Making Pakistan Safe for Rapists
[In November 2006, Pakistan’s military ruler steamrolled the Protection of Women Bill 2006 into law claiming to end injustices against women. It was promptly rubber stamped by the National Assembly. In reality, this bill makes it much more difficult to punish crimes against women and provides all kinds of protection to rapists and fornicators. In this blatant attempt to make Pakistan safe for rapists, one can see the true face of “Enlightened Islam” that General Musharraf has been tasked to introduce in Pakistan.
The account is important not just for the people of Pakistan; Muslim women everywhere can expect similar treatment from their “moderate” rulers.
The text below is based on an article in Urdu and an interview by Mufti Taqi Usmani.]
The major “accomplishments” of the bill are as follows:
- The hadd for rape has been abolished.
- It has been made much more difficult to file complaints for zina deserving hadd and zina deserving ta’zeer. They are also now much more difficult to prove. Further the government can forgive/commute hadd punishments.
- The Shariah process of li’an has been tampered. Consequently, a woman in a failed marriage who is accused by her husband of adultery will remain at his mercy. Previously li’an provided her a way out.
- Several clauses in the Hudood Ordinance that reduced legal complexities and provided protection for women have been repealed.
In the following discussion it is important to note that the Hudood Ordinance covered two types of punishments for zina:
- Hadd: If there were four witnesses to the act of zina, then hadd (immutable Shariah punishment) was to be inflicted on the offender(s).
- Ta’zeer: If four witnesses were not available, but the crime was proved beyond doubt, the offender(s) were to be given a ta’zeer (i.e. discretionary punishment).
Abolishment of Hadd for Rape
First, the new bill abolishes the hadd for the crime of rape. The authors claim that the punishment ordained by the Qur’an and Sunnah only applies in the case of adultery, and not in the case of rape.
Proof of Hadd from the Qur’an
The Holy Qur’an prescribes the punishment of adultery in Surah an-Noor as follows: “The female perpetrator of zina and the male, scourge ye each one of them (with) a hundred stripes.” (An-Noor, 24:2)
In this injunction the word zina is absolute and includes zina bir ridha (adultery) as well as zina bil jabr (rape). It is obvious that rape is a more serious offense, and consequently deserves at least as severe a punishment as that for adultery.
One may point out that this verse mentions both the female and male perpetrators of zina, so this verse could not possibly apply to rape. However, in the same surah the punishment for rape is clarified: it only applies to the man. The Holy Qur’an says:
“And if one forces them (i.e. those women), then, (unto them) after their compulsion, Allah is Forgiving, Merciful.” (Surah Noor, Verse 33)
Thus, it is clear that if any woman is forced to commit zina, then she cannot be punished for this, rather the one who transgressed will have to suffer the prescribed punishment (hadd) that has been mentioned in Surah Noor, Verse 2.
Proof from the Ahadith
The stated hadd of one hundred stripes is to be inflicted on an unmarried offender. From the Sunnah Mutawatar it is further established that a married person is to suffer rajm (lapidation). The Messenger of Allah, Sall-Allahu alayhi wa sallam, did not differentiate between zina bil jabr (rape) and zina bir-ridha (adultery with mutual consent).
In one hadith, Sayyidna Wail bin Hajr, Radi-Allahu anhu, narrates that during the time of the Prophet, Sall-Allahu alayhi wa sallam, a woman had gone out to offer the prayer. On the way a man overcame and raped her. The woman cried for help and the man ran away. Thereafter the man admitted that he had raped her. The Messenger of Allah, Sall-Allahu alayhi wa sallam, then inflicted the hadd on the man only, and not on the woman.
Imam Tirmidhi related this Hadith in his Jami’ with two different chains of transmission, and he declared the second chain of transmission as reliable. (Jami Tirmidhi, Kitabul Hudood, Bab 22, Hadith Number 1453, 1454)
Similarly, in Sahih Bukhari there is a hadith according to which a slave had raped a slave-girl. Sayyidina Umar, Radi-Allahu anhu, then imposed the hadd on the slave, but not on the slave-girl. (See Sahih Bukhari, Kitabul Ikrah, Bab 6)
It is hence firmly established from the Holy Qur'an, the Sunnah, and the decisions of the rightly guided caliphs, Radi-Allahu anhum, that the same punishment is to be awarded for both adultery and rape and that in the case of rape, only the man is punished. It is by no means correct to say that the hadd mentioned in the Holy Qur'an and in the Ahadith applies only to adultery.
