By Nimra Azmi
Pakistan’s 2006 Protection of Women Act (PWA) should have been a victory for progressive Pakistani forces, a definitive end to the 1979 Hudood Ordinances’ draconian reign over rape in Pakistan. The actual landscape, however, is not so clear-cut. While not commonly discussed in the narrative of Pakistani rape law, a 2010 Federal Shariat Court decision has the potential to hinder—if not completely negate—effective application of the PWA. The Court declared the Act unconstitutional, compromising what should have been a step to increase the protection of Pakistani women against sexual violence.
In 2006, the Pakistani Parliament passed the Protection of Women Act (Criminal Laws Amendment). The PWA was a response to protests and advocacy by Pakistani women’s groups opposing the 1979 Zina Ordinance for bringing rape, fornication, and adultery under the rubric of Pakistani Islamic law and thereby into the appellate jurisdiction of Pakistan’s Federal Shariat Court.
Established in 1980, the Federal Shariat Court has two main purposes. First, it is empowered to determine whether Pakistani laws are in accord with sharī’a. Secondly, it has revisional (appellate) jurisdiction over criminal court decisions interpreting the Hudood Ordinance. Its decisions are appealable to the Federal Shariat Bench of the Pakistani Supreme Court.
Directly interfering with the FSC’s revisional jurisdiction, the PWA removed rape (or zinā’ bi’l jabr in Ordinance terms) and fornication from the ambit of the Hudood Ordinance and into the Pakistan Penal Code. Once a part of the Pakistan Penal Code, rape cases would be appealable to the civil high courts rather than the FSC. The PWA also converted the Hudood penalties for zinā’ bi’l jabr—which included lashings and execution by stoning—into prison time and capital punishment. Although the PWA does not state how the death penalty will be carried out, Pakistan uses hanging to carry out death sentences.
Not everyone was pleased with the PWA’s passage. In particular, religious parties in Pakistan decried the PWA as “un-Islamic” and Act’s opponents publicly rallied against it.
The PWA also met with legal challenge. In 2007 and 2010, three men filed separate petitions to the Federal Shariat Court against the Federal Government of Pakistan alleging that Sections 5, 6, and 7 of the PWA were “repugnant to the injunctions of Islam” and violated of Article 203 DD of the Pakistani Constitution. Article 203 DD conferred upon the FSC exclusive appellate jurisdiction over Hudood offenses and permitted no legislative instrument to alter that jurisdiction. The three men disputed the sections of the PWA that removed rape, cohabitation by deceit, and fornication from the Hudood Ordinances.
In its 2010 decision in Aamir, Ghuman & Safi v. State, the FSC considered these three petitions together. The FSC sided with the petitioners, holding that Hudood crimes were its sole jurisdiction. In reaching its decision, the FSC discussed precisely what fell under Hudood crimes, reading the term with respect to its Arabic meaning, Qur’ānic basis, ḥadīth (legally authoritative prophetic statements), and past legal usage. The FSC explained that “the word Hadd in the administration of criminal justice in an Islamic society includes (any) specific punishment awarded or prescribed under or in pursuance of an Injunction of Holy Quran or Sunnah.”
In applying this analysis to explain why it had exclusive jurisdiction over rape cases, the FSC defined zinā’ to include rape, but largely failed to reference Hudood Ordinance’s distinction between zinā’ and zinā’ bi’l jabr. After determining that rape was a Hudood offense, the FSC concluded that the “investigation, enquiry or trial of such a matter” is comprehended in the “enforcement of Hadd.” As such, rape was constitutionally within the FSC’s exclusive appellate jurisdiction, which could not be altered by the PWA or any other legislative instrument.
While the challenged sections of the PWA (Sections 5, 6, and 7) were not discussed in the holding, the FSC invalidated Sections 11 and 28 of the PWA because they “annul[ed] the overriding effect of Hudood Ordinances VII and VIII of 1979.” Sections 11 and 28 of the PWA nullified the parts of the Zina and Qazf Ordinances which stated that no law could override those Ordinances. These clauses of the Zina and Qazf Ordinances were designed to insulate those Ordinances from being mooted by future legislation. By nullifying those sections of the Ordinances, the PWA dispensed with the categorical bar against replacement, thus allowing it to change the law governed by those Ordinances. By invalidating those sections of the PWA that nullified the non-override clauses of the Qazf and Zina Ordinances, the FSC returned to the status quo where no law could override the Qazf or Zina Ordinances, thereby gutting the PWA.
While the Pakistani government announced it would appeal the verdict, the status of the appeal is unclear. At the end of its ruling, the FSC informed the Pakistani government that it had until June 22, 2011 to bring the PWA in accordance with this decision, after which the abrogated portions of the Act would cease to be effective. Meanwhile, sources state that the FSC’s ruling has rendered the implementation of the PWA impossible.
A perusal of rape cases decided in 2014 by the Supreme Court and Peshawar and Lahore high courts shows that the terms “zinā’ bi’l jabr” and even “zinā’” continue to be used in the courts’ decisions when referencing rape. Although the courts use the language of the Hudood Ordinance, their decisions are based on sections of the Pakistan Penal Code that pertain to rape and fornication—despite the FSC’s June 2011 deadline. These PPC sections were the ones the Hudood Ordinances had omitted, but the PWA reinstated. In using the language of the Hudood Ordinances but the law of the PPC as articulated under the PWA, the courts may be attempting to navigate a noncommittal middle ground until the Pakistani Supreme Court definitively settles the question of what law is applicable to rape.
