Please - Odhikar

witness are determined by the consensus of the jirga: "in a jirga an accused does not even have
the right to be heard" (Ali and Arif 1998: 51). This is a parallel legal system and has so far
successfully resisted all forms of modernisation. The tribal social formation is essentially
resistant to social change; hence the extremely low level of literacy, freedom of opinion and
speech, and gender equality.
Another parallel legal system in Pakistan is the Shariah Law. The Islamic legal system was
introduced by the Martial Law regime of General Zia ul Haq. In February 1979, Zia ul Haq
started the process of his brand of 'Islamisation' of the Legal Regime in Pakistan by introducing
the punishment of flogging. At the time when this drive was under way, the Islamic Revolution
in Iran acted as a source of ideological inspiration for the Martial Law government in Pakistan.
In 1979, Pakistan became a "frontline state" in the region and started promoting the geo-political
interests of the United States. The Islamisation of the legal system was part of the ideological
armada deployed by the Zia ul Haq government. State-sponsored jihad required a political and
legal system that could provide structural and ideological support. This was the background for
the promulgation of the Hudood Ordinance in 1979. Under this legal system, a number of human
rights were severely curtailed and/or eliminated. For the first time in the history of Pakistan's
legal structures, sexual intercourse outside marriage was criminalised (Khan 2001). This
Ordinance obliterated the difference between sexual intercourse with consent and rape and
converted both into offences (zina and zina-bil-jabr) respectively. According to this legal system,
it was possible that a (female) victim of rape could report the rape and, if unable to provide
sufficient supportive testimony, be convicted of sex without marriage. The legal requirement of
four adult Muslim males of good character as witnesses of the act of rape virtually eliminated
the possibility for the victims of rape to seek redress. The distinction between the victim and the
criminal was erased: if a rape victim cannot produce four adult male Muslims, she is
automatically convicted of the crime of sex without marriage, or adultery and her accusation of
rape is converted into a confession of guilt: "the rape complaint itself is a confession of zina"
(Khan 2001: 1) and "the onus of providing proof rests with the victim" (Khan 2001: 3). In this
legal regime, where the distinction between the victim and the defendant is arbitrarily
determined, it becomes difficult to speak of the rights of the victim and witness protection. The
Hudood Ordinance, as a parallel legal system, operates in the following domains: sexual
intercourse (fornication outside wedlock, adultery and rape), drinking, theft, and apostasy. Of
these domains, the crimes of sexual intercourse outside marriage and apostasy have produced
considerable risks to the lives and personal safety of the victims of rape and the defendants in
blasphemy trials.
The safety of the accused involved in apostasy or blasphemy, though legally guaranteed
throughout the trial, is not socially guaranteed. Many accused persons have been extra-judicially
killed. In some cases, this has happened outside the court after the release. The law that makes
the arrest and trial mandatory of a person accused of blasphemy was added through an
amendment to the existing blasphemy law found in British Common Law. Clause 295 (c) of the
Pakistani Penal Code is a violation of the basic human rights of freedom of opinion, belief and
expression. Many non-Muslims, such as Christian and Ahmediyyas, have been accused of
blasphemy even though their religious beliefs are based on the non-acceptance of the Islamic
faith. In this legal framework, a basic human right, the right to freedom of belief, can also be
converted into a criminal act. For example, if a Christian citizen of Pakistan asserts that he or
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