HUDOOD ORDINANCE AND GENDER DISCRIMINATION IN
By
MAIMONA KHANAM§
INTRODUCTION
The people of
The Hudood
Ordinance of 1979;[1] introduced by then President of Pakistan,
General Zia-ul-Haq [2]
was overall part of this process of Islamization in
the country.
ABSTRACT
The Hudood
Ordinance of 1979 was not properly evaluated by the Pakistani Muslim jurists
under the present circumstances thus created an anomaly in its interpretation
and practice within the society, which affected the different sects of society.
For example General discrimination was one of them where this Ordinance has
categorically victimized the woman.
The discussion in this article
has been focused on those impediments and implications which has affected the
status of women under Hudood Ordinance in
DEFINITION
The offences under the Islamic
law from the point of view of their proof and punishment can be divided into ‘Hadd’[3]
and ‘Tazir’[4].
In Holy Qur’an the word ‘Hadd’ has not been used in a
singular but it has been used at fourteen places in plural in the sense of
restriction or bounds set by Allah. The ‘Hudood’ of Allah are of two
kinds. First those ordinances prescribed to men respecting eatables and
drinkables and marriages. What are lawful and what are unlawful. The second
kind of punishment prescribed or appointed to be inflicted upon him who does
that which has been forbidden.
The Law dealing with these
crimes is known as Hudood
Laws. The ‘Hudood’ crimes are Zina (Adultery) or unlawful
intercourse, ‘Qazf’, (false accusation of unlawful
intercourse), drinking wine, theft and high way robbery.
TAZKIA-AL-SHAHOOD
During Khalafat period and after that
almost in all the Muslim states where courts were established under Shari’a, a
regular institution of purgation for equity into the character of a witness was
set up under a qazi.
The institution of purgation was developed to meet the requirements of Qura’nic
injunctions and Sunn’a
necessitating the purgation of witness required to beat testimony before a
court of Law. Under Qura’nic injunctions it is
obligatory for every Muslim to give testimony and concealing of the evidence is
not lawful”.[5] It is
enjoined in Sura Baqra, Ayat No.283 that “conceal not evidence: for who ever
conceal it, his heart is tainted with sin”
According to the Islamic
injunction for the implementation of Hudood Laws four ‘Tazkia-al-Shahood’ [6]
witnesses are necessary.
Regarding Zina the Qur’an
states, “The woman and man guilty of adultery or fornication, flog each of them
a hundred strips; let not compassion move you in their case, in a matter
prescribed by Allah if ye believe in Allah and the last day, and let a party of
believers witness their punishment”.[7]
On the issue of qazf, the Qur’an states, “and those who launch a charge against
chaste woman, and produce not four witnesses (to support their allegation) flog
them with eighty strips: and reject their evidence ever after; for such men are
wicked transgressor”.[8]
HADOOD ORDINANCE
The Hudood Ordinance is a composition of four different Ordinances and
schedules comprising on the following:
1.
The
Offence of ‘Zina’
(Enforcement of Hudood)
Ordinance, 1979 (Order VII of 1979).
2.
The
Prohibition (Enforcement of Hadd Order, 1979, (Order
IV of 1979).
3.
Offence
Against Property (Enforcement of Hudood)
Ordinance, (Order VI of 1979).
4.
Offence
of Qazf’[9] (Enforcement of Hadd)
Order 1979, (Order VIII of 1979)
The above mentioned Laws are
equally enforceable throughout the country, as these have been made applicable
on all individuals who fall within the
mischief of these Laws, irrespective of religion, caste, and creed excepting of
course, those provisions which create certain exceptions in case of non-
Muslims.
CRITICISM
Once it is enforced; the Hudood Laws become under direct attack of
criticism by the all walk of life in
1.
As
being clearly discriminatory and causing grave injustice to women and
minorities.
2.
As violative of the basic principle of justice, equality and
human rights.
3.
As
badly constructed law.
4.
As
not being in accordance with Islamic injunctions, which categorically declare
that there shall be no discrimination on the basis of sex alone, and further
states that all citizens are equal under the law and entitled to equal
protection of law.
