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Zina Laws in Pakistan

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Feminist Voice

Much of the available literature on zina has focused on
human and legal rights (Zia 1997, Toor 1997, Jahangir or
Jilani 1988) or alternatively has the potential to generate
cultural explanations for their situation in the west (Khan
2001). Narratives of the women I interviewed suggest that
yes their human and rights have been violated, but this has
largely happened because they are poor and because they are
women. Indeed their lives, when examined as embedded within
local and international systems, provide a direction for
feminist analyses that is neither orientalist nor neglects
the oppression of Pakistani women.

The zina laws were promulgated as a means to ensure a
moral and just society in Pakistan. The reality is quite
different in a society where police corruption and violence
go unpunished, male violence against women has no legal
sanction, and the majority of the population is increasingly
impoverished. The legal system is so backlogged that often
incarcerated persons awaiting trial are held longer than the
sentence they would receive if convicted (USDS 2000:20).
The Parliamentary Commission of Inquiry for Women (1997)
charged that the zina laws are subject to widespread misuse,
with ninety-five percent of the women accused of adultery
being found innocent either in the court of first instance
or on appeal. Indeed human rights lawyer Zia Awan argues
that this is not the environment to introduce these kinds
of laws (1999).

Defenders of the zina laws claim that they regulate morality
in Pakistan and help bring about a just social order. The
definition of morality through the zina laws however is
ambiguous and the states control over its citizens is not
absolute. Thus both the reading of the law and its effects
of laws are uneven. As the narratives of the women suggest
that women are jailed for all kinds of offenses that have
nothing to do with sex. Indeed the narratives of the women
uncover deeper issues: corruption, poverty, drug abuse,
alcoholism and male violence. Frequently, poverty causes
many parents to marry their daughters in exchange for
money. Their accounts point to a culture and tradition
which puts women, especially poor women at risk.
Pakistani budgets and five-year-plans reveal a high priority
to the military and a low priority to poverty alleviation
and development. There is little insitutionalization of
democracy and a dismal human rights record. As for womens
rights, few in Pakistan would say that women do not have
rights: under Islam or under the Constitution. Yet the
rights of women, particularly poor women are systematically
denied in political forums, institutional practice, and
family traditions. Misuse of the zina laws makes the
situation worse. Women who behave in ways the men in their
families do not like, or choose whom they will marry, or
seek divorce, or for no apparent reason incur the wrath of
the men they are married to, or are related to men who are
wanted by the authorities, get accused of offenses as a
means of intimidating them and their relatives. Even
friends of a woman who wants to leave her family or her
husband are often charged and incarcerated under the terms
of the zina laws. Their male co-defendants also suffer, but
men often benefit from the bias in the laws which favours
them. The women are poor and illiterate and likely they
have not participated in the Pakistani political process.
They do not vote nor do they hold the state accountable when
their constitutional rights are violated. Nearly invisible
as citizens, they become more invisible once behind bars.
In a sense, the zina laws are used to sweep clean the
streets of women, particularly poor, unwanted and rebellious
women.

From 1979 to 1995 over one million zina cases were filed
with the police and 300,000 heard by the courts (USDS
2000:10). The laws censure women and men for having sex
outside of marriage, but there is little conclusive proof
that the women in jail had sex in the first place. Many of
them have been accused of merely aiding and abetting
abductions, and have not even been accused of having sex.
Indeed many of the women are acquitted after trial due to
lack of evidence. That thousands of women have been
incarcerated for years on the accusation of helping in an
abduction, or elopement, sends a message that women,
particularly poor women, belong to their fathers, brothers
and husbands. And people who treat them as individuals with
full rights of citizenship and are sensitive to their
narratives of pain and suffering at the hands of those whose
property they are deemed to be better watch out. They could
be accused of helping that property escape the clutches of
its rightful owners.
Pakistani law is committed to general abstract principles of
equality. Moreover, as a signatory to the Convention on the
Elimination of All forms of Discrimination Against Women,
Pakistan has reinforced this commitment. State policies and
practices however generate a diminished status for poor
women. The state oversees the regulation of these
discriminatory practices and reinvigorates a disciplinary
culture harmful to the interests of women, particularly poor
women. A moral and just society, the goal behind the laws,
would undoubtedly be welcomed in Pakistan as it would be in
other places. The zina laws do not bring about such a
society in Pakistan.

The English press has frequently taken up and debated the
idea that the zina laws, indeed the entire text of the
Hadood Ordianances is contributing to social and political
injustice. But there is little debate in Urdu, Sindhi,
Punjabi and Pushto the languages of the people most affected
by them (Hakim, 1999). The impoverished female population,
the primary victims, are unlikely to follow the debates in
the English press. Few of them can read and write and if
they are literate it is in the vernacular. The inability of
those affected by the laws to mount a substantial popular
defense against is due not only to their lack of resources
but also because of their lack of awareness as to how they
might be affected by these laws. Indeed a survey conducted
in 1988 found that 90% of the over 90 prisoners interviewed
in two prisons in Punjab were unaware of the law under which
they had been imprisoned. And over 60% had received no
legal assistance whatever (Jahangir & Jilani 1988, pp
134-136). The comments of Najma Parveen (1999), the first
female warden in a Pakistani prison, suggest that this lack
of awareness is not confined to the illiterate and
impovirshed. Parveen, a former librarian, only became aware
of implications of the zina laws when she became warden and
realized that the fifty percent of the prisoners in her
charge were in jail because of them.

