PUKHTUNKHWA TIMES: 01/25/18

Maliha Zia Lari

When Pakistan came into being, it adopted laws that existed in the Indian sub-continent as the law of the land. This included the civil and criminal codes in Pakistan. The offence of rape was part of these adopted laws.

The offence drew controversy in 1979 when the military dictator General Ziaul Haq, who decided to implement an extremely conservative and contentious version of Islamic law in Pakistan, implemented a process from which we are still recovering.

One of the most catastrophic consequences of this process was the promulgation of the Hudood Ordinances in 1979.

The Hudood Ordinances are a set of five ordinances promulgated that were never debated in parliament.

They are perceived to have been hastily enforced without national debate or evaluation and as a politically expedient measure by the martial law regime to justify its unlawful continuance in power.

One of the casualties of this process of ‘Islamisation’ was the offence of ‘rape’ — which originally came under the Pakistan Penal Code.

It was subsequently removed and thereafter placed in the Zina Ordinance 1979 — one of the five Hudood Ordinances.

The Hudood Ordinances, particularly the Zina Ordinances, were severely criticised as being incredibly discriminatory and oppressive especially towards women and other marginalised sections of society.

Women and human rights organisations as well as leading jurists, members of intelligentsia, journalists and academicians, have opposed these laws as being unjust and against the true spirit of Islam.

Even on an official level, (Commission for the Inquiry of Women, 1997 and the Special Committee of the National Commission on the Status of Women) set up to review the situation of women, recommended their repeal unanimously, or with a very significant majority.

Despite this strong opposition these laws were considered ‘un-touchable’ for 27 years due to their ‘Islamic’ nature.

The ordinances manifested in numerous forms of discrimination against women and minorities due to their provisions as well as the manner and method for which they were used.

For example: Testimony of women and minorities excluded as a whole.

Rape and adultery were equated: With rape being considered a ‘form of adultery’

Law of evidence made discriminatory: The law required four adult Muslim men to witness the entire act of ‘adultery’ vis a vis rape – thereby leading to the lack of prosecution and impunity given to rapists.

Previous legal protection to children removed equating puberty with adulthood – removing the age old accepted legal norm that children have an immaturity of the mind to fully comprehend the acts they commit and are thereby granted leniency.

Pregnancy can be used as proof against women: Cases of rape were converted into cases of adultery in case a woman could not prove the rape. Her pregnancy and her reporting of rape were taken as her admission of fornication.

Distinction between ‘attempt’ to rape and ‘preparation’ to rape with the latter carrying a lighter penalty.

Discriminatory definition of adult: A female is considered an adult at 16 or puberty – puberty being interpreted as physical maturity (i.e. age of menstruation, which can happen as early as 9 or 10 years) as opposed to mental maturity, and thereby entitled to adult punishment. Ironically, while a girl child cannot be a valid witness for awarding a Hadd punishment she is considered an adult for the imposition of one. A permanent state of harassment for women: the law as used to harass, exploit and control women throughout its existence. Women were imprisoned under the charge of Hadd and remained imprisoned for years. Investigation shows that women in jail on charges of Zina had been put there by their fathers, brothers and husbands.

Supporters of the law claimed that the intention behind the ordinance was to protect women from heinous crimes such as rape, but the practical application does the opposite.

In reality, it was used to torment women who marry of their choice, wives wishing to get a divorce, divorced women wishing to re-marry or who try to get custody of the children etc — it is a power tool compromising women’s fundamental rights.

The Zina Ordinance was finally amended by the Protection of Women (Criminal Law) Amendment Act:

This law made a number of instrumental and practical changes to directly challenge the injustices that had become part of the system when dealing with such cases: Hadd and Tazir offences/punishments are separated.

Rape (Zina bil jabr) separated from fornication/adultery (Zina) and inserted in the Pakistan Penal. Code (PPC). Fornication introduced in the PPC as Tazir offence.

Procedure for complaint of Zina and Qazf changed with applications being made directly to the sessions court as opposed to an FIR to the police.

Overriding nature of Zina and Qazf Ordinances done away with.

The offence of rape is now in the Pakistan Penal Code 1860.

Rape and punishment of rape fall under Sections 375 and 376 respectively of the Pakistan Penal Code.

