Women and Divine Decrees

No other law in Pakistan, other than the law relating to blasphemy, has led to such heated debate and controversy than the law relating to the evidence of women. The source of the controversy stems from the provisions of the Qanun-e-Shahadat Order, 1984 (which is an “Islamized” version of the old Evidence Act, 1872), the provisions of which ex facie discriminate against women.

Article 17(1) of the QSO sets out that the “competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah.” This is fairly harmless stuff, if not a noble attempt to put effect to the divine injunctions of Surah Baqara. However, the real controversy actually lies in the provisions Article 17(2) of the QSO, which attempts to effect, specifically, the injunctions laid down in Verse 2:282 of the Holy Quran.

The controversial Article stipulates that where an agreement between parties pertaining to “financial or future obligations” is reduced to writing, it must be attested “by two men, or one man and two women, so that one may remind the other . . .” Article 79(2) of the QSO further stipulates that such a document cannot be used as evidence unless “two attesting witness at least have been called for the purpose of proving its execution . . .”

In practical terms, the provisions of the QSO dictate that the mutually agreed upon provisions of any written agreement which contemplates some financial or future obligations can be rendered legally unenforceable unless the two male witnesses (or one male and two female witnesses) to the agreement can swear to a court of law that they saw the parties thereto actually sign it. The controversy manifests itself in litigation, as every time a document is witnessed by one man and two women, it cannot be examined by a court of law unless and until the man and the two women give seperate statements to the effect that they saw the execution of the document. The controversial implication of such a requirement is that the State has decreed that the word of one woman is only half as believable as that of a man.

Much of the criticism of this law has been generated by various women’s and human rights groups, and has focused on the sexual discrimination it envisages. Indeed, some other jurisdictions implicitly give more credence to the evidence of a woman, no doubt effecting the well-known belief that women are always right. In fact, I have been able to locate an archaic utterance (one of many, I may add) of William St Julien Arabin, a 19th century judge of the Old Bailey in London. During the trial reported as R. Collinson (1834), he is known to have gone as far as to say “One woman is worth twenty men as a witness any day.”

However, there are some ostensible justifications for such a law. It could be that the requirements of Art. 17(2) of the QSO protect the concept of purdah. While there is nothing remarkable for two male witnesses to confer with one another before swearing to a court of law that the document before the court is the one executed by the litigating parties, the concept of mehram prohibits men from conferring with women. The QSO can therefore be said to allow a woman to give evidence of the execution of a agreement in writing so long as she has another women with whom she can confer with as to the veracity of the document in question. One the other hand, some argue that such a law is necessary a woman may not have the ability to comprehend complicated financial transactions, and may need the assistance of another female witness to remind herself of the execution of the agreement. Such a view was put forward by Mr. Justice (Retired) Mamoon Kazi in an article published in the DAWN (26 January 2001). According to Mr. Justice Kazi, Verse 2:282, as affected by Art. 17(2) of the QSO, “is meant for women who mainly remain busy with their household chores and [sic] business transactions are generally alien to them.” Clearly, both such ostensible justifications of the law fail to appreciate that men and women can and should stand shoulder to shoulder in the business world.

However, the voices of various women’s and human rights are groups not alone. In the same article Mr. Justice Kazi stated that the law “fails to serve any useful purpose” and recommended its removal from our statute books. Mr. Justice Kazi’s criticism stemmed from his belief that the requirements of Art. 17 of the QSO “far exceeded the injunctions contained in Verse 2:282” which he said “made no reference to evidence.” Indeed, the Divine Revelation appears to lay emphasis on the necessity of having agreements formally documented in order to prevent any disputes as to the exact nature of each party’s rights and obligations arising in the future.

Whilst most of the criticism of the law relating to women’s evidence stems from the fact that it is ex facie sexually discriminatory (and as such runs foul of the Constitutionally protected right to equality and freedom from discrimination on the basis of sex alone), there has been little debate on the mentality of a state which purports, through this law, to bring about an “Islamization” of the country. As we shall see, the State’s intentions seem widely contradictory when the provisions of the QSO are examined along with the motives behind other existing laws.

