I wrote a big fat post on this last night, and then it got deleted. But Molly emailed me today with this article, and it’s an important issue that’s definitely worth mentioning, so here we go.
The issue is a little bit confusing, so Ali Eteraz provides us with a handy cheat sheet. The essential issue is a Pakistani law called the Hudood Ordinance (Enforcement of Zina) that has governed much of the law related to women’s rights in Pakistan since 1979. It’s based on Sharia law, and while its requirements for proving rape (four male witnesses must coroborate the survivor’s story) have been given the most emphasis, it also includes various measures related to divorce and sex outside of marriage. Do read the cheat sheet, it’s quite handy.
Liberal Pakistanis wanted to move rape law from the realm of hadd law (Quranic-based and tried in religious courts) into the realm of tazir law (tried in criminal, non-religious courts). This would shift the evidentiary requirement from the testimony of four male eye witnesses to the testimony of one person alone (ostensibly the rape survivor). It would also not punish the rape survivor if she was unable to secure a conviction — as the law stands, if a woman charges rape but the accused is found not guilty, she can be charged with fornication. Under religious law in Pakistan, fornication can be punishable by death.
Progressive Pakistanis also wanted to limit the hadd punishments only to those specified in the Quran. That is, Quranic law explicitly lists particular crimes and what the punishments for those crimes should be. However, some states have allowed their religious courts to extend beyond explicit Quranic law in trying and punishing criminals. Quranic law gives no specific punishment for rape, and so religious progressives argue that rape should be tried in the Pakistani criminal courts, along with crimes like murder and theft. Reformers also proposed that zina (crimes of fornication) be bailable, so that women who say they’ve been raped won’t have to spend time in jail. The bill also adds life in prison as punishment for gang rape, which is an important step. The previous punishment was death and only death, which made judges reluctant to issue convictions.
As Ali’s cheat sheet makes clear, this bill would not have changed Quranic punishments at all. It leaves Quranic law entirely in place, and does not attempt to usurp Quran-given power from the religious courts.
In my opinion, the bill doesn’t go nearly far enough, and in my ideal world we’d get rid of all the regulations that leave women as second-class citizens. But its proposals are better than the status quo, and as Ali points out, this may be reason enough to support it. And while we do what we can to support equality movements around the world, we shouldn’t forget the bravery of those who fight for human rights in their own lands, often facing social ostracism, threats, and even death.
Now, though, the bill is a non-issue, as it has been almost entirely gutted. The outcome? Rape may now be tried in religious and secular courts, instead of only in the religious courts. How Pakistanis will determine which court to turn to isn’t specified. And whether or not the bill will even pass is still up in the air.
Many people are writing about this, and many of them are far more informed than I am. A big thanks, first and foremost, to Ali for keeping me updated on the status of this bill, and for covering it extensively over in his own space. This post, written by Sofyan Sultan, is definitely worth checking out. If you need a teaser, he begins it with:
“In the world of today (or at least most of it) you can no longer own another country as a colony even if you have the force. You can no longer own slaves even if you have the money. You cannot even own an unreasonable amount of land even if you have the land that your forefathers so thoughtfully obtained from the Raj. How much longer then could one hope to continue in the undisputed ownership of one’s women? Sooner or later the challenge had to come to this unilateral right as it already has so many others. That this challenge has come in so unbelievably mild and considerate a form should surely be a matter for thanks rather than indignation.”
These words were written in 1961. Faiz Ahmad Faiz is their author. Forty-five years later their message has not gone through. (…) Fact: man made laws have taken shelter under the name of God, and provisions that have nothing whatsoever to do with religion or Islam have been yoked together under the Zina Ordinance 1979.
Read it all. Really.
I’m taking a fabulous class on gender and Islamic law this semester, and hopefully in a few weeks time will have a better perspective on this. But for now, I thought I’d share a very basic idea that my professor presented on the first day of class, that I think is particularly helpful when talking about Islam and Islamic law. She argued that discussions about Islamic law tend to focus on three levels:
1. The Sacred (what the Quran actually says)
2. State/local politics
3. Lived realities and experiences
While these levels shift and influence each other, dialogue and news about them tend to only focus on one at a time. And when one is criticized, the person on the defensive turns to another as a justification. That is, I may criticize the culture in Pakistan which influences the ill treatment of rape survivors, and the defense will be that it’s Sharia law, so what can we do. I may criticize Sharia law with regard to rape in Pakistan, and the response will be that it’s not actually Sharia law itself, it’s the political decisions in Pakistan that place rape in the realm of the religious courts and which determine things like the four male witness requirement (Sharia law doesn’t specify that the witnesses must be male). I may criticize the state and local politics, and the response is that those things are responsive to the lived experiences of the people on the ground. And on and on.
So I think it’s worth evaluating issues like these on all three levels, and examining the places where those levels overlap and where they don’t. Sofyan Sultan’s article covers the sacred and the political very well, but it’s imporant to also listen to women’s voices on this issue. Muktar Mai is one such voice, and if she isn’t already on your list of heros, add her name now. She was gang-raped by men in a neighboring village, and not only was she brave enough to press charges in the face of Pakistan’s victim-shaming rape laws, but she used the money she got from their conviction (which only happened after international human rights groups campaigned on her behalf when her rapists were initially freed and she was accused of fornication) to open up a school for girls. She’s now a blogger, despite not being able to read or write — she speaks to a BBC reporter, who types her words and publishes them on the Urdu website.
More voices from Pakistani women can be found here. While it can be difficult to be optimistic in the face of events like this, I’ll simply end the post by saying that these women give me hope. And I know that there are many more of them out there.