This report was written by Dorothy Q. Thomas, Director of the Women's Rights Project of Human Rights Watch. Patricia Gossman, Asia Watch South Asia Research Associate, wrote the history and U.S. policy chapters. The report was edited by Human Rights Watch Executive Director Aryeh Neier and Deputy Director Ken Roth. Michele E. Beasley, staff attorney of the Women's Rights Project and Georgetown University Law Center Women's Law and Public Policy Fellow,^* provided extensive legal research and writing and helped edit and proofread the report. Dionne A. Morris, Women's Rights Project Associate, provided editing, proofreading and production assistance. The report is based on a fact-finding trip to Pakistan by Dorothy Thomas and Patricia Gossman in October 1991.

Asia Watch and the Women's Rights Project gratefully acknowledge the assistance of the many people and institutions in Pakistan and in the United States who assisted us in our efforts to investigate and understand the problems faced by women in police custody in Pakistan. We would like to extend our particular thanks to human rights attorneys Hina Jilani and Asma Jahangir and the entire staff of AGHS Associates Legal Aid Cell in Lahore, Pakistan without whom this report would not have been possible. We would also like to thank advocate Zia Awan and Lawyers For Human Rights and Legal Aid in Karachi for their invaluable assistance. In addition, we gratefully acknowledge the assistance of John L. Esposito, Loyola Professor of Middle East Studies at the College of the Holy Cross, who read and commented on an early draft of the report.

Our work would not have been possible without the courageous women who were willing to speak to us of their experiences in police custody in Pakistan. They have broken the silence that often surrounds the physical and sexual abuse of women and we are honored that they trusted us to ensure that their stories were heard.

* This report was made possible (in part) by funds granted to Michele E. Beasley through a fellowship program sponsored by the Charles H. Revson Foundation. The statements made and views expressed, however, are solely the responsibility of Human Rights Watch.

Torture, inhuman punishment and degrading treatment of prisoners constitute gross violations of human rights. Under the Universal Declaration of Human Rights, its implementing covenants and the United Nations Convention Against Torture, the right not to be subjected to such abuse ranks as one of the most fundamental, guaranteed to all persons without distinction of any kind, including discrimination on the basis of gender.

Yet, until recently, torture and ill-treatment of women in custody -- as a phenomenon distinct from the mistreatment of men -- had received scant attention from those concerned with human rights in the international community. ⁽¹⁾ This failure adequately to address women's rights is rooted partly in the human rights community's past emphasis on politically motivated abuses by governments. However, even as human rights monitors worldwide have expanded their focus to include the nature of abuses regardless of their motivation, the international community has barely begun to concern itself with violations of human rights that are gender-specific in character. This failure contributes to a persistent misunderstanding of the type, function and frequency of abuses suffered by women around the world and to a lack of government accountability for such violations.

This report on sexual and physical abuse of women in police custody in Pakistan examines not only the gender-specific aspects of the abuses women suffer, but also the role of gender-discrimination in their imprisonment. In addition, it focuses on the government of Pakistan's systematic failure to prosecute those responsible for such violations. The report's findings and recommendations are based, in part, on a two-week investigation conducted by Asia Watch and the Women's Rights Project, both divisions of Human Rights Watch, in late October 1991.

This report is part of an ongoing effort by Human Rights Watch and its regional divisions to shed light on government abuses of women's human rights and to integrate efforts to end gender-specific violations into the work of those seeking to promote human rights. Asia Watch and the Women's Rights Project of Human Rights Watch chose to report on Pakistan because of reports that more than 70 percent of women in police custody experience physical or sexual abuse at the hands of their jailers. Reported abuses include beating and slapping; suspension in mid-air by hands tied behind the victim's back; the insertion of foreign objects, including police batons and chili peppers, into the vagina and rectum; and gang rape. Yet despite these alarming reports, to our knowledge not a single officer has suffered criminal penalties for such abuse, even in cases in which incontrovertible evidence of custodial rape exists. ⁽²⁾ One senior police official told a delegation of local human rights activists that "in 95 percent of the cases the women themselves are at fault." ⁽³⁾

This attitude is reflected in the way police handle cases of rape brought by a woman. We found that police routinely refuse to register such complaints, particularly if the complaint is lodged against a fellow officer. We also found that police officers often illegally detain women in police lock-up for days at a time without formally registering a charge against them or producing them before a magistrate within the required 24-hour period. Women can thus be held indefinitely without the knowledge of the courts. It is during these periods of "invisibility" that most sexual abuse of female detainees occurs.

In one case we investigated from 1988, three women were detained for alleged sexual offenses under the Hudood laws (see below) and were held in police custody for 48 hours before being produced before a magistrate and ultimately released for lack of evidence. While in police lock-up, all three women were raped and sexually abused by several officers; one of the women, who was 60 years old, had police batons inserted forcibly and repeatedly into her vagina and rectum. Although a judicial inquiry into the incident initiated by local human rights attorneys supported the rape and abuse charges, the police were never prosecuted. The 60-year-old woman told us that her life was "finished" and she no longer hoped for justice.

Given the likelihood that women will experience abuse in police custody, we were particularly disturbed to find that many of the women detainees in Pakistan did not deserve to be in custody in the first place. In pointing this out, of course, we do not suggest that such abuse would be justified even if they were deservedly incarcerated. We found that between 50 and 80 percent of all female detainees in Pakistan were imprisoned under the Hudood Ordinances, Islamic penal laws introduced in 1979, which in law and in practice discriminate against them. Prior to the passage of the Hudood Ordinances, women were not directly involved with the criminal justice system in any significant number; only 70 women were incarcerated in the entire country. By 1991, over 2,000 women were imprisoned under these laws alone. The steep rise in the number of female prisoners in turn increased the opportunity for police misconduct towards women.

The Hudood Ordinances criminalize, among other things, adultery, fornication and rape, and prescribe punishments for these offenses that include stoning to death, public flogging and amputation. Human Rights Watch has no opposition to Islamic law per se and does not object to laws founded on religion, provided that human rights are respected and the principle of equality before the law is upheld. However, the Hudood laws, as written and applied, clearly conflict with these rights and principles. Not only do they prescribe punishments that are cruel and inhuman under international law, but they clearly discriminate on the basis of gender. ⁽⁴⁾ The laws also conflict with the Pakistani Constitution, which guarantees the right to equality and non-discrimination on the basis of gender.

Under the Hudood laws, proof of rape for the maximum (Hadd) punishments of stoning to death or 100 lashes in a public place requires the testimony of four male Muslim witnesses to the act of penetration. The testimony of women -- not only the victim but any woman -- carries no legal weight. This requirement means that women who have been sentenced to the maximum punishments, deemed cruel and inhuman under international law, have been so sentenced under a law that prevents them from testifying on their own behalf. Men have also been cruelly sentenced under these laws, although in general men accused of rape are effectively exempted from the maximum Hadd punishments because women can neither testify nor is any person likely to be able to produce four male Muslim witnesses to the act of penetration. We recognize that no Hadd sentences have been carried out to date, but nothing impedes the state from doing so in the future. We recommend their immediate repeal as well as the removal of all obstacles to a woman's right to testify equally with a man in a court of law.

We found that the majority of rape and adultery or fornication cases attract the lesser (Tazir) punishments which entail public flogging, rigorous imprisonment and fines. While the testimony of women is admissible at this level, we found that Pakistani courts still exhibited a bias against women. The courts tend to see women as complicit in sexual offenses, despite a lack of evidence, or evidence to the contrary, and required from female rape victims extraordinarily conclusive proof that the alleged intercourse was forced. Moreover, many women who alleged but were unable to prove rape have themselves been charged with adultery or fornication for consensual sex, although a failure to prove rape does not prove that consexual occurred. The courts effectively have set a lesser burden of proof for the prosecution in cases involving female defendants.

The differing effect of available medical evidence often compounds this discrimination. In some cases, when medical evidence has been introduced in support of a rape charge in which forcible intercourse cannot be proved, the male has also been charged with adultery or fornication. However, medical evidence implicating accused males often cannot be obtained, so they are frequently released for lack of evidence while their women victims are imprisoned pending trial based on their own allegations of forcible intercourse.

A case from 1991 that we investigated (discussed in Section III of this report) is illustrative. Eighteen year-old Majeeda Mujid was abducted by several men, raped repeatedly by her abductors over a two-month period, and finally turned over by them to the police. Although she complained that she had been raped, the police charged her with illicit sex, imprisoned her pending trial, and let the men go free.

The discriminatory provisions of the Hudood laws are exacerbated by their discriminatory application by the police and judiciary. According to several Pakistani legal aid attorneys who represent indigent women charged with Hudood offenses, the vast majority of Hudood cases (most of which are registered by the woman's husband or father) are not supported by the evidence and should not have been prosecuted. We investigated several cases, documented in Section III of this report, in which women were wrongfully prosecuted for Hudood offenses because they refused to marry men chosen by their families, decided to leave home or married men against their parents' will, or sought to separate from or divorce abusive husbands.

In part, judges hear ill-founded Hudood cases because they, like the police, are eager to show that they are tough on crime. However, wrongful prosecution of women also reflects a tendency on the part of the police and judiciary to see women as guilty until proven innocent. In effect, the Hudood laws have given legal sanction to biased social attitudes towards women, thus not only legitimating the oppression of women in the eyes of the state but also intensifying it: women who seek to deviate from prescribed social norms now may not only be subject to societal censure, but also to criminal penalties. It is this enforcement of religion and its use as a tool to legitimate abusive state power, rather than religion itself, that is at issue here. Although acquittal rates for women in Hudood cases are estimated at over 30 percent, by the time a woman has been vindicated she will have spent months, and in many cases years, in prison and, in all likelihood, been subjected to police abuse while in custody.

We found that even in cases in which no formal charge is brought against a woman, judges often suspect that if she was abducted or raped she must have been behaving inappropriately to begin with and was in some way complicit in the offense. We found that in lieu of filing a formal charge against the women in such cases, judges frequently remand female rape and abduction victims to private detention facilities for indefinite periods to await the outcome of the cases lodged against their alleged abusers. We visited one such facility in Lahore which, though nominally private, functions like a prison. Thirty-nine women had been remanded there against their will by local courts - including one who had been forced to spend more than two-and-a-half years in custody. ⁽⁵⁾ The facility's administrators justified such prolonged detention as a form of "protective custody" for the women, but in effect it amounted to the punitive detention of innocent women for the crime of being an alleged victim. After our visit, a local human rights organization filed habeas corpus petitions on the women's behalf and fifteen were freed. However, the cases had no effect on the underlying problem of private detention of women accused of no offense. As of March 1992, there were 38 women in the facility. (See Section IV for a further discussion of this issue.)

It is extremely difficult for women prisoners to seek redress for sexual and physical abuse by police. They must confront rape and evidence laws that overtly discriminate; they face the possibility of criminal prosecution or - at a minimum - social ostracism if they fail to prove their rape allegation; they must combat police and judicial attitudes that are clearly biased against them; and they must overcome procedural obstacles to prosecuting the police that affect all victims of custodial abuse, including the absence of any independent body to investigate and prosecute abuses of police power.

The possibility of obtaining equal justice in Pakistan has been further reduced over the past decade by the steady erosion of judicial independence, mainly through the government's retention of undue influence over the judiciary and through the establishment of parallel religious and speedy-trial courts. While Human Rights Watch does not oppose religious courts or speedy-trial rules per se, both the religious and speedy trial courts in Pakistan have been shown to weaken the independence and jurisdiction of the civil courts and to violate many aspects of due process. This trend culminated in the adoption of the 1991 Shariat Act, which subjects the Constitution and the law-making authority of the legislature to the revisional authority of Islamic religious leaders, many of whom, according to local human rights activists, "have been known to take positions against women." ⁽⁶⁾

The discriminatory treatment encountered by women who enter the criminal justice system reflects the treatment of women as second class citizens by Pakistani society at large. From birth, the life of the average Pakistani woman is characterized by her economic, social, cultural and political subordination. She will receive less food, medical care, and education, be paid and inherit less, have fewer opportunities to participate in civil society, and live a shorter lifespan than her male counterparts. Even in comparison with women in many other parts of the world, she will on average marry earlier, bear more children, suffer higher rates of maternal mortality and work more hours without compensation. Like women everywhere, she will be subjected to violence in the home and, in some areas of Pakistan, by the community, particularly when she engages in behavior seen to deviate from prescribed social norms.

