Grotesque miscarriages of justice now becoming standard
by Sahiba Sumar and Khalid Nadvi
On 7th November 1987 a court in Karachi sentenced a woman of twenty-five (Shahida Parveen) and a man of thirty (Mohammed Sarwar) to death by stoning. The heinous crime for which these two have been charged and have met such harsh punishment is that of "zina-bil-jabr" (which is considered close to the concept of rape). The case is not however so simple.
The woman had been divorced by her first husband. Divorce papers had been signed in front of a magistrate, which was not registered in the local council office by the husband as required by law, and was therefore, not legally binding. Unaware of this, Shahida sat out her period of "idat" (the traditional period of ninety-six days before which a woman cannot remarry following divorce, as laid down by the Quran) with her parents in Lahore. Subsequently, she remarried. Shahida had an affidavit attested by a magistrate in Lahore to confirm her status as an adult free to marry whosoever she wished. As far as she was concerned she was on safe ground.
Sentenced to stoning to death
Her first husband, rebounding from a failed attempt at a second marriage, decided he wanted his first wife, Shahida, back. Given that he had not had the divorce documents registered, his marriage to her was still legally binding. Hence, her second marriage to Sarwar was by definition "zina/zina-bil-jabr" (adultery/rape). Hence stoning to death.
Clearly, whatever the legal niceties of the case maybe, there has been a serious miscarriage of justice. Not only is the sentence reprehensible, but by all norms of social behaviour and justice, the woman and her second husband are innocent.
Sadly, such miscarriage of justice have been quite common since the martial law government in Pakistan introduced the Hudood Ordinance in 1979 by a promulgation. The present elected government confirmed the law on the statute books on coming to power in 1985.
The background to the Hudood Ordinance lies in the desire of the Pakistani government to bring laws in Pakistan in conformity with the Quran and Sunnah (the sayings and deeds of the Prophet). It is an integral part of the much heralded Islamization process presently taking place in this country.
The Hudood Ordinance deals with the offenses of prohibition (consumption of drugs and alcohol), "zina" (rape, adultery, fornication), theft and "Qazf (perjury). It is with regard to zina that the Hudood Ordinance has been most controversial.
Zina
Prior to 1979, adultery and fornication were not crimes against the State. Under the Hudood Ordinance both are now serious offenses liable for the heaviest of punishment death, and that also by stoning.
"Zina" is defined as wilful sex between two adults who are not validly married to each other. Where sex takes place against the will or consent of a person (either man or woman), or by use of force, or where one person is falsely led to believe that his/her partner is validly married to him/her, is defined as "zina-bil-jabr".
Both types of zina are liable to the "Hadd" punishment (stoning to death in public) if either a confession is obtained, or if the actual act of penetration is witnessed by four adult, pious, and forthright males. Failing this the lighter punishment of "Tazir"
(rigorous imprisonment and whipping) applies. "Tazir" punishment is given when despite there being no witnesses, or confession, the court is convinced that "zina" or "zina-biljabr" took place.
The implications arising out of the Hudood Ordinance are severe, and its interpretation by the courts has led to serious miscarriages of justice for women. Whilst "zina" effectively applies to adultery or fornication and "zina-bil-jabr" to rape (either by the man or the woman), the onus of providing proof in a rape of a woman rests on the woman herself. If she is unable to convince the court, her allegation that she has been raped is in itself considered as a confession of "zina" and the rape victim effectively implicates herself as is liable to punishment.
Rape victims punished for adultery
Furthermore, the woman can be categorised as the rapist herself since it is often assumed that she seduced the man.In fact, such cases have occurred where a rape victim is herself punished for "zina" while the rapist roams the streets.
In July 1983, Safia Bibi, an eighteen year old blind girl, raped by her landlord and his son, and subsequently pregnant, was sentenced by the trial court to 15 lashes (to be administered publicly), plus three years imprisonment for "zina". Unable to positively identify her assailants, the rapists were acquitted of the crime. Similarly, a thirteen year old orphaned girl was raped by her uncle and his son and became pregnant. Unable to convince the court that rape had occurred, she was instead awarded the tazir punishment of 100 lashes plus three years rigorous imprisonment for "zina"; the fact that she was pregnant being proof for the court that sex outside marriage had taken place.
Various other types of miscarriages occur in practice. A husband can file FIR (First Information Report) with the police alleging that his wife has left him with another man. On the strength of this allegation the wife and her alleged lover are arrested and sent to jail to await trial. This is an extremely powerful lever of control that a man can, and often does, use to subjugate his wife.
Photo by Sheba Chachhi ried neighbor. On the basis of this FIR, Roshan Jan was arrested and has been in jail, without legal aid, awaiting trial for "zina".
For example, if a woman files for divorce against her husband and leaves her home (as required in law), her husband can file an allegation of "zina" against his wife if she moves into a household which has a man other than her blood relative. In early 1987 Roshan Jan (24 years) filed for divorce against her husband on the grounds of sever physical mistreatment, and moved into her neighbor's house. Her husband lodged an FIR alleging that she was committing "zina" with the married neighbor. On the basis of this FIR, Roshan Jan was arrested and has been in jail, without legal aid,awaiting trial for "zina".