Despite their lack of awareness about the ordinance, the
narratives of the women who I interviewed are a testimony to
their endurance in the face of tremendous odds. The women
are contesting control of their sexuality and morality and
indeed of their bodies, particularly those at Darul-Aman
where despite the prevalent restrictive and oppressive
conditions, many women have chosen to find refuge. They are
running away and seeking shelter from the domination and
violence of fathers, brothers and husbands who beat them and
sell them to the highest bidders. They are choosing their
own marriage partners knowing that their choices place them
at considerable risk. At the same time many women also
articulate a desire to be gharaloo (domestic) and sharif
(honest) suggesting that they have accepted the middle class
ideal of domesticated, chaste and honest women. Their
families also want it of them. The womens narratives,
however, indicate difficulty in maintaining domesticity and
chastity in their conditions of poverty. It is this aura of
domesticity, chastity combined with youth which commands a
price on the marriage market and many parents are loath to
let go of such a valuable commodity.

Although the zina laws apply to all citizens of Pakistan,
the state does not have the power, resources (or will) to
see the sanctions against illicit sex carried through for
any but the most vulnerable. Well-heeled citizens are able
to disregard these prescriptions of morality, while those
with little social and financial resources face the
brutality of the state. Police corruption and violence
exacerbate the already vulnerable situation in which women
charged with zina find themselves. At the hands of the
police they face sexual, physical, and emotional violence
and extortion. Poor women have nothing with which to buy
their way out of the situation and they are the ones who
suffer the most. So what happens if we do away with the
zina laws? Would the women still suffer? The violence that
women face is coming out of social and political attitudes
and from a system which does not respond to their needs.
The zina laws, which allow for an ambiguous reading of the
law, exacerbate the problem. Families are provided with a
mechanism through which they draw upon the power of the
state and a corrupt police force to control their women.

The states treatment of the zina victims, put into
question, the nations commitment to protect the interests
of all its citizens. Poor women are born into a national
symbolic order that teats them as chattels to be bartered.
The nation needs morality and gendered and classed citizens
are sacrificed to provide a moral face for the nation.
Although the state invokes Islam, the womens narratives
clearly suggest that is not religion but the state that is
responsible for their plight. Indeed many turn to religion
to find peace and make sense of the situation. In so doing
they often become recruits for the Islamist group WAT which
has been involved in rehabilitation work in the jails. As
Pakistan struggles to imagine its future, the moral
regulation of poor women through zina laws serves to
symbolically cleanse the material impurity of the nation.
The police as agents of the state are delegated to protect
the rights of citizens against violence. Yet frequently it
is the police who become perpetrators of violence. Police
corruption as well as violence exacerbate the already
vulnerable situation that women charged with zina find
themselves. Women running from family control and coercion
find the police another violent and corrupt adversary. At
the hands of the police they face sexual, physical and
emotional violence and extortion. Poor women have nothing
with which to buy their way out of the situation and they
are the ones who suffer the most. So what happens if we do
away with the zina laws would the women still suffer? The
violence that women face is coming out of social and
political attitudes. Likely women would still suffer
violence and be exploited by their families if it did not
exist. Zina laws allow for an ambiguous reading of the law,
and exacerbate the problem by allowing families to use the
power of the state and a corrupt police force to regulate
their women.

A weak democratic regime brought in the zina laws to bolster
its political base through alliances with right wing
religious parties. Subsequent weak regimes have allowed it
to continue to wreck havoc in society at the expense of the
most vulnerable members, lower class women. The current
martial law regime has done nothing to repeal the anti-woman
laws. All of these regimes have had western financial and
political support. In the West few questions have been
raised concerning the mis-use of religion or lack of human
rights in Pakistan. Particularly the United States has
seldom used its influence with Pakistani regimes to press
for an end to human rights violations.

Notwithstanding the grip on power by ruling elites,
Pakistani society is dynamic and contested (Waites 1995).
Both the media and hundreds of non-governmental
organizations (NGOs) active in Pakistan contest the ruling
vision of society. In response to budget cuts stipulated by
the World Bank and the International Monetary Fund, the
state has retreated from providing the infrastructure
required by Pakistanis. Increasingly NGOS have filled the
vacuum left by the state as they provide legal aid, primary
health care and education to groups that cannot afford to
pay for them. But as several social activists in Pakistan
pointed out there are all kinds of development monies
available to do research on and provide services to women.
There is little money for infrastructure such as a shelter
for women. So while they are able to help women escape
violent situations there are few places to house and shelter
the women while they get their lives in order. Dastak, a
shelter for women run by the Legal Aid organization AGHS is
one of the very few places where women can find refuge while
they explore their own options. Otherwise they have to try
to get shelter in one of the Darul-Amans where they ar
channeled into marriage or sent home to family situations
they are trying to escape from. Helping raise funds for
shelters for women is one way women in the west can join
forces with activists in Pakistan.