This means that the evidentiary criteria and requirement of proof needed will be the same as any other crime, thereby allowing admission of evidence such as circumstantial evidence, forensic evidence (such as DNA) and placing high value on the testimonies of the victims etc.

The punishment for rape is death or imprisonment not less than 10 years or more than 25 years and a fine.

For gang-rape, each of persons shall be punished with death or imprisonment for life.

Section 375 defines rape as:

Rape:

A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions,

(i) against her will.

(ii) without her consent

(iii) with her consent, when the consent has been obtained by putting her in fear of death or of hurt,

(iv) 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

(v) With or without her consent when she is under sixteen years of age.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

This definition of rape makes clear certain aspects of the commission of this crime:

The women/girl must give clear, unencumbered and actual consent to sexual intercourse. Without this consent, it is rape. A girl below the age of 16 cannot consent to sexual intercourse.

This is an extremely important point to note which requires further explanation. The law on rape previous to this section in the Zina Ordinance 1979 defined rape (Zina bil jabr) as:

“A person is said to commit Zina bil jabr if he or she has sexual intercourse with a woman or man as the case may be, to whom he or she is not validly married….”

The words “to whom he or she is not validly married” have been removed in Section 375 of the Pakistan Penal Code 1860.

There is an accepted understanding of the law that if words have been specifically removed from legislation, it is meant to have a specific effect.

Therefore the removal of the requirement of marriage as a defence to forced intercourse means that the relationship between man and a woman is immaterial if sexual intercourse is forced or committed against the consent of a woman – whether she is or is not his wife.

Should we then conclude that regardless of the marital status, sexual intercourse with a girl under the age of 16 is rape?

While it is evident that there is a wide law on rape, which covers important issues of child and marital rape, the issue arises as to the low rate of prosecution.

This unfortunately links up with the earlier discussion relating to the social content of Pakistan.

The implementation of the law and the prosecution of rape cases are conducted within this social context.

Resultantly, police officers, lawyers and even the judges have time and time again been seen to misapply this law.

Investigations are not conducted properly or thoroughly; forensic evidence is not collected correctly or mishandled; incorrect FIRs are registered which do not effectively capture the whole offence or do not report all aspects of the case (whether the police does this through negligence, lack of knowledge or maliciously is subjective).

Further, predominant male lawyers and prosecutors and judges are sympathetic towards the perpetrators and strive for the decision to be in their favour.

Alongside this, in many circumstances, a protective approach was adopted resulting in misapplication of the law i.e. to ‘protect’ the ‘vulnerable’ women through not giving them the status of raped women (by declaring child marriages valid); not registering cases and arranging compromises due to the issues with the legal system and the added trauma that women often go through due to the court case; or pushing for the woman not to ‘shame’ herself and admit in public that she is tainted and thereafter ‘ruining’ her life’.

This attitude is wrong because it further violates the legal rights of the woman and allows impunity to perpetrators.

Whatever the circumstances are, malicious or protective, cases of reported rape and prosecution of rapists are far and few.

Despite the handful of positive cases and case law, the majority of situations result in impunity for the perpetrators.

Recent positive judgements of the Supreme Court of Pakistan in the case of Salman Akram Raja and Tahira Abdullah vs. Government of Punjab 2013 [Link to copy of the judgement] must be implemented across the nation.

This includes police stations receiving rape complaints should involve reputable civil society organisations for the purpose of legal aid and counselling; administration of DNA tests and preservation of DNA evidence should be made mandatory in rape cases; a victim’s statement should be recorded under section 164, Code of Criminal Procedure, 1898, preferably by a female Magistrate; trials for rape should be conducted on camera and after regular court hours; during a rape trial, screens or other arrangements should be made so that the victims and vulnerable witnesses do not have to face the accused persons; and evidence of rape victims should be recorded, in appropriate cases, through video conferencing so that the victims, particularly juvenile victims, do not need to be present in court.

It is extremely important to re-examine the entire scheme, processes and procedures in relation to the investigation and implementation of cases of rape in Pakistan.

The role of the police must be re-examined and better training and sensitisation must be ensured.

It is also important to keep regular monitoring and checks on judgements to eliminate anti-women societal bias.

These steps must be taken to ensure the impunity given to perpetrators of rape must end and victims be given the justice they deserve.

This piece was originally published on April 7, 2014.

PUKHTUNKHWA TIMES

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