TWENTY REASONS TO REPEAL THE HUDOOD ORDINANCES

TWENTY REASONS TO REPEAL THE HUDOOD ORDINANCES

By Sherry Rehman

 

 What are the Hudood Ordinances?

The Hudood Ordinances 1979, are a collection of five criminal laws, collectively known as the Hudood Ordinances. The Offences against Property Ord deals with the crime of theft and robbery. The Offence of Zina Ord relates to the crime of rape, abduction, adultery and fornication. The Offence of Qazf Ord realtes to a false accusation of Zina. The Prohibition Order prohibits use of alcohol and narcotics. The last is the Execution of Punishment of whipping Ordinance, which prescribes the mode of whipping for those convicted under the Hodood Ordinances.

 

What Has Parliament and Government Done About Them? 

The infamous Hudood Ordinances remain on the statute books despite the repeated commitment of General Parvez Musharraf that they should be done away with. Despite the fact that he ran a virtual ordinance factory during his three year tenure as Chief Executive, and even promulgated ordinances after the National Assembly was elected, he chose not to repeal these laws. Now when the Pakistan Peoples Party Parliamentarians  has actually for the first time in twenty five years been the only party to challenge these laws in parliament by tabling a bill that includes their repeal, the government has opposed this bill on flimsy and spurious grounds. The Advisor on Women’s Development, the Honorable Ms Niloufer Bakhtiyar, opposed this bill in the National Assembly on the floor of the House on Wednesday    March 2004, by claiming that while she agreed with everything in the Womens Empowment Act 2004 in principle, she had to oppose it on ‘technical ‘ grounds. Her argument was based on the fact that the bill carried too many clauses for the ministry to deal with. If that was indeed the case, then the Honourable Advisor should know at least this much about how parliament works: the bill would have long ago been disallowed on technical grounds and returned by the Speaker’s chamber to the prime mover. Either Ms Bakhtiyar was 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. In fact, a commitment to this effect was made on the floor of the House by the leader of the PML [Q] , Chaudhry Shujaat, to the leader of the Jamaat-I-Islaami, Qazi Hussain Ahmed, during the critical last round of voting on the Seventeenth Constitutional amendment, which gave General Musharraf all the powers he was looking for by butchering the consensus 1973 Constitution. It is clear that while a few members in the National Assembly would like to support the PPPP bill, they remain hostage to their party’s Faustian deal with the loyal opposition, or to their small numbers as independents. If the government was at all sincere about its commitment to justice, women and progressive ideals, it would have joined hands in the parliament with the PPPP to make legislative history inPakistan. The bill could easily have been clubbed together at Committee stage to include their concerns. That would have been a true reflection of a truncated democracy at least trying to work for its people. It would have been a true reflection of political forces trying at last to keep their commitments by honouring their manifesto promises. The PPPP, for its part, will continue trying.

 

Why they Should be Repealed:

1. The Constitution of Pakistan  prohibits any laws that discriminate against women and minorities. The Pakistan Peoples Party Parliamentarians manifesto quite clearly pledges “ to undo laws that are discriminatory against women, minorities and children.”

2. These laws were introduced by General Ziaul Haq without public or parliamentary debate in order to misuse Islam as a legitimizing force for his blatant and unconstitutional usurpation of power.

3. The National Commission on the Status of Women, headed by Justice Majida Rizvi, has  recommended a total repeal of the Hudood Ordinances, 1979. Majida has condemned these laws as repugnant to Islam.Justice Nasir Aslam Zahid has said that the Hudood Ordinances were drafted in a hurry and were not in conjunction with the principles of Quran and Sunnah. Islam preaches justice and equality for women, but these laws have resulted in undue hardships, embarrassment and humiliation for women inPakistan.

4. In each of the four penal laws, with the exception of a couple of provisions on Hadd punishments, the rest of the provisions in the form of Tazir are practically the same as the same as provisions under the Pakistan Penal Code. If the objective of these laws was to provide Hadd punishments for certain offences, then these could have been introduced in the PPC, which was abundantly amended to introduce Arabic names for already mentioned offences in the same code. However, the HO have transformed the Tazir punishments as well, and most of the Hudod laws are now applied as Tazir punishments for Zina, for Qazf, for Prohibition etc. Prior to the Hudood Ords, children under the age of seven bore no criminal liability. After the HO children are exempt from Hadd but not Tazir. A Tazir punishment for Zina for children is thirty stripes and a five-year sentence. For all other Tazir crimes of Hudood children are tried and punished as adults. Under 1980 P.Cr.L.J. 1955 Jamil Ahmed, an orphan child was awarded two years rigorous imprisonment for stealing Rs 370. Prior to the HO  punishment of whipping was never inflicted in normal courts under normal penal offences. Whippings were only enforced under Martial Law, but still resisted as barbaric punishments. Now all whippings under Tazir have to be carried out in public.

5. The property laws, qazf, and prohibition laws are also repugnant to the spirit of Islam. Islam forbids discrimination on the basis of sex, colour, caste, or creed. Minorities  are victims of double jeopardy under this law, because while their testimony is second rated,  punishments opposed to their own Shariah [ creed] are still applicable to them in an arbitrary manner.

