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Pakistan official religious court contradicts secular laws on womens rights

2 January 2011

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The Express Tribune, 1 January 2011

Women’s voice: Abolition of Shariat court, CII demanded

Women Action Forum demands govt to abolish Council of Islamic Ideology, Federal Shariat and Apellate Shariat Court.

ISLAMABAD: The Women Action Forum (WAF) on Friday strongly demanded of the government to take serious initiatives in abolishing the Council of Islamic Ideology, Federal Shariat and Apellate Shariat Court, according to a press release.

The forum urged the parliament to immediately initiate legislative measures to repeal all discriminatory laws against women and religious minorities (such as Blasphemy Laws, Hudood Ordinances, Qisas & Diyat and all clauses under Sections 298 of PPC that single out and persecute a religious minority).

The members of WAF include Nasreen Azhar, Dr Zarina Salamat, Arifa Mazhar, Aqsa Khan, Memoona Rauf Khan, Nageen Hyat, Nigat Hasibullah,Dr Sarah Tirmazi, Reema Aftan,Khalida Babri, Najda Khan, among others

They said these structures were created unconstitutionally and undemocratically to strengthen the military and political dictatorship of
Ziaul Haq.

“We, the members of the Women’s Action Forum, strongly condemn the Federal Shariat Court’s verdict on 22.12.2010 that declared four clauses (11, 25, 28 and 29) of the Women Protection Act 2006 as unconstitutional. While the clauses may appear to make no substantive difference to the law, the implications will be far reaching, as by striking down sections 11 and 28 the verdict insidiously reintroduces the overriding effect of Zina and Qazaf Ordinances which the WPA had removed. It also confuses the issue of separation of rape from zina that the WPA had established,” they stated.

They expressed their grave concern over the governments and political parties’ failure to take concrete initiatives in abolishing and repealing parallel judicial systems and institutions that are only “political tools for extremist forces to expand their power despite consistent requested made by women’s movements and human rights organisations.”

The members of WAF were of the view that the FSC’s verdict is both political and anti- women in undermining the twenty seven years struggle of the women’s movement to repeal the Hudood ordinances. To gain religious-political power the extremist forces/elements are targeting women to pursue their nefarious designs of encroaching on state institutions.

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The Daily Times, December 24, 2010

EDITORIAL: Do we need a moral police?

Women’s rights groups as well as the National Commission on the Status of Women have come out strongly against the verdict of the Federal Shariat Court (FSC) that seeks to restore the primacy of Hudood laws in cases relating to the offence of zina (adultery) and qazaf (false accusation of adultery), which have a long history of abuse and injustice. The Women’s Protection Act 2006 omitted two sections of the Hudood Ordinances which, to some extent, reduced the likelihood of abuse of these laws against women accused of adultery. Their cases could now be tried under the Pakistan Penal Code, instead of exclusively under the Hudood Ordinance. However, not only did the FSC declare Sections 11, 25, 28 and 29 of the Women’s Protection Act 2006 un-Islamic and unconstitutional on the premise that the overriding effect of the Hudood Ordinances over other laws could not be taken away, it also asserted that the jurisdiction to hear appeals under any law relating to ten offences covered by the term ‘hudood’ for the purpose of Article 203 DD of the constitution lies with the FSC and not the high courts. The FSC thus gave parliament time till June 22, 2011 to make amendments to the Women’s Protection Act to restore these clauses, otherwise the court’s verdict would stand and these clauses would be considered restored. The court also directed the government to amend the Control of Narcotic Substances Act of 1997 and Anti-Terrorism Act 1997 to lay down a procedure for filing of appeals to the FSC instead of a high court for such offences. Certain sections in these laws, according to the FSC, constitute a violation of Article 203 DD, which empowers the FSC to examine any case relating to the enforcement of hudood heard by a lower court. All this is nothing short of an attempt at legislation by the FSC.

