Women Protection Bill, 2006 (”WPB”) has finally passed, in an overwhelming majority vote, by the Pakistani Senate. MMA in a last attempt to make WPB ineffective suggested 17 amendments, which were all rejected by the Senators. Having already been cleared by the National Assembly, the only thing left, procedurally, for the bill to become law of the land is Presidential consent.
WPB is the first step towards changing the draconian rape and adultery laws, which were implemented by the President Zia-ul-Haq. The present Musharraf government has fought very hard to get these changes through and to make these amendments possible. This is not to suggest that these amendments are in anyway adequate or enough, however, they are the first step. WPB has been severely compromised by the pressure from MMA. They were some changes suggested by them, which have been incorporated in the Bil (text of changes available courtesy of eteraz.org). However, the entire text of the Bill still remains unavailable; therefore, it is very difficult to comment on the same with any certainty.
Ali Eteraz does offer some analysis on WPB and the issues with the same:
“Rape is now tried under the secular penal code, and the Sharia courts do not have jurisdiction over rape/rape-allegations.
This means that rape does not have to be proven by four witnesses (it can now be proven by circumstantial, even DNA evidence). The part on rape is the biggest victory of this bill. Rape has been totally separated from adultery or any other crimes of chastity.
Non-rape extra-and-pre-marital sex acts are still tried by the Sharia courts.
However, “lewdness” (a new offense which includes both adultery and pre-marital sex) will be tried by the secular courts.Yes, that means that two different court systems will have power over adultery and pre-marital sex: adultery/fornication matrix for Shariah courts; lewdness matrix for secular courts.
Those two courts systems will fight over it, and I have no idea how they determine who gets to try them. That is actually the million dollar question. My lawyer friend suggests that it is a judge which determines the jurisdiction. Question is: is that a Sharia judge or a secular judge?�
The analysis further suggests that the matter would fall within the jurisdiction of Shariah court because of the Article 203D and 203DD (which describes the power of Shariah Court). This may not be necessarily true, and these questions of procedural and interpretation of law would only become clear with the passage of time and development of case law under the amended law.
However, it needs to be noted that most of the analysis is based on hearsay and is based on assertions and presumptions from other sources. Nonetheless, the analysis offered does deal with some of the legal and constitutional issues that may/will arise in respect of WPB. The limited text, which is available on Eteraz and the commentary in the newspapers all suggests that even at its best WPB, is extremely vague and there are various ambiguities and loopholes in the same. Any detailed and concrete analysis of legal issues would have to wait until the availability of the draft legislation.
Nevertheless, it would not be wrong to say that the Presidential consent would not be the end of WPB both politically and legally. Politically there is the dilemma of threat by MMA of resigning from the National Assembly. Legally there are issues of constitutional law as well as procedural law attached with this legislation. In context of legal issues, this matter will only be conclusively decided either by the decision of the Supreme Court of Pakistan or by further amendments to the legislation.
Umera Ali is a lawyer and blogs at Pointless Conundrum.
umera, i will sure give a review to your mentioned article sooner or later. Its early in the morning and just done with halwa puri.
I asked that why you as a lawyer failed to see 10.3? If you ask me I dont think I need ANY OTHER excuse to reject old hudood law. The laws are clear ,if still someone try to make it dispute then it’s due to his personal intrest rater something for the nation
@Ahsan Sahib, the 2 links you give are already up on dars-e-quran webstie.If yu check my first reply,you would find the link.
Umera, I still say, the new BILL has nothing to do with women’s rights and their protection and it was all due to political game,western intrest and an attempt to create confusion.
[quote post="437"]in my blawg [/quote]
I have read your blog and that’s why I was able to find a link of orignal hudood law. I thankyou for tht because I am going to send an email to different columnists who are spreading nonsense in the name of mullah bashing. Your link is an open proof to refute their hollow claims.
[quote post="437"]I have given an extensive analysis on the development of classical Islamic j[/quote]
No offense but there is no extensive analysis. You just discussed everything but not the glithces in old law. I think you didn’t read what I mentioned in my last post. Did you bother yourself to go thru ENTIRE OLD HUDOOD LAW? how come you as a laywer can’t comprehend clasues like 8.2 and 10.1-3? I need answers by you or some authentic person to provide solid points to refute that these clauses were used to punish a raped women. When a TAZIR is given then why everyone including musharraf whining about injustice of the old law?
Also i need answer that how new law has comeup with points to give severe punishment to rapist? right now it seems that rapist in zina bil raza will not have as severe punishment as old hudood law.
Please provide me your own analysis with facts and figures and refute old clauses rather linking here and there in your blog. As I said I am one of those who don’t prefer to become victim of media rather prefer to read orignal sources.
P.S: i saw the following title on your blog “Hasba Bill: One More Step Backward”. I can sense why it appears a bad idea for you since you also started the article with following words:
Religion and law is a bad idea. It appears Islamic law and law of the state is a worse idea, especially in Pakistan
I know a secular mind will also say like this without giving any points to support this. However this is an OT issue so wouldn’t say more. However I assume that you’re educated enough that you know meaning of democracy and dictatorship. If WPB can be passed by majority and accept as a ‘democratic move’ then why to show hypocrisy NOT to accept another bill in some other province? Just because it strikes again the law of secularism, it irks you and others and appears as “BAD”?
