Fight Hudood, Protect Women
Beena Sarwar March 6, 2007
#33 Posted by harish_hyd on March 7, 2007 7:02:14 am
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#34 Posted by MantoLives on March 7, 2007 7:30:05 am
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#35 Posted by ferozk on March 7, 2007 8:13:33 am
Re: mantolives # 28
You have made a very good point and within that observation, you have identified a very important issue on the issue of the Objectives Resolution of 1949. The Objectives Resolution was the fountainhead of all Pakistani constitutional thought and its preamble and the intentions espoused therein, despite the existence of three constitutions, has not changed. Pakistani constitutional law needs to ask a basic question of what is the purpose of constitutionalism in Pakistan. Constitutions are made to create a framework of political representation that enhences and not diminishes political rights; be that of the constituent power or the sums of the constituent power.
In Pakistan, the debate has been aglore about the restitution of the 1973 constitution, but the debate does not focus on the issue of how the constitutional intent will be revived. The arguments on the restoration of 1973 constitution have been in the context of the military-civilian power struggles, but the silence is quite deafening on the matter of how the constitution will be abided. The past truth of our national constitutional experience has been that there is no political respect for constitution in Pakistani politics either from the military or the civilians and to them, the importance of the document does not lie in its intent, but in its utility to carve an exclusive niche of political power for themselves.
The constitutional failures in Pakistan, though they can be easily pegged to a particular cause, needs to be reconsidered in the light of the question of what we, as a nation, hope to express of ourselves constitutionally. Unfortunately in Pakistan, we created a constitution but we never asked to what purpose we were creating a constitution for in the first place. The Objectives Resolution of 1949, with its preamblic emphasis on religion, was passed by the very men who sat; agreed, appluaded and listened to Jinnah`s August 11, 1947 speech but within two years, the ideas of Jinnah about Pakistan were superimposed by ideas that Jinnah would have not condoned. The Objectives Resolution basically mooted the expressions of Jinnah and in doing so, changed the contours of political debate in Pakistan, but in a larger sense, the Objectives Resolution did not change the nature of consitutional debate as much as it subdued the nature of constitutionalism in Pakistan.
Objectives Resolution was a constitutional coup d` état, nearly nine years before the advent of the first martial law in Pakistan, and it was a coup in the sense that it over threw the basic tenets of Pakistan`s creation and replaced them with the very antitheis of Pakistan: a theocracy. The argument, suggesting that the Objectives Resolution was a coup d` état, can be summerized if the constitution of a nation is supposed to idealize the political believes of the nation and how to attain them, then the Objectives Resolution did not reflect the aspirations for the reasons, which underlined the creation of Pakistan; namely the protection of economic and constitutional rights of the Muslims of India and if this premise is extrapolated a bit more, the overarching need to protect the fundlemental rights of the minority from the despotism of the majority.
The creation of Pakistan and its historic reasons refutes the rationale of the Objectives Resolution, but as the Objectives Resolution has influenced all subsequent constitutions, the question needs to be asked challenging the veracity of Objectives Resolution. This question needs to be asked and answered, because if the reason for the existence of Pakistan was different from the reason for its existence as articulated by the Objectives Resolution, it did not fullfil the wishes of the majority of the Pakistanis and we can verify this historically from the electoral and constitutional disagreements, which originated between East Pakistani political majorities and West Pakistani political minorities immediately after the passage of the Objectives Resolution. If this line of thought is further elongated, it implies that Pakistani political and constitutional problems arise from the fact that since 1949, Pakistan has been governed and administrated and influenced by an illegal constitution and constitutional guidelines, which do not find resonance with the popular opinion of political thought.
The question and the task at hand, then becomes one of finding a solution to undo the mess created constitutionally by the Objectives Resolution and not merely reviving the 1973 constitution in its fullest sense. The constitutional problem in Pakistan has been that all its consitutional ideas were based on the premise of an illegal constitution that did not enjoy a majority consensus and though the 1973 document is a majority document, its basic premise is flawed and in that sense, it does not really represent the wishes of the people of Pakistan as much as it represents the interests of a political minority to excerise its political sway over a majority; either in a political sense or within the rubric of provincial autonomy/consitutional rights versus the federal constitutional rights. Hence, the question is what is the constititution in Pakistan supposed to represent; the interests of a political minority or the interests of the nation and if it is the latter, then the Objectives Resolution does not represent that political idea.
Consequently, we as a nation must answer this question because the answer to this question delves into the very crux of the constitutional problems in Pakistan. If we persist with the Objectives Resolution, as the wellspring of our constitutional thought, then all laws and legislative bills we may pass to moderate the excesses of religion, for example, in Pakistan and revert Pakistan to its original intentions, will fail because the Objectives Resolution will provide a very credible constitutional argument to perpetuate an illegality of a consitutional tryanny based on theocracy that flys in the face of the real historic reasons for Pakistan. Huddood Laws and reforms to them are meaningless unless we as a nation decide what we want constitutionally and if the idea is to reform the Huddood Laws and even repeal them, then repeal cannot happen till we deny the raison d`etre for such laws themselves and the raison d`etre for the constitutional rights in Pakistan, and the present constitutional rot, stems from the Objectives Resolution and its denial of basic consitutional rights not only to the majority of the population, but to the majority of the provinces that make up the Pakistani political federation and by its creation of a political-religious culture of exclusivism that only benefits the political and social interests of a minority.
