Travesty of justice

CII’s judgment and rape laws

It is not Islam, rather the self-proclaimed custodians of Islam that are insensitive to women. The controversial recommendation by the Council of Islamic Ideology (CII), declaring DNA as an insubstantial proof for conviction in rape cases, has triggered an intense debate among lawyers, politicians and civil society representatives.

Rape is not addressed in Quran; it only mentions zina. Zina in Quran is generally equated with fornication and adultery and it is believed that it entails within its meaning non-consensual sex. When interpreting the status of rape in Islam, Pakistan closely aligned rape with fornication and adultery, with the result that the rape victims are frequently punished for committing zina while the rapists get away scot-free. The “Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979”, also the Zina Ordinance, criminalised zina and included adultery, fornication, rape and prostitution in it. It proposed similar Islamic conditions for evidence needed to prove rape as are required in zina which further endorsed the belief that the ordinance is a dangerous play of misogyny. The juxtaposition of rape with fornication and adultery has been widely criticised as it undermines the uniqueness of “rape” as a heinous crime distinct from zina. The rape victims have been exposed to brutal injustices primarily due to the requirement of producing four male witnesses. In Islam, the wisdom behind requiring four male witnesses was to protect chaste women from false accusations of zina, and is certainly not a measure to exploit victims of sexual assaults. But its custodians have used the verses of the Book in a way to circumvent rape convictions; therefore, further aggravating the plight of the sufferer.

A woman in Pakistan, from birth till her marriage, is expected to be a symbol of pride and honour for her family. This entails maintaining her virginity till the time she is given to a man in nikah and during these years if she is raped she is left to suffer in silence. A victim who stands up for her rights or registers an FIR in a police station is disowned and censured by her family and the society. The attitude of many in Pakistan towards a rape victim is not only atrocious but in certain instances quite agonising. We must inculcate empathy and understanding for those who have been through such a traumatising event in their life as no one chooses to get raped.

The circumstances for a rape victim are exacerbated with the CII’s recent statement declaring DNA evidence as only supporting evidence and not the primary proof to a rape case. The alternative offered by the CII of producing four male witnesses against the rapist has generated ruckus in the civil society. CII’s recommendation has also challenged a recent ruling of the Supreme Court (2013 SCMR 203) in which Mr Salman Akram Raja has submitted that the administration of DNA test should be made mandatory in rape cases. Mr Raja in his judgment has placed reliance on the case of Muhammad Shahid Sahil v The State (PLD 2010 FSC 215) where the DNA test’s admissibility has been accepted to determine the paternity of the child born to a rape victim in the Federal Shariat Court. The Federal Shariat Court in that case has reaffirmed that Quran and Sunnah nowhere prohibit the use of DNA tests, instead strongly encourage recourse to such scientific methods. Moreover, it is believed that allowing DNA test and making it mandatory does not violate Article 13 of the constitution which guarantees protection against self-incrimination.

From the above case, it can be maintained that DNA is the only authentic source that can assist in deciding upon a rape case. A widely acknowledged belief is that when rape is committed, the offender’s DNA is often left on the victim’s body; it can be easily obtained from the victim’s saliva, hair, semen, sweat or blood. Hence DNA in all circumstances is critical to bringing the rapists to justice. DNA administration is only feasible and viable if the victim has not taken shower, combed her hair or cleaned up the crime scene. It is an important tool in deciding upon the rape cases as it can be stored for years and has the capacity to last long without degradation at room temperature.

An immense friction exists between the laws of Pakistan and CII’s resolution on rape. Even under the Women Protection Act, it has been stated that rape cases should be tried under the Pakistan Penal Code and not under the Hudood Ordinance. It is vital to note that resolutions of CII are not binding in nature; the council has more of an advisory role to play. The constitution of Pakistan while explaining the role of the CII says that it will guide the government in respect to the Islamic teachings, their implementation and propagation. Its chairman and members are appointed by the president. Although its advice is not binding, its recommendations are not easily overruled.

With regards to rape laws, Pakistan is now at a crossroads. Rape is indeed a harrowing phenomenon. If we are really concerned about giving redress to the rape victims, it is imperative to resolve the rift between the CII and other segments of the society. There is a need to bridge the gap between what the CII believes in and what the civil society needs it for. A serious effort is required to remove any misunderstanding about Islam. After all, at the end of the day it is not about CII, or a lawyer, or a civil society representative, it’s about Pakistan and its people. It is about justice and the rule of law. It’s about a society where justice and equality prevail and where Islam is not distorted.

The writer is a lawyer and a researcher based in Pakistan and holds a law degree from the University of London.