Further complicating the landscape, since the Pakistani Constitution prohibits the retroactive application of law, the FSC is still deciding rape cases that arose prior to the PWA under the Hudood Ordinance. In addition to deciding pre-PWA rape cases, the FSC continues to hear post-PWA rape cases. When deciding post-PWA rape cases, the FSC discusses the PWA-reinstated provisions of the Pakistan Penal Code and even sometimes the Zina Ordinance in its decisions—in spite of its own decision and deadline suspending the PWA.
The variety of laws and venues still in play for rape cases reveals the confused state challenge to the PWA left Pakistan in. Whether the FSC will continue to hear rape cases and whether or not the Hudood Ordinance will be resurrected remains to be seen.
 As my previous commentary explores the Zina Ordinance, which was one of the Hudood Ordinances, placed a heavy burden on victims who tried to prove they had been raped. The Zina Ordinance also established harsh punishments for those found guilty of rape or zinā’ bi’l jabr.
 See generally, Protection of Women (Criminal Laws Amendment) Act, No. 6 of 2006, The Gazette of Pakistan Extraordinary, Dec. 1, 2006 (hereinafter PWA), available at http:// www.pakistani.org/pakistan/legislation/2006/wpb.html.
 See generally, The Offence of Zina (Enforcement of Hudood) Ordinance, No. 7 of 1979, The Gazette of Pakistan Extraordinary, Feb. 10, 1979 (hereinafter Zina Ordinance).
 See PWA, supra note 1, at §§ 5 & 8.
 See PWA, supra note 1, at § 9.
 Pakistan Const. art. 203DD (“The Court may call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of, such court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.”).
 See PWA, supra note 1, at §§ 5, 6, & 7.
 Aamir, Ghuman & Safi v. State (2010) (FSC) 29 (Pak.).
 The FSC’s opinion refers, with occasional exception, refers to rape as zinā’. The Zina Ordinance, however, recognizes rape as a separate category under zinā’, called zinā’ bi’l jabr. This distinction within the Hudood Ordinances is essential to the definition of the crime and the FSC’s failure to adhere to these not-so-fine distinctions is perplexing.
 Aamir, Ghuman & Safi v. State at 48.
 Aamir, Ghuman & Safi v. State at 154.
 Zina Ordinance, supra note 3, at § 3 (stating “The provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force.”); The Offence of Qazf (Enforcement of Hudood) Ordinance, No. 8 of 1979, § 19, The Gazette of Pakistan Extraordinary, Feb. 9, 1979 (hereinafter Qazf Ordinance), available at http://www.pakistani.org/pakistan/legislation/zia_po_1979/ord8_1979.html (stating “The provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force.”).
 Aamir, Ghuman & Safi v. State, supra note 7, at 157.
 See Pakistan: The Protection of Women (Criminal Laws Amendment) Act, 2006 and Its Implementation, Immigration & Refugee Board of Canada (Nov. 30, 2011), http://www.justice.gov/eoir/vll/country/canada_coi/pakistan/PAK103864.E.pdf (reporting that sources in Pakistan diverge on the effectiveness of the PWA, with some finding that it has reduced the number of women accused of zinā’ while others stating that the FSC’s decision has meant that the PWA is not implemented at all).
 See, e.g., In re. Human Rights Case No. 42389-P of 201, (2014) 515 SCMR (SC) (Pak.) (“[He] did not commit Zina bil Jabr with her.”); Younas v. Khan, (2014) 1161 YLR (Peshawar HC) (Pak.) (“Allegations against the accused persons were that they abducted the daughter of the complainant and committed zina with her.”); Nawaz v. State, (2014) 2647 YLR (Lahore HC) (Pak.) (“Direct allegation of rape (zina) was available against accused…”).
 See, e.g., Pak. Penal Code § 376 (1860) (“(1) Whoever commits rape shall be punished with death or imprisonment of either description for a term which shall not be less than ten rears or more, than twenty-five years and shall also be liable to fine. (2) When rape is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death or imprisonment for life.”). See also Pak. Penal Code § 496(B) (“(1) A man and a woman not married to each other are said to commit fornication if they willfully have sexual intercourse with one another. (2) Whoever commits fornication shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees.”).
 See Pakistan Const. art. 12.
 See, e.g., Parveen v. Afzal (2014) 819 PCrLJ (FSC) (Pak.) (using the Hudood Ordinance to decide a case begun in 2005 and decided by a lower court in 2013); Ramzan v. State (2014) 232 PCrLJ (FSC) (Pak.) (likewise using the Hudood Ordinance to decide a case begun in 2005 which a lower court had decided in 2013). But see Ashraf v. State (2012) YLR 325 (FSC) (Pak.) (stating that a pre-PWA case should be decided under the changed law. “…[T]he learned court ought to have known that the [PWA] amended Ordinance VII of 1979 by virtue of section 5…The conviction, would, therefore be recorded under [the] Act of 2006 but under section 376-B of Pakistan Penal Code.”).
 See, e.g., Attasi v. State (2014) 1280 PCrLJ (FSC) (Pak.) (adjudicating a rape case under § 376 of the Pakstan Penal Code); Ali v. State (2012) 847 YLR (FSC) (Pak.) (referencing § 376 of the Pakistan Penal Code twice in its judgment of a 2009 rape case, once separately and once beneath the Zina Ordinance).