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PAKISTAN: Bill to Save Women From Religious Law Flounders

Zofeen Ebrahim

KARACHI, Sep 20 2006 (IPS) - Danish Zuberi, a lawyer and rights activist is partly relieved that the government has deferred passage of a bill to protect women to build a “broader consensus”. The government has fixed no dates and says it prefers “soundness over speed”.

However, there may be downside to this shelving since it will affect a recent ordinance under which over 1,300 women languishing in jail on charges of adultery were freed on bail. When the ordinance lapses on Nov.7, their alleged offences will return to being non-bailable and they will be back behind bars.

Had the new ‘Protection of Women Bill’ been passed then these women would not have had to spend time in jail pending trial.

The bill had called for amendments in some of the religious ‘Hudood Ordinances’ to protect women from the miscarriage of justice of the two controversial laws of Zina (adultery) and Qazf (false accusations of adultery).

Actual punishment for Qazf has never been awarded. Fearing backlash from religious extremists, who regularly resort to threats – from calling for a nationwide uprising to boycotting the assembly – to stop these ordinances from being amended, let alone repealed.

In the end, the proposed amendments had to be shrouded in a name as innocuous as ‘protection’ bill so as not to offend anyone. “For obvious reasons the word Hudood has not been attached to this bill while it calls for certain amendments in the HOs. In a way, it’s an apt title as it protects women,” says Zuberi.

Hudood refers to punishments in the Quran for adultery and fornication, as well as for consuming alcohol, making false accusations and stealing. The word Hudood has become so sacred in the Pakistani lexicon that anything attached to it automatically gets Islamic sanction.

The HOs (which also apply to non-Muslims) are a series of Islamic decrees, enforced in tandem with the country’s secular legal system, that were passed in 1979 under the rule of the military dictator Gen. Zia ul Haq . One of the most controversial provisions of the HOs states that a woman must have four male witnesses to prove rape, or else face charges of adultery herself.

Subsequent governments tried to do away with HO but eventually gave in to arm-twisting by the religious right. Even President Gen. Pervez Musharraf shied away from repealing the laws. These ordinances are too hot an issue for an army general trying to present a ‘softer’ image of Pakistan and selling the idea of ‘enlightened moderation’.

Meanwhile, the victims of these laws, usually poor women, suffer immensely as they do not have a voice. And while the acquittal rate is as high as 95 percent, by the time the woman has been vindicated, she may well have spent several years in prison. The stigma attached to spending time in prison is enough to destroy her life and police abuse in custody is not uncommon.

The new bill was designed to alter the rape laws and give relief to women accused of adultery. It made a distinction between rape and adultery. It amended the Qazf law by providing that if any complaint of zina is not supported by four eye-witness testimonies or if the person charged is acquitted, then the complainants would be automatically punished for making false accusations.

“The Hudood laws are so flawed that it would be very difficult to correct them, repeal appears to be the only way, but the new bill, as approved by the select committee, was a step forward,” says Zuberi.

Yet, in a show of weakness, after years of struggle calling for nothing less than repeal, the rights activists succumbed to manipulations by the government and supported the flawed bill.

“We agreed to it as a first positive step forwards,” acknowledges Nasreen Siddiqi of Women Action Forum (WAF). The forum was formed in 1979 to protest against the HOs and ask for their complete scrapping. “During our consultations with the political parties, we were advised that an outright repeal was not possible at this point in time so we should support the protection bill.”

“It was a difficult choice no doubt. With all its shortcomings, it provided some relief to women, particularly against false prosecutions under zina. The question was everything or nothing. In the larger interest of the women, we, in good faith, decided to back the bill,” says Danish denying that it could not be termed a compromise. “Our principle stand remains firm and that is repeal.”

Over the last few weeks, in a bid to please all political parties, the law has gone through so many modifications and revisions that it has changed beyond recognition.

But even that was acceptable to women activists as it meant a stop to harassment of women and so they passively watched the parliamentary debate turn into a farcical political drama.

The Muttahida Majlis-e-Amal (MMA), a coalition of six religious parties tore up copies of the draft bill in the National Assembly and termed it “un-Islamic”.

“They keep saying the changes were un-Islamic but fail to tell us how. No one clarifies,” says Zuberi. She also says the MMA has hinted at adding the Hasba law to the bill as well.

The bill, reminiscent of all that the Taliban upheld, has been severely criticised by rights groups, women organisations and political parties. Hasba (or hisba) refers to an inspectorate whose business it is to see that social conduct in the public realm conforms to Islamic criteria.

Employing a backdoor method and back-tracking on its earlier commitment to accept all recommendations and changes made by the senate’s select committee which was given the task to fine-tune further, and which would be deemed final, the government struck a deal with the MMA which refused to be part of the committee, and accepted changes in the bill. “If this were not so serious, the changes proposed by MMA would be laughable,” says Sahiq Usmani, a retired judge.

Among others, one of the changes they demanded was that while rape would become an offence under the secular Pakistan Penal Code, the punishment given would be under religious law. “This is creating confusion,” says Usmani.

Another demand is to interpret and apply the laws of zina and rape based on the interpretation of Quran and Sunnah. “This is not clear. Whose interpretation would be considered appropriate given that there are various schools of Islamic jurisprudence?” asks Zuberi. From 1979 to 2006, she says, the interpretation somehow has always gone against the woman. “Even we in the legal fraternity do not understand the amendments proposed by MMA and these are not clear,” she acknowledges.

“If you ask me, I’d say leave these laws (HOs),” says Zuberi. ‘’Don’t try to amend in this manner and worsen things.”

“The parliamentary process has once again been quashed,” says Anees Haroon, director of Aurat Foundation, a women’s group. “The fact that the issue has been shelved proves that for the Musharraf government the rights of women are really not a priority. It uses women’s issues as a bargaining chip. What are the mullahs afraid of?” she says. “By empowering fifty percent of the nation, will their ‘mullahiat’ be in jeopardy? The government is not too far behind them. But our struggle will continue,” she says, observing that over the years the number of those in favour of repeal have increased.