Hudud Ordinance in Pakistan (1979 - 2006): Adultery Ordinance

Introduction In February 2006 in a village in Bangladesh, a woman was awarded 101 canes for adultery. The primary evidence being that she became pregnant. The former husband of the woman, who supposedly was responsible for this woman's pregnancy, received a penalty of 10,000 Taka. (New Age Bangladesh 2006). In 2002 Zafran Bibi a Pakistani woman, was convicted of Zina (adultery) and sentenced to death by stoning, even though she claimed to have been a victim of repeated rape (WeNews 2004). In all these cases, these women claimed that they were raped, but they ended up convicted under the Sharia/Hudud law for adultery. According to Ahmad (2003) the term Sharia literally means the road to the watering place, *+ and contains the notion of the clear path to be followed. The Quran, which Muslims worldwide believe to be the word of God, generally uses it to refer to the revealed law and guidance or the principles and directives received from the Ultimate Lawgiver (Allah). Although modern Islamic scholars like Mawdudi have tried to interpret the Quranic verses according to contemporary times, Sharia laws are still used literally as they are mentioned in the Quran (Ahmad 2003). The overall statistics for rape cases are more than disturbing. In case of Pakistan, of the 7,000 women in jail awaiting trial, 88 percent are accused of crimes under the Hudud Law. 90 percent of these women have no lawyer, and 50 percent do not know they are entitled for one (Christian Science Monitor 2005). Most women accused of Hudud violations are exonerated, but lose an average of five years to imprisonment, and lose their reputations as well (Christian Science Monitor 2005). Thus, many rape victims refuse to file charges, because under Islamic law, four male Muslim witnesses are required to prove charges of rape (Quran 24:4). Women who cannot produce this many witnesses often end up in jail themselves for adultery, a crime against the state punishable by stoning to death (Christian Science Monitor 2005). Thus, rape victims are left with no choice but to conceal their experience to themselves. On December 2, 1978, General Muhammad Zia-ul-Haq set to enforce Nizam-e-Islam (Islamic System), after taking over the country in a military coup, a 180 degree turn from Pakistan's predominantly Anglo-Saxon Law. As a preliminary measure to establish an Islamic society in Pakistan, General Zia announced the establishment of Sharia Benches (Sharia Courts). These Sharia Benches were mainly responsible for the Islamic Law usually referred to as Sharia (Dawn 2002). Under these Sharia laws, were the Hudud Laws. Hudud are the penalties that the Quran and Sunnah of the Prophet (Sayings of the Prophet Muhammad, who according to Muslims is the last messenger of Prophets) have prescribed for certain crimes such as theft, robbery, Zina (fornication, adultery and rape) false accusation and drinking (Usmani 2006). It is often argued that, since Sharia is God's law and states certain punishments for each crime, they are absolute. However, with liberal movements in Islam expressing concerns on the validity of Hadith (Sayings of Prophet Muhammad) - a major component of Islamic law, questions have risen about administering certain punishments. Human right groups have challenged these punishments and the way Islamic Law is practiced in many countries. This has

led many to call for an international suspension on the punishments of Hudud laws until greater scholarly consensus can be reached. It has also been argued by some that the Hudud portion of Sharia is incompatible with humanism and human rights (Dawn 2006). Thus in 2006, President Musharraf proposed a reform of the Hudud Ordinance (Dawn 2006). On November 15 2006, the "Women's Protection Bill" was passed in Pakistan's National Assembly, allowing rape to be prosecutable under Civil law, which was otherwise tried by Sharia courts, developed under Zias Regime. The bill became a law after President Musharraf signed it on 1 December 2006 (Dawn 2006). However, the reforms have come under considerable opposition from Islamist groups in Pakistan, according to whom; the reform is un-Islamic The purpose of this report is to highlight the developments of the Sharia Law in Pakistan by first addressing the importance of Sharia Laws in context with the Culture of Pakistan where as the second part will discuss the workings of the Hudud Ordinance and the problems with the Hudud laws that put women in a serious double jeopardy, accompanied by the workings of the Legal System of Pakistan, and the relative importance of Sharia courts. The conclusion will be an analysis of the Hudud Ordinance and the Womans Protection Bill in context with the three characteristics of a policy; whether the policy is neutral, rational and in public interest.

