marriage to imprisonment of up to five years and a fine of Rs10,000. Rape would be punishable with 10 to 25 years of imprisonment but with death or life imprisonment if committed by two or more persons together, while adultery would remain under the Hudood ordinance and is punishable with stoning to death. It is the change in the punishment for fornication and rape which is the major source of controversy.

The Bill also outlaws statutory rape i.e. sex with girls under the age of 16. The Islamic code bans sex with girls before puberty.


Controversy


Under the Hudood Ordinance, it has been claimed that women were routinely jailed for adultery on flimsy evidence, often when a former husband refused to recognize a divorce. It is alleged that the legislation led to thousands of women being imprisoned without being proved whether they were actually guilty. This risk of imprisonment, it is contended, has kept many women from trying to bring their attackers to justice. The Commission of Inquiry on Women, headed by Justice Nasir Aslam Zahid, had recommended the repeal of the Hudood Ordinances in 1997, as did the National Commission on the Status of Women in 2002. The Women's Protection Bill is intended to amend Hudood Ordinance in order to address these issues.

On the other hand, the laws have been fiercely criticized by Islamist groups in Pakistan. Justice (retired) Taqi Usmani, a former judge of the Federal Shariat Court of Pakistan and the Sharia Appellate Bench of the Supreme Court of Pakistan, has written a paper in which he claimed that these allegations were baseless and were not according to the facts. In addition, he cited a study by Charles Kennedy, pertinent portion of which states:

"Women fearing conviction under Section 10(2) frequently bring charges of rape under 10(3) against their alleged partners. The FSC finding no circumstantial evidence to support the latter charge, convict the male accused under section 10(2).the women is exonerated of any wrongdoing due to reasonable doubt rule." (Charles Kennedy: The Status of Women in Pakistan in Islamization of Laws page 74)

Consequently, this issue is one of the widely debated ones both by politicians and by religious scholars, often only representing a single point of view. Liberal politicians and women's' rights activists have welcomed the reforms as progress - but say they do not go far enough. The Religious political parties however are against the Bill calling it un-Islamic. They argue that the bill goes against articles 2a and 227 of the constitution of Pakistan, which state respectively that "Islam will be the state religion" and "No laws will be passed which are repugnant to the Koran and sunnah." The government has called the legislation "historic" and says that it does not go against the tenets of Islam.
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