THE REALITY OF WOMEN PROTECTION BILL 2006
by Justice (Retd) Muhammad Taqi Usmani


In the name of Allah the most merciful the most kind

The legal implications of the 'Protection of Women's Rights Bill' which has recently been passed by the National Assembly can only be known to the people who are well versed with intricacies of the legal system. But the picture being painted is that the bill is going to provide a remedy to those women who faced severe oppression due to the Hudood Ordinance and that it is going to provide a great relief to countless women. It is also being claimed that the bill does not violate the injunctions of Quran and Sunnah. Let us take a serious and realistic look at the basic points mentioned in this bill. How much they are in line with the claims being made. If we study the bill we would arrive at the conclusion that the bill contains only two substantive points: Firstly the punishment for rape (zina bil jabar) as ordained by the Quran and Sunnah which is called 'hadd' has been completely abolished in this bill. As such a person who has committed rape cannot be given the legal (sharai) punishment and instead he will receive a ta'azeeri punishment (anything below 'hadd'). Secondly the crime which was declared a ta'azeeri punishment in the Hudood Ordinance has been downgraded and declared 'lewdness', thereby reducing the severity of its punishment. Moreover, proving it has been made all the more difficult. To abolish the punishment of rape (hadd) is a clear violation of the injunctions given in the Quran and Sunnah. But it is being said that the punishment ordained by the Quran and Sunnah is only applicable when both man and woman commit adultery with free will, and that in the case of rape Quran and Sunnah have not prescribed any punishment. Let us first test the correctness of this claim:

1) The Holy Quran prescribes the punishment of adultery in Surah Noor as under The adulterer and the adulteress, scourge ye each one of them (with) a hundred stripes. (24:2) In this injunction the word zina is absolute and includes zina birraza (adultery) as well as zina bil jabar (rape). In fact it is common sense that rape is a more serious offense than what is done with free will. Therefore, when this punishment is prescribed for adultery with free will, the punishment for rape should be even more severe. Although in this injunction there is also mention of the woman who commits adultery but in the same surah (Noor) those woman are raped have been exempted from any punishment. Therefore the Holy Quran says: 'And if one force them (i.e. those women), then, (unto them) after their compulsion, Allah is Forgiving, Merciful.' (Surah Nur, Ayat 33)

From this becomes 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) which has been mentioned in Surah Nur, Ayat 2.

2. The stated Hadd of 100 stripes is to be inflicted on an unmarried offender. From the Sunnah Mutawatar is further proven that a married person is to suffer Rajm i.e. lapidation in case he commits Zina. The Messenger of Allah sallallahu alaihi wa sallam did, in this case not differentiate between Zina bil Jabr (rape) and Zina bir-Radha (adultery with mutual consent).

Sayyidina Wail bin Hajr radiallahu anhu narrated that during the days of Allah's Messenger sallallahu alaihi 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 sallallahu alaihi 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 Hadd, Bab 22, Hadith nr. 1453, 1454)

3. In the Sahih Bukhari is a tradition according to which a slave had raped a slave-girl. Sayyidina Umar radiallahu anhu then imposed the Hadd on the slave, but not on the slave-girl. (Sahih Bukhari, Kitabul Ikrah, Bab 6)

It is hence proven from the Holy Qur'an, the Sunnah of Allah's Messenger sallallahu alaihi wa sallam, the decisions of the rightly guided caliphs and the noble companions radiallahu anhum that the same punishment which is to be inflicted in case of Zina bir-Radha is also to be inflicted in case of Zina bil Jabr. It is by no means in order to say that the Hadd mentioned in the Holy Qur'an and in the sacred Ahadith is to be inflicted only in case of Zina bir-Radh; and that it is not applicable in case of Zina bil Jabr.

Now arises the question why is there so much insistence on abolishing the shara'i punishment for Zina bil Jabr? The reason for this is an extremely unjust propaganda which certain circles are busily spreading ever since the Hudood ordinance has been implemented. According to this propaganda, if any rape victim intends to sue the offender under the Hudood ordinance, she is asked to produce four witnesses to support her claim. And if she fails to do so, she herself is arrested rather than the offender. This claim has been and is repeated incessantly, so far that even educated people began to consider it as true. And exactly this point has been used as justification by our president during his speech.

