For the first time in twenty-five years, the National Assembly has been heatedly debating the Hudood Ordinances for the last three weeks on every Private Member’s Day. The five criminal laws remain stubbornly on the statute books despite the much-repeated promises of General Pervez Musharraf that they should be done away with. But while the General ran a virtual ordinance factory during his three-year tenure as Chief Executive, and even promulgated ordinances after the NA was elected, he chose not to repeal these laws. Given that the government has the numbers to do away with the ordinance, which the two PPP governments did not have during their fragmented tenures, it has come as a shock to many that now when the Pakistan Peoples Party Parliamentarians has actually challenged these laws by tabling a bill that includes their repeal, the government has opposed it on entirely spurious grounds
The Advisor on Women’s Development, Ms Niloufer Bakhtiyar, opposed the bill on the floor of the House on March 24th saying that while she agreed in principle with the contents of the Women’s Empowerment Act 2004, she could not but oppose it on “technical” grounds. She argued that the bill carried too many clauses for the ministry to deal with. This is interesting, because if that were indeed the case, the bill would have long ago been disallowed on technical grounds and returned by the Speaker’s chamber to the prime mover. So Ms Bakhtiyar was either moved by partisan pique that she has not been able to introduce her own bill, with all the resources of her ministry, or she was defending the government party’s commitment to the religious right to not support the repeal of the Hudood Ordinances.
The sad fact is that only a few weeks ago the leader of the PML-Q, Chaudhry Shujaat, gave such a commitment to the Amir of Jama’at-e Islami, Qazi Hussain Ahmed, on the floor of the House during the critical last round of voting on the 17th amendment. The amendment subsumes all the interventions made by General Musharraf in the Constitution and empowers him at the cost of the Parliament. Unsurprisingly, the Mutahidda Majlis-e-Amal members fired the heaviest salvos against the repeal of Hudood Ordinances. The Alliance is increasingly relying on a dangerous mix of propaganda and hagiography, often cast in chaste Arabic, to throw theological red herrings into the debate. It is important, therefore, in this growing atmosphere of acrimony and obfuscation, to understand the facts about the Hudood Ordinances and why must they be repealed.
Is it, as the religious right maintains, a conspiracy of the liberal classes? Or is it a case of an imperfect justice system needing less flawed laws that create social injustices? A dispassionate look at the laws throws up at least ten, if not more, reasons to repeal them. Let’s consider them.
1. The disrespected Constitution of Pakistan, even in its tattered state still prohibits any laws that discriminate against women and minorities.
2. It would be salutary to remember that General Ziaul Haq introduced these laws in 1979 without any public or parliamentary debate. There is consensus now that he misused Islam to legitimise his blatant and unconstitutional usurpation of power. Therefore, they are entirely man-made and have no sacral link to the spirit, and in many cases, even the letter of Islam.
3. More than one National Commission on the Status of Women has recommended their repeal. Justice Majida Rizvi has condemned these laws as repugnant to Islam. Justice Nasir Aslam Zahid has said that they were drafted in a hurry and were not in conjunction with the principles of Quran and Sunnah.
4. The crux of the matter is that the HOs have transformed the landscape of tazir punishments as well; most Hudood laws are now applied as tazir punishments for zina, for qazf, for prohibition etc. A compelling application in point is the fact that prior to the HOs, children under the age of seven, for instance, bore no criminal liability. Now they do.
5. Despite the fact that Islam forbids discrimination on the basis of sex, colour, caste, or creed, this law makes minorities victims of double jeopardy, because while their testimony is second rated, punishments opposed to their own Shariah [creed] are still applicable to them in an arbitrary manner.
6. Findings reveal that the HOs are the most misused laws to keep poor, dispossessed women in police lock-ups without access to defense counsel or speedy justice. A sample survey of Lahore’s Central Jail shows that from 1980-87, 47 percent of the women imprisoned were booked under the offence of zina. Data from Karachi Police Station (South) shows that 80 percent of the cases registered are under this law. Specifically, the application of the zina or adultery laws has legally blurred the distinction between rape and extra-marital sex. This has resulted in the absurd situation of rape victims being treated as accomplice since they are unable to produce witnesses, which in turn has invariably led to their imprisonment and physical punishment. The notion that the Zina Ordinance is not an issue since 90 percent of women get acquitted under it ignores completely the social realities in any country, particularly the semi-feudal Pakistan. Clearly, something is drastically wrong with a law under which 90 percent of the women are kept behind bars unjustifiably. (One woman was known to be under trial for seven years before she was released on acquittal).
7. These laws encourage honour killings and injuries because they allow these crimes to be compoundable offences. Statistics reveal that most honour crimes are perpetrated by close kin or family members, who are then conveniently forgiven by the heirs of the victim. As it stands, only Pakistan and Saudi Arabia accept these ordinances in their totality. All other Muslim countries have rejected or amended them in the interests of justice and equality.
8. These laws discriminate against women as they de-link puberty from adulthood. In contemporary society a girl can reach puberty at the age of ten. But at age ten, no girl can tell the difference between paedophilia and rape, nor should she be allowed or forced to enter into contracts such as the marriage contract. The HOs also reject the definition of adulthood as defined under the 1973 Constitution which puts it at a minimum of eighteen years of age.
9. They reduce the testimony of women to half, despite the fact that most of the recorded Islamic Hadith are based on the sole testimony of Hazrat Ayesha. If one woman’s testimony is acceptable for the basis of much sacral law, then why is one woman’s testimony not acceptable in a case of rape in a women’s hostel, for instance?
10. So far hadd has never been executed but it has been awarded. That means that these laws have little use except to keep our superior courts busy in overturning their sentences. Most jurists and experts on law have concluded that the defects in these ordinances are so basic that amending these would serve no useful purpose and will cause more miscarriages of justice. If the delivery of justice is the objective of law, the only option is the total repeal of the Hudood Ordinances 1979.