A Rapist-Friendly System

Mukhtar Mai`s plight is truly heart-rending. All Pakistanis must come out in her support. Only then can justice be served.

I have no faith in system of injustice in Pakistan, therefore, at one level I am glad that the Supreme Court overturned the original rulings of the kangroo courts such as the Anti-Terrorist Courts. I am against the Capital Punishment in Pakistan for the reasons of expediency since no one has faith in the charade called judicial system in Pakistan. Pakistan should have a moritorium on capital punishment until the judicial system is reformed to a reasonable level and public faith is restored in it.

In addition, under Islamic law, the Capital punishment cannot be applied in the case of Rape. Rape does not fall into the category of Hadud law, therfore, in principle the Ta`azeer punishment for this crime should be less severe than the hadud. There are only two cases when death penalty can be imposed on a rapist:

1. The rapist is a non-Muslim and he rapes a Muslim woman.

2. The rapist is Muslim and he voluntarily confesses that he had committed an act of rape. He must be given at least three chances to recant from his confession then if he is married he must be stonned to death in public place and if he is single he is flogged with 80 leashes on his back in a public place.

Re: # 1

`In addition, under Islamic law, the Capital punishment cannot be applied in the case of Rape. Rape does not fall into the category of Hadud law, therfore, in principle the Ta`azeer punishment for this crime should be less severe than the hadud`.

What is this `Ta`azeer punishment`? Do you mean courts have discretion to switch over to any law if the Allah`s law, i.e., Hadood, does not work. Does not Allah say that those who adjudicate under a law other than the one prescribed by Him are `Fasik`, `Fajir` and what not?

urstruly,

......... are you serious when you state that the death penalty can be imposed on a rapist when `` The rapist is a non-Muslim and he rapes a Muslim woman.`` ?????

........ is that fair ?........... what happened to equal rights under the law ???......... now you are really making me ashamed of being a muslim ! .......... how would you feel if they had a separate set of laws for muslims in flint ? ........... i am sure you would go crying to michael moore if that ever happened !

hamidm

Don`t be amazed. Islamic law is not based on equality but on equity. It is a social contract between different members of the society. The main clause of this social contract is that, in principle, Islamic law does not apply to non-Muslims. Now there are two types of non-Muslims:

1. People of the book and that includes Jews, Christians, Zorthostorians, and Hindus (the matter with Hindus is too controversial though). In this case these people are given autonomy to formulate their own laws based on their own values as they come from their books.

2. Non-Muslims, who are not of category#1, such as pagans, animists etc.. They are governed by the law that the Islamic government deems fit for them and it must be commensurate with the societal norms of the Muslim society.

Whether belonging to Category # 1 or #2 these people are exempt from any Islamic law such as law of Hudood or Islamic law of inheritence or non-interest based business etc. However, this exemption ends when they are dealing with a Muslim counterpart. In that case, the Islamic law supercedes any other. That is the reason when a non-Muslim man rapes a Muslim woman, the minimum punishment meted out to the rapist is the capital punishment.


teshah

pehle tolo phir bolo.

urstruly,

......... thanks for your explanation - now i am really ashamed of being a muslim !........... you see, i am not as shameless as echo thinks ..........

. . . and when a non-muslim woman gets raped by a muslim man? he is not subject to the hudood.

equity. . .

The tragedy of pakistan is not in what is existing, but the denial of the educated in the reality of pakistan, their firm belief that it ia all a matter of projecting the right image, a beleif that the reality can be white washed.

If any one cares to read earlier posts by mantolive, YLH, an educated you will see that he has repeated asserted that there are roads named after abdus salam, there are educational institutions named after him. If you look at tahmeds posts you will find that he has asserted that honour killings are done in tribal areas as part of tribal customs. murder of samia sarwar was explained away as police corruption. They never accept that it is the dissat and quiyat ordinance that has supported honour killings, never repealed by benazir, nawaz or mushy because the average pakistani supports it, it is in tune with their value system.