Huddood Laws and reforms to them are self-defeating until and till we decide what sort of a nation we want as Pakistanis - liberal or theocratic - and on this basis, frame a constitution that suits our views and not try to circle a square by constitutionally tinkering with a document that does not represent our views. It is our national failure to precisely achieve this understanding and our misplaced hope to continue constitutionally as half liberal and half Islamic that has created the constitutional problems we face and cannot solve because of our inability, as a polity, to decide what we want our constitution to represent about ourselves and what we are and what we want to become. This is the very predictment that percolates our constitututional problems and why its ripples affect all our political, legal and legislative thoughts and makes them into flawed and self-defeating propositions.
Ciao
You have made a very good point and within that observation, you have identified a very important issue on the issue of the Objectives Resolution of 1949. The Objectives Resolution was the fountainhead of all Pakistani constitutional thought and its preamble and the intentions espoused therein, despite the existence of three constitutions, has not changed. Pakistani constitutional law needs to ask a basic question of what is the purpose of constitutionalism in Pakistan. Constitutions are made to create a framework of political representation that enhences and not diminishes political rights; be that of the constituent power or the sums of the constituent power.
In Pakistan, the debate has been aglore about the restitution of the 1973 constitution, but the debate does not focus on the issue of how the constitutional intent will be revived. The arguments on the restoration of 1973 constitution have been in the context of the military-civilian power struggles, but the silence is quite deafening on the matter of how the constitution will be abided. The past truth of our national constitutional experience has been that there is no political respect for constitution in Pakistani politics either from the military or the civilians and to them, the importance of the document does not lie in its intent, but in its utility to carve an exclusive niche of political power for themselves.
The constitutional failures in Pakistan, though they can be easily pegged to a particular cause, needs to be reconsidered in the light of the question of what we, as a nation, hope to express of ourselves constitutionally. Unfortunately in Pakistan, we created a constitution but we never asked to what purpose we were creating a constitution for in the first place. The Objectives Resolution of 1949, with its preamblic emphasis on religion, was passed by the very men who sat; agreed, appluaded and listened to Jinnah`s August 11, 1947 speech but within two years, the ideas of Jinnah about Pakistan were superimposed by ideas that Jinnah would have not condoned. The Objectives Resolution basically mooted the expressions of Jinnah and in doing so, changed the contours of political debate in Pakistan, but in a larger sense, the Objectives Resolution did not change the nature of consitutional debate as much as it subdued the nature of constitutionalism in Pakistan.
Objectives Resolution was a constitutional coup d` état, nearly nine years before the advent of the first martial law in Pakistan, and it was a coup in the sense that it over threw the basic tenets of Pakistan`s creation and replaced them with the very antitheis of Pakistan: a theocracy. The argument, suggesting that the Objectives Resolution was a coup d` état, can be summerized if the constitution of a nation is supposed to idealize the political believes of the nation and how to attain them, then the Objectives Resolution did not reflect the aspirations for the reasons, which underlined the creation of Pakistan; namely the protection of economic and constitutional rights of the Muslims of India and if this premise is extrapolated a bit more, the overarching need to protect the fundlemental rights of the minority from the despotism of the majority.
The creation of Pakistan and its historic reasons refutes the rationale of the Objectives Resolution, but as the Objectives Resolution has influenced all subsequent constitutions, the question needs to be asked challenging the veracity of Objectives Resolution. This question needs to be asked and answered, because if the reason for the existence of Pakistan was different from the reason for its existence as articulated by the Objectives Resolution, it did not fullfil the wishes of the majority of the Pakistanis and we can verify this historically from the electoral and constitutional disagreements, which originated between East Pakistani political majorities and West Pakistani political minorities immediately after the passage of the Objectives Resolution. If this line of thought is further elongated, it implies that Pakistani political and constitutional problems arise from the fact that since 1949, Pakistan has been governed and administrated and influenced by an illegal constitution and constitutional guidelines, which do not find resonance with the popular opinion of political thought.
The question and the task at hand, then becomes one of finding a solution to undo the mess created constitutionally by the Objectives Resolution and not merely reviving the 1973 constitution in its fullest sense. The constitutional problem in Pakistan has been that all its consitutional ideas were based on the premise of an illegal constitution that did not enjoy a majority consensus and though the 1973 document is a majority document, its basic premise is flawed and in that sense, it does not really represent the wishes of the people of Pakistan as much as it represents the interests of a political minority to excerise its political sway over a majority; either in a political sense or within the rubric of provincial autonomy/consitutional rights versus the federal constitutional rights. Hence, the question is what is the constititution in Pakistan supposed to represent; the interests of a political minority or the interests of the nation and if it is the latter, then the Objectives Resolution does not represent that political idea.
