ISLAMABAD: Justice Qazi Faez Isa of the Supreme Court has highlighted the need for laws to deter sexual and gender-based violence against women and their implementation besides inculcating respect for women into people to help discourage abuse against them in society.
Justice Isa was speaking at a national conference on ‘Judicial Response to Cases and Gender-Based Violence’, organised on Saturday by the Federal Judicial Academy in collaboration with the Legal Aid Society in the federal capital.
While conceding that he did not have a complete grip on the subject, he regretted that a military dictator decided in 1979 to make the country’s Muslims better Muslims.
Justice Isa said four Hudood laws were imposed during that period by promulgating ordinances, including the Offence of Zina (Enforcement of Hudood) Ordinance 1979 and Offence of Qazf (Enforcement of Hudood) Ordinance 1979.
Justice Isa regrets Islam is presented in a way that gives impression as if women have inferior role
He said 1979 was the same year when the Soviet Union invaded Afghanistan, and Juhayman al-Otaybi — a Saudi soldier and terrorist — led the seizure of Masjid al-Haram in Makkah. These incidents did not bring something good to the world, he said.
He explained that Article 230 of the Constitution defined the functions of the Islamic council. The provision authorises the council to make recommendations to parliament and provincial assemblies to take measures for encouraging the Muslims of the country and order their lives according to the principles and concepts of Islam.
However, while the council did not have any authority or jurisdiction to formulate laws, it still suggested the introduction of Hudood laws on the directions of the dictator, and a favourite law minister of the then cabinet helped translate them into ordinances, Justice Isa emphasised.
Though the two Hudood laws and the laws on qisas (retributive justice) and diyat (blood money) were written in English, the names of the offences were derived from Arabic than Urdu or English, Justice Isa recalled, adding that no police officer, lawyer or a judge could understand the meaning of these offences in Arabic unless he learned the language.
Now the offence of murder was not simple murder but became Qatl-i-Amad (premeditated murder), whereas hurt becomes shuja and jurah. These Arabic terms were written in the laws in English by transliterating them and thus the then dictator made Pakistanis a laughing stock in the world, Justice Isa said, adding that one who understood Arabic ridiculed the lawmakers for using the term ‘Zina bil Jabr’ for rape instead of the most appropriate word in Arabic, Ightisab.
If we translated Zina bil Jabr into English, it amusingly became “adultery/fornication with rape”, Justice Isa said, adding that this resulted in a serious miscarriage of justice because if the female victim of rape became pregnant, she had to face the allegations of fornication if she could not establish that she was subjected to rape or Zina bil Jabr.
Thus, the most significant holy commands ordained in the Islamic injunction — i.e. not to point fingers or level accusations of rape against women or the offence of qazf — became meaningless or redundant, he said.
The offence of depriving a woman of her virginity, which had been acknowledged as the biggest crime in Islam, was rendered a petty crime or not a very serious offence, Justice Isa regretted.
He said it took 27 years to rectify the wrong of deleting sections 375 and 376 (related to the offence of rape and its punishment) from the Pakistan Penal Code (PPC), which were reinserted in the penal code through the Protection of Women (Criminal Laws Amendment) Act 2006.
“I feel vexed or sorry when the religion of Islam is presented in a way, which is also against the commands of the Holy Quran, giving the impression as if women have an inferior role in the religion,” Justice Isa regretted.
Earlier, retired justice Nasira Iqbal highlighted the need for a separate system to register complaints of sexual harassment against women.
Published in Dawn, May 15th, 2022