THE Protection of Women (Criminal Laws Amendment) Act, 2006 enacted on Dec 1, 2006 was the culmination of more than twenty-seven years of protests against the Zina and Qazf Ordinances.
Its avowed aim was to bring these ordinances in conformity with the injunctions of Islam and the principles of social justice enshrined in the Constitution. Although it may be interesting to assess whether and to what extent the Act fulfils these objectives, it is perhaps more important to determine what it actually does to protect women.
In the fifteen months since its enactment, no cases have been decided under the Act and its provisions remain judicially untested. Does the absence of reported cases suggest that women are now better protected? To answer this question it is nearly as important to trace the circumstances surrounding the genesis of the Act, as it is to understand its provisions.
The Act amends the Zina and Qazf Ordinances promulgated during the wave of Islamisation in the late 1970s. These ordinances had dramatically altered the law relating to adultery, rape, kidnapping a woman for marriage and buying and selling a minor for prostitution. Interestingly, despite their Islamic underpinnings, these edicts applied to Muslims and non-Muslims alike.
The Zina Ordinance replaced the offences of adultery and rape with Zina and Zina-bil-jabr respectively. Unlike adultery and rape for which only men could be held liable, for Zina and Zina-bil-jabr both men and women were liable to the punishment of Hadd, which entailed whipping or even stoning to death.
This punishment however could only be awarded if four male, adult Muslim eyewitnesses gave testimony against the accused (absurdly for non-Muslim accused only non-Muslim eyewitnesses would suffice). If however the requisite number of eyewitnesses were not available the accused could only be punished with the maximum imprisonment of ten years for Zina and twenty-five years for Zina-bil-jabr. Also, if it transpired in the course of Zina proceedings that the accusation had been false, the false accuser could only be punished in independent proceedings initiated under the Qazf Ordinance.
The provisions of the Zina and Qazf Ordinances had the potential to work against women and did, particularly when a woman married against the will of her family or when she was raped. A woman who married of her own choice could be falsely accused of Zina by her family members and be prosecuted if she failed to produce a nikahnama. A victim of rape could find herself being punished for Zina because she had not raised sufficient hue and cry against her aggressor.
And, a woman who was gang-raped could watch her aggressors walk free because the Zina Ordinance did not prescribe a punishment lesser than death and the court did not feel justified–on technical grounds–in awarding the death penalty! These injustices were showcased in the period 2002-2005 in the case of Mukhtar Mai.
The procedural hardships she faced in trying to bring her culprits to book exposed the shortcomings of the law and the biases of the system and gave impetus to the movement for reform. Perhaps having germinated against this backdrop, the Act naturally focused on rape and on facilitating the judicial process. It deleted Zina-bil-jabr from the books and reintroduced rape in the Penal Code. According to its new definition only men may be liable for rape–which some may argue is retrogressive even though it benefits women! Sexual intercourse between a man and wife may be rape if it is against the wife’s will.
Sexual intercourse with girls below sixteen, whether with or without their consent is also rape–although underage boys are not similarly protected. Most significantly, the testimony of four male eyewitnesses is no longer required to secure punishment for the offence, which may now only range from death, to imprisonment or fine. For persons guilty of gang-rape, the Act provides the alternate punishment of life imprisonment.
The Act also introduces the new offence of fornication, which although identical in substance to Zina, requires the testimony of only two eyewitnesses and is not liable to Hadd but only to imprisonment extending to five years.
The Act has certainly improved the legal process. Unlike the Zina and Qazf Ordinances, which required FIRs to be lodged with the police, the Act allows complaints of Zina and fornication to be filed directly in the courts, with the objective perhaps of discouraging frivolous complaints and potential harassment of victims at the hands of the police. The Act however does not consolidate Zina and Qazf proceedings and a woman falsely accused of Zina is still required to file independent proceedings under the Qazf Ordinance to have her accuser punished.
The Act also does nothing to facilitate proceedings in cases of rape. As with offences generally, proceedings in these cases may only be initiated with a FIR. The Act neither relaxes the evidentiary and procedural rules for women nor mandates the presence of female court officers at any stage of the proceedings.
Legal reform is only an aspect of social progress. It cannot prevent real or imaginary grievances of Zina from being ‘settled’ out of court with the axe, the pistol or the trusty kitchen fire, nor can it wash away the stigma attached to rape, which prevents women from seeking recourse from courts.
The success of any law therefore lies not in its ability to eradicate social evils but in its capacity to act as a deterrent and to provide easy access to justice. Measured against this yardstick, the absence of reported judgments in matters of Zina suggests that the Act may have curtailed frivolous Zina complaints and therefore succeeded as a deterrent.
More disturbingly, the absence of reported judgments in rape cases, suggests that the Act has failed to provide a stimulus to the institution of genuine rape proceedings, and has therefore faltered in providing easy access to justice to the very women it purports to protect. Even though the full measure of the effectiveness of the Act may only be had once it has been submitted to judicial scrutiny, it clearly marks the first, perhaps most difficult step in affording women the rightful and much needed protection under law.