AK84, I appreciate that you have a much better perspective on the law in Pakistan than anyone else here. Can you explain why Zafran Bibi ended up being sentenced to death by stoning for adultery when she went to report a rape? (She was eventually released on appeal.) Do adultery cases get tried in a different court to rape cases? What the hell was going on there?
Soraya M. was stoned to death after being falsely accused of adultery by her husband: The Stoning of Soraya M. - Wikipedia.
What the hell?
No, that’s a myth (indeed frequently mentioned in the anglo-saxon world, apparently).
The presumption of innocence is based in France on the 1789 “declaration of man and citizen rights” which has a constitutionnal value (despite not being part of the constitution itself, only refered to), more specifically the article IX :
“Tout homme étant présumé innocent jusqu’à ce qu’il ait été déclaré coupable” (“Any man being assumed innocent until found guilty”).
The basis for this myth, I think, is that the prosecutor doesn’t have to prove guilt. He’s present to represent the interests of society at large, not to prove anything (even though, typically, he will try to demonstrate guilt). In fact, the prosecution not being in charge of the inquiries, doesn’t have the means to try to prove anything. He can only rely on :
-The elements/evidences gathered by an independant judge (“investigative judge”), whose job is specifically to find all evidences he can, whether they favor the accusation or the defense, and doesn’t normally appear during the trial (except sometimes as a witness, which typically means that he seriously blundered during the enquiry).
-Elements undiscovered during the trial (where the scope of the elements presented to the court is much larger than in the anglo-saxon system. For instance hearsays are generally admissible, letting the court/jurors decide on their value, the accused is frequently questionned about previous testimonies or even can decide to answer them, direct exchanges between the witnesses and the accused aren’t unheard of, etc…)
In fact, the prosecutor can perfectly ask the jurors to declare the accused not guilty. The trial will still go on. It’s uncommon, but it happens, generally when witnesses statements collapse during the trial or when it’s discovered that the inquiry was awfully bad (I remember for instance a case where it appeared during the trial that the police had disregarded and not reported testimonies that didn’t fit in their pet peeve theory, or another where one accused eventually admitted to having lied about the involvment of numerous co-accused) . There has been some (obviously extremely rare) cases where the accused was found guilty against the opinion of both the defense (obviously) and the prosecutor.
Note by the way that the french word “procureur” is translated as “prosecutor” because for the most part it’s a similar job, especially outside the “cour d’assises” that tries only the most grievous crimes (murder, rape,etc…). For instance, if you’re merely accused of, say, burglary, the enquiries will be actually led by the “procureur” doing mostly the same job as an american prosecutor.
However, etymologically it means “representant” (implied : of the society/king/whatever he was originally representing), not prosecutor.
Regrettably you don’t have to scratch the surface of countries in which Sharia is practised to uncover dozens of cases like this. Gang-raped 13-year-old stoned to death for “adultery” - Somalia.
perhaps another thing to consider is that the Shariah might not be the only law or legal practice that would apply to the situation in real practice. E.g. a tribal society would have additional rules for dealing with rape that might be a lot more strict than the Shariah standard. Come to think of it, if you have a tribal society that is in a state of continual low level war, the most important kind of legal rule would be not so much the Shariah but rather the latest “peace treaty” (which might stipulate, inter alia, that rape is bad and that perpetrators such-and-such should be fined, or made to marry victims, or similar). And the main reason for not raping women from other tribe would be the threat of resumption of war or vendetta or similar. Meanwhile, allegations of rape of a woman of your own tribe is asking for loss of status and conflict with the elders regardless of how “proven” by Shariah standard the action is.
On the other hand, there were non-tribal urbanized Muslim societies as well in the past, e.g. medieval Cairo, Baghdad or Istanbul. It would be interesting to study how their authorities and religious scholars dealt with these issues in the context of a more atomized, modern-like society.
Exactly. Sharia exists all over, not just Pakistan.
And what defines rape? If they just forced her to give blow jobs is that not rape?
I was assuming that the camera got good video of some guy or guys holding said female down ripping off her clothing to resounding cries of no don’t please stop help rape, and the guy/s fucking her. How much plainer can I put it? I can’t think of being fucked NOT being rape under those conditions.
All major criminal cases are tried in the Court of Sessions. Lesser ones in the Magistrates Court. Adultery would go to the Court of Sessions.
In this particular case the it appears udge found her guilty of adultery. She appealed. Appeal was allowed and conviction set aside. Nothing out of the ordinary there.
In any case death sentence in Pakistan is vide hanging not stoning (see section 368 Criminal Procedure Code)
I don’t understand your point aruvqan.
If there was video of the act then, yes, that would be acceptable evidence, obviously. Four witnesses aren’t required for a rape just an adultery. And, anyway, if it’s a video then everyone who sees it is a witness. So getting four would not be a problem.
I think the bigger and more relevant question is: Should adultery be a crime?
There’s lots of problems with making adultery a crime:
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do we really want the police interfering in our sex lives to that extent?
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leaves the field open to lots of vexatious litigants trying to exact vengeance on former partners. Would take a lot of court time for what is ultimately a very minor criminal offence
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impossible to enforce. Just in practical terms, adulteries tend to be conducted in secret. Saying you need four witnesses to an adultery is akin to saying the crime doesn’t exist at all because you will never get four witnesses.
I think on balance I’m against the idea but I’m not sure where AK84 stands on the issue?
Defines rape, where in Pakistan
That is the whole point.
If the whole point is that the law is unenforceable then can you explain the point of the law itself?
