«A collaborative venture of Fanshawe College, the London Coordinating Committee to End Woman Abuse and the University of Western Ontario Gender, ...»
CENTRE FOR RESEARCH ON
VIOLENCE AGAINST WOMEN AND CHILDREN
CENTRE DE RECHERCHE SUR LA VIOLENCE FAITE AUX FEMMES ET AUX ENFANTS
A collaborative venture of Fanshawe College, the London Coordinating
Committee to End Woman Abuse and the University of Western Ontario
Gender, Religion, Sexuality and the State:
MEDIATING THE HADOOD LAWS
IN PAKISTANby Shahnaz Khan This project was supported in part by the Scotiabank Community Grants Program Centre for Research on Violence Against Women and Children 254 Pall Mall St. • Suite 101 • London • Ontario • Canada • N6A 5P6 Telephone: (519) 661-4040 • Facsimile: (519) 850-2464 © Shahnaz Khan ISBN 0-9688655-0-X Copies of this report are available at www.uwo.ca/violence or by order through the Centre.
TABLE OF CONTENTS
The Hadood Ordinance
Context of Hadood Laws
Implications of the Hadood Ordinance
Testimonies of the Women
Kot Lakpat, Lahore (December, 1998) Darul Aman, Lahore (December, 1998) Conclusion
-iiiABSTRACT The Hadood Ordinance of Pakistan, promulgated in 1979 under the regime of President Zia-ul-Haq, provides an example of legislation that allows greater control of women within state sanctioned interpretations of the sacred. In order to secure broader based support, Zia initiated Nizam-e-Mustafa (the system of the Prophet Mohammed), and began a process of Islamization of lawsand social fabric of Pakistan. The stated intent was to define and reinforce the notion of a “pure and chaste” Pakistani citizen. The reality is quite different in a society where police corruption and violence often go unpunished, male violence against women has no legal sanction, and the majority of the population is increasingly impoverished. Although the Hadood laws affect the lives of all Pakistanis, women, especially those of the lower class, are particularly adversely affected. In addition, Islamization further strengthened the ties between Islam, the Pakistani State, and the military.
Although State sanctioned interpretations of the sacred were imposed on Pakistani society in the Zia years, the position of Islam in the body politic and the social body continues to be fiercely contested. It is these contestations around the Hadood Ordinance, particularly women’s experiences of being charged and incarcerated under these laws, that this paper explores. This is accomplished through a discussion of the social and political context in which the law was passed and with information derived from interviews with 14 Pakistani women charged and imprisoned through what have been termed by some as, almost ludicrous legal justifications. I interviewed these women in December 1998. The women were, and possibly still are, inmates of Kot Lakpat prison and residents of Darul Aman (a shelter for women). Both of these institutions are in Lahore. Such accounts are important as they validate individual struggles. Yet it is crucial that these accounts remain tied to the context in which they occur, a context where military as well as weak elected regimes forge alliances with right-wing groups to secure a more broad-based mandate. And those of us who live in the “first world” must remind ourselves that it is our elected governments that have supported these regimes.
The Hadood Ordinance, promulgated by President Zia-ul-Haq in 1979 as a first step towards Islamization in Pakistan, seeks to define and reinforce the notion of a “pure and chaste” Pakistani citizen. Critics of the Ordinance (Rouse, 1998; Shaheed, 1997; Mehdi, 1997; Jahangir & Jilani, 1988; Toor 1997), however, argue that these laws allow families to draw upon the power of the State to help regulate the sexuality of “their women,” thus contributing to the growing incidence of State sanctioned violence against women. This paper presents a brief sketch of Pakistani Hadood laws and examines the social and political context in which the ordinance was passed and some implications of the laws. This paper also gives voice to the experience of 14 Pakistani women whose lives have been affected by the Hadood Ordinance. These women were interviewed during a visit to Pakistan in December 1998 and the early part of January 1999. Their stories, in turn are placed in the context in which the Hadood Ordinance was created and put into force. The intent is to encourage feminist examinations of the conditions which could impinge upon interpretations of the sacred in Pakistan. And feminist challenges can take into account all factors in imagining and promoting interventions for social justice and change. The Hadood Ordinance provides an example of legislation allowing greater control of women within state sanctioned interpretations of the sacred.
The Hadood Ordinance
The Hadood Ordinance subsumes adultery, fornication, rape and prostitution under the rubric zina and treats them as offences against the State. For the purpose of the Ordinance, Zina is defined as “sexual intercourse without being validly married.” Zina-bil-jabr, rape, is defined as “sexual intercourse without being validly married” when it occurs without consent. “Which means,” legal aid lawyer Ayesha Karim (1998) points out, “that the very thin line between a person being an accused and a victim is that of consent.” With the adoption of Hadood laws, for the first time in Pakistan’s history, fornication (extra-marital sex) was rendered illegal and along with adultery, non-compoundable,1 non-bailable2 and punishable by death (Human Rights Watch, 1992: 34).
The level of proof required to convict a man of rape is extremely high and in effect the same as that required to convict for adultery. In the absence of the necessary proof of non-consent, the accused is released for lack of evidence while the woman who has alleged rape is vulnerable to being convicted of adultery. Under the terms of these laws, the rape complaint is itself a confession of zina. If convicted under the Ordinance, the rape victim is sentenced to one hundred lashes if she is unmarried and to death by stoning if she is married (Shaheed &
Mumtaz, 1987). Research documents that not only have thousands of women been charged and jailed under the Hadood Ordinance but that the repercussions of the Ordinance are class-based. That is women who cannot afford lawyers are those most likely to be charged and jailed (Sumar & Nadhvi, 1994). Although many of the prisoners are eventually released, they can face years of incarceration before trial. Moreover, in prison and particularly in the “lock-up,” they are vulnerable to custodial rape and other forms of physical, emotional and sexual torture (Human Rights Commission of Pakistan, 1997, HRW, 1992).