Given this subordinate status, once a woman is in prison it is extremely unlikely that she will possess the knowledge or the means to secure even the minimal protections due to her under law, or that such efforts as she makes will be given credence. Eighty percent of all female prisoners in Pakistan are illiterate and nearly 90 percent live on a monthly family income of less than 40 dollars. According to a survey conducted in 1988, over 90 percent of the 90 women prisoners interviewed in two prisons in Punjab were unaware of the law under which they had been imprisoned. Over 60 percent had received no legal assistance whatsoever. ⁽⁷⁾

These deplorable conditions are not the exclusive lot of Pakistani women in Pakistani jails. Women from Bangladesh, many of whom have been forcibly taken to Pakistan, often via India, for the purpose of domestic or sexual servitude, are arrested by the Pakistani police, often for Hudood offenses, and subjected to the same abusive and discriminatory treatment as that suffered by their Pakistani counterparts. According to a 1991 national survey by a nongovernmental social welfare organization in Pakistan, between 100 and 150 Bangladeshi women are illicitly taken to Pakistan each month. The majority are lured by promises of better jobs, but often end up in brothels where they are compelled to provide sexual services, or in private homes where they are forced to work as domestic servants or, in some cases, to become wives. The average age of the women and girls victimized by this trafficking is 15. At current prices, and depending on the virginity, beauty and health of the girls and women, a sale can bring the equivalent of from U.S. $800 to U.S. $2,000.

Rather than protecting these women and girls by arresting those engaged in their illegal sale and abuse, the government of Pakistan imprisons them while letting the pimps go free. According to the survey mentioned above, 1,400 Bangladeshi women and girls are currently in prison in Pakistan, ostensibly for entering the country illegally or for offenses under the Hudood Ordinances. While pimps involved in the sale of Bangladeshi women have occasionally been arrested by the police, we are unaware of a single one who has been prosecuted or punished for trafficking in women or for abuses commonly associated with the practice. This official inaction exists despite Pakistan's obligations under the Convention for the Suppression of the Traffic in Persons, to which it is a party, to punish such abuses. Rather, as one local observer commented, the government seems bent on "victimizing the victims" rather than prosecuting the victimizers. (See Section VI for information on trafficking of Bangladeshi women.)

Human rights and women's rights advocates have been actively campaigning for over 10 years for the repeal of discriminatory laws, including the Hudood Ordinances, good faith prosecution of abusive police, greater adherence to the fundamental principles of due process and equality before the law, and increased legal services for women. Some members of Pakistan's judiciary, particularly at the High Court level, have recognized the epidemic proportions of violence against women in custody and have initiated investigations into instances of the problem that the police themselves have refused to examine. On September 21, 1991, Pakistan's Prime Minister promulgated regulations prohibiting police from keeping women overnight in custody, although they have not been observed in practice, and the Cabinet reportedly is considering legislation that would require women to be detained in judicial rather than police facilities.

Despite these welcome measures, the government's response remains woefully inadequate. Pakistan is obliged under international law and its own Constitution to refrain from torture and ill-treatment of prisoners in custody and to provide female victims of such abuse with equal protection of the law. But the government has failed to eliminate the overtly discriminatory laws and practices that promote the wrongful prosecution of women and result in their prolonged imprisonment. And rather than remove procedural obstacles to justice for the victims of police abuse, the government has adopted policies that perpetuate police impunity and erode judicial independence. Finally, the government's response to the fate of the hundreds of Bangladeshi women in Pakistani jails, and the thousands more who have been forced into prostitution and domestic servitude in Pakistan, has aptly been characterized by the local press as one of "bottomless indifference."

As a member of the United Nations, Pakistan has an obligation to uphold the rights and principles enshrined in the Universal Declaration of Human Rights, including the right not to be tortured or to be subjected to cruel or inhuman punishment or degrading treatment, and the right to be free of discrimination on the basis of gender. As this report shows, it has wholly failed to meet this obligation. Moreover, despite the government's stated intention to eliminate custodial violence and gender-discrimination, it has yet to adopt most of the relevant international human rights instruments, including the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination Against Women. Although Pakistan is a signatory to the Convention for the Suppression of the Traffic in Persons, it has largely failed to meet its obligations under this agreement.

As Pakistan bids to be a significant regional power and reassert its past international standing, the government must take immediate steps to adopt and adhere to international human rights standards and to end all forms of violence against women and gender-discrimination. Its failure to do so will only perpetuate the oppression of women in Pakistan and further diminish the country's stature as a nascent democracy in the eyes of the international community.

A. History

In 1947 British India was partitioned along religious lines to create two independent nations: India, which had a majority Hindu population, and Pakistan, which was predominantly Muslim. ⁽⁸⁾ Continuing controversy over the role of Islam in Pakistan's political life and tension among the country's ethnic groups have dominated the process of state-building in Pakistan since independence. ⁽⁹⁾ Pakistan occupies a strategic crossroads of South Asia, bordering Afghanistan and Iran to the west, China to the north and India to the east. Its relations with these countries, above all Afghanistan and India, have had critical consequences for foreign and domestic politics, particularly with respect to the role of the military and the course of Islamization.

The movement for a separate Muslim homeland ⁽¹⁰⁾ in the subcontinent was headed by Pakistan's founding father, Mohammed Ali Jinnah, a lawyer and a colleague of India's nationalist leaders Mohandas (Mahatma) Gandhi and Jawaharlal Nehru. Jinnah had originally supported the Indian National Congress, the organization that spearheaded the independence movement in British India. ⁽¹¹⁾ However, by the 1930s, Jinnah had grown frustrated with the Congress's failure to heed fears that the rights of the Muslim minority might not be safeguarded in an independent India. In 1935 Jinnah became president of the Muslim League and by 1940 he had rebuilt the party on the platform of a separate state. His leadership changed what had been a party with a small elite following into one with mass support among many, but not all, Muslims in British India. ⁽¹²⁾

In February 1947, the British government formally agreed to end British rule in India. Lord Mountbatten was dispatched to negotiate a settlement with the Congress and Muslim League and to oversee the final months of the transfer of power. Amid rising communal violence the leaders finally agreed to partition the country. ⁽¹³⁾ A boundary commission was established which demarcated contiguous Muslim-majority areas on either side of India as Pakistan's western and eastern wings. ⁽¹⁴⁾ The decision, which was reached one month before independence, launched one of the greatest mass migrations in history, as ten million people on either side fled across the new borders. Bengal and Punjab were split between India and Pakistan, setting off bloody communal riots in both provinces. In the weeks before partition more than half a million people died in sectarian violence. The experience permanently embittered relations between India and Pakistan.

Although Islam was the basis for the Muslim League's claim to a separate identity and nation, neither Jinnah nor the Muslim League ever articulated the legal basis of an Islamic state of Pakistan. Jinnah himself was opposed to the idea of a theocratic state. ⁽¹⁵⁾ The constitutional debates of the early 1950s were dominated by protracted arguments over the place of the shariat ⁽¹⁶⁾ in Pakistani law. While Pakistan's ulama ⁽¹⁷⁾ argued that the shariat provided the only legitimate basis for the new state, most politicians fought for a constitution that embodied the principles of modern parliamentary democracy. The debates lasted nine years and ultimately produced a constitution which "demonstrated ... [an] unwillingness to articulate and implement an Islamic ideology" in that the "relationship of modern constitutional concepts to Islamic principles was asserted but not delineated." ⁽¹⁸⁾

Still, Pakistan's early leaders gave in to some of the demands of the religious leadership by including in the Constitution the declaration that Pakistan was an Islamic republic and by granting the ulama an advisory role, though it carried little influence. ⁽¹⁹⁾ But if there was little confidence in Islam as the basis for building political consensus, there was equally little faith in the country's weak political institutions. ⁽²⁰⁾ As a result, the military came to assume a dominant role in Pakistani politics. As one observer has noted:

Continuing difficulties in the politicians' efforts to reconcile Pakistan's ideological foundations with a structure of state authority inherited from the colonial tradition led many bureaucrats and military leaders in the mid-1950s to fear for the stability of the state itself. It was in this context that the military came to assume a larger role in the politics of Pakistan, seizing power finally in General Ayub Khan's 1958 coup. ⁽²¹⁾

Ayub Khan saw Pakistan's religious elites as obstacles to development of the country as a modern state and fought to diminish their influence. For example, in 1961, over the strong objections of the ulama, the Muslim Family Law Ordinance was adopted to reform the laws on marriage, divorce and inheritance. ⁽²²⁾ At the same time, Ayub Khan was also suspicious of his political opposition and banned all political parties, "thus sounding the death-knell for political institution building in Pakistan." ⁽²³⁾

By promoting rapid industrialization in West Pakistan, largely through the diversion of foreign aid and capital from the East, the Ayub government also set the stage for Pakistan's greatest political crisis, which ended in a second partition. In March 1969, amid rising public discontent, General Yahya Khan replaced Ayub Khan and again imposed martial law. When elections were held for the National Assembly in December 1970, Bangladeshis in East Pakistan voted overwhelmingly for the Awami League, a party advocating autonomy for the province. The party won an absolute majority in the country, a situation which both Yahya Khan and Zulfiqar Ali Bhutto, the head of the Pakistan People's Party in West Pakistan, refused to accept. In response, Yahya Khan suspended the National Assembly and ordered the army to arrest the Awami League leaders. On March 25, 1971, as the military began a brutal crackdown, opposition leaders in East Pakistan declared the independence of Bangladesh. For the next nine months the country was engulfed in a bloody civil war in which perhaps as many as one million died, most of them civilians. ⁽²⁴⁾ The precise number killed, including those who died of starvation and disease, is unknown, although some estimates put the number much higher than one million. India's intervention in December brought the war to an end, and on December 15, 1971, Bangladesh became independent.

In January 1972, the military handed over power to Bhutto, whose Pakistan People's Party (PPP) had won a majority of National Assembly seats in West Pakistan in the 1970 elections. Bhutto espoused an ideology of "Islamic socialism" that included land reform, nationalization of basic industries and "roti, kapra aur makan" (bread, clothing, and shelter). Women in large numbers participated actively in political organizations that lobbied for reform of laws concerning the rights of working women and political representation. ⁽²⁵⁾ A new Constitution was adopted that guaranteed a number of individual rights and for the first time granted equal rights to women and prohibited discrimination on the basis of gender or religion. The 1973 Constitution also provided for greater decentralization of power with the four provinces being given their own governors and legislative assemblies. The changes were partly in response to rising ethnic tension in the non-Punjabi provinces. Ethnic tension remained high, however, particularly in Baluchistan, where the pressure for greater autonomy and even secession was acute. Between 1973 and 1977, Pakistani forces fought a brutal war against Baluch insurgents in which hundreds of civilians were killed, many in indiscriminate air-attacks on Baluch villages. ⁽²⁶⁾

Bhutto made some efforts, generally unsuccessful, to win over the religious establishment. The most significant was the 1974 amendment to the Constitution that declared the minority Ahmadi sect non-Muslims. ⁽²⁷⁾ Bhutto also courted good relations with Muslim countries, particularly the oil states, ⁽²⁸⁾ and introduced other symbolic measures, such as banning liquor sales and recognizing Friday instead of Sunday as the official weekly holiday. ⁽²⁹⁾ Although these moves anticipated Zia's later Islamization programs, they failed to win Bhutto much support among religious leaders, who denounced his socialism as un-Islamic. Bhutto also alienated the military establishment, which feared that the populist policies of the PPP might unleash forces that could threaten the survival of the state. ⁽³⁰⁾

By the time national elections were called in 1977, the PPP faced a formidable challenge from the Pakistan National Alliance (PNA), a coalition that included the entire opposition from fundamentalist religious to centrist and liberal parties. The left, which had previously supported Bhutto, also joined the Alliance, along with urban middle-class Pakistanis frustrated with Bhutto's increasingly autocratic and repressive rule ⁽³¹⁾ and his failure to implement economic reforms. Landowners and industrialists who were unhappy with the PPP's economic policies also supported the PNA. ⁽³²⁾ Both the Alliance and the PPP invoked Islamic precepts in the campaign. The PPP officially won by a large margin, but the opposition claimed widespread electoral fraud and immediately began agitating against the government. The PNA boycotted the provincial elections held three days later, and large rallies were staged at mosques during Friday prayers. ⁽³³⁾ Bhutto responded by imposing martial law, but on July 5, 1977, he was deposed in the country's third military coup, led by Army Chief of Staff General Zia ul-Haq. Two year's later, Bhutto was tried for the murder of a political opponent, sentenced to death and executed, on April 4, 1979.

