The Hudood Ordinances (

Urdu Urdu (;"Urdu"
'' Pakistan Pakistan ( ur, ), officially the Islamic Republic of Pakistan ( ur, , label=none), is a country in South Asia. It is the world's List of countries and dependencies by population, fifth-most populous country, with a population of almost 24 ...

that were enacted in 1979 as part of then military ruler Zia-ul-Haq's "Islamisation" process. It replaced parts of the British-era

Pakistan Penal Code The Pakistan Penal Code (; ), abbreviated as PPC, is a penal code for all offences charged in Pakistan. It was originally prepared by Lord Macaulay with a great consultation in 1860 on the behalf of the Government of India as the Indian Penal ...

, adding new criminal offences of

adultery Adultery (from Latin ''adulterium'') is extramarital sex that is considered objectionable on social, religious, moral, or legal grounds. Although the sexual activities that constitute adultery vary, as well as the social, religious, and legal ...

and

fornication Fornication is generally consensual sexual intercourse between two people not married to each other. When one or more of the partners having consensual sexual intercourse is married to another person, it is called adultery. Nonetheless, John ...

, and new punishments of whipping,

amputation Amputation is the removal of a limb by trauma, medical illness, or surgery. As a surgical measure, it is used to control pain or a disease process in the affected limb, such as malignancy or gangrene. In some cases, it is carried out on indi ...

, and stoning to death. Lau, "Twenty-Five Years of Hudood Ordinances", 2007: p.1296 Lau, "Twenty-Five Years of Hudood Ordinances", 2007: p.1292 After much controversy and criticism parts of the law were extensively revised in 2006 by the

Women's Protection Bill The Women's Protection Bill (Urdu: تحفظِ نسواں بل) which was passed by the National Assembly of Pakistan on 15 November 2006 is an attempt to amend the heavily criticised 1979 Hudood Ordinance laws which govern the punishment for rape ...

. The Hudood Law was intended to implement Shari'a law or bring Pakistani law into "conformity with the injunctions of Islam", by enforcing punishments mentioned in the

Quran The Quran (, ; Standard Arabic: , Quranic Arabic: , , 'the recitation'), also romanized Qur'an or Koran, is the central religious text of Islam, believed by Muslims to be a revelation from God. It is organized in 114 chapters (pl.: , ...

and

sunnah In Islam, , also spelled ( ar, سنة), are the traditions and practices of the Islamic prophet Muhammad that constitute a model for Muslims to follow. The sunnah is what all the Muslims of Muhammad's time evidently saw and followed and passed ...

for ''

zina ''Zināʾ'' () or ''zinā'' ( or ) is an Islamic legal term referring to unlawful sexual intercourse. According to traditional jurisprudence, ''zina'' can include adultery, fornication, prostitution, rape, sodomy, incest, and bestiality. ' ...

'' (extramarital sex), ''qazf'' (false accusation of ''zina''), theft, and

consumption of alcohol An alcoholic beverage (also called an alcoholic drink, adult beverage, or a drink) is a drink that contains ethanol, a type of alcohol that acts as a drug and is produced by fermentation of grains, fruits, or other sources of sugar. The cons ...

. The system provided for two kinds of offences — ''hadd'' and ''tazir'' — with different punishments to go with them. '' Hadd'' offences (fixed punishment) require a higher standard of proof than ''

tazir In Islamic Law, ''tazir'' (''ta'zeer'' or ''ta'zir'', ar, تعزير) refers to punishment for offenses at the discretion of the judge (Qadi) or ruler of the state. and critics alleged that there were "hundreds of incidents where a woman subjected to rape, or even gang rape, was eventually accused of ''

''" and incarcerated. The laws in 2006 were corrected, excusing such women who failed to prove the rape.

Ordinances

The ordinances follow the classical mainly ''

Hanafi The Hanafi school ( ar, حَنَفِية, translit=Ḥanafiyah; also called Hanafite in English), Hanafism, or the Hanafi fiqh, is the oldest and one of the four traditional major Sunni schools ( maddhab) of Islamic Law (Fiqh). It is named a ...

