Interesting article on the Blasphemy law and how women are targetted in Pakistan. Excerpts below:
Rafay Alam
No other law in Pakistan, other than the law relating to blasphemy, has led to such heated debate and controversy than the law relating to the evidence of women. The source of the controversy stems from the provisions of the Qanun-e-Shahadat Order, 1984 (which is an “Islamized” version of the old Evidence Act, 1872), the provisions of which ex facie discriminate against women.
Article 17(1) of the QSO sets out that the “competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah.” This is fairly harmless stuff, if not a noble attempt to put effect to the divine injunctions of Surah Baqara. However, the real controversy actually lies in the provisions Article 17(2) of the QSO, which attempts to effect, specifically, the injunctions laid down in Verse 2:282 of the Holy Quran.
The controversial Article stipulates that where an agreement between parties pertaining to “financial or future obligations” is reduced to writing, it must be attested “by two men, or one man and two women, so that one may remind the other . . .” Article 79(2) of the QSO further stipulates that such a document cannot be used as evidence unless “two attesting witness at least have been called for the purpose of proving its execution . . .”
In practical terms, the provisions of the QSO dictate that the mutually agreed upon provisions of any written agreement which contemplates some financial or future obligations can be rendered legally unenforceable unless the two male witnesses (or one male and two female witnesses) to the agreement can swear to a court of law that they saw the parties thereto actually sign it. The controversy manifests itself in litigation, as every time a document is witnessed by one man and two women, it cannot be examined by a court of law unless and until the man and the two women give seperate statements to the effect that they saw the execution of the document. The controversial implication of such a requirement is that the State has decreed that the word of one woman is only half as believable as that of a man.
Much of the criticism of this law has been generated by various women’s and human rights groups, and has focused on the sexual discrimination it envisages. Indeed, some other jurisdictions implicitly give more credence to the evidence of a woman, no doubt effecting the well-known belief that women are always right. In fact, I have been able to locate an archaic utterance (one of many, I may add) of William St Julien Arabin, a 19th century judge of the Old Bailey in London. During the trial reported as R. Collinson (1834), he is known to have gone as far as to say “One woman is worth twenty men as a witness any day.”
However, there are some ostensible justifications for such a law. It could be that the requirements of Art. 17(2) of the QSO protect the concept of purdah. While there is nothing remarkable for two male witnesses to confer with one another before swearing to a court of law that the document before the court is the one executed by the litigating parties, the concept of mehram prohibits men from conferring with women. The QSO can therefore be said to allow a woman to give evidence of the execution of a agreement in writing so long as she has another women with whom she can confer with as to the veracity of the document in question. One the other hand, some argue that such a law is necessary a woman may not have the ability to comprehend complicated financial transactions, and may need the assistance of another female witness to remind herself of the execution of the agreement. Such a view was put forward by Mr. Justice (Retired) Mamoon Kazi in an article published in the DAWN (26 January 2001). According to Mr. Justice Kazi, Verse 2:282, as affected by Art. 17(2) of the QSO, “is meant for women who mainly remain busy with their household chores and [sic] business transactions are generally alien to them.” Clearly, both such ostensible justifications of the law fail to appreciate that men and women can and should stand shoulder to shoulder in the business world.
However, the voices of various women’s and human rights are groups not alone. In the same article Mr. Justice Kazi stated that the law “fails to serve any useful purpose” and recommended its removal from our statute books. Mr. Justice Kazi’s criticism stemmed from his belief that the requirements of Art. 17 of the QSO “far exceeded the injunctions contained in Verse 2:282” which he said “made no reference to evidence.” Indeed, the Divine Revelation appears to lay emphasis on the necessity of having agreements formally documented in order to prevent any disputes as to the exact nature of each party’s rights and obligations arising in the future.
Whilst most of the criticism of the law relating to women’s evidence stems from the fact that it is ex facie sexually discriminatory (and as such runs foul of the Constitutionally protected right to equality and freedom from discrimination on the basis of sex alone), there has been little debate on the mentality of a state which purports, through this law, to bring about an “Islamization” of the country.