The FSC was created by General Ziaul Haq in 1980 in the name of Islamising the justice system. This is yet another instance that indicates how vestiges of that era continue to undermine the spirit of justice. In asserting its exclusive jurisdiction, the FSC did not take into consideration numerous cases where innocent women were implicated on false charges or survivors of rape charged with adultery while the perpetrators were allowed to go scot-free. In its order it said, “No legislative instrument can control, regulate or amend its exclusive jurisdiction which was mandated in the constitution.” Is the court not acting as a moral police over and above parliament, the judicial system and society itself? The FSC has provided parliamentarians, media and civil society an opportunity to debate the place of a religious court in a democratic, constitutionally run state. In the process of creating a parallel judicial system, a military dictatorship handed to the FSC enormous clout in the name of religion to pronounce on anything and everything under the sun. Despite the blatantly undemocratic and theocratic nature of these measures, the issue of their repeal was not taken up in the 18th and 19th Amendments to the constitution.

All the laws created to ‘Islamise’ the system deserve to be repealed on merit; these are bad laws. The whole edifice constructed on that foundation also needs to be abolished. The retrogressive and reactionary nature of, and setting itself above parliament’s will by the FSC, is the corollary of that misplaced emphasis on religion in matters of governance. This is by no means compatible with the concept of a modern democracy, which Pakistan aspires to become. It is time that the government and other democratic forces stopped soft-pedalling around the legacy of Ziaul Haq and went ahead with its repeal in toto.

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The Express Tribune, 24 December 2011

Law and extremism in Pakistan

Govt has decided to challenge Federal Shariat Court ruling.

Just as the nation was getting ready to face the onslaught of religious parties and their jihadi adjuncts on the question of the blasphemy law, the Federal Shariat Court has ruled sections of the Women Protection Act (2006), among other legislations, to be violating the Constitution and given the government till June 2011 to remove the flaws in it. It has asserted its remit over the matter saying it is expressly permitted by the Constitution to review all legislation in the light of Quran and Sunnah.

It is sad that the Court has kept its eyes closed to the situation on the ground and obeyed the conservative tradition of following the letter of Islamic jurisprudential interpretation. Already, many Islamic laws in Pakistan are more honoured in their breach than their observance simply because their literalist application has neglected to take into account the social conditions in which the laws have to be prosecuted. Unfortunately, the utopian outlook seeks to coerce society into obedience with divine laws as handled by fallible human beings, rejecting the more realistic approach of moulding the law to the social conditions in which it has to be applied.

There are two ways laws can be made: by amending the Constitution; and by acts of parliament. In Pakistan there is a third way: a law may be promulgated by a military ruler which is later validated by a two-thirds majority in an elected parliament. In regard to Islamic law, a large section of the clerical community considers their interpretation of Islamic Law as being above any legislative process. Opposed to this view is the non-clerical opinion which believes in the sovereignty of the parliament, but this opinion is divided on liberal and conservative lines. This division tilts the debate in favour of the clerics who are empowered beyond normal levels to intimidate the executive, the media and the judiciary.

The latest verdict handed down by the Federal Shariat Court actually removes the legislative method of moderating the intensity of the application of Hudood Laws in today’s society. For instance, the clergy is divided over the question of rape. Again and again, ‘ulema’ have appeared on TV programmes to declare that a victim of rape should be partially considered culpable, insisting that she be subjected to the condition of producing four male eyewitnesses to prove that she has been forced to submit to sexual assault.

The law relating to zina — a part of the Hudood that the Federal Shariat Court seeks to protect as Islamic Law — had registered marked negative effects on society in Pakistan. Women daring to report rape were made to face charges of false accusation because they could not produce four eyewitnesses and were thereafter punished under the Qazaf law. The honourable Court has annulled that section of the Women’s Protection Act which sought to remove, through procedural changes, the abuse of the said law. Thousands of women who had rotted in jail simply because they protested rape have borne witness to the flaw in the literalist approach.

