Laws affecting the rights of women in pak


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Laws affecting the rights of women in pak

  1. 1. The Laws Affecting the Rights of Women in Pakistan: with specific reference to Hudood Laws Presentation by Justice (R) Majida Razvi 1
  2. 2. Constitution of Pakistan, 1973 Art. 4 Right of individual: (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. 2
  3. 3.  Fundamental Rights: Guarantee equality in all spheres of life Art. 8: Laws inconsistent with or in derogation of Fundamental Rights to be void: (1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void. Art. 25: Equality of Citizens: (1) All citizens are equal before law and are entitled to equal protection of law (2) There shall be no discrimination on the basis of sex alone (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children 3
  4. 4.  Art.27 Safeguard against discrimination in services: (1) No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth 4
  5. 5. Principles of Policy Art. 34. Full Participation of Women in National Life: Steps shall be taken to ensure full participation of women in all spheres of national life. Art. 37.Promotion of Social Justice and eradication of social evils: (e) Make provision for securing just and humane conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex, and for maternity benefits for women in employment. 5
  6. 6.  Art. 38. Promotion of social and economic well-being of the people: The State shall- (b) provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood with reasonable rest and leisure. 6
  7. 7. Main Discriminatory Laws in Pakistan Citizenship Act, 1951 Qisas & Diyat Act 1997 Hudood Ordinances, 1979 Qanoon-e-Shahadat All Other Discriminatory Laws 7
  8. 8. Citizenship Act, 1951 In general the language of the Act itself is discriminatory as it speaks only of male Section 10: Only a foreigner female married to a Pakistani is entitled to apply for Pakistani citizenship, whereas, a foreigner male married to a Pakistani women is not entitled to apply for Pakistani citizenship. 8
  9. 9.  Recently, the government has allowed only the children of such couple to get Pakistani citizenship. Recently amendments were proposed by the members of Treasury Bench but the bill was defeated. 9
  10. 10. Qisas & Diyat Act, 1997 Shifting of responsibility from State to Individual (s): Right to waive Qisas or compound the offence of murder by any one of the legal heirs at any stage u/s 309, PPC Absence of mandatory provision for compensation to women victims of violence 10
  11. 11.  Exemption from Qisas to the following u/s 306, PPC: a. When the offender causes death of his child or grandchild how low-so-ever; and b. When any wali of the victim is a direct descendant, how low-so-ever, of the offender 11
  12. 12.  Application of the law of inheritance for the disbursement of Diyat among heirs of the victims, as provided u/s 330 of PPC Mere declaration of Swara/Vani i.e. giving of female relatives of accused in marriage as badl-e-sulh as invalid u/s 310, PPC & no penal clause to that effect In 2005 the Government Introduced some amendments which also provided punishment for violation of section 310, PPC – minimum punishment 3 years – maximum 10 years No provision for women (mother or grandmother) to exercise the right to Qisas on behalf of minor or insane, who is the only wali of the victim u/s 313 (b) 12
  13. 13.  Interpretation of the principles of Qur‟an and Sunnah by the Judiciary as directed u/s 338-F Exercise of discretionary powers by the judiciary without any defined parameters. 13
  14. 14. The Review of Hudood Ordinances, 1979 14
  15. 15. Context of Promulgation of Hudood Ordinances, 1979 Political Legal (Constitutional Guarantees; „Islamization Laws) Socio-cultural (Constitution vs. Customary Laws, e.g. Jirga system, “Honour” Killings) 15
  16. 16. Enforcement of Hudood Laws in Pakistan1. Offence Against Property (Enforcement of Hadood) Ordinance, 19792. Offences of Zina (Enforcement of Hadood) Ordinance, 19793. Offences of Qazf (Enforcement of Hadd) Ordinance, 19794. Prohibition (Enforcement of Hadd) Order, 19795. Execution of Punishment of Whipping Order 16
  17. 17. Key Issues1. The Question arises as to why a law is introduced? Naturally to do justice between the citizens. We have seen, since the introduction of Hudood Laws since 1979 there has been constant injustices to the people. If we see the record, since the introduction the number of Women booked under Hudood Laws were 85%. These Women and some cases Men also languished in Jails for years for no fault that they have committed. As such a law which causes injustice to the people must be removed from the statute books2. Majority of the sections in Hudood Laws are taken from Pakistan Penal Code and only a few sections in each Ordinance are dealing with Hadd Offences which are as follows: 17