Soon after seizing power, Zia ul-Haq used appeals to Islamic values to legitimize his regime and consolidate his hold on power. He attributed Bhutto's downfall to un-Islamic behavior, and promised to "transform the country's socio-economic and political structure in accordance with the principles of Islam." ⁽³⁴⁾ He first postponed elections promised for 1977, and again canceled those scheduled for 1979 on the grounds that Pakistan's political system was not Islamic. ⁽³⁵⁾ In 1978, Zia expanded the Council of Islamic Ideology (CII) ⁽³⁶⁾ to include many conservative ulama. Under the 1973 Constitution, the CII had been authorized to review existing laws and recommend reforms to bring Pakistan's political, legal and economic institutions into line with Islamic principles. Before 1978, that power had not been exercised, but Zia used the CII to give its stamp of approval to his policies, notably his ruling that Pakistan was to continue under martial law without elections or political parties. ⁽³⁷⁾

Zia's Islamization efforts had their greatest impact on Pakistan's criminal justice system. ⁽³⁸⁾ The potential for misuse of power by the police and jail authorities had existed since colonial times, and successive periods of martial law had further increased the powers of the law enforcement agencies and eroded safeguards against abuses. The effect of Islamization was to bring more people, particularly women, into contact with an already abusive and corrupt criminal justice system and, to increase the state's power over the lives and liberties of its citizens. When Zia came to power, Pakistan had two functioning legal systems: the civil courts system, based on Anglo-Saxon common law and the law of the colonial state, and the martial law courts, which were expanded under successive military governments. Zia rapidly took steps to restrict further the jurisdiction of the civil courts and to bring them under the martial law authorities. ⁽³⁹⁾

The May 1980 Constitutional Amendment Order prohibited the High Courts from reviewing the jurisdiction or judgments of the martial law courts. The Provisional Constitutional Order (PCO) of 1981 went even further, empowering the martial law authorities to decide whether a case would be held in the martial law or civil courts and retrospectively validating everything done by the military regime since 1977. ⁽⁴⁰⁾ Article 17 of the PCO required judges of the High Courts and the Supreme Court to take an oath to abide by the PCO; those who did not, or who were not asked to, were dismissed. ⁽⁴¹⁾ The PCO also curbed the power of the High Court to grant interim relief or bail with regard to a detention order on a habeas corpus petition. ⁽⁴²⁾

Under Zia, the martial law courts had exclusive jurisdiction to consider any crime defined as a violation of martial law. For example, political meetings or anything that could be construed as "defamation" of the martial law regime were illegal. ⁽⁴³⁾ In addition, the martial law courts had discretion to hear any case involving an offense under the Penal Code. Most cases came before summary military courts, but important political cases were heard before special courts that could impose the death penalty. Both courts suspended safeguards against unfair trials and coerced confessions. Writs of habeas corpus could not be obtained from a civil court to review a military arrest or conviction. Defendants' access to counsel was highly restricted, and proceedings were held in camera, usually within the prison. ⁽⁴⁴⁾ Throughout the martial-law period, all fundamental rights guaranteed under the 1973 Constitution were suspended, political parties and trade unions were banned, and opposition activists were jailed by the thousands. Mistreatment and torture of detainees, including the flogging of prisoners, were widespread.

Zia further undermined the independence of the civilian court system with the introduction of the shariat courts (discussed in full in this report's section on the judiciary). In 1978, he established Shariat benches in each High Court to review all laws to ensure that none was repugnant to the Quran or the Sunnah. In May 1980, these benches were reorganized and centralized under the Federal Shariat Court, which consisted of eight High Court judges or persons so qualified. ⁽⁴⁵⁾ As a system parallel to the civil court, the effect of the Shariat Courts was to weaken the jurisdiction of the Superior Courts, create insecurity amongst superior judiciary and make unnecessary inroads in a judicial system that could have dealt with the Shariat jurisdiction in its existing structure. ⁽⁴⁶⁾

In 1981 and again in 1982, the structure of the Federal Shariat Court was amended to reduce the number of civil judges, or persons so qualified, and to add ulama to the bench. ⁽⁴⁷⁾ In 1983, 150 qazi (religious judge) courts were also established at the district level. ⁽⁴⁸⁾ Zia took other steps to reinforce the process of Islamizing the legal system. Among these were the promulgation of the Hudood Ordinances (1979) and the Qanun-e-Shahadat (Law of Evidence) Order (1984). Both of these laws have had a devastating effect on the rights of women. ⁽⁴⁹⁾

Zia's foreign policy interests also had an impact on domestic Islamization efforts. The year after Zia seized power, civil war broke out in Afghanistan. That war intensified with the Soviet invasion of 1979, driving some three million refugees into Pakistan. Zia immediately offered support to the resistance, reorganizing and expanding the military intelligence agency, ISI, as the pipeline for assistance to the mujahidin. ⁽⁵⁰⁾ The resistance groups favored by the ISI advocated the installation of a radically fundamentalist Islamic state in Afghanistan and Zia hoped that by aiding them, Pakistan would continue to have influence over Afghanistan once they were in power. ⁽⁵¹⁾

In December 1984, Zia called for a referendum on his policies and continued rule. Opposition groups called for a boycott, which was declared illegal under martial law. The government claimed to have received widespread support in the referendum, which Zia asserted gave him a mandate to continue in office until 1989. Opposition sources and foreign journalists reported that voter turnout had been very low. In February 1985, general elections (which had been postponed in 1977 and canceled again in 1979) were held for the National Assembly. Political parties were banned from participating in the elections, and many individuals associated with political parties were barred from running as individuals. Again, advocating a boycott was declared illegal, and hundreds of opposition leaders were detained before the elections. Mohammed Khan Junejo, who along with other Pakistan Muslim League party members ran as individuals, became the new prime minister.

The new Assembly's first order of business was to adopt the Eighth Amendment to the Constitution, which ensured that all constitutional amendments, laws and orders promulgated during the martial law period, including all the new Islamic laws, were affirmed, adopted and declared, notwithstanding any judgement of any court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, could never be called into question in any court on any ground whatsoever. Adopting the Eighth Amendment was the precondition for the lifting of martial law, which took place on January 1, 1986.

With the end of martial law, the PCO was repealed. Under the Revival of the Constitution 1973 Order, the Constitution was restored, but it had been drastically amended to increase the powers of the president over the judiciary and National Assembly and to ensure that President Zia remained in control even after martial law was lifted. ⁽⁵²⁾ Over the next two years, opposition parties began to demonstrate openly, but some restrictions remained and several hundred opposition party leaders remained in prison. Ethnic tension in Sind province between Pathans, Sindhis and Muhajirs continued to escalate, erupting in street gunbattles and car bomb attacks.

In a surprise move on May 29, 1988, Zia dismissed the government of Prime Minister Junejo and called for national elections to be held within 90 days. ⁽⁵³⁾ On August 1 of that year, Zia, along with several senior military officers and U.S. Ambassador Arnold Raphel, was killed in a plane crash, the cause of which has never been determined. The president of the Senate, Ghulam Ishaq Khan, became acting president. Following a Supreme Court ruling, elections for prime minister were held on a party basis, pitting the PPP under Benazir Bhutto, daughter of Zulfiqar Ali Bhutto, against an alliance of conservative and Islamist parties known as the IJI (Islami Jamhjoori Ittehad, or Islamic Democratic Alliance) under Punjab Chief Minister Nawaz Sharif. When the election was held on November 16, the PPP won 93 and the IJI 55 of the 205 seats contested. ⁽⁵⁴⁾

Despite high hopes among women's rights organizations and other civil liberties groups in Pakistan that Benazir Bhutto's government would reverse the repressive policies initiated by Zia, she failed to do so. Citing rising violence in Sindh province and rampant government corruption, President Ghulam Ishaq Khan dismissed the Bhutto government on August 6, 1990. Elections were held in November 1990 which the IJI was declared to have won, amid charges of electoral fraud that were never fully substantiated nor convincingly refuted. Punjab Chief Minister Nawaz Sharif became Prime Minister.

During the campaign, Sharif won the support of the Jama'at-e-Islami by promising to Islamize all laws, and in April 1991, he took steps to fulfill that pledge by introducing legislation to make the shariat the supreme law of Pakistan, taking precedence over the Constitution. ⁽⁵⁵⁾ In December 1991, the Lahore High Court ruled that under Article 2A of the Constitution, the shariat was the supreme law and that the High Court had jurisdiction to enforce it. ⁽⁵⁶⁾ On March 1, 1992, the Federal Shariat Court ordered the government to dismantle the country's banking system and establish an interest-free system in line with Islamic prohibitions against usury. While the Sharif government has supported such a policy in name, it appeared taken aback by the court's sudden decision, which potentially threatens Sharif's efforts to reform the economy and attract more foreign investment at a time when the U.S. -- Pakistan's principal supporter for most of its history -- has suspended all aid because of Pakistan's nuclear weapons program.

Since Sharif's election, violence among ethnically based political groups in Sindh has continued to escalate. Opposition figures, particularly those associated with the PPP, have been subjected to arbitrary arrest and detention, and journalists who have criticized government policy have been physically attacked.

Shifts within the military and foreign policy establishment in Pakistan in late 1991 and early 1992, including the retirement of Army Chief General Aslam Beg, who was seen as a strong proponent of Islamization; the sacking of the former ISI Chief Hamid Gul, who favored the most radical of the Afghan mujahidin; and the decision to support the U.N. peace plan for Afghanistan, ⁽⁵⁷⁾ appear to indicate Sharif's inclination to hold in check those forces calling for more radical Islamization. On May 5, 1992, the Jama'at-e-Islami withdrew from Sharif's coalition government, claiming that he had "betrayed" the most radical of the Afghan mujahidin and had failed to fully Islamize Pakistani society. Given Sharif's precarious political position it is unlikely that he will be willing to risk further alienating pro-Islamization forces by retracting any existing laws.