Now if as a result of such propaganda a certain matter is publicized so much that even the children on the streets talk about it, then people tend to view anyone who talks against it as insane. But if anyone wishes to analyze the matter in a just way, then I would like to request him to leave all propaganda aside for a while, and consider the following points: The fact of the matter is that I myself have been directly hearing cases registered under Hudood Ordinance, first as a Judge of Federal Shariah Court and then for 17 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 because she was unable to present four witnesses. It was actually not possible only because of Hudood Ordinance because according to Hudood Ordinance the condition of four witnesses was necessary only to enforce the sharai punishment (had). But at the same time clause 10(3) was included to award the taazeeri punishment which did not have the condition of four witnesses. Instead the crime could be proven through one witness, medical examination and chemical analysis report. Consequently most of the rape criminals were awarded punishment as per this clause.

What we need to think is that if a woman was unable to present four witnesses and she was given punishment, which clause of Hudood Ordinance was used to award her the punishment? If anyone says that she was punished because of Qazaf (false accusation of rape) then Qazaf Ordinance, Clause no. 3, Exemption no. 2 clearly states that if someone approaches the legal authorities with a rape complaint, she cannot be punished in case she is unable to present 4 witnesses. No court of law can be in its right mind to award such a punishment. The other possibility could be that the woman is awarded punishment for committing adultery with free will. And if the court of law takes such a decision it may not be because the woman was unable to present four witnesses but because the court arrived at this decision after giving due consideration to all the available evidence. Obviously if a woman accuses a man of raping her but subsequent evidence proves that she committed adultery with her free will and her accusation proves to be false then punishing her will not be against the spirit of justice. But since usually there is lack of sufficient evidence to proof that the woman is lying, even such cases are rare. In 99% of the cases it so happens that the court of law is not convinced that the woman has been raped yet since there is lack of sufficient evidence to prove the willful involvement of the woman, she is given the benefit of doubt and set free. This can be verified very easily by doing an analyses of the cases executed under Hudood Ordinance in the last 27 years. Other judges who have been involved in the proceedings are of the same opinion that even when a woman's character is found doubtful she is not punished; only the man gets punished.

Since from the very beginning voices are being raised against Hudood Ordinance that innocent women are being punished because of it, an American Scholar Charles Kennedy got interested and visited Pakistan to conduct a survey of the cases. He analysed all the data related to Hudood Ordinance cases and presented the results in the form of a report which has been published. The results are very much in line with the above mentioned facts. He writes in his report: 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 women is exonerated of any wrongdoing due to reasonable doubt rule. (Charles Kennedy: The Status of Women in Pakistan in Islamization of Laws page 74)

This is what an unbiased non-Muslim scholar who has got no sympathies toward the Hudood ordinance, observed with regard to such women who had actually consented to committing Zina, and then due to the pressure from side of their families, tried to declare their deed as Zina bil Jabr. They were not asked to produce four witnesses, but to furnish circumstantial evidence. On being unable to furnish circumstantial evidence which would give weight to their claim of having been raped, only the male parties were punished, whereas the female parties went unpunished, as no transgression could be proven on their part. Hence there is no such clause in the Hudood ordinance according to which, if a woman fails to produce four witnesses to support her claim of having been raped, she is to be punished rather than the offender.

It is however possible that during investigations conducted by the police, and before the matter could be brought to the court, some rape-victims were indeed wrongly and without any justification arrested as committers of Zina bir-Radha. However this is no flaw in the Hudood ordinance. Unfortunately the police in our country are quite prone to commit such acts of injustice while enforcing the law. But this does not mean that the law has to be changed. In our country, keeping heroin is a crime. And it happens quite often that the police themselves hide some heroin with innocent citizens only to pressurize them afterwards. Should we then -in order to resolve this situation- abolish the law according to which keeping heroin is a crime? Through its decisions, the Federal Shar'iah Court had several times set an end to maltreatment which rape-victims had to suffer at the hands of the police. However, if one was to assume that this risk has not yet been fully eliminated, then 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 has delivered its final judgement. Besides, one could make further laws stating the punishment for one who wrongly arrests a rape-victim. But under no circumstances is it permissible to abolish the punishment which the Holy Shari'ah has laid down for Zina bil Jabr.