The Hudud Laws and Islamization in Pakistan Cultural and Historical Importance Islam has a significant role in defining the culture of Pakistan. With a population of 160 million, 90% of the population is Muslim (Datamonitor 2007). Islam has been one of the significant reason for the establishment of Pakistan, in fact some people call it reason dtre (Kennedy 1988). Muslims of the subcontinent realized that they needed an independent state to enjoy their religion in. Thus, based on the Two Nation Theory, pioneered by Sir Syed Ahmed Khan, Mr. Allama Iqbal proposed the idea of two separate homelands for Hindus and Muslims of the sub-continent. Therefore, while addressing in Allahbad in 1930 he said, India is a continent of human beings belonging to different languages and professing different religions [...] I therefore, demand the formation of a consolidated Muslim state in the best interests of the Muslims of India and Islam. (Wolpert 2006) However, it is also argued that the reason for the establishment of Pakistan was the ultimate survival strategy by bourgeoisie who belonged to a minority in the United India (Wolpert 2006). And thus, it is argued that Pakistan was not formed in the name of Islam but was ultimately a political trick played by the Muslim leaders to save their land and capital from the Hindu majority (Lamb 1991). Since 1947, when Pakistan recognized itself as an independent state, Islam has become an integral part of Pakistans culture. Let it be history, poetry, architecture, language, cuisines, festivities or dress codes, Islam has highly influenced the culture of Pakistan. Thus, it is argued that the Islamization of Pakistan was basically an attempt by General Zia-ul-Haq to extend his stay as a military dictator, since he argued that Pakistan was in a state of Emergency and Islamization would be needed to save Pakistan (Ali 2007).

Besides providing lawful means for obedience, Islam also provides non-legal teachings for the reform of society, which greatly helps in reducing crimes. This implies, and some argue, that an Islamic state cannot pardon itself of its duties by just enforcing the Hudud; Islam is and should also be responsible for creating an atmosphere that discourages the incidence of crime in the first place. However, one can object that unless all the sources that promote violence and crime are eliminated and until a model Islamic society is established, laws like the Hudud Ordinances should not be introduced (Usmani 2006). Although, it can be further argued that the instigation of such laws help build a safe environment, where men can live in harmony, where as the law works as an interface that maximizes social benefits for the society. Working of Hudud Ordinance Criminal Law in Islam For Muslims, Quran is the Ultimate source of guidance and refer to it frequently (Armstrong 2006). According to the translations of Yusuf Ali, the Quran has been clear about dealing with crimes related to Rape and Adultery: Chapter 24, Verse 2 YUSUFALI: The woman and the man guilty of adultery or fornication,- flog each of them with a hundred stripes: 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 the Believers witness their punishment. Chapter 24, Verse 4 YUSUFALI: And those who launch a charge against chaste women, and produce not four witnesses (to support their allegations),- flog them with eighty stripes; and reject their evidence ever after: for such men are wicked transgressors. Chapter 24, Verse 5 YUSUFALI: Unless they repent thereafter and mend (their conduct); for Allah is Oft-Forgiving, Most Merciful. The law presented in the above mentioned verses, is not based on evidence but rather on spirituality and divine forgiveness, which is a matter of faith. Human laws should be based on rationales and neutrality (Lindblom 1968), and anything short of these traits should not be entertained. Constitutional Status of Islamic Law The first Constitution of Pakistan was adopted on the 10th April 1973, however, it was suspended in 1977 by General Yahya Khan but reinstated in 1985 and has been amended several times (Lamb 1991). However, General Musharraf suspended the Constitution again in 1999 in a military coup. Article 1 of current Constitution (Appendix 1) declares that Pakistans official name shall be the Islamic Republic of Pakistan, and Article 2 (Appendix 1) declares Islam as the state religion. Introduction of Article 2A (Appendix1) in 1985, required all laws to be brought into consonance with the Quran and Sunnah. Chapter 3 (Appendix 1) establishes the Federal Sharia Courts and stipulates that the Court shall take up the examination of any law or

