By Sara Ali
July 4, 2013
The Federal Shariat Court has reaffirmed that nowhere do the Quran and Sunnah prohibit the use of DNA tests and instead strongly encourage recourse to such scientific methods
It is not Islam, it is the self-proclaimed custodians of Islam who are insensitive to women. The controversial recommendation by the Council of Islamic Ideology (CII) declaring DNA as an insubstantial proof for conviction in rape cases has triggered an intense debate among lawyers, politicians and civil society representatives.
Rape is not addressed in the Quran, it only mentions zina. Zina in the Quran is generally equated with fornication and adultery and it is believed that it entails within its meaning non-consensual sex in the Quran and fiqh as well. When interpreting the status of rape in Islam, Pakistan closely aligned rape with fornication and adultery, with the result that rape victims are frequently punished for committing zina while the rapists get away scot-free. The Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, also called the Zina Ordinance, criminalised zina and included adultery, fornication, rape and prostitution in it. It proposed similar Islamic conditions for evidence needed to prove rape as in zina, which further endorsed the belief that the ordinance is a dangerous play of misogyny. The juxtaposition of rape with fornication and adultery is widely criticised as it undermines the uniqueness of ‘rape’ as a heinous crime distinct from zina. Rape victims have been exposed to brutal injustices primarily due to the requirement of producing four male witnesses. In Islam, the wisdom behind four male witnesses was to protect chaste women from false accusations of zina, certainly not to exploit victims of sexual assault. But its custodians have used the verses of the book in a way to circumvent rape convictions, therefore further aggravating the plight of the sufferer.
A woman in Pakistan from birth till her marriage is expected to be a symbol of pride and honour for her family. This entails maintaining her virginity till the time she is given to a man in nikah (marriage) and during these years if she is raped she is left to suffer in silence. A victim who stands up for her rights or registers an FIR in a police station is censured, and in some cases even disowned by her family and society. The attitude of many in Pakistan towards a rape victim is not only atrocious but in certain instances quite agonising. We must inculcate empathy and understanding for those who have been through such a traumatising event in their lives as no one chooses to get raped.
The circumstances for a rape victim are exacerbated with the CII’s recent statement declaring DNA evidence as supporting evidence and not the primary proof in a rape case. The alternative offered by the CII of producing four male witnesses against the rapist has generated a ruckus in civil society. The CII recommendation has also challenged a recent ruling of the Supreme Court (2013 SCMR 203). Mr Salman Akram Raja in the Supreme Court (2013 SCMR 203) has submitted that the administration of a DNA test should be made mandatory in rape cases. Mr Raja in his submission has placed reliance on the case of Muhammad Shahid Sahil v The State (PLD 2010 FSC 215) where the DNA test’s admissibility was accepted to determine the paternity of the child born to a rape victim in the Federal Shariat Court. The Federal Shariat Court in that case has reaffirmed that nowhere do the Quran and Sunnah prohibit the use of DNA tests and instead strongly encourage recourse to such scientific methods. Moreover, it is believed that allowing the DNA test and making it mandatory does not violate Article 13 of the Constitution, which guarantees protection against self-incrimination.
From the Supreme Court case it can be maintained that DNA is the only authentic source that can assist in deciding a rape case. A widely acknowledged belief is that when rape is committed, the offender’s DNA is left on the survivor’s body, and it can be easily obtained from the victim’s saliva, hair, semen, sweat or blood. Hence, DNA in all circumstances is critical to bringing rapists to justice. DNA administration is only feasible and viable if the victim has not showered, combed her hair or cleaned up the crime scene. It is an important tool in deciding rape cases as it can be stored for years and has the capacity to last long without degradation at room temperature.
An immense friction exists between the laws of Pakistan and the CII resolution on rape. Even under the Women’s Protection Act, it has been stated that rape cases should be tried under the Pakistan Penal Code and not under the Hudood Ordinance. At this point it is vital to note that resolutions of the CII are not binding in nature; the Council has more of an advisory role to play. The Constitution of Pakistan while explaining the role of the CII said that it will guide the government in respect of Islamic teachings, their implementation and propagation. Its chairman and members are appointed by the president. The constitution reiterates its role, saying that although its advice is not binding, yet it is not easy for any government to ignore or overrule its recommendation regarding any idea.
With regards to the rape laws, Pakistan is now at a crossroads. Rape is indeed a harrowing phenomenon that continues to haunt Pakistan and is likely to generations to come. If we are really concerned about giving redress to rape victims, it is imperative to resolve the rift between the CII and other segments of society. The need is to bridge the gap between the CII and civil society organisations, and for once sit down and see where both the CII and civil society are coming from. A serious effort is required to remove any misunderstanding of Islam. The focus should be on engaging erudite and serious Islamic scholars. At the end of the day it is not about the CII, or a lawyer, or a civil society representative, it’s about Pakistan and its people. It is about justice and the rule of law. It’s about a society where tranquillity should prevail and where Islam is followed in its true sense.
Sara Ali is a lawyer and a researcher at the Research Society of International Law.