Hence, The way in which the bill under discussion abolishes the punishment which the Holy Shari'ah has prescribed for Zina bil Jabr is in utter contradiction with the Holy Qur'an and the Sunnah, and it is in no way related to the maltreatment of the concerned women.

Lewdness

The second significant feature of the said bill is related to those articles which were added to this bill under the heading of 'Lewdness'. The injunctions in the Hudood ordinance were such that if -in accordance with the principles stated by the Holy Shari'ah- there are four witnesses to the act of Zina, then the Hadd shall be inflicted on the offender, as per the fifth article of the Hudood ordinance. And if there are no four witnesses, but the crime is proven beyond doubt, then the offenders are to be given a ta'zeeri (i.e. discretionary) punishment. Now the Hadd for Zina bir Radha, prescribed in the fifth article of the Hudood ordinance, and for which four witnesses are a prerequisite, has been retained in the said bill, but in article 8 has been stated that this kind of offence is no longer under police jurisdiction that anyone should take four witnesses and lodge a complaint in the court, and that one cannot register an FIR with the police. Thus the procedure of proving Zina as an act calling for Hadd has become even more difficult. Besides that, the discretionary punishment prescribed by the Hudood ordinance in case four witnesses could not be procured has been altered as follows:

1. In the Hudood ordinance, Zina has been referred to as a crime calling for discretionary punishment. Now in the bill under review, this act is referred to as 'Lewdness'. This change is appropriate, as from the Qur'anic and Sunnah point of view, in the absence of four witnesses; it is rather difficult to prove this offence as Zina. Hence, under such circumstances, this act should indeed be referred to as anything less than Zina. This was indeed a weak point in the Hudood ordinance, and the removal of this weakness had been strongly recommended by the scholars. 2. According to the Hudood ordinance, this offence could be awarded a sentence of maximum ten years. Now the maximum is five years. Anyway, since it is a discretionary punishment only, this reduction is not in contradiction with the Qur'an and the Sunnah.

3. According the Hudood ordinance, Zina was an offence that fell under the jurisdiction of the police, whereas according to the bill under review it does not fall under the jurisdiction of the police. Now one cannot go to the police station and file an FIR in case of such an offence, rather one will have to lodge a complaint in the court. At the time of lodging the complaint, one will have to produce two eye-witnesses, whose statement under oath shall be immediately recorded by the court. Thereafter, if the court deems to have sufficient reason to further pursue the matter, it will issue a subpoena to the accused. Then as far as further proceedings are concerned, the court will contend itself with demanding a personal bond from the accused to present him/herself at the court. And if the court deems not to have sufficient reason to further pursue the matter, the case shall be dismissed then and there.

Thus proving the offence of lewdness has been so very difficult, that there is almost no way someone could get punished for it.

First of all, according to the Islamic injunctions, lewdness and Zina are crimes not just against an individual, but against the whole society and the state. Hence this crime ought to be under the jurisdiction of the police. Well, now doubt, when keeping this offence under the jurisdiction of the police, one must keep in mind the occasionally questionable performance of our police, and one must ensure that innocent couples are not put to trouble. The Federal Shari'at Court has given several judgements after which this risk has been eliminated to a great extent. Throughout those twenty-seven years during which this offence had remained under the jurisdiction of the police, there were hardly any cases where innocent people had been put to trouble. But in order to further eliminate this risk, there should be a law according to which this kind of investigation should be made by an officer whose rank is not less than that of an SP. Besides, there should be no arrest without prior order from the court. If one would implement these steps, then this risk would be fully eliminated.