'' jurisprudence doctrine. One non-classical feature is that ''Hadd'' punishments can only be carried out after an appeal to the

Federal Shariat Court The Federal Shariat Court (FSC) is a constitutional court of the Islamic Republic of Pakistan, which has the power to examine and determine whether the laws of the country comply with Sharia law. The court was established in 1980 during the gove ...

has failed. The Federal Shariat Court, which has "exclusive jurisdiction" to examine whether or not a law is in accordance with the injunctions of Islam, was created along with the Ordinances. Lau, "Twenty-Five Years of Hudood Ordinances", 2007: p.1294 Under the ordinances, ''tazir'' punishments often involve flogging.

Offences Against Property (theft) ordinance

Officially known as "The Offences Against Property (Enforcement Of Hudood) Ordinance (VI of 1979)." *Offences Against Property liable to ''hadd'' must be **theft of something ''nisab'' level of value, i.e. property worth more than 4.457 grams of gold (about USD $258 ) **from a place where the property was protected. Kennedy, ''Islamization of Laws and Economy'', 1996: p.56 **evidence must be from a confession by the accused, or at least two Muslim adult male witnesses who are `''tazkiyah-al-shuhood''`, (truthful and non-sinners). *Punishment for "theft liable to ''hadd''"; **first offence: "amputation of his right hand from the joint of the wrist"; **second offence: "amputation of his left foot up to the ankle"; **third offence: imprisonment for life; * Theft liable to ''tazir'': Whoever commits theft, which, is not liable to 'hadd' or **for which there is no confession or evidence provided by two qualifying Muslim adult male witnesses, or **for which 'hadd' may not be imposed or enforced under this Ordinance; *Punishment for theft liable to tazir: is stipulated in the Pakistan Penal Code (Act XLV of 1860). For robbery liable to ''hadd'', the right hand of the offender and his left foot should be amputated by a surgeon.

Zina (extramarital) Ordinance

Officially known as "The Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)" refers to

and ''zina bil jabbar'' (

rape Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without their consent. The act may be carried out by physical force, coercion, abuse of authority, or ...

). The most controversial of the four ordinances, Lau, "Twenty-Five Years of Hudood Ordinances", 2007: p.1302 it has several distinct categories of sexual offences and assigned punishments for each: *''zina'' liable to hadd; punishable by **stoning to death for the adulterer **public whipping of 100 lashes for a fornicator *''zina'' liable to ''tazir''; punishable by **imprisonment for up to ten years *''zina-bil-jabr'' liable to ''hadd''; *''zina-bil-jabr'' liable to ''tazir''; Further Zina offenses are (or as of 1991 were) Kennedy, ''Islamization of Laws and Economy'', 1996: p.80 *kidnapping *sodomy *enticement *attempted rape *abetment of ''zina'' crime *deceitful marriage *conspiracy to engage in prostitution Under ''hadd'', eyewitnesses evidence of the act of penetration by "at least four Muslim adult male witnesses", about whom "the court is satisfied", that "they are truthful persons and abstain from major sins (''kabair'')" (''

tazkiyah Tazkiyah ( ar, تزكية) is an Arabic-Islamic term alluding to "''tazkiyat al-nafs''" meaning "sanctification" or "purification of the self". This refers to the process of transforming the ''nafs'' (carnal self or desires) from its deplorabl ...

al-shuhood''). Because of this stringent standard, no accused has ever been found guilty and stoned to death in Pakistan, and punishments have been awarded only under the

Tazir In Islamic Law, ''tazir'' (''ta'zeer'' or ''ta'zir'', ar, تعزير) refers to punishment for offenses at the discretion of the judge (Qadi) or ruler of the state.false accusation of rape A false accusation of rape happens when a person states that they or another person have been raped when no rape has occurred. Although some studies attempt to characterize the prevalence of false accusation of rape, according to a 2013 book o ...

