Win the Battle, Lose the War?: Strategies for Repealing the Zina Ordinance in Pakistan

Abstract

Abstract In 1979, following a military coup, President Zia-ul-Haq sought to foment his power by ‘Islamizing’ Pakistan. Among other policies, he enacted the Hudood Ordinances to codify classical Islamic fiqh on criminal law, including the controversial Zina Ordinance (“Ordinance”) which criminalizes sex outside of marriage. Shortly after its passing, the Ordinance led to the unjust incarceration of thousands of low-income women across the country. Decrying the law as violence against women, human rights supporters around the world demanded reform. Finally, in 2006, Pakistan passed the Protection of Women Act (PWA) that amended the Ordinance, rendering the law procedurally toothless. Still, reforms left the substance of the Ordinance intact, giving men license to take the law into their own hands with effective impunity, leading to a rise in honor killings. Given the need for repeal of the Ordinance, this paper looks to lessons learned from the successes and failures of the 2006 reform to propose a strategy for the future. The 2006 reform adopted an apologetic ‘pragmatic reformist’ approach, building a coalition of conservative Islamists and secularists behind an incremental policy shift. This paper proposes that for a more substantive change that is still effective, the women’s rights movement should shift away from the purely secular or purely Islamic approach to espouse secularism and human rights but using an Islamic rationale, shifting societal attitudes from within the tradition. Doing this, I echo arguments made by reformist-activists Abdullahi An’Naim and Ziba Mir-Hosseini among others as well as adopt the approach of the Supreme Court of Pakistan, the High Courts, and the Federal Shariat Court (FSC) themselves in their attempts to reconcile Pakistan’s constitutional commitments to both human rights and Islamic law. Such a strategy, I posit, is slow but both effective and long-lasting.