Secondly, obliging the plaintiff to immediately produce four witnesses in case of Hadd, and two eye witnesses in case of lewdness, seems to be a quite unique feature of our martial law. Nowhere in the whole legal system pertaining to testimony -apart from Hudood- has been made mention of a certain minimum number of witnesses. At times decisions are made in total absence of eye-witnesses, only on account of circumstantial evidence. Hence in the said offence, the reports of physical examinations and chemical analysis are important pieces of evidence. From the shariah perspective taazeeri punishment can be awarded even with availability of one witness and also in presence of circumstantial evidence. Therefore, in the case of taazeer, presence of two witnesses at the time pf complaint registration practically the same as providing unnecessary protection to the criminals of lewdness. As such, making it a condition that from such a criminal the court of law will not be authorized to demand any bail except a personal bond is like impeding justice. Different cases come with different situations, which is why as per the military Act 496 the court is already authorized to free the criminal on personal bond if the situation so warrants and similarly it can ask for additional guarantees if it deems necessary. This authority lies with the court even in case of minor crimes but to invalidate it for a crime like lewdness is not at all appropriate. It is, but not clear why the clause is added that if the court does not find sufficient substance in favor of the case then it will dismiss the case since it is already covered under Military Act clause 203.

4. According to Hudood Ordinance if necessary evidence to enforce had is not found against someone but the crime is in any case proven then he may be awarded taazeeri punishment as per clause 10(3). But as per the bill under consideration , clause no. 203 which has been added in the Military Act in its para 6 states that if someone is acquitted in a case of had cannot be tried in a case of lewdness. It is now obvious that the extremely strict conditions laid down for enforcement of had are sometimes not fulfilled merely due to the technical reasons. In a situation when strong evidence is available to prove the crime the court dealing with the rape case cannot award any punishment. In fact it cannot even register a case of lewdness against the criminal. What we need to think is that disallowing the courts registering a case against such a person is nothing but providing protection to lewdness. Similarly in clause 12 A of the proposed bill it is stated that if someone is accused of rape his case cannot be converted into a case of lewdness at any point in 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 lewdness will not be made against him. At a time when zina bir raza (adultery) was not a crime, the rape criminals used to adopt this line that what they did was with the free will of the woman. Therefore if the court suspected woman's connivance it would dismiss the case and would free the accused. Hudood Ordinance did not allow this line of defence to the person accused of rape because adultery was declared a crime even if it was done with the woman's free will. And the court which was hearing the case of rape could also award him the tazeeri punishment. But this new amendment has created nearly the same situation that if someone says that he has committed adultery with the woman's free will and he succeeds in creating doubts then noone will be able to bring him to justice. The court hearing this case will not be able to take any action because due to the above clause it is no more authorized to convert a case of rape into a case of lewdness. And if suppose a case of lewdness is registered afresh then even if we ignore everything else, it will not be possible to do so for it is mandatory to bring two eye-witnesses along to the court for registering the complaint. While in this case two eye-witnesses are not available. As a result such a person will go scot-free and no court of law will be able to take any new action against him. Now arises the question, is the kind of lewdness which has been declared a criminal offence indeed a criminal offence? If yes, then why do such laws come into being which not only protect the offence but also save the offender from punishment? Some further amendments to the Hudood ordinance There were made some further amendments to the Hudood ordinance, e.g.

1. According to one statement of the Noble Prophet sallallahu alaihi wa sallam, if a person has been awarded Hadd as a result of his offence, then no one has got the right to reduce or forgive the sentence. Thus according to article 20, point 5 of the Hudood ordinance, the authority of foregoing, altering or reducing a punishment which the martial law has given the provincial governments, shall not be applicable in case of Hudood. One significant change in the bill under review is that article 20, point five of the Hudood ordinance has been canceled. This means that if any court awards Hadd, then the government is authorized to alter or reduce this punishment. This amendment is clearly against the injunctions of the Holy Qur'an and the Sunnah. In the Holy Qur'an comes:

'And it becometh not 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, Ayat 36)

There is a well-known incident according to which a high-ranking companion had interceded with the Noble Prophet sallallahu alaihi wa sallam for a woman who had committed theft (as a result of which she deserved Hadd). The Noble Prophet sallallahu alaihi wa sallam reprimanded the companion and said:

'Had Muhammad's (sallallahu alaihi wa sallam) daughter committed theft, I would have cut her hand off.' (Sahih Bukhari, Kitabul Hudood, Bab 12, Hadith nr. 6788)