Consequently, we as a nation must answer this question because the answer to this question delves into the very crux of the constitutional problems in Pakistan. If we persist with the Objectives Resolution, as the wellspring of our constitutional thought, then all laws and legislative bills we may pass to moderate the excesses of religion, for example, in Pakistan and revert Pakistan to its original intentions, will fail because the Objectives Resolution will provide a very credible constitutional argument to perpetuate an illegality of a consitutional tryanny based on theocracy that flys in the face of the real historic reasons for Pakistan. Huddood Laws and reforms to them are meaningless unless we as a nation decide what we want constitutionally and if the idea is to reform the Huddood Laws and even repeal them, then repeal cannot happen till we deny the raison d`etre for such laws themselves and the raison d`etre for the constitutional rights in Pakistan, and the present constitutional rot, stems from the Objectives Resolution and its denial of basic consitutional rights not only to the majority of the population, but to the majority of the provinces that make up the Pakistani political federation and by its creation of a political-religious culture of exclusivism that only benefits the political and social interests of a minority.
Huddood Laws and reforms to them are self-defeating until and till we decide what sort of a nation we want as Pakistanis - liberal or theocratic - and on this basis, frame a constitution that suits our views and not try to circle a square by constitutionally tinkering with a document that does not represent our views. It is our national failure to precisely achieve this understanding and our misplaced hope to continue constitutionally as half liberal and half Islamic that has created the constitutional problems we face and cannot solve because of our inability, as a polity, to decide what we want our constitution to represent about ourselves and what we are and what we want to become. This is the very predictment that percolates our constitututional problems and why its ripples affect all our political, legal and legislative thoughts and makes them into flawed and self-defeating propositions.
Ciao
#36 Posted by MantoLives on March 7, 2007 9:31:50 am
Dear Ferozk,
That has to be the most succinct articulation of what I have been harping about most crudely for all these years. I am glad that I am joined in this view with someone of your calibre, whose impartiality is unquestionable.
This in particular:
The creation of Pakistan and its historic reasons refutes the rationale of the Objectives Resolution, but as the Objectives Resolution has influenced all subsequent constitutions, the question needs to be asked challenging the veracity of Objectives Resolution. This question needs to be asked and answered, because if the reason for the existence of Pakistan was different from the reason for its existence as articulated by the Objectives Resolution, it did not fullfil the wishes of the majority of the Pakistanis and we can verify this historically from the electoral and constitutional disagreements, which originated between East Pakistani political majorities and West Pakistani political minorities immediately after the passage of the Objectives Resolution. If this line of thought is further elongated, it implies that Pakistani political and constitutional problems arise from the fact that since 1949, Pakistan has been governed and administrated and influenced by an illegal constitution and constitutional guidelines, which do not find resonance with the popular opinion of political thought.The question and the task at hand, then becomes one of finding a solution to undo the mess created constitutionally by the Objectives Resolution and not merely reviving the 1973 constitution in its fullest sense. The constitutional problem in Pakistan has been that all its consitutional ideas were based on the premise of an illegal constitution that did not enjoy a majority consensus and though the 1973 document is a majority document, its basic premise is flawed and in that sense, it does not really represent the wishes of the people of Pakistan as much as it represents the interests of a political minority to excerise its political sway over a majority; either in a political sense or within the rubric of provincial autonomy/consitutional rights versus the federal constitutional rights. Hence, the question is what is the constititution in Pakistan supposed to represent; the interests of a political minority or the interests of the nation and if it is the latter, then the Objectives Resolution does not represent that political idea.
An aside: If I may be allowed to add: A false notion has crept in which suggests that somehow unbridled majority rule equals democracy... Democracy is basicaly derived from two constituent parts which roughly translate in modern parlance Demo = people ... cracy = rule.... it should be the rule not of some people or most people ... but all the people. This is the beginning an end of all debates... whether about rationale of having Pakistan or why the state in Pakistan should be secular and constitutional.
1973`s constitution is not a constitution in my opinion. This fraud document is merely rules of business of a theocratic state. A theocratic state by virtue of its theocratic nature cannot be constitutional. The sooner we do away with this 1973 constitution... or alter it to suit the fundamental principle of Pakistan... a liberal and secular polity for all its citizens ... the better.
That has to be the most succinct articulation of what I have been harping about most crudely for all these years. I am glad that I am joined in this view with someone of your calibre, whose impartiality is unquestionable.