It has been said very
emphatically that the Hudood Laws are aimed at
stopping cruelty. But in practice “The Zina Ordinance of 1979 has contributed to restricting
women’s rights. The gender discrimination inherent in it has sent an
affirmative signal to that intent a treating woman as second class human being
with fewer rights than men. At the same time it has provided a handy tool with
which to punish women who take any initiative with respect to their choice of a
spouse, police continue to register complaints of abduction and Zina against
those women who have married of their own free will”.[10]
For example some times Zina is committed at victim’s home.
According to section four of the Ordinance “offence of Zina, Woman, held, could not be
punished for offence of Zina
if committed against her will, forcible or during sleep or while under
influence of some intoxicant administered to her against her will”.[11]
Some time circumstantial
evidence is bypassed by the S.H.O (Station House Officer) to facilitate
criminal while by lodging F.I.R (First Information Report) and woman is
victimized. “In cases under the Hudood Ordinance, the investigation is more often
unsatisfactory, for example in a case of
Zina, or
rape, the entire family is roped in, as accused person(s) without realizing
that this mixture of untruth with truth may render the truth as doubtful.
Some times proof of Nikah (marriage)
is furnished which negates the charge of Zina, and yet the husband and
wife have to run the risk of criminal prosecution. More often the girl is first
arrested and then with the collaboration of the members of her family, she is
pressurized to deny the Nikah
in order to involve the male. There are cases in which the
prosecutrix is not medically. Thus the
corroborative evidence is completely ignored.
It is a matter of general
observation that in cases where the abductees is taken to different places no
attempt is made by police officer to pinpoint the locality where she was taken
and to collect evidence from there, similarly the neighbours
from the locality where she was taken away and to collect evidence from there,
are rarely examined. It is very difficult to prove a case of taking away under section
16, offence of Zina (Enforcement of Hadood)
ordinance
Women forum often criticize
that it totally ousts women’s testimony in the imposition of Hadd or maximum penalty. If Zina is committed
in presence of women witnesses, only the offender is escaped as woman witness
is not considered as ‘competent witnesses’
In this way woman is deprived
of testimony. There is need of legislation on this point.
Under the Ordinance,
distinction is made between Hadd and Tazir and in this
connection Hudood punishments are made more severe
with rigorous standard of proof. For example if accused confesses the crime, or
if there are four pious adult Muslim male eye-witnesses to the actual act of
penetration, the Hadd
penalty may be applied. This higher standard of evidentiary requirement is not
met.
Moreover it is most unlikely
that two same persons in any society will have sexual intercourse in a manner
and in a place wherein four adult males can see with their own eyes that act of
carnal conjunction. There are also other complications as well in the matter of
appeals, retractions or confessions, etc
The Zina Ordinance has equated rape and adultery, although adultery is an
act of consent while rape is a crime of violence. Thus rape is treated as ‘a
form of adultery’ even though it is without the consent of the woman being
violated.
Another objection with regard
to Hudood
laws is that for theft
IMPLICATIONS
Under the Ordinance a victim of
Zina has to
suffer a lot due to expenses and other hardships. For example if woman becomes
pregnant she is sentenced, but man is acquitted. There are also procedural gaps
in the implementation of these laws. The most critical point with regard to Zina Ordinance is that no difference is kept between Zina and Zina –bil – Jabr. [13] Where as same proof is required for both.
Women have suffered Jail though
some times they are not guilty. Jail manual does not allow her to be treated as
accused. She is generally treated as convicted.
Qazf Ordinance
has also turned out to be a weapon for the victimization of women. It would be
tragic if the Hudood itself become a tool of cruelty.
Punishment is not an end itself. Enforcing Hudood on the poor and
exempting the rich and the influential is in itself a negation of the concept
of Hudood.
It also seems to be violation of the constitution, which categorically declares
that “there shall be no discrimination on the basis of sex alone and further
states that all citizens are equal under the law and entitled to equal
protection of law”.[14]
The early years after the
introduction of the Ordinance, while the courts still trying to grapple with
interpreting and enforcing the new provisions, were amongst the worst for women
in
Experience of the courts
ensured that there would be even fewer reported cases, if it were not for the
situations where women are compelled to report rape i.e. in cases of pregnancy
or in cases of Zina
are lodged against them.[15]
The reason behind all is that women have a fear of facing worst circumstances
after case is decided. Civil society does not accept her whether she is
innocent or guilty. Further more she is afraid of loosing protection and
defending her self.
