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″]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 “tazirâ€
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
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.