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.
[quote post="437"]nobody is talking ’secular crap’ here � [/quote]
Hahahaha I’m loving it! As I said,ignore and move on! The new bill is a secular crap.
[quote post="437"]you dont need to tell me the life history of the prophet thank you[/quote]
Who discussed the life history ?You’re not the only visitor of the site. I think you believe the Internet explorer window which displays the site was just customized for you only? *grin*.
[quote post="437"]adil � i think you should have some kind of policy in place to prevent idiots like adnan from hijacking threads[/quote]
hahaha! Now you would be a dictator like Musharraf,will ask to shut my mouth because I am not accepting baseless research by Umera? You gotta work hard to claim me idiot in my last post in which I refuted Umera claims and yours[on other thread]. I am well aware of ATP policies and ATP policies doesn’t stop me to disagree with you or anyone here including Adil Najam[that's other thing he banned me,after all it's his website].
You have been here for a week but you are not seeing anti-Mullah bashing here. For you that’s sign of wisdom,doesn’t matter me *shrug*.
[quote post="437"]trust me people like him do NOT ADD VALUE to a discussion[/quote]
Omar, do you really work for a newspaper?
Don’t you think you’re being childish enough here? what’re rated as value added comments by you? To bash Mullah? to Bash anything related with Islam, to Praise crap in the name of enlightment and moderation? to reject anything which doesn’t get Synch with your mind? If you dont like it,don’t reply me. What’s the big deal? but don’t be a dictator. Your frustration shows that you got nothing to refute me instead of calling names. Carry on! The regular readers also reading your comments as well *smile*
[quote post="437"]youre probably not used to people giving your BS back to you I suspect? seems like it because my last comment seem to have flustered you[/quote]
hahaha . Your last comment just gave me a laugh because you associated me with MMA party *grin*. It’s a fair game. Your bring your points like other party to refute old law, I would listen you. Don’t be childish enough and start swearing at me to put some weight in your baseless statment but as you said yourself, you can just give BS in return instead of some sensible reply to refute my points.
nobody is talking ’secular crap’ here — you dont need to tell me the life history of the prophet thank you — ilast time i checked this isnt an islamiat lesson — dont force your views on others who disagree with you — if you note the so-called ’seculars’ are constantlt telling you that you dont have to agree with them — but instead of accepting that you go ahead and write a long post about what God will ask them on the day of judgement –
[quote post="437"]adnan dont lecture us on religion � we have enough of that already [/quote]
you guys quit talking secular crap, I would stop talking religion here. Fair enough.
Omar, that’s not for you so save yourself!
[quote post="437"]also dont tell people that god will ask them what they did in this life[/quote]
I had added the emphasis that who’re being addressed. I spoke on the basis of what the Prophet[SAW] had said 1500 years back;’pass even the one verse to others’. Offcourse I didn’t force you to listen me. You can ignore and move on. Those who were addressed would have understood it.
[quote post="437"]you know you sound like a complete apologist for the MMA[/quote]
I know I sound more reasonable because I am discussing on the basis of points[ref of the law]. If you reject something because it’s by ‘MMA’ then it’s sign of extreemism. If you have something to say anything to declare old law evil then you’re welcome otherwise not.
adnan dont lecture us on religion — we have enough of that already — also dont tell people that god will ask them what they did in this life — you know you sound like a complete apologist for the MMA
[quote post="437"]I am really confused[/quote]
Not you fault. Most of seculars I have met and talked were found confused.
[quote post="437"]Section 8 is your charging provision for rape, which is essentially redundant[/quote]
Aha, “Aap apna daam mey Sayaad agaya”. Someone has said right tht “Jhoot k paoun nahhi hotay”.
Umera bibi, were not you and many others on this forum and people of anti-Hudood kept insisting that old hudood law is evil because “it doesn’t allows a raped women to be priosoned due to absence of 4 witness” and since now you have been refuted by your own link or 79’s law, you changed your stand and saying it’s REDUNDANT?tsk tsk!