WOMEN PROTECTION BILL
In 2006 keeping in view the
aforesaid criticism previous government of Pervaiz Musharraf brought an amended bill under the title of ‘Women
Protection Bill’. According to which fornication has been made a non-cognizable
offence and the magistrate can take cognizance of offence.
One of the major developments
under this bill is that women will not go to police station to launch FIR and
any body can directly report to magistrate. Moreover woman will not be sending
to jail.
Another major development under
the bill is that if circumstantial evidence proves that Zina –Bil-Jabr was committed to her she can
be acquitted In this case Quranic Hadd of Zina can be inflicted. This offence has become punishable
because now it falls in Tazir
and punishment of Tazir can be inflicted on culprits.
Another problem was that false nikahnama
(marriage certificate) was often produced in court and woman was accused of
double nikahnama
though truth was that it was used to deprive a woman from property rights and
to insult her and her husband, if she was married to person against the will of
guardian.
For false accusation the
punishment has been extended up to five years. If a girl under 16 years of age
commits zina
with consent, the punishment cannot be inflicted on her because usually she is
not sufficient mature to feel its consequences. This clause need further legislation as there
is apprehension that it might encourage girl child abuse.
RECOMMENDATIONS
The following recommendations
are based on the principle of Ijtihad (interpretation) to meet the requirements of Hudood Laws as
there is difference between Hudood Laws and Hudood-ullah.
1.
Hudood- Ullah cannot be
changed. It should be enforced as it is. They can be changed in case of Taazir because it
has to be decided by ruler of the time. Moreover many procedural gaps can be
filled by judicial experts.
2.
All
Hudood Laws
are not necessarily required to be changed only controversial parts can be
changed to meet with the injunctions of Islam.
3.
Usually
victim of Zina-bil-Jabr
complaints for victimization. Her statements must be given weightage,
because it is almost impossible that consenting party can go to court. If third
party complaints of Zina
that party must provide proof according to Islamic principles of testimony. Law
should facilitate a woman to approach immediately soon after the offence is
committed to show her innocence.
In this connection D.N.A test of
accused rapist will be helpful to prove offence.
4.
For
the case to be tried under Tazir, four witnesses are not required and punishments can still
be given if offence falls with in the purview of Tazir.
A person guilty of Qazf is liable to be punished
with 30 lashes and his / her evidence will never be accepted in court of law.
He / she is, in the words of Allah, a
‘transgressor” This is area which can be improved and changed in the Hudood Ordinance.
The changed version will lead to fewer false accusations of Zina.
5.
Clear
distinction may be made with regard to the punishment of Zina and Zina-bil-jabr and circumstantial
evidence may be admitted for the punishment in Hudood cases. Overall this
Ordinance has proved harmful for the women therefore one must review this after
consulting with jurists and religious scholars.
6.
Woman
belonging to minorities are also affected due to these laws as these laws are
equally applicable upon them. For non Muslims legislation should be done
according to their own religious point of view if both parties are non Muslims.
7.
Women
rehabilitations and conciliation centers must be established for those victums who are refused by blood relations and society.
8.
Medical
testimony, which establishes the sexual intercourse, can be used as proof
against woman if she is unable to provide evidence that she did not consent to
the act.
9.
Role
of media cannot be ignored. It should play effective and positive role to
eliminate social evils in the society.
10.
Social
legislations will be helpful to realize evil practices.
CONCLUSION
Society is very sensitive with
regard to woman folk. Social acceptance is a big issue whether she is acquitted
or convicted. There is deterrence on the part of woman to go to
Justice has become expensive. A
victim has to suffer a lot due to expenses besides other hardships. In our
society honour of family is attached with the honour of woman. So instead of getting justice relatives of
victim avoid to go to the court, they think that in this way they will be more
dishonored. This factor encourages rapists more.
“The current ratio of
conviction tells the whole story as to how many women have been sentenced under
Hudood Law. It is police power which needs to
bridled, not huge laws on a wholes code basis, thus wasting the nation’s time
and money”.[16]
Women in
Domestic violence is another
field, concerned with women protection. But there is no effective legislation
on it so far.
Present
government has accepted the short comings of the Hudood laws but has not refrained
from doing practical steps. The big question is who has the right to legislate
in an Islamic State? People or executive
but one thing must be assured that all laws must have the peoples will, as a
sanction behind them. This means that only a Parliament elected by the people
has the right to make laws. In any country, laws are meant to confirm to
society’s needs and conditions carefully.
