This article addresses the 1979 criminal law of Pakistan dealing with rape, adultery and fornication. In 2006, the “law for the protection of women” [amending the 1979 law] was said to invert the process known as “the islamization of penal law”; however, this legislation bears on only certain aspects of injustices and discrimination suffered by women. A critical analysis of “the law for the protection of women” shows that numerous reforms were set aside in the compromise effected between Pakistan’s religious parties and the conservative political parties.
L’article traite des lois pénales sur le viol, l’adultère et la fornication édictées en 1979 au Pakistan. Cependant, un changement a été apporté inversant le processus dit « d’islamisation de la loi pénale » par la loi dite de « protection des femmes » de 2006. Cette législation ne s’est attachée qu’à quelques aspects de l’injustice et de la discrimination subie par les femmes. Une analyse critique de « la loi de protection des femmes » montre que de nombreuses réformes furent écartées dans le compromis opéré entre les partis religieux et les partis politiques conservateurs au Pakistan.
1 The theme of this article is the process of creation of the Protection of Women Act (PWA) 2006, a legal instrument which is at the forefront of some positive indications regarding legislation on women’s rights in Pakistan1. Despite the generally conservative social and legal environment for human rights in general, and women’s rights in particular, recent legal reforms, show that Islamic legal processes are sites of negotiation of social orders. While laws may be contradictory, reflecting multiple interests and institutions, or even ineffective at protecting women, the process of reform demands serious analysis.
2 It is important to situate these reforms in the broader context of Islamic legal processes worldwide. As law has been a major instrument used by Islamist for contesting the legitimacy of the secular state and society and for reconstructing the society according to their vision. Women rights have often been diminished in these contexts of islamization of law.
3 Moreover, these point not only to the liberal or conservative tussle discussed later in this article but also to contradictions within the state itself, where on one hand it claims to work for the protection of women and on the other hand takes away the protection through this or other similar clauses. The PWA 2006 is not the only example of the passing of «compromising» laws regarding women in Pakistan as there is a more recent exemple in the form of the Prevention of Domestic Violence Bill 2009. Prior to this domestic violence Bill, a woman abuse and harassment case was not legally recognised in Pakistan. In August 2009 the Domestic Violence Bill was set to become law2, a welcomed step to strengthen women’s human rights. However, the bill passed is far from satisfactory for the women and civil society of Pakistan. The following is the most objectionable section of the proposed bill: «Whoever gives an application to the court containing information about the commission of domestic violence, which he knows or as reason to believe to be false, shall be punished with simple imprisonment for a term which may extend to six months or with a fine, which may extend to Rs [(rupees)] 50 000». The civil society in Pakistan fears that practically no aggrieved party, victim or complainant will ever file a case of violence against women for the fear of reactionary punishment or that they will be accused as under the zina ordinance.
4 Since 1972, seven countries, Libya, Pakistan, Iran, Sudan, Northern Nigeria, United Arab Emirates and Kelantan, (one of the federal states of Malaysia) have enacted legislation to reintroduce Islamic criminal law. Recently Indonesia is in the process of passing similar laws on adultery, fornication and rape3. Saudi Arabia is the unique example of a Muslim country where application of Islamic criminal law has been in place without interruption by western influences.
5 In this context, recent developments in Pakistan require critical study, for it is the only country where steps were taken to reverse the controversial Islamization of the criminal laws dealing with adultery, fornication, rape and the false accusation of these crimes. The need for study of these reforms becomes even more important when considered from the perspective of reversing the enactment of Islamization of laws. While illustrating the process of reform of the above mentioned laws in Pakistan this article argues that the reforms are half-hearted, feeble, and full of lacunas.
6 Before the implementation of the h udûd Ordinances in 1979, most of the laws, since 1947 in Pakistan, continued from the British period. Pakistan Penal Code did not prescribe punishments for women for sexual crimes. The offence of adultery did not prescribe any punishment for the female co-accused. Moreover adultery was a matter for private complaint and did not leave the police free to take action. It was a bailable offence and the complainant could withdraw the allegations.
7 Despite its failings as legal instrument, the great significance of the Protection of Women Act (PWA) of 2006 is that ironically it has shattered the myth of the infallibility of h udûd Ordinances by initiating an amendment. The «myth of infallibility» has its roots in the whole doctrine of h udûd (singular: h add meaning limit) which points towards specific offences like drinking of alcohol, theft and unlawful sexual intercourse, etc. for which limits and fixed punishment have been defined in the Qur’an and traditions of the Prophet. Another element has been added to this definition is that hadd crime is a violation of a claim of God i.e., violation of a public interest (deterrence from acts that are harmful to humanity) which is differentiated from claims of men like homicide and wounding which requires retaliation. Sentences for hadd crimes are regarded as fixed by God therefore and considered to be immutable and infallible.
