Beena Sarwar March 28, 2004

Tags: women-rights , hudood , law , pakistan

href="/tag/women">women to be locked up, often for years, in jails that house three times their capacity (male prisons are even more overcrowded, housing five times their capacity).

Most women (90 per cent, according to official sources) are eventually acquitted, which means they were unfairly accused in the first place. But most are also desperately poor and powerless, with limited access to lawyers and bail money. Some, like 22-year old Samina, receive bail that is then cancelled.

Samina is among the over 1,200 female under-trial prisoners (UTPs) in Pakistan, who will not benefit from the President’s remissions. These apply only to female convicts - just 463 across the country. The categories to be provided relief are: female convicts whose children are in jail with them (sentences to be reduced by a year), girls under 18, and women over 60, who have served at least one-third of their sentence (to be released).

There are few under-18 or over 60 year old female under-trial prisoners or convicts in Pakistani prisons (Karachi Women’s Prison has no under-18s, a couple of over-60s, and only six convict mothers whose children are with them). The more urgent need is to re-examine and overhaul the legal system which is being used to punish women like Samina, not for any violent or heinous crime, but for going against social norms.

The concessions are conditional on the convicts not being implicated in terrorist cases or heinous crimes like murder - or implicated in cases of theft, drugs, or ’zina’. The President intends to take this last matter up with the law ministry, because as he rightly questioned, "What kind of zina would an under 18-year old girl be involved in?" A point worth considering in this context is that in many countries, sexual relations with a minor are statutory rape, even if the minor’s consent was supposedly involved.

The weapon of choice for families wanting to punish daughters going against their wishes is the Zina ordinance. Seventy-one out of the 190 female UTPs in Karachi face zina charges; only one has been convicted.

Samina says she couldn’t stand living at home. "My father was always beating my mother, who was the only earning member in the family besides me. Then I met Imran, and he asked me to marry him. I liked him, and I agreed. The day I went away with him, my father had really beaten my mother badly. He took me to the court and we got married. but now the same court is being used to punish us.Why?"

"We only got married, we didn’t commit any crime," says her husband, gesturing with a shackled hand as they sit together on a dilapidated bench outside the court - the only way they can now meet until the matter is settled.

Samina narrates that her father initially tried to file kidnapping charges against her husband. "The police came to arrest him, but I told them that I had gone of my own will and we were legally married. They told my father they couldn’t do anything." She alleges that her father then offered the police Rs 50,000 to get her back. "I heard all this, sitting there in the police station while they argued. After some time, the police found a way out for my father."

This way out was to file charges under the Zina Ordinance, by accusing Samina of contracting a second marriage while already married. "I was engaged to my cousin," she says. "If there was a previous Nikah, why did they take six months to produce a nikahnama? The judge never even asked us anything, just cancelled our bail."

Since then, both have been in prison, but say they have no regrets. Samina’s labourer father-in-law standing nearby has already spent thousands on legal fees for the couple; Samina’s father has offered to settle out of court for three lakh rupees - which her in-laws are willing to try and raise, but Samina refuses. "That would be like my own father selling me," she says. She and her husband would rather stay in jail "as long as we are fated to".

"There are many girls like me in jail," she says. Others are co-accused with male relatives, or accused instead of male relatives. Some don’t even know what crime they have been charged with. Saima, accused of dacoity, had her bail recently rejected by the High Court. Tahira, who has been in jail for almost six years, recently sent her 7-year old son to live with her mother. She has been sentenced to 25 years for kidnapping, along with her policeman husband who was framed, she says, by his enemies.

Shumaila, brash and articulate, also faces kidnapping charges; the co-accused, her husband, is absconding. "If we get a bail order, we don’t have the bail money," she says, chewing gum defiantly. "If the lawyer comes to court, the judge doesn’t show up." Her greatest worry is for her 6-year old son, who is with her - one of the 46 children who live with their mothers in Karachi Women’s Prison.

Even if they are guilty, points out activist and researcher Nazish Brohi, author of "Trapped: women in custody" (ActionAid, 2003), most of these women don’t pose a threat to society. Instead of locking them up, they should be rehabilitated and absorbed in society. "If you look at their cases, you’ll find that few women have actually murdered someone, or picked up a gun and committed a robbery," says Brohi. "It’s not that men have an easy time of it, but women are more vulnerable in our society. Also, because they are the primary care-givers, their families and children really suffer along with them when they are locked up." They are in prison not for crimes, she believes, but because for challenging the status quo in a patriarchal society.

