Will justice be done?

By Zubeida Mustafa
Source: Dawn

THE government’s sloppy attempts to ostensibly right the wrongs committed by Ziaul Haq’s infamous Hudood Ordinances have complicated matters further.

Proclaiming himself a champion of women’s rights and in response to the chastisement that has been heaped on him by human rights activists and feminists, General Pervez Musharraf belatedly moved in August to introduce amendments in the Hudood Ordinances.

Earlier, he had promulgated an ordinance — that was widely hailed — providing for the release of all women jailed on charges under the Hudood laws.

As the proposed amendments have come up for public debate, the government finds itself caught between the devil and the deep sea. Its attempt to keep its move on a low key failed to win for it the support of the MMA who are the self-proclaimed guardians of the people’s morals and believe that they know Islam best and so they are entitled to use religion for their political ends. For the MMA, it seems that the greatest challenge that faces Pakistan is to keep its women under check even if it leads to injustice of the highest order.

The official approach, that has been characterised by a policy of appeasement, prompted the choice of an innocuous title for the proposed piece of legislation, namely, the Criminal Law Amendment (Protection of Women) Act, 2006. The government had thus hoped not to provoke the MMA. But the MMA was provoked and its legislators not only tore up the bill but also threw the shreds of paper on the floor of the House and stamped on them, though the bill had Allah’s name and a reference to the Quran inscribed in it.

Its policy of running with the hare and hunting with the hound did not win the government the approval of the liberals either — although in its attempt not to break ranks with the MMA at a critical time when it was about to file a no-confidence motion against the prime minister, the Pakistan Peoples’ Party (Parliamentarians) proposed on August 21 that a select committee should reconsider the bill. The committee has reviewed the bill which is to be taken up by the House on Thursday.

Human rights activists have not been too happy with the amendments proposed since their demand has consistently been for the total repeal of the Hudood laws which are regarded as being unconstitutional having been promulgated by a military dictator without the sanction of the Assembly. The matter has been taken up in different forums. In Karachi, two consultative meetings were held to analyse the amendments clause by clause. Activists in Lahore also met to comment on the matter. The women expressed scepticism and were not at all convinced that the loopholes in the amended law would not be used against them.

Today society — that is those who make their voices heard — is sharply polarised between the anti-Hudood Ordinances lobby and those who interpret them as God’s laws — hence sacrosanct — and demand that they should not be touched. The middle ground is taken by the moderate school of thought in the establishment which wants to amend rather than annul the Hudood laws to make them more palatable. It is this opinion in the government that was instrumental in the drawing up of the bill and introducing it. The PPPP while pressing for total repeal decided to go along with the government-proposed amendments since they provided some relief. It is a different matter that this bill has fallen victim to national politics and the misogyny of the mullahs. It has, therefore, been changed again and again. One does not know in what shape it will be tabled on Thursday.

At a consultative meeting in Karachi, Makhdoom Ali Khan, the attorney-general, argued that the amendment bill was a “step forward” and would make Pakistan a better place to live in. More steps would follow. He appealed to all present to “think” about the amendments and the advantages it offered.

The major attraction of the amendment bill — the text that was initially introduced in the Assembly — is that it addresses the three key flaws in the Zina Ordinance that have inflicted untold misery on the women of Pakistan. First, it removes rape (zina bil jabr) from the Hudood Ordinances and inserts a new section in the Pakistan Penal Code (PPC) that makes kidnapping, abducting a woman to force her into marriage or prostitution and rape a crime. Thus the injustice done to women by equating rape to illicit intercourse would technically be done away with.

Another major feature is that a case of zina cannot be brought against a woman by any person making the charge. Under the amendment, only a court of competent jurisdiction receiving a complaint will examine the complainant and at least four eye witnesses, upon oath, of the act of zina. If the presiding officer finds sufficient ground for proceeding with the case, the accused will be summoned. Thus the practice of anyone making a malafide charge and having a woman thrown into prison will be checked.

Thirdly, where a charge is found to be groundless or if the woman is not found guilty, the law of qazf will automatically apply to the person bringing the charges.

Yet women are sceptical as their faith in the legal system has been shaken. As one of the participants at the consultative meeting put it, they trusted Makhdoom, but not Musharraf. Their distrust of the government was vindicated when the MMA and some PML-Q members nearly succeeded in having the deleted sections of the Zina Ordinance reinserted that would make zina a punishable crime under tazeer enabling the police to pick up women accused of it. The Hudd law at least makes witnesses mandatory. Had it not been for the PPPP’s Sherry Rahman’s spirited defence of the original amendment, women would have found themselves worse off than before.

The future of the amendment bill now hinges on the outcome of the Assembly proceedings. Meanwhile, women activists meeting under the aegis of Aurat Foundation, Karachi, have decided to propose a bill declaring Ziaul Haq’s Hudood Ordinances unIslamic and repealing them. In the same bill they will propose a new simple and brief law within the framework of the Quran asking for the testimony of four witnesses before Zina could be taken up as a crime. This proposed bill is being drawn up by retired Justice Shaiq Usmani.

The most intriguing section in the amendment bill under discussion is section 502B in the PPC which makes publicising “any case of zina or rape whereby the identity of any woman or her family member is disclosed” punishable with six month imprisonment or a fine or with both. In the original Hudood Ordinances this was punishable if it was done “without her consent”. The government never tried to enforce this law even though many newspapers used rape stories to resort to sensationalism to increase their circulation. The government’s attempt to impose a blanket ban on reporting rape might have something to do with the negative publicity it received rather than to protect women from sensationalism. According to the PPPP, this clause has been removed by the select committee.

One will have to wait and see what actually emerges in the bill when it is tabled. The sensible move would be to encourage the media to draw up a code of ethics and observe it voluntarily. This paper has been observing one without being ordered to do so. We do not disclose the identity of a rape victim except when she herself comes forward to fight her case. This approach has enabled the media to extend a helping hand when it has been sought.