provision of law that may be repugnant to the injunctions of Islam, as laid down in the Holy Quran and the Sunnah. If a law or provision is determined to be repugnant, the Court is to provide notice to the federal or provincial government specifying the reasons for the decision (Israr 1991). The Court may also examine any decisions relating to the application of the hudud penalties which have been decided by any criminal court, and may suspend the sentence if there is any question as to the correctness, legality or propriety of any finding, sentence or order or the regularity of the proceedings (Appendix 1). The Supreme Court also has a Sharia Appellate Bench empowered to review the decisions of the Federal Sharia Court and consisting of three Muslim Supreme Court judges and up to two Ulama. The term Ulama refers to religious, Islamic, scholars of a country. However, a lot of religious practitioners call themselves Ulama since there is no legal criterion that defines Ulama (Othman 2006). Part IX of the Constitution is entitled Islamic Provisions and provides for the eventual Islamization of all existing laws, reaffirming that no laws repulsive to the injunctions of Islam are to be endorsed (Appendix 1). Court System of Pakistan: The judiciary is composed of three levels of federal courts, three divisions of lower courts, and a Supreme Judicial Council (LJCP 2008). There are district courts in every district of each province, having both civil and criminal jurisdiction though they deal mainly with civil matters. The High Court of each province has jurisdiction over civil and criminal appeals from lower courts within the provinces. The Supreme Court sits in Islamabad and has exclusive jurisdiction over disputes between or among federal and provincial governments, and appellate jurisdiction over High Court decisions (LJCP 2008). The Federal Sharia Court has exclusive jurisdiction to determine, upon petition by any citizen or the federal or provincial governments or on its own motion, whether or not a law conforms to the injunctions of Islam (LJCP 2008). Furthermore, an Islamic advisory council of Ulama assists the Federal Sharia Court (LJCP 2008).

Organization of Judicial Hierarchy of Pakistan

(Also currently 2 Ad-hoc Judges)

Forums entertaining Criminal Cases under Hudood Laws

Lahore High Court

High Court of Sindh

High Court of Balochistan

Peshawar High Court

Administrative Courts & Tribunals

District & Session Judge

District & Session Judge

District & Session Judge

District & Session Judge

Senior Civil Judge Civil Judge 1st Class Civil Judge 2nd Class Civil Judge 3rd Class

Judicial Magistrate 1st Class Judicial Magistrate 2nd Class Judicial Magistrate 3rd Class

Senior Civil Judge Civil Judge 1st Class Civil Judge 2nd Class Civil Judge 3rd Class

Judicial Magistrate 1st Class Judicial Magistrate 2nd Class Judicial Magistrate 3rd Class

Senior Civil Judge Civil Judge 1st Class Civil Judge 2nd Class Civil Judge 3rd Class

Judicial Magistrate 1st Class Judicial Magistrate 2nd Class Judicial Magistrate 3rd Class

Senior Civil Judge Civil Judge 1st Class Civil Judge 2nd Class Civil Judge 3rd Class

Judicial Magistrate 1st Class Judicial Magistrate 2nd Class Judicial Magistrate 3rd Class

Member Majlis-e-Shura

Qazi

(Hussain 2007)

