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WEEKLY NEWSLETTER
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Pakistan
Index
The process of Islamization that has taken place in
Pakistan,
especially in the Zia years, has raised considerable
concern
about criminal law. In February 1979, President Zia
promulgated a
new legal code for Pakistan based on Islamic law and
established
the Federal Shariat Court to hear appeals arising from the
new
code. The Federal Shariat Court also has extensive other
powers
(see Role of Islam
, ch. 4). It lies within the discretion
of the
court of first instance to decide whether to try a case
under
civil or sharia law. If the latter, then the appeals
process goes
to the Federal Shariat Court, rather than to the high
courts.
Sharia law was not intended to replace the criminal
code but
to bring specific parts of it into accordance with the
Quran and
the sharia. Its most notable provisions are contained in
the
hudood (sing., hadd) ordinances promulgated
in
1979. The first ordinance deals with offenses against
property,
the second with zina (adultery) and
zina-bil-jabr
(rape), the third with qazf (false accusation of
zina), and the fourth with prohibition of alcoholic
beverages. Under the ordinances, there are two levels of
cases:
hudood cases, which have particularly strict
Islamic
evidentiary requirements and call for specific "Islamic"
punishments; and tazir cases, where the evidence
requirements are less strict and the punishments less
draconian.
A later decision by the Federal Shariat Court has made
defiling the name of the Prophet Muhammad punishable by a
mandatory death penalty. This decision has raised concerns
in
Pakistan's small Christian community and especially among
the
badly persecuted Ahmadiyya religious minority. Orthodox
Pakistani
Muslims consider Ahmadiyyas heretical, and the group has
been
prohibited from asserting any claim to being Muslim--even
the use
of everyday Islamic greetings.
As a hadd crime, rape is punishable by hanging;
adultery and fornication, as well as qazf, by
stoning to
death. Crimes against property of substantial value call
for
amputation of hands or feet. Public drunkenness and, in
the case
of Muslims, any consumption of alcohol, is punishable by
flogging.
For the most part, Islamic punishments have not been
carried
out, the sole exception being flogging, which has been
imposed
primarily for tazir crimes, as well as for
narcoticsrelated crimes. In addition, alleged political crimes also
resulted in flogging during the last period of martial law
(1977-
85). Hudood sentences of amputation have been
passed but
either have been reversed on appeal or have not been
carried out.
Occasional stonings for adultery have always taken place
in
tribal and other rural areas, but no sentence of stoning
under
the 1979 hudood laws has been carried out.
The Federal Shariat Court has been involved mainly with
noncriminal matters, aside from the review of
hudood
convictions, which in most cases the Federal Shariat Court
has
reversed. In other matters, such as provision of equal
treatment
under the law and requirement for a standard of evidence,
its
application of Islamic principles has even served as a
liberalizing factor, including in the military justice
system.
Overall, as of early 1994 Islamic legal intrusions have
had only
a limited effect on criminal law, although the potential
for
growth is there, especially under the more activist
leadership
that the Federal Shariat Court has shown since 1990.
Among the more notable peculiarities of the new
enactments is
the issue of rape (zina-bil-jabr). On the one hand,
the
crime is rarely proven because four adult Muslim males of
good
reputation must appear as witness to the act. If the
charge
fails, then the woman who has brought it can be punished
for
false accusation (qazf) or, more commonly, for
adultery
(zina) herself because through her charge she has
admitted
an illicit sexual act. In 1991 two-thirds (some 2,000) of
the
women imprisoned in Pakistan were being held on such
charges.
This treatment, of course, has a very chilling effect on
women
who are raped.
Laws passed in the 1980s give the victim of a murder or
other
violence, or the victim's heirs, the right to inflict an
equivalent harm. At the same time, however, there is a
legal
alternative in payment of blood money, which enables
wealthy
Pakistanis to avoid punishment by paying money. Under the
law,
only half of the amount must be paid if the victim is
female.
In 1984 parts of the Indian Evidence Act of 1872 were
changed
with much fanfare to meet Islamic criteria, but there was
little
substantial change. Demands by Islamic enthusiasts that
the
testimony of two women be considered the equivalent of
that of
one man were met only symbolically. The hudood
ordinances,
however, do contain evidential provisions that
discriminate
sharply against women.
In May 1991, the National Assembly passed the Shariat
Bill,
intended to bring the entire justice system into accord
with
Islamic norms. These norms had not yet been established,
and, as
of early 1994, no serious attempt had been made to draft
and pass
the laws and constitutional amendments that would be
required.
Many observers believed that the act was meant as an empty
sop to
Islamist extremists, but it seemed likely that there would
be
constant pressure to implement the act more fully.
Data as of April 1994
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