Hudood Ordinance

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The New Islamic Laws were promulgated in 1979 by the President of Pakistan General Muhammad Zia-ul-Haq. These laws were developed for the establishment of an Islamic system for trial of offences in Pakistan. The system provided for two kinds of punishments.

A set of four ordinances and one order was declared on 10 February 1979:

  1. The Offences Against Property (Enforcement Of Hudood) Ordinance (VI of 1979)
  2. The Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)
  3. The Offence of Qazf (Enforcement of Hudood) Ordinance (VIII of 1979)
  4. The Prohibition (Enforcement of Had) Order (4 of 1979)
  5. The Execution of the Punishment of Whipping Ordinance (IX of 1979)

The Offences Against Property (Enforcement Of Hudood) Ordinance (VI of 1979)[edit]

The Offences Against Property (Enforcement of Hudood) Ordinance of 1979 described the offence of theft.

The Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)[edit]

The Offence of Zina (Enforcement of Hudood) Ordinance 1979 described the offences of Zina(fornication and adultery) and zina bil jabbar (rape). They were defined separately in the Ordinance. Prior to the Women Protection (Criminal Laws Amendment) Act 2006, the Hudood Ordinance provided for two kinds of punishments: punishments under hadd under its section 8 or under Tazir under section 10.

Under hadd, "at least four Muslim adult male witnesses, about whom the court is satisfied, having regard to the requirements of tazkiyah al-shuhood, that they are truthful persons and abstain from major sins (kabair), give evidence as eye-witnesses of the act of penetration necessary to the offence."

No case could be proven under hadd due to the above stringent stipulation.

Punishments until now were awarded under the Tazir provision of the Hudood Ordinance.

The 2006 Act has now totally deleted zina bil jabbar from the Hudood Ordinance[1] and inserted sections 375 and 376 for Rape and Punishment respectively in the PPC to replace it [2]

The Offence of Qazf (Enforcement of Hudood) Ordinance (VIII of 1979)[edit]

The Offence of Qazf (Enforcement of Hudood) Ordinance of 1979 described the offence of false accusation of Zina (fornication and adultery).

The Prohibition (Enforcement of Had) Order (4 of 1979)[edit]

The Prohibition (Enforcement of Had) Order of 1979 described the offence of use of alcohol.

The Execution of the Punishment of Whipping Ordinance (IX of 1979)[edit]

The Execution of the Punishment of Whipping Ordinance of 1979 was developed to make provision relating to the execution of the punishment of whipping.

Controversy[edit]

Critics of the law include those who claim that it equiparates the crime of zina (adultery) and zina bil jabr (rape). A woman alleging rape is required to provide four adult male eyewitnesses. In principal, the failure to find such proof of the rape does not place the woman herself at risk of prosecution. However, in practice, these safeguards have not always worked.[3][4]

Moreover, to prove rape the female victim has to state that sexual intercourse had taken place, which seems in practice to be viewed judicially as an admission of guilt on her own part, rather than as evidence of rape (see blaming the victim). If the alleged offender, however, is acquitted for want of further evidence the woman now faces charges for either adultery, if she is married, or for fornication, if she is not married.

According to a report by the National Commission on Status of Women(NCSW) "an estimated 80% of women" in jail in 2003 were there as because "they had failed to prove rape charges and were consequently convicted of adultery."[5]

Stories of great personal suffering by women who claimed to have been raped appeared in the press in the years following the passing of the Hudood Ordinance. The case of Safia Bibi is one of this: a blind girl and victim of rape who was prosecuted for the crime of zina because of her illegitimate pregnancy, while the rapist was acquitted. The case stirred many protests from Pakistani activists and lawyers along with international human rights organizations. The appeal judgment of the Federal Shariah Court cleared the girl of the accusation of zina.[6]

The evidence of guilt was there for all to see: a newborn baby in the arms of its mother, a village woman named Zafran Bibi. Her crime: she had been raped. Her sentence: death by stoning. Now Ms. Zafran Bibi, who is about 26, is in solitary confinement in a death-row cell.



Thumping a fat red statute book, the white-bearded judge who convicted her, Anwar Ali Khan, said he had simply followed the letter of the Qoran-based law, known as hudood, that mandates punishments.



