An injustice called the 'Hudood Ordinance'
“Cautious, careful people always casting about to preserve their reputation or social standards never can bring about reform. Those who are really in earnest are willing to be anything or nothing in the world’s estimation, and publicly and privately, in season and out, avow their sympathies with despised ideas and their advocates, and bear the consequences” — Susan B. Anthony.
Since its inception, Pakistan has had one bad ruler after the other – whether it be military or civilian rulers – but certainly the worst period in Pakistan’s history was General Ziaul Haq’s regime. Pakistan’s history bears out the fact that atrocities in the name of religion have taken place over the years, and continue due to the ignorance of the masses. On December 2, 1978, on the occasion of the first day of the Hijra calendar to enforce the Islamic system in Pakistan, in a nationwide address, General Zia accused politicians of exploiting the name of Islam saying, “Many a ruler did what they pleased in the name of Islam.” He did nothing better, in fact he did much worse than anyone else. The demons of Zia’s ‘Islamisation’ still haunt us, and one of the scariest demons is the Hudood Ordinance.
The Hudood Ordinance states the maximum punishments for adultery (stoning), false accusation of adultery (80 lashes of the whip), theft (cutting off the right hand), drinking alcohol (80 lashes) and apostasy (death). Many have been exploited by this Ordinance, but the main victims have been women. The Hudood Ordinance criminalises Zina, which is defined as extra-marital sex. It also criminalises Zina-bil-jabr, which is defined as rape outside of marriage. The Hudood Ordinance further defines Zina and Zina-bil-jabr on the basis of the assigned criminal punishment. Hence there is Zina and Zina-bil-jabr liable to Hadd (punishment ordained by the Holy Quran or Sunnah), and there is Zina and Zina-bil-jabr liable to Tazir, i.e. any punishment other than Hadd. The Hadd punishment is stoning to death, and the Tazir punishment for Zina is up to ten years of imprisonment and whipping – up to 30 lashes and/or a fine. The Tazir punishment for Zina-bil-jabr is up to 25 years of imprisonment and whipping up to 30 lashes. As there is no distinction between rape and adultery, women who are raped end up getting penalised, while the actual criminals roam free.
The Hudood Laws are against the spirit of Islam and distort the laws set out by the Holy Quran. Many legal and religious experts hold that these laws do not fulfil the criteria for providing justice under national, international or religious law. It is widely (mis)used for revenge as most cases are registered by parents against their daughters who have married of their own choice, or men whose wives re-marry after divorce.
There are lacunae in the Hudood Ordinance. The required evidence for Zina (adultery) and Zina-bil-jabr (rape) is the same, i.e. bringing in at least four pious Muslim adult male eyewitnesses, which is nearly impossible in the case of rape. First of all, determination of piety in anyone in itself is a questionable matter. Second, it would be absurd to assume that four pious men witnessed the rape without intervention. It is most likely that in the majority of circumstances, there is generally an absence of four pious men at a rape scene. Also, the concept of producing only men for proving the innocence of a rape victim in itself appears to be unjust. Women witnesses, pious or not, cannot come to the victim’s rescue. When no witnesses are brought forward, which is usually the case, the victim can either be charged with Zina (having accepted that she had sexual relations with a man outside of marriage) or Qazf (false accusation). In any case, the victim gets victimised.
Mufti Mohammad Saeed Khan, a well-known religious scholar, said that four witnesses are not required for a rape case. He said that the Hudood Ordinance does not serve any Islamic purpose, and might have been brought in to serve only political motives. When asked why the Islamic parties (such as MMA or Jamaat-e-Islami) come out on the streets when the issue of “repealing the Hudood Law” is raised and consider it a religious breach to even mention repealing it, he said that there is absolutely no basis for such a law (Zina-bil-jabr) in the Shariah. It is rulings such as these that mutilate the name of Islam in the international arena as well as in the minds of Muslims who are unaware of Islamic law. Every social system is based on some values. The criminal law of Islam is to protect some of the absolute values of the social order – religion, life, property and rights of every citizen. The Holy Quran has made Hudood laws for the protection of these values and the rest of legislation is left for the lawmakers of every nation of any time. But as the Hudood Ordinance clearly contradicts Islamic teachings of justice, therefore it is apparent that it is exploiting the judicial system in the name of religion.
