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No Witnesses? No Rape, Says Pakistan's Islamic Council

Categories: South Asia, Pakistan, Citizen Media, Digital Activism, Governance, Human Rights, Law, Women & Gender

A ruling by Pakistan's Council of Islamic Ideology [1] (CII) dismissing DNA as primary evidence in rape cases  [2]has received much flak [3] from activists in the country. The ruling has its fair share of supporters though, with some happy that there is a legitimate institution pondering religious issues in Pakistan.

The Council does not have any legislative power [4] in the country, it is an advisory body for the Pakistani government and the Parliament on all legal matters related to Islam. Rape is currently tried under civil law in Pakistan which allows for DNA evidence. [5] Following the ruling, the Sindh assembly unanimously passed a resolution on June 11, 2013 making DNA tests mandatory [6] in all rape cases in the province.

The controversial edict [7][ur] made public on the council's website [8], stipulates that Islam has given clear instructions on how to judge and punish rapists, by relying solely on testimony from four witnesses and that DNA could be only used to supplement that primary testimony.

The Human Rights Commission of Pakistan (HRCP), a leading rights organization in the country called the council's pronouncement [9]‘regressive, exceptionally insensitive and unkind to rape victims’ on its own website:

Poor investigation methods and reluctance of witnesses to come forward out of fear mean that the balance is titled in the favour of the rapist as it is. In these circumstances, it would be foolish to not depend on all the evidence that is available, especially something as incontrovertible as DNA test results.

Victims of rape along with relatives, hold a protest against their alleged culprits to demand their arrest. They also want to bring to light alleged rape by police officers caused by none payment of bribes. Hyderabad, Pakistan. Image by Rajput Yasir. Copyright Demotix. 14th November 2011.

Victims of rape along with relatives, hold a protest against their alleged culprits to demand their arrest. Hyderabad, Pakistan. Image by Rajput Yasir. Copyright Demotix. 14th November 2011.

In Pakistan, rape used to be tried under Islamic Sharia or the controversial Hudood laws, which in practice equated the crime of adultery with rape [10] – if a rape victim could not provide four male eyewitnesses to the crime, she could be charged with adultery. In fact, according to Pakistan's National Commission on Status of Women [11]80% of women [12]” in jail in 2003 were there as because “they had failed to prove rape charges and were consequently convicted of adultery.”

But in 2006, the Women's Protection Bill [5] was passed which amended the Hudood laws, bringing rape cases under civil law, which allows for forensic evidence.

Ayesha Tammy Haq (@tammyhaq [13]), a journalist in Pakistan, posted a sarcastic remark on her Twitter account:

@tammyhaq [14]: (Ayesha Tammy Haq) Padded bras are the devils cushions say Pakistan's #CouncilofIslamicIdeology good thing they don't have more important issues to deal with?

Conversely, Umair Rasheed (@umairrasheed1 [15]) tweeted:

@Umairrasheed1 [16] (Umair Rasheed): Mullahs convene #Alam-e-IslamConference in #Peshawar. Say they'll start movement to implement #CouncilofIslamicIdeology proposals

Blogger Asif Zaidi [17] wrote on the blog ‘Let Us Build Pakistan':

..no amount of evidence in the world can negate the possibility that a woman may be lying in claiming herself to be a rape victim. Hence certain fastidiousness must be summoned to impede justice’s way to doubtful decisions against innocent men.

Muhammad Ilyas Haidri commenting on an article at Dawn.com [18] said:

…the CII reservations are justified for not accepting the D N A results out rightly … It is correct that the results of un certified laboratories like Pakistanis and many others in third word, where bribe,fraud ,tempering the results ,and poor judicial system is practiced must not be relied upon…

Rana Gulabi on the same website said :

There is a scientific reasoning behind this because DNA can be extracted from common daily use items such as combs, clothes, etc. with the help of commonly available laboratory equipment and then could be planted anywhere to mislead the medical staff doing the medical report. A woman who wants to seek revenge from an ex-husband could do this to ruin a man’s life.

Highlighting the fact that the CII has over two-dozen male clerics, HWG put forward a unique angle in the comments:

The CII should have independently thinking women members to start with. How can a body that entirely consists of male members take decisions affecting women even without listening to their representatives?

Blogger Tazeen Javed [19] quoted a famous Islamic scholar Mr. Tahir Ashrafi:

DNA should be considered – at best – a circumstantial evidence on the basis of which arrests can be made and further investigations should be carried out. However, a suspect must not be punished on the basis of DNA evidence alone, for that evidence of four Muslim male adults is necessary.

On the same blog, Tazeen Javed commented:

If I was a legislator, I would call for making a law that would hand out the harshest punishment for those 4 adult, supposedly pious Muslims men who were silently witnessing a crime as horrible as rape.