Please,you guys don’t sound good to condemn mullah party and label them extreemist while you guys yourself demonstrate it with your writings and mentality. When one copies the west then DOES copy good things as well. Bush is not whining that dems cheated in election while there were news tht voting machine behave abnormal in some states, still bush accepted the results.
I think we are far behind from civilized world and our definition of civilization doesn’t go beyond to secularism and so called freedom.
I think we should have a look at what Taqi Usmani sahab has to say about it: here and here
Adnan,
Asifa Qureshi offers a very through and detailed analysis on the subject, you might be interested in reading her paper, which is available here.
The reaserch and development of law in her paper covers extensive grounds on the area and hopefully would answer your questions. (I have covered some of the issues in my blawg, however, my post is not written as a research paper and hopefully Asifa Quareshi’s paper would provide you with the kind of legtimacy on law that you seek.)
Zina-ul-Jabr is not dealt as a crime in Quran and the classical Islamic law on the same is developed by jurist. I have given an extensive analysis on the development of classical Islamic jurists on the issue on my blawg from where you have quoted these provisions. I would suggest reading the post in its enterity.
[quote post="437"]because it is obvious we have difference of opinion.[/quote]
It’s a good thing, isn’t it? I mean no two person could agree on something 100% and sometimes it results a better constructive solution.
[quote post="437"]I feel from Islamic law position that it is incorrect, however, you feel it is not.[/quote]
I don’t understand what you mean by ‘Islamic law position’ so would ask you to elaborate it further.
My only issue which I have been discussing on this forum for more than 2 months that the ammendments in a law[Hudood here] has NO relation with the betterment of Women’s life. It’s rather a political move by Musharraf to deal with local and foriegn issues. By local I mean to create a gap among ARD parties and I see Mush is quite successful in this regard. By foriegn I mean to send a signal to guy sitting in Whitehouse that ‘things have been started according to plan’. The media asusual was used to implement this plan. Geo channel is the most popular channel in Pakistan so it was used to start a program ‘zara sochiye’. I wonder why coudn;t I see ‘zara sochiye’ for anti-feudal version who abuse women more than anyone else in rural areas?. Mukhtaran was not raped by molvis so was Dr.Shazia. Why after 59 years, I don’t see any structure or movement to start an operation against Feudals? India was lucky that he got Nehru who crushed fuedal system. This is why democracy was given more importance over there than anything else and today Indian forigen policy is best in this region,2nd goes to Bangaladesh and then Srilanka. Our rank is almost equivalent to Afghanistan. Today Chinese President visit India fter a decade. India has signed deal with USA and now they are working with China to sign a nuclear deal. Here our leaders are all pumped up against Mullah bashing and giving a reason to laugh to outerworld. Do you read papers where we are heading to? in Econ we are going down so in freedom of Media/Press,corruption is high so is inflation rate.
I used to *love* musharraf and his speeches but later i realized that not everything is green and pretty as it’s being represented. Gora are not fool that they would pour all money after experincing IDEAS2006, they prefer to see econ and other factors which we re still unable to fulfill.
Sorry for distraction. Coming back to topic; IMO as I repeated several times that new law has nothing to do with Women proection specially when it doesnt cover issues like karokari,wani,marrying with Koran etc which are directly related with women of rural areas where fuedals are more holier than a God. IN karachi you hardly hear about karokari or Wanni. AS i said earlier that problem is not with a law but with it’s implementation. The current law actually made more dependant on police and you know more better than me how is our police. Instead of our concerned institutes ,young professionals try to understand the game, they also get fooled by political googlies. Maybe its all media magic which even can make us feel that sun rises from West just because it was said in all news channels of the world.
[quote post="437"]however, you feel it is not.[/quote]
It’s not about our personal feelings. We are not dealing our domestic issues that our feelings count. It’s a nation wide problem where one asks and seeks for the facts and figures. That’s it. I have nothing against you or anyone. Infact I don;t even know you at all.
[quote post="437"]All I have to add is that I have done extensive research on the issue and have a valid reason for my belief [/quote]
No offense but you didn’t provide no such thing which could reflect your words? whatever are the reasons?, share with others.
As I said, I am a neutral entity here and willing to learn what both parties say to defend their point of views. So far I have got NOT a SINGLE concrete reason of conviction about old law is bad and something goody about new law. I might have missed some news source, in that case you can always guide me. I didn’t need to make any *extensive research* like you neither I am asking someone to buy my theory[unlike you]. I rather just put up a document of author of orignal hudood law who have answered the confusion being propagated by a lobby against the law. He also provided statistics while I didn’t find any such statistics by anti-Hudood supporter. As I said, that I am willing to keep my both ears open but everyday in papers I hear childish things by different people whether it’s altaf that ‘molvi kia janay aurtoun k haqooq kia hain’ or by Mush ke ‘mey batata houn hudood kia hay’, reminded me old shoe polish Ad in which teacher sings ‘piyaray bachoun Kiwi kia hay’.
