Duty or Faith?: the Evolution of Pakistani Rape Laws and Possibility for Non-domestic Redress for Victims

• Citation: Vol. 30 No. 4
• Publication year: 2016
• topic: Criminal Law

Duty or Faith?: The Evolution of Pakistani Rape Laws and Possibility for Non-Domestic Redress for Victims

Samantha Croffie

DUTY OR FAITH?: THE EVOLUTION OF PAKISTANI RAPE LAWS AND POSSIBILITY FOR NON-DOMESTIC REDRESS FOR VICTIMS

Abstract

For years in Pakistan, the tragic story began and ended the same for all Pakistani women: with a tragic rape and the victim being brought to shame or murdered for a violation of Islamic law. Pakistan, which had historically based its laws surrounding rape and the punishment for the crime on Islamic beliefs, failed to provide adequate relief for its victims. The Islamic laws were historically biased against women placing a high burden on the victim to support her allegations. Rather than attempting, and possibly failing to prove their allegations, many victims instead hid their shame simply out of fear.

The classic story appeared to take a turn in 2006 with the passing of the Protection of Women Act. The media praised the Act as "historic" and described it as a positive move towards secularism. The passing of the law seemed to signify a change in the Islamic culture and finally an avenue for which rape victims could seek relief. However, the implementation of the Act alleged to protect women did much less in the way of women's rights than the name would suggest.

In response, this Comment criticizes the adoption of the new law and disputes the claim that the Protection of Women Act did anything to effectively overturn the Islamic-based ordinances previously put in place to prosecute rape in Pakistan. In particular, this Comment asserts that the new law fails in its implementation to provide any form of relief to victims of rape and instead has been used as a superficial tool to alleviate the negative image associated with the previous strict adherence to Islamic laws. Next, this Comment argues that due to the persistent and ongoing failure of the country to provide relief to rape victims, the women of Pakistan should be able to obtain justice through other means.

The possible avenues through which Pakistani rape victims could seek relief are limited to a small number of venues outside of the domestic court system, namely through international tribunals for violations of international human rights law, by way of a domestic transitional justice system, or through a non-domestic court system where individuals could attempt to sue heads of

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state. However, the likelihood of success through any one of those avenues appears to be small. Ultimately, the greatest chance for the vindication of rape victims wanting to successfully bring their claim lies in the possible impact of international pressure on the Pakistani government. As attitudes towards women and gender stereotypes continue to change and become more progressive, there is a chance that Pakistani woman could be afforded redress through their own legal system as a result of international admonishment.

Introduction

The fat man was reeling, and he laughed out loud on seeing me. Then they closed the door and one man dragged me to the table by the hair. The fat policeman fell on top of me. I started screaming and struggling. I got up and ran around inside the room with one man hurtling me toward the other, grabbing me now by my hair, now by my breasts. My shirt tore from the middle. Then the fat man overpowered me, and in the presence of those two other beasts, satisfied himself of me. I felt like I was going to die.¹

Khurshid Begum, a poor washerwoman from Pakistan, describes the chilling series of events leading to her rape in a Pakistani police station.² Begum's crime was no more than one of association: a punishment for being married to a political activist.³ Begum was returning home from visiting her husband, who had been jailed for an allegation regarding the State's national security.⁴ On the night of November 13, 1991, "she was grabbed . . . blindfolded, and thrown into a car 'like a bag of trash' by some policemen."⁵

After her rape, contrary to the support and love one would expect to overwhelm a victim of rape, Begum's family distanced themselves.⁶ She was told by her brother-in-law to "commit suicide," and described her own family as "'wanting her blood.'"⁷ Begum did not even believe that her husband would accept her after the incident.⁸

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Unfortunately, for years in Pakistan, this tragic story began and ended the same for all Pakistani women: with a tragic rape and the victim being brought to shame or murdered for a violation of Islamic law.⁹ Pakistan, which had historically based its laws surrounding rape and the punishment for the crime on Islamic beliefs, has failed to provide adequate relief for its victims.¹⁰ The Islamic laws were historically biased against women, placing a high burden on the victim to support her allegations.¹¹ Rather than attempting, and possibly failing to prove their allegations, many victims instead hid their shame simply out of fear.¹²

The classic story appeared to take a turn in 2006 with the passing into law of the Protection of Women Act (PWA).¹³ The "media praised the [Act] as 'historic' and described it as a positive move towards secularism."¹⁴ The passing of the law seemed to signify a change in the Islamic culture and finally an avenue for which rape victims could seek relief.¹⁵ However, the implementation of the laws alleged to protect women did much less in the way of women's rights than the name of the Act would suggest.

