HUDOOD LAWS: EXTREMELY MISUSED
By Beena Sarwar

October 12, 2003 – (The News on Sunday – Pakistan) In line with the NCSW's recommendation that Hudood laws be repealed, many legal and religious experts hold that these laws do not fulfil the criteria for providing justice under national, international or religious law

"This law is used mostly for revenge," says Parveen Parvez, a lawyer at Karachi's City Courts, talking about Pakistan's Zina, or adultery, laws that are part of the Hudood Ordinance of 1979. "Most cases are registered by parents against their daughters who have married of their own choice, or husbands whose wives re-marry after divorce."

Although overall, the number of women booked under this law hasdecreased compared to when it was first enforced in 1980, Parveen says she has only seen zina cases increase in the last ten or twelve years that she has been practicing.

In 1979, there were only 70 women in prisons all over Pakistan. By 1988, this figure was an astounding 6,000 (six thousand). The number of prosecutions under the Zina Ordinance not only multiplied, they became the majority of the cases against women being dealt with.

In three years (1994-96), the Women Police Station Karachi South, registered 113 cases against women, 94 out of which ((80 %), were registered under the Zina Ordinance. In 1988, 47 per cent of the women in Punjab prisons had been charged with zina.

Besides the two kinds of cases that Parveen identifies as being predominantly booked under Zina, three other categories of women are adversely affected by these laws, notes Dr Farida Akhtar, president of the JUP's women wing in Karachi and a Member of the National Assembly representing the MMA.

"Girls who are raped are also imprisoned in our jails under the zina laws. Then there are the prostitutes - but some 'dalal' or other always gets them out. And fifth, there are those girls who are forced into this profession by their fathers and brothers, I have met such girls in jail myself, who say they were forced, and arrested during a police raid."

So shouldn't these laws be repealed, considering that they have led to thousands of women being unjustly accused of adultery, and then imprisoned? "But all these thousands of women have only been imprisoned," retorts Dr Akhtar. "None of them have been punished under the Hudood laws so far, because of the condition requiring four witnesses. That is what has saved them."

The argument that every law can be misused may be correct to some extent. But, thus stated, it addresses the wrong question. Certainly, the strict condition for four adult Muslim males who are truthful and abstain from major sins to bear witness against anyone accused of Zina, has led to most such cases being acquitted -- eventually, anyway -- 95 per cent, according to a statement by former Chief Justice of the Federal Shariat Court M. Afzal Zullah.

But conversely, this condition has also been inverted so that a woman who has been raped is also required under this law, to provide these four 'tazkiat-uz-shahood' -- or else risk being accused of adultery herself. Lower courts have pronounced severe sentences under the Hudood laws in several such cases.

Some such high profile cases of the 1980s include 13-year old Jehan Mina, raped and made pregnant by an uncle and his son, and sentenced to a hundred lashes, reduced to 15 in view of her tender age. The blind maid servant Safia Bibi was sentenced to a similar punishment. In both cases, the fact that the raped girls had become pregnant was used against them, as proof of the sex act having been committed. The men were acquitted on benefit of doubt in both cases.

Besides sentences of whipping and imprisonment, several women have also undergone the trauma of being sentenced to death by stoning, the most recent case being that of Zafran Bibi in Kohat last year.

In all these cases, there was a huge public outcry by Pakistan's women's rights activists, and much unwanted international attention to the Islamic Republic of Pakistan. And in all these cases, as in most zina cases, the higher courts of appeal acquitted the women. In August 2002, the Federal Shariat Court finally established the principle in the Zafran Bibi case that a woman's pregnancy was not proof of adultery. A similar principle was established by an Islamic court in Nigeria recently, when Amina Lawal was acquitted of adultery and the sentence of stoning to death awarded by a lower court overturned.

But in Pakistan, besides imprisonment, at least some women have undergone the pain and humiliation of being whipped, like Lal Mai, administered 15 lashes in public in Bahawalpur on Sept 30, 1983, and Rukhsana Yusuf, 15 lashes in Karachi Central Jail, on July 18, 1987.

The reason for such injustices, believes Farida Ahmed, are our flawed 'administrative and procedural' measures. As a member of the Special Committee constituted by the present National Commission on the Status of Women (NCSW) to review laws relating to women, her's was one of the two dissenting votes against Committee's recent recommendation that the Hudood laws be repealed. The other dissenting vote came from Dr Sher Zaman, Chairman of the Council of Islamic Ideology.

The 17-member Committee was headed by retired High Court Judge Majida Rizvi, who also headed the now defunct NCSW; besides the members mentioned above, it included members of the Council of Islamic Ideology and religious scholars, in addition to lawyers and retired judges. The majority upheld the Committee's recommendation that the Hudood laws be repealed.

As expected, the recommendation once again ignited the ongoing 20-year old debate about the Hudood laws. Veiled Muttahida Majlis-e-Amal (MMA) women demonstrated in Islamabad against the NCSW recommendation, and in favour of retaining the Hudood laws. The NWFP Assembly passed a unanimous resolution condemning the NCSW recommendation as part of the 'conspiracy against Islam'. Men and women activist groups demonstrated in Islamabad and Karachi in support of the NCSW, and against the Hudood laws.

Such demonstrations have been taking place on and off for years. But until now, the related reportage and debate was limited mostly to the print media -- especially English and Sindhi publications. Now, for the first time television in Pakistan covered the issue, thanks to the private channels that have recently emerged.

But two decades of a lack of public debate has contributed to the continuing misconceptions about these laws. People often assume that they are Islamic, and therefore justified. But, as the women's rights activist Nasreen Azhar boldly stated on a talk show recently, "Unfortunately, when anything that is done in the name of Islam, people keep quiet and are afraid to say anything."
(Capital Talk, Geo).