; *Proof of "''qazf'' liable to ''hadd''" includes the accused confessing to it in court, the accused committing ''qazf'' in court, or if two Muslim adult male witnesses (other than the victim of the ''qazf'') testify that the defendant committed qazf. (If the accused is a non-Muslim, the witnesses may be non-Muslims.) *Punishment of "''qazf'' liable to ''hadd''" will be a whipping numbering 80 stripes. *"''Qazf'' liable to ''Tazir''" applies whenever **proof in any of the forms mentioned above is not available, **or when the perpetrator has committed 'qazf' against any of his descendants, **or when the victim of ''qazf'' has died during the "pendency of the proceedings"; *punishment of "''qazf'' liable to ''tazir''" shall be imprisonment for up to two years, a whipping of up to 40 stripes, and may also include a fine.

Prohibition (alcohol) Order

Officially known as: "The Prohibition (Enforcement of Hadd) Order of 1979", described the offence of producing, importing, selling, owning, possessing or consuming

alcohol Alcohol most commonly refers to: * Alcohol (chemistry), an organic compound in which a hydroxyl group is bound to a carbon atom * Alcohol (drug), an intoxicant found in alcoholic drinks Alcohol may also refer to: Chemicals * Ethanol, one of sev ...

. *Producing, bottling, selling alcohol is punishable by imprisonment of up to five years, or flogging of up to 30 stripes, and may also be fined. *Owning or possessing is punishable by imprisonment of up to two years, or flogging of up to 30 stripes, and may also be fined. *drinkers liable to ''hadd'' are adult Muslims who "takes intoxicating liquor by mouth" if they confess to drinking or evidence is given by "two Muslim adult male witness" of good character. **They "shall be punished" with flogging of "eighty stripes". *drinkers liable to ''tazir'' include **non-Muslim citizens of Pakistan who have been drinking (unless it is "part of a ceremony prescribed by his religion"): **non-Muslim, non-citizens of Pakistan, who have been drinking in a public place; **Muslims for whom "the offence stands proved by the evidence on the record" but not by ''hadd'' evidence of two Muslim witnesses, etc. **these drinkers shall be punished by imprisonment of up to three years, flogging of up to 30 stripes, or both. *owning or possessing heroin, cocaine, opium or coca leaf is also punishable with imprisonment, flogging and fines.

Whipping Ordinance

"The Execution of the Punishment of Whipping Ordinance of 1979" was developed to regulate the punishment of whipping/flogging. It specifies that whips shall be made of leather, or a cane or a branch of a tree, be no longer than 1.22 meters and no thicker than 1.25 cm. Convict shall be medically examined before flogging to determine if the flogging should be "applied in such manner and with such intervals" that it does not kill the offender being flogged. Flogging may be postponed if the offender is ill, pregnant, or if the weather is too cold, etc. Stripes shall not be applied to "the head, face, stomach or chest or the delicate parts of the body of the convict," and should not lacerate the skin of the convict.

Controversy and revision

Whipping

In 1996 the Abolition of Whipping Act (passed by Benazir Bhutto's

Pakistan People's Party The Pakistan People's Party ( ur, , ; PPP) is a centre-left, social-democratic political party in Pakistan. It is currently the third largest party in the National Assembly and second largest in the Senate of Pakistan. The party was founded i ...

), forbade sentences/punishments of whipping offenders except when imposed as a hadd punishment. It has "greatly reduced" the instances of corporal punishment.

Zina (extramarital) Ordinance

In the two and a half decades the law was unchanged, several Pakistani government appointed commissions recommended the Zina Ordinance's repeal (such as the National Commission for the Status of Women in 2003, the Special Committee to Review the Hudood Ordinances, 1979, Commission of Inquiry for Women). Lau, "Twenty-Five Years of Hudood Ordinances", 2007: p.1297-8 Critics of the law alleged that while no one had actually been executed by stoning or had their hand or foot amputated in punishment as a result of the law, Lau, "Twenty-Five Years of Hudood Ordinances", 2007: p.1305 the ordinance made it dangerous to file rape charges as the women can be punished under tazir if failed to prove an allegation of rape. In 1979, before the ordinances went into effect there were 70 women held in Pakistani prisons. By 1988, there were 6000. A 2003 report by the National Commission on Status of Women (NCSW) estimated "80% of women" were incarcerated because "they had failed to prove rape charges and were consequently convicted of adultery under tazir." According to legal scholar Martin Lau

While it was easy to file a case against a woman accusing her of adultery, the Zina Ordinance made it very difficult for a woman to obtain bail pending trial. Worse, in actual practice, the vast majority of accused women were found guilty by the trial court only to be acquitted on appeal to the Federal Shariat Court. By then they had spent many years in jail, were ostracized by their families, and had become social outcasts.