8 The Muslim jurists have claimed that the corporal strict punishments are not meant to be implemented but exist only as a warning or rhetorical device while people should not be punished with fixed but with discretionary punishments (tâ‘zîr). The fact that hadd punishments are not meant to be implemented is reflected in the difficult standard to obtain a conviction under hadd. This is achieved by 1) the strict rules of evidence for proving these crimes 2) the extensive opportunities to use the notion of uncertainty as a defence; and 3) defining the crime very strictly, so that many similar acts fall outside the definition and cannot be punished with fixed penalties, but only at the qadi’s discretion (tâ‘zîr) (Peters 2005: 54-55).
9 On the other hand the h udûd laws were enacted in the form of «ordinances» in Pakistan by the military regime of General Zia ul-Haque, with the wider message that these laws were immutable as they are given by God and God’s laws can not be changed. The salient feature of the law of hadd crimes was completely overlooked in Pakistan that they are there not for implementation but for deterrent purpose and a very high standard was to be met before its implementation. In Pakistan as well as some other Muslim countries the corporal punishments are widely employed for transgressions of norms of personal conduct and honesty with regard to sex, alcohol and property. They have been controversial because of the corporal nature, unequal application especially with regard to women, and their reliance on accusation by another person that is not always verifiable. Since its implementation in some Muslim countries where it has made women victim of these laws it has not only become controversial within the Muslim countries but also it has become a symbol of Islam as a repressive religion.
10 In Pakistan, the various regimes have been reluctant and resistant to redress legal injustice created by the h udûd ordinances. Even the so called democratic governments (Pakistan People Party and Pakistan Muslim League – Nawaz group) took no steps to remove these laws from the statute books because of the fear of the right wing parties. This was the reason that in spite of serious concern for women the zinâOrdinance has been the law in Pakistan for 27 years. Zinâ is the offence of illicit sexual relations i.e. sexual intercourse between persons who are not married to each other. This term includes adultery, fornication, prostitution and homosexuality.
11 PWA 2006 was initiated under the military regime of Prevaiz Mushraf promulgated in order to redress the legal injustices that were created by the zinâOrdinance. It took almost a full year to pass the Women Protection Act 2006 to pass. It was not an easy process to draft and propose the PWA 2006. During the process many compromises were made with the conservatives’ viewpoints and therefore the PWA 2006 has been able to address only some aspects of the glaring injustice and discrimination meted out to women. Many other reforms are left out in the process of compromises.
12 The h udûd ordinances were introduced in 1979 by General Zia ul-Haq during his drive for Islamization in Pakistan. On the 9 th of February 1979, five presidential decrees were enacted that included: Offences against Property (Enforcement of h add) Ordinance, Offences of zinâ(Enforcement of h add) ordinance, Offences of qazf or false accusation of zinâ (Enforcement of h add) Ordinance, Prohibition (Enforcement of h add) Ordinance. The last ordinance marks the Execution of the Punishment of Whipping Ordinance, 1979, that set out the procedure for public lashing. This was repealed in 1996 by the Abolition of Whipping Act, that abolished whipping for all offences except those mentioned in the 1979 h udûd Ordinances (Peters 2005: 156). These laws were drafted under the guidance of Ma’ruf ad-Dawalibi who was adviser to the king of Saudi Arabia (Interview Justice Majida Rizvi July 2008).
13 It should be noted that previous to Islamization of laws, inherited pieces of legislations (Pakistan Penal Code of 1860, The criminal Procedure Code of 1989 and the Evidence Act of 1872) from the British colonial rule have been the statutory basis of the criminal law of Pakistan. In the civil law side, the Muslim Family Laws Ordinance 1961 was a progressive piece of legislation. This legislation reaffirmed the reforms made during the British rule in India and made further reforms. The Muslim Family Laws Ordinance before and after its enactment has been challenged by the Islamists and during the Islamization of 1979, it again became a point of opposition. The civil society and progressive women consider the period of Islamization as two steps backward for women’s rights in Pakistan (Mumtaz, Khawar and Farida Shaheed 1987).
