Focus on renewed debate over faith-based laws

Since October 2002, 18-year-old Nazia Bashir has been fighting a rape case that could, if she loses, lead to her being charged with adultery and sentenced to 100 lashes or death by stoning under Pakistan’s Hudud (singular: hadd), or Islamic criminal code, laws. Nazia worked in the southern port city of Karachi, teaching the Koran to girls at a madrasah co-owned by Maulvi Nazir, whom she has accused of raping her. "His son said that his mother wanted to see me," she told IRIN from behind a black veil, only her eyes visible behind wire-framed spectacles. "She had never called me before, but I went. She and her sister-in-law gave me a drink that made me unconscious. Maulvi Nazir then took me somewhere else, and for four days he looted my honour. On 12 October, he made me sign a marriage contract as a condition to be freed." "He said that now [as a non-virgin] I’m no use to anyone else, so my family would have to marry me to him," she added. "But I have read the Koran, I know that using force doesn’t make the marriage valid." "At first, her family was distraught," Khalida Ahmad, a socio-legal officer at the War Against Rape, an NGO which helps rape victims, told IRIN in Karachi. "Her father brought poison to kill them all, but an uncle rallied them, and they got the case registered." Now the family is pursuing the case despite intimidating phonecalls and threats that include their house being fired upon. HUDUD LAWS INSPIRE FEAR But Khalida finds these threats less worrying than the threat posed by the law itself - the Hudud laws, under which rape cases are registered, and under which a rape victim who is unable prove her case risks being accused of adultery. These laws make consensual sex outside marriage a cognizable offence, while marital rape and raping a child-bride are no longer offences. Last year, a district court in the North West Frontier Province (NWFP), which borders Afghanistan, convicted Za'faran Bibi, a pregnant young woman, for adultery after she complained of rape, and sentenced her to death by stoning. An intense campaign by women’s groups led to an international outcry. In August 2002, the Federal Islamic Court acquitted her, ruling that pregnancy was no proof of adultery - as in the internationally known case of Amina Lawal in Nigeria more recently. The Hudud Ordinances were promulgated in 1979 by the then military dictator, Gen Ziaul Haq, as part of his "Islamisation programme". In addition to adultery and fornication (Zina) offences, they deal with offences related to theft, alcohol and drug consumption, and false accusations in court (Qazf). Their fifth component is the Whipping Ordinance, which prescribes hadd punishments such as up to 100 lashes or stoning to death. STEEP INCREASE IN WOMEN PRISONERS In 1979, there were only 70 women in prisons country-wide. After the promulgation of the Hudud laws, that figure shot upwards, reaching 6,000 by 1988, mostly under the Zina Ordinance. Since the end of Ziaul Haq’s era in 1988, the number of women prisoners held under the Zina laws has dropped: the Human Rights Commission of Pakistan estimates that in 2002 there were 2,200 women prisoners in Pakistan. However, this drop may be due to the fact that more women are able to obtain bail than before, which has contributed to a decline in their prison population, but not necessarily in the number of cases registered against them. The imprisoned women were usually "the poorest of the poor", Nasir Aslam Zahid, a former supreme court judge and one-time chairwoman of the National Commission on the Status of Women (NCSW), which recommended a repeal of the Hudud laws in its 1997 report, told IRIN in Karachi.

Majida Rizvi, the chairperson of the NCSW

The 1997 report notes that prior to the introduction of Hudud, adultery was not a criminal offence, but a personal matter. Only directly affected persons - a wife or husband - could register cases, but only against men, as a protection for women in a male-dominated, feudal society where women are rarely in control of their lives; the offence was punishable with a relatively minor fine and/or imprisonment, and the state could not be a party. "These laws are mostly used for revenge," Parveen Parvaiz, a Karachi-based lawyer, told IRIN. "Mostly, it’s parents registering cases against daughters who marry against their wishes, and men trying to get back at ex-wives who remarry." WOMEN'S COUNCIL RECOMMENDS REPEAL Now, another government-formed NCSW has recommended that these laws be repealed, thus reviving this debate. The recommendation was met with vehement opposition by religious parties. Veiled women demonstrated against it, and the NWFP provincial assembly, which is dominated by the religious groups that swept into power in the provincial legislature on the strength of anti-US sentiments following the US-led campaign in late 2001 to oust the Taliban in Afghanistan, passed a unanimous resolution condemning the recommendation as part of a "conspiracy against Islam". But there was also support for it: women’s groups in Karachi and the capital, Islamabad, staged noisy counter-protests defending the recommendation. Pakistan’s higher courts have always overturned Hadd sentences on appeal, and most women accused of Zina are eventually acquitted - as many as 95 per cent, according to a former chief justice of the Federal Islamic Court, Mohammad Afzal Zullah. But acquittal does not compensate for years of imprisonment, humiliation and social ostracism, activists note. Hudud supporters cite the high acquittal rate as proof that the problem lies not in the law, but in its implementation. "At least those thousands of women are only in prison," Dr Farida Ahmad, president of the Jamiat-e Ulema-ye Islam (JUI) women's wing and a member of the National Assembly, told IRIN. As a member of the committee that recommended the repeal of the Hudud Ordinance, she cast one of the two dissenting votes. "After all, women haven’t been punished under these laws, thanks to the strict evidence requirements," she stressed. Conviction under Hadd can take place on voluntary confession of the accused - or the eyewitness testimony of four adult Muslim men of good character. The evidence of women and religious minorities is excluded by default, although they can be punished under these laws. In Zina cases, the four Muslim men of good character must be eyewitness to the act of penetration - a condition so impossible to fulfil that many interpret it as a safeguard against false accusations of promiscuity, since the punishment for false accusation (Qazf) in Hadd cases, is 100 lashes. So far, there had been no Qazf convictions, the NCSW chairwoman, former Supreme Court Judge Majida Rizvi, told IRIN in Karachi.

Pakistani women demonstrating in Islamabad against Hadood Ordinance

In the 1980s, at least some women convicted under Zina suffered the pain and humiliation of the whip - 15 stripes each under Ta'zir (discretionary punishment as opposed to the compulsory Hadd punishment) which is part of the Hudud Ordinances. NEED FOR REFORM "If a law is not being implemented properly, that’s an administrative matter," Shaiq Usmani, a retired Sindh high court judge, told IRIN in Karachi. "But this law itself is wrong, it can never bring about any justice - so it can’t be an Islamic law, because Islam is about justice." "It is a flawed legislation that can’t be fixed, its drafting is flawed, its motive is flawed," Majida Rizvi asserted. "It was brought in undemocratically, as an ordinance. If the present government really wants to bring in laws based on Islam, then the proposed laws should be circulated and debated publicly and in parliament, and it should ensure that they are in conformity with the injunctions of Islam, which the Hudud laws are not." The government has yet to make public the most recent NCSW report, which the religious lobby is unlikely to accept quietly. With vocal women’s rights groups determined to continue fighting for repeal, the controversy is likely to rage on for some time yet.