2. In article 3 of the Hudood ordinance has been stated that the regulations stated in this ordinance shall be given superiority over the other laws, that means if there be any contradiction between the regulations in this ordinance and the other laws, then the regulations of the Hudood ordinance shall be followed. This article which had actually resolved many legal perplexities, and because of which oppressed women had been considerably less vulnerable, has been cancelled in the said bill. So if, for example, a man has divorced his wife, then, according to the family law, this divorce will not take effect until the notice thereof has been sent to the union council, whereas, if seen from the shara'i point of view, the woman is free to remarry, once she has passed her iddat. The family law however does not take such a divorce into account unless the union council receives a notice in this regard. That means the woman will still be considered as her husband's legal wife. She cannot contract a new marriage anywhere else. Now there are many incidents where the husband did not send a notice to the union council, and 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 women because as per the family law she was still his wife. When such cases were reported, the shariah bench of the Supreme Court used the Hudood Ordinance and its same clause no. 3 to order release of these women. It was stated that Hudood Ordinance has been formulated in accordance with the shariah and shariah allows this woman to perform second marriage, therefore, the family law will not be applicable in case of her marriage because Hudood Ordinance supersedes all other laws. After repealing this clause and especially after annulling the definition of nikah from the Hudood Ordinance through this bill, one more time there are possibilities that the women will suffer in the new situation. We raised this issue in the Ulema Committee and had finally agreed that it will be replaced by the following clause: In the interpretation and application of this Ordinance the injunctions of Islam as laid in the Holy Quran and Sunnah shall have effect, notwithstanding anything contained in any other law for the time being in force. But this clause is missing from the bill which has now been passed by the National Assembly due to which many problems can be anticipated.

3. In the clause 14 of Qazaf Ordinance the procedure of La'an as mentioned in Quran, is mentioned. According to this if a man accuses his wife of adultery and fails to produce 4 witnesses then on the woman's demand he will have to take oath in the process of La'an. After oaths from both sides have taken place the marriage will dissolve. The Qazf Ordinance states that if the man refuses to undergo La'an he will be kept under arrest until he agrees. In the new bill this clause has been removed which means that if the man does not agree undergoing the process of La'an the woman will be left helpless. She will neither be able to prove her innocence through La'an nor will she be able to dissolve her marriage. Moreover, the Qazaf Ordinance states that if during the process of La'an the woman admits committing adultery then she will be awarded the punishment of adultery. The new bill has also removed this part even though it does not make any sense not to punish a person after she has pleaded guilty - and while the process of La'an is initiated at the behest of the woman and no one forces her to confess. Therefore this part of the bill is also against the injunctions of the Holy Quran and Sunnah.

4. In clause 20 of Hudood Ordinace it was stated that if through evidence it is proven that the offense committed is a crime punishable by a law other than the Hudood Ordinance then if the crime falls in the jurisdiction of this court it can award punishment to the accused. This clause was to simplify the complex legal procedures. But the bill under discussion has revoked this authority of the court.

The situation is such that all punishable crimes similar to adultery/rape have been taken out of the Hudood Ordinance and incorporated in the Tazeerat-e-Pakistan. Hence, the result of this amendment is that if any man has been accused of Zina which calls for Hadd, but after hearing the witnesses it turns out that the man had compelled the woman, or, if Zina could not be proven, but it could be proven that the man had abducted the woman, then the court can neither award a punishment for rape, nor for abduction, rather the court will let the culprit go, knowing perfectly well that he had kidnapped the woman and raped her. Thereafter the culprit will either go free, or the complaint will have to be lodged another time, so that the court takes up its proceedings again.

Legislation is a very delicate process which requires one to sit with a cool, unbiased mind and consider all aspects and possible dilemmas. If one changes laws as a consequence of propaganda, or because of being overawed by catchy slogans, then this results in something similar to the above. Then the courts will get entangled with all sorts of legal intricacies and take considerable time to construe and interpret the new laws. Cases will be shuffled between the courts, and it will become near impossible to redress the grievances of the oppressed.

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2007-05-12

 

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