Once convicted, the maximum sentence or Hadd is mandatory. Yet a person’s sentence varies according to the religion and marital status of the accused, the witness, and the evidence on which the conviction rests. In the case of fornication and adultery, if the accused is a muslim and a) confesses or b) there are four adult, pious, male muslim witnesses to the act of penetration (four female witnesses’ testimony will not suffice for Hadd punishment), and c) the accused is married, then the accused must be sentenced to death by stoning. If the accused is a nonmuslim or unmarried and a) confesses or b) the crime is witnessed as described above, the accused must be sentenced to 100 lashes with a whip. The maximum Hadd punishment for fornication, adultery or rape is identical.
Although Hadd punishments have been imposed, none have been carried out to date.
If the evidence falls short of what is required for maximum punishment but the case is still proven, the accused is charged under a lesser class of punishment known as Tazir. Here, unlike in the case of Hadd, women may testify on their own behalf if the judge should so allow. The Tazir punishment for adultery or fornication is up to ten years in prison, thirty lashes with a whip and a fine of an indeterminate amount. The Tazir punishment for rape is up to twenty-five years in prison and thirty lashes. For the purposes of Tazir, no distinction is made between a married and unmarried offender. Insufficient evidence to impose a Hadd punishment may still result in conviction under Tazir. When women are unable to prove rape under Hadd or even Tazir they can be charged with illicit sex under Tazir. According to advocates Asma Jahangir and Hina Jilani (1990), Tazir punishments or public whippings, of women and men, occur frequently (1988). They argue that prior penal laws, even though they gave a protected but secondary status for women, protected them somewhat. Previously only a husband could file a charge of adultery against his wife and could revoke it any time. Marital rape was also an offense under the old laws. With the Hadood laws, rape is subsumed under the category zina so that if coercion cannot be proved, the victim becomes an offender who has enjoyed illicit sexual activity. The raped victim has no right to testify on her own behalf.
Context of Hadood Laws
While international capitalist patriarchies continue to dominate world politics, local and national patriarchal articulations appear to have become more masculine and violent (Saigol, 1997). Moreover, colonial rule strengthened the articulation of indigenous religious and ethnic identity as distinct from and often opposed to the European colonizers (Jalal, 1991). Particularly, South Asian nationalist anti-colonial struggles united religious and non-religious power brokers against colonial rule. Religious authorities thus were important players in the creation of nation states in the sub-continent, and particularly so in the case of Pakistan (Shaheed, 1997). Furthermore, it has been argued that the two nation theory (muslim and hindu), which formed the basis of the partition of the subcontinent in 1947, was a theory identifying two cultural religious groups (Toor, 1997). Yet in the struggle against colonial authority it became a political theory underpinning the state formation of India and Pakistan. Religion was re-asserted as nationalism in Pakistan and the country imagined as a homeland for Indian muslims came into being in 1947 (Saigol, 1997).
Early in its history, Pakistan developed a State structure geared to high defense expenditure and dominated by the non-elected institution of the military (Alavi, 1973). As Sugata Bose and Ayesha Jalal (1998) point out, in this state structure religion and the Pakistani State continue to be linked in a symbiotic embrace. The prominent place of religious identity in the State’s creation has helped legitimize the frequent recourse made to religion by diverse political actors in pursuit of political power. The largely politically motivated emphasis on Islam has progressively undermined the citizenship status of women and non-muslims who have been increasingly confronted by a hostile environment in which to negotiate their rights as citizens (Saigol, 1997). This process peaked during the General Zia-ul-Haq regime of 1977 to 1986 (Shaheed, 1997). Although State-sanctioned Page 3 interpretations of the sacred were imposed on Pakistani society in the Zia years, the position of Islam in the body politic and the social body continues to be fiercely contested (Rouse, 1998). It is these contestations around the Hadood Ordinance, particularly women’s experiences of being charged and incarcerated under these laws, that this paper explores.
In 1977, General Zia engineered a military coup against the democratically elected Prime Minister, Zulfikar Ali Bhutto and became President of Pakistan. His claim to power was supported by right-wing religious parties and by feudal landlords. The latter in particular rose against Bhutto because he introduced agricultural reforms that threatened their power base (Ahmad, 1996). Once in power, Toor (1997) argues that Zia realized his support stemmed from a contradictory and tenuous alliance. In order to secure broader-based support, Zia initiated Nizam-e-Mustafa (the system of the Prophet Mohammed), and began a process of Islamization of laws and social fabric of Pakistan. Islamization further strengthened the ties between Islam, the Pakistani State, and the military.
The needs of the State and its view of Islam were to be backed by the strength of the Pakistani military.
Conversely, the needs of the military and its international supporters were to be legitimated by state interpretations of Islam. General Zia was able to fund his Islamization as he was the beneficiary of millions of United States and Saudi Arabian dollars (AI, 1995; Anwar, 1988). He generously patronized religious groups and gave monies for the building of religious schools.3 Law, religion and patriarchy interconnected and drew their coercive power through the State. The result was a series of retrogressive laws designed to curb rights of women and minorities.4 Such a context has particular ramifications for Pakistani women. As in other nationalist/religious paradigms, women were visualized as the recognized cultural markers of Zia’s Nizam-e-Mustafa and regulation of their sexuality/morality was a crucial component of the equation (Jalal, 1991). In effect, Islamization has increased the State’s power over the lives and liberties of its citizens and brought more people, particularly women, into greater contact with what has been described as an abusive and corrupt criminal justice system (HRW, 1992).