B. The Status of Women

The situation of women in Pakistan is by no means uniform. Conditions vary depending on geographical location and class, with the situation of women better in urban and middle- and upper-class sections of society, where there are greater opportunities for higher education and for paid and professional work, and women's social mobility is somewhat less restricted. ⁽⁵⁸⁾ However, despite the relative advantages of women in some sectors, women from all walks of life in Pakistan remain second class citizens. Both the 1985 report of the Pakistan Commission on the Status of Women and the government's Sixth Five Year Development Plan (1988-1993) denounced the systematic discrimination that all Pakistani women face as a result of social and cultural norms and attitudes, as well as the "crippling handicaps of illiteracy, constant motherhood and poor health." ⁽⁵⁹⁾

The 1985 report by the government-sponsored Commission concluded that "the average rural woman of Pakistan is born in near slavery, leads a life of drudgery and dies invariably in oblivion." ⁽⁶⁰⁾ Seventy-five percent of Pakistan's female population of over fifty million is rural. ⁽⁶¹⁾ The average rural woman works 16 to 18 hours a day and will bear eight children in her lifetime. Approximately 80 percent of all pregnant and nursing women suffer from malnutrition. ⁽⁶²⁾ Every year approximately 26,000 women die from complications due to childbirth and the general mortality rate of women is higher than that of men. The vast majority of women live in utter poverty and only 4.8 percent participate in the official labor force. Pakistan has one of the lowest female literacy rates in the world; only 16 percent of the female population can be said to be functionally literate, compared to 35.1 percent for men. ⁽⁶³⁾

Despite the social and economic hardships and discrimination suffered by the vast majority of Pakistan's women today, women did benefit from the social and political reforms that accompanied Pakistan's independence movement. As early as 1917, a group of women in India organized for improved educational opportunities and the right to vote for women. The colonial administration initially rejected the demand for the female franchise. But by 1935, with India's two major nationalist parties, the All-India Muslim League and the Indian National Congress, having joined the demand, women "with the requisite property and educational qualifications" -- the same restrictions imposed on men -- were granted the franchise. Moreover, for the first time, women were guaranteed 6 out of a total of 150 seats in the Council of State and 9 out of 250 seats in the Federal Assembly. ⁽⁶⁴⁾ Women's participation in public life advanced so markedly during this period that by December 1938, the All-India Muslim Women's League had branches all over the country.

How much progress women have been able to achieve in Pakistan has depended to a large extent on the political expediencies of the moment. In the 1930s, before the partition of Pakistan and India, women played a central role in the Muslim League's efforts, under the leadership of Mohammed Ali Jinnah, to create a separate Muslim state. In 1944, Jinnah told a gathering at Aligarh University:

No nation can rise to the heart of its glory unless your women are side by side with you. We are victims of evil customs. It is a crime against humanity that our women are shut up within four walls of the houses as prisoners. There is no sanction anywhere for the deplorable condition in which our women have to live. You should take your women along with you as comrades in every sphere of life. ⁽⁶⁵⁾

Women galvanized popular support for the Muslim League, participated in public rallies and gatherings, and turned out in large numbers to vote in the 1945-46 elections. According to sociologist Farida Shaheed, "from 1940 to 1947 unprecedented numbers of women young and old from all classes broke the unwritten rules of conduct prescribed by purdah [seclusion of women]." ⁽⁶⁶⁾ Women's participation was crucial in advancing the crusade by India's Muslim minority for an independent Pakistan, and they became an important symbol for the progressive forces within the All-India Muslim League advocating for a new nation. ⁽⁶⁷⁾

However, the more conservative elements within the Muslim community in India, many of whom opposed the creation of Pakistan, attacked women's increased participation in public life and saw women's heightened visibility as a challenge to, rather than a symbol of, Muslim identity. At the center of this dispute was a debate over women's role in maintaining the family as the essential unit of Muslim culture. Particularly in the context of British colonial rule and India's overwhelmingly Hindu majority, the family was viewed as the mainstay of traditional Muslim values outside the reach of state power. Conservative religious leaders criticized Jinnah and the Muslim League for encouraging a public role for women that they felt would disrupt the family and might contribute to the downfall of the Muslim way of life.

Chief among the League's detractors was Maulana Maududi, the founder of the Jama'at-e-Islami (JI), a conservative Islamic organization started in 1941. The JI advocated, among other things, an end to women's political participation and their strict adherence to purdah. In criticizing Muslims whom he felt were choosing the wrong path, Maududi wrote:

For them material gains and sensual pleasures are of real worth whereas the sense of honor, chastity, moral purity, matrimonial loyalty, undefiled lineage and the like virtues are not only worthless but antiquated whims which must be destroyed for the sake of making progress... they are violating the principles of the Islamic way of life and taking their wives, sisters and daughters, though hesitatingly, on the way of Western civilization....People who are treading this path should clearly understand that the beginning may not bring them grief, but it will surely lead their children and the children of their children to grave consequences. ⁽⁶⁸⁾

According to Harvard political scientist Ayesha Jalal, even the great poet philosopher of Pakistan, Muhammad Iqbal, criticized women who pursued careers other than those of wives and mothers as abhorrent. European suffragettes in his opinion were "superfluous women...compelled to conceive ideas instead of children." ⁽⁶⁹⁾

Thus, in the years immediately preceding Pakistan's independence, women were at the center of a fundamental paradox that was to affect their status in Pakistani society for the next 50 years: on the one hand, their increasing freedom was intricately linked with a political movement to create an independent Muslim state; on the other, conservative interpretations of the identity of that same state -- depending on social, political and economic conditions -- was turned against women as a means of consolidating state power in times of instability. ⁽⁷⁰⁾ Seen in this light, the changes suggested by women's increased political participation in the pre-independence period smacked more of political expediency than of a conscientious challenge to biases against women. In essence, women were, and still are, used to stabilize the unsteady balance between religion and politics in Pakistan, but their rights were rarely treated as ends in themselves.

The period from 1947 to 1977 saw improvements in the legal status of women, although the changes mainly benefitted a small minority of upper and middle class women and left the vast majority unaffected. In 1937, prior to independence, Jinnah succeeded in securing the adoption of the Muslim Shariat Application Act, which granted women inheritance rights that had been denied them by the British colonial courts' interpretation of customary law, although he did so only after eliminating agricultural land from the list of property that women could inherit. ⁽⁷¹⁾ With Pakistan's independence, women hoped to secure full rights to property inheritance and, in 1948, women members of the National Assembly introduced a bill to that effect. When the Assembly failed to act on the bill, thousands of women marched in the newly independent country's first mass protest, and secured the law's adoption in 1951.

However, even this victory was marred by the tension between women's rights and religious ideology that, as discussed above, has been central to Pakistani politics. Women did secure inheritance rights in independent Pakistan that were unavailable to them under colonial rule, but did so only in the context of Islamic inheritance laws, which continued to treat males as the main heirs while leaving daughters to inherit only half of what is given to sons. As noted by Jalal, women's support for the inheritance bill suggests that "unequal rights under Islam were better than no rights at all." ⁽⁷²⁾

The first Constituent Assembly of Pakistan included two female members who had been active in the independence struggle. Both pushed for the inclusion of 10 reserved seats for women in the provincial and national legislatures. When the Constitution was finally adopted in 1956, it included women's suffrage for seats reserved for women, which were to be filled on the basis of special women's territorial constituencies, but which amounted to only 3 percent of the provincial and central assemblies. Thus, the Constitution granted women a dual franchise: for the three percent of the seats which were reserved for women and for the general seats as well.

The main victory for women in this period was brought about by the creation of the first national women's movement of Pakistan -- the All-Pakistan Women's Association (APWA) -- and its activism on behalf of women's rights. The organization was founded by the prime minister's wife, Begum Rana Liaquat Ali Khan, and was seen as an indication of the new government's commitment to improving the status of women. APWA was the moving force in Pakistan's early years behind improvements in women's access to education and health care, and it founded one of the first legal aid services for women. One of APWA's lasting contributions was its campaign against gender discrimination in the family. The campaign was sparked by the prime minister's decision to take a second wife, which led the government to establish a Commission on Marriage and Family Laws to review and reform existing laws on polygamy and divorce.

The Commission recommended improving women's legal rights of marriage, divorce and child custody. But these recommendations became enmeshed in the controversies over Pakistan's national identity that re-emerged in the constitutional debates of the mid-1950s. Pakistan's first government was under increasing attack by both conservative Muslims, for its failure to create a truly Islamic state, and by dissenters within its own party, for failure to stabilize the independent government. These pressures, coupled with mounting social and economic problems, created a crisis of confidence in state power. The government delayed adopting the Commission's recommendations for fear of further weakening its already tenuous hold on power. The government's decision about what to do was pre-empted by General Ayub Khan's military coup of 1958, which established the military as the central governing authority of independent Pakistan.

As noted, Ayub Khan viewed Pakistan's religious elites along with other dissident voices as obstacles to the country's progress. Although his reign instituted a period of martial law that contributed to the collapse of Pakistan's fledgling democratic structures, the effect on women was mixed: while Ayub Khan undercut some recent gains his regime also encompassed a period of remarkable development for women. In 1961, after considerable lobbying by APWA and several other women's groups, Ayub Khan's government promulgated the Muslim Family Laws Ordinance, which drew heavily on the Commission's earlier recommendations. ⁽⁷³⁾ Moreover, during his administration from 1956 to 1969, Ayub Khan adopted social and economic polices that led to women's increased participation in the labor market and their improved access to education. ⁽⁷⁴⁾

However, these seemingly progressive policies toward women were undercut by Ayub Khan's unwillingness to advance beyond a certain point for fear of compromising his political power base. The adoption of the Muslim Family Laws Ordinance was a major advance, but the limitations of Ayub's policies toward women were exposed by his vehement opposition to the popular candidacy of Fatima Jinnah, the sister of Pakistan's founder, for the office of president in the 1965 elections. ⁽⁷⁵⁾ Ayub opposed Jinnah on the grounds that no woman could be the head of state of a Muslim country, and he had several ulama, whom he had previously denounced, issue religious edicts to the effect that a woman head of state was un-Islamic. ⁽⁷⁶⁾

By contrast, driven by their own political calculations, the conservative religious parties, including the Jama'at-e Islami, which had steadfastly opposed every advance in women's rights since the creation of Pakistan, supported Fatima Jinnah's candidacy on the grounds that in "extraordinary circumstances" a woman could hold such an office. In this case, the "extraordinary circumstances" were that her candidacy, which was very popular, might result in the return to power of a government more sympathetic to their views than Ayub Khan's. As noted by Farida Shaheed, the Fatima Jinnah controversy "underscored the manner in which religion has been constantly used by political forces in Pakistan to further their own purposes and justify contradictory positions." ⁽⁷⁷⁾

Among the most serious setbacks of this period were the elimination of reserved seats for women (included in the 1956 Constitution) from the 1962 Constitution adopted during Ayub Khan's leadership, and the government's failure to implement the Muslim Family Laws Ordinance. In the absence of a concerted government effort, the law's effect was limited, and pre-existing cultural and religious norms continued to hold great sway. A study conducted 20 years after the law's passage found that women's limited access to legal redress in marriage- or divorce-related disputes remained severely limited by "lack of awareness, social and economic pressures, apathy, misconceptions and lack of faith in legal machinery and faulty or inadequate implementation of the law." ⁽⁷⁸⁾

In 1969, Ayub Khan's government was replaced by one under General Yahya Khan, who again imposed martial law. Yahya Khan's rule was short-lived, lasting only long enough to preside over the bloody civil war that ended with the partition of Pakistan and the creation of Bangladesh. In 1972, General Khan handed over power to Zulfiquar Ali Bhutto, whose Pakistan People's Party (PPP) had won a majority of National Assembly seats in West Pakistan in the election held just before the war. Women played a key role in mobilizing on the PPP's behalf, and the PPP political platform promised equality for women.

Bhutto's tenure, while characterized by political oppression similar to that of his predecessors, brought about additional advances for women. Most notable was the adoption of the 1973 Constitution which, for the first time in Pakistan's history, guaranteed women equality under the law ⁽⁷⁹⁾ and established their rights to full participation in all spheres of national life. ⁽⁸⁰⁾ That women still had a long way to go to exercise these rights had been underscored by the limited success of women candidates in the 1970 elections. The 1973 Constitution reserved 10 seats in the assembly for women, who would be nominated by the assembly members themselves. ⁽⁸¹⁾ This provision was not meant to undercut women's right to stand in general elections, but it made clear that women were still disadvantaged politically and lacked a strong popular constituency.

