Sex and the state

Print edition : December 29, 2006

President Pervez Musharraf with Prime Minister Shaukat Aziz on December 5 at a women's conference in Islamabad, where he promised more legislation to protect the rights of women. - ANJUM NAVEED/AP

The euphoria surrounding Pakistan's new law on "protection of women" ignores the fact that the Hudood laws are still intact.

ON November 16, Pakistan's National Assembly passed the patronisingly titled "Protection of Women (Criminal Laws Amendment) Bill 2006". The Bill, which has since been passed by the Senate, was introduced to the populace in a televised address by President General Pervez Musharraf, who called it a "major achievement". International media, continuing their affair with Pakistan's "enlightened" dictator, also celebrated the new law as a much-awaited respite for Pakistan's rights-impoverished female population. In their euphoria for a "good news story" emerging from an otherwise troubled region of the world, few of the commentators bothered to look at the concrete provisions of the Bill. Even fewer bothered to consider whether the celebrated Bill would assuage the scourge of jurisdictional confusion that exists between the Sharia and civil courts.

The Bill purports to amend clauses in the controversial Zina and Hudood Ordinances, which were promulgated by General Zia-ul-Haq in 1979. As per the provisions of the Bill, only sections of which have been released to the public, rape or zina bil jabr will be tried under the Pakistan Penal Code instead of under the Zina and Hudood Ordinances. This change of jurisdiction, politically spun as rescuing rape victims from the arduous requirement of "producing four adult male witnesses" to accomplish a prosecution, is meant to draw attention away from the fact that the Zina and Hudood Ordinances have not actually been repealed. Adultery continues to remain a crime punishable by death and minorities and women continue to count as half witnesses in hadd cases. The celebrations surrounding the passage of the Bill also ignore the fact that the Council of Islamic Ideology, a constitutional body set up to review the Zina and Hudood Ordinances, explicitly stated in its 2006 report that "piecemeal amendments to the Zina and Hudood Ordinances would not bring them into accord with the Koran and Sunna".

Furthermore, the effectiveness of the jurisdictional changes introduced by the Protection of Women Bill is further reduced by the fact that it introduces the new crime of "lewdness" or "fornication" to the Pakistan Penal Code. Section 496B, Clause 7, of the Pakistan Penal Code, now forbids consensual sex outside of marriage and requires those engaging in it to be punished by five years' imprisonment and a fine of Rupees 10,000. In a lackadaisical attempt to deter false charges, lawmakers have also chosen to include a "qazf" provision in the law that would impose the same punishment on those making false charges of fornication. Happily citing this provision as a built-in mechanism against misuse, lawmakers knowingly chose to ignore the fact that the same provision exists in the Hudood Ordinances against those bringing false charges of adultery and has never once in 27 years been used to punish someone making a false accusation of adultery. Capitalising on the political tractability of the existing jurisdictional confusion, government proponents of the Protection of Women Bill also tout its "firewall" provision that will ostensibly prevent rape victims from being tried under the fornication clause if they are "unable to prove their rape charges".

In an editorial published in Daily Times, Asma Jehangir of the Human Rights Commission of Pakistan termed the Bill "a victory for no one". In her astute discussion of the provisions of the Bill, she pointed out that the unamended portions of the Zina and Hudood Ordinances continued to discriminate on the basis of sex and religion and economic status. Pointing to the law of Qisas and Diyat, which was also left untouched by the Bill, she says: "Murder can be waived or compromised but zina can still be punished with stoning to death. A person who can pay his way out of death penalty or manoeuvre a compromise can be set free but lesser offences can beget imprisonment."

Her emphasis on the class dimension of vulnerability to legal abuse at the hands of the state is an important basis for evaluating this new Bill. Records of women imprisoned under charges of fornication or adultery under the Hudood Ordinances reveal that it is Pakistan's poor women who are most frequently victimised by the state's unchecked power in legislating morality in the name of Islam. Therefore, while the promised jurisdictional changes under the Bill may place a placating Band-Aid on a festering wound, they fail to address the reality that a poor woman who chooses to file a rape charge still faces incredible challenges that are rudely ignored by this politically inspired piece of legislation. The case of Mukhtar Mai, the courageous gang-rape survivor from Meerwala, is a testament to the limited utility of the legal changes sought by the law. The very fact that her rape case was tried not just in a Sharia court or a civil court but also in a "special terrorism court" shows how jurisdictional rules can easily be superseded by governmental directive in an essentially undemocratic system where courts in general have limited legitimacy.

Judging legal changes in Pakistan by evaluating the legitimacy that Pakistan's legal institutions actually possess goes against the predilection of elite Pakistani scholars and their Western counterparts bent on celebrating General Musharraf as the heaven-sent liberal scion saving Pakistan from the mullahs. The elite in Pakistan have little or no reliance on the legal system as a means of dispute resolution. The poor, intimidated by the jurisdictional morass created by the hodge-podge of civil courts, federal Sharia courts and special terrorism courts, lack the material resources and, understandably, the will to navigate a system whose primary aim seems to be to serve the objectives of those in power. In the unlikely event that a poor person is able to secure a conviction from a court, few if any mechanisms exist for it to be enforced against the other party, particularly if they happen to be powerful or command material resources. Predictably, the most high-profile cases ever tried in Pakistani courts are those brought by those holding the reins of government against former rulers accused of corruption. Ultimately, Musharraf's rise to power with the aid of unilateral constitutional amendments sharpens the irony of his being celebrated as someone responsible for instituting the rule of law in a militarised state.

