- Sunday | 01 Nov, 2009
- Nathalène Reynolds
- Working Papers
Nathalène Reynolds November 2009
These brief and therefore schematic preliminary remarks are important given the difficulty for a foreign researcher to delve into the field of gender studies in the Islamic Republic of Pakistan without creating doubts in the minds of Pakistanis tired of the instrumentalization of rhetoric as to the oppression of women. It is worth recalling that the issue of oppression had been raised long ago, notably within the framework of the reflections that preceded the creation of Pak-i-stan, the 'country of the pure'. Its founding father, Mohammed Ali Jinnah, during a speech at the Muslim University of Aligarh on 10 March 10 1944 declared that:
“No nation can rise to the height of glory unless your women are side by side with you; we are victims of evil customs. It is a crime against humanity that our women are shut up within the four walls of the houses as prisoners. There is no sanction anywhere for the deplorable condition in which our women have to live” (Pakistan: Status of Women & the Women's Movement, 1944).
Faced with an international situation in which civil society as whole is concerned with the 'reprisals' hastily conducted against a terrorism that force alone - according to the argument that dominates ‘Western’ public discourse - will allow us to eradicate, there is at least one question that it is essential to raise. Does retreat behind the ramparts of national, regional or local cultural specificities not constitute a ruse to avoid tackling the issue of universal values to which women - of all religions - would adhere, were it not for the conscious efforts of various schools of opinion to stifle this line of argument by focusing on the 'duties' said - by more conservative schools of thought - to be defined in the Quran? My particular interest is in Pakistani society: the human rights of a Muslim who considers himself to be battered by the logic of national and international politics seem to be in opposition to those of his 'sister', whom he expects to limit herself to the role defined by society’s expectations: a society which, in turn, on the grounds of establishing the supremacy of religious principles, generally demands the respect of rigid patriarchal values.
The political goal of full women's citizenship imagined by the founder of the Republic of Pakistan, proclaimed Islamic back in 1956, is yet to be realized. The country seems to have descended into a parody of these goals with the promulgation in 1979 of the Offence of Zina (Enforcement of Hudood) Ordinance. This instrument, emblematic of the intrusion of the state's repressive power into the private lives of believers, requires the courts to base their decisions on a specific interpretation of the injunctions of the Quran and the Sunnah when returning verdicts after men and women have been found guilty of zina (i.e. to have voluntarily engaged in sexual intercourse outside of the legal framework of a marriage - or nikah - duly authorising them to do so). Until the introduction of new legislation during the period of rule of President Musharraf, female victims of rape had to have the support of four male witnesses of irreproachable religious piety who were present during the act of penetration...who presumably made no effort to prevent the offence. If these conditions could not be met, reporting the crime was a perilous undertaking: the victim herself risked receiving a severe punishment, as she could be suspected of having ceded to ‘temptations of the flesh’. The 1979 Ordinance erased all distinction between zina (generally translated as 'fornication' or 'adultery') and zina-bil-jabr (rape), while children who had attained puberty were considered to be capable of criminal responsibility. The legislation adopted during 2006 clearly defines the age of maturity, raising it to sixteen for girls and eighteen for boys; steps were taken to free those guilty of zina. 
At the end of 2006, the possibility of amending or abrogating the Offence of Zina (Enforcement of Hudood) Ordinance provoked opposition from the self-proclaimed defenders of the Quran and the Sunnah. It would seem Pakistani society remains in the thrall of certain interests. Were symbolic values associated with the woman, the couple and the family profoundly transformed by the longest period of martial law the country has known, that introduced by General Zia ul-Haq from July 1977 until August 1988, during which time there was every opportunity for adherents of the patriarchal system to promote their messianic agenda? Whatever else, Pakistan represents an excellent field for analysis, allowing, first and foremost, the researcher to examine the significance of the allegory of woman in the construction of the nation. Moreover, the interface between coloniser and colonised was through the prism of a Manichean dialectic that I will attempt to analyze since this is a dimension of importance for the subject of this paper (first section). Did the promises made by the new nation remain out of the reach of women? The religious-based parties in effect made use of a restrictive reading of sacred texts as a source of political hegemony, as the failings of the process of nation-building allowed them to hope to attain certain predominance (second section). Was the role of female citizens progressively reduced to that of a guarantor of male honor (third section)? Note that the author spent eighteen months in the country in 2006 and 2007, travelling to Punjab, Sind, Quetta, North West Frontier Province (NWFP) and the Northern Areas. The author is certainly not claiming to present dramatic new material that had somehow escaped the attention of Pakistani researchers. Drawing on accessible material, I endeavour to present a fresh perspective on the complex relationship between women and the state in Pakistan.
 The definition offered by the site www.islam-sunnite.com is as follows: “Sunnah: path or practice. The usual practice of the Prophet […] including his words, actions, behavior he tacitly approved or disapproved - what is also qualified as Hadith. The adepts of Hadith add his personal traits (including his physical characteristics) to this definition” (Cf. Qu’est ce que la Sunnah ? Réponse du Shaykh Gibril F. Haddad - What is the Sunnah? Reply of Shaykh Gibril F. Haddad). We will return later to the dispute around the Sunnah.
 The term hudood - the plural of hadd, which means limit or restriction - refers to the punishments that result from crossing those ‘limits’. This legislation, comprising five texts, limits the eligibility of both religious minorities and Muslim females to bear witness; in this it is based on an interpretation - that is not without ambiguity - of a Quranic text according to which the evidence given by two women is equivalent to that of one man. Apart from the Offence of Zina (Enforcement of Hudood) Ordinance, the Offence Against Property (Enforcement of Hudood) Ordinance stipulates that the punishment for anyone guilty of theft is amputation by a surgeon of the right hand. The Offence of Qazaf (Enforcement of Hudood) Ordinance deals with false accusations of rape, a matter complicated by the discrimination against women who may have been victims or witnesses. The Prohibition (Enforcement of Hudood) Ordinance reinforces the criminalisation of the consumption of alcohol that applies, since 1977, to all Muslims. While the Penal Code stipulates punishment by six months of prison, a fine of 5,000 rupees or both, the Ordinance requires a punishment of eighty lashes, hence the relevance of the fifth text, the Execution of Punishment of Whipping Ordinance. It is intriguing to note how the judiciary tried to ‘balance’ the two legal ‘traditions’: while judging the Hudood offences outlined above, judges stubbornly handed down ‘conventional’, prison sentences that were officially no longer permitted, since the Penal Code had been amended. A further irony of the situation in Pakistan: the country continues to produce alcohol, for example the well-known Murree Beer; in principle permits are issued only to particular categories including non-Muslims, in reality there is a lucrative black market. In some newspapers and magazines, one can read advertisements offering treatment to cure addiction. It goes almost without saying that the wealthy can usually get any charges to be 'forgotten'.
 The following: The Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006), the Criminal Law (Amendment) Act, 2004 (Act I of 2005), and the Code of Criminal Procedure (Second Amendment) Ordinance, 2006 (XXXV of 2006).
 The Offence of Zina (Enforcement of Hudood) Ordinance defined zina-bil-jabr as follows: “A person is said to commit zina-bil-jabr if he or she has sexual inter-course with a woman or man, as the case may be, to whom he or she is not validly married, in any of the following circumstances, namely: (a) against the will of the victim; (b) without the consent of the victim; (c) with the consent of the victim, when the consent has been obtained by putting the victim in fear of death or of hurt; or (d) with the consent of the victim, when the offender knows that the offender is not validly married to the victim and that the consent is given because the victim believes that the offender is another person to who the victim is or believes herself or himself to be validly married. Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of zina-bil-jabr” (section 1, Article 6).
 Under the terms of the Offence of Zina (Enforcement of Hudood) Ordinance, married women found guilty of zina were to be condemned to death by stoning; the sentence for unmarried women was up to a maximum of one hundred lashes and ten years of prison. In practice, the courts had been more inclined to consider admissible the evidence of men who, content with a denial, remained at liberty. As already indicated, the courts considered that it was sufficient to hand down a prison sentence to convicted females.
 In using the term ‘patriarchal’, the author does not intend to associate herself with radical feminism: there is simply no other term which so fully captures the situation in Pakistan.
 I take this occasion to warmly thank the Sustainable Development Policy Institute (SDPI) of Islamabad for having supporting me so constantly throughout my stay in Pakistan. There are too many of its personnel to whom I owe gratitude for me to list them all here, but I will thank in particular Dr. Saba Gul Khattak, who helped me through the beginnings of the project. With the support of the SDPI, I was able to conduct a variety of field-work, including trips in the framework of NGO projects. I would also like to thank Yasmine Afridi (World Vision), Khadija Nadeem (Action Aid) and Umbreen Griffin (Sind Development Society) in whose company I visited villages in NWFP and Sind.