‘During the time when Hazrat Umar was the Caliph, a woman accused his son Abu Shahmah of raping her; she brought the infant born of this incident with her to the mosque and publicly spoke about what had happened. Hazrat Umar asked his son, who acknowledged committing the crime and was duly punished right there and then. There was no punishment given to the woman’ — (Reference courtesy muslimaccess.com).
Many provisions of the Hudood Ordinance are man-made and not in accordance with the Shariah. There is no reason why this Ordinance should not be repealed. The judicial system should be allowed to deal with such cases according to its own laws, rather than the so-called Shariah laws. When a woman is charged with Hudood, she can never regain her grace, dignity and prestige in society even if she is exonerated from the charge. Islam can never be so harsh that it would let the dignity and honour of a woman be tarnished for all her life; therefore, to believe that these laws are Islamic is wrong. Such laws only taint the name of Islam. Only if this Ordinance is removed can the judiciary be free to award punishment to the real culprits. The major problem with such Shariah laws is that in the presence of religious matters, the judiciary gets tongue-tied.
There are several considerations that must be taken into account in this matter. First of all, it is extremely important to clearly distinguish between rape and adultery. The charge of adultery should be treated as a completely separate case and should not be merely based on the absence of convincing evidence against the culprit, which has to be brought forward by the rape victim. If a woman has malicious intent and she is trying to implicate a person deliberately, she should be punished for that crime alone. But in order to punish her, her motive and intention has to be proved by following a completely legal procedure. It is not correct to charge her with Qazf merely on the basis of lack of evidence supporting her claims of being a rape victim.
The frame of mind of our system needs to change from ‘Guilty unless proven innocent’, to the more humane, ‘Innocent, unless proven guilty’. Treating adultery and rape like other crimes, where well-formed procedures are followed to prove the guilt or innocence of someone, can help us view this issue in the right perspective. Imposing special case processes without proper justification only brews a sense of injustice in society and its members, especially when it is exploited by men of power to commit heinous atrocities against the weak. Such myopic laws only aid the strong and fetter the weak completely. If we as a nation wish to move forward in the right direction, we must rid ourselves of such morally reprehensible tools of injustice, or else we can continue to see the ongoing trend of repression, bias and discrimination against those who lack potency to compete in this hostile and unfavourable environment.
Since its inception, Pakistan has had one bad ruler after the other – whether it be military or civilian rulers – but certainly the worst period in Pakistan’s history was General Ziaul Haq’s regime. Pakistan’s history bears out the fact that atrocities in the name of religion have taken place over the years, and continue due to the ignorance of the masses. On December 2, 1978, on the occasion of the first day of the Hijra calendar to enforce the Islamic system in Pakistan, in a nationwide address, General Zia accused politicians of exploiting the name of Islam saying, “Many a ruler did what they pleased in the name of Islam.” He did nothing better, in fact he did much worse than anyone else. The demons of Zia’s ‘Islamisation’ still haunt us, and one of the scariest demons is the Hudood Ordinance.
The Hudood Ordinance states the maximum punishments for adultery (stoning), false accusation of adultery (80 lashes of the whip), theft (cutting off the right hand), drinking alcohol (80 lashes) and apostasy (death). Many have been exploited by this Ordinance, but the main victims have been women. The Hudood Ordinance criminalises Zina, which is defined as extra-marital sex. It also criminalises Zina-bil-jabr, which is defined as rape outside of marriage. The Hudood Ordinance further defines Zina and Zina-bil-jabr on the basis of the assigned criminal punishment. Hence there is Zina and Zina-bil-jabr liable to Hadd (punishment ordained by the Holy Quran or Sunnah), and there is Zina and Zina-bil-jabr liable to Tazir, i.e. any punishment other than Hadd. The Hadd punishment is stoning to death, and the Tazir punishment for Zina is up to ten years of imprisonment and whipping – up to 30 lashes and/or a fine. The Tazir punishment for Zina-bil-jabr is up to 25 years of imprisonment and whipping up to 30 lashes. As there is no distinction between rape and adultery, women who are raped end up getting penalised, while the actual criminals roam free.