The leniency of the Pakistani public to the legal or constitutional usurpations of power of the Musharraf administration is ultimately also a product of the self-perpetuating cycle of institutional weakness that maintains the status quo. In a simplistic yet illuminating calculus, the Pakistani public, fed up with the slew of corrupt civilian governments of the past decades, supports the military administration because it maintains law and order through force. In turn, the military administration, adept at maintaining its hold over Pakistani politics, refuses to pour the billions of dollars of aid money it regularly receives into the court system, which if truly legitimate and powerful, could check the military's claim to power. The legal system thus remains impoverished, under-funded and ultimately powerless, while the current administration can manipulate world opinion through the pretence of legal changes to gain political mileage. The hollowness of the legal institutions ultimately enables them to be symbolically manipulated as agents of change and harbingers of the rule of law while never actually threatening the omniscient hegemony of the military. One recent instance that demonstrates the farcical status of Pakistan's courts in curbing state power is the imprisonment without charge of dozens of women belonging to the Baloch Bugti tribe in a government effort designed to force their husbands, fathers and brothers out of hiding. Of course, the legal basis for such an action, which no court could possibly sanction, has yet to be explained.

Even more depressingly, the military is hardly alone in perpetuating this cycle. Past civilian administrations, led either by Benazir Bhutto or Nawaz Sharif, have been equally reticent to strengthen a court system that might ultimately be a check on their own power. In the context of the Protection of Women Bill, the liberal Pakistan People's Party(PPP) as well as the Muhajir Qaumi Movement(MQM) has joined the Musharraf administration in supporting the changes and heralding the birth of what is being called a new configuration in Pakistani politics. Indeed, supporting the legislation bears political rewards for both, since it marks their recognition of the reality that in the eyes of the aid-giving West, being "enlightened" means supporting President Musharraf.

The louder the mullah-dominated Muttahida Majlis Amal (MMA) protests against the Bill, the more resplendent the bounty of dollars of which the Musharraf administration, and now even the PPP and the MQM, may partake of. This new coalition of corrupt authoritarian liberals against religious zealots is particularly worrisome if one remembers the denouement of the Iranian Revolution which was presaged by just such a Western-supported political configuration. And what about the Pakistani women in whose name these reforms are undertaken? Stuck between Musharraf and the mullahs, they must accept the meagre scraps of half-hearted changes promised by the Protection of Women Bill, or shudder in fear of an MMA government that will relegate them to their houses and force them into burqas.

To keep this fear alive, since it stands to benefit so much from the ominous threat it represents, the Musharraf administration has done little to thwart the passage of the Hasba Bill in North West Frontier Province. This new Bill, which was adopted by the NWFP provincial government days before the passage of the Protection of Women Bill in the National Assembly, revives the medieval institution of "mohtasibs" or "moral police". In yet another parallel system of justice, these mohtasibs will now patrol the streets of the province to insure that "society is guided by the Sharia". Vigilante groups have already begun the process by standing guard outside universities and turning away women students not covering their heads as well as harassing minorities under a variety of pretexts.

Human rights organisations in Pakistan and abroad have denounced this "give and take" attitude of the Musharraf administration that has now become proficient at maintaining liberal pretences and legitimising itself as the bastion of anti-extremism, while also appeasing the MMA. Civil society organisations such as the Aurat Foundation, the Women's Action Forum, Sungi and ANAA have all protested against the Bill. Minority rights organisations such as the National Solidarity of Equal Rights have highlighted the reality that Hudood laws left untouched by the legislation prevent non-Muslims from being either full witnesses, judges or even lawyers in cases brought under the Hudood Ordinances. According to Amna Buttar, president of ANAA, "the new law removes a noose but fires a bullet" in continuing to retain the many provisions that may be used to persecute women in the name of regulating sex and morality. This equivocation, which sees legislating on sex as a means of ensuring the moral life of society, ignores the reality that moral wrongs when legislated upon by the state give the latter inordinate power in making the lives of ordinary citizens completely vulnerable to unchecked and indiscriminate intrusions and abuses of power.

In the final analyses, the debate surrounding the Women's Protection Bill must focus on the status of the rule of law in Pakistani society. The duplicitous rhetoric of curbing extremism by promoting militarism masks the grotesque mess of parallel jurisdictions and inaccessibility to justice for both male and female citizens of Pakistan. The Asian Development Bank reports that Pakistan received $1.1 billion in United States aid to fight the "war against terror" last year and is scheduled to receive another $900m this year. A total of $3.7 billion has been given to Pakistan by the U.S. since January 2002. It is safe to assume that not a cent of this bounty has been used to revive Pakistan's weak and failing legal institutions. Unless Western powers realise that victory in the war against extremism hinges not on propping up authoritarian regimes but on long-term investment in strengthening democratic and legal institutions, Pakistani women will continue to bear the unjust burden of misogyny and discrimination.