14 Immediately after Islamization in Pakistan, judicial institutions were set up to support/implement the new legal framework. In 1980 a Federal Shariat ( Sharî‘a ) Court (FSC) was established to hear appeals in h udûd cases. Later a Shariat ( Sharî‘a ) Court was also granted the jurisdiction to strike down laws found to be repugnant to Islam and to lay down guidelines for Islamizing the law under review.
15 The Offences of zinâ(Enforcement of h add) ordinance, 1979, and Offences of qazf (false accusation of zinâ) (Enforcement of h add) Ordinance, 1979, were the two ordinances which dealt with sexual crimes. All sex outside of marriage was made a serious penal offence punishable with heinous punishments under the zinâOrdinance, while false accusations of zinâ(sex outside of marriage) were made punishable under the qazfOrdinance. The important impact of PWA in 2006 reforms and amendments was only made in Offences of zinâ (Enforcement of h add) Ordinance, 1979 and in Offences of qazf (Enforcement of h add) Ordinance, 1979. All the other ordinances remain un-amended. Now the question is: What made it possible to amend these two ordinances? Or what was the problem with the zinâ (Enforcement of h add) Ordinance (1979) and Offences of qazf (Enforcement of h add) Ordinance (1979)?
16 Zinâ ordinance is an extremely important law, both for those who favour its implementation and opponents because:
17 There were various problems in the substantive as well as the procedural parts of zinâOrdinance. In their practical application, in Pakistan as elsewhere, these laws have been used in fact to deny women access to justice, further victimize them and exert extreme gendered inequalities in the social regulation of sexuality.
18 First, rape or sex without consent (zinâ bil jabr), and adultery or sex with consent (zinâ bil raza), were placed on the same footing subjecting both to the same kind of proof and punishment. This invariably has facilitated abuse where a woman who failed to prove the crime of rape was often prosecuted for zinâ. The requirement of proof for the maximum punishment of rape (zinâ bil jabr) being the same as that for sex with consent (zinâ bil raza). The victim of rape had to produce four pious, honest, upright (who meet the requirements of tazkiya ash-shahud) and adult male Muslim witnesses to prove the offence; in reality it was impossible for a victim of rape to prove her case against the perpetrators. As no rapist would commit the crime in front of four male witnesses, moreover men rarely speak out against other male members of a community.
19 The major issue for judicial process is verification of a woman’s rape accusation. Other issues include ambiguity in what is allowed, and in the definition of marriage. Where a case of rape against a man had failed for dearth of required proof but sexual activity was confirmed by medical examination or on account of pregnancy or otherwise, the woman was punished for zinâ not as h add – four pious male eye witnesses were not made available by the victim of rape – but as punishment oftâ‘zîr. Tâ‘zîr is the discretionary power of a Muslim judge which he can use for offences where haddor fixed punishment does not apply. In some cases, her complaint, at times, was deemed a confession. As a result, there were a vast number of cases where victims of rape were imprisoned and punished under accusations of zinâ. After the promulgation of this ordinance women had become more reluctant than before to bring a case of rape into court. View the following example of two famous cases that illustrates the nature of the problems faced by women victims of sexual abuse.
20 Safia Bibi was a blind girl who became pregnant as the result of a rape. Her father registered a case of rape against her employer and the employer’s son. The two men were acquitted due to lack of evidence while Safia was found guilty of illegal sexual relations on account of her pregnancy. Her bringing the case to the court was taken as a confession of Safia’s crime. She was sentenced to three years imprisonment and fifteen lashes in public, and a fine of 1 000 rupees – for poor people in Pakistan it is a sum difficult to manage. Safia was sentenced while she was pregnant; later her child died soon after4. A similar type of case is that of Zafran Bibi who was sentenced to be stoned to death. She accused a person for raping her as the result of which she became pregnant. She herself was married however, her husband was in prison. The accused was acquitted for want of evidence while the trial court found her pregnancy a conclusive proof of her guilt. However on appeal the Federal Shariat (Sharî‘a) Court acquitted Zafran Bibi also because of the fact that legitimacy of the child was accepted by her husband5.
21 It should be noted that there are numbers of cases where a subordinate court convicted a woman who came with a case of rape on the basis of her pregnancy, however such convictions were often set aside by the superior judiciary. Moeen H. Cheema a professor of law says: «Repeated errors by the trial courts are due in part to the continuing inability of the Federal Shariat (Sharî‘a) Court to harmonise its jurisprudence. The Federal Shariat (Sharî‘a) Court has continuously failed to refer to its own previous judgements, indicating that the relevant precedents have not been widely publicised, studied and brought to the court’s attention by advocates (Cheema, 2006).