My intention is not glorify the role of NGOs as powerful and
progressive champion of peoples rights. Instead I argue
that through their social work agenda the activists who work
for these organizations often find themselves on a collision
course with the state and law enforcement agencies over
civic and human rights issues. These challenges foster a
climate where unjust procedures and directives are
questioned, often which are also against both the spirit of
Islamic values as well as those found in human rights
debates. Indeed the Nawaz Sharif regime felt threatened
enough to attempt to muzzle the media by imprisoning
prominent journalists and harass the NGOs into being more
supportive of government policies.
The NGOs are funded by foreign agencies thus vulnerable to
Islamist claims that they are western agents and
un-Islamic. But they are subtly changing Pakistani society
(Mallick 1998). Many legal challenges to the zina laws have
been brought about by NGOs such as Lawyers for Human Rights
and Legal Aid and the Human Rights Commission of Pakistan.
As a result the government has brought fewer charges against
the women under the zina laws than in the past and the
courts have shown greater leniency toward women in their
sentences and in the granting of bail (USDS 2000:46).

Edward Said (1978) has argued that the Orientalist produces
his identity through difference of the other. Similarly the
zina victim as spectacle allows the western women to
participate in the illusion that she is free and equal. And
the zina victim becomes a metaphor for all that is wrong
with the third world and by implication what is right with
the first world where zina laws do not exist. Within this
view globalization is no longer responsible for the
Pakistani parents that sell their daughters in marriage or
the underpaid policeman who accepts bribes because he does
not earn a living wage. Instead it is the perverse customs
and practices which are responsible for the horrors
perpetrated by the zina laws. The spectacle of caged
sexuality of the Pakistani woman is an orientalist construct
focussing on patriarchy. Its interrogation reveals zina to
be a feminist issue that connects gender oppression not only
to colonial images but also to imperialist strategies which
keep third world countries impoverished in a web of unequal
relations. Feminist solidarity needs to demystify the
spectacle of the woman condemned under zina as well as
those factors obscuring issues that link the woman here to
the woman there.

The women in the Pakistani jail is defined as deviant
because of her uncontrolled sexuality. She has been
positioned to flee the power of the law and the control of
her family. Why does she end up in a Pakistani jail.
Statistics tell us that it is because she is poor and
illiterate. She is poor and illiterate because the state is
spending less and less money for education and job
creation. Although the issues are presented within a
religious and cultural script, the underlying basis of
womens subordination in Pakistan are more closely connected
to lack of education, lack of employment opportunities, lack
of a living wage, and exposure to violence. Similar issues
exist in the west where feminists have long problematized
the social construction of the poor and minority woman as
deviant and whose sexuality needs to be controlled. These
issues are connected to patriarchy and capitalism. As the
state retrenches and provides fewer services, like health
care, basic education and employment opportunities, women
particularly poor women become more vulnerable to conditions
of poverty and violence both here and there.

In moving out of examining gender as the basis of Pakistani
womens subordination, a feminist response might move into
exploring poverty, corruption and illiteracy as the
mitigating factors for the Pakistani womens situation.
These issues can be linked to structural adjustment
directives imposed on third world countries, including
Pakistan, by the IMF and the World Bank. These are the same
structural adjustment directives which are increasingly
responsible for the loss of funding for shelters and for
womens organizations in first world countries, including
Canada where I live, work and write. I argue that the
voices of women incarcerated under zina laws be scripted
over an analysis of the effects of globalization. So that
feminist collective strategies continue to examine and
challenge how globalization affects women internationally.

I recommend that feminist strategies be cognizant of the
ways in which womens subordination not only differs at
diverse sites but also how it is similar. So that the woman
in Canada who is in an abusive situation is aware that the
forces of globalization responsible for the lack of shelter
space for her are also connected to the conditions which
help imprison the Pakistani woman. An understanding of
these difference and similarity as the basis of a feminist
solidarity is a position which Angela Miles (1996)
supports. Miles calls this form of collective action
specificity in diversity. This is not the solidarity
based on a notion of shared oppression of women, but a
redefined sisterhood through which, as bell hooks argues,
women struggle to understand differences and build a
community of interests, shared beliefs and goals around
which to unite (1997: 410). Finally I argue that the
tension between the production and reception of knowledge
not be resolved but kept vibrantly alive. Only then can the
feminist voice continue to be a vital transformative agent
for social change.



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