The Propaganda against the Hudood Ordinance
What is the rationale for removing the Shariah punishment for rape? The authors argue that the Hudood Ordinance treated a victim of rape who was unable to produce four witnesses as a criminal herself; she was jailed for allegedly having committed adultery. This claim is simply false.
I myself had been directly hearing cases registered under Hudood Ordinance, first as a Judge of Federal Shariah Court and then for seventeen years as a member of Shariah Appellate Bench of the Supreme Court. In this long tenure, not once did I come across a case in which a rape victim was awarded punishment simply because she was unable to present four witnesses.
In fact it was not possible to do so. First, according to the Hudood Ordinance, the condition of four witnesses only applied to enforcing the hadd for rape. Clause 10(3), which awarded the ta’zeer punishment, did not have this requirement; the crime could be proven through one witness, medical reports, and chemical analysis report. Consequently most rape criminals were awarded punishment as per this clause.
Further, a woman claiming rape could not be punished under Qazf (false accusation of zina) since Exemption 2 in Qazf Ordinance Clause 3 clearly stated that if someone approaches the legal authorities with a rape complaint, she could not be punished in case she was unable to present four witnesses.
The only possibility was that the woman could be awarded punishment for committing adultery with her own free will. Obviously, if the available evidence did prove her guilt, punishing her was the just course of action. However, such cases were rare, since usually there was insufficient evidence to prove that the woman was lying; in 99% of the cases the court was neither convinced that the man had compelled the woman, nor could it prove her guilt and so she was given the benefit of doubt and set free.
This can be verified very easily by analyzing the cases executed under the Hudood Ordinance in the last 27 years. In fact, there was an independent study conducted by Charles Kennedy, an American professor. He surveyed all the data related to the Hudood Ordinance cases and presented the results in the form of a report, which was published in 1991. The report states:
Women fearing conviction under Section 10(2) frequently bring charges of rape under 10(3) against their alleged partners. The FSC finding no circumstantial evidence to support the latter charge, convict the male accused under section 10(2)….the woman is exonerated of any wrongdoing due to reasonable doubt rule. (Charles Kennedy: “Islamic Legal Reform and The Status of Women in Pakistan”, Oxford Journal of Islamic Studies 2:1 (1991) page 50)
The Behavior of the Police
Thus far we have discussed the legislative issues; it is clear that the punishment for rape is decided by the Shariah and that the Hudood Ordinance’s implementation was just and correct.
One matter remains: the behavior of the police while investigating the crime. It is possible that during police investigations, some rape victims were indeed unjustly arrested as committers of adultery. Unfortunately the police in our country are quite prone to committing such acts of injustice while enforcing the law. This, however, does not mean that the law must be abrogated. For example, keeping heroin in one’s possession is a crime. Yet quite often the police themselves secretly place some heroin with innocent citizens only to pressurize them afterwards. Should we then abolish the law according to which possession of heroin is a crime?
This, in fact, was dealt with by the Federal Shariah Court; it had passed several decisions that effectively set an end to this abuse. However, if one was to assume that the risk has not yet been fully eliminated, one could draft a law according to which no woman claiming to have been a victim of rape could be arrested under any article of the Hudood Ordinance until the court had delivered its final judgment. Besides, one could make laws that prescribed punishment for wrongly arresting a rape victim. But under no circumstances is it permissible to abolish the punishment that the Shariah has decreed for rape.
Zina in the New Bill
The second major arena of modifications is in the sections dealing with zina deserving hadd and zina deserving ta’zeer (now called “fornication”). The modifications have little to do with the protection of women, but a lot to do with protecting the perpetrators of these crimes.
First, the offence of zina is no longer under police jurisdiction. Now one must take the witnesses to the court and file a complaint there. Zina deserving hadd requires four witnesses; if four are not available, one may file a complaint of “fornication” which requires two witnesses. In both cases, an FIR (First Information Report, the essential document for criminal investigations) can no longer be registered with the police. Obviously, the courts are no where nearly as accessible as the police, and the police themselves are not allowed to apprehend the offenders, so this modification can only entail protection for the perpetrators of this crime.
