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
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 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.l.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 1979".[12]
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
penally 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 theselaws. The most critical
point with regard to Zina Ordinance is that no
difference is kept between Zina and Zina-bit-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
arc 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 Tuzkia-id-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.
Past government has accepted the short comings of the Hudood laws but has 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 arc 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 and
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
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 Ordinances were introduced on the recommendation of
the Council of Islamic Ideology (Cll) constituted
under the constitution of Islamic Republic of Pakistani with the prime motive
to convert the whole laws 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 ', '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 Ieft 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 ihe Court or through
official purgator to ascertain whether the witness,
who had made statement before ii. 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
[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.