Pakistan: Law and injustice - living with Zia's legacy

Abbas Rashid
Zafran Bibi's commission of Zina has not been established in court. She has been sentenced, on circumstantial evidence, for giving birth while her husband was in prison. The Federal Shariat Court has ruled that such evidence is inadequate.
It has been 23 long years since General Zia-ul-Haq in his relentless drive to seek legitimacy for his widely hated regime promulgated four ordinances in 1979. These were the Offences Against Property (Enforcement of Hudood) Ordinance, Prohibition (Enforcement of Hadd) Order, the Offence of Qazf (Enforcement of Hadd) Ordinance and Offence of Zina (Enforcement of Hudood) ordinance.
The purpose was to acquire some 'Islamic' credentials through the convenient short cut of introducing harsh punishments. It was not his purpose to draw from Islam that which is far closer to its spirit: i.e., equity, justice and relief for the poorest and most vulnerable sections of the population. Indeed, we see very little of that in his 11-year rule. But the variety of punishments introduced included amputation of limbs, flogging and stoning to death.

Whether this reduced the crime rate or raised the moral tone of the nation during or after Zia's long rule, is clear for all to see. Those who argue that this was a consequence of the higher courts not endorsing such punishments should take a closer look at the case of Sudan where they were meted out. The only real consequence of these ordinances and other similar laws was greater oppression of the poorest and the most defenseless.

The Zina ordinance, not surprisingly, has turned out to be particularly oppressive given that the great majority of women are doubly vulnerable - by reason of class as well as gender. It has been used with abandon to frame women and, in a cruel twist, to effectively punish the woman for the crime of rape. It is true that a sentence of stoning for adultery is unlikely to be carried out and has been invariably reversed by higher courts. But, it is equally likely that this will come about after years of incarceration and abuse inside prison. Not to mention the stigma that goes with it.

Zia's doubtful legacy has indeed cast a long shadow. The Muharraf regime's rhetoric of liberalism, necessitated in part by external imperatives, has fallen way short of touching the lives of ordinary people. Take, for instance, the case of Zafran Bibi who was sentenced to stoning to death by an additional and session judge in Kohat, on April 17, 2002. She had, it seems, gone along with her father-in-law to register a case of rape against her brother in law. Her husband has been in prison for many years. But the case that was registered by her father-in-law, with her thumbprint, was against a third person who she termed as innocent and against whom the court could find no evidence.

Meanwhile, a physical examination revealed that Zafran was about 8 weeks pregnant. This contradicted her contention that she had been raped only hours earlier. It is this contradiction that seems to be the decisive factor in the court's understanding that she was guilty of Zina and not a victim of Zina-bil-Jabr and as such should be punished with stoning to death. The case is sub judice and therefore no comment is warranted. But two questions could be asked with regard to Zafran Bibi's situation. Could it be that initially she was far too scared of the consequences for her and the family of reporting the case to the police? Having eventually made up her mind to do so might she have been afraid of being asked why she did not report the case earlier and hence brought the date of the occurrence forward?

In any case, Zafran Bibi's commission of Zina with a particular person has not been established in court. She has been sentenced, on circumstantial evidence, for giving birth while her husband was in prison. We may recall that the Federal Shariat Court has ruled that such evidence is inadequate. Justice Aftab Hussain of the FSC held that a woman could not be convicted of Zina when she pleaded that pregnancy/child birth occurred as a result of being raped. Further, that if the explanation of pregnancy provided by the woman (in her allegation of being raped) is found to be implausible, that implausibility is not sufficient ground to convict her of Zina. This judgment, at least, is true to the spirit of Islam that effectively prescribes punishment only in the most extreme of circumstances, seeking a very high burden of proof and providing ample ground for giving the benefit of doubt to the accused.

There are various ways in which this law has been abused and countless women are condemned to spending years in prison as a result. But who will change it? That such laws were specifically targeted to shore up a dictator's image and had very little to do with the instituting of some kind of an Islamic social order has been obvious from the start. But those who have followed Zia have been unwilling or unable to bring about a change regardless of the nature of the dispensation. The same has been the case with the Blasphemy Law that has frequently been used to settle scores with rivals, intimidate members of minorities and to secure property or employment. The surprising thing is that quarters that are most vociferous in demanding that the law be retained and in no way modified seem untroubled by the base uses to which it is often put and the crimes committed in the name of the Prophet (PBUH) and religion.

Not too far back, General Musharraf had appeared to make a beginning in rationalizing the law by announcing that the procedure for registering such a case be made more stringent. After all, the crime does carry the death penalty. And once a case is registered, often on the basis of fairly flimsy evidence, judges at the lower level find it difficult to ignore the charged mob invariably gathered outside court premises. A guilty verdict is likely to be reversed at the higher level but not before long painful years in prison and sometimes death at the hands of other inmates.

However, in view of protests from those who find that such laws, however, unjust lend them leverage and authority in a society that never seems to opt for them through the ballot, the proposal was unceremoniously dropped. An earlier proposal during Ms Bhutto's term advocating seven years imprisonment for those bearing false testimony in such cases met a similar fate. How does allowing a person to go unpunished for making a false accusation of such a serious nature square with the Islamic precepts of justice and fairness is difficult to say.

In any case General Pervez Musharraf, once he is over his preoccupation with the referendum road show, might well consider looking into some of these procedural and substantive changes in law, in the interest of justice.

Abbas Rashid is a freelance journalist and political analyst whose career has included editorial positions in various Pakistani newspapers.