Woman accused of raping husband
Even if a divorce document is attested by a magistrate, if the husband fails to register it with the chairman of the local council as legally required, the divorce is invalid. If the woman is unaware of this and subsequently remarries she can be prosecuted for "zina". Furthermore, in such a case the woman can be accused of "raping" her second husband (zina-bil-jabr) on the grounds that she mislead him into believing that she was validly divorced. The Shahida-Sarwar case, mentioned above, is one such example
Abducted women charged with adultery
One of the most frequent circumstances under which "zina" is alleged to have occurred is in cases of elopement. Of the 44 women in Karachi jail charged with "zina", over half are accused of having committed "zina" due to abduction. The assumption being that with any couple who elope (or as is absurdly stated where a woman is abducted) sex must have taken place, and they are thereby liable to prosecution for "zina".
Eighteen year old Zahida is one such case of being charged with "zina" on the grounds that she ran away with her fiance. Her step mother wanted her to marry an elderly man (who was willing to pay a higher bride price). Zahida refused and eloped with the intention of marrying her fiance secretly. Her father lodged an FIR of abduction the same day and the police picked them up at 4 a.m. They were charged with "zina". Both are now in jail. Zahida's case is representative of many other cases with similar circumstances.
If the accused parties in a "zina" cannot be found, it is quite common for the police to arrest close relatives (usually elderly parents) who are charged with being accomplices to "zina". They are thereby liable to the punishment of "tazir" (lashes and rigorous imprisonment).
Elderly parents whipped for children's 'crimes'
Naikam Bibi (60 years old) is an illustration of such an accusation. Her son ran away with an unmarried woman. The girl's family, unable to trace the couple lodged a complaint against Naikam Bibi and her husband as accomplices to "zina". Both she and her husband are now in jail, without legal support and under the threat of the punishment of whipping (despite being over 60 years old). Again it is assumed that the two who ran away have necessarily committed "zina". There are at least three such cases in Karachi jail in which elderly parents have been accused of being accomplices to zina".
Of the 44 women in Karachi jail accused of "zina", at least 36 are cases with circumstances similar to those described above. Clearly, therefore, the present interpretation of the Hudood Ordinance leaves much to be desired. Furthermore, of those 44 women, at least 17 have been in jail for over a year, some even five years, awaiting trial. Bail in cases of "zina" is usually set at Rs. 20,000 - 30,000 (US$1,000 1,500) a sum which is beyond the reach of most of the accused, given that they all come from low-income social backgrounds. As it is, bail could realistically only be furnished by the husband or the father, and it is they who are often the complainants. Consequently, without I he economic support of either the husband or father, the women are left to fester in jail. In cases where hail has been furnished by the husband, it often becomes a powerful weapon to threaten the wife into submission. If the wife "steps out of line" he will withdraw the bail and she will be sent back to jail.
Parveen's (18 years old) husband left her with her in-laws and took up a job in the Middle East. Her in-laws, in debt to a creditor, agreed to give her in exchange in order to clear the loan. Her husband, on returning, filed a complaint of "zina". Parveen was arrested. Her husband then furnished her bail, but at the time of returning to his job in the Middle East, cancelled her bail, thereby sending her back to jail.
Bail used as weapon by husband
In Ghulam Sakina's (aged 55) case, bail has been used as a weapon by her husband. Ghulam Sakina and her husband had been falsely arrested as accomplices in a "zina" case. Her husband obtained bail and, eventually, bailed Sakina out. In the time that lapsed between arranging for the bail and getting Sakina out, her husband had found himself a lover. Sakina says "this was nothing new for my husband; he is always bringing women home, this time the difference was that he could avoid arguments with me by cancelling my bail." He did exactly that and Sakina was back in jail. Since Sakina doesn't have a lawyer, it is unlikely that her case (in which she has been falsely implicated) is going to come up for trial in the near future. As her husband is unlikely to bail her out, Sakina is doomed to remain in jail.
According to the data collected in 1982 by the Women's Division, Government of Pakistan, there were a total of 70 female convicts in the whole Pakistan. Today, there are 67 alone in Karachi jail and a further 24 in Sukkur jail (figures of which have been collected by independent observers). This rapid increase in numbers, and the development of a new jail solely for women in Larkana, shows the increasing awareness amongst men of the powers that the Hudood Ordinance has placed in their hands. Although the Hudood Ordinance was promulgated in 1979, it seems that now, men have become more confident of the manner in which they can get away with the sexual exploitation of women, rape and the ways in which they can control the lives of their wives and daughters.
It is also clear that the women now in jail share a low income social background. It is commonly acknowledged that women from low income communities face the greatest degree of sexual and social oppression. Most of them are unaware of their civil and legal rights, and for that matter the stipulations of the Hudood Ordinance. It is precisely because of their lack of awareness that women in jail are more vulnerable, weaker, and prone to harassment in every way. The jail authorities have in their own minds already convicted these women and they are treated like criminals. The ponderous legal system and lack of legal aid perpetuates these conditions for women under trial.
The Hudood Ordinance has without a doubt put Pakistani women into the hands of an oppressive legal order. The manner in which it has been used, coupled with the ambiguities within it, clearly show that the women's security and rights are far lower today than ever before. The Hudood Ordinance unquestionably hangs like the sword of Damocles over the head of all women in Pakistan. This repressive legislation must therefore be repealed and the evils perpetuated be rectified.
Please write letters of protest:
c/o Women Living Under Muslim Laws
34980 Combaillaux (Montpellier) France
and
c/o Women Resource Centre
Shirkat-gah
18-A Mian Mir Road
P.O. Mogalpura
Lahore -15, Pakistan