The disproportionately large number of women charged under the zina laws calls for an examination of these laws. Consider that until 1979 when the Hudood Ordinance was promulgated as part of Gen. Zia’s ’Islamisation drive’, the words ’hudood’ or ’zina’ were not even part of the public discourse in Pakistan. Directly affected persons - a wife or husband - could register cases of adultery, but only against men - a limitation that protected women in a male-dominated, feudal society where women are rarely in control of their lives. Adultery was punishable with a relatively minor fine and/or imprisonment, and the state could not be a party.

The Hudood Ordinances (Offence of Zina) led to thousands of women being incarcerated: there were 70 women prisoners country-wide in 1979, a number that had increased to 6,000 by 1988. Since Gen Zia’s passing and the ’restoration of democracy’, the figures have declined - 2,200 in by the end of the year 2002, and about 1,700 currently, according to Human Rights Commission of Pakistan.

However, lawyer and activist Asma Jahangir notes that this drop may be due to the fact that more women are able to obtain bail than before, thanks to a relatively more sympathetic and sensitized judiciary and a greater overall awareness (more sympathetic organizations and individuals now provide these women with financial and legal assistance). So the decline in women’s prison population does not necessarily reflect a decline in the number of cases.

Hudood Ordinance supporters argue that thousands of women have "only" been imprisoned for ’zina’, that no ’hadd’ punishment has been carried out even if awarded, that most women are acquitted. But then, why should they suffer prison in the first place? Most women prisoners are desperately poor. Their basic needs are taken care of in jail -- health care, education, food, clothing and shelter -- but they would rather be free and starving, than sheltered, educated and fed in prison. As Samina says, "Yes, jail has all the facilities, the conditions are good. But imprisonment is imprisonment. there’s no place home, even if it’s just a hut."

So far, remissions to prisoners have been linked with some national or religious holiday, like Independence Day or Eid, or the limited concessions announced recently by the President just before Pakistan Day, March 23. A new kind of remission was announced on March 19 by the NWFP government - for prisoners who pass Holy Quran translation exams and Dars-e-Nizami courses. This was previously not included on the list of valid reasons to grant the lessening of jail terms -- never mind that this condition discriminates against prisoners from other faiths.

Of more use than limited remissions would be an overhaul of the justice
system that allows so many, mostly poor, women - besides juveniles and men - to be incarcerated in the first place. Various efforts are being made to provide some kind of relief, but these efforts address the symptoms of the problem, rather than the problem itself.

For instance, the Sindh Government notified a the Legal Assistance Committee in January as a pilot project, partly funded by the government and partly by philanthropists at home and abroad. Headed by the former Supreme Court judge Nasir Aslam Zahid, who also chaired the 1997 Women’s Commission, the project will enable a team of full-time lawyers to be based within jail premises for the first time. Their office is being built in a disused Anti-Terrorist Court, designed gratis by architect Faiz Kidwai, with material costs being covered by contributions from the Rotary Club and others.

These efforts follow ongoing aid to female prisoners by such philanthropic organizations and individuals, who have in the past raised funds for air tickets enabling the repatriation of foreign prisoners who have served their sentences. The All Pakistan Physicians of North America (APPNA) has a special committee on violence against women, spearheaded by Dr Zafar Iqbal in New York and Dr Amna Buttar in Chicago. They have collected over $25,000 towards lawyers’ fees and bail money in Karachi (through Justice Zahid) and Lahore (through Dr Yasmin Rashid).

But if the President really wants to help women in prison, he would do well
to act upon the recommendation of the government’s National ommission on the Status of Women (NCSW) and repeal the Hudood Ordinances. This would have far greater impact than a limited remissions and pardons that will benefit only a few victims of an unjust system.

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Prisons in Pakistan
Number of prisons: 89
Prison Staff:13,000
Prison capacity:35,500
Prison Population:80,653
Overcrowding:4 5,153
Convicted:17,073
Under trial:53,891