Zina and fornication are crimes against the society, not just against an individual. Hence the crimes ought to be under the jurisdiction of the police.
Zina Deserving Hadd
While the police are out of the picture, the government is now allowed to interfere in hadd punishments even after the court has awarded them. The new bill eliminates the clause in the Hudood Ordinance that prevented the government from forgoing, altering, or reducing the hadd punishment. This blatantly violates the injunctions of the Qur’an and Sunnah. The Qur’an states:
And it becomes not of a believing man or a believing woman, when Allah and His Messenger have decided an affair (for them), that they should claim any say in their affair. (Surah Ahzab, Verse 36)
There is also a well-known incident according to which a high-ranking companion had interceded with the Noble Prophet, Sall-Allahu alayhi wa sallam, for a woman who had committed theft (as a result of which she deserved hadd). The Noble Prophet, Sall-Allahu alayhi wa sallam, reprimanded the companion and said:
Had Muhammad's (Sall-Allahu alayhi wa sallam) daughter committed theft, I would have cut her hand off. (Sahih Bukhari, Kitabul Hudood, Bab 12, Hadith Number 6788)
When even the Prophet, Sall-Allahu alayhi wa sallam, did not have the authority to reduce a hadd punishment for someone, whence does the government obtain the authority to do so?
There are still further modifications with regards to “fornication” (the situation when four witnesses are unavailable, but the crime can still be established using other evidence):
- The offence is now awarded a maximum sentence of five years as opposed to the ten years in the original Hudood Ordinance.
- To file a complaint in the court, one must go with at least two eye-witnesses, whose testimony will be immediately recorded. If the court deems the case worthy of further proceedings, it will summon the accused. The court will then be limited to demanding a personal bond from the accused to guarantee that he/she present him/herself at the court.
There are several major issues here. First, demanding two eyewitnesses is quite unwarranted. Nowhere in the entire legal system pertaining to testimony—apart from Hudood—is there mention of a certain minimum number of witnesses. At times decisions are made in the total absence of eye-witnesses, only on account of circumstantial evidence. From the Shariah perspective a ta’zeer punishment can be awarded with availability of even one reliable witness as well as in the presence of circumstantial evidence such as medical reports and chemical analyses. The requirement of producing two witnesses at the time of complaint registration provides unnecessary protection to the criminals of fornication.
Similarly, prohibiting the court from demanding any bail besides a personal bond is impeding justice. Court cases vary in their circumstances, which is why Military Act 496 already authorizes the court to decide whether to free the criminal on a personal bond or ask for any additional guarantees it deems necessary. This applies even in case of minor crimes. Yet it has been invalidated for a major crime like fornication.
- Further, filing a complaint in the court now carries a huge risk. The judge in his sole discretion may decide that the accusation is false and then without further hearing decide to award punishment to the complainant for false accusation.
Converting Other Cases to Fornication
Further, the new bill disallows converting cases of rape or zina deserving hadd into fornication. In the legal system, if there is not enough evidence to convict the accused under one crime, he may still be convicted under other crimes that can be proved using the available evidence. Yet, in the case of fornication this has been explicitly disallowed.
1. Converting Zina Deserving Hadd to Fornication
According to the original Hudood Ordinance if necessary evidence to enforce hadd was not found against someone but the crime could still be proven otherwise then he could be awarded ta’zeer punishment as per clause 10(3). The new bill has done away with this. Clause 203C, Paragraph 6 states that if someone is acquitted in a case of hadd, he cannot be tried in a case of fornication (i.e. he cannot even be given a ta’zeer punishment).
Now, it is obvious that the extremely strict conditions laid down for enforcement of hadd cannot sometimes be fulfilled merely due to technicalities. In such a situation when otherwise strong evidence is available to prove the crime, the court can neither award any punishment, nor can it even register a case of fornication against the criminal. Is this anything but providing protection to fornication?