''A woman alleging rape was Initially required to provide eyewitnesses of good standing and moral character (Tazkiyah-al-shuhood'') and the witnesses would have to witness "the act of penetration" for the death penalty to apply to the Rapist or if there was no witnesses then Ta'zir would apply. In principal, the failure to find such proof of the rape does not place the woman herself at risk of prosecution. According to Mufti

Taqi Usmani Muhammad Taqi Usmani (born 5 October 1943) is a Pakistani Islamic scholar and former judge who is the current president of the Wifaq ul Madaris Al-Arabia and the vice president and Hadith professor of the Darul Uloom Karachi. An intellectual ...

, who was instrumental in the creation of the ordinances:

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 four witnesses. No court of law can be in its right mind to award such a punishment.

However, in practice, these safeguards have not always worked. In addition, because the ordinance abolished Pakistan's statutory rape law, girls as young as twelve were prosecuted for having extra-marital intercourse "under circumstances that would previously have mandated

statutory rape In common law jurisdictions, statutory rape is nonforcible sexual activity in which one of the individuals is below the age of consent (the age required to legally consent to the behavior). Although it usually refers to adults engaging in sexual ...

charges against their assailant," according to Human Rights Watch. Stories of suffering by women who claimed to have been raped appeared in the press in the years following the passing of the Hudood Ordinance stirring protests by Pakistani activists and lawyers and international human rights organizations. One case was that of Safia Bibi, an unmarried blind woman from the northwest frontier who was prosecuted for ''zina'' because of her illegitimate pregnancy she was given jail sentence of 3 years with 15 stripes of lashings and a fine of 100 rupees under tazir. Her rapist was acquitted. Judge ruled that there insufficient evidence to link him with rape.

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 Qur'an-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.

The appeal judgment of the Federal Shariah Court cleared the girl of the accusation of zina. Another scenario for some of the accusations of adultery leading to imprisonment was following divorce by the husband and remarriage by the ex-wife.

A triple talaq is pronounced. The woman returns to her parental home. She goes through her period of ''iddat''. After a while the family arranges another match and she gets married. The husband then claims that sans the confirmation of divorce by the local authorities the marriage is not over and launches a zina prosecution. It is necessary to delete this definition f a valid marriageto shut this door. Lau, "Twenty-Five Years of Hudood Ordinances", 2007: p.1310-311

A number of international and Pakistani human rights organizations argue that Hudood Ordinance goes beyond what is required by

sharia Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the H ...

. They are opposed by right wing religious parties (

Muttahida Majlis-e-Amal The Muttahida Majlis–e–Amal (MMA; Urdu: , "United Council of Action") is a political alliance consisting of conservative, Islamist, religious, and far-right parties of Pakistan. Naeem Siddiqui (the founder of Tehreek e Islami) proposed su ...

(MMA)), who accuse them of departing from Islamic values.

Case study

A study by Charles Kennedy of the Hudood Ordinances based on random stratified sample of cases tried by the Federal Shariat Court (FSC) from 1980–84, found 88% of cases heard by the FSC were Zina Ordinance-related, that the court acquitted over half (52%) of the appellates (an "extraordinarily high" number), and "fully upheld" less than one in five (19%) of the convictions. Around 90% of the cases were overturned based on misappreciation of the facts, not misappreciation of the law. Kennedy, ''Islamization of Laws and Economy'', 1996: p.56-8 The average time that defendants had to wait for disposition of their cases (in jail unless they were granted bail) after the "First Information Report" in district and sessions courts was around eighteen months. Kennedy, ''Islamization of Laws and Economy'', 1996: p.58 However the acquitted defendants still had to contend with high legal fees, a social opprobrium facing even acquitted defendants, and time in jail until their appeal was heard unless they were granted bail. Kennedy, ''Islamization of Laws and Economy'', 1996: p.65 Kennedy, ''Islamization of Laws and Economy'', 1996: p.78 The study found the ordinance