"The illegitimate child is not disowned by her and therefore is proof of zina," he said, referring to laws that forbid any sexual contact outside marriage. Furthermore, he said, in accusing her brother-in-law of raping her, Ms. Zafran had confessed to her crime.

[7]

However, Mufti Taqi Usmani, an instrumental figure in making the law, has stated:

If anyone says that she was punished because of Qazaf (false accusation of rape) then Qazaf Ordinance, Clause no. 3, Exemption no. 2 clearly states that if someone approaches the legal authorities with a rape complaint, she cannot be punished in case she is unable to present 4 witnesses. No court of law can be in its right mind to award such a punishment.[8]

A number of international and Pakistani human rights organizations still campaign for the law's repeal. Some argue that it goes beyond what is required by sharia.[9] They are opposed by conservative religious parties, who accuse them of departing from Islamic values. The governments of Benazir Bhutto and Nawaz Sharif both set up commissions to investigate the Hudood Ordinance. Both commissions recommended amending certain aspects of the law, but neither government followed through.

Revision of the ordinance[edit]

In 2006, then President Pervez Musharraf again proposed reform of the ordinance.[10] On November 15, 2006, the Women's Protection Bill was passed in the National Assembly, allowing rape to be prosecutable under civil law. The bill was ratified by the Senate on 23 November 2006,[11] and became law after President Musharraf signed it on 1 December 2006.[12]

The reforms have come under considerable opposition from Islamist groups in Pakistan, who insist that law should stay following the sharia. Other legal experts have claimed that the original law was not so unbalanced as its opponents claimed or that the reforms will be impossible to enforce.[13]

Human rights groups and activists in Pakistan have also criticized the bill: "The so-called Women's Protection Bill is a farcical attempt at making the Hudood Ordinance palatable". The concern is that thousands of rapes go unreported as victims fear that they would be treated as criminals.[14]

In practice[edit]

According to the National Commission for the Status of Women (NCSW) and Amnesty International in Asia and the Pacific, 88% of the female prisoners are in jail as a direct consequence of the Hudood Ordinance on adultery (including both those awaiting trial and those convicted).[15] According to statistics compiled by the Society for Advancement of Community Health Education and Training (SACHET) and Lawyers for Human Rights and Legal Aid (LHRLA) Team for Karachi Women Prison, in 2003-2004, 7000 women and children are languishing in 75 jails in extremely poor conditions.[16][17] Still, the Hudood Ordinance goes against the pronouncements of the founder of Pakistan, Muhammad Ali Jinnah, who, had expressly stated that women are the equal partners of men in 1944.[citation needed]

See also[edit]

References[edit]

  1. ^ [1]
  2. ^ [2]
  3. ^ See Safia Bibi v. State in PLD 1985 FSC 120; Zafran Bibi v. State in PLD 2002 FSC 1
  4. ^ Washington Times, A victory for Pakistani women
  5. ^ Jails and prisoners, State of Human Rights 2004, HRCP 1500 women are "believed to be in jail in March" in 2003 according to the HRCP report.
  6. ^ See Safia Bibi v. State in PLD 1985 FSC 120
  7. ^ Mydans, Seth (17 May 2002). "In Pakistan, Rape Victims Are the 'Criminals'". The New York Times. 
  8. ^ Amendment in Hudood laws - The Protection of Women's Rights Bill
  9. ^ Muttahida Quami Movement, "Particular coterie of religious scholars wish to deprive women of their just and basic rights", 7 September 2006
  10. ^ The Hindu, "Musharraf wants Hudood laws amended"
  11. ^ "Pakistan senate backs rape bill". BBC News. 23 November 2006. 
  12. ^ "Musharraf signs Women's bill"
  13. ^ "Strong feelings over Pakistan rape laws". BBC News. 15 November 2006. 
  14. ^ Hussain, Zahid (14 September 2006). "Musharraf retreats on rape law". The Times (London). 
  15. ^ Hudood Ordinance - The Crime And Punishment For Zina
  16. ^ Violence against Women and Impediments in Access to Justice
  17. ^ Pakistan: Pakistani religious law challenged