Pakistan: Law and injustice - living with Zia's legacy

The purpose was to acquire some 'Islamic' credentials
through the convenient short cut of introducing harsh punishments. It was not
his purpose to draw from Islam that which is far closer to its spirit: i.e.,
equity, justice and relief for the poorest and most vulnerable sections of the
population. Indeed, we see very little of that in his 11-year rule. But the
variety of punishments introduced included amputation of limbs, flogging and
stoning to death.

Whether this reduced the crime rate or raised the moral
tone of the nation during or after Zia's long rule, is clear for all to see.
Those who argue that this was a consequence of the higher courts not endorsing
such punishments should take a closer look at the case of Sudan where they were
meted out. The only real consequence of these ordinances and other similar laws
was greater oppression of the poorest and the most defenseless.

The Zina
ordinance, not surprisingly, has turned out to be particularly oppressive given
that the great majority of women are doubly vulnerable - by reason of class as
well as gender. It has been used with abandon to frame women and, in a cruel
twist, to effectively punish the woman for the crime of rape. It is true that a
sentence of stoning for adultery is unlikely to be carried out and has been
invariably reversed by higher courts. But, it is equally likely that this will
come about after years of incarceration and abuse inside prison. Not to mention
the stigma that goes with it.

Zia's doubtful legacy has indeed cast a
long shadow. The Muharraf regime's rhetoric of liberalism, necessitated in part
by external imperatives, has fallen way short of touching the lives of ordinary
people. Take, for instance, the case of Zafran Bibi who was sentenced to stoning
to death by an additional and session judge in Kohat, on April 17, 2002. She
had, it seems, gone along with her father-in-law to register a case of rape
against her brother in law. Her husband has been in prison for many years. But
the case that was registered by her father-in-law, with her thumbprint, was
against a third person who she termed as innocent and against whom the court
could find no evidence.

Meanwhile, a physical examination revealed that
Zafran was about 8 weeks pregnant. This contradicted her contention that she had
been raped only hours earlier. It is this contradiction that seems to be the
decisive factor in the court's understanding that she was guilty of Zina and not
a victim of Zina-bil-Jabr and as such should be punished with stoning to death.
The case is sub judice and therefore no comment is warranted. But two questions
could be asked with regard to Zafran Bibi's situation. Could it be that
initially she was far too scared of the consequences for her and the family of
reporting the case to the police? Having eventually made up her mind to do so
might she have been afraid of being asked why she did not report the case
earlier and hence brought the date of the occurrence forward?

In any
case, Zafran Bibi's commission of Zina with a particular person has not been
established in court. She has been sentenced, on circumstantial evidence, for
giving birth while her husband was in prison. We may recall that the Federal
Shariat Court has ruled that such evidence is inadequate. Justice Aftab Hussain
of the FSC held that a woman could not be convicted of Zina when she pleaded
that pregnancy/child birth occurred as a result of being raped. Further, that if
the explanation of pregnancy provided by the woman (in her allegation of being
raped) is found to be implausible, that implausibility is not sufficient ground
to convict her of Zina. This judgment, at least, is true to the spirit of Islam
that effectively prescribes punishment only in the most extreme of
circumstances, seeking a very high burden of proof and providing ample ground
for giving the benefit of doubt to the accused.

There are various ways in
which this law has been abused and countless women are condemned to spending
years in prison as a result. But who will change it? That such laws were
specifically targeted to shore up a dictator's image and had very little to do
with the instituting of some kind of an Islamic social order has been obvious
from the start. But those who have followed Zia have been unwilling or unable to
bring about a change regardless of the nature of the dispensation. The same has
been the case with the Blasphemy Law that has frequently been used to settle
scores with rivals, intimidate members of minorities and to secure property or
employment. The surprising thing is that quarters that are most vociferous in
demanding that the law be retained and in no way modified seem untroubled by the
base uses to which it is often put and the crimes committed in the name of the
Prophet (PBUH) and religion.

Not too far back, General Musharraf had
appeared to make a beginning in rationalizing the law by announcing that the
procedure for registering such a case be made more stringent. After all, the
crime does carry the death penalty. And once a case is registered, often on the
basis of fairly flimsy evidence, judges at the lower level find it difficult to
ignore the charged mob invariably gathered outside court premises. A guilty
verdict is likely to be reversed at the higher level but not before long painful
years in prison and sometimes death at the hands of other
inmates.

However, in view of protests from those who find that such laws,
however, unjust lend them leverage and authority in a society that never seems
to opt for them through the ballot, the proposal was unceremoniously dropped. An
earlier proposal during Ms Bhutto's term advocating seven years imprisonment for
those bearing false testimony in such cases met a similar fate. How does
allowing a person to go unpunished for making a false accusation of such a
serious nature square with the Islamic precepts of justice and fairness is
difficult to say.

In any case General Pervez Musharraf, once he is over
his preoccupation with the referendum road show, might well consider looking
into some of these procedural and substantive changes in law, in the interest of
justice.

Abbas Rashid is a freelance journalist and political analyst
whose career has included editorial positions in various Pakistani
newspapers.