During Bhutto's administration, reforms opened up the Civil Service, the Foreign Service and other government agencies to women, and women's participation in government increased dramatically. With government support, an independent Commission on Women's Rights was established in 1975 to examine the status of women in Pakistan and propose legal reforms to improve their social, legal, political and economic conditions. In this period, the number of independent women's organizations engaged in social welfare and grassroots political activism increased.

The general failure of Bhutto's economic reforms alienated a wide spectrum of political groups, most importantly those from the urban middle class and the left, that had previously supported him. Bhutto's promotion of women's rights, while failing to address the vast social and economic inequities suffered by the majority of women in Pakistan, also added to a conservative backlash from religious parties who drew their support from the middle class Pakistanis who had been hit hardest by Bhutto's economic reforms. Finally, the military, which became increasingly disturbed over the deterioration of law and order, blamed the persisting problems on Bhutto's "populist" policies and overthrew him in a coup led by General Zia ul-Haq in 1977.

Zia's coup represented the convergence of conservative religious interests with those of the army. In the absence of any clear popular constituency, Zia cultivated the conservative religious parties to bolster his legitimacy. In return, he provided those parties, which had never had strong support from the electorate, with access to national political power. Zia came to power denouncing Bhutto's regime as un-Islamic, and one of his main rallying cries was the return of Pakistani society "to the moral purity of early Islam." His most vulnerable and strategic targets were women, whom he promised to return to "the sanctity of the chardivari [the four walls of the home]," thus resuscitating the family and women's role in it, as the cornerstone of a Muslim way of life. Within months he had introduced a series of legal and social changes that reversed many of the legal advances for women of the prior thirty years. This backsliding demonstrated that, despite seeming progress, the status of the majority of Pakistan's women had not changed substantially since independence. Women's few hard-won legal gains were easily curtailed.

With the imposition of martial law, Zia suspended all fundamental rights guaranteed in the Constitution, including the right to be free of discrimination on the basis of gender. He then introduced a series of laws that gave legal sanction to women's subordinate status, including the Hudood Ordinances, the Qanun-e-Shahadat (Law of Evidence Order) and proposed laws regarding Qisas and Diyat, Islamic penal laws governing compensation and retribution in crimes involving grave bodily injury. The cumulative effect of these laws is discussed in greater detail in the next section of this report.

Briefly summarized, the Hudood Ordinances penalize theft, drunkenness, fornication, adultery, rape and defamation. They require the testimony of four male Muslim witnesses to impose maximum punishment for rape, adultery and fornication. In adultery, fornication and rape cases for married persons, the maximum punishment is stoning to death; for unmarried persons, it is 100 lashes in a public place. Women's testimony was excluded, which had the effect not only of protecting men accused of rape from maximum punishments (which in any case are considered cruel and inhuman under international law), but also of disfavoring women who were, in the absence of four male Muslim witnesses to the act of penetration, unable to prove rape. This made women victims susceptible to charges that, rather than having been raped, they had committed the crimes of adultery or fornication. The Law of Evidence similarly relegates women to inferior legal status and, in some circumstances, renders the testimony of women equal to only half that of men. In addition, under the Qisas and Diyat laws proposed at the time, compensation for the death of a female victim was half that of a man. On the other hand, a woman charged with murder could receive the same punishment as a man.

Zia reinforced the legal strictures he imposed on women with a series of informal regulations and unwritten polices designed to curtail women's personal liberty and their participation in public life. In 1980, Zia required all government officials to adhere to Islamic dress codes. However, men were only required to wear national dress ⁽⁸²⁾ whereas women were expected to adhere to the stricter Islamic Code of Dress. In 1982, he followed this directive with another aimed solely at women, which required women teachers and students in government schools and all female government official to wear the chador ⁽⁸³⁾ over their clothes and to cover their heads. ⁽⁸⁴⁾ Female members of the Foreign Service were recalled and the Ansari Commission, set up by Zia in 1983 to "Islamize" Pakistan's political system, recommended that the office of the head of state be closed to women and that female members in the National Assembly be over 50-years-old and have the permission of their husbands to participate.

While the Ansari Commission's suggestions concerning women were largely ignored (with the exception of recommendations restricting the nature and length of women's appearances on television), they contributed to the chilling atmosphere of state-sponsored and -tolerated discrimination against women. According to Shaheed, the effect was to raise "an entire generation in Pakistan to distrust and dislike any woman deviating from...[the] norm of good, house-bound, veiled, self-effacing, self-sacrificing, second class citizen." ⁽⁸⁵⁾

The Zia era produced a shift in the relationship between women's rights and religion in Pakistani politics. Until 1977, the constantly changing religious and political alignments mitigated against both conservative and progressive extremes and, with the help of a growing number of independent organizations, women were able to secure a steady flow of moderate reforms, although their impact on the majority of women was minimal. After Zia's coup, the politics of the army and the religious right were so closely aligned that the opportunity for reform disappeared, and women took a step backward. Increased social control of women was an important part of the Zia regime's appropriation of conservative religious values to legitimate state power.

Zia's Islamization campaign had the effect not only of legitimating the existing subordination of women in the eyes of the state but also of intensifying that oppression. Women who deviated from prescribed social norms thus faced not only social censure but also criminal penalties. This development gave the more powerful and legally favored members of Pakistani society -- men -- a punitive sanction to hang over the heads of women and, by extension, their families. This situation was amply suited to the martial law government's need to exert and maintain social control.

Pakistan's poorer women, who had gained least from the legal reforms previously secured by their better-off sisters, were the hardest hit by Zia's retrenchment. The number of women in prison at any moment -- the vast majority of whom were illiterate and impoverished and, therefore, in no position to press for their rights -- soared, from as few as 70 in 1980 to as many as 4,500 in 1990. Their experience is the subject of the remainder of this report. A 1985 study by the Pakistan Commission on the Status of Women, whose findings were suppressed by the Zia administration, concluded that

women in Pakistan were treated as possessions rather than self-reliant, self-regulating humans. They are bought, sold, beaten, mutilated and even killed with impunity and social approval. They are dispossessed and disinherited in spite of legal safeguards [and] the vast majority are made to work for as long as 16 to 18 hours a day without payment. ⁽⁸⁶⁾

Yet despite, or perhaps because of, this intensified repression, it was women (particularly the better protected middle and upper class urban women) who formed the backbone of opposition to the Zia regime's exploitation of Islam for political ends. As noted by Khawar Mumtaz and Farida Shaheed:

It was only after the imposition of General Zia ul-Haq's martial law...that women belonging to the upper and upper-middle classes realized just how fragile their hold on rights was. With this came the realization that firstly, one could not depend on the central government to guarantee women's rights, women themselves would have to be mobilized and, secondly, that until a greater number of women became conscious of their lack of rights and were prepared to join forces to counter the prevailing trends, whatever rights were granted or enjoyed would remain insecure. ⁽⁸⁷⁾

In September 1981, women came together in Karachi in an emergency meeting to oppose the adverse effects on women of martial law and the Islamization campaign. They launched what was to become the first full-fledged national women's movement in Pakistan: the Women's Action Forum (WAF).

WAF grew steadily in its first two years, opening branches in most of Pakistan's major urban areas and attracting endorsements from all the established women's organizations, including the APWA. However, WAF's rise to national and international prominence did not come until February 12, 1983 when the Pakistan Women Lawyers Association organized a march on the Lahore High Court in which many WAF members participated to protest Zia's Law of Evidence. The march was the first public demonstration by any group against a martial law edict. Police broke up the demonstration using tear gas and batons, injuring some women and arresting nearly 50 others. Pictures of the courageous women being lathi-charged ⁽⁸⁸⁾ by the police were plastered all over Pakistan, and WAF along with women's rights issues were catapulted onto the national scene.

WAF was to become one of the main voices of opposition to Zia and the leading opponent of his policies toward women. WAF staged public protests and campaigns against the Hudood Ordinances, the Law of Evidence, the Qisas and Diyat laws (temporarily shelved as a result), the Ansari Commission's report, and the proposed 9th Constitutional Amendment. The Amendment, which was defeated in part because of effective opposition by women, would have placed the hard-won Muslim Family Laws Ordinance of 1961 under the jurisdiction of the Federal Shariat Court.

However, in challenging Zia's policies, WAF found itself challenging "Islam" and denounced as "un-Islamic," although nearly all of its membership was Muslim. WAF's quandary went to the heart of the relationship between religion and women's rights in Pakistani politics. It raised the question of what is meant to be by "Islamic" and whether, in an Islamic country, women's rights should be founded in religion or secular law.

From the standpoint of an international human rights organization, the provenance of women's rights in a given state is not of paramount concern -- so long as those rights comport with accepted international principles of equality before the law and equal protection of the law. Rather, it is abuses of women's rights by the state, no matter what the justification (religious, secular or otherwise) that warrant international condemnation. However, for women trying to obtain rights denied them by a particular state, the source of rights is often an important strategic issue.

From its inception, WAF hotly debated whether to adopt a secular or religious approach to securing women's rights in Pakistan. Some members promoted an understanding of Islam that supports and protects equality for women, and believed that this approach would be more persuasive to the majority of Pakistan's women. Other WAF members vehemently opposed this approach, saying that it would subject to religious interpretation rights that are already established as universal and fundamental, and that should not be modified in accordance with local cultural circumstances. In Pakistan, the two approaches have often been in conflict, yet WAF has attempted to use both -- a flexibility which has helped it to survive in difficult times. ⁽⁸⁹⁾

The coming to power of Benazir Bhutto in 1988 represented yet another radical shift in the history of women's rights in Pakistan. It amounted to an unprecedented alignment of state power with an apparently progressive women's rights policy. Bhutto's campaign pledge to repeal the Hudood laws, to release women imprisoned under Hudood, and to remove all other discriminatory statutes had great appeal. However, soon after Bhutto's election, it became clear that, once again, the protection of women's rights had been subordinated to the need to maintain a delicate balance between various political forces, including those representing conservative religious values. The PPP's failure to secure a majority in the national assembly made it necessary for Bhutto to strike political deals with smaller groups, including the Jama'at-e-Islami, and her campaign promises on women's rights gradually proved empty. Although Bhutto did release women sentenced under Hudood, she limited the amnesty only to convicted women. Pending-trial female prisoners, who constituted the vast majority, were not affected. Moreover, she never repealed a single one of Zia's Islamization laws. ⁽⁹⁰⁾

When Bhutto's government was dissolved in 1990, the women's groups that had been lulled into inaction by the appearance of a female Prime Minister were discouraged. The appointment of Nawaz Sharif, the present Prime Minister, appeared to provide little opportunity for progress. Sharif's political rhetoric was reminiscent of the Zia years. When he came to power in November 1990, he promised to adopt Islamic law as the supreme law of Pakistan, and in April 1991 he introduced legislation to that effect. Many women's rights activists, including WAF, feared that women would be forced to take yet another step backward.

Yet, despite Sharif's rhetoric, the political reality has shifted considerably since Zia's days. The interests of the state are not as clearly aligned with the religious right as during martial law; indeed, in some cases, they are clearly in conflict. In this context the implications of the Shariat Act remain unclear: on the one hand, after sustained lobbying by women's rights groups and the PPP, a clause protecting women's constitutional rights was incorporated in the act's language; on the other, the act as a whole has strong support from the religious right, even though it has opposed even the minimal guarantees added to the amendment. Women are particularly concerned that the reaffirmation of constitutional rights in the Shariat Act may not protect reforms like the Muslim Family Laws Ordinance that are not spelled out in the Constitution.

