ISLAMABAD, August 18 2006: A controversial bill seeking fundamental changes in the existing Hudood laws is, finally, being tabled in the National Assembly here today. The action follows a marathon meeting President General Pervez Musharraf held at the Aiwan-e-Sadr the other day to convince the bill’s critics of its merits. The Shaukat Aziz government had, at one stage, decided not to table the bill in the NA after many sitting ministers rose in revolt, fearing a backlash from opposition benches.
The controversial law, framed under General Ziaul Haq is held out as especially discriminatory against women. Ironically, it is being tabled a day after his 18th death anniversary to give it – in the view of one observer – a humane face. The NA is expected to witness noisy scenes when Parliamentary Affairs Minister Dr Sher Afgan Niazi tables the bill. Pakistan People’s Party Parliamentarians, analysts say, may raise objections over the bill as it has been demanding complete withdrawal of these laws, terming them discriminatory against women. Muttahida Majlis-e-Amal, on the other hand, would likely agitate over proposed procedural changes in these laws, terming them un-Islamic.
The revised bill while justifying changes in the Hudood laws says, “We have to be mindful of a fact that even Allah loves those who hide their sins and only those can be punished who commit zina so blatantly that four people see him or her, (or that) he or she needed to be punished as it’s a crime against the society”. But, the bill says we also have to understand that the Holy Quran equally protects the “privacy, prohibits baseless assumptions and inquisition and forbids interference in the life of others”. The zina offence is also being made bailable till the trial ends so that innocent people don’t suffer in jail for years on end – as had been the case until now.
The government in the proposed bill has claimed that it had the lawful right to make laws for those offences whose punishments have not been given in the Holy Quran and that is why, punishment of whipping is being deleted from the Tazir offences. Meanwhile, the ongoing controversy in government circles over these laws has been resolved after Musharraf himself chaired a meeting of parliamentary parties of the coalition government and sorted out differences among the ministers and MPs.
The main demand of these ministers, led by parliamentary affairs minister Dr Sher Afgan, has been met which is that only four adult men would be considered as valid and lawful witnesses in any case of rape or Zina. The first draft envisaged production of four adults without making any discrimination of gender, which had led to serious objections from Dr Sher Afgan supported by Sheikh Rashid Ahmed and Ejazul Haq.
Although, at one stage, the ruling party had decided to kill the bill keeping its political implication in view, Musharraf intervened and called all the treasury benches members and discussed the bill clause-wise. The bill said the Zina and Qazf ordinances have been a subject of criticism by citizens in general and scholars of Islam and women in particular. These include the lumping of the offence of zina with zina-bil-jabr (rape) and subjecting both to the same kind of proof and punishment. This has facilitated abuse with the result that many a woman, who failed to prove rape, has often been prosecuted for zina. The requirement of proof for the maximum punishment of zina-bil-jabr being the same as that for zina has made it almost impossible to prove the former.
According to the bill, the door is also being shut for ex-husbands to use existing laws to harass their wives by claiming they had entered into second marriage without completing the required formalities to terminate any marriage. The bill says there is no hadd for the offence of Zina-bil-jabr. It is a Tazir offence. According to the bill, the definition and punishment of rape is therefore, being incorporated in PPC in section 375 and 376, respectively. The gender natural definition is being amended to clearly provide that rape is an offence committed by a man against a woman.
As consent of the woman is a defence to the charge of rape, it is being provided in the law that such consent would not be a defence if the woman is less than 16 years of age. This accords both with the need to protect the weak, which the Quran repeatedly emphasizes, and norms. The punishment for gang-rape is death. No lesser punishment is provided. The courts hearing such cases have observed that in many situations they are of the opinion that a person cannot be acquitted while at the same time imposing the death penalty is not warranted in the facts and the circumstances of the case. The result is that they feel obliged to acquit the accused in such cases.
To address this concern, the lesser sentence of life imprisonment is being added as an alternative to the death penalty. The procedure for the prosecution of Tazir offences of Zina-bil-jabr and gang- rape – as in all other Tazir offences under PPC – is to be regulated by the Code of Criminal Procedures 1898. The bill says Zina ordinance has been abused to persecute women, settle vendettas and deny basic human rights and fundamental freedom. To check such abuse both in the case of zina and qazf, the CrPC is being amended to provide that only a court of session, on a complaint, may take cognizance of such cases.
The offence has been made bailable so that the accused do not languish in jail during the trial. The police would not have any authority to arrest anyone in such cases unless so directed by the session court. A new offence has also been added in the Pakistan Penal Code, which provides that in case of zina or rape, the identity of the woman and her family members shall not be publicized and violation thereof shall be punishable with six months imprisonment or fine or both.
The bill said the primary objects of these amendments is to make zina and qazf punishable only in accordance with the injunctions of Islam as laid down in Holy Quran and Sunnah to prevent exploitation, curb abuse of police powers and create a just and egalitarian society.
Source: The News
Date:8/18/2006