  18. 18. Offence Against Property(Enforcement of Hudood) Ordinance, 1979 ……..7/26Offence of Qazaf(Enforcement of Hudood) Ordinance, 1979 ……..5/20Offence of Zina(Enforcement of Hudood) Ordinance, 1979 ….…..6/22The Prohibition(Enforcement of Hudood) Ordinance, 1979 ……..4/33Is it fair that the Tazeer provisions are mixed with theHudood provisions? 18
  19. 19. 3. In the Hudood Laws Section 8, which deals with the production of evidence for Zina and Zina-bil-Jabr is confusing. Since both the offences are distinctive, the required evidence for each of the two should be The women and the man guilty of different and distinctive; adultery or because under the existing Fornication – 2954 law, the victim in Zina-bil- Flog each of them with a hundred stripes. 2955 Jabr becomes an accused, Let not compassion move you which is unjust and against In their case, in a matter the spirit of the Islamic Prescribed by Allah, if ye believe legal system. The law In Allah and the Last Day: actually encourages rape. And let a party Of the Believers Witness their punishment. 2956 19
  20. 20. 4. The law provides same punishment for Zina & Zina-bil-Jabr, which is not according to Quran & Sunnah while Zina, is described in the Qur‟an (Sura Nur 24:2 Surah) Zinah-bil-Jabr is not mentioned in the Qur‟an and hence punishment for Zina is Hud while Zind-bil-Jabr is Tazeer.5. The issue of attainment of puberty should be de- linked from adulthood. How can a girl at the age of 10 years or a boy at the age of 15 years, if she/he attains puberty, have understanding to know the implications of Zina or Zina-bil-Jabr after being enticed away and abused? 20
  21. 21. 6. Another question which arises is whether punishment of Rajam comes under Hadd or Tazeer? And under what conditions should it be awarded, particularly with reference to the Quranic verses.7. Whether the existing Hudood provisions in the Hudood Ordinances 1979, are in accordance with the Islamic Injunctions, particularly with reference to the Federal Shariat Court‟s judgment in Huzoor Bux case, wherein two different Benches gave conflicting judegments; one holding that Rajam is not in accordance with the Islamic injunctions (PLD 1981, 145) and the other stating that it was so (PLD 1983, FSC 255)? 21
  22. 22. 8. Is the provision of only “male witnesses” a correct interpretation of the Qur‟anic verse as the literal translation differs on this point? And whether by providing for only Muslim male witnesses does the law not attach leniency towards the perverse elements who, despite their involvement in such heinous crime, are likely to go totally free or just be penalized with mitigated punishments?9. Is it just that a law made applicable to non-Muslims but they are debarred from being represented by a non- Muslim counsel? Is it fair, equitable and in the spirit of Islamic injunctions as regards testimony, 22
  23. 23. that a non-Muslim witness cannot be judged under the Rule of Tazkiyat-ul-Shahood, and as such the evidence becomes a secondary evidence. The law discriminatory against Muslim witness as no weight is given to the testimony of a non- Muslim. The Law provides that a non-Muslim Judge can preside only when the offender is a non-Muslim. As such the said non- Muslim Judge will be interpreting the Islamic Law in the case of a non-Muslim but he can not interpret the same law in the case of a Muslim offender. There is no rationale to such Law.10. In view of exclusion of non-Muslim as witnesses and presiding officers of the Court, what is the rationale of application of this law to non-Muslims? The law is in-violation of the Constitution as well as the Shariat Act. 23
  24. 24. 11. Is it justified that: The law provides that the case of Zina should be disposed off first and only if it is not And those who launch proved then a fresh A charge against chaste case of Qazf be filed, women, And produce not four which against the witnesses Quranic injunctions (To support their allegations)- (Sora Nur 24-4 ) Flog them with eighty stripes; And reject their evidence 2958 Ever after: for such men Are wicked transgressors- 24