This in particular:
The creation of Pakistan and its historic reasons refutes the rationale of the Objectives Resolution, but as the Objectives Resolution has influenced all subsequent constitutions, the question needs to be asked challenging the veracity of Objectives Resolution. This question needs to be asked and answered, because if the reason for the existence of Pakistan was different from the reason for its existence as articulated by the Objectives Resolution, it did not fullfil the wishes of the majority of the Pakistanis and we can verify this historically from the electoral and constitutional disagreements, which originated between East Pakistani political majorities and West Pakistani political minorities immediately after the passage of the Objectives Resolution. If this line of thought is further elongated, it implies that Pakistani political and constitutional problems arise from the fact that since 1949, Pakistan has been governed and administrated and influenced by an illegal constitution and constitutional guidelines, which do not find resonance with the popular opinion of political thought.The question and the task at hand, then becomes one of finding a solution to undo the mess created constitutionally by the Objectives Resolution and not merely reviving the 1973 constitution in its fullest sense. The constitutional problem in Pakistan has been that all its consitutional ideas were based on the premise of an illegal constitution that did not enjoy a majority consensus and though the 1973 document is a majority document, its basic premise is flawed and in that sense, it does not really represent the wishes of the people of Pakistan as much as it represents the interests of a political minority to excerise its political sway over a majority; either in a political sense or within the rubric of provincial autonomy/consitutional rights versus the federal constitutional rights. Hence, the question is what is the constititution in Pakistan supposed to represent; the interests of a political minority or the interests of the nation and if it is the latter, then the Objectives Resolution does not represent that political idea.
An aside: If I may be allowed to add: A false notion has crept in which suggests that somehow unbridled majority rule equals democracy... Democracy is basicaly derived from two constituent parts which roughly translate in modern parlance Demo = people ... cracy = rule.... it should be the rule not of some people or most people ... but all the people. This is the beginning an end of all debates... whether about rationale of having Pakistan or why the state in Pakistan should be secular and constitutional.
1973`s constitution is not a constitution in my opinion. This fraud document is merely rules of business of a theocratic state. A theocratic state by virtue of its theocratic nature cannot be constitutional. The sooner we do away with this 1973 constitution... or alter it to suit the fundamental principle of Pakistan... a liberal and secular polity for all its citizens ... the better.
#37 Posted by samar1982 on March 7, 2007 9:35:51 am
I don`t know much about Hudood law or anything about how Pakistani women are raped and then subjected to all types of agonizing experiences on their way to extract justice of some kind from judges picked out from the same bunch of rapists (of laws). But on lighter vein, this law should, indeed have something to do with Pandavas and Dropadi of Hindu mythology. When Pandavas wanted to rape Dropadi they made a pact between themselves that when one engages in the act of rape four others would watch it not only to stand witness but to extract full pleasure of this maddeningly beautiful aspect of life involving the two varieties of sexes, believed of course ignorantly, to be given to them by their pagan God Lord Krishna. This law, if at all requires amendment, should be amended in such a way as to facilitate this Pandavas and Dropadi episode being performed amicably and with the consent of the victim (?), the accused (?) and also the law (?) of the land. So, whenever a woman stumbles across the rapist she would highlight the benefits of observing the act and induce him to bring four others for the show so they can take turns in enjoying not only the rape but the enchantment of its thorough, three dimensional viewing. Then accused would charge the victim with indulging in Jina in the mock court room. After coming across such cases in large numbers the court would take a view that this being endorsed and liked by so many people, should be given legitimacy. As the myth goes, the relation of Pandavas and Dropadi was indeed approved by all wise men including Lord Krishna. If this old wisdom is applied to modern day Pakistan, in a few years this gruesome act of rape would be transformed into something quite blissful experience for the entire society. As a byproduct it will serve as a rapprochement bid to engage Hindu India in the peace process.
Good idea! No?
Samar
Good idea! No?
Samar
#38 Posted by wiseguyin on March 7, 2007 10:12:54 am
Re: # 37
> When Pandavas wanted to rape Dropadi they made a pact ....
When Abu Bakr wanted to rape his daughter ... he sent her over to mo`s house ....
Yeah yeah, I get what you are saying ....
> When Pandavas wanted to rape Dropadi they made a pact ....
When Abu Bakr wanted to rape his daughter ... he sent her over to mo`s house ....
Yeah yeah, I get what you are saying ....
#39 Posted by Urstruly on March 7, 2007 10:16:14 am
The Justice of Pakistan Supreme Court, Mohammad Taqi Usmani testifies that during the 2 decades of his service on the bench not a single rape victim was ever required to bring 4 witnesses to prove her case; in addition no woman has ever been convicted convicted because she failed to do so. It is vicious lie and propaganda.
Please educate yourself for your own good. Defying Allah and His commands because it makes you look modern is not a bargain you`d want to carry to hereinafter.
http://www.hudoodordinance.com/taqiusmani-article-p1.htm
#40 Posted by MantoLives on March 7, 2007 10:17:58 am
Take care people... Am travelling... will talk later. Going to a country which - despite tall claims- may not have GPRS roaming.
#41 Posted by tahmed32 on March 7, 2007 10:25:11 am
#39 urstruly: not a single rape victim was ever required to bring 4 witnesses to prove her case
Why are the religious parties so determined to keep that ``law`` on the books if that ``law`` is being ignored by judges?
Why are the religious parties so determined to keep that ``law`` on the books if that ``law`` is being ignored by judges?