The Hudood Laws are against the spirit of Islam and distort the laws set out by the Holy Quran. Many legal and religious experts hold that these laws do not fulfil the criteria for providing justice under national, international or religious law. It is widely (mis)used for revenge as most cases are registered by parents against their daughters who have married of their own choice, or men whose wives re-marry after divorce.
There are lacunae in the Hudood Ordinance. The required evidence for Zina (adultery) and Zina-bil-jabr (rape) is the same, i.e. bringing in at least four pious Muslim adult male eyewitnesses, which is nearly impossible in the case of rape. First of all, determination of piety in anyone in itself is a questionable matter. Second, it would be absurd to assume that four pious men witnessed the rape without intervention. It is most likely that in the majority of circumstances, there is generally an absence of four pious men at a rape scene. Also, the concept of producing only men for proving the innocence of a rape victim in itself appears to be unjust. Women witnesses, pious or not, cannot come to the victim’s rescue. When no witnesses are brought forward, which is usually the case, the victim can either be charged with Zina (having accepted that she had sexual relations with a man outside of marriage) or Qazf (false accusation). In any case, the victim gets victimised.
Mufti Mohammad Saeed Khan, a well-known religious scholar, said that four witnesses are not required for a rape case. He said that the Hudood Ordinance does not serve any Islamic purpose, and might have been brought in to serve only political motives. When asked why the Islamic parties (such as MMA or Jamaat-e-Islami) come out on the streets when the issue of “repealing the Hudood Law” is raised and consider it a religious breach to even mention repealing it, he said that there is absolutely no basis for such a law (Zina-bil-jabr) in the Shariah. It is rulings such as these that mutilate the name of Islam in the international arena as well as in the minds of Muslims who are unaware of Islamic law. Every social system is based on some values. The criminal law of Islam is to protect some of the absolute values of the social order – religion, life, property and rights of every citizen. The Holy Quran has made Hudood laws for the protection of these values and the rest of legislation is left for the lawmakers of every nation of any time. But as the Hudood Ordinance clearly contradicts Islamic teachings of justice, therefore it is apparent that it is exploiting the judicial system in the name of religion.
‘During the time when Hazrat Umar was the Caliph, a woman accused his son Abu Shahmah of raping her; she brought the infant born of this incident with her to the mosque and publicly spoke about what had happened. Hazrat Umar asked his son, who acknowledged committing the crime and was duly punished right there and then. There was no punishment given to the woman’ — (Reference courtesy muslimaccess.com).
Many provisions of the Hudood Ordinance are man-made and not in accordance with the Shariah. There is no reason why this Ordinance should not be repealed. The judicial system should be allowed to deal with such cases according to its own laws, rather than the so-called Shariah laws. When a woman is charged with Hudood, she can never regain her grace, dignity and prestige in society even if she is exonerated from the charge. Islam can never be so harsh that it would let the dignity and honour of a woman be tarnished for all her life; therefore, to believe that these laws are Islamic is wrong. Such laws only taint the name of Islam. Only if this Ordinance is removed can the judiciary be free to award punishment to the real culprits. The major problem with such Shariah laws is that in the presence of religious matters, the judiciary gets tongue-tied.
There are several considerations that must be taken into account in this matter. First of all, it is extremely important to clearly distinguish between rape and adultery. The charge of adultery should be treated as a completely separate case and should not be merely based on the absence of convincing evidence against the culprit, which has to be brought forward by the rape victim. If a woman has malicious intent and she is trying to implicate a person deliberately, she should be punished for that crime alone. But in order to punish her, her motive and intention has to be proved by following a completely legal procedure. It is not correct to charge her with Qazf merely on the basis of lack of evidence supporting her claims of being a rape victim.
The frame of mind of our system needs to change from ‘Guilty unless proven innocent’, to the more humane, ‘Innocent, unless proven guilty’. Treating adultery and rape like other crimes, where well-formed procedures are followed to prove the guilt or innocence of someone, can help us view this issue in the right perspective. Imposing special case processes without proper justification only brews a sense of injustice in society and its members, especially when it is exploited by men of power to commit heinous atrocities against the weak. Such myopic laws only aid the strong and fetter the weak completely. If we as a nation wish to move forward in the right direction, we must rid ourselves of such morally reprehensible tools of injustice, or else we can continue to see the ongoing trend of repression, bias and discrimination against those who lack potency to compete in this hostile and unfavourable environment.
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