Analysis of The Sexual Abuse Laws in Pakistan

From the Hudood Ordinances to the Protection of Women Act:

Analyzing Rape Laws in Pakistan

Pakistan has a very complicated relationship with rape. Numerous times their legal response to rape, along with other sexual offences, has earned them a spotlight in the international stag. Pakistan is now notorious for its poor treatment of rape victims and, according the UN and Global Citizen, is constantly rated one of the worst countries for women to live in, making it officially into the ranks of countries like Yemen and Saudi Arabi. How exactly did conditions for women regarding rape become so terrible? Has it always been this challenging for women seeking justice against their rapist? What has been done, if anything, to combat the challenges victims of rape face since the Hudood Ordinances of 1979; and if so, was the attempt successful? Focusing on the Hudood Ordinances of 1979 and the subsequent response to the ordinances, being Women’s Protection Bill of 2006, I will analyze how and if the Women’s Protection Bill made any significant changes to how rape was dealt with in court and if it changed the culture of rape in Pakistan compared to what it was under the Hudood Ordinances. I will start by outlining the history of rape in Islamic Law, giving a brief overview on how Islamic law treated rape. Then, I will explain what set the stage for the rigid implementation of the Hudood Ordinances and Sharia Law in Pakistan. After that, I will outline the Zina Ordinance, which is the section of the Hudood Ordinances that deals specifically with fornication and adultery, and explain the several downfalls of this ordinance. Then, I will go on to describe the case of Mukhtar Mai and how her case brought international attention to rape laws in Pakistan, subsequently influencing the decision to create the Protection of Women Act in 2006. After explaining the Protection of Women Act, I will argue that it failed women in Pakistan and that the judicial set up in Pakistan is not ideal for addressing sexual violence.

To understand the current view of rape in Pakistan, it must be established what the story behind the construction of rape in Islamic Law is. In Hina Azam’s book, Sexual Violation in Islamic Law, she argues that this story begins not with the Qur’an and the Prophet Muhammad, but in the pre-Islamic period because “Islamic legal discourse on sexual violation were themselves unlikely to have been purely “Islamic” in origin.” Many principles, institutions, and practices stemmed from pre-Islamic Arabia and the larger late antique Near East. The previous ethico-legal systems that influenced rape in Islamic Law include Jewish, Latin, and pre-Islamic Arabian. Azam then goes on to say that from the earliest period of Islam Muslim legal authorities did maintain the notion that sexual violence was a punishable crime; incapacity and lack of consent were taken into consideration.

Early Muslim legal authorities in the formative period of Islam used their understandings of the Qur’an and the Prophetic legacy within theological, ethical, and cultural framework to condemn rape. Muslim legal authorities from the later medieval period used the previous works of others and interwove ideas like divine and human claims, as well as sexuality and property, effectively making rape laws more complex. How exactly then, did these seemingly acceptable conceptions of rape become transformed in Pakistan for the worse via the Hudood Ordinances and Sharia Law? A significant event happened in Pakistan that set the stage for this transition; Pakistan gained independence from Britain in 1947.

After being under British rule for 98 years , it is no mystery why the Hudood Ordinances and Sharia Law were implemented in Pakistan. Feeling resentment towards the British and a lack of identity, three constitutions were made; one in 1956, 1963, and 1973. There was one trend that was noticeable; each constitution brought the laws closer in line with Islamic faith. With each constitution that was created, implementation and punishment for offences including rape still fell under Pakistani Criminal Code. It was not until the regime of General Zia-ul Haq in 1977 that adherence to Sharia and the Hudood Ordinances (in 1979) became mandatory. Zia has been credited as starting the “Islamization” of Pakistan by injecting the Islamic faith into the Pakistani Criminal Code. Whatever the repercussions of this are, it is clear that the “Islamization” and strengthening of the Muslim religion via laws was a direct reaction to the British’s past control over Pakistan.

General Zia-ul Haq thus effectively established the Hudood Ordinance when in power, which called for a strict adherence to Sharia Law. Sharia Law, just like any other legal system based on religion, has its own major flaws. These flaws already make the building blocks that rape laws in Pakistan are founded on not at all stable. Sharia Law is derived from the Qur’an and the Sunna (life example of the prophet Mohammad) and was created by Muslim legal scholar to form an interpretation of what they understood to be God’s law. Inherently, all conclusions drawn from their studies were based on the interpretations of individuals, creating several different interpretations of the law and multiple schools of law. Having multiple schools of law all under Sharia in Pakistan created different rulings on similar, if not identical issues, and somehow almost always did not end up working in the rape victims’ favor.

