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By Linda Young

The Burden Of Proof

PROVISIONS relating in the Islamic hudud laws regarding the offence of zina which incorporates fornication, adultery and rape have made it almost impossible for a rape victim to prove.

Almost all agree that more discussion and debate is needed as there are still a lot of "nitty gritty details" that need to be worked out. But discussing this issue seems to results in more questions than answers being brought up .

Married people convicted of zina face the maximum penalty by stoning while unmarried people face 100 lashes. To attract this punishment, an offender will have to confess or four righteous or just men must testify that they have clearly seen the act of penetration.

Failing the required number of eyewitnesses or a confession, the offender if there are other incriminating evidence attracting ta'azir or discretionary punishment.

According to lawyer Salbiah Ahmad, who is attached to the Asia Pacific Forum on Women, Law and Development, the presumption that an unmarried pregnant woman or one who has given birth has committed zina is unfair to woman because the burden is on her to prove zina on the part of the man.

To prove rape, she has to produce four righteous men who can testify that they have actually seen "the act of penetration of the sex organ of the male partner into that of the female partner".

If she fails, and it is very likely she will, given that four men will hardly ever stumble upon her being raped, the prosecutor can prosecute her for fornication.

She can also be found guilty of qazaf or making an accusation of rape without producing four male eyewitnesses. This offence attracts 80 lashes.

Unless the man confesses to the rape, which he can withdraw later, the woman is doomed to be whipped.

To make matters worse, the woman and her four witnesses are also liable for punishment if the testimony of one of them is inconsistent with the rest.

It has to be noted that one cannot call four men righteous or just if they watch a woman being raped without lifting a finger.

An unlikely but possible instance of hat happening is when the four men are imprisoned and therefore cannot help the woman who is being raped in their full view.

In theory, two eyewitnesses are liable for the offence of abetment or assisting the offence of zina.

Thus, every witness is automatically an abettor and thus disqualified from giving evidence.

She added that only a small minority of Muslim jurists holds on to the presumption that an unmarried pregnant woman is presumed to have committed zina.

On the other hand, former law lecturer Hajji Sulaiman bin Abdullah is of the opinion that hudud is biased against men as a man cannot plead the woman' s consent when he is accused of rape.

"So long as his 'instrument' is in, he goes (is convicted), as long as there are four just male witnesses," he said.

Another provision in the law states that if a Muslim renounces his faith in the fundamental tenets of Islam, he can face the death penalty and his property confiscated if he does not repent within three days.

Hajji Sulaiman defends this by saying that when a Muslim leaves the faith, he effectively wages war against Islam.

The Pakistani experience has shown that widespread abuse of the hudud can occur resulting in prisons swelling with large number of women prisoners.

"According to 1991 figures complied by a Karachi-based committee seeking the repeal of the Hudud Ordinances, more than 2,000 women were at the time in jail waiting trial under this law.

"Although many convictions are reversed on appeal approximately 33 per cent of rape and adultery charges are overturned - women and men alike would have suffered lengthy periods of imprisonment before they are released."

Hajji Sulaiman is of the opinion that the problem does not lie with the hudud law but with the oppressive system.

"hudud law is the ultimate sanction. It will be rare indeed for hudud punishment to be imposed because it is not every day that four male witnesses stumble upon a public display of sexual intercourse ", he said.