(Rape cases go unpunished because of little legal protection of Hudood laws)

The law and practice in Pakistan denies women the rights that Allah has bestowed on them, as women are being jailed and brutalized for crimes they have not committed.

The view that the testimony of one man is equal to that of two women, is a misconception most of us have subscribed to at some point in our lives-- a misconception which has found its way into the legal systems of countries such as Pakistan and Nigeria.

Exacerbating this fact is the stipulation stated in Article 8 of the Zina Ordinance of Pakistan’s Hadood laws, that bars women from testifying altogether in cases involving rape or adultery. It is little wonder that many women victims of rape, end up being incarcerated for adultery due to the above restriction, as often times they are prevented from proving their innocence. In fact, reporting a rape may put a woman at genuine risk of being convicted for adultery, because in many cases it is construed as a confession of guilt, particularly if pregnancy occurs. One needs only recall the well-known cases of Safia Bibi and Ahmadi Begum. These women were left with no recourse or redress when accused of adultery due to the shortcomings inherent in these discriminatory Hadood laws.

It is therefore relevant to ask why the legal framework of Pakistan has failed to deliver justice to women, who happen to be the weaker and more vulnerable members of society. Could it not be the result of a misapplication of Qur’anic verses rather than an honest attempt to implement the true spirit of the Qur’an?

At the outset, it must be noted that the law in Pakistan makes no distinction between what is contextual and normative in Islam. A case in point is verse 2: 282 of the Qur’an which recommends two women in place of one man, as witnesses to business contracts. This verse has been simply planted in the Qanoon-Shahadat Ordinance, without its antecedents or historical context being examined. However, Asghar Ali Engineer, 

	It is little wonder that many women victims of rape, end up being incarcerated for adultery due to the above restriction, as often times they are prevented from proving their innocence.

a noted Muslim scholar in his book entitled “The rights of women in Islam” makes the following cogent arguments for the contextual nature of the verse:

He concludes that “it should be noted that the clause is a recommendatory and not obligatory one--the Qur’an wants to be fair to creditor and debtor and see that the contract is written properly and affirmed by duly qualified witnesses. If the contracting parties have mutual faith, they may even dispense with witnesses.” He further states that “though two female witnesses in place of one male witness have been recommended, only one would bear witness, the others function being nothing more than reminding her in case she falters”. He also makes the argument that “in those days there was always some possibility of female witnesses making mistakes in financial matters due to their inexperience and not due to any inferior intellectual ability. This verse should be categorized as a contextual and not a normative one. The Qur’an is certainly not laying down any norm that in matters of witnessing, two women would be treated as being equal to one man”

Thus, in order to fully understand the purpose, scope and applicability of verse 2:282, it is important to examine the historical and cultural context of seventh century Arabia. It is common knowledge that before the advent of Islam, women had played a subservient role in society and hence their exposure in worldly matters was minimal. It is primarily for this reason that the Qur’an stipulated additional safeguards when women were to testify in mercantile contracts.

This was certainly not meant as a comment on their inherent intellectual ability which has been demonstrated time and again, through their spectacular academic and professional achievements. Verse 2:282 can therefore be treated as a contextual one with applicability in a particular 

	In those days there was always some possibility of female witnesses making mistakes in financial matters due to their inexperience and not due to any inferior intellectual ability. This verse should be categorized as a contextual and not a normative one.

social context, addressing a certain specificity. If the type of social and cultural environment of seventh century Arabia were to emerge again at another place or era, the same Qur’anic rules would apply again, thus upholding the permanent nature of the Qur’an’s message.

Other than mercantile contracts, the Qur’an treats both sexes with parity regarding testimony, as shall be explanied in the following paragraphs.

Consistent with the rules of the Arabic language, the Qur’an employs the male form of words and phrases to include both men and women if a general command is intended for both. Thus in verses involving testimony, the purpose of using the male form is not to exclude women from witnessing, but to simply adhere to grammatical technicalities. Women therefore must not be excluded from bearing testimony based on a mere adherence to grammatical forms. This is further elaborated by the following verse and its interpretation by Justice Aftab Hussain.

“O you who believe! Let there be witnesses to what you do when death approaches you and you are about to make bequests; Two persons of probity from among your own people or if pangs of death come upon you while you are traveling far from home, two other persons(from people other than your own) (Qur’an 5: 106).

The above English rendition of the verse is perhaps the most noteworthy of all translations, as it appears to conform to the intent of the verse, capturing its gender neutrality. Notice that the phrase “two persons” in stead of “two men” has been used here. Commenting on this verse, Justice Aftab Hussian says: “Verse 106 of chapter 5 and the verse that follows it, apply to members of both sexes and women are competent witnesses according to them”.

Other verses of the Qur’an which maintain gender neutrality regarding witnessing, employ Arabic words and phrases such as minkum 

	Women therefore must not be excluded from bearing testimony based on a mere adherence to grammatical forms.

(from among you) rather than rijalukum (men from among you). Notable among these is verse 15 of Surah Nisa.

Perhaps the most compelling argument to be made for the Qur’an’s gender neutrality regarding testimony is its explanation of the Oath of Li’an in Sura Noor verses 6-9:

“As for those who accuse their wives but have not witnesses except themselves; let the testimony of one of them be four testimonies, (swearing) by Allah that he is of those who speak the truth, and yet a fifth, invoking the curse of Allah on him if he is of those who lie. And it shall avert the punishment from her if she bear witness before Allah four times that the thing he saith is indeed false, and a fifth time that the wrath of Allah be upon her if he speaketh the truth”

Thus clearly, the Qur’an awards the same degree of respect to both sexes in terms of credibility and human dignity. The wife, for example is not asked to swear a double number of times than her husband. It is also her statement which takes precedence over his, as she is spared punishment by taking the oath in the manner described above.

The law and practice in Pakistan denies women the rights that Allah has bestowed on them, as women are being jailed and brutalized for crimes they have not committed. Some are murdered in the name of honor over mere suspicions of adultery, whereas the above quoted verse provides them safeguards from such violence.

In light of such horrific circumstances, it is necessary to subject certain traditional interpretations of the Qur’anic text to rigid scrutiny, in order to determine their validity. It is also imperative to rid Islam of feudal and cultural appendages, by rexamining its pristine message as embodied in the Qur’an and Sunnah.

Footnote:

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