Everyone[including me] and even Mush raised the point that a raped woman has to produce 4 evidences while when I read the reply by old hudood author, I discovered that there is no such case tht a raped woman who have no evidences would be punished anyway coz of absence of 4 witness. I found this link on your blog and according to section 8.2:
at least four Muslim adult male witnesses, about whom the Court is satisfied…[rest can be read on the site]
but as there is also a Tazir clause 10:1
Subject to the provisions of section 7, whoever commits zina or zina-bil-jabr which is not liable to hadd, or for which proof in either of the forms mentioned in section 8 is not available and the punishment of qazf liable to hadd has not been awarded to the complainant, or for which hadd may not be enforced under this Ordinance, shall be liable to “tazir”.
10:2-3 deals with severe punishment to Zani[rapist]
my lowest level of understanding says that if law 8.2 is not being applicable which is called ‘HADD’ then section 10:1 has to be used to solve the case. Same thing was said by the author in this article as well. Now if women are prionsed in jail in name of zina bil jabar then how many agencies or NGOs investiaged privately from police walas about the issue? or do our NGOs and lawyers activists believe that police system is very transparent in Pakistan? I wonder why didn’t you go thru that 10.3? or maybe you can elaborate it further that this is not in favor of women? I am all open to hear you. I also want to ask what is the severe punishment for a rapist. Also tell me with quranic reference tht a person who is involved in Zina bil Raza is less sinner than a person who *rape* a woman. What old law had issues with it and how new law coped with it.
Umera, I am not a lawyer but it doesn’t mean this thing can’t be digested by a non-professional person. As I say that in Pakistan issue is not laws but their enforcement. I used the link given by you in your blog. No other link was used to explain my point. Still I am not being ignorant enough to reject oponents’ claims about old laws. What I see is that whoever is talking about law includnig the president has never gone thru the entire law properly or Mush thinks that Pakistanis are idiot enough that they would believe whatever he would say on TV. *shrug*. Anyway In coming days, I will be hoping tht anti-Hudood law people would provide statistics to put some weight in their statements rather act like kids and blame to mullahs.
[quote post="437"]I am getting really tired of these pointless arguments[/quote]
So far I am seeing pointless debates by anti-Hudood law community who are shouting more than saying anything, as it’s said in Urdu that ‘Khali bartan zyda awaz kartay hain’ *grin*.
[quote post="437"]I’ll upload and also do a detailed analysis of the same.[/quote]
Thanks
Here is the link to the text of Women Protection Bill.
It needs to be read with the amendments which are here.
Adnan,
I am not going to get into an arguement with you about correctness of the Hudood Ordinance, because it is obvious we have difference of opinion. I feel from Islamic law position that it is incorrect, however, you feel it is not. All I have to add is that I have done extensive research on the issue and have a valid reason for my belief and I am sure you have the same for yours. If you can accept the fact, that we can have difference of opinion based on valid reasons (and still disagree), then maybe we can move beyond this point. I am getting really tired of these pointless arguments, which disintegrate into banter.
Secondly, if and when I am able to procure the copy of WPB, I’ll upload and also do a detailed analysis of the same.
sure Umera, I was always a neutral soul for any matter. I would love ti have a copy of new bill. If you can arrange by yor sources then do make a pdf copy and upload it.
There is no displeasure, it just I am not being a victom of media propaganda like others and you. What’s wrong in it? When I can read both parties old law authors and new law authors then why should one ask to believe me on new bill just because it was proposed by another dictator. I think Old law author has removed my confusion about 4 evidence issues. The oponent party can also convince me[us] that why new law is good and old was bad. So far noone including columnists like Ayaz amir were able to comeup with concrete statments rather they re bullying and cursing Mullahs without any solid proof. This is really a shame for a person like Ayaz Amir who has a good reputation among dawn readers.
I have no idea why MMA is not filing constitutional petition, but it can easily be filed based on alleged infringement of Article 227 read with Article 2A of the Constitution. I cannot preempt the decision of Supreme Court. You may be absolutely right and the petition might be dismissed by the Supreme Court. However, you maybe completely wrong and the petition might be successful. Any opinion on the issue, can only be formed once the draft legislation is available. I cannot be expected to speculate on the decision of Supreme Court and make those speculation part of my analysis, when I haven’t even read the entire draft legislation.
How can you expect me or any lawyer for that matter to make analysis of intercities of law, based on hearsay? The analysis in the post only deals with the jurisdictional change of the crimes of rape and adultery, and secondly it deals with the issue of parallel crimes of adultery under hudood ordinance and penal code and the ambiguity in law in that respect. Any analysis, which goes beyond this without reading of the text, would be complete speculation because no one can be expected to quote the correct words of legislation, which are essential to interpretation of law, both substantial and procedural, and are mandatory for detail legal analysis.
All I can say, it must be result of my legal training that I am so conservative in offering legal opinion on the intercities of law, without reading the law. However, the draft legislation does change both these crimes conceptually and it is that change, which forms the core of the analysis in the post. However, once the legislation is available, I would be more than happy to do a detailed legal analysis, which deals both with substantial and procedural implications of this law.