Problems with Hudud Ordinance Brown (1997) argues that explanations of Sharia laws may rest on shakier historical foundations because the historical and documentary evidences are so thin, that generalizations on the topic are more tolerated and less noticed. Ulamas constantly back their claim of using Sharia as the most effective means of governance (Israr 1991). Modern scholars like Tariq Ramdan (ref. book) argue that the laws stated in the Quran or the Sunnah were only applicable fourteen hundred years ago. Similarly, Professor Ali A. Mazrui (1997) states that the punishments laid down fourteen centuries ago "had to be truly severe enough to be a deterrent" in their day, but "since then God has taught us more about crime, its causes, the methods of its investigation, the limits of guilt, and the much wider range of possible punishments. In an interview with one of the leading news papers of Pakistan, Javed Iqbal (2006), a leading political commentator and son of Mr. Allama Iqbal, stated that, Zia-ul-Haq introduced the Hudud Ordinance forcibly for his own interests at a time when there was no parliament. He further argues that Gen. Zia had himself acknowledged that the ordinance was not absolutely perfect to deliver justice to women, but was the need of the hour. He said the ordinance was never presented as a bill before a competent legislature and was ratified without any debate by parliament. Even the views of Quaid-i-Azam were not considered while framing this law, he regretted. In addition, the numbers of women in jails were increasing while rapist were let go. Some argue that Gen. Zia had to Islamize the country to obtain political backing from the Ulamas who were in the majority of opposing the martial law (reference). Once the Ulamas were on his side, Zia-ul-Haq could prolong his state of emergency as long as he wanted (ref. allah bhutto book). Although there have been a lot of proponents of the Hudud laws who argue that the laws, such as Hudud Ordinance, introduced under the Islamization process have had no significant impact on the rights of women and the charges against the Islamization process has been exaggerated, it is well accepted that the political costs to Pakistan, both domestic and international, have been great (Kennedy 1991) President Pervez Musharraf signed into law the Protection of Women Bill, approved by the parliament in November 15, 2006, which was to amend the three decade old Islamic religious law, the Hudood Ordinance. Although the government and media has praised the bill as historic and described it as a positive move towards secularism, it does not significantly change the Hudood law. One can argue that Musharraf wanted support from the secular opposition to prop up his crisis-ridden regime. The Pakistan Peoples Party (PPP) of former Prime Minister Benazir Bhutto supported the bill in parliament. The Muttahida Majlis i Amal (MMA), which is an alliance of Islamic fundamentalist parties, and the Pakistani Muslim League (PML-N) led by another former prime minister, Nawaz Sharif, voted against it. The MMA has launched a public campaign against the new legislation. The reactionary Hudood law was introduced in 1979 by General Zia-ul-Haq Haq who seized power in 1977 overthrowing the populist PPP government of Zulfikar Ali BhuttoBenazirs

father. Zia imposed martial law, banned political activity and introduced an Islamic code of law. He executed Bhutto in 1979 on trumped up charges of authorising a political murder. Reactionary blasphemy laws were introduced through ordinances in 1982 and 1984 which amended the Pakistan Penal Code (PPC) and the Criminal Procedure Code, making even implied disrespect for Islam an offence punishable by imprisonment or a fine or both. These measures were aimed at stirring up communalism and winning the support of right-wing Muslim clerics and their organisations such as Jamaat-e-Islami. Zia-ul-Haq was encouraged by the US, which was preparing to support Islamist guerrillas against the Soviet-backed regime in neighboring Afghanistan. The Pakistan military, particularly military intelligence, was heavily involved in assisting this CIA-backed holy war. The Hudood Ordinance is based on Islamic Sharia law, which is strongly biased against women. A rape victim has to provide four male eyewitnesses to testify on her behalf, failing that, the woman making the allegations can be found guilty of adultery. As a result, the Islamic court can impose a hundred lashes or have the woman stoned to death. Pakistani jails are filled with the victims of such persecution. In many cases, an accusation of adultery was sufficient to put a woman behind bars, with trials often continuing for years. The new Women Protection Bill reduces punishment for adultery from the death penalty to five years imprisonment and a fine of 10,000 rupees. Making a false accusation is now a crime punishable by up to 10 years jaila measure aimed at discouraging false allegations of adultery against women. But it has not ended key discriminatory elements of the previous legislation. A judge can still decide whether rape cases will be heard in a civil or an Islamic court. Rape victims will have to report their complaints to district courts, not at local police stations, compelling many to travel long distances. As a result, many will be discouraged. Critics argue that the Womens Protection Bill will not change much since there are loopholes to be exploited. For example, someone complaining of adultery can still decide to have the case heard in an Islamic court. As in rape cases, the complainant has to produce four witnesses to back up the accusation. Another problem with the Hudud law is the interpretation of Quran and Sunnah according to the four school of thoughts in Islam, that is, the Sunnis, Shiates, Maliki and the Shafi. There intrepetations make the legal framework of Sharia more complicated and thus much more difficult to contest (Sidahmed 2001). The new Women's Protection Bill brings rape under the Pakistan Penal Code, which is based on civil law, not Sharia (Islamic law). The Bill removes the right of police to detain people suspected of having sex outside of marriage, instead requiring a formal accusation in court. Under the changes, adultery and non-marital consensual sex is still an offence but now judges would be allowed to try rape cases in criminal rather than Islamic courts. That does away with the need for the four witnesses and allows convictions to be made on the basis of forensic and circumstantial evidence.

The amendments change the punishment for someone convicted of having consensual sex outside marriage to imprisonment of up to five years and a fine of Rs10,000. Rape would be punishable with 10 to 25 years of imprisonment but with death or life imprisonment if committed by two or more persons together, while adultery would remain under the Hudood ordinance and is punishable with stoning to death. It is the change in the punishment for fornication and rape which is the major source of controversy. The Bill also outlaws statutory rape i.e. sex with girls under the age of 16. The Islamic code bans sex with girls before puberty Conclusion A law or a policy is to be implemented for the good of the people. Pakistans political history has been in turmoil after the death of Quaid-e-Azam. Leaders predominantly have pursued their own agenda, for gaining the support of the majority. Zia wanted a backing from the Ulamas where as Musharaff was under pressure from international human right groups as well as the US. Women bore much of the burden of Zia's Islamization and its inconsistencies. The Zina Ordinance prompted bitter international criticism about the perceived injustices and miseries brought about by the Zina Ordinance. Public had been largely ignored when the Hudud Ordinance was put in place. However, there are large numbers of opponents for the Womens Protection Bill, calling it un-Islamic. William Montgomery Watt believes that "such penalties may have been suitable for the age in which Muhammad lived. However, as societies have since progressed and become more peaceful and ordered, they are not suitable any longer." State cannot be separated from religion in a country tied so closely to religion. Political parties have to face a complex task of satisfying the different groups and differing opinions of the public, while developing in a Globalized World.
Appendix: Copy of Hudud Ordinance

http://www.pakistani.org/pakistan/legislation/2006/wpb.html

Time line Chart or Diagram of the way the policy works. The departments it consults and whose the receiver References http://www.dawn.com/2006/10/05/op.htm
[1] "Woman awarded 101 canes for adultery," New Age, Bangladesh, Feb. 18, 2006. [3] "In Pakistan, Those Who Cry Rape Face Jail," WeNews, May 16, 2004.

[5] "Pakistani religious law challenged," Christian Science Monitor, Mar 02, 2005.

Prof. Ali A mazuri http://www.foreignaffairs.org/19970901faessay3396/ali-a-mazrui/islamic-andwestern-values.html Javed Iqbal http://www.dawn.com/2006/07/31/nat13.htm Israr ahmad article Usmani article Kennedy 1991 islam legal reform and the status of women Problems with Hudud law http://www.wsws.org/articles/2007/jan2007/paki-j24.shtml Datamonitor 2007 country profile Pakistan http://www.ljcp.gov.pk/ law and justice commission Pakistan

The Judicial System of Pakistan by Dr Faqir Hussain Registrar, Supreme Court of Pakistan 2007
Wolpert, Stanley 2006 Jinnah of Pakistan, Oxford University Press, Oxford Lamb, Christian 1991, Waiting for Allah: Pakistans Struggle for Democracy, Viking Penguin Books India, New Delhi Ali, Tariq 2007, The Leopard and the Fox, Seagull Books Armstrong, Karen 2006, Muhammad: Prophet for our Time, Harper Press, London Lindblom C. E. 1968, The Policy Making Process, Prentice Hall List of Appendix Appendix 1: Constitution of the Islamic Republic of Pakistan Selective Parts

1:40 in the zietgiest as concluding marks