The Laws Affecting the Rights of Women in Pakistan by gfc19530

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									The Laws Affecting the Rights
  of Women in Pakistan: with
 specific reference to Hudood
              Laws

           Presentation
                 by
     Justice (R) Majida Razvi

                                1
     Constitution of Pakistan, 1973

   Art. 4 Right of individual:


     (1) To enjoy the protection of law and to be
     treated in accordance with law is the inalienable
     right of every citizen, wherever he may be, and
     of every other person for the time being within
     Pakistan.


                                                         2
   Fundamental Rights: Guarantee equality in all
    spheres of life

   Art. 8: Laws inconsistent with or in derogation of Fundamental
    Rights to be void: (1) Any law, or any custom or usage having the
    force of law, in so far as it is inconsistent with the rights conferred
    by this Chapter, shall, to the extent of such inconsistency, be void.


   Art. 25: Equality of Citizens:
         (1)   All citizens are equal before law and are entitled to equal
               protection of law
         (2)   There shall be no discrimination on the basis of sex alone
         (3)   Nothing in this Article shall prevent the State from making any special
               provision for the protection of women and children
                                                                                    3
   Art.27 Safeguard against discrimination in
    services:

      (1)   No citizen otherwise qualified for
            appointment in the service of Pakistan
            shall be discriminated against in
            respect of any such appointment on
            the ground only of race, religion, caste,
            sex, residence or place of birth



                                                        4
                  Principles of Policy
   Art. 34. Full Participation of Women in National
    Life: Steps shall be taken to ensure full participation of women
    in all spheres of national life.


   Art. 37.Promotion of Social Justice and
    eradication of social evils:
         (e)      Make provision for securing just and humane
                  conditions of work, ensuring that       children
                  and women are not employed in vocations
                  unsuited to their age or sex, and for maternity
                  benefits for women in employment.
                                                                     5
   Art. 38. Promotion of social and economic
    well-being of the people: The State shall-

       (b)        provide for all citizens, within
                  the available resources of the
                  country, facilities for work
                  and adequate livelihood with
                  reasonable rest and leisure.



                                                     6
Main Discriminatory Laws in Pakistan


   Citizenship Act, 1951
   Qisas & Diyat Act 1997
   Hudood Ordinances, 1979
   Qanoon-e-Shahadat
   All Other Discriminatory Laws


                                       7
            Citizenship Act, 1951
   In general the language of the Act itself is
    discriminatory as it speaks only of male

   Section 10: Only a foreigner female married to
    a Pakistani is entitled to apply for Pakistani
    citizenship, whereas, a foreigner male married
    to a Pakistani women is not entitled to apply
    for Pakistani citizenship.

                                                     8
 Recently, the government has allowed only
  the children of such couple to get
  Pakistani citizenship.
 Recently amendments were proposed by
  the members of Treasury Bench but the
  bill was defeated.


                                              9
          Qisas & Diyat Act, 1997
   Shifting of responsibility from State to
    Individual (s): Right to waive Qisas or
    compound the offence of murder by any one of
    the legal heirs at any stage u/s 309, PPC

   Absence of mandatory provision for
    compensation to women victims of violence


                                                10
    Exemption from Qisas to the following
     u/s 306, PPC:

    a.   When the offender causes death of his child
         or grandchild how low-so-ever; and

    b.   When any wali of the victim is a direct
         descendant, how low-so-ever, of the
         offender

                                                   11
   Application of the law of inheritance for the
    disbursement of Diyat among heirs of the victims, as
    provided u/s 330 of PPC

   Mere declaration of Swara/Vani i.e. giving of female
    relatives of accused in marriage as badl-e-sulh as invalid
    u/s 310, PPC & no penal clause to that effect
    In 2005 the Government Introduced some amendments
    which also provided punishment for violation of section
    310, PPC – minimum punishment 3 years – maximum 10
    years

   No provision for women (mother or grandmother) to
    exercise the right to Qisas on behalf of minor or insane,
    who is the only wali of the victim u/s 313 (b)
                                                           12
   Interpretation of the principles of Qur‟an and
    Sunnah by the Judiciary as directed u/s 338-F

   Exercise of discretionary powers by the judiciary
    without any defined parameters.