  25. 25. 12. The Nisab figure of 4.457 grams of gold in section 6 of Offence Against Property Ordinance, 1979 was too low to determine theft liable to Hadd, therefore, it should be revised. As to the thief, 742 There must be a nexus Male or female, between this amount and Cut off his or her hands: what the Holy Prophet A punishment by way (PBUH) prescribed. Of example, from Allah, For their crime: And Allah is Exalted in Power, Full of Wisdom. 25
  26. 26. 13. The list of exemptions (section 10 of Offence Against Property Ordinance) wherein Hadd shall not be imposed, have no rationale and are not in accordance with the injunction of Islam.14. Sections 3(1) & 3(2) of Prohibition Order dealing with intoxicants and drugs (such as opium), respectively are overlapping with other legislation 26
  27. 27. 15. Whether the punishment for drinking liable to Hadd was a Qur‟anic punishment or had been derived from Sunnah.16. The rationale of including other offences not related to the Hudood, e.g. “enticing women”, “cohabiting with women” and “selling and using women prostitutes” etc., under Hudood Laws?17. The question before you is whether all the Ordinances are repugnant to Islamic injunctions and require to be repealed and drafted afresh, or could they be modified through some amendments and brought in conformity with Islamic injunctions? 27
  28. 28. Recommendations Given by the Special Committee Setup by NCSWAn examination of the Minutes of all five meetings whichhave been summarized in this report and the considerationof opinion of the members of Committee, including theChairperson, would reveal that out of fifteen (15)members, who have actively participated in thedeliberations regarding Hudood Ordinances and have giventheir views in person and in writing, twelve (12) membershave recommended that Hudood Ordinances should berepealed while only two (2) have recommended that theseshould be retreated but amended with a view to removingdefective parts of it and one (1) member has chosen not toexpress any definite opinion but has maintained thatrecommendations of Committee should be given effect to. 28
  29. 29. This Special Committee, therefore, wishes to record that theMembers of the Committee are unanimous in arriving at theconclusion that the Hudood Laws as enforced are full oflacunas and anomalies and the enforcement of these hasbrought about injustice rather than justice, which is the mainpurpose of enforcement of Islamic law. Consequently, by amajority this Special Committee recommends that all fourHudood Ordinances, 1979 should be repealed and the originallaw with regard to offences mentioned in these Ordinances berestored. However, in order to give due consideration to thosemembers in minority who have recommended amendment tothe Ordinances rather than repealing of it, the SpecialCommittee suggests that if after repealing as recommended bythe Committee, Hudood laws are required to be enforced, thedraft of it should be first widely circulated with a view toseeking opinions of various sections of population and thenthese should be placed before the Parliament for a full fledgeddebate. 29
  30. 30. Impact of Hudood Ordinances, 1979 It was felt that a number of sections of this Ordinance were defective and led to injustice against women. The main defects pointed out were as follows:1. Exclusion of women‟s evidence2. Exclusion of non-Muslim Pakistani citizens‟ evidence3. Exclusion of non-Muslim judges from presiding – unless the accused is a non-Muslim4. Linkage of adulthood with puberty5. Proof of Zina (adultery & fornication) and Zina-bil-Jabr (rape) – same requirements6. Law provides that an offender can retract his statement even at the last moment before implementation of the sentence. The Courts become „functus officio‟. No procedure/forum is provided under the law to deal with such situation. 30
  31. 31. 7. Requirements of witnesses based on religion, to be adjudged on Islamic Principles of Tazkia-tul- Shahood (adult, sane, devout, believing, practising Muslim Men who abstain from major sins)8. Punishment of Rajm (stoning to death), being given as Hadd punishment, is against Qur’anic injunctions9. Even where women report rape, they are charged under Zina Ordinance, therefore the victim becomes the offender – vast majority of women in prison, awaiting trial for years, are booked under Hudood (Zina) law10. Complaints accusing women of alleged Zina, without being tried for QAZF (false allegation), is against Islamic injunctions 31
  32. 32. 11. Pakistani Constitution guarantees that non-Muslims are to be governed by their respective Personal Laws, whereas Hudood Laws (1979), being part of Tazeer (Criminal Law), are applicable to all citizens, including non-Muslims 32