22 However another writer has articulated the matter more forcibly: «But what is more unsatisfactory is that despite the consistent pattern of reversals and admonishment by the appellate courts, the trend continues unabated as does the human suffering it entails. Complete disregard for basic human rights and social implications for the accused is the repetitive trend emerging from this research6. The constant stream of appeal cases where women’s reputation are tarnished forever for being implicated in zinâ is made all the more stark where the male co-accused is acquitted for want of evidence while the woman is convicted for her pregnancy» (Ali, 2007: 398).
23 There are also examples of cases such as Sakina versus the State7 where the court reversed the conviction for zinâbecause in the absence of proof of her consent she could not be held to have committed the offence of zinâ. These examples illustrate, among other things that a penal statute must be clear and unambiguous. The object of enforcing an act is to protect the unwary and unsuspecting citizens from unwittingly falling foul of penal laws. Instead of marking the boundaries between the permitted and the prohibited with clarity, the zinâOrdinance was ambiguous.
24 Another problem with the zinâ Ordinance was that it defined «marriage» only as a registered marriage while in most rural areas in Pakistan, both marriage (nikâ h ) and divorces may not be registered. This makes it difficult for a person charged with zinâ to establish «valid marriage» as a defence. Non-registration has its civil consequences that are sufficient; and failure to register a marriage (nikâ h ) or have a divorce confirmed should not entail penal consequences. Similar issues were faced by women where a triple divorce ortalaq was pronounced. In such cases the woman was made to return to her parental home. She went through her period of ‘idda, the standard period of time, which is usually three months, during which a woman should not remarry after divorce or death of her husband. The family arranged another match; and, the woman was to be re-married. Often at this point, the ex-husband came forward to claim that she was still his wife. Here the local authorities do not confirm the divorce thereby providing grounds for the ex-husband to launch a zinâ prosecution.
25 This is in consonance with the Islamic norm that h addshould not be imposed whenever there is any doubt about the commission of the offence. The misuse of the law in such cases had made it an instrument of oppression in the hands of vengeful former husbands and other members of society
26 One of the procedural problems with zinâOrdinance was that arrest warrants were issued when a complaint was filed with the police. This is why a large number of women complainants were imprisoned without any proof of their guilt. Many were accused by their annoyed husbands or fathers or brothers on account of the women’s desire to marry according to their own choice. In one case for example a First Information Report (FIR) was registered by the father against his daughter and her husband for the crime of zinâ to punish his daughter who had married a man of her own choice8.
27 The Offence of qazfOrdinance, passed together with zinâ ordinance which was promulgated by General Zia ul Haque as a safety valve which punishes against the false accusation of zinâ, was weak and ineffective.
Division of offender
muhsan (married) and non-muhsan(unmarried)
Proof for zinâ and rape liable to h add
(Punishment for offences fixed by God)
Punishment for zinâand rape liable to h add
Proof for zinâ and rape liable to tâ‘zîr(Punishment of offences not fixed by God)
Punishment for zinâ and rape liable to tâ‘zîr
Married offender (adultery)
a) Confession of the crime
b) Four truthful adult male Muslim eye-witnesses
Stoning to death at a public place
Proof for zinâ- tâ‘zîr
No standard of proof is provided ; at the discretion of the judge
Punishment of zinâ- tâ‘zîr
A maximum of 10 years imprisonment, 30 lashes and a fine
Unmarried offender (fornication)
a) Confession of the crime
b) Four truthful adult male Muslim eye-witnesses
One hundred lashes at a public place
Proof for zinâ- tâ‘zîr ; No standard of proof is provided ; at the discretion of the judge
Punishment of zinâ- tâ‘zîr a maximum of 10 years imprisonment, 30 lashes and a fine
a) Confession of the crime
b) Four truthful adult male Muslim eye-witnesses.
