HUDOOD ORDINANCE AND GENDER DISCRIMINATION IN
By:
MAIMONA KHANAM§
INTRODUCTION
The Hudood
Ordinance of 1979;[1] introduced by then President of Pakistan,
General Zia-ul-Haq [2]
was overall part of his 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 which have 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 women.
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 Quran 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 he has been forbidden.
The Law dealing with these
crimes is known Hudood
Laws. The ‘Hadd’ crimes are Zina (Adultery) or unlawful
intercourse, ‘Qadf’, (false accusation of unlawful
intercourse), drinking wine, theft are high way robbery.
According to the Islamic
injunction for the implementation of Hudood Laws four ‘Tazkia-al-Shahood’ [5]
witnesses are necessary.
During Khalafat period and after that
almost in all the Muslim states where courts were established under Shariah, 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 Quranic
Injunction and Sunnah
necessitating the purgation of witness required to beat testimony before a
court of Law. Under Quranic injunctions it is
obligatory for every Muslim to been testimony and concealing of the evidence is
not Law full”.[6] It is enjoined in Sura Baqra, Ayat
No.283 that “conceal not evidence: for who ever conceal it, his heart is
tainted with sin”
Regarding Zina the Quran
states, “The women 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 Qadhf, the Quran states, “and those who launch a charge against chaste
women, 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
The Hadood Laws are under direct attack of
criticism by the all walk of life in
It has been said very
emphatically that the Hudood Laws are aimed at
stopping cruelty. But in practice “The Zina Ordinance of 1979 has also 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
women who have married of their own free will”.[10]
Some times Zina is committed at victim’s home.
According to sec 4 of this Ordinance “offence of Zina, Women, 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) while lodging F.I.R (First Information Report) and women is
victimized. “In cases under the Hadood ordinance, the investigation is more often
unsatisfactory for example in a case of Zina, or rape the
entire family is roped in, as accused persons 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
examined till quite late. 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 Hudd or maximum penalty. If Zina is committed
in presence of a women witness, only the offender is escaped. In this way woman
is deprived of testimony. There is no legislation on this point.
Under the Ordinance, distinction is made between Hadd and Tazir
for Zina,
as Hadd
punishments are generally more severe and require a more rigorous standard of
proof. If the 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, and if
there are other complications as well (appeals retractions of 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 women 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.
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] 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. “While the Ordinance raises numerous
questions, our concern is, those affecting women specifically. Firstly by
prescribing that their must be four Muslim male adults as eyewitnesses, it
excludes the testimony of women although for Hadd.
Moreover it is most unlikely that two same persons in any civilized
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.
WOMEN PROTECTION BILL
The President Pervaiz Musharraf’s
government in 2006 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. Any body can directly report to magistrate and
women will not be sending to jail.
Another major development is that if circumstantial evidence proves that Zina –Bil-Jabr was
committed to her. that a women can be acquitted.
In cases of Zina-Bil-Jabr
four witnesses as which are Tazkia-ul-Shuhood give evidence against culprit. 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 women from property rights and
to insult her and her husband, if she was married to person against the will of
guardian.
For false accusation now the punishment is 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. It is apprehended that it will
encourage girl child abuse. It may be critically examined.
RECOMMENDATIONS
The following recommendations are based on the principle of Ijtihad
(interpretation) to meet the requirements of Hadood Law as there is difference
between Hudood
Laws and Hudood-ullah.
1.
Hudood- Ullah cannot be change. It should be
enforced as it is. There can be change 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.
D.N.A
test of accused rapist will be helpful to prove offence.
4.
For the case to be tried under Tazeer,
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 Jurists and religious scholars. The Purpose and
objectives to be achieved is that the people may not indulge in crime because
of fear of Allah. The crime under the circumstances is punishable in this world
and since it is a sin also, it is punishable in this world in the world here
after.
6.
Women belonging to minorities are also affected due to these
laws. 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 that sexual intercourse
has taken place, can be used as proof against women if she is unable to provide
victim that she did not consented 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 women to go to
“The current ratio of conviction tells the whole story as to how many
women have been sentenced under Hadood Law. It is
police power which needs to bridled, not huge laws on a wholes code basis, thus
wasting the nations time and money”.[16]
Women in
Domestic violence is also concerned with women protection. But there is
not effective legislation on it.
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. This law was
promulgated on the will of a President. There was no consensus of opinions of Ulmas. So this
Islamic Penal Law 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 (SAW) 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 false 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 Hadood 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 ands some ritual. Hadood 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 fulfill.
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
Ordinances were introduced on the recommendation of the Council of Islamic
Ideology (CII) constituted under the constitution of Islamic Republic of Pakistant with the prime motive to convert the whole laws
of the land according to the injunctions of Islam.
[2] At the time of introducing ‘Hadood Ordinance’ the then President of
Pakistan General Zia-ul-Haq said; “I hope that these steps will be
helpful in achieving the objectives of Sunnah, which give prime importance to the protection of the
Life, Property and honour of the citizens”. See Legislative
Watch, (
[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’, ‘Sunnah’ 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 le3ft to the discretion
of the Head of State or Qazi and is based on the
principles laid down by the Quran and Sunnah.
[5] 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.
[6] M. Mehmood,
“Enforcement of Hudood: Practice and Procedure”.
(Lahore: Markazi Kutab Khana, 1991), pp.103-104.
[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] Pakistan Law Journal,
April 2009 (Magazine section).Page. 89.