#42 Posted by Urstruly on March 7, 2007 10:31:49 am
Re: # 39
The English translation of the excerpt in my last post is as follows:
(whole article in English can be accessed thru: http://www.hudoodordinance.com/taqi-usmani-article-english.htm )
Justice Taqi Usmani testifies:
Now arises the question why is there so much insistence on abolishing the shara’i punishment for Zina bil Jabr? The reason for this is an extremely unjust propaganda which certain circles are busily spreading ever since the Hudood ordinance has been implemented. According to this propaganda, if any rape victim intends to sue the offender under the Hudood ordinance, she is asked to produce four witnesses to support her claim. And if she fails to do so, she herself is arrested rather than the offender. This claim has been and is repeated incessantly, so far that even educated people began to consider it as true. And exactly this point has been used as justification by our president during his speech.
Now if as a result of such propaganda a certain matter is publicized so much that even the children on the streets talk about it, and then people tend to view anyone who talks against it as insane. But if anyone wishes to analyze the matter in a just way, then I would like to request him to leave all propaganda aside for a while, and consider the following points:
The fact of the matter is that I myself have been directly hearing cases registered under Hudood Ordinance, first as a Judge of Federal Shariah Court and then for 17 years as a member of Shariah Appellate Bench of the Supreme Court. In this long tenure, not once did I come across a case in which a rape victim was awarded punishment because she was unable to present four witnesses. It was actually not possible only because of Hudood Ordinance because according to Hudood Ordinance the condition of four witnesses was necessary only to enforce the Shariah punishment (hadd). But at the same time clause 10(3) was included to award the taa’zeeri punishment which did not have the condition of four witnesses. Instead the crime could be proven through one witness, medical examination and chemical analysis report. Consequently most of the rape criminals were awarded punishment as per this clause.
What we need to think is that if a woman was unable to present four witnesses and she was given punishment, which clause of Hudood Ordinance was used to award her the punishment? If anyone says that she was punished because of Qazaf (false accusation of rape) then Qazaf Ordinance, Clause no. 3, Exemption no. 2 clearly states that if someone approaches the legal authorities with a rape complaint, she cannot be punished in case she is unable to present 4 witnesses. No court of law can be in its right mind to award such a punishment. The other possibility could be that the woman is awarded punishment for committing adultery with free will. And if the court of law takes such a decision it may not be because the woman was unable to present four witnesses but because the court arrived at this decision after giving due consideration to all the available evidence. Obviously if a woman accuses a man of raping her but subsequent evidence proves that she committed adultery with her free will and her accusation proves to be false then punishing her will not be against the spirit of justice. But since usually there is lack of sufficient evidence to proof that the woman is lying, even such cases are rare. In 99% of the cases it so happens that the court of law is not convinced that the woman has been raped yet since there is lack of sufficient evidence to prove the willful involvement of the woman, she is given the benefit of doubt and set free.
This can be verified very easily by doing an analyses of the cases executed under Hudood Ordinance in the last 27 years. Other judges who have been involved in the proceedings are of the same opinion that even when a woman’s character is found doubtful she is not punished; only the man gets punished.
Since from the very beginning voices are being raised against Hudood Ordinance that innocent women are being punished because of it, an American Scholar Charles Kennedy got interested and visited Pakistan to conduct a survey of the cases. He analysed all the data related to Hudood Ordinance cases and presented the results in the form of a report which has been published. The results are very much in line with the above mentioned facts. He writes in his report:
Women fearing conviction under Section 10(2) frequently bring charges of rape under 10(3) against their alleged partners. The FSC finding no circumstantial evidence to support the latter charge, convict the male accused under section 10(2)….the women is exonerated of any wrongdoing due to reasonable doubt rule.
(Charles Kennedy: The Status of Women in Pakistan in Islamization of Laws page 74)
This is what an unbiased non-Muslim scholar who has got no sympathies toward the Hudood Ordinance observed with regard to such women who had actually consented to committing Zina, and then due to the pressure from side of their families, tried to declare their deed as Zina bil Jabr. They were not asked to produce four witnesses, but to furnish circumstantial evidence. On being unable to furnish circumstantial evidence which would give weight to their claim of having been raped, only the male parties were punished, whereas the female parties went unpunished, as no transgression could be proven on their part. Hence there is no such clause in the Hudood Ordinance according to which, if a woman fails to produce four witnesses to support her claim of having been raped, she is to be punished rather than the offender.
The English translation of the excerpt in my last post is as follows:
(whole article in English can be accessed thru: http://www.hudoodordinance.com/taqi-usmani-article-english.htm )
Justice Taqi Usmani testifies:
Now arises the question why is there so much insistence on abolishing the shara’i punishment for Zina bil Jabr? The reason for this is an extremely unjust propaganda which certain circles are busily spreading ever since the Hudood ordinance has been implemented. According to this propaganda, if any rape victim intends to sue the offender under the Hudood ordinance, she is asked to produce four witnesses to support her claim. And if she fails to do so, she herself is arrested rather than the offender. This claim has been and is repeated incessantly, so far that even educated people began to consider it as true. And exactly this point has been used as justification by our president during his speech.