By denying this reality, and by refusing to accept that it is per the book, the educated have stalled any chance of improvements. It is spineless nature of pakistani educated that is leading pak society to the bayss. It is not the illiterate, it is the tahmed, mantolives and temporal that are the harbingers of pak decay.

I have been for a long time wanting to increase my word power of english words. I decided to make a short list of words I should learn about:

equality
equity
sophistry

I will wait until first post explains that it is democracy because average pakistani supports it. Let me see how soon one such post appears...

Re: # 7 Ana

Rape does not fall into the category of Hadud crimes, period; regardless of who rapes who. Hadud (s. Hadd) crimes: is a set of eight crimes which along with their punishments are defined in the Qura`n and/or specified explicitly in the Hadith. The eight Hadud crimes and their punishments are: (i) Stoning to death (rajm) for adultery (zina); (ii) one hundred lashes for fornication; (iii) eighty lashes for slandering a chaste woman i.e., accusing her of adultery or fornication; (iv) death for apostatizing from Islam (irtida`d); (v) eighty lashes for drinking wine (shurb); (vi) cutting off the right hand for theft; (vii) cutting off of one foot and one hand for highway robbery; and (viii) death for robbery accompanied by murder.

There are only two situations when rape becomes a hadud crime and thus the punishment imparted is as prescribed by the hadud:

1. The rapist voluntarily confesses to have committed the rape; in this case he is punished with the hadd as prescribed in (i) & (ii) depending on the fact whether the perp is married or single.

2. The second situation is when four adult male witnesses of sound character and mind have seen the act of penetration with their own eyes, somehow. In this case (i) and (ii) punishements are applied depending on the fact whether the perp was married or single.

Rape is one of the most horrenduous and inhuman crimes but at the same time it is one that is most difficult to prove as well. The recent case of Kobe Bryant, makes an interesting study. There are hundereds of cases of rape in US where accused have been rotting in jail for 20+ years and only DNA testing exhenorated them. So the question is what went wrong with their conviction in the first place? This is the reason a Hadd is not imposed in cases of rape. Islamic jurisprudence accepts the forensic evidence but even in that case Hadd cannot be applied. Pregnancy may be used to prove a rape but even in this case hadd cannot be applied.

The misuse of Hadud laws (in sex realated crimes) in Paksitan is because of the following reasons. Let us just take the case of rape. The act of rape has essentially two components to it:

a. sexual intercourse
b. absence of consent of one of the parties.

In Pakistan, when a woman files a case of rape, the police is the first state apparatus that is approcahed by the plaintiff. Police views, investigates and registers the case keeping in mind the elements a and b as related above. The evidence for element `a` is usually forensic i.e. thru medical examination and also the circumstantial. Witnesses are prepared to support evidence. In the next step, in courts, the plaintiff and her attorney tries to prove the element `b`, (even if element a has been proven without a shadow of doubt) thru the testimony of rape victim and examination of evidence and witnesses; whereas the defence (accused) tries to disprove that. A judge gives its verdict on the basis of these argument.

Now suppose that the victim fails to prove her case. The accused goes free; however, now police files a case against victim on two charges:

1. Slander

2. Victim`s own statement when she was filing the charges is used as a confession that element a (i.e. sexual congress) did take place.

In either case women is then subjected to (i), (ii), & (iii) haduds as described above.

The reason for this inhuman and draconian practice is that, Zia sahib imposed the hadud laws through an ordinance. In Pakistan, whenever, a criminal law is enacted by a state authority ( by a dictator or by the parliament) it is referred to the Ministry of Law, who writes that or makes the necessary ammendments in the CrPC - Criminal Procedure Code. CrPC then becomes a part of Police Manual and aslo judge`s instructions as to how a certain crime should be investigated and prosecuted-what cases are exempt or not etc.. In Pakistan, with hadud laws, this process abruptly ended as Zia was killed in the Mango City. The subsequesnt Benazir and NS governments neither had the political will to restart the CrPC process nor the authority and mandate to repeal the hadud laws. The current dictator is no different. It is a political hot potato he wouldn`t even dare touch. He knows that his system will collapse with in half an hour of his departure from the power so why touch such politically sensitive issues.

