Pakistanis win change in national rape and sex laws, 2002-2006

In 1983, Pakistan’s infamous Hudood Ordinances made it possible for the state to punish Safia, a blind 15-year-old victim of rape. Her crime? She was raped, but could not bring four male Muslim witnesses to prove it. The judge convicted Safia for adultery, ordered public flogging and sentenced her to three years in prison. Women’s activists from across Pakistan took to the streets to protest this judgment and the Hudood Ordinances that made the conviction possible. By 1985, a conglomeration of women’s groups collaborated to form a broad based umbrella group called the Women’s Action Forum (WAF) to lead a movement against Hudood Ordinances. Reflecting on the rising numbers of rape victims suffering from this ordinance, War Against Rape (WAR), a non-governmental organization committed to rape-specific problems, emerged by 1989. Lobbying and pressuring the government to remove anti-women laws featured prominently among WAR’s objectives.

WAR was particularly concerned with the way the Hudood Ordinances dealt with zina, or extramarital sex. The Pakistani president, General Zia-ul-Haq, introduced five Hudood Ordinances through presidential decrees in a bid to force “Islamization” and maintain his shaky grip on power. Many prominent Islamic legal scholars contend that General Zia-ul-Haq’s laws were anything but Islamic. Extensive studies have revealed that only 16 out of 108 clauses of the Hudood laws were strictly related to Islamic Shariah law. General Zia-ul-Haq’s government imposed 85 discriminatory laws in Islam’s name. These laws had disastrous consequences for rape victims. By conflating zina (extramarital sex) with zina bil jabr (sex without consent), they made it possible for rape victims to be prosecuted for adultery or fornication. Under their proof requirements, the burden of proof fell on the accuser. If the rape victim was unable to furnish four ‘adult, pious, upright and honest Muslim male’ witnesses to the crime, the accused were acquitted, and the rape victim was prosecuted and punished for adultery by being publicly flogged or stoned to death. A study published by the National Commission on the Status of Women in 2002 showed that in little over two decades, 80 percent of women in prison were rape victims who were convicted for adultery.

By the turn of the century, WAR’s anti-zina campaign and the broader anti-Hudood law movement was propelled by three factors. First, Pakistan’s growing electronic media sector allowed private TV channels to emerge and broadcast without strict state censorship that had been imposed under General Zia-ul-Haq’s rule (1979-1988). Second, the flow of foreign assistance to humanitarian groups in Pakistan and Afghanistan increased after NATO forces invaded Afghanistan. And lastly, high profile rape cases such as the Aladdin rape case (January, 2002) and the Mukhtaran Mai case (June 2002) occurred. WAR and affiliated women’s groups of WAF were able to use these factors to rejuvenate their campaign.

Between 2002 and 2006, they organized several press conferences, discussion forums, seminars, public protests, and consultation sessions for parliamentarians. Using new media, they were able to film and distribute documentaries, stage commercial plays, and participate in popular radio shows and widely watched debates on TV. They also wrote articles for widely circulating national dailies and popular blogging sites. By doing so, they were able to generate discourses on a taboo subject of sexual violence for which Urdu and other regional languages have no distinct word. And the Arabic substitute, zina, is inadequate because it is alien to languages spoken in the Indian subcontinent, and is not usually used by rape victims to describe their condition. As the ‘Een-Jee-Ooh’ community became more pronounced in national discourse and Mukhtaran Mai received awards at home and abroad, generals in Pakistan’s corridors of power realized that portraying Mai as the ‘rape victim as Canadian-nationality-seeking opportunist’ was not going to work. The government was compelled to act as women’s activists demonstrated their street muscle, and their campaign garnered support from international human rights organizations like the Human Rights Watch and Amnesty International and popular politicians and human rights activists like Benazir Bhutto, Sherry Rehman, and Iqbal Haider.

Reflecting on this desire for tangible action, General Musharraf’s government passed the 17th Amendment to the Constitution in 2003 to make women’s reserved seats 17 percent of the total seats in the National Assembly. And in September 2004, the Ministry of Women’s Development was made independent from the Ministry for Special Education and Social Welfare.

However, as anti-zina campaigners remained adamant on the zina point, the government was forced to accede. On December 1, 2006, a narrow majority helped pass the Protection of Women Act (PWA). Many lawmakers from Islamist political coalition of Mutahida Majlis Amal (MMA) opposed the move in parliament. And protests against PWA broke out across the country, with as many as 20,000 Islamists joining them.

The PWA amended the zina and qazf ordinances, but left the other three Hudood Ordinances intact. In legal terms, this meant that a woman who reported rape would not be prosecuted for adultery. This is because PWA made a clear distinction between ta’zir (punishment decided by a judge) and hadd (punishment decided by God’s unchangeable law). For rape cases, the hadd punishment was repealed. Marital rape became a crime; and sex with a girl under sixteen was deemed rape. Proponents of the anti-zina movement like Sarah Zaman, WAR’s director, publicly welcomed the move by terming it a ‘step in the right direction.’ Other stalwarts of the larger anti-Hudood movement were disappointed that the Hudood Ordinances were not fully repealed, the definition of adult was not altered to 18 years of age for the adultery clauses, legal discrimination against witness statements of women and minorities in non-rape cases persisted, and corporal hadd punishments such as lashings and stoning to death remained unchanged.

Although the PWA did not alter other discriminatory clauses of the Hudood Ordinances and many women’s rights activists rejected it, it was significant because it attempted to make purportedly Islamic legal processes subject to negotiations for new social contracts. In summation, Pakistan’s anti-zina ordinance campaign was successful in restoring rape as an offense under Pakistan’s penal code, reduced the likelihood of a rape victim’s prosecution for adultery or sex outside of marriage, and decreased the burden of proof on the rape victim. More importantly, in terms of process related goals, the campaign succeeded in creating popular discourse about women’s human rights and their legal problems, and how these problems must be addressed by the state.

Their momentum enabled the wider movement for women’s rights in Pakistan to flourish. In recent years, Pakistan’s parliament set up a cross party Women’s Parliamentary Caucus (WPC), and passed laws on issues including domestic violence and sexual harassment at the work place.