Well, if you videoed your wife being unfaithful then you could get 3 friends to watch it later and get the required witnesses after the fact. So you’d have to install a secret video camera in the hotel room or wherever it is that your wife is doing the dirty to catch her in flagrante delicto.
Although that brings up the whole problem of photoshop and doctored images.
Though I note the article itself says that under that same law, the conviction should not have happened.
Yeah, I as a matter of policy am always skeptical of claims made by Amnesty International, having found most of them to be bogus, based upon hearsay or assertions by interested parties and in one case taken directly from the disciplinary report of the police service who they were attacking.
Amnesty is more reliable than Col Saunders, just about.
To prevent public displays of indecency. As it is when four people can see the act of penetration, then you have far bigger problems.
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](http://www.france24.com/en/20100910-islamic-countries-under-pressure-over-stoning)
You also cited a criminal code from the 1898. The relevant laws, however, would seem to be the Hudood Ordinance from 1979 and then later its revision under the Women’s Protection Bill of 2006.
The latter clearly states that the penalty for Zina is "Stoning to death in case of Muhsan and if not Muhsan whipping not exceeding one hundred stripes "
The former clearly states: “(2) Whoever is guilty of Zina liable to hadd shall, subject to the provisions of this Ordinance, -
(a) if he or she is a muhsan, be stoned to death at a public place”
Oh, and:
Sorry for the double post, session timed out on me. Anyways, from the 2006 bill:
[
](Protection of Women (Criminal Laws Amendment) Act, 2006)
It seems that the issue is not as cut and dried as might be suggested, and various factions/individuals/what-have-you have abused the laws for their own ends and "Where a prosecution for rape against a man fails but sexual activity is confirmed by medical examination or on account of pregnancy or otherwise the woman is punished for zina not as Hadd - four eye witnesses not being available - but as Ta’zir. Her complaint is, at times, deemed a confession.
Even the recent case, confirmed by the local government, involves death by stoning for the crime of adultery. There seems to be quite a bit of daylight between the actions of Jirgas and the standards set forth for the rest of the nation.
sigh
Lets go back shall we. The Code of Criminal Procedure 1898 (Act V of 1898) aka "CrPC’ is what is still inforce in Pakistan as of 2010 (albeit in a much amended form). It applies to all Criminal Trials and related matters. While the Ordinance of 1979, did envisage stoning to death, the punishment (and other provisions of the Ordinance) was declared to be unconstitutional by the Federal Court in the case of Hazoor Bakhsh v Federation of Pakistan PLD 1981 FSC 145.
Secondly as the name suggests the Hudood Ordinance is just that; an Ordinance. In your little attempt at research of Pakistani law you might have been interested in this little provision of law. All Ordinances lapse or cease to have effect within 120 days of being promulgated, unless extended or converted by the Parliament into an Act. This Ordinance was never so converted and thus lapsed after the expiry of four months. In 1985, its provisions were retrospective given protection by the Eight Amendment, but by that time as it already had been declared unconstitutional (except for sections 10-16, which were later incorporated wholesale into law) it thus zero, zilch, nada legal effect.
As for the Criminal Law Amendment Act of 2006, it was an amending act which amended existing law, including the CrPC.
Actual research on cases of Adultery from 1980 till 1990 done by Charles Kennedy and reproduced in his book "The Status of Women in Pakistan in Islamization of Laws"found that there was absolutely not a single case in which a a complaint had been converted into a charge of Adultery. This is confirmed by former Supreme Court Justice Taqi Usmani, and indeed by the Court in * Mst. Safia Bibi vs. The State (PLD 1985 FSC 120)* *"if a girl makes a statement as made in the present case, she cannot be convicted of Zina.”
- at pg 129.
This was indeed one of the critisms of the 2006 Act, that it was attempting to fix what was not broken. There are many other reasons to attack the 1979 Ordinance, and ither Criminal Laws in general, but this is not one of them.
And as cited, is still being used in 2010.
Also as cited, stoning to death is still part of the bill which amended the criminal law in 2006 also calls for death by stoning for the crime of zina.
And, of course, the Ordinance is still being used by some in its unmodified form.
In 2010 (from about two weeks ago).
Except in the cited examples where it is used as the law in question, or where its provisions like death by stoning for zina are incorporated in the criminal code by the 2006 bill, or where its parts (other than those that you mention) were still in effect in 2006.
Likewise, this is a confirmation of nothing. On one hand there are reports of something happening, on the other you have a legal ruling that it should not. Reality trumps “ought”.
Oh, actual research? Well that’s different.
Of course, there was Safia Bibi a girl who alleged rape and couldn’t prove it, so was charged with adultery. Rather famous case, actually. And wait one darn minute, that was in 1983.
Of course, you already addressed this and said “In this particular case the it appears udge found her guilty of adultery. She appealed. Appeal was allowed and conviction set aside. Nothing out of the ordinary there.”
Except, you’ve also just claimed that no such thing ever happened and that actual research backs up such a claim. Curiouser and curiouser.
Or, of course, the case of Jehan Mina, also in 1983 (a year in which actual research confirms that this didn’t happen), was already cited but can be cited again. Filed a charge of rape, had it converted to a charge of adultery against her and was convicted on those grounds.
Or in the 1987 paper Pakistan: Human Rights After Martial Law, (Geneva: International Commission of Jurists): “there have been many reported
cases where a complaint of rape has been made and the court has convicted and punished both parties for adultery or fornication.”
Or The Hudood Ordinances: A Divine Sanction? which found several such cases. But that probably wasn’t actual and/or big research, either.
Since, after all, actual research found that there was not one single instance of such a thing happening from 1980 to 1990.