2. Converting Rape to Fornication
Similarly, the bill states in article 12A that if someone is accused of rape his case cannot be converted into a case of fornication at any time in future. Consequently if a woman registers a case of rape against someone but some doubt remains in proving that the act was committed by force, the criminal will be released and even a case of fornication will not be made against him.
It is easy to see where this can lead. In the days before the Hudood Ordinance when adultery was not a crime, rape criminals used to adopt the line that what they did was with the free will of the woman. So if the court suspected the woman's connivance it would dismiss the case and free the accused. The Hudood Ordinance did not allow this line of defense because adultery was declared a crime even if it was done with the woman's free will. And the court that was hearing the case of rape could also award him the ta’zeer punishment. (At the same time, the woman could not be punished as mentioned earlier.) This new amendment has restored the situation wherein if a man accused of rape succeeds in creating doubts about the woman’s being forced then no one will be able to bring him to justice.
The only option is to register afresh a case of fornication. Yet this too would not be possible, since a case of fornication now requires two eye-witnesses, while in this case two eye-witnesses are not available. As a result such a person will go scot-free and no court will be able to take any new action against him.
Now, this bill does list fornication as a criminal offence. So we need to ask its authors the obvious question: is fornication indeed a criminal offence? If so then why is this bill making all these provisions to save the offender from punishment?
Li’an in the New Bill
Third, the process of li’an is no longer in accordance with the Shariah. In Clause 14 of the original Qazf Ordinance the procedure of li’an was mentioned in accordance to the Qur’an: If a man accuses his wife of adultery and fails to produce four witnesses then on the woman's demand he will have to take oath in the process of li’an. After both parties take oaths the marriage will dissolve. The Qazf ordinance stated that the man would be kept under arrest if he did not agree to undergo this process.
In the new bill, the man may now refuse to undergo the process of li’an, in which case the woman will be left helpless—unable to prove her innocence through li’an or dissolve her marriage. How does this relate to the protection of women?
In addition, a woman who admits to adultery during li’an may not be punished. How is it just not to punish a person after she has pleaded guilty—all the while the process of li’an was initiated at her own behest and no one forced her to confess?
Finally, several clauses that resolved legal complexities and simplified legal procedures have been repealed.
First, the superiority of the regulations in the Hudood Ordinance over other laws has been nullified. This superiority was coded in Article 3 of the Hudood Ordinance in order to resolve many legal perplexities that arose due to contradictions between the Hudood Ordinance and other laws. It also provided protection to many oppressed women.
Consider divorce: According to family law, the divorce does not take effect until the union council has been notified. On the other hand, the Shariah says that a woman is free to remarry once she has passed her iddat. Suppose a man divorces his wife but does not send a notice to the union council, while the woman, considering herself as a divorcee, contracts a new marriage after having passed her iddat. Now her malicious husband lodges a case of adultery against the woman, because as per the family law she is still his wife.
When such cases were reported, the Shariah Bench of the Supreme Court used Article 3 to order the release of the woman. The argument would be simple: the Hudood Ordinance is based on the Shariah and supersedes all other laws; since the Shariah allows this woman to perform a second marriage, the family law cannot apply here.
The new bill removes this line of defense by both repealing this clause and annulling the definition of nikah from the Hudood Ordinance. Thus, it is again possible that women will suffer in the new situation.
Second, the court is now severely restricted in dealing with crimes relating to zina, even though they may become apparent after testimony.
In clause 20 of the Hudood Ordinance it was stated that if it is proven that the offense committed is a crime punishable by a law other than covered by the Hudood Ordinance but the crime falls under the jurisdiction of the court it can award punishment to the accused.
The new bill has revoked this authority of the court. All punishable crimes similar to adultery/rape have been taken out of the Hudood Ordinance and incorporated in the ta’zeerat-e-Pakistan.
Let us see what can happen now. Suppose a man has been accused of zina which calls for hadd, but after hearing the witnesses it turns out that the man had actually compelled the woman, or say zina cannot be proven, but it can be proven that the man had abducted the woman. The amendment states that the court can neither award a punishment for rape, nor for abduction, rather the court must let the culprit go, knowing perfectly well that he had kidnapped the woman and/or raped her. The only way to try him for these crimes will be to lodge a new complaint for the relevant crime, so that the court takes up its proceedings again.