In Pakistan, a Delicate Balance Between Religious and Secular Law
Follow @jbrezlowMay 28, 2013, 9:29 pm ET
Until 2006, rape in Pakistan was a crime that was largely dealt with under Islamic law. Women had to produce four male witnesses to the crime. The failure to do so could mean being charged with adultery.
With the passage of the Women’s Protection Act that year, rape was moved from the Islamic courts and placed under the jurisdiction of the country’s criminal code. Nearly seven years later, though, the line between the two can still seem blurred. And despite efforts at reform, whenever there is a conflict between secular laws and Islamic laws, the latter will typically take precedence.
Take for example the complicated case of Kainat Soomro, the focus of the FRONTLINE investigation Outlawed In Pakistan. At 13, Soomro was allegedly abducted and then gang-raped by four men near her home in the southern district of Dadu.
As is often the case in rural Pakistan, Soomro and her family initially brought her case before their local tribal council, or jirga. A cornerstone of Pakistan’s tribal society, jirgas can rule on everything from minor property disputes to much more serious offenses, including rape.
In the country’s tribal areas — where distrust and frustration with the pace of state courts runs high — jirgas are commonly viewed as a swift path to justice. At the same time, they have become a source of controversy for rulings often viewed as oppressive, and in some cases, tantamount to murder.
Under tribal law, a jirga may order a family to agree to the marriage of one of its daughters to a male in the opposing family. In Soomro’s case, she and her family told FRONTLINE that village elders wanted her killed.
Such “honor killings” are illegal under Pakistani law, but they occur nonetheless at a troubling rate. In 2012, 913 girls and women lost their lives because of an honor killing, according to a report by the Human Rights Commission of Pakistan. The report found that 604 were killed after being accused of having illicit relations with men.
Soomro and her family, fearing for their lives, fled their village for the city of Karachi.
But the Pakistani courts’ roots in the British colonial system means that across much of the country they are viewed with considerable suspicion, and that skepticism has fueled doubts about their legitimacy, according to a study by USAID.
“Questions about legitimacy are compounded by the low level of efficiency, the prevalence of delays, the inferior quality of legal training, corruption, and the perception that the court system is a tool for the delay of justice, manipulated by rich and/or powerful interests in the society,” according to USAID.
Rape cases can be even more problematic as most police bureaus lack the capacity to conduct forensic analysis, a key factor in such cases. A medical examination of Soomro, for example, found sexual intercourse had taken place, but no DNA or sperm testing was performed, her attorney told FRONTLINE.
Moreover, rape trials can be won by simply demonstrating that a marriage existed between the accused and the alleged victim.
“If it is a registered marriage, then there is no offense. It is a foolproof defense to a case of rape,” Saeed-uz-zaman Siddiqui, a former chief justice of Pakistan, told FRONTLINE.
That defense helped to secure a victory for the defendants in Soomro’s trial, as one of the four men argued that he and Soomro had been married. And although she was not yet 16 at the time of the alleged assault — the age a woman must be to consent to marriage under Pakistan’s secular laws — the judge issued his ruling based on a loophole in Islamic law that says a minor can marry if she has reached puberty.
Indeed, the influence of Islamic law, or Shariah, remains a critical component of Pakistan’s tribal customs, as well as its conventional court system. Shariah courts have the authority to review any law for conformity with Islam and declare any offending statute to be null and void. References to Islamic principles can be found in rulings as varied as due process in administrative law, enforceability of contracts and even environmental regulation.
Shariah law is broadly supported across Pakistan. Just 41 percent of the country’s Muslims believe their state laws follow Shariah closely enough, according to an April survey by the Pew Forum on Religion and Public Life. When asked whether Shariah should be the official law of the land, more than eight in 10 of Pakistan’s Muslims (84 percent) said yes.
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