UPDATE: Pakistan: Shamial and Shahzina released and together

Updates and Clarifications: There has been considerable confusion on various aspects of this case and the situation Shahzina Tariq and Shamial Raj are in, especially since people in Pakistan and elsewhere have been misinformed. Nighat Said Khan of the ASR Resource Centre clarifies:
Legal Aspects:

1. Shahzina and Shamial filed a writ in the High Court in which they alleged that the police in Faisalabad were harassing them. In this process the father of Shahzina said that Shamail was a woman, that their marriage was fraudulent. This writ is still in court and is being regularly heard. At the last hearing on the 6th of July [2007], Tariq Hussain, the father, again made this plea and the hearing is to continue on this point after the summer break. The perjury in fact is not so much that they lied in court (for which they have been convicted) but that they submitted a false affidavit in writing and submitted their marriage certificate as genuine. Senator Babar Awan their Supreme Court lawyer is going to petition the court for these hearings to be heard by another bench. The hearing is however going to continue since the judge has not allowed them to withdraw their writ petition and it is centered around the 'false' marriage issue.

2. During the course of the writ the Judge asked them to show cause as to why they should not be charged for 'unnatural offences' (which was withdrawn) and for giving conflicting statements in court amounting to perjury. They were sentenced for the perjury.

3. This conviction has been appealed to the Supreme Court. The SC has suspended the decision of the High Court sentence until such time as the Supreme Court decides on its verdict. They are out on bail until this. We are hoping that the Supreme Court will decide in their favour.

4. Tariq Hussain filed a First Information Report (FIR) with the Faisalabad police against Shamail for 'kidnapping and inducement to marriage', 'fraud', 'false evidence', 'cheating', 'dishonesty' and 'forgery'. I have tried to the best of my ability to get these quashed but so far have only managed to get Shahzina's testimony (that she was not kidnapped) in front of a Magistrate in Faisalabad to offset the 'kidnapping and inducement to marry' aspect. The rest are still in process and again these are based on their marriage being fraudulent and thereby based on 'false evidence'. Again I have asked Senator Babar Awan to help with this but Shamail seems to want to do it through his partner in Faisalabad who knows the police investigation officer.

5. All these have to be attended to immediately. The petition by today, the 25th of July; the papers for the appeal hearing by next week; and the FIR by the 31st (which is when they are meant to appear in Court in Faisalabad). I am trying for them not to go to Faisalabad but am tied to whatever Shahzina and Shamial decide.

Financial:

So far all costs at every level have been borne by me and/or the ASR Resource Centre (about $10,000) An additional $1500 has been donated by two members of Women's Action Forum (WAF) and by some young 'friends' of Shahzina and Shamial in Lahore. Some others have promised funds. Senator Babar Awan is doing the cases pro bono but at all levels there are court and other fees and often, even bribes!! Advocate Zahid Hussain Bokhari who was engaged by me for the High Court case also did so pro bono. Court fees, etc. have however been high and the lawyer engaged by Shahzina and Shamail has not only taken substantial fees from us but has also added up hugh unsubstantiated expenses over and above the expenses that we took care off. Shamial has some money but I am suggesting he use this for their expenses in terms of relocation out of Faisalabad and on their future plans. I am not sure of his financial situation and it seems to me that much of it is tied up with others in Faisalabad and in any case is not enough for the various expenses that I anticipate. I am hoping that friends and supporters in Pakistan will contribute. Shahzina and Shamial need the money now especially since it will take some time for Shamial to recover or disinvest whatever he has. It's going to be a long haul. ASR and myself are continuing to support their living and other expenses as of now but we cannot do this for much longer.

Moral:

[...] I was the only one at the hearing in the Supreme Court although this was extremely important not only for Shahzina and Shamail but because the issue of multiple gender identities was being sympathetic discussed in the Supreme Court of Pakistan. Surely a dramatic first…!! Their case was excellently argued by their lawyer Senator Babar Awan, legally, and in terms of his raising the issue of multiple gender and sexual identities and their reality in Pakistan.

The active support in Pakistan has come from psychiatrists, psychologists, medical practitioners and supporters in the media and from the general public. Several have held seminars and meetings, written articles, letters, and there have been three discussions on television. This support is continuing and if the momentum is kept up could become something of a campaign. Those giving such support are very committed to a public debate on gender identities especially since this debate in many ways has already started.

Internationally as the number of letters indicate they have been extended considerable support. Several friends and supporters have also been directly in touch with me; been active in getting the word out on the letters and other information needed and several offered other kinds of help. I have tried as many of you know to respond to much of this but if I have neglected to do so I do apologize. I was just too overwhelmed trying to attend to the many aspects of the problem while trying to cope with my own work and responsibilities.

Their Future:

Their future is uncertain. The Supreme Court appeal will take its own course. The other cases need to be attended to with urgency. Their financial situation as mentioned above is tenuous and I really don't know what to advise them to do. I have endlessly discussed possibilities with them as has Senator Babar Awan and both of us have promised to do whatever we can to enable them to proceed but the decision can only be theirs. Doctors and psychiatrists are also willing to help especially with further surgery should Shamial want this but again this is up to him. In any case this will take a long time.