                                                     13
The Review of Hudood
  Ordinances, 1979


                   14
     Context of Promulgation of
     Hudood Ordinances, 1979

 Political
 Legal
      (Constitutional Guarantees; „Islamization Laws)
   Socio-cultural
       (Constitution vs. Customary Laws, e.g. Jirga
       system, “Honour” Killings)

                                                        15
     Enforcement of Hudood Laws in
               Pakistan
1.   Offence Against Property (Enforcement of
     Hadood) Ordinance, 1979

2.   Offences of Zina (Enforcement of Hadood)
     Ordinance, 1979

3.   Offences of Qazf (Enforcement of Hadd)
     Ordinance, 1979

4.   Prohibition (Enforcement of Hadd) Order, 1979

5.   Execution of Punishment of Whipping Order
                                                     16
                         Key Issues
1.   The Question arises as to why a law is introduced?
     Naturally to do justice between the citizens. We have
     seen, since the introduction of Hudood Laws since 1979
     there has been constant injustices to the people. If we
     see the record, since the introduction the number of
     Women booked under Hudood Laws were 85%. These
     Women and some cases Men also languished in Jails for
     years for no fault that they have committed.
     As such a law which causes injustice to the people must
     be removed from the statute books

2. Majority of the sections in Hudood Laws are taken from
   Pakistan Penal Code and only a few sections in each
   Ordinance are dealing with Hadd Offences which are as
   follows:
                                                          17
Offence Against Property
(Enforcement of Hudood) Ordinance, 1979            ……..7/26

Offence of Qazaf
(Enforcement of Hudood) Ordinance, 1979            ……..5/20

Offence of Zina
(Enforcement of Hudood) Ordinance, 1979           ….…..6/22

The Prohibition
(Enforcement of Hudood) Ordinance, 1979            ……..4/33

Is it fair that the Tazeer provisions are mixed with the
Hudood provisions?
                                                           18
3.    In the Hudood Laws
     Section 8, which deals with
     the production of evidence
     for Zina and Zina-bil-Jabr
     is confusing. Since both
     the offences are distinctive,
     the required evidence for
     each of the two should be
                                     The women and the man guilty of
     different and distinctive;      adultery or
     because under the existing      Fornication – 2954
     law, the victim in Zina-bil-    Flog each of them with a hundred
                                     stripes. 2955
     Jabr becomes an accused,        Let not compassion move you
     which is unjust and against     In their case, in a matter
     the spirit of the Islamic       Prescribed by Allah, if ye believe
     legal system. The law           In Allah and the Last Day:
     actually encourages rape.       And let a party
                                     Of the Believers
                                     Witness their punishment. 2956
                                                                          19
4. The law provides same punishment for Zina &
   Zina-bil-Jabr, which is not according to Quran &
   Sunnah while Zina, is described in the Qur‟an
   (Sura Nur 24:2 Surah) Zinah-bil-Jabr is not
   mentioned in the Qur‟an and hence punishment for
   Zina is Hud while Zind-bil-Jabr is Tazeer.

5. The issue of attainment of puberty should be de-
   linked from adulthood. How can a girl at the
   age of 10 years or a boy at the age of 15 years, if
   she/he attains puberty, have understanding        to
   know the implications of       Zina or Zina-bil-Jabr
   after being enticed away       and abused?
                                                      20
6.   Another question which arises is whether punishment
     of Rajam comes under Hadd or Tazeer? And under
     what conditions should it be awarded, particularly
     with reference to the Quranic verses.

7.   Whether the existing Hudood provisions in the
     Hudood Ordinances 1979, are in accordance with the
     Islamic Injunctions, particularly with reference to the
     Federal Shariat Court‟s judgment in Huzoor Bux
     case, wherein two different Benches gave conflicting
     judegments; one holding that Rajam is not in
     accordance with the Islamic injunctions (PLD 1981,
     145) and the other stating that it was so (PLD 1983,
     FSC 255)?
                                                          21
8.   Is the provision of only “male witnesses” a correct
     interpretation of the Qur‟anic verse as the literal
     translation differs on this point? And whether by
     providing for only Muslim male witnesses does the law
     not attach leniency towards the perverse elements who,
     despite their involvement in such heinous crime, are
     likely to go totally free or just be penalized with
     mitigated punishments?

9.   Is it just that a law made applicable to non-Muslims but
     they are debarred from being represented by a non-
     Muslim counsel? Is it fair, equitable and in the spirit of
     Islamic injunctions as regards testimony,



                                                            22
      that a non-Muslim witness cannot be judged under the Rule of
      Tazkiyat-ul-Shahood, and as such the evidence becomes a
      secondary evidence. The law discriminatory against Muslim
      witness as no weight is given to the testimony of a non-
      Muslim.

      The Law provides that a non-Muslim Judge can preside only
      when the offender is a non-Muslim. As such the said non-
      Muslim Judge will be interpreting the Islamic Law in the case
      of a non-Muslim but he can not interpret the same law in the
      case of a Muslim offender. There is no rationale to such Law.