This Comment criticizes the adaptation of the new law and disputes the claim that the PWA did anything to effectively overturn the Islamic-based ordinances previously put in place to prosecute rape in Pakistan. In particular, this Comment asserts that the new law fails in its implementation to provide any form of relief to victims of rape and instead has been used as a superficial tool to alleviate the negative image associated with the previous strict adherence to Islamic laws. Next, this Comment argues that due to the persistent and ongoing failure of the country to provide relief to rape victims, the women of Pakistan should be able to obtain justice through other means. In analyzing how these women will obtain justice, this Comment first determines the possible international obligations Pakistan has failed to adhere to by not

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effectively prosecuting rape crimes. The Comment then expands on possible international sanctions against Pakistan for failure to abide by international conventions. The analysis continues by exploring the possibility of either applying international pressure to force compliance from Pakistan or developing a domestic transitional justice system to prosecute rape crimes in Pakistan. Finally, this Comment considers the possibility that Pakistani women may bring their charges of rape through a non-domestic court system.

In support of these arguments, this Comment is divided into five parts. Part I details the development and implementation of the Hudood Ordinances and addresses the difficulty that the Zina Ordinance in particular created for Pakistani women who alleged rape. Part II focuses on the law as it stands now after the implementation of the PWA in 2006. Specifically, this Part critiques the PWA for its failure to prosecute crimes of rape and provide redress for Pakistani women. In Part III, this Comment (1) proposes the idea that Pakistan's consistent failure to effectively investigate and provide redress for women who have been raped is a violation of both international human rights law and the country's obligations under the International Covenant on Civil and Political Rights (ICCPR), and (2) explores the possibility that the country might be subject to international sanctions. In Part IV, this Comment explores the possibility and likely success of applying international pressure to persuade Pakistan to adapt how they conduct rape investigations. Further, Part IV discusses the possibility of success if Pakistani rape victims brought their claims through both a transitional justice system and the United States (U.S.) federal court system through the Alien Tort Claims Act, addressing possible difficulties with both. Finally, Part V summarizes the arguments and presents conclusions.

I. Development of Islamic Jurisprudence

As a nation immersed in the Islamic faith, Pakistan adapted its laws in conformity with its religious beliefs.¹⁶ Majid Khadduri, a famed scholar of Islamic law, wrote, "Islamic law is the epitome of the Islamic spirit, the most typical manifestation of the Islamic way of life, the kernel of Islam itself."¹⁷ It is due to that "spirit" that the Islamic faith has played such a prominent role in the development of the laws in Pakistan and, despite its reversal, continues to

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frame the judgments of the court and legal system.¹⁸ This Part begins by first explaining the previous legal framework under the Hudood Ordinances specifically in regards to crime of Zina and the impact that those laws had on the prosecution of rape in Pakistan.

A. Sharia Law

The word Sharia, while simplified in English to mean Islamic law, carries a much more sentimental meaning among those of the Muslim faith.¹⁹ Muslims consider Sharia to be a sort of "ultimate justice" delivered by God himself.²⁰ Sharia was derived from two predominate sources: one being the Qur'an and the other being the sunna, the life example of the prophet Mohammad.²¹ In a process called ijtihad, Muslim legal scholars created Sharia by studying the text of the Qur'an and the sunna to form an interpretation of what they understood to be God's law.²² These interpretations were then written into doctrinal rules of the Islamic faith referred to as fiqh.²³

Inevitably, the process of ijtihad led to multiple interpretations even among likeminded scholars.²⁴ However, with the ijtihad process being accepted as "inherently human," rather than choosing one interpretation over another, all fiqh conclusions qualify as Sharia if they are the...