In Islamic law, as the CrPC should be written, a woman who cannot prove her case successfully cannot be charged with slander or confession of a sexual congress. Her testimony cannot be used to implicate her. But human beings, especially, women are suffering because of the dictators and impotent leaders who wouldn`t even give a rats patoot to the suffering of the people. Together we have created a society that thrives on injustice and oppression of the weak. There is no one else but us to blame for we have chosen the compliance and submission over daring to stand up for truth and justice.

Re: # 11

brrrrrrrrrrrrrrrrrrrr............. scary stuff !

I read some reports about the uproar created in certain sections of the media and general public in Pakistan about actress Meera`s kissing scene in a Hindi movie. It really shocks me that something as heinous as Mukhtar Mai`s rape and the acquital of most people involved, has failed to evoke the same kind of outburst. An innocous kiss enacted on screen causes more indignation than the reality of the gangrape of a helpless woman. Some people are hopelessly out of touch with reality. Its high time the people of Pakistan became more vocal about the society they stay in.

[Now suppose that the victim fails to prove her case. The accused goes free; however, now police files a case against victim on two charges:

1. Slander

2. Victim`s own statement when she was filing the charges is used as a confession that element a (i.e. sexual congress) did take place. ]

In other words if rape victim fails to prove because of ``benefit of doubt`` it is not assumed that although she may be right but not able to prove. There are two aspects: (1) being right and (2) being able to prove it. Why assume that not being able to prove necessarily means being not right. You are making it sound that it is all Zia`s fault but use of above simplisistic (and incorrect) logic is not at fault at all. Even a high school graduate will tell you that following is bullshit:

not (2) implies not (1)

What does it say of supposedly intelligent Islamic (I am sure you would class the Pakistani police and judges in that category) do not know enough logic? The very skill they are supposed to be master of.

Einstien

``In other words if rape victim fails to prove because of ``benefit of doubt`` it is not assumed that although she may be right but not able to prove. There are two aspects: (1) being right and (2) being able to prove it. Why assume that not being able to prove necessarily means being not right. ``

Yes, unfortunately that case is true in existing Pakistani legal system. And that is the core of the problems that people are having with Hadud laws.

But let me explain a bit more. It is the very nature of the subject and fieled of law and jurisprudence that the notions of ``being right`` and ``being wrong`` are immaterial. What really counts in law is ``proven right`` or proven wrong`` according to the standards set up thru the jurisprudence. Hence, no matter how victimized one would be he has to ``prove`` his or her case.

The loophole that exists in the Pakistani law is exploited fully by police, political entities, and courts. There are thousands of women who filed a complaint for a rape and they are in jail because they failed to prove their case. This loophole is sometimes used to extort money, sexual favors, and revenge. And in every one of such cases that gets media attention judges reject the police case because precedent has been set by higher courts but since CrPC still allows that loophole the police and lower courts still persecute women and they are incarcerated until the appeal process takes them to higher courts where there is more visibility.

This injustice can be removed in just one session of the legislature but our rulers are scared of their foreign masters and their own weaknesses but they do not fear God. No one wants to risk being seen ``reforming`` Hadud laws, because in the eyes of their foreign masters and patrons they will be immediately labelled as ``fundamentalists`` and ``Islamists`` and hence ``terrorists``. They would rather let ordinary citizens of Pakistan suffer and rot. Neither these so called political leadreship have power to dare repeal Hadud laws because people of Pakistan will drown them in Arabian Sea. People do not want to stand up for sometheing that they do not have faith in. There is not a single state institution left in Paksitan that commands the respect and faith of people. We are an absolutely disenfranchized and dispossessed people from whom their whole country has been stolen.

urstruly,

serious question: it is my understanding that under islamic law non-muslim women taken prisoner in a war can be taken as concubines ............ now what if the woman resists - is this considered rape ?.............. or, if the sex is consensual then is it not adultery (zina) ?