I tend to agree that it for a layman it appears “redudancy” in a law but a “genuine lawyer”[emphasis added] would consider it good since it’s covering all aspects. Now reason for the redundance of section 8 which actually according to “Hudood” i;e: an Islamic law, let me remind you about a clause of
The Constitution of the Islamic Republic of Pakistan : PART I
# Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan, hereinafter referred to as Pakistan.
Seculars, deal with it!
Islam shall be the State religion of Pakistan [2A]and the Injunctions of Islam as laid down in the Holy Quran and Sunnah shall be the supreme law and source of guidance for legislation to be administered through laws enacted by the Parliament and Provincial Assemblies, and for policy making by the Government.
I think you forgot the constitution or you thought we’re talking about canada?.
1979th law is ACCORDING to 73’s constitionas which gives Quran and SUnnah a supreme source plus it is according to ideology of founding father as well who gave more than one speech to make Islam a supreme source of new state policy making.
Yes it would be a redundant because you’re omitting *Islam*-A law[WPB] which is being appreciated by Bush and Blair can’t be said that it’s Islamic and a sane person can guess why it’s being appreciated by them.
[quote post="437"]Now the question of section 10, section 10 is not an automatic conviction and tazir is not awarded as a matter of right[/quote]
Duh! I quote again ,the 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�.
Where did you graduated from? or you are trying to play with me?[unsuccessful attempt I must say!] This is SIMPLE statment even me can grasp it,forget about professionals. The clause clearly says that if a woman who is not able to provide 4 evidences ,the concerned law authority MUST follow 10.3 and deal the case. If concerned law authority ARE NOT takng care of it then you better curse to law authority rather the law itself. It’s like if a traffic police taking bribe in the name of challan then the clause should be removed from traffic law because they’re violating it. If such mentality of lawyers exist in Pakistan then one shouldn’t mourn on the condition of Justice.
[quote post="437"]However, if you have decided not to understand that point there is nothing I can do about it and we can keep getting into this argument over and over again.[/quote]
Wht you want that I agree with your absurd,baseless,illogical reasons and declare you an efficient lawyer? Right? sorry you didn’t prove that in your post and in replies. You lack in various things despite of having a degree in law.
[quote post="437"]Your opinion is that the law does not need to be amended[/quote]
again a lie. Could you stop putting your words in my mouth? Where did I or anyone said this? A law should be amended ONLY if it has flaws or not able to cope with current affairs. To change the law just because it is against the ideology of secularism and doesn’t give freedom to perform “personal agenda” is not acceptable in Pakistan or in anyother country.
[quote post="437"]which are based Taqi Usmani’s commentary on the law [who is the author of the Ordinance in question], reading of Hudood Ordinance etc etc[/quote]
Taqi Sahib,has given a very precise analysis of current and new law. I passed the link to few of my friends in US who were against old law. they also got convinced that it’s all conspiracy to bring secularism in Pakistan.
[quote post="437"]You believe that the amendment to law is a political gimmick and an exercise to please the western powers, you also belief that it is police that is bad and not the law etc etc[/quote]
Believe? Bibi do you ever read papers? The president brought this law to show to Mr.Bush. Why? First of egardless of the law is Islamic or not,it’s a pakisani law, who the hell is Bush to review our local lws and give the review? if you think I am lying then read the newspapers of that time when Mush gave a statment at airport that two things would be discussed with bush 1)Terrorism 2)Women’s law. Recently blair was here, he praised the law. Every sensible Muslim[Emphassis Added] would understand tht any law which is accepted by Bush and Blair who killed around a million of muslims in iraq and afghanistan CAN’T BE ISLAMIC!
[quote post="437"]I am not going to reply to your comment[/quote]
It’s good for you that you save yourself to become a joke infront of forum readers by giving absurd statments which doesnt even get sync with your own given articles.
[quote post="437"]two months of discussion with various people on the issue have not convinced you otherwise and nothing[/quote]
as I said, you and me are not talking about domestic issues. YOu failed to provide proof to support your points. It’s not my fault bibi. *shrug*
[quote post="437"]I will say will change your mind irrespective of the fact that as you alledge you are a nuetral person.[/quote]
Funny, it shows your frustration. Since I am not agreeing you because your points are childish, I am not neutral? I don’t care:). This forum is visited by thousands of people including Pakistani muslims,non-muslims and non-Pakistan. Anyone with an unbaised mind can review the law and your statments[after reading your secular blog] that what actually you’re trying to impose on others.
