The myth that the Hudood Ordinances cannot be
touched without the wrath of the mullahs tearing
the country asunder has finally been laid to rest
with the passage in the National Assembly of the
Protection of Women Act, 2006. That’s good news.

The Bill has still to be passed by the Senate.
The MMA has threatened to resign and the leader
of the PMLQ has graciously offered to resign in
case an un-Islamic element is discovered in the
law. Meanwhile, the president of Pakistan is
exhilarated.

In his statement to the press, he has claimed to
do away with the requirement for a victim of rape
to bring four witnesses "otherwise she is
imprisoned". In similar fashion, he has asserted
in his book that under his rule the national
assembly passed a law banning “honour killings”.
Such killings were always banned; but like all
murders could be compromised unless the court
specifically overruled it.

The president is either misinformed or
deliberately misleading his constituency. The
Hudood laws did not require the evidence of four
male adult Muslim witnesses to punish a rapist
under tazir, which prescribes for punishment of a
maximum 25 years of imprisonment. All trials of
zina and rape are carried out under tazir with
regular rules of evidence applying during trial.
Medical evidence, the victim’s testimony, and any
other forms of proof are all taken into
consideration. However, since zina (all sex
outside marriage) is also an offence, the risk
remained that during investigation if a woman
were suspected of having consented to the rape
the victim was arrested on charges of zina.

This has largely been taken care of by the new
amendments. Zina remains an offence but the
procedure for its complaint has been made
stricter and those making an accusation of rape
cannot be punished for zina. Thus, false
accusations of zina will dramatically drop. The
Select Committee of the National Assembly and the
President has taken a positive first step. At the
same time it is critical to realise that a clear
vision is needed while legislating.

Laws cannot discriminate on the basis of sex or
religion and the objective of criminal legal
system is to enhance the principles of justice.
Orthodox interpretation of Islamic law cannot
come in the way of principled norms of justice.
The remaining portions of the Hudood laws are
discriminatory against religious minorities,
women, and the poor. Islamisation of the criminal
legal system has paved the way to serious forms
of injustices. An important example is the law of
qisas and diyat. Murder can be waived or
compromised but zina can still be punished with
stoning to death. A person who can pay his way
out of death penalty or manœuvre a compromise
can be set free but lesser offences can beget
imprisonment.

The present Bill on the Protection of Women has
made some amends and resisted the temptation of
introducing a controversial clause bordering on
censorship. Initially, it was recommended to
punish anyone disclosing the identity of the
victims or their families, involved in zina or
rape cases. In most cases the press needs to
exercise restraint but a number of victims want
to be heard and it is their right to do so.
Moreover, a number of incidents make news purely
because of the identity of the actor. Indulgence
in immoral acts by those who profess to act as
its custodians is news worthy.

The parliamentary debate in the national assembly
on the Bill was quite revealing. All sides vowed
to abide by Islamic norms, yet had different
approaches in resolving the issue. The speakers
from MMA including Saad Rafiq of the PMLN called
the Bill - a fahashi Bill. In particular, the
women parliamentarians of MMA were most
disparaging of Pakistani society. In their view,
a softer law on zina would open the floodgates to
immorality. They argued that Pakistan was created
to be a theocratic State. They often referred to
the dreams of Quaid-e-Azam Muhammad Ali Jinnah
and appealed for the Hudood Ordinances to remain
intact. Their leaders lamented that like many
Western countries people would start living out
of wedlock and have illegitimate children. In
addition, they asserted that there were fewer
women arrested under zina than was being alleged.

Those who are now convinced that Pakistan was
designed to be a theocratic state were the very
elements who opposed its creation precisely
because they feared it was not to be so. The
Quaid or any of his followers never promoted laws
similar to the Hudood Ordinances. The level of
morality in Pakistan was better prior to the
promulgation of the Hudood laws in 1979. The
temptation to commit immoral sexual acts is not
dependant on penal sanctions but upon the leading
values of the times. Figures on the number of
reported cases show that there were only two
cases of adultery before the promulgation of the
Offence of Zina Ordinance. Since then there have
been hundreds of such cases. As far as the
numbers of affected women are concerned, it is
vital to recall that these were far greater in
the early days of the enforcement of the zina law
and that hundreds are bailed out every week. The
total exceeds the few hundred that were recently
granted bail. The zeal with which the Jama’at
women pleaded for morality is never expressed
when scandals of people belonging to their own
ideological beliefs appear so prominently in the
press.

The passage of the Women’s Protection law is no
victory for anyone. It is a great sense of relief
that fewer women will end up being imprisoned on
trumped up charges. The present amendments have
virtually reduced the Zina Ordinance to only a
few sections. At the same time a more fundamental
issue has to be resolved - the fate of law
making? Is it going to be based on principles of
equality or politicized in the name of Islam?

While there is respite in one area, there are
dark clouds in another. The passage of the Hasba
law has allowed the mullah a free hand in setting
up a network of morality enforcers in the NWFP.
There has hardly been any resistance to it by the
government. It indicates that Pakistan is
following a dual policy, a politics of
give-and-take. A position based on principles is
often seen as extreme, perhaps because it cannot
be whimsical. Instead, politics of convenience
has been the vogue in Pakistan, based as it is on
pure opportunism.

Such enterprise is bound to falter because it lacks clarity and sincerity.