control and sexuality

Control and Sexuality: The Revival of Zina Laws in Muslim ContextsSince independence, there have been two major streams in Pakistan’s legislative reformsof significance for gender justice. The first stream – particularly detectable in the realmsof constitutional and family law, as well as within specific case law of the state’s supremecourts – sought to protect and promote some women’s human rights within Muslimcommunities. The second stream – underpinning the dictator Zia’s ‘Islamisation’ project –went starkly against the elementary constitutional tenets of gender justice, and reformed,in particular, the country’s criminal justice system. Despite continuous public outrageagainst the latter stream, the recent legislative changes that sought to remedy some ofits worst outputs – most notably the infamous zina laws – were weak and insufficient.This renders Pakistan’s legal system incongruent and largely based on patriarchal bias. Assuch, it betrays its own constitutional promise of equity and equality before law. It alsowarrants the question of state responsibility before international human rights law. Theconstitutionality and international liability of Pakistan’s gender-discriminatory legislativeaffairs is, therefore, examined in the subsequent section of this study.State ResponsibilityAlthough the constitutional framework for the protection and promotion of human rights,including those relating to gender justice, seems to be exceptionally broad, the clausesdemanding all laws to be in congruence with the ‘Injunctions of Islam’ can and have beenread in ways that restrict the guaranteed fundamental rights and freedoms. The ambiguityof the constitutional text was, of course, intentional; the legislators continuously soughtto ‘balance’ demands for social justice with those requiring a more explicit role for theconservative and often gender-discriminatory interpretations of classical fiqh in the statelegal system. Nevertheless, the fundamental rights chapter, in particular its equality clause,remains the constitutional stronghold of the state’s human rights obligations to its citizensof either gender. In this sense, it is possible to conclude that the Hudood Ordinances andother previously discussed gender-discriminatory legislations are both unconstitutionaland un-Islamic, as they rely on the conservative and by large dubious interpretations offiqh and its principal sources – the Qur’an and the Sunna. This assertion, however, is notin itself enough to legally challenge the laws in questions. As demonstrated throughoutthis chapter, Pakistan’s legislative changes were, more often than not, a result of politicalor even military interventions, with the role of key domestic judiciaries and legislatorsreduced to a mere (and usually coerced) confirmation of the will of the rulers of the day.In such circumstances, the Constitution itself usually could not stop the autocratic rulers’abuse of legislative powers. Instead, the Constitution was often and heavily amended,so as to allow for whatever legal changes were deemed necessary in a given time. Ziaul-Haq,for instance, held the 1973 Constitution (with its fundamental rights chapter) inabeyance for a certain period of time, just to make sure that no domestic legal mechanismcould invoke it against his ‘Islamisation’ plans. Despite such extreme abuses, however,the fundamental rights guaranteed in the Constitution have survived and, seemingly,gained greater prominence in the course of the latest political changes towards a more172