10.   In view of exclusion of non-Muslim as witnesses and presiding
      officers of the Court, what is the rationale of application of this
      law to non-Muslims?
      The law is in-violation of the Constitution as well as the
      Shariat Act.
                                                                     23
    11. Is   it justified that:
      The law provides that
       the case of Zina should
       be disposed off first
       and only if it is not      And those who launch
       proved then a fresh        A charge against chaste
       case of Qazf be filed,     women,
                                  And produce not four
       which against the          witnesses
       Quranic      injunctions   (To support their allegations)-
       (Sora Nur 24-4 )           Flog them with eighty stripes;
                                  And reject their evidence 2958
                                  Ever after: for such men
                                  Are wicked transgressors-
                                                                    24
12. The Nisab figure of 4.457
    grams of gold in section 6
    of Offence Against Property
    Ordinance, 1979 was too
    low to determine theft
    liable to Hadd, therefore,
    it should be revised.         As to the thief, 742
    There must be a nexus         Male or female,
    between this amount and       Cut off his or her hands:
    what the Holy Prophet         A punishment by way
    (PBUH) prescribed.            Of example, from Allah,
                                  For their crime:
                                  And Allah is Exalted in
                                  Power,
                                  Full of Wisdom.
                                                              25
13. The list of exemptions (section 10 of Offence Against
    Property Ordinance) wherein Hadd shall not be imposed,
    have no rationale and are not in accordance with the
    injunction of Islam.

14. Sections 3(1) & 3(2) of Prohibition Order dealing with
    intoxicants and drugs (such as opium), respectively
    are overlapping with other legislation




                                                         26
15.   Whether the punishment for drinking liable to Hadd was a
      Qur‟anic punishment or had been derived from Sunnah.

16.   The rationale of including other offences not related to the
      Hudood, e.g. “enticing women”, “cohabiting with
      women” and “selling and using women prostitutes” etc.,
      under Hudood Laws?

17.   The question before you is whether all the Ordinances are
      repugnant to Islamic injunctions and require to be
      repealed and drafted afresh, or could they be modified
      through some amendments and brought in conformity
      with Islamic injunctions?
                                                             27
Recommendations Given by the Special
    Committee Setup by NCSW
An examination of the Minutes of all five meetings which
have been summarized in this report and the consideration
of opinion of the members of Committee, including the
Chairperson, would reveal that out of fifteen (15)
members, who have actively participated in the
deliberations regarding Hudood Ordinances and have given
their views in person and in writing, twelve (12) members
have recommended that Hudood Ordinances should be
repealed while only two (2) have recommended that these
should be retreated but amended with a view to removing
defective parts of it and one (1) member has chosen not to
express any definite opinion but has maintained that
recommendations of Committee should be given effect to.
                                                      28
This Special Committee, therefore, wishes to record that the
Members of the Committee are unanimous in arriving at the
conclusion that the Hudood Laws as enforced are full of
lacunas and anomalies and the enforcement of these has
brought about injustice rather than justice, which is the main
purpose of enforcement of Islamic law. Consequently, by a
majority this Special Committee recommends that all four
Hudood Ordinances, 1979 should be repealed and the original
law with regard to offences mentioned in these Ordinances be
restored. However, in order to give due consideration to those
members in minority who have recommended amendment to
the Ordinances rather than repealing of it, the Special
Committee suggests that if after repealing as recommended by
the Committee, Hudood laws are required to be enforced, the
draft of it should be first widely circulated with a view to
seeking opinions of various sections of population and then
these should be placed before the Parliament for a full fledged
debate.
                                                          29
     Impact of Hudood Ordinances, 1979
 It was felt that a number of sections of this Ordinance
 were defective and led to injustice against women. The
 main defects pointed out were as follows:
1.   Exclusion of women‟s evidence
2.   Exclusion of non-Muslim Pakistani citizens‟ evidence
3.   Exclusion of non-Muslim judges from presiding – unless the
     accused is a non-Muslim
4.   Linkage of adulthood with puberty
5.   Proof of Zina (adultery & fornication) and Zina-bil-Jabr
     (rape) – same requirements
6.   Law provides that an offender can retract his statement even
     at the last moment before implementation of the sentence.
     The Courts become „functus officio‟. No procedure/forum
     is provided under the law to deal with such situation. 30
7.    Requirements of witnesses based on religion, to
      be adjudged on Islamic Principles of Tazkia-tul-
      Shahood (adult, sane, devout, believing, practising
      Muslim Men who abstain from major sins)
8.    Punishment of Rajm (stoning to death), being
      given as Hadd punishment, is against Qur’anic
      injunctions
9.    Even where women report rape, they are charged
      under Zina Ordinance, therefore the victim
      becomes the offender – vast majority of women in
      prison, awaiting trial for years, are booked under
      Hudood (Zina) law
10.   Complaints accusing women of alleged Zina,
      without being tried for QAZF (false allegation),
      is against Islamic injunctions                    31
11. Pakistani Constitution guarantees that non-Muslims are
  to be governed by their respective Personal Laws,
  whereas Hudood Laws (1979), being part of Tazeer
  (Criminal Law), are applicable to all citizens, including
  non-Muslims




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