The reason rape victims did not get justice was in part because of the Zina Ordinance. The Zina Ordinance specifically deals with adultery and fornication and adheres to a strict punishment of flogging with a hundred stripes, as stated in the Qur’an. Legal scholars interpreted the section from the Qur’an to punish fornication (having sex while unmarried) with one hundred stripes and to punish adultery with stoning to death. Thus, illicit sex in any sense of the word became a crime that was non-bailable and punishable by death. Previously, illicit sex was considered a personal crime against husbands and fathers, but was now considered a crime against the State.

The Zina Ordinance also did not make a distinction between adultery, fornication, and rape, so all were held to the same standard. The term “Zina-bil-jaber” was used when intercourse occurred without being validly married and without consent, which meant that if coercion could not be proved, the victim immediately became guilty of Zina. This was absolutely detrimental to the female victims of rape. The majority of women in Pakistan do not report rape due to the fact that coercion is extremely hard to prove in court, as it required four male witnesses of the actual rape to testify. As stated above, if the victim cannot produce four male witnesses she automatically gets charges with Zina. Up to 90% of women that report their rape cases end up being incarcerated for Zina as a result of the impossible witness standard to fulfill. Many women faced sexual, physical, and emotional violence from both their families and law enforcement during their rape trial; it seemed as though the cycle of violence towards women in Pakistan was never ending.

This cycle of violence was certainly apparent in the case of Mukhtar Mai. In 2002, in the rural village of Mirwali, a tribal council was called when a 12-year-old boy was accused of having an affair with a 25 year old woman from the Mastoi tribe. The 12-year-old boy denied these allegations and said that three Mastoi men kidnapped and sodomized him earlier that day. The men had made up this story about the child having an affair with a woman from another tribe so that the child would not report their crime. Regardless, the council decided that the boy should marry the Mastoi woman and that, in exchange, a woman from the boy’s family would marry someone from the Mastoi tribe. The Mastoi tribe was against this decision and formed their own council to come up with a new ruling. The new ruling was that Mukhtar Mai, the older sister of the 12-year-old boy, would be gang raped so that the Mastoi tribe could regain their honor by dishonoring the boy’s family. Mai was gang raped by four men for over an hour and no one tried to intervene. The police initially knew of this, yet they deicded to do nothing until Mai’s father filed a report. This case had already gained international coverage when a village elder denounced her punishment on the news, making headlines everywhere. The prime minister ordered for the arrest of the men involved the Mai’s gang rape and gave Mai 500,000 rupees.

After the men were arrested, they were all given death sentences after a trail that lasted three weeks. However, the High Court overturned this decision in 2005 due to lack of evidence and let Mai’s rapists live next to her yet again. This again brought Pakistan into the international spotlight; this case and the treatment of rape in Pakistan was condemned widely by human rights and women’s rights organizations to a point where Pakistan could no longer ignore the backlash.

In November of 2006, the Protection of Women Act was passed in Pakistan. This act was implemented in an attempt to protect women in Pakistan by removing rape prosecutions out of the Hudood Ordinances and into the Pakistani Criminal Code, while also eliminating the eyewitness requirement previously necessary. Unlike under the Zina ordinance, rape is fully defined and seen as a punishable act. It recognizes rape under five circumstances:

(1) against [a woman’s] will; (2) without [a woman’s] consent; (3) with [a woman’s] consent, when the consent has been obtained by putting her in fear of death or of hurt; (4) with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or (5) with or without her consent when she is under sixteen years of age.

Rape was also punishable by death or by serving 10-25 years in prison. The PWA also stated that a victim could not be prosecuted for Zina and that witnesses are not required to establish lack of consent, unlike under the Hudood Ordinances.

While the international community praised this Act as a positive move towards secularism and the overall attitude towards it was optimistic, unfortunately this attitude would prove to be incorrect. There was little to no actual implementation of this Act, and even when it was implemented this Act did not change the overall attitudes or ideals of the culture. In fact, PWA actually increased the amount of honor killings and acid attacks compared to pre-PWA because many were upset that “justice” was not being served like it was before.

Pakistan, with its complex history, has complex issues. Several papers that I have read attempt at the end to suggest a solution to the current challenges facing women in Pakistan; unfortunately, I do not agree with most of them. The judicial foundation of Pakistan as a whole is not secure due to the plurality of courts. There seem to be several systems set up in place at once to address the same issues, thus there is an overlapping of paradoxical rulings, punishments, and interpretations. The purpose of this paper was to not come up with a solution, but rather to illustrate the several hurdles that women face in Pakistan just to get justice. “The journey towards the empowerment of women cannot be understood unless we understand their place in ancient society and how these issues were being handled by the higher authorities to protect them and provide them an umbrella in the name of legal reforms in the patriarchal society.”