Many legal and religious experts are clear that in any case, these laws do not fulfil the criteria for providing justice under national, international or religious law.

"If there are only administrative problems, it is another matter," says retired Sindh High Court judge Shaiq Usmani. "But there are flaws in the very drafting and enactment of these laws."

His belief that the driving principle in the religion of Islam is the provision of justice, and therefore, any law which leads to injustice cannot be in conformity with Islam, is shared by many, including Justice Majida Rizvi.

"We studied each line, each word, of the Zina Ordinance, to see whether those who drafted these laws correctly interpreted religion, and applied its principles," she says. "The majority of the members were of the view that there are so many flaws in these laws, that it would be impossible to correct them. Therefore, we came to the conclusion that these laws should be repealed, and if the government really wants to enact Hudood Laws, this should be done after a thorough study, and after there is a debate in parliament and in public to ensure that any such law is actually in conformity with the injunctions of Islam."

Like many others, she brushes aside the suggestion that this is God's law, and cannot be tampered with. "This is a man-made law, it was brought in by presidential ordinance, without any parliamentary debate," she asserts.

Dr Aslam Khaki, a Supreme Court lawyer and honorary counsel to the Federal Shariat Court, agrees. A product of madrassah education himself, he unhesitatingly cites the relevant Quranic verse or hadith when crossing swords with the self-appointed custodians of Islam. "The motive behind these laws was political, not religious," he states. "Gen. Ziaul Haq had come into power after toppling a popularly elected government, and he had to justify his act. The slogan of Islamisation was convenient for this purpose."

Groundwork for this step had already been laid. In a bid to pander to the religious lobby, Prime Minister Z.A. Bhutto had already outlawed gambling, horse-racing and the sale of alcohol to non-Muslims, instituted Friday as the weekly holiday instead of Sunday and allowed the Ahmedis to be constitutionally declared as non-Muslims. Rather than achieving support from the conservatives, each step only encouraged them to demand more -- rather like the camel who started out by putting a hoof in the tent, and ending up by ousting the tent's owner and taking over the entire tent.

The 'elections in 90 days' promised to the nation by the initially obsequious Gen. Zia turned into eleven long years. The war against Communist USSR in neighbouring Afghanistan provided yet more fodder for the 'Islamisation' plan, and extending the general's stint in power with Washington's blessings.

It was against this backdrop, with political opposition decimated by repressive policies against activists that included whipping, torture, and executions, and the religious lobby firmly by his side, that Gen Zia played havoc with the constitution -- in the name of Islam.

This havoc included the Hudood laws, introduced by presidential ordinance in 1979, and enforced in 1980. They deal with four kinds of offences that would from now be liable to 'hadd' (extreme) punishment, while the fifth part pertains to the punishment to be
administered for these offences.

The offences, as defined by the new law, are Offences against Property (crimes of theft and armed robbery); Offence of Qazf (bearing false witness or making false accusations); Prohibition (drug trafficking and alcohol consumption); and Offence of Zina (rape, abduction of women and zina or adultery).

The fifth part of Ordinance, dealing with the punishment, is Execution of the Punishment of the Whipping Ordinance.

Two sets of punishments are provided by these laws, hadd and tazir. Hadd punishment can only be administered on confession of the accused or if the act has been witnessed by four adult Muslim males who are truthful and abstain from major sins. Non-Muslims can only bear witness where the accused is also a non-Muslim, and the testimony of women is thus excluded by default.

"So if a crime is committed in a place where there are only women, the rapist or thief can't be brought to justice, because the only witnesses are women. What kind of justice is that?" asks Justice Majida Rizvi. "Are they trying to say that Islam does not recognise women as witnesses, when the murderers of Hazrat Usman were caught on the evidence of just one woman?"

Recommendations of the 1997 report

The NCSW's recommendation to repeal the Hudood laws made echoes the recommendation by another government-instituted commission, the 1997 Report of the then Commission of Inquiry for Women, chaired by Supreme Court Judge, Nasir Aslam Zahid -- who was also on the recent Committee.

While the present Commission's report is yet to be made public, the 1997 Report notes that earlier, under the Pakistan Penal Code, adultery was a personal crime -- complaints could only be made by the husband of the adulteress, but females could not be punished under this law. The offence was compoundable and bailable, and if the complainant dropped the charges, criminal proceedings were automatically dropped. The punishment was five years or a fine, or both. The state could not be a party.

The Report summarises the reasoning behind this leniency: the authors of the PPC argued that within the prevalent feudal and patriarchal social structures, women were rarely in total control of their lives and actions.

"Making them liable to willing adultery in such unequal circumstances, where even the false hint of it would doom the women to life, would frequently amount to injustice. Besides, the very criminal liability of a woman would have the effect of enlarging the circumstances of her victimization, since she would then be open to blackmail, to threats of her implication in willing acts of zina. Finally, it was thought that such a provision would lead to the traditional rules and norms being made even more inhibiting for women and raise the level of their social oppression and of familial control of their lives. Thus the writers of the Penal Code concluded that they would not throw into a scale already loaded against women, the additional weight of the penal law.

"Their apprehensions proved only too true after the Ordinance came in. In the pre-Zina Ordinance period, there were only a handful of reported cases of adultery. As soon as the law was changed to include women within the scope of its punishment, allegations of zina started to run into thousands. This clearly indicates that as long as it was only the male who could be punished for adultery, there was a reluctance to prosecute. The Ordinance became a tool in the hands of those who wished to exploit women." (1997 Report of the Commission of Inquiry for Women, p. 65-66).

Featured in SOUTH ASIA CITIZENS WIRE, October 13, 2003

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