Now if as a result of such propaganda a certain matter is publicized so much that even the children on the streets talk about it, and then people tend to view anyone who talks against it as insane. But if anyone wishes to analyze the matter in a just way, then I would like to request him to leave all propaganda aside for a while, and consider the following points:
The fact of the matter is that I myself have been directly hearing cases registered under Hudood Ordinance, first as a Judge of Federal Shariah Court and then for 17 years as a member of Shariah Appellate Bench of the Supreme Court. In this long tenure, not once did I come across a case in which a rape victim was awarded punishment because she was unable to present four witnesses. It was actually not possible only because of Hudood Ordinance because according to Hudood Ordinance the condition of four witnesses was necessary only to enforce the Shariah punishment (hadd). But at the same time clause 10(3) was included to award the taa’zeeri punishment which did not have the condition of four witnesses. Instead the crime could be proven through one witness, medical examination and chemical analysis report. Consequently most of the rape criminals were awarded punishment as per this clause.
What we need to think is that if a woman was unable to present four witnesses and she was given punishment, which clause of Hudood Ordinance was used to award her the punishment? If anyone says that she was punished because of Qazaf (false accusation of rape) then Qazaf Ordinance, Clause no. 3, Exemption no. 2 clearly states that if someone approaches the legal authorities with a rape complaint, she cannot be punished in case she is unable to present 4 witnesses. No court of law can be in its right mind to award such a punishment. The other possibility could be that the woman is awarded punishment for committing adultery with free will. And if the court of law takes such a decision it may not be because the woman was unable to present four witnesses but because the court arrived at this decision after giving due consideration to all the available evidence. Obviously if a woman accuses a man of raping her but subsequent evidence proves that she committed adultery with her free will and her accusation proves to be false then punishing her will not be against the spirit of justice. But since usually there is lack of sufficient evidence to proof that the woman is lying, even such cases are rare. In 99% of the cases it so happens that the court of law is not convinced that the woman has been raped yet since there is lack of sufficient evidence to prove the willful involvement of the woman, she is given the benefit of doubt and set free.
This can be verified very easily by doing an analyses of the cases executed under Hudood Ordinance in the last 27 years. Other judges who have been involved in the proceedings are of the same opinion that even when a woman’s character is found doubtful she is not punished; only the man gets punished.
Since from the very beginning voices are being raised against Hudood Ordinance that innocent women are being punished because of it, an American Scholar Charles Kennedy got interested and visited Pakistan to conduct a survey of the cases. He analysed all the data related to Hudood Ordinance cases and presented the results in the form of a report which has been published. The results are very much in line with the above mentioned facts. He writes in his report:
Women fearing conviction under Section 10(2) frequently bring charges of rape under 10(3) against their alleged partners. The FSC finding no circumstantial evidence to support the latter charge, convict the male accused under section 10(2)….the women is exonerated of any wrongdoing due to reasonable doubt rule.
(Charles Kennedy: The Status of Women in Pakistan in Islamization of Laws page 74)
This is what an unbiased non-Muslim scholar who has got no sympathies toward the Hudood Ordinance observed with regard to such women who had actually consented to committing Zina, and then due to the pressure from side of their families, tried to declare their deed as Zina bil Jabr. They were not asked to produce four witnesses, but to furnish circumstantial evidence. On being unable to furnish circumstantial evidence which would give weight to their claim of having been raped, only the male parties were punished, whereas the female parties went unpunished, as no transgression could be proven on their part. Hence there is no such clause in the Hudood Ordinance according to which, if a woman fails to produce four witnesses to support her claim of having been raped, she is to be punished rather than the offender.
#43 Posted by Kulharee on March 7, 2007 10:57:18 am
Re: # 41
T Saab, This Usmani dude (that Truly is quoting) is the same judge that says that it is OK to kill Ahmadis. Go figure.
T Saab, This Usmani dude (that Truly is quoting) is the same judge that says that it is OK to kill Ahmadis. Go figure.
#44 Posted by Shah2 on March 7, 2007 11:02:09 am
While Pakistani women languish Indian counterpart becomes chief trustee of 250 Crore Waqf
A crown beckons a princess
- Effort on to anoint Saba head of shrines and royal properties
RASHEED KIDWAI
Saba Ali Khan
Bhopal, March 6: Far away from the glamour of showbiz or cricket, a Pataudi daughter is preparing herself for a religious responsibility.
The 30-year-old Saba Ali Khan, sibling of two actors and daughter of one, is reportedly set to become mutawalli (chief trustee) of dozens of shrines and royal properties in Bhopal, including the Jama Masjid.
That would make her the first woman head of the Auqaf-e-Shahi — the Bhopal royal family’s Rs 250-crore wakf properties — since the end of princely rule, giving her enormous religious authority over their functioning.
For instance, before next year’s Haj, thousands of Bhopalis may need to approach the Nawab of Pataudi’s elder daughter with a request for free lodging in Mecca and Medina.
Bhopal’s begums had built these palatial accommodations for pilgrims from the then princely state. The two rubats (lodges) are now managed by the Indian consulate and put up about 300 hajis free of charge.