Will the bad days return for women? Already, the literalist approach has divided the judges at the high court level on the question of child marriage as raised in the Family Law Ordinance, leading to dubious implementation. The law of Diyat ordained by law has been subject to abuse by the powerful section of society which commits crimes of oppression against the weak sections. Procedural difficulties also haunt those who come under the effect of Diyat. In other extreme cases like cutting of hands, and stoning of people — mostly women whose witness is not accepted as full — Pakistan has saved its skin by somehow not enforcing the sentences. The same kind of thing has happened with the victims of the blasphemy law.

The unfolding of legal evolution in Pakistan tells us that conservative military rulers hand down literalist laws which then cannot be rolled back; and liberal military rulers hand down realistic laws which are then either removed by a conservative judiciary or by violence on the streets. General Ayub’s liberal Family Law Ordinance was never properly made a law as Pakistan evolved into a more ideologically strict society as time passed; the parliament under Musharraf accepted ‘modern’ provisions like joint electorates and women’s seats but could not amend the Constitution after three Women’s Rights Commissions steadily recommended the removal of the Hudood Laws, and had to be content with the Women’s Protection Act.

As judicial evolution has tended to favour strict ideology, extremism has gradually increased in Pakistani society. As an agent of negative change, the decision of the state to wage jihad through non-state actors has enriched and empowered a certain kind of clergy and their madrassas. Extremism is always tempered by law which is called ‘adl’ in Arabic which, in turn, means the ‘middle path’ and forms the word ‘etadaal’ meaning moderation. But in Pakistan, because of the street power of the clergy and the increasing recourse by the common man to the powerful jihadi organisations for problem-solving, extremism has been ‘enforced’ and has now become a part of our minds.

The government has already been intimidated into passivity on the question of Aasia Bibi. The judges have stayed the president from pardoning the Christian victim of the blasphemy law, and the clerics have threatened Islamabad with dire consequences if she is made to flee Pakistan. In the 1990s, when another pre-teen Christian victim Salamat Masih was sent into exile, the reaction was not so extreme; today in the case of Aasia Bibi, it is. In fact, the government risks a fall in the coming month when the clergy of Barelvi and Deobandi brands gets together with jihadi organisations, banned by the UN Security Council as terrorists, to prevent the government from tinkering with the procedures under the blasphemy law.

Women and non-Muslims in Pakistan bear the brunt of this extremism and lack of tolerance, mixed with xenophobia because the international community protests at what is happening in Pakistan. The Federal Shariat Court has indirectly expressed itself against procedural changes in the blasphemy law too and has once again ignored factors responsible for the malfunction of Islamic legal provisions.

Published in The Express Tribune, December 24th, 2010.

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The News International, December 23, 2010

Women bodies, MPs condemn Shariat Court’s declaration

by Myra Imran

ISLAMABAD: Joint Action Committee for People’s Rights, Women’s Action Forum, Insani-Huqooq Ittehad (IHI), National Commission on the Status of Women (NCSW), women’s human rights organizations and several women parliamentarians have strongly condemned a ‘declaration’ issued by the Shariat Court that seeks to reverse sections 11, 25 and 28 of the Women Protection Act 2006.

The declaration seeks to revert back to the Hudood Ordinance of 1979 positions which were highly discriminatory and abusive to the dignity and rights of women and girls, said a press statement issued after the meeting of human right activists and women parliamentarians held at the NCSW.

This decision comes on the same day when the Prime Minister Yusuf Raza Gilani has appointed the first woman Ombudsperson to hear the sexual harassment complaints of workingwomen. At an impressive ceremony hosted at the Prime Minister Secretariat to observe the December 22 as a day dedicated to the workingwomen of Pakistan, a question was raised by a woman rights activist about this declaration and the prime minister assured the women participants not to worry about reversal of pro-women laws.

“How any law made in the name of women protection can be taken back?” the statement questions while expressing deep concern over the decision. “What sort of confidence would Pakistani women and girls will have?” The participants of the meeting demanded immediate action from the prime minister and demand an appeal from the government against this declaration.

They also demanded abolition of all parallel judicial systems such as Federal Shariat Court, Islamic Ideology Council and Jirgas. The civil society said that unless and until we were not going to resolve our contradictions with respect to the nature of the Pakistani state, these issues were not going to be resolved.