(New York) - The Pakistani government’s proposed amendments to the Hudood Ordinances are grossly inadequate and fall far short of the reform required to end legalized discrimination and deter violence against women, Human Rights Watch said today.
The Hudood Ordinances – a set of laws that, among other things, criminalize adultery and non-marital sex, including rape – were enacted in 1979 and have led to thousands of women being imprisoned for so-called “honor” crimes. The laws rendered most sexual assault victims unable to seek redress through the criminal justice system, deeming them guilty of illegal sex rather than victims of unlawful violence or abuse.
Pakistan’s National Assembly is meeting this week to consider amendments to the Hudood Ordinances that would introduce minor procedural changes, but fail to address fundamental problems with the laws. For example, a person charged under the Hudood Ordinances will now be able to post bail. However, the discriminatory provisions that criminalize sex outside of marriage, value women’s testimony as half that of a man’s, and fail to recognize marital rape remain in force. Islamic Shari’a punishments, including stoning to death, lashing and amputation for various offenses, would also remain.
“Any relief provided to those charged under these unjust laws is welcome,” said Brad Adams, Asia director of Human Rights Watch. “But the proposed amendments don’t end the discrimination. The Hudood Ordinances are fundamentally flawed and must be repealed in their entirety.”
Human Rights Watch said that Pakistan should ensure that it complies with its obligations under the Convention on the Elimination of Discrimination Against Women, which calls on states to modify or abolish laws that discriminate against women. Human Rights Watch called on Pakistan to decriminalize adultery and non-marital consensual sex and adopt rules of evidence that give equal weight to testimony given by men and women.
In addition, Human Rights Watch said that Pakistan should improve support services such as shelters and burn units for women, raise public awareness about the laws and better train police to deal with victims of sexual assault.
In August 2003, Pakistan’s National Commission on the Status of Women conducted a thorough examination of the laws and recommended that they be repealed. Human Rights Watch urges President General Pervez Musharraf and members of the National Assembly to implement the 2003 recommendation and reject the current proposed amendments.
“There is a lot of public support to repeal these unjust laws, in part thanks to the government’s efforts to raise awareness about this issue,” said Adams. “If President General Musharraf does not seize the moment to repeal these laws, he will be doing a tremendous disservice to the women of Pakistan and breaking another international commitment.”
Background on Hudood Ordinances
After General Zia ul-Haq came to power in 1977 through a military coup in Pakistan, he imposed and suspended all fundamental rights guaranteed in the 1973 Constitution, including the right to be free of discrimination on the basis of sex. He then introduced a series of laws that codified women's status as subordinate in law, including the Hudood Ordinances and the Qanun-e-Shahadat Order (Law of Evidence Order), which relegated women to inferior legal status and, in some circumstances, rendered their testimony to half the weight of a man's. Zia also proposed Islamic penal laws governing compensation and retribution in crimes involving bodily injury, including “honor” killings.
As a result of these changes, rape was no longer covered by the standard penal code, but by the Offence of Zina Ordinance, a subcategory of the Enforcement of Hudood Ordinance of 1979. Prohibited sexual activities, including rape (zina bil jabr), became religious offenses, subject to different evidentiary standards and punishment and the appellate jurisdiction of Islamic higher courts.
Pakistan's previous rape laws, repealed by the Zina Ordinance, had defined rape as compulsory sexual intercourse. Statutory rape, previously defined as sex with or without the consent of a girl under the age of 14, was no longer a crime, meaning that girls could be charged for engaging in illicit sex if they had reached puberty. Marital rape, too, was no longer considered a crime.
In addition, for the first time in Pakistan's history, fornication (non-marital sex) became illegal. Both it and adultery became non-compoundable, non-bailable, and punishable at maximum by death. Since the crime of statutory rape was also eliminated, minor girls may also be charged with engaging in illicit sex if they have reached puberty.
Currently, the only guaranteed way to obtain a rape conviction is if the accused confesses or there are four adult male witnesses to the act of penetration. Otherwise, the courts have no consistent standards of proof for rape. As a result, courts sometimes view a woman's allegations of rape as an admission of illegal sex, making sexual assault victims susceptible to prosecution themselves.
In the 1980s, the government prosecuted hundreds of women for adultery or fornication unless they provided extraordinary conclusive proof that their “participation” in impermissible intercourse was forced; the accused rapist, on the other hand, was usually acquitted of all charges. Such cases have been less frequent in recent years, although the risk remains.
The Pakistani Constitution was re-instated in 1985, subject to substantial amendments, by Zia ul-Haq, only to be suspended again by the military government in October 1999. It was restored in stages between November 2002 and March 2003, and although it contains provisions guaranteeing equality before law and prohibiting discrimination on the basis of sex alone, the Hudood Ordinances have been permitted to co-exist.