Letter to Human Rights Commission of Pakistan on Zina Ordinance

Ms. Asma Jahangir Nov. 28th, 2006.
Human Rights Commission of Pakistan.

Dear Ms. Jahangir,

The Muslim Canadian Congress (MCC) is a grassroots organization of progressive Muslims committed to social justice, separation of religion and state and the social and legal equality of Muslim women worldwide. The MCC considers as part of its mandate, the amelioration of the status of Muslim women and is concerned about recent developments with regard to amending the “Zina Ordinance”, as the organization feels this may adversely impact the legal status of Muslim women globally.

The MCC strongly urges the Government of Pakistan to refrain from making cosmetic changes, as is the case in the Women’s Protection Bill, as this would prevent the law from being reviewed in conjunction with other laws so that comprehensive revisions can be made. The MCC advocates the repeal of the law and a reinstatement of the previous PPC in which a woman could not be convicted of adultery, statutory rape was clearly defined as a crime separate from adultery, and marital rape was duly addressed as well.

Of the five laws compiled under the `Hudood Ordinances’, the Zina ordinance is the most oppressive and discriminatory towards women. Though punishments under the law can only be awarded to adults (a boy who has attained the age of eighteen and a girl sixteen or having attained puberty, which ever comes earlier), it can be applied to a girl as young as eight. This definition flouts all legal principles of protecting children from criminal responsibility till a certain age, which earlier on in the Pakistan Penal Code was 14 for girls, who were not held liable for adultery, even if they had consented to sexual intercourse. Moreover, the law is in contravention to the Convention on the Rights of the Child ratified by Pakistan in 1992.

Furthermore, the law is fraught with legal ambiguities. The most serious flaw being that there is no distinction between adultery and rape. The demarcation line between the two offenses is so fragile that a woman bringing a case of rape to the courts may well be convicted herself of adultery if she cannot prove the rape. The burden of proving rape vests with the woman, who, if unable to prove it, is in effect confessing to unlawful sexual intercourse. To prove the offence of rape, generally corroborative evidence is required that can include marks of violence, medical evidence or third party testimony. To prove lack of consent in a rape case is an arduous task as Pakistani law does not protect a woman rape victim from attacks on her character. To the contrary, the 1984 Qanoon-e-Shahadat (law of testimony) permits such attacks by expressly providing that if a man is accused of rape `it may be shown that the prosecutrix was of generally immoral character’. Thus any attempts made by the Government to change the law cannot be effective unless the evidentiary requirements are amended as well.

Another very serious flaw in the law is that the testimony of women (even if she is the rape victim) and non-Muslims (if the accused is Muslim) is not considered for rape cases, in which the Hadd punishments are to be awarded. Thus in effect the law assumes women and non-Muslims to be unreliable and unworthy citizens.

No matter what changes are made such as the aforementioned Women’s Protection Bill, its inherent assumptions regarding women and its discriminatory essence can never be expunged. It is only
by repealing the discriminatory Hadood laws that respect can be restored to Pakistani women who have thus far suffered enormously under them.

Farzana Hassan
President, Muslim Canadian Congress.
Mississauga, Canada.