Today, the role of religious interests at the national level remains uncertain, as does the direction of government policy toward women. Regardless of its direction, however, clear violations of international law on the rights of women occur daily in Pakistan without an adequate state response. As the remainder of this report discusses, thousands of Pakistani women are being imprisoned under laws that are overtly discriminatory and are applied in a discriminatory manner. Once incarcerated, the large majority are subjected to physical and sexual abuse by police authorities.

A. Number and Treatment

Precise data on the number of women currently in police custody or prison in Pakistan are difficult to obtain. Police do not keep statistics separated by gender, nor do they compile national criminal statistics in any systematic way. However, available figures clearly indicate that, after a sharp decline in convicted prisoners during the tenure of Benazir Bhutto, the number of female detainees is rapidly rising.

A 1980 study of criminal justice in Pakistan documented only some 70 female convicts in the entire country. ⁽⁹¹⁾ By 1987, the number had increased to 125 female convicts in the state of Punjab alone, ⁽⁹²⁾ and an estimated 91 in the state of Sindh. ⁽⁹³⁾ The number of pre-trial female prisoners is even more difficult to determine because of their dispersal in jails throughout the country. However, according to police records for all of Pakistan in 1983, a minimum of 1,682 women faced trial for offenses solely under the Hudood Ordinances. That number increased to 1,843 in 1984 and has continued to rise ever since. In late 1988, according to a study conducted by Pakistani human rights attorneys Asma Jahangir and Hina Jilani, there were 503 female pre-trial prisoners in Punjab's 21 jails alone. ⁽⁹⁴⁾ By 1990, the number reportedly had reached 738. ⁽⁹⁵⁾ Sociologists Khawar Mumtaz and Farida Shaheed estimated that in 1990 there were a total of 4,500 women prisoners (both convicts and pre-trial) in the entire country. ⁽⁹⁶⁾

Compared to the number of men incarcerated in Pakistan these figures are extremely low. ⁽⁹⁷⁾ However, they represent a vast increase in the involvement of Pakistani women with the criminal justice system that, before the passage of the Hudood laws in 1979, had been minimal. Women's increased involvement in the criminal justice system has in turn exposed them to more frequent violence by the police.

Torture and abuse of prisoners in police custody -- particularly in police lock-ups ⁽⁹⁸⁾ -- are common throughout Pakistan, ⁽⁹⁹⁾ and abuses against women detainees are frequent. According to a 1988 survey of female prisoners in Punjab (both convicts and pre-trials), 78 percent alleged maltreatment while in police custody and 72 percent claimed they had been sexually abused by the police. ⁽¹⁰⁰⁾ Sexual abuses ranged from rape, including the insertion of foreign objects into the vagina and rectum, to beating and manipulation of exposed genital areas, to stripping and public exposure.

The U.S. Department of State's Country Reports on Human Rights Practices for 1991 cites a growing number of press reports "about the unresponsiveness to or even involvement of police in incidents of rape or abuse of women." ⁽¹⁰¹⁾ A study of newspaper reports for 1990 found that "the press records on a regular basis incidents of torture, sexual humiliation and ill-treatment of women in police lock-up." ⁽¹⁰²⁾ A random sample of crimes of violence against women reported in Pakistan's English and Urdu ⁽¹⁰³⁾ newspapers in 1991 revealed that of 20 alleged cases of rape or ill-treatment, 12 directly or indirectly involved police officials. ⁽¹⁰⁴⁾

By all accounts, these figures drastically understate the seriousness of the problem of abuse of women in Pakistani society, even in noncustodial situations. According to researchers in both Karachi and Lahore, 80 percent of all rape victims never take their cases to the police. Official statistics for 1991 in the city of Karachi, which has a population of approximately 7 million, reveal only 103 rape cases for the city's four districts. However, in the month of December alone, independent rape monitoring groups reported 21 rapes for Karachi's South District. ⁽¹⁰⁵⁾ According to Lahore-based researchers quoted in a recent study of rape, "the official 1991 figure of 1,117 reported rapes in the Punjab [population approximately 50 million] is not even the tip of the iceberg. In Pakistan, the social stigma attached to rape and laws that often lead to the victim herself being prosecuted [see below] have resulted in most cases of rape going unreported." ⁽¹⁰⁶⁾

B. Significant Characteristics of the Female Prison Population

The vast majority of Pakistan's female prisoners are poor and illiterate. A 1987 study of female prisoners in the Multan jail in Punjab concluded that the majority were from rural areas, 69 percent lacked any formal education, 26 percent could read only the Quran, and only a small proportion had some formal education. Seventy-one percent of the female prisoners came from Pakistan's lowest income bracket. ⁽¹⁰⁷⁾ A 1988 study of the Multan and Lahore prisons in the Punjab revealed similar, more disturbing patterns. Eighty-two percent of the female prisoners came from rural areas, 88 percent were completely illiterate, and more than half came from families with a monthly income of less than 1,000 Pakistani rupees, or roughly 40 U.S. dollars. ⁽¹⁰⁸⁾ These attributes place female prisoners in a particularly precarious position when they are in the custody of the police.

The researchers found that most of the detainees were unaware of their basic rights to due process and equal justice, nor were they in a position to secure counsel. Of 90 prisoners interviewed, 91 percent did not know under what law they had been accused. Sixty-two percent had received no legal assistance whatsoever, and of those who had lawyers, almost half had never met them. Of the entire female pre-trial population in Punjab in 1988, 45 percent had been in jail for over a year. Many had no legal representation at all. According to one female judge we interviewed, "women who do not have counsel will rot." ⁽¹⁰⁹⁾

Perhaps most disturbing is that many of the women detainees imprisoned under such circumstances do not belong in prison in the first place in that the law under which they were imprisoned is overtly discriminatory and, in any event, there is often no evidence to support the charge against them. According to a 1987 interview with the Inspector General of prisons, "[m]aybe 50 percent of the women in jail are innocent, but because they are unaware of their rights and are too poor to hire proper legal aid, they are convicted." ⁽¹¹⁰⁾ He told researchers investigating conditions in the women's prisons that most women prisoners were victims of intrigues and vendettas pursued by males. ⁽¹¹¹⁾ A local human rights attorney, who frequently acts of behalf of indigent women charged with Hudood offenses, estimates that over the vast majority of such cases are not supported by the evidence and should never have been prosecuted. ⁽¹¹²⁾

C. Why Women Are In Custody

The primary focus of this report is police abuse that women prisoners experience in custody. However, to grasp fully the desperate situation facing women in custody in Pakistan, it is necessary to understand why and how women are detained in the first place. Some have committed criminal offenses and are deservedly incarcerated. However, as discussed below, we found that women often end up in prison because of discrimination, either in the law itself or as it is applied (or ignored) by the criminal justice system.

The 1987 study of women in the Multan jail in Punjab, cited above, indicates that women are most frequently detained for spousal murder or for offenses under the Hudood Ordinances. Other less frequent offenses include theft, alcohol abuse, and possession of drugs or illegal arms. A large number of women from Bangladesh are also imprisoned in Pakistani jails, largely as a result of trafficking in women.

Murder is one of the two offenses that account for the majority of the female prison population. A 1987 study of 100 female convicted and pre-trial prisoners indicates that 42 were incarcerated for murder, and of these, the majority were accused of murdering their husbands. In late 1991, of over 30 convicts in the Multan jail, half were convicted for murder and sentenced to death. Nine of these had been charged with killing their husbands. ⁽¹¹³⁾

Until 1990, punishment for murder was governed by section 302 of Pakistan's Penal Code, which stated that "whoever commits murder shall be punished with death or imprisonment for life and should also be liable to fine." According to the 1987 study cited above, nine of the women convicted of murder were sentenced to death. Another 25 murder convicts were sentenced to 25 years in prison and, in some cases, lashes or a fine or both. ⁽¹¹⁴⁾ The remaining prisoners facing murder charges were sentenced to lesser punishment or were awaiting trial.

The issue of spousal murder has yet to be fully studied in Pakistan, and it is for the most part outside the purview of this report. However, preliminary research suggests that women who kill their husbands in Pakistan receive heavier sentences than husbands who kill their wives. Men accused of murdering their wives often received mitigated sentences pursuant to section 300 of the Pakistani Penal Code, which states that culpable homicide will not be considered murder if "the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of a person who gave the provocation." By contrast, women who kill their husbands are not known to benefit from this defense. According to preliminary research conducted by human rights lawyer Hina Jilani, most cases of "grave and sudden provocation" involve a man who has killed his wife because of marital infidelity.

Under the new penal law passed in 1990, murder and attempted murder along with the crime of causing grave bodily injury (both intentional and unintentional) are punishable by retribution (qisas) or compensation (diyat) for the benefit of the victim or his or her legal heirs. ⁽¹¹⁵⁾ When these laws were first proposed in the early 1980s during General Zia's Islamization campaign, the testimony of women was not accepted in the execution of qisas, which meant that a woman accused of committing an offense requiring retribution would not have been allowed to testify on her own behalf. Moreover, when the victim was a woman, the amount of diyat was halved. ⁽¹¹⁶⁾ The current law does not distinguish between the sexes with regard to payment of diyat, but both the amount of the diyat and the validity of a woman's testimony have been left to judicial discretion "in accordance with the qualifications prescribed by the injunctions of Islam." ⁽¹¹⁷⁾ This invitation to exercise discretion only with regard to women encourages judges to manifest their own prejudices and biases against women.

The Hudood Ordinances ⁽¹¹⁸⁾ account for much of the increase in the women's prison population since the early 1980s and are one of the major reasons why women are detained or jailed and why their complaints of police misconduct go unanswered. The Hudood Ordinances are Islamic penal laws introduced by General Zia ul-Haq in 1979 as part of his "Islamization" campaign. The Ordinances apply to all Pakistanis -- Muslims and non-Muslims alike -- and consist of five sections: the Offense of Zina (adultery, fornication and rape); the Offense of Qazf (perjury or defamation about fornication or adultery); the Prohibition (of Alcohol) Order; the Execution of the Punishment of Whipping; and the Offenses Against Property Ordinance. While as noted above, Human Rights Watch does not oppose laws founded on religion per se, as long as human rights are upheld, the Hudood laws violate such fundamental human rights and principles. They impose the death penalty and punishments deemed cruel and inhuman under international law and clearly discriminate on the basis of sex. The Offenses of Zina and Qazf and the Execution of the Punishment of Whipping Ordinance are the Hudood sections most relevant to the discussion of women in custody.

Zina, which can be translated as both adultery and fornication, is defined as "sexual intercourse without being validly married." ⁽¹¹⁹⁾ Zina-bil-jabr, which can be translated as rape, is defined as "sexual intercourse without being validly married" when it occurs without consent. ⁽¹²⁰⁾ Qazf, which can be translated as defamation, is defined as false accusations of Zina or rape. ⁽¹²¹⁾

The Offense of Zina Ordinance repealed the previous rape laws in Pakistan's Penal Code, ⁽¹²²⁾ which defined rape as compulsory sexual intercourse. The new law adds to this definition that both a man and a woman may be guilty of rape, and dramatically narrows the circumstances in which rape can be said to have occurred. Statutory rape, previously defined as sex with or without the consent of a girl under the age of 14, ⁽¹²³⁾ is no longer a crime, making it possible for a minor girl (defined as one who is determined by the court to have reached puberty) to be charged with engaging in illicit sex. ⁽¹²⁴⁾ In addition, the legal possibility of marital rape has been eliminated; by definition, rape is an extra-marital offense.

One of the most important changes brought about by the adoption of the Hudood laws, which has had a profound impact on the rights of women, is that for the first time in Pakistan's history, fornication (extra-marital sex) is illegal and, along with adultery, is non-compoundable ⁽¹²⁵⁾, non-bailable ⁽¹²⁶⁾ and punishable by death.

