Author: Dr Farzana Bari
Publication: The News
Date: May 14, 2002
[The writer is Acting Director,
Centre for Women's Studies, Quaid-e-Azam University, Islamabad]
Rape victim Zafran Bibi was sentenced
to death by stoning by a session court in Kohat under Hudood Laws for alleged
adultery. This tragic case once again exposes the tyranny of Hudood Laws
for women. Ever since its promulgation in 1980, the law has been subject
to gross misinterpretation and misuse due to its inherent flaws and the
misogyny of our judiciary and the society.
Thousands of women have suffered
from the discriminatory legislation that was introduced to sanction the
Islamisation drive of the military dictator Zia-ul-Haq. Through these laws,
the legal basis for gender discrimination and to punish women for asserting
their own will and choices was created by the state. The law is extremely
unjust and gender biased. It equates rape with adultery and extends the
requirement of four adult Muslim male witnesses to prove adultery to the
cases of rape as well. This means in practice that the law protects rapists.
Also, it excludes the testimony of women and minorities in awarding Hadd
punishment. It does not recognise the rape of a minor wife as an offence
and removes the legal protection given to children and makes them liable
for punishment of these offences under the law.
There are no national level statistics
available on the number of women who have been affected by these laws.
Also no scientific investigation has ever been undertaken to systematically
explore the negative implications of these laws on women, nevertheless,
there is no shortage of micro-level research studies that provide irrefutable
evidence that these discriminatory laws, particularly the Hudood law has
unleashed a legalised terror against women in our country.
Hudood laws are clearly in conflict
with the principle of gender equality that is enshrined in the article
25 of the constitution that does not permit discrimination on the basis
of sex alone. It is a matter of great disappointment that no government
after Zia's regime has had the courage to repeal these draconian laws despite
a consistent demand of women's rights groups and the grave injustice done
to women under these laws. The apathy of the political government towards
the issue of the repeal of the Hudood and other discriminatory laws was
mainly due to two reasons (a) religious groups despite their limited popular
support were the most organised and militant force and trained in terrorist
activities. These religious groups had the ability to paralyse governments
by creating law and order situations. All political governments feared
the backlash from religious orthodoxy, therefore, they were reluctant to
touch these laws (b) despite the fact that women constitute fifty percent
of the population, they are not a powerful constituency due to their dependent
and subordinate status vis-a-vis men. Their electoral behaviour is primarily
determined and influenced by the male members of their families. Also,
they are not organised as women to be able to influence the politics or
policies. So, by ignoring the violation of human rights of half of the
female population of the country due to these discriminatory laws was perceived
as posing far less political cost and risks for the political parties than
to uphold the cause.
Both, Pakistan People's Party and
Pakistan Muslim League used delaying tactics in this regard. Both parties
set up committees to review these laws to pretend that they were serious
about resolving the issue. The report of the Inquiry Commissionstrongly
recommended the repeal of Hudood and other discriminatory laws due to its
negative implications for women, however, no action was taken to implement
the recommendations of the official report by the PPP government. Similarly,
during Nawaz Sharif government, instead of implementing the recommendations
of the Inquiry Commission, a committee was set-up by the Ministry for Women's
Development to review these laws, the report of which was never seen by
anyone. The present government did exactly the same and yet the National
Commission on the Status of Women to review these laws and give recommendations
had formed another committee. The report of this committee also is still
being awaited. This shows the lack of commitment on the part of successive
governments to address the issue of legal discrimination against women
despite their tall claims for working towards gender equality.
The presence of these laws in our
statute book continues to strike women in the most inhuman manner due to
the patriarchal nature of our society and the judiciary. It is no chance
that Hadd punishment is never awarded in other offences such as theft,
prohibition and Qazf that are covered under the Hudood Ordinance as the
majority who are involved in committing such crimes are men. The Hadd punishment
is awarded in cases of Zina and the majority of people who are tried so
far under Hudood laws are primarily women. With the exception of two cases
(Fahmida-Alla Bukhsh, Shahida Parveen and Mohamad Sarwar) whereby men along
with women were awarded Hadd (stoning to death) punishment, only women
have been awarded the maximum punishment of adultery by the male judiciary.
This includes Safia Bibi who was a blind woman, raped by her landlord and
his sons and was sentenced stoning to death because she was not able to
provide male witnesses.
It is mind boggling that a society
which is so keen to punish females accused of adultery even when there
is no substantive evidence or required testimony, conveniently turns a
blind eye towards male adulterers who openly commit adultery in our "Muslim"
society. There is hardly any city in Pakistan where brothels or red light
areas do not exist. The customers of these places are invariably men and
commit adultery under the very nose of police authorities and local administration.
This is the worst form of hypocrisy and double standards that we have as
a nation which is evident in the differential treatment towards male and
female citizens who are accused of committing the same "crime" of adultery.
Politically, because of post-September
11 scenario, it has become the most opportune time for the government to
take a bold initiative and repeal Hudood and all other discriminatory laws
while the religious fundamentalist forces are on retreat, and the government
is forced to withdraw the patronage, these religious/fundamentalists groups
had been enjoying for a long time. The present regime of General Pervez
Musharraf has introduced several amendments to the Constitution to implement
its reform agenda. In order to implement its gender reform, it is imperative
that gender biases in the legal framework of the country is removed. In
the presence of discriminatory legislation, the government's commitment
to gender equality cannot be realised. Therefore, it is demanded that President
Musharraf should take immediate steps to repeal Hudood and other discriminatory
laws to ensure gender equality and social justice. It must be remembered
that Pakistan being signatory of CEDAW is obligated to bring its domestic
law in line with the international covenant. It is high time that we must
put a stop to the humiliation and suffering, women are facing due to Hudood
and other discriminatory legislations.
