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Pakistan Zina-Bil-Jabr: A Rape Of Justice by Saad Anis
(The Zina Ordinance, Pakistan Penal Code) The basic rationale behind any law which is promulgated, is ingrained in reason and justice. In the normal scheme of things, the State never enforces a law which does not adhere to the dictates of logic. Moreover, any law which is being considered for implementation must not contravene the sacred principle of equality of all before law. That is, any law that seems to favour one community and discriminates against another within the country, is rejected outright. Lamentably, the zina ordinance is representative of the worst form of prejudice, and defies all logic. The above-mentioned requirement of proof for rape makes the charge almost impossible to stand. To simplify what is written above, there are two conditions under which a person can be proven to have committed the crime of rape, or zina-bil-jabr: i) The accused comes through with a full confession, one which he does not retract throughout the course of the trial and conviction, in case he does retract his statement during the course of the trial, the hadd punishment does not stand. Let us address what appears to be the obvious incongruity here in this case; the requisite presence of four adult male witnesses to provide testimony to the act of rape having been committed. As we are well aware, rape is not a crime that the perpetrators thereof are particularly proud of. Moreover, not a lot of rapists normally indulge their whim in the middle of town in broad daylight for all to see. That is to say, rape is a clandestine, normally nocturnal crime, with no one present to tell of it later on, let alone four adult male witnesses. In the civilised world, rape crimes are ascertained by medical evidence; DNA tests, bruises, fingerprints et al. However, the rape ordinance in our part of the world has placed the implacable requirement of not one, but four eyewitnesses of the crime to be present. On top of that, all four have to be devout Muslims. It seems that the formulators of these laws purposely wanted to ensure that no man is ever convicted of the crime of rape in Pakistan. If that was the intent, it has been largely successful. To date, only two convictions have been obtained for men in zina cases (Fahmida-Alla Bukhsh, Shahida Parveen and Mohammad Sarwar). Another condition brought forth by the zina-bil-jabr and indeed by the whole of the Hudood Ordinances, is that the witnesses must all be Muslims and male. The testimony of women is not admissible at all in the Federal Shariat Court, and that of non-Muslims is admissible only in cases where the accused is a non-Muslim. This is in flagrant contradiction with the Article 25 of the Constitution of Pakistan, which states: - (1) All citizens are equal before law... The hypocrisy could not be more obvious. On one hand, we have the sacred document of the State ensuring us that all citizens are equal and that no discrimination based on sex shall be exercised. While on the other, we have a whole set of so-called "religion-based laws" which completely reject the testimony of non-Muslims and women. Why is the testimony of women and non-Muslims rejected? Does being a Muslim ensure that the person in question is automatically honest as well? Conversely, do all non-Muslims have low morals and questionable integrity? Does being a woman by direct consequence also prove that she cannot be trusted, and thus is ineligible to testify in court? Are Muslim men the only ones carrying the burden of being righteous and truthful, and are the followers of all the other religions habitual liars by nature? "Provided that, if the accused is a non-Muslim, the eye-witnesses may be non-Muslims." This is even more discomfiting. Does that mean that a non-Muslim only has integrity befitting the trial of another non-Muslim? What if a crime is committed in a house full of women? What if a rape takes place in front of a dozen women? What if a Muslim rapes a woman in front of a group of non-Muslims? He goes free, untouchable by virtue of gaping holes in the laws that have been framed, laws that we dare call Islamic. A woman is raped every two hours in Pakistan. Yet, only a fraction of the witnesses comes forth to report the crime. What may the reason for that be, one wonders? Besides societal slander, another reason can be sighted. If a woman, who has been raped, charges the assailant with the crime, she must either obtain a confession from him or bring forward four adult male witnesses to corroborate her testimony. As the perpetrator is obviously not going to have a sudden change of heart, she has to supply the witnesses. In almost all the cases, it is impossible to find that number of pious believers who would have stood around and observed the act in the minutest detail. Therefore, a woman is unable to prove her charge, and the accused is acquitted. But that, sadly, is not the end of the story. As the woman has had intercourse according to her own testimony, she is detained on the charge of zina, or adultery. The punishment for that can vary from lashes to stoning to death. Thus, a woman who has been raped and goes to court to report the injustice, can very logically and realistically end up being convicted and killed for adultery, for the transgression of reporting the violation of her honour. Given these circumstances, it is then no wonder that only a handful of victims have the gall to go to the authorities. The scenario given above is not the only problem to be encountered by the victim of rape. Suppose a rape victim accuses her attacker of the charge, and is unable to produce four adult Muslim male witnesses. In that case, she is automatically charged with qazf, or wrongful accusation. The punishment for that can extend to up to 80 lashes. Therefore, a raped woman reports her crime at the peril of being beaten up by law for having the courage to step forth. One wonders why anyone would go to the authorities and run the risk of further mental and physical agony. The laws meant for the protection of women are being exploited to harm them further. The flaws are inherent. The Zina Ordinance was promulgated along with the Hudood laws at the time of Zia-ul-Haq in the name of "Islamisation". However, underneath the pious theological garb was odious political motive, in all its revolting nakedness. The President has currently announced his intent to have the Hudood Laws reviewed in accord with the recommendations of the National Commission on the Status of Women, which last year proposed the repeal of the ordinance. While his resolve is commendable, one must remember that never have impotent men and Pakistani despots fulfilled their avowed ambitions. About the Author(s): See under Our Contributors to find out about the Author(s) of this article. |
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