Speaking of non-Muslim, the old law was reviewed by an American gora and he also gave a report that Hudood law is NOT evil. I wonder why a non-Muslim gora would say something in favor of a law which appears as ISLAMIC.
Umera Ali, no offense but your *extensive analysis and research* can’t evebe be qualified as a 1st term mid-term assignment of any law school. Please stop asserting that you’re a lawyer hence you’re right rest are just idiots. I am a computer engineer by profession but I[we] know very well that any 10th grade student can beat me[us] to invent some new software methodology and can create something innovative which even a PhD student ls failed to design.
To be honest, I am also not willing to argue further with you because it would be like battling with an unarmed person. Have fun!
p.s: I know several readers here silent and also know several email to Adil about lengthy arguments and sometimes heated debates. Those who are educated,muslims,neutral and cAN speak and just sit silently by saying “Chor yar kuch farq nahi parta”, they should always remember that at the day of Judgement, Allah will ask you that what did you do to obey “‘Amar Bil Maroof wa Nahi Anil Munkir”? What would you answer to God? that you were impotent enough that you couldn’t even raise a voice? God doesn’t save a pious Muslim just because He prays 5 times a day ,fast etc etc because this is all personal prayer. God will punish that person much because he experienced crap in his society and he didn;t do anything to stop it. I am not an armed man so I can’t stop anyone by hand but atleast I can use my words to raise voice against it so I think I can reply to God unlike you that I did do something and God himself seeing all. So comeout of your imaginary world that Paradise is for you because you offer salat.
Omer,
Nobody denied the bigger implications of this legislation and the effect it will have on mind sets. I agree with you that this legislation does make legislative history and it will change mindsets. It is something to be celebrated.
Adnan,
I am really confused with your argument as it keeps going in all directions.
Section 8 is your charging provision for rape, which is essentially redundant because you can never convict anyone under that section. Further, that the provision is against the views held by majority of Islamic jurists is also obviously not important.
Now the question of section 10, section 10 is not an automatic conviction and tazir is not awarded as a matter of right. It is a residuary crime, which has lower evidential burden. However, it does not essentially change the position that if a woman is unable to prove rape, she can be charged for adultery using her complainant as a confession to charge her for adultery. The fact of the matter is that the way law is drafted there is a loophole, which allows for this to occur. However, if you have decided not to understand that point there is nothing I can do about it and we can keep getting into this argument over and over again.
Your opinion is that the law does not need to be amended. You have your reasons for your opinion (which are based Taqi Usmani’s commentary on the law [who is the author of the Ordinance in question], reading of Hudood Ordinance etc etc). You believe that the amendment to law is a political gimmick and an exercise to please the western powers, you also belief that it is police that is bad and not the law etc etc. As I said, in one of my earlier replies, I am going to accept the fact that we have a difference of opinion and I am just happy to accept that position.
However, I am sure you will reply but just want to add at this point that I am not going to reply to your comment because two months of discussion with various people on the issue have not convinced you otherwise and nothing I will say will change your mind irrespective of the fact that as you alledge you are a nuetral person.
i’s sorry umera — the lack of soundness of your analysis doesnt have anything to do with you being a lawyer or your training as a lawyer — for your information i am a journalist and quite a cautious one at that but i am not going to base what I say here on this forum on my professional training — also by your argument any law passed by parliament can be challenged constitutionally which is why that is a very weak argument to use — in any case just because i commented on your analysis doesnt necessarily mean that I am seeking it —
what i am trying to say, umera — and i hope i dont sound immodest when i say this — is that i dont need a lawyer to tell me the impact in general of the legislation’s passage because i know that there will be a wide impact — as a lawyer you will see only the legal intricacies — my view is wider, also legislation changes attitudes and mindsets, which is sometimes a more wider overarching goal and this the legislation will probably achieve
i am not sure if you can comprehend what I am saying but that is my view of the legislation — of course you are free to disagree with it