The Financial Institutions (Recovery of Finances) Ordinance, 2001 (which is a more pro-bank law than the pro-bank Banking Institutions (Recovery of Loans, Advances, Credits and Finances) Act, 1997 which it repealed) governs the law relating to the recovery of outstanding loans. The Ordinance provides for a streamlined system of litigation with respect to any and all banking transactions, all of which are formally documented and pertain to financial and future obligations. A streamlined system was deemed necessary in order to speed up the notoriously long process of recovering loans from defaulting debtors.

Just like its predecessor, the 1997 Act, the Ordinance caters to its objectives by allowing for summary adjudication, that is, adjudication free from one crucial ingredient of a full-blown trial: the formal application of the law relating to the recording of evidence. Such formal application of the law would include the requisite witnesses swearing to the execution of written agreements. The Ordinance, therefore, gives the banking courts the power to instantly pass judgment and decrees against defaulting debtors on the basis of a summary appraisal of the documentary evidence before it. In other words, the banking courts need not have the documents proved according to the QSO and may instead take them at their face value.

That fact that the draconian nature of the Ordinance precludes defaulting debtors from the luxury of defending themselves on the basis of evidence recorded in accordance with the QSO reveals the extent to which the State finds it justifiable to recover defaulted debts at the expense of a proper trial. Such a procedure was deemed necessary because without the summary procedure envisaged in the 1997 Act and the Ordinance, lawyers could frustrate the best efforts of banks intent of recovering outstanding loans by simply capitalizing on lax banking practices. Such lax practices, which are common even today, include banks routinely having loan and security documents executed in blank and in the absence of witnesses as mandated by the QSO. All that a defaulting debtor had to do in order to escape prosecution was to show that the documents which the banks were relying upon had not been executed or witnessed in accordance with the QSO leaving the court without any evidence that an agreement had been executed and that the defaulting debtor had actually borrowed. I must add that, to date, I have not been able to find a suitable explanation for why the State did not choose to regulate lax banking practices but instead chose to put the burden of lax banking practices onto the shoulders of the people.

To overcome such effective delay tactics and to increase its revenue by ensuring the quick recovery of outstanding loans, the State, it seems, decided to ignore the provisions of Art. 17 of the QSO altogether. Section 18 of the Ordinance (identical to section 17 of the 1997 Act) states that “Notwithstanding anything contained in this section or any other law, the Banking Court shall not refuse to accept into evidence any document creating or purporting to create or indicating the creation of . . . any obligation by a customer . . . merely because it is not . . . attested or witnessed as required by Article 17 of the Qanun-e-Shahdat Order, 1984 . . .” Section 18 was designed to prevent lawyers from using technical objections to frustrate the process of loan recovery. Such a dispensation of the laws of evidence in complicated financial matters is unique, and it would be difficult to find courts in other jurisdictions entertaining documents which did not comply with the norms of their laws of evidence.

When examined together, the requirements of the QSO and section 18 of the Ordinance seem to say two different things. The State does not need the testimony of two men or one man and two women (or indeed anyone) when it comes to banking transactions, but demands such formality in all other others. Practically speaking, it means a contract between individuals, say, for the sale of land worth Rs. 1 million in one month’s time will be legally worthless unless it has been witnessed according to provisions of the QSO. However, loan and security agreements worth billions can be legally enforced even If the provisions of the QSO – which purport to enforce the teachings of Islam – are totally ignored. Here lies the hypocrisy: the State will invoke Islam, if not claim to uphold its teachings, when it comes to enforcing personal agreements, but finds nothing wrong in flaunting Divine Decrees when it comes to increasing its revenue by collecting on outstanding loans. It is sad to see that in order to protect its revenues, the State has opted not to reform banking practices and has instead played havoc with its so-called mission to enforce Islam. What is worse is that the dignity of women has to suffer in order to maintain such a state of affairs.