Once convicted of adultery, fornication or rape a person can be sentenced in one of two ways, depending on the religion and marital status of the accused, the witnesses and the evidence on which the conviction rests. The maximum sentence is known as Hadd, the singular of Hudood. It is a mandatory sentence that a judge may not mitigate. In the case of fornication and adultery, if the accused is a Muslim and (a) confesses ⁽¹²⁷⁾ or (b) there are four adult, pious, male Muslim witnesses to the act of penetration, then the accused must be sentenced to death by stoning. ⁽¹²⁸⁾ If, on the other hand, the accused is a non-Muslim and (a) confesses or (b) the crime is witnessed as described above, the accused must be sentenced to 100 lashes with a whip. Sentences vary according to the marital status of the accused: married offenders are to be stoned, while unmarried offenders (including widows, divorced women and prostitutes) are subject to 100 lashes. In any case, the maximum (Hadd) punishment for fornication, adultery or rape is identical. The testimony of four female Muslim witnesses is not adequate for the maximum (Hadd) punishment. To date, although Hadd punishments have been imposed, none has been carried out.

If the evidence falls short of what is required for maximum punishment but the case is still proven, then the accused is sentenced to a lesser class of punishment known as Tazir. Evidence for Tazir punishment is governed by the standard evidence code (Qanun-e-Shahadat) which was introduced by General Zia in 1984. The evidence code states that:

Unless otherwise provided in any law relating to the enforcement of Hudood...in matters pertaining to financial or future obligations,...the instruments shall be attested to by two men, or by one man and two women..., in all other matters, the court may accept, or act on, the testimony of one man or one woman" ⁽¹²⁹⁾

The use of the word "may" in the second part of the section provides for the admissibility of the testimony of women, but does not guarantee that such testimony will be admitted or given equal weight with that of a man.

At both the Hadd and Tazir levels of punishment, the burden of proof is on the prosecution to prove rape or adultery/fornication charges beyond a reasonable doubt. ⁽¹³⁰⁾ There is a general rule that if there are two versions of an incident, the one favoring the accused should be accepted by the court. For example, in one 1988 zina case, the benefit of the doubt was given to the accused and he was acquitted when penetration was not positively proved. ⁽¹³¹⁾ Other cases have also maintained that stains of semen or vaginal swabs do not necessarily mean that sexual intercourse has taken place; there must be positive proof of penetration or other corroborative evidence. ⁽¹³²⁾

In practice, at the lesser Tazir level the courts continue to exhibit a bias against female testimony. The courts tend to see women as complicit in sex crimes, notwithstanding a lack of evidence or evidence to the contrary. We found that while the courts extend the benefit of the doubt to men accused of rape, they set standards of proof for female rape victims that require extraordinarily conclusive proof that the alleged intercourse was forcible. Moreover, when women unable to prove rape are themselves charged with illicit sex, we found that the courts routinely set a lesser burden of proof for the prosecution and fail to extend to female defendants the same benefit of the doubt that is commonly granted to male defendants.

The Tazir punishment for adultery or fornication is up to 10 years in prison, thirty lashes with a whip and a fine of indeterminate amount. ⁽¹³³⁾ The Tazir punishment for rape is up to 25 years in prison and 30 lashes. For the purposes of Tazir, no distinction is made between a married and unmarried offender. ⁽¹³⁴⁾ It is important to note that insufficient evidence to impose a Hadd punishment does not eliminate criminal liability. The accused may still be convicted for Tazir. Most Tazir convictions result in a sentence of public whipping. While no Hadd punishments have been carried out, Tazir punishments of whipping, which constitute cruel and inhuman punishment under international law, do occur. ⁽¹³⁵⁾

All available research indicates that the majority of accusations under the Hudood Ordinances end in lesser Tazir rather than maximum Hadd punishments. According to attorneys Asma Jahangir and Hina Jilani, "twenty-six Hadd sentences were passed by the trial courts, but none of these was executed." However, "there has been an abundance f Tazir." Between 1980 and 1988, 4,831 appeals in Tazir cases reportedly were presented to the Federal Shariat Court. ⁽¹³⁶⁾

The following sections describe how the Zina Ordinance discriminates against women and has resulted in a sharp increase in the number of women prisoners, many of whom are innocent of the charges under which they are detained. The steep rise in the number of women prisoners has in turn increased the opportunity for police misconduct toward women. Simultaneously, the Zina laws have deterred women from reporting such abuse.

a. Discriminatory Effects

The Hudood Ordinances apply to Muslim and non-Muslim, male and female Pakistanis. As one commentary on the Ordinances notes, "all Pakistanis, regardless of sex, suffer the rigors of the system." ⁽¹³⁷⁾ However, we found that both in law and in practice the Hudood laws weigh most heavily on women.

First, in determining maximum punishment the law clearly discriminates against the testimony of women by disallowing it altogether. This means that women who have been sentenced to the cruel and inhuman Hadd punishments have been sentenced under a law that prevents them from testifying on their own behalf. Men have also been sentenced under these laws, but in general men accused of rape are effectively exempted from maximum Hadd punishment both because women victims cannot testify and because it is extremely unlikely that there would have been four male Muslim witnesses to the act of penetration. Asia Watch and the Women's Rights Project oppose the maximum penalties as cruel and inhuman and, although we recognize that no such punishments have been carried out to date, are distressed that nothing impedes the government from implementing them in the future. We recommend the immediate repeal of the laws authorizing such sentences, as well as the removal of all obstacles to a woman's right to testify equally with a man in a court of law.

The majority of Hudood cases involving Zina or Zina-bil-jabr are heard at the Tazir or lesser level of punishment. While the testimony of women is admissible at this level, we found as noted that the courts continue to exhibit a bias against women victims and defendants and their testimony is not accorded equal weight with that of men. As discussed below, this bias has three main results: (a) women find it extremely difficult to prove rape and, if they cannot prove rape, are themselves vulnerable to prosecution for fornication or adultery; (b) men accused of rape often receive unfairly reduced charges; and (c) women are often wrongfully prosecuted for Hudood offenses and are provided with limited protection from such ill-founded accusations. It is under these laws that the majority of women prisoners in Pakistan are detained, and thus exposed to abuse by police authorities.

Asia Watch and the Women's Rights Project take no position in this report on a government's decision to criminalize adultery and fornication per se. However, the criminalization of adultery and fornication in Pakistan, when coupled with the discrimination against women in law and in practice in Pakistan's criminal justice system, has created an extremely adverse and precarious situation for women, and in particular for women victims of rape.

We found that while Pakistani courts extend the benefit of the doubt to men accused in rape cases, they set standards of proof for rape victims that are colored by gender bias to such an extent that the woman victim must provide extraordinarily conclusive proof that her "participation" in impermissible intercourse was forced. ⁽¹³⁸⁾ We found that absent a showing of extreme resistance or severe bodily injury, the courts are prone to disbelieve the woman's testimony that the sexual act was non-consensual and are even likely to presume consent, which makes her liable to prosecution for adultery or fornication. ⁽¹³⁹⁾

In one 1982 case in which a rape charge was changed into one of adultery for the purpose of mitigation of sentence, Sohail Iqbal was accused of rape and the charge was supported by medical evidence. ⁽¹⁴⁰⁾ He was convicted and sentenced to 20 years' imprisonment, ten lashes and a fine of 2,000 rupees. On appeal, the Federal Shariat Court reduced Iqbal's rape conviction to fornication, resulting in a lesser charge carrying five years' imprisonment, ten lashes and no fine. The Court said "there is a possibility that the victim might have been a willing party to the offense." On further appeal, the Supreme Court criticized the Federal Shariat Court's earlier finding on the grounds that:

With respect it is pointed out the Federal Shariat Court failed to notice that the correct age of the victim was only 16 years....She has a frail body weighing only 94 pounds. She bore marks of violence on the back of both forearms....She was a virgin before the act. The fact that the gagging of her mouth with a cloth did not produce any injury was not indicative at all of either it being a false assertion or that it was unnatural....We are unable to agree that it might have been a case of consent. ⁽¹⁴¹⁾

In a 1983 case, the Federal Shariat Court reduced a rape conviction to one of fornication on the grounds that "since no violence was found on her body, it could be reasonable to infer that she was a willing party to sexual intercourse." ⁽¹⁴²⁾ In 1987, the Federal Shariat Court overturned a lower court's conviction of rape on the grounds that medical examiners "did not observe any injury on the thighs, legs, elbows, arms, knees, face, back and buttocks of the victim," and held that "she was bound to sustain injuries...as she was supposed to put up resistance." ⁽¹⁴³⁾ Although victims such as the 94-pound girl raped by Iqbal may have no chance of fending off an attacker, Pakistani judges seem to require that they resist and also suffer visible physical injury if they wish to defend themselves against charges of consensual sex.

If a woman alleging rape cannot prove that the encounter was forcible or non-consensual, she may herself be charged with the capital crime of adultery or fornication. In practice, we found in such cases that the standard of proof beyond a reasonable doubt is not applied equally. ⁽¹⁴⁴⁾ While the courts generally require rape charges to be proven beyond a reasonable doubt, they often accept a woman's rape allegation -- once disproved -- as prima facie evidence that she engaged in consensual extra-marital sex, despite the fact that a failure to demonstrate rape (coerced sex) beyond a reasonable doubt does not automatically prove beyond a reasonable doubt that consensual sex occurred. Put another way, we found that the benefit of the doubt that is rightfully accorded to men accused of rape often is not equally extended to women whose rape charges have been converted into charges against them of consensual sex.

The differing effect of available medical evidence often compounds this discrimination. Medical reports that show pregnancy or forced penetration introduced in support of the original rape charge can be used against the female victim to prove that impermissible sex occurred. However, medical evidence implicating the accused male is often lacking, so he may be released for lack of evidence while she is imprisoned pending trial.

The most infamous case of this kind is that of Safia Bibi, an 18-year-old blind girl who became pregnant allegedly as a result of rape in 1983. She was unable to prove her allegation of rape and was charged with fornication, found guilty, and sentenced to three years' rigorous imprisonment, 15 lashes and a fine of 1,000 rupees. While her pregnancy was cited to prove that she had engaged in extra-marital sex, her assailant was acquitted due to "want of evidence." After national and international protest, the Federal Shariat Court acquitted Safia of fornication on appeal. ⁽¹⁴⁵⁾

In another well-publicized 1983 case, 15-year-old Jehan Mina claimed her pregnancy was a result of rape. According to her testimony, she was doing domestic work for her aunt and was raped by her uncle and his son. Initially, her family members disbelieved and threatened to kill her. However, one uncle believed her charges and registered a rape accusation on her behalf. The court decided that her statement did not warrant a rape conviction because she had failed to register the complaint immediately. Instead, she was charged with fornication. In sentencing her to three years' rigorous imprisonment and ten lashes, the court stated that the case was

not a case where merely her statement [alleging rape] can be regarded as a basis of conviction, but in fact the basis of conviction is her unexplained pregnancy coupled with the fact that she is not a married girl. ⁽¹⁴⁶⁾

The two accused of rape were released for lack of evidence.