Meanwhile their 'marriage' remains in doubt as also what Shahzina's father will now do. Legally she can live where she likes and two 'women' can live together. They can also live together as they are but need to be very quiet about this. If they are not married and if they are woman and man then society could have a problem. Troubling decisions and troubling times but hopefully the support that they have received will continue and that those supporting them in Pakistan will now work actively to assist them financially, logistically, administratively, and morally.

This case and this process has highlighted many issues that need to be addressed by human and women's rights activists both in Pakistan and abroad. In Pakistan an analysis is in order on the silence by such activists, the response by the public, the clergy, the government, and the media and the reality of multiple gender and sexual identities in Pakistan. No longer can any of us say that this is not an issue. As the Dawn News (a cable television network in Pakistan) says in a brief visual of a transsexual/cross-dresser: 'they also demand equal rights'.

25 July 2007

Shamial, a resident of Faisalabad, Pakistan, had a sex change operation and has been living as a man for years. He and Shahzina Tariq married for love last year, despite the fact that Shahzina's father, Tariq Hussain, had wanted her to marry a person to whom he owed money.

Hussain and other family members continued to harass the pair and took legal action against Shamial accusing him of kidnapping their daughter, despite the consensual nature of their marriage. On the 28th of May, 2007 the Lahore High Court decided there was insufficient evidence to charge Shahzina and Shamial under section 377 (unnatural offences). However the couple was sentenced to three years imprisonment on lesser charges.

Despite sensationalistic media reports, at no point have Shamial and Shahzina been charged or tried for ‘lesbianism’ or for the legitimacy of their marriage. The law in Pakistan is silent on such relationships and defines no penalties. The question of Shamial's gender and sexuality only arose after the couple had engaged with the legal system in order to end the harassment by Shahzina's father, who had wanted to marry her off to settle a personal debt.

Despite the marriage, or because of it, Tariq Hussain and the rest of Shahzina’s family continued to harass them and filed several charges against Shamial Raj for kidnapping his daughter and for a number of offences such as fraud.

The two of them then approached a lower court in Faisalabad to prevent such harassment. The lower court decided in their favour since they produced their marriage certificate and because both of them were adults.

Shahzina and Shamial then came to Lahore and found a lawyer, Rana Sajjad Hussain, Advocate High Court, to file a writ petition on their behalf to the High Court to end such harassment. The case was put before Kh. Mohammad Sharif, Judge of the High Court. The first hearing was set for the 3rd of May 2007. On the 4th of May the father of Shahzina appeared before the Court and gave testimony that Shamial was actually a woman.

Shahzina and Shamial did not come to this hearing “because”, their counsel submitted, “they had been threatened the previous night and thought they may be murdered if they appeared in court”. The Judge ordered a physical examination to be done by a five member medical team at the government Services Hospital. The report was to be submitted on the 8th of May.

The medical team reported that while Shamial “is a well built muscular person with moustache and beard and has a hoarse voice” that physically he is a woman. They did however propose additional tests. This report changed the nature of the writ application turning the complainants into defendants. Frightened, the two went into hiding. When they didn’t appear on the 9th the Judge ordered the police to arrest them on the grounds that Shamial had stated in Court that he “was a boy” but that the medical examination had proved that he was “a girl” and that therefore he has sworn a wrong affidavit.

During his physical examination and later in Court Shamial has admitted that he was a woman. The Court gave notice under Section 193 of the Pakistan Penal Code (perjury) for both Shamial and Shahzina to show cause as to why they should not be prosecuted under this section.

Shamial was born a female. However he maintains that he feels like a man trapped in a woman’s body. At age 15 he started developing breasts and growing a beard. He got a mastectomy done in Faisalabad by a medical team supported by a psychologist. In 2006 he decided also to have a hysterectomy.

Shahzina and Shamial ‘disappeared’ after the Court order on the 9th of May. Having missed two hearing of the High Court the Judge issued non-bailable arrest warrants for them. They were arrested by the police soon after and Shamial was interned in the Kot Lakpath jail in Lahore while Shahzina was sent to the Central jail in Faisalabad. They were produced in Court on the 22nd of May.

The Judge asked them to show cause why they should not be charged under PPC193 (perjury) and section 377 (unnatural offences). The Court directed them to do this by the 25th of May. Since their lawyer Mr. Rana Sajjad Hussain, was not allowed by the jail authorities to meet with them he requested the Court to enforce his clients’ rights to counsel and asked for further time in which he could consult with them. The Court gave him time until the 28th of May.

Under section 193 of the PPC (which gives a sentence of up to 7 years) the charges are framed and decided immediately. Charges for section 377 of the PPC, goes for trial. At no point have they been charged or tried for ‘lesbianism’ and nor for their marriage. The law in Pakistan is silent on such relationships and defines no penalties. On the 28th of May the Court decided that there was insufficient evidence to charge Shahzina and Shamial under section 377 (unnatural offences) and while there were circumstances under which perjury was committed it would still give (a lesser) sentence on that charge. Yet they were given 3 years each.

This case highlights the question of gender identity. Shamial insists that he is a man and Shahzina believes that he is one. The Judge referred to this as an unprecedented case as indeed it would be in most parts of the world.

المصدر: 
ASR/WAF