Punishment for Rape- h add
Stoning to death at a public place
Proof for Rape-tâ‘zîr : No standard of proof is provided ; at the discretion of the judge
Punishment of Rape-tâ‘zîr Imprisonment for not less than 4 and not more than 25 years and 30 lashes
Proof for Rape-hadd
a) Confession of the crime
b) Four truthful adult male Muslim eye-witnesses
Punishment for rape- h add
One hundred lashes at a public place and other punishments including death sentence
Proof for Rape-tâ‘zîr
No standard of proof is provided ; at the discretion of the judge
Punishment of Rape-tâ‘zîrImprisonment for 25 years and 30 lashes
Comparative overview of zinâ(adultery and fornication) and rape in The Offence of Zinâ (Enforcement of hadd) Ordinance 1979
28 President Prevaiz Mushraf promulgated the Code of Criminal Procedure (Amendment) Ordinance 2006 followed by the passing of PWA 2006. An amendment to section 497 the Code of Criminal Procedure entitled a bail in non-bailable cases with the exception of some offences. As a result 1, 200 women were released from prisons across the country following a Presidential Order. On the 8 th of July 2006 the ordinance amended the Criminal Procedure Code so that a bail became the right of a woman accused of any crime except that involvement in terrorism, financial corruption and murder or a crime punishable with death, or a minimum of ten years imprisonment. A famous human rights jurist, Asma Jahangir says: «Both the government and the right-wing religious parties have expediently seized upon the PWA to lend weight to their populist agendas. The government has finally shown a plausible accomplishment to justify its claim of pursuing an agenda of ‘enlightened moderation’» (Jahangir, 2006: 6)
29 The fact is that the government used this event for political purposes rather than making it beneficial for women prisoners. It was a dramatic event where ceremonies were held in prisons for women who were to be released; and they were presented with clothes and bangles and sweets, yet they received pittance for money in the name of allowance to begin new lives. Moreover, and more dangerously, families and the larger society were not sensitized to the needs and safety of the released prisoners. However, this was a good political strategy for Mushraf and his regime trying to win popularity by showing concern for thousands of women sitting in prisons some with their small children and awaiting justice. Since the zinâ ordinance was passed, the injustice it created was taken up by civil society, human rights activist, lawyers and artist and writers. It has been the theme of many theatre plays and films but no change has been brought. Suddenly this act of Mushraf also shocked many that how to give credit to a military dictator for at least «partially reversing» the affects of zinâ ordinance.
30 In most cases, the released women refused to go back to their homes out of fear of retribution, death or other difficulties that they were likely to face in a society that had earlier rejected them or was incapable of protecting them. A majority of such women were eventually handed over to the women crisis centres (Darul Aman: «house of protection») as the stigma of being charged with zinâ leaves no place for a woman to live in a Pakistani society, especially rural. It must be noted that a large majority of the cases that were filed under the original h udûd laws were filed by the close relatives of women that included parents against whose will the women had chosen to marry or husbands who wanted to get rid of their existing wives to remarry. Such parents or husbands are known never to visit imprisoned women, so it was highly unsafe for women to return to their families and the larger society that had punished them with their own rules of honour and revenge. Indeed there are examples where the women were murdered by their families upon their return from the prison9.
31 As is mentioned above, the PWA 2006 has amended only two ordinances, those of zinâ and qazf while the remaining ordinances are still practiced in their original form. The worst thing in the zinâ Ordinance was that if a woman reported a case of rape she was prosecuted for adultery. This has been stopped by the PWA 2006 through clear distinction between tâ‘zîr and h add in the zinâOrdinance. All the clauses from section 11 to section 16 and some others dealing with kidnapping, abduction prostitution and buying and selling of women were omitted or taken away and added to the Pakistan Penal Code (PPC). These sections were a part of the Pakistan Penal Code prior to 1979 and they have been restored back to the Pakistan Penal Code.
32 The procedural changes introduced relate mainly to the procedure of filing a complaint for zinâ in order to discourage false accusation. Previously when a complaint was filed with the police, arrest warrants were issued. Now summons are issued so that, unless and until the case is proved, no one is sent to prison. Now through section 203 (a) (b) and (c) the jurisdiction of the police has been taken away ; and any complaint regarding zinâ or qazf has to go to the District or Session judge along with the statement of the four witnesses. If the judge finds that the complaint is genuine, then only the application is accepted, and summons are issued for arrest. This is a great relief for women, as previously any women could be accused of zinâ and put into prison until the case came to the court. Now women can no longer be arrested and imprisoned on mere accusations. The result is that false accusations of zinâ against women have dropped dramatically.
33 By contrast, the qazf ordinance has been amended in a slipshod manner and effectiveness of change is yet to be tested (Jahangir 2006a: 10).
h add : Proof and Punishment
tâ‘zîr : Proof and Punishment