The head of Auqaf-e-Shahi has discretionary powers to provide the free accommodation. Till now, the post was held by Saba’s father and former Test captain Mansoor Ali Khan Pataudi, whose mother was heir to the Bhopal royal family.
Saba, younger than Saif Ali Khan but older than Soha, is a jewellery designer. Reports of her impending appointment have stirred excitement.
As a proud Pataudi took her to the tomb of Dost Muhammad Khan, Bhopal’s first nawab, and visited mosques affiliated to the Auqaf-e-Shahi, supporters and opponents of the move began to close ranks.
State minorities commission chief Anwar Mohammad Khan, appointed by the BJP government, said he would “wait and watch”.
“I respect nawab saheb and am aware of his desire to appoint the nawabzadi as mutawalli. I have no objection but we will have to see if it fulfils Shariat norms,” he said.
Shafqat Mohammad Khan, educator and cricket administrator, said he would welcome Saba’s appointment.
“This is in keeping with Islam and Bhopal’s great tradition when women rulers headed Auqaf-e-Shahi and built mosques and madarsas. The nawabzadi’s appointment will show the changing face of Muslims in India,” he said.
But Khurram Ausaf Shamiri, an opponent of Pataudi, was against the move.
“Now that the age of nawabs and rajas are over, Auqaf-e-Shahi should merge with the state-run wakf board. I urge both the state government and the Muslim clergy to make a new appointment,” he said.
Palace insiders say Saba is excited about her new role and is keen to discharge her religious obligations.
She was to appear at a cricket ground yesterday with mother Sharmila and Pataudi to give away the prizes, but skipped the engagement.
A source said that according to Bhopali tradition, women holding religious office avoided huge and largely male gatherings.
Saba today said she was trying to understand the working of the Auqaf-e-Shahi. Standing by her, Pataudi said he was worried at the encroachment of wakf properties and the falling revenues.
A source said the nawab chose Saba for the job instead of Saif because of Chhote Nawab’s profession.
“Tiger was conscious that a film actor’s appointment as head of Islamic religious bodies may not go down well with the conservative sections. With Soha following in the footsteps of Saif, Saba was the most acceptable choice.”
Pataudi has reason to be cautious. A few weeks ago, Shamiri, who heads the Muslim Toyohar (festival) Committee, had approached Bhopal’s chief qazi questioning the nawab’s standing as a “good Muslim”.
Qazi Abdul Latif summarily rejected Shamiri’s contention, saying he had no religious standing and no authority to excommunicate any Muslim.
#45 Posted by abu_safwaan on March 7, 2007 1:27:04 pm
Urstruly,
With all due respect I thinking u r wasting ur breath, most o these “enlightened” wouldn’t know enlightenment if it smacked them across the face, this is not about women’s lib or their rights, its about two things, there utmost insecurities as non-practicing muslims which eventually results in despise of Islam and entertainment. They just want to make sure that we move slowly but surily as a society towards nudy bars. Pakistan People’s party is supposed to be the flag barrier of women rights in Pakistan right? Do you really think that the wadeyras who are in the executive council of PPP treat their women any better than the wadeyras of Muslim league or the Malik’s and Khan’;s of JUI? According to Ardeshir Cowsjee of dawn, Makhdoom amin faheem’s sister was married to the Quran just to make sure that they don’t have to part away with her share of ancestral estate.
No doubt religious parties for the most part have made a joke out of this common-sense religion but at the opposite end of the spectrum we have people who are working on agendas as well. The religious zealots get their funding from Saudi so they pander to them, the ngo’s get it from their western masters so obviously they push that agenda, no one is sincere. Can anyone really put a hand on their heart and say with a straight face that the reforms of this hudood ordinance or even if you scrape this ordinance all together, would it do squash-diddly for women rights? My humble understanding of Islam is that this top-down approach never works. You don’t implement and enforce the punishments without doing the ground work first. Convince the society-at-large with rhyme and reason that Islam is the way to go, we are not asking them to bow down to monkeys and elephants, its HAQ and it shouldn’t be that hard, but its gotta be done with dialogue and in a polite manner, no one likes a foaming at the mouth mullah telling them how they are all going to burn in hell.
With all due respect I thinking u r wasting ur breath, most o these “enlightened” wouldn’t know enlightenment if it smacked them across the face, this is not about women’s lib or their rights, its about two things, there utmost insecurities as non-practicing muslims which eventually results in despise of Islam and entertainment. They just want to make sure that we move slowly but surily as a society towards nudy bars. Pakistan People’s party is supposed to be the flag barrier of women rights in Pakistan right? Do you really think that the wadeyras who are in the executive council of PPP treat their women any better than the wadeyras of Muslim league or the Malik’s and Khan’;s of JUI? According to Ardeshir Cowsjee of dawn, Makhdoom amin faheem’s sister was married to the Quran just to make sure that they don’t have to part away with her share of ancestral estate.