6. The National Commission on the Status of Women has found that most of the sentences were handed down under Tazeer, or punishments under the Pakistan Penal Code. However, findings reveal that the Hudood Ords remain the single most misused laws to keep poor, dispossessed women in police lock-up without access to defense counsel or speedy justice. A sample survey of Central Jail Lahore shows that from 1980-87, 47% of the women imprisoned were under the Hudood Laws under Zina. Data from Karachi Police Station (South) shows that 80% of the cases registered are under this law. Many girls have been booked under this law on the behest of their parents merely for wanting a marriage of their choice. 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 being accomplice since they are unable to produce witnesses, which in turn has invariably led to their imprisonment and physical punishment. It therefore discourages women from reporting rape cases, which has resulted in a spiral of rapes, especially in urban centers likeKarachi(Aladdin park gang rapes).

7. The notion that the Zina Ordinance is not an issue since 90% of women get acquitted under it ignores completely the social realities in any country, particularly semi-feudalPakistan. The question to be asked is this: is there not something drastically wrong with a law  under which 90% pf the women are kept behind bars unjustifiably. One woman was known to be under trial for seven years before she was released on acquittal. Is imprisonment for long periods itself not a denial of justice? And what happens when a woman emerges from jail after being accused of adultery? Most women are not able to go back to their families or to their communities even. This ends up either forcing them into prostitution or beggary. All forms of Zina are punishable with a maximum of ten years imprisonment and the infliction of 30 lashes. In most cases however, the men accused are given benefit of doubt and acquitted by the FSC. The trend over the last few years has been to arrest all couples who contract a Nikkah without the blessings of their family. According to the HRCP the female is pressurized by the police to abandon her husband, often with the collusion of judges. This puts her in a bind because denial exposes her to the risk of prosecution under the Zina while acceptance of the allegation keeps her from obtaining bail.

8. These laws also 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.

9. OnlyPakistanandSaudi Arabiaaccept these ordinances in their totality. All other Muslim countries have rejected or amended them in the interests of justice and equality.

10. Prior to the Hudood ords, adultery was punishable only on the male, while rape on a wife who was under-age or minor still was punishable. The Hudood Ords made the rape of wife, minor or not, legal and the law of Qazf was added to the list of offences. Under the HO a large number of women have been locked up, tortured and molested in police lock up. From 1980 to 87the Federal Shariat Court alone heared 3999 appeals of zina involving female prisoners. Many more women are arrested and released before the appeal stage, but cannot shed the stigma of such accusations, regardless of acquittals and exonerations.

11. Under the HO minorities are rated as second-class citizens as they are not given the right to be witnesses in cases that fall under the Hadd. This creates severe contradictions with the view that Islam is compatible with International human rights objectives and norms, and puts moderate Muslim nations such asPakistanin both a national and theological bind.

12. In many marriages where the parties fall apart before Rukhsati or consummation of the marriage, the groom has known to rape the bride to seek vengeance before leaving her. Under the current law this is no offence.

13. These laws further 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 this age, 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 HO reject the definition of adulthood as defined under the 1973 Constitution as a minimum of eighteen years of age.

14. These laws also reduce the testimony if women to half. Yet it is known 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 testament not acceptable in a case of rape in a women’s hostel, for instance?

15. Justice is fundamental to Islamic teachings, and Allah repeatedly enjoins Muslims , as in al-Maida 5/8, “ do justice for it is closer to piety”.[ Taqwa]. God forgives adultery and other sins [ 4/17] , “ he forgives those who commit sin in foolishness but soon seeks his forgiveness”, but he does not forgive injustice. The HO have over the last twenty five years only been used as instruments of injustice.

16. According to the Holy Quran [ Sura Noor 24/6] a husband who accuses his wife of adultery but has no witness other than himself should swear four times that he is telling the truth and the fifth time that Allah’s curse will be upon him if he is lying.Thereafter, if the wife swears four times that her husband is lying and fifth time that Allah’s curse be upon her if he is indeed telling the truth, then the matter rests there and she is not punished. If God has shown a clear way to resolve a case, then why is a pregnant rape victim not given a chance to similarly swear on the Quran that she is telling the truth and Allah’s curse be upon her if she is lying. She should then be set free because there is no way she can produce four witnesses and if she is poor, she will have no means to escape the charges of adultery/fornication.

17. Rajm, or stoning to death, as a punishment, is never mentioned in the Quran. It is only mentioned in the Sunnah, which were compiled two hundred years after the events. Can the Sunnah change clear injunctions of the Quran? Exceptions to a rule do not make a law, nor can one case become the foundation of law.

18. These ordinances don’t even have the virtue of being faithful to the Holy Quran. According to the Quran there is no difference between punishments awarded to married and non-married persons. In the Hudood laws differences have been introduced. They are therefore, completely vulnerable to the argument that they are man-made laws and not immutable.

19. So far Hadd has never been executed but it has been awarded. A total of 26 punishments were awarded until 1988 but all were overturned by the superior courts. Yet Tazir convictions under the HO in the trial courts run into thousands. Any campaign to repeal the HO must include the repeal of Tazir punishments as well as Hadd punishments.

20. 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, the only option is the total repeal of the Hudood Ordinances 1979.