Today, 13th September 2006, the government of
Pakistan is scheduled to present the revised
draft of the Protection of Women (Criminal Laws
Amendment) Bill, 2006 before the Parliament. On
11 September 2006, the government had to defer a
vote on the proposed bill, which seeks to amend
the Offence of Zina (Enforcement Of Hudood)
Ordinance, 1979 following stiff opposition from
the hard-line Islamic lawmakers belonging to the
Muttahida Majlis-i-Amal (MMA) and Pakistan Muslim
League (Nawaz). The Hudood Ordinance introduced
by then military general Zia-ul-Huq in 1979 to
appease the fundamentalists in order to
consolidate his rule has victimized thousands of
women of Pakistan.
Apart from vehement opposition from the MMA and
the PML (Nawaz), President Pravez Musharraf did
not have any intention to repeal the Hudood
ordinance. The government only sought to amend
the requirements under the Hudood Ordinance to
prove rape, while silencing the likes of Mukthar
Mai by making disclosure of the identity of any
alleged raped woman or her family member a
punishable offence under the proposed law.
Therefore, it is not surprising that government
has already given in to the MMA and the PML
(Nawaz) and proposed to keep both the Hudood
Ordinance and Penal Code to try rape and adultery
cases. It is the judge, not the victim, who will
decide whether to try the rape and adultery cases
under Hudood Laws or Criminal Laws.
Plight of women under Hudood Law:
The Hudood Ordinance, among others, criminalizes
adultery and non-marital sex, including rape. It
further victimizes the women victims by providing
virtual impunity to the rapists and prosecuting
the victims instead.
Under section 8 of the Ordinance, a rape victim
is required to produce at least four adult male
Muslim eyewitnesses, who have physically seen the
act of rape against the victim, in order to prove
her case. Section 8(b) further provides that in
order to testify as witnesses, the Court must be
satisfied that the witnesses are truthful persons
and abstain from major sins (kabair). The
four-witness requirement makes it virtually
impossible to prosecute the rapists. It places
the onus of proof on women in the most
discriminatory manner. But if a woman who claims
she was raped fails to prove her claims she can
be convicted of adultery, which is punishable by
death in the most stringent circumstances.
The Hudood Ordinance also considers sexual
intercourse as adultery whether it is with or
without the consent of a woman, who is not
married with the man. As a result, thousands of
victimized women face conviction. According to
the National Commission on the Status of Women,
80 % of the 6500 women prisoners in the jails are
victims of the Hudood Ordinance. The Hudood
Ordinance does not allow the women’s release on
bail.
According to a 2002 report by the Human Rights
Commission of Pakistan, a woman was raped every
two hours and gang raped every eight hours.
However, because of social taboos, discriminatory
laws and victimisation of victims by police, many
were not willing to reveal the crimes committed
against them.
Half hearted reforms:
On 7 July 2006 President General Musharaff
promulgated an ordinance called "Law Reform
Ordinance 2006" to facilitate release of women
detained on various charges, including violation
of the Hudood laws. As many as 1,300 women
prisoners out of the total 6,500 languishing in
jails were expected to have been released.
On 21 August 2006, the proposed Protection of
Women (Criminal Laws Amendment) Bill 2006 was
tabled in the National Assembly. The Bill inter
alia seeks to bring rape under the purview of the
Pakistan Penal Code, to repeal the requirement of
four-witnesses to prove a rape, and to make
adultery a bailable offence.
While these measures are welcome, Pakistan
government also sought to silence Mukthar Mais.
The proposed Bill introduced a new offence under
Section 502 B of the Pakistan Penal Code which
provides that "Whoever publicises any case of
zina or rape whereby the identity of any woman or
her family member is disclosed shall be punished
with imprisonment which may extend to six months
or fine or with both".
This has been opposed by Pakistan Peoples Party
which proposed the victim must have the right to
speak to the press.
General caves in before the Mullahs:
When the Protection of Women (Criminal Laws
Amendment) Bill 2006 Bill was tabled in the
National Assembly on 21 August 2006, it was
promptly rejected by the opposition Muttahida
Majlis-i-Amal. Pakistan Muslim League (Nawaz)
joined the MMA which accused the government of
"following a Western agenda to secularise
Pakistan". The bill was then referred to a
special committee of the National Assembly for a
review and evolving a consensus before being
debated. However, the MMA and Pakistan Muslim
League (Nawaz) boycotted the committee.
On 4 September 2006, the parliamentary select
committee approved the Protection of Women
(Criminal Laws Amendment) Bill 2006 and presented
it before the National Assembly. However, the MMA
threatened to quit Parliament and provincial
governments if the government did not withdraw
the proposed bill. This forced the government to
defer debate on the bill.
But on 11 September 2006, the government
virtually withdrew the original bill when it
agreed to review and revise the bill.
The government has reportedly reached an
agreement with the MMA over the changes in the
proposed bill. Under the agreement reached with
the MMA, rape will remain under the purview of
the Hudood Ordinance, but judges can also choose
to use secular evidentiary procedures and
standards such as DNA tests or other medical
means, to establish rape under the Pakistan’s
Penal Code if the circumstances of evidence and
witnesses call for it.
President General Musharraf, who drew
international condemnation by his remark that
rape was a “money-making concern” in Pakistan in
reference to gang rape of Mukhtar Mai, is
unlikely to get any kudos for caving in to the
fundamentalists.