There
is always a need of Ijtihad to meet the requirements as this law was promulgated on the will of ex- President Musharraf.
There was no consensus of opinions of Ulmas. There fore this Islamic Penal Laws required Ijtihad at time
and also today.
In the
case of Qazf the punishment is severe.” The
contention that this punishment was only awarded to those who accepted their
guilt and asked for atonement is the sublime essence of Islamic Justice. The
Holy Prophet (S.A.W.) and the Khulfa-i- Rashideen were most reluctant to award this punishment
unless proved beyond a shadow of doubt, which was only possible when the person
voluntarily admitted and asked for atonement. The conditions for the charge
sheet and qualifications of witnesses are so stringent that it is next to
impossible to convict anyone.If charge is proved to
be falsed or frivolous, the accuser risks to be
flogged himself and his testimony never to be trusted again. If the accused is
insane or intoxicated he gets the benefits of doubt with so many things going
in favour of accused and the onus of proof
being on the accuser, a good lawyer with through knowledge of Islam and
Islamic Jurisprudence and not fear Hudood Ordinance .
Severe punishments prescribed in Islam are only to instill
the fear of Allah and are determents. To day Islam exist only in name,
appearance and some ritual. Hudood Ordinance can only tarnish the image of Islam.
In the
end it can be concluded that there can be no contention upon the Hadd but Tazzir can be modified and
procedure can be amended if other requirements are fulfilled.
Apart
from the legal aspect, there is a social aspect that also needs to be
addressed, for laws alone cannot bring about the much needed change in
attitude. It will be a positive development if enlightened members of a
community come out to voice opinion on crimes against women. Such an initiative
must be matched by an on-going dialogue aimed at creating awareness on these
ends and with other important problems.
§ Is Assistant Professor At Law,
[1] The Hudood
Ordinance was introduced on the recommendation of the Council of Islamic
Ideology (CII) constituted under the constitution of Islamic Republic of
Pakistan with the prime motive to convert the whole law of the land according
to the injunctions of Islam.
[2] At the time of introducing ‘Hudood Ordinance’ the then President of
[3]. The Word ‘Hadd’ Literally means prevention,
hindrance, an impediment, a withholding, restraints, debarring, inhibition,
forbidden, prohibitions, or interdiction, repelling, or an averting, a bar, an
obstruction, a partition or a separation, between two things or between two
places, or between two persons, to prevent their confusion or the encroachment
of one upon the other. But according to the Jurist the term ‘Hadd’ means the
‘punishment’ which is fixed and enjoined as the right of Allah by the ‘Qur'an’, ‘Sunn’ah’ or ‘Ijma.”
[4] .The term ‘Taazir’
means any punishment other than ‘Hadd’. It is a
punishment which is not fixed by the law –giver but is left to the discretion
of the Head of State or Qazi and is based on the
principles laid down by the Qur’an and Sunn’ah.
[5] M. Mehmood,
“Enforcement of Hudood: Practice and Procedure”. (Lahore: Markazi Kutab
Khana, 1991), pp.103-104.
[6] The term Tazkiya
means purgation. It is an enquiry by the Court that may be conducted itself by
the Court or through official purgator to ascertain
whether the witness, who had made statement before it ,
is a person of impeachable character that is just and righteous.
[7] Quran, 24:2.
[8] Quran,
24:4-5.
[9] Qazf in
its primitive sense simply means accusation. By qazf
in the language of the law, is understood a man insinuating a charge of
whoredom against a married man or woman.
[10]
[11] Ibid.
Also see [Ch. Muhammad Siddiq J.]
[12] Shaukat
Mahmood, Sh. Nadeem Shaukat, “Muslim Penal
Laws”. (Lahore: Legal Research Center,
1984), p.6.
[13] Zina-bil-jabr
means forcibly Zina
[14] M. Rafiq Butt, “Constitution of Pakistan”, (Lahore: Mansoor Book House 1992).pp.13-14.
[15] Shahla Zia,
“Violence against Women and Their Quest for Justice”, (Lahore: Simorgh Women’s Resources and Publication Centre,
1998).p.77.
[16] P.L.J. April
2007 (Magazine section).Page. 89.