No doubt religious parties for the most part have made a joke out of this common-sense religion but at the opposite end of the spectrum we have people who are working on agendas as well. The religious zealots get their funding from Saudi so they pander to them, the ngo’s get it from their western masters so obviously they push that agenda, no one is sincere. Can anyone really put a hand on their heart and say with a straight face that the reforms of this hudood ordinance or even if you scrape this ordinance all together, would it do squash-diddly for women rights? My humble understanding of Islam is that this top-down approach never works. You don’t implement and enforce the punishments without doing the ground work first. Convince the society-at-large with rhyme and reason that Islam is the way to go, we are not asking them to bow down to monkeys and elephants, its HAQ and it shouldn’t be that hard, but its gotta be done with dialogue and in a polite manner, no one likes a foaming at the mouth mullah telling them how they are all going to burn in hell.
#46 Posted by Urstruly on March 7, 2007 1:58:24 pm
Re: # 45 Abu Sufian
``My humble understanding of Islam is that this top-down approach never works. You don’t implement and enforce the punishments without doing the ground work first. Convince the society-at-large with rhyme and reason that Islam is the way to go, we are not asking them to bow down to monkeys and elephants, its HAQ and it shouldn’t be that hard, but its gotta be done with dialogue and in a polite manner, no one likes a foaming at the mouth mullah telling them how they are all going to burn in hell.`
These are the words worth their weight in gold. However, personally, I do not prefer either of top-down or bottoms-up approach. We have a model in the life of Holy prophet (pbuh) as far as method of spreading the message is concerned; the method is that we have to approach everyone at all times without presumption that he/she might not listen. Yes it is true that the mesaage of islam spread faster in the lower strata of the society but it was not the rule if we take into account the belivers like Abu bakr (RA), Uthman(RA), Umar (RA) who belonged to the top starta of the society. The case of particular interest is that of Umar (RA) who was on his way to assassinate Holy Prophet (pbuh) with sword in his hand and became a beliver as he passed outside his sister`s house. Belief is a gift that Allah sometimes bestows upon most unlikely of the recipient.
The reason that I posted the testimony of a judge of the supreme court was to make people aware that it is not worthy of human decency to disseminate lies without any verification. The only way to counter propaganda is nothing but more truth.
``My humble understanding of Islam is that this top-down approach never works. You don’t implement and enforce the punishments without doing the ground work first. Convince the society-at-large with rhyme and reason that Islam is the way to go, we are not asking them to bow down to monkeys and elephants, its HAQ and it shouldn’t be that hard, but its gotta be done with dialogue and in a polite manner, no one likes a foaming at the mouth mullah telling them how they are all going to burn in hell.`
These are the words worth their weight in gold. However, personally, I do not prefer either of top-down or bottoms-up approach. We have a model in the life of Holy prophet (pbuh) as far as method of spreading the message is concerned; the method is that we have to approach everyone at all times without presumption that he/she might not listen. Yes it is true that the mesaage of islam spread faster in the lower strata of the society but it was not the rule if we take into account the belivers like Abu bakr (RA), Uthman(RA), Umar (RA) who belonged to the top starta of the society. The case of particular interest is that of Umar (RA) who was on his way to assassinate Holy Prophet (pbuh) with sword in his hand and became a beliver as he passed outside his sister`s house. Belief is a gift that Allah sometimes bestows upon most unlikely of the recipient.
The reason that I posted the testimony of a judge of the supreme court was to make people aware that it is not worthy of human decency to disseminate lies without any verification. The only way to counter propaganda is nothing but more truth.
#47 Posted by Urstruly on March 7, 2007 2:19:39 pm
Abu-Safwan, I appologize for mis-spelling your name.
#48 Posted by abu_safwaan on March 7, 2007 2:53:27 pm
Re: # 46
Sir what i meant by bottom-up approach was that we win the hearts and minds of people rather than shoving laws and punsihments down their throats. MMA`s ban on music in public buses and defacing the billboards would have gone better with masses if they would have ensured first that every willing constituent has a job and everyone has access to clean drinking water and healthcare. It`s conveneant to point finggers at youth and point out how there morals are weak and they are dating and making out in cyber-cafes. I am not endorsing the behavior but look at how hard we have made marraige. Make Halal as easily available and accessible as Haram and the Haram will whither away. That is what i mean by bottom-up approach, we need to provide the citizens the benefits and justice that Omer (RAW) gave to his people and then and only then the punishments should follow.
Sir what i meant by bottom-up approach was that we win the hearts and minds of people rather than shoving laws and punsihments down their throats. MMA`s ban on music in public buses and defacing the billboards would have gone better with masses if they would have ensured first that every willing constituent has a job and everyone has access to clean drinking water and healthcare. It`s conveneant to point finggers at youth and point out how there morals are weak and they are dating and making out in cyber-cafes. I am not endorsing the behavior but look at how hard we have made marraige. Make Halal as easily available and accessible as Haram and the Haram will whither away. That is what i mean by bottom-up approach, we need to provide the citizens the benefits and justice that Omer (RAW) gave to his people and then and only then the punishments should follow.
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