In a 1987 report on human rights after martial law in Pakistan, the Geneva-based International Commission of Jurists concluded that "there have been many reported cases where a complaint of rape has been made and the court has convicted and punished both parties for adultery or fornication...." ⁽¹⁴⁷⁾ According to a 1988 study by human rights advocate Asma Jahangir, these sentences are often upheld by the superior courts. ⁽¹⁴⁸⁾

As noted by Jahangir and Jilani:

[R]ecent empirical research has shown that the addition of Zina [fornication and adultery] has altered the entire legal picture on sex crimes. For example, a victim of rape now runs the risk of being punished under Zina whether she complains of rape or not. If she does, she must make out a water-tight case where there is no question whatsoever of her consent. Otherwise the offense changes from rape to Zina. Once the charge is converted to Zina, the rape victim herself becomes co-accused. If on the other hand, the victim does not complain of rape and as a consequence of it she becomes pregnant, she is herself charged with Zina....Victims of rape have now been placed in a snare. Silence is as risky as making a complaint. ⁽¹⁴⁹⁾

A 1991 report by Amnesty International describes an August 1989 case in Pakistan in which two nurses were raped at gunpoint by three interns in a hospital. One of the women tried to lodge a rape complaint with the police and found herself charged with illicit sex. According to Amnesty International's report, the woman lost her job and her marital engagement was broken off as a result of the charges. ⁽¹⁵⁰⁾

In November 1991, we investigated a case in which a rape accusation brought by 18-year-old Majeeda Mujid was converted into a charge of fornication against her. Majeeda told us that she had been working with her family at a brick kiln ⁽¹⁵¹⁾ for four months when the landowner and some other men abducted her. She was held by the landowner and others for over two months and raped repeatedly.

Ten days after her abduction, Majeeda's family filed a first information report (FIR) ⁽¹⁵²⁾ with the local police. Eventually, the landowner brought Majeeda to the Nawankot police station in Lahore and told her to tell the police that she was staying with them of her own will. She refused and told the police that the landowner had raped her. She was kept in the police station for six days without ever seeing a female police officer. On the sixth day she was taken to prison, having been charged by the police with fornication. She was held in the prison for over two months before being released pending trial. ⁽¹⁵³⁾

As might be expected, the real possibility of criminal prosecution has a deterrent effect on women victims' willingness to seek punishment of rapists as provided for by law. In a 1985 decision, the Federal Shariat Court observed that it is extremely brave of women to complain of rape under Pakistan's legal system. ⁽¹⁵⁴⁾ As one Pakistani analyst told us, "women in Pakistan do not see the law as a mechanism for their protection. They are afraid of it." ⁽¹⁵⁵⁾

Cases like those described above are not uncommon. However, more often Zina charges are not brought against the alleged rape victim by the courts. Instead, the woman victim is excused and, based on the possibility that she consented to the act, the accused is given the benefit of the doubt and the rape charge against him is converted to one of adultery or fornication to reduce his sentence. This occurs despite the fact that according to human rights advocates Jahangir and Jilani, "if the benefit of the doubt did exist, principles of criminal law require the court to acquit the accused and not to construe it as a mitigating circumstance." ⁽¹⁵⁶⁾ (As noted above, the Tazir punishment for adultery or fornication is considerably lighter than that for rape.) While in such cases the female rape victim is not criminally punished, she must still suffer the social stigma that comes from consensually engaging in impermissible sex, since her alleged rapist was charged only with adultery or fornication.

In A Divine Sanction?, Jahangir and Jilani documented a series of cases in which charges of rape were reduced to charges of adultery or fornication for the purpose of mitigating the alleged rapist's sentence. Pointing to several such cases, they note:

Ihsan Ahmed alias Nana was accused of abduction and rape. Possible consent of the victim was taken as a defense and accepted by the courts. The conviction was converted from rape to Zina. Niamat Ali was accused of rape on a minor. Doubt on the consent of the victim was taken as a mitigating circumstance. The conviction was converted to Zina....The Supreme Court reduced the sentence of Khushi Muhammas alias Bogi from fifteen years to five years. The conviction was altered from one of rape to Zina. Bahadur Shah was convicted of rape at trial. The FSC altered the conviction to Zina on the grounds that there were no marks of violence on the victim. ⁽¹⁵⁷⁾

Men accused of rape profit from the bias against female testimony. The presumption of female consent that underlies the tendency to reduce rape charges against men to lesser charges of adultery or fornication also yields a disinclination to credit women's testimony about rape.

However, men are by no means exempt from the sanctions of the Hudood laws. Men have been cruelly punished for rape. For example, on November 1, 1991, three accused rapists were flogged in the presence of 6,000 people following their conviction for raping a minor girl. The conviction and sentence had been upheld on appeal by the Supreme Court. ⁽¹⁵⁸⁾ In addition, as discussed below, men are also denounced as co-defendants in cases of fornication and adultery.

Since punishment for all Hudood offenses is determined under the same section of the penal law, the police keep no separate records for rape, adultery and fornication. Similarly, the courts do not keep separate records on rape and Zina. Thus, it is difficult to determine how many women in prison in Pakistan are incarcerated as a result of rape charges which were converted into charges against them. However, available research indicates that by far the most frequent accusation that women face does not result from complaints they bring themselves (e.g., of rape), but from accusations of Zina (adultery and fornication) filed against them by others.

Prior to the implementation of the Hudood Ordinances, under Pakistani penal law (which, as noted, was derived from British colonial law) adultery charges could be brought only by the husband of the alleged adulteress. Moreover, the female party to adultery could not be criminally punished. As noted by Jahangir and Jilani, "British legislators relegated women to the status of secondary but protected citizens." ⁽¹⁵⁹⁾ Under the new laws, all parties are punishable, adultery and fornication are non-bailable and non-compoundable offenses, charges of Zina can be made by any person, whether aggrieved or not, and police are empowered to arrest without warrant and, in effect, without probable cause (see discussion of Police Rules below).

As noted by one commentator, "the situation is fraught with the danger of malicious prosecution, police harassment and abuse of power," that places all Pakistani citizens regardless of sex at risk. ⁽¹⁶⁰⁾ However, women, because of their subordinate social and economic status in Pakistan, and the discriminatory application of the Hudood Ordinances, are particularly vulnerable to such dangers and disproportionately victimized by these laws.

We found that disgruntled husbands and fathers may bring ill-founded adultery or fornication charges against their daughters and wives who, on the basis of such accusations, often unsupported by any evidence, are arrested and imprisoned pending trial. According to attorneys Jilani and Jahangir, "often husbands file Zina cases against their wives or former wives, either to keep them in forced marriages or simply to humiliate them. Mere suspicion of adultery by the wife is often reported as Zina." ⁽¹⁶¹⁾ Of the 90 women prisoners accused of Zina surveyed in 1988, more than half had been accused by their husbands or fathers.

In a 1987 case, 24-year-old Roshan Jan filed for divorce from her husband on the grounds of severe physical mistreatment, and moved into her neighbor's house. Her husband then lodged an First Information Report (FIR) with the local police alleging that she was committing adultery with the neighbor, who was married. On the basis of this allegation, she was arrested and imprisoned pending trial. The outcome of this case is not known. ⁽¹⁶²⁾

In a 1986 case, a husband accused his wife Riaz Begum of having illicit sex with a family friend, Gul Zaman. The trial court convicted the two accused and sentenced them to 10 years in prison and 30 lashes in public. On appeal they were acquitted for lack of evidence. At the time of the acquittal, the husband stated, "it is correct that I have not suspected my wife of having illicit relations...I had not suspected the accused Gul Zaman of illicit relations with my wife, however, the people used to talk regarding their illicit relations and I gathered it was true." ⁽¹⁶³⁾

Women who divorce and re-marry are also at risk of malicious denunciation under the Hudood Ordinances. According to the Muslim Family Laws Ordinance, passed in 1961, a man seeking to divorce his wife, after pronouncing the divorce to her orally (talaq), ⁽¹⁶⁴⁾ must send written notice of the divorce to a local council and provide a copy to his wife. After this official registration, 90 days (iddat) must pass before the divorce becomes legally binding. During this three-month period, an arbitration council is established to try to reconcile the couple. If it succeeds, the divorce is revoked.

Since the 1979 passage of the Hudood laws, a husband's failure to register a divorce has often resulted in criminal penalties against the wife. Women who have re-married mistakenly believing that their first husband had properly registered the divorce have been charged by that husband with adultery and, in some cases, rape. The charge of rape is sustained on the grounds that the re-married woman misled her second husband to believe that she was validly divorced and thus eligible to have sex with him. ⁽¹⁶⁵⁾ Such prosecutions have occurred even in cases in which the woman believed she was divorced and validly re-married, despite the Hudood law's authorization of punishment only in cases in which where the accused does not believe she is legally married to the victim. ⁽¹⁶⁶⁾ Such prosecutions violate the internationally accepted requirement of mens rea, or criminal intent, for determinations of criminal guilt.

On November 7, 1987, a court in Karachi sentenced Shahida Parveen and Mohammed Sarwar to death by stoning for adultery and rape. Shahida had been divorced by her first husband and married Mohammed after the required 90-day period. Shahida had an affidavit attesting to her single status. However, unbeknownst to Shahida, her first husband had failed to register their divorce as required under the Muslim Family Laws Ordinance and decided that he wanted her back. Because Shahida's first divorce was not recognized by the court, she and her new husband were charged with adultery and rape and sentenced to death. The sentence was later overturned by the Supreme Court on the grounds that it had no basis in law or fact, but not before Shahida had spent over nine months in prison. ⁽¹⁶⁷⁾ Mohammed, the co-defendant, was also previously married and had not divorced his wife. However, he was released immediately on bail and, since polygamy is legal is Pakistan, was easily acquitted.

Women who decide to marry against the wishes of their relatives can also be denounced under the Hudood laws. Of the 44 women in Karachi Central jail in 1987 who were charged with Hudood offenses, over half were accused of having committed Zina due to leaving their homes with a man of their choice, which is often interpreted as abduction by Pakistani courts. ⁽¹⁶⁸⁾ A woman freely choosing to accompany a man is commonly understood to have been abducted and, simply is presumed to have committed fornication. As discussed in the section of this report on the judiciary, there is little sympathy from the police or the courts with the notion that she would choose to go of her own free will. Rather, in Pakistani society and in the eyes of the court, a woman is not a free agent and has no right to leave her family against their will. Thus, if she does so, she in effect abducts herself from them.

In a landmark 1982 case, Allah Bux and Fehmida were sentenced to death by stoning and 100 lashes respectively for fornication. The original charge was brought against the couple by Fehmida's father, who had objected to her desire to marry Allah Bux with whom she then eloped. After failing to convince her to return freely to the family, Fehmida's father filed a report with the police alleging that Fehmida had been abducted. Despite the couple's repeated contention that they were married (although they waited to get married until two weeks after Fehmida was pregnant, a fact which was interpreted by the court as a confession of Zina ⁽¹⁶⁹⁾) and upon finding that Fehmida was pregnant, the Court sentenced them both to maximum punishment under the Hudood laws. The conviction was later overturned by the Supreme Court for lack of evidence.

In a 1987 case, Zahida was denounced by her father for running away with a man whom her family did not want her to marry. On the day she left with her chosen husband-to-be, her father lodged a complaint of abduction against them and the police detained the couple. Despite Zahida's contention that she ran away of her own free will, both she and her fiancé were imprisoned and charged not only with abduction but also with illicit sex. ⁽¹⁷⁰⁾

Women are also found guilty of being accomplices in their own abduction, despite the illogic of the claim. In one case reported in a local Karachi daily, 18-year-old Azra Parveen was allegedly abducted by a bus driver who was picked up by police after a complaint was filed by her father. Azra was recovered at the time of the arrest, but rather than returning her to her family the police arrested her as an accomplice to her own abduction. According to Azra's attorney's, the Karachi-based Lawyers for Human Rights and Legal Aid, the police requested 10,000 rupees from Azra's parents in exchange for their daughter's release. ⁽¹⁷¹⁾ In A Divine Sanction?, Jilani and Jahangir note that such cases are common.

The Hudood laws are also abused by police officers both to extort money and to exercise social control over women and, through them, the broader population. It is common for women to be denounced under the Hudood Ordinances by police seeking to pressure men to whom the women are related. According to the U.S. State Department, "the predominately male police force reportedly uses the Hadood [sic] Ordinances to threaten people on the basis of personal and political animosities." ⁽¹⁷²⁾

In one 1990 case, four women were taken from the house of Mrs. Halim by police who were searching for the women's male relatives. The four women were brought to the police station, reportedly after being molested by several police en route, and illegally