Statement by the Asian Human Rights Commission - December
23, 2010
PAKISTAN: SHARIAT RELIGIOUS COURT
LAUNCHES MAJOR CHALLENGE TO PROTECTION OF WOMEN ACT
On 22 December 2010, after three years and four petitions, the Federal
Shariat Court (FSC) of Pakistan declared several critical clauses of the
Protection of Women (Criminal Laws Amendment) Act of 2006 unconstitutional.
In place of this act that created protections for women, the FSC supports the
reinstatement of the Hudood Ordinances VII of 1979, which were used to
discriminate against, falsely convict and imprison, and otherwise destroy the
lives of hundreds of women.
Although the FSC does not have the power to make or change law, Article 203DD
of the Constitution does give the FSC to rule any law which is repugnant to
Islam based on the Holy Quran and the Sunnah of the Holy Prophet (PBUH). The
dangerous, potentially destabilising implications will not be legal but
rather primarily social and political, as the FSC declaration will incite
Islamic fundamentalists and their supporters to suppress the rights of women
for fair trial which they have achieved after a long history of struggle.
The petitioners sought to diminish the Protection of Women Act and reinstate
provisions of the Hudood Ordinances concerning the kidnapping, abduction, or
forced induction of women for purposes of marriage; kidnapping and abduction;
the selling or buying of a person for prostitution; cohabitation under false
pretences, such as claims of lawful marriage; and enticing or kidnapping a
woman with criminal intent.
The FSC has claimed that elements of the Protection of Women Act are not
consistent with Islam and thus violate Article 203DD because they conflict
with the FSC's support of the Hudood Ordinances. The sections in question,
11, 25, and 28, are those pertaining to zina (adultery, rape) and qazf
(enforcement of hadd). The FSC advocates the restoration of provisions of
Hudood that require women who have been raped to produce four witnesses to
support her testimony and the reestablishment of the right of police to
arrest women on a charge of adultery on the basis of their report of rape.
The court also held that sections 48 and 49 of the Control of Narcotics
Substances Act of 1997 and portions of the Anti-Terrorism Act of 1997 fall
under the Hudood Ordinances and should not give judicial powers to the high
court instead of deferring to the FSC. The court would attempt to extent the
term Hudood covers apostasy, human trafficking, war against the state,
and the right of retaliation. The FSC stated that the provisions it states
are unconstitutional should be eliminated by 22 June 2011.
The FSC does not have the legal authority to overturn these provisions of the
Protection of Women Act, the Control of Narcotics Substances Act, or the
Anti-Terrorism Act. The former president of the Supreme Court Bar
Association, Qazi Anwer, stated that the FSC does not have the constitutional
authority to declare laws unconstitutional. Only the high courts and the
Supreme Court have that power. Meanwhile, Parliament is the only body that
can make laws or amend the Constitution.
Yet the implications of the FSC declaration will be tremendous for Pakistan.
Of most concern is the effect the ruling will have on Islamic fundamentalists
and the likelihood of a resurgence of support for the Hudood Ordinances and
the repeal of the Women's Protection Act. Extremists may start campaigns
against women's rights and protections similar to those currently
ongoing surrounding blasphemy laws. The possibility that these
fundamentalists may be incited to vandalism, violence, and extrajudicial
killings is very real.
Beyond civil society, conflict and insecurity could provoke the extra
constitutional forces to take action to support this extreme religious group
over secular opponents and invite the involvement of external actors which
would prefer an Islamic fundamentalist government in Pakistan. The effect may
be the destabilization of the government as well as the erosion of authority
and support for democratic and civilian rule.
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About AHRC: The Asian Human Rights Commission is a
regional non-governmental organisation monitoring and lobbying human rights
issues in Asia. The Hong Kong-based group was founded in 1984.
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