A Critique Of

The Women Protection Act

By Abdul Rehman

 

The list of hotly debated topics now-a-days, include, undoubtedly, the recently passed Protection of Women Act. The act has, since it was tabled in the National Assembly, attracted strong support from the mainstream media. The act has been repeatedly labeled as a ‘relief’ and ‘source of justice’ to women, but, the authenticity of this claim is questionable. A brief discourse on the salient features of the act will itself be sufficient to shatter the veracity of this shallow claim.

First things first, the act has removed the section of ‘zina-bil-jabr’ from the zina ordinance, incorporating a new section into the PPC for ‘rape’. The move, portrayed as a ‘relief’ to women from a tough evidence requirement of four witnesses, has been warmly welcomed by feminist groups. The rationale for this provision, as described by the respected president, was to punish the rapists without the need of four witnesses. A case of rape, according to the supporters of this act, was converted to a case of adultery—without four witnesses—in the old ordinance.

Without going into the depths of legal documents, a single quotation from a case will be sufficient to burst this hollow balloon of mere propaganda. Justice Saeed-ur-Rehman Farrukh ruled, in Shabbir alias Kakku & other vs. The State (SBLR 2004 FSC 35), that: “It is well-settled that conviction can be based, in rape case, on the solitary statement of the victim of rape if the same is found truthful and confidence inspiring.” Similar judgments of the Federal Shariat Court include, inter alia, Mukhtar Ahmed vs. The State (1996 SD 1), Muhammad Umar vs. The State (1999 P.Cr.L.J. 699), Gulsher vs. The State (2004 SD 159) and Muhammad Zafar Naeem vs. The State (2004 SD 352). The Federal Shariat Court, as early as 1985, had ruled in Mst. Safia Bibi vs. The State (PLD 1985 FSC 120) that in the absence of sufficient evidence, a case of rape will not be converted to a case of adultery. Such judgments & the de jure provisions of the hudood ordinance, deliberately concealed by the media and some other legal experts, have never been brought to the front for the general public. Had it been done, the opinion of a sizable chunk of the population would be much different.

It may be pertinent to note here that under the old hudood ordinance, there were two types of punishments, viz. tazir and hadd. Hadd is to be awarded when the crime of rape stands proved by the testimony of four Shar’ai witnesses or voluntary confession. If such evidence is not available, a tazir is awarded to the accused on the basis of such evidence as may be available, provided the crime is proved beyond reasonable doubt. Apart from medicolegal report (MLR), circumstantial evidence, etc. the acceptable evidence includes the testimony of women witnesses. In Rashida Patel vs. The State (PLD 1989 FSC 95), it was ruled by the FSC bench that women can appear as witnesses before the court and tazir shall be awarded to the accused, on the basis of their evidence. After the passing of the bill, this particular point i.e. not accepting the evidence of women has disappeared in thin air.

Keeping the above discussion in view, it becomes crystal-clear that the act under discussion has simply eliminated the hadd punishment for rape and added death as a tazir, if the court deems fit. Astonishingly, life imprisonment has been added as an option for tazir, in cases of gang rape, whose earlier sole punishment was death. This reflects double standards, as the corroboration provided in the “statement of objects and reasons” is that judges don’t want to punish gang rapists with death in a number of cases. The onus here is that if judges are reluctant to award death in cases of gang rape, will they ever exercise this punishment in cases of rape?

Despite huge slogans of ‘removing ambiguity’, the act is, in fact, a source of ambiguity. While it removes and modifies a number of sections, it is completely silent as to the fate of cases filed in accordance with the old sections. The hearing and judgment in such cases has now become such a question to which none can furnish a satisfactory answer. Cases will have to be filed afresh, as this seems the most probable scenario, which will only increment the suffering and loss of time & money of the complainants.

Contrary to the sweet title, the act removes the punishment for selling or engraving matter of the nature of ‘qazf’. The tazir for qazf has been removed and despite awareness of such a provision, the consequences have not been measured by anyone. The right of punishing a person for committing qazf against a non-Muhsan woman—which include non-Muslim, minor and insane women—has been eliminated. An imputation of ‘zina’, which is true, albeit, is made only for destroying the reputation of a certain woman, is not punishable—thanks to the recent act; the punishment was there in the old ordinance. The question as to whether such women can seek justice under PPC 499 is a matter of law, but, the fact still remains that such criminals will now get lesser punishment.

Embedding tazirat within the PPC is a very oft-iterated recommendation, but, the consequences aren’t pleasing. The impact of such a provision is effectively zero, provided the transfer is transparent and tazir punishments are preserved. Unfortunately, this is not the case with the present act, which removes all forms of whipping from the tazirat. The punishment for buying or selling prostitutes, is an ideal example in this case, which has been decreased from life imprisonment & whipping to simple imprisonment, which must not exceed 25 years—but, it could be as less as the period already undergone by the accused. The question of ‘who’ will get protection from such a provision is a food for thought for the readers.

Among the various amendments in the procedural laws, a few of them are of considerable interest. Firstly, the punishment for attempting to commit an offence, or abetting an offence, has been omitted. Secondly, a criminal conspiracy of any offence, covered by the hudood ordinance, is not punishable anymore. No imprisonment or similar punishment shall be awarded, upon non-payment of fine by criminals, for the offences mentioned in the hudood ordinance. More surprisingly, a sentence of hadd can now be remitted by the provincial government or the president—a provision which defies the open injunctions of Islam.

Filled with lacunae, both the article of fornication and false accusation of fornication, reflect the carelessness with which the draft was prepared. The article of false accusation of fornication lacks the exemptions which are mandatory for such sections. Accusation made in good faith is also punishable and words, such as “intending”, etc. have been avoided altogether.

The article of fornication shares the traits of a hurriedly-drafted product. The phrase “a man and woman” is devoid of any further provisions, such as sanity, maturity, etc. The proviso enshrining penetration to be sufficient to constitute the offence, has not only been omitted, but is explicitly removed from the hudood ordinance. Another loophole left in the definition is that the term “married” is used, instead of the phrase “validly married.” Though, such changes are explicitly brought about in the definition of zina, the exact interpretation of such provisions has been left scot-free. Such changes are not unique to the definition and alien to other parts; the punishment has been decreased a lot too. Imprisoning a person for upto 25 years, for selling prostitutes, but, imprisoning upto only 5 years, for actually committing an illicit intercourse (i.e. fornication) is something to which no meaning can be attached.

Changes in the procedure for filing complaints of zina, fornication and qazf, point unmistakably to the inference that eradicating immodesty & immorality, in the society, is no more a duty of the state. Committing fornication, as enshrined by the new act, is not an offence against the state, as the police have been deprived of any authority in the matter. A complaint in the court of magistrate, by someone who dislikes immorality, in his personal capacity, is the only possible way—a path filled with thorns as well as pitfalls. Two witnesses and four witnesses are required, at the time of filing a complaint of, fornication or zina, respectively—a first of its kind in the whole CrPC. And to add more spices, filing a complaint which is not entertained by the presiding officer, is an offence against the state. The state punishes, in a nutshell, those only who try to eradicate immodesty—but not those who spread it.

A key feature of the act is the inclusion of a provision which debars the conversion of rape cases into adultery, even if adultery is proved beyond the shadow of doubt. Such a provision leads us to another fissure in the act, in that two persons can commit adultery, but lodge an FIR of rape. From the evidence on record, rape would not be proved and since, the case can’t be converted to a zina case, the two offenders will be left free of charge to enjoy another night.

A few may argue that the provisions discussed above will provide relief to the women languishing in jails. Essentially, this argument is based on lack of knowledge, because, the hudood ordinance is not related at all with arresting people—it is the CrPC which is responsible for this. Just for waiting trial, the innocent people who dwell in jail, are actually the victims of the police and the slow judiciary system. The Law Reforms Ordinance, 2006 passed earlier this year, provides that no person shall be arrested for zina barring on an arrest warrant, issued by a court of competent jurisdiction. In addition to this, a case of zina will only be investigated by police officers, who are not lower in rank than an SP. Extending from the premise that no innocent woman was languishing in jail, it is senseless to make such provisions in this regard, which leave lacunae in the curbing of sexual offences.

Despite excessive changes in the procedure of filing complaints for zina and qazf, no change has been made in case of ‘rape’. A point highly capitalized by the media, before the passing of the act, included the miserable state of a woman who had been raped by those police officers, from which she sought help. This point has disappeared in thin air, since the passing of this act, albeit, it has not been remedied yet.

To sum up then, an unbiased view of the whole act will, willingly or unwillingly, turn the compass needle towards the fact that the so-called ‘protection of women’ act is a de facto effort to accumulate all factors for spreading immorality in the whole society.

Abdul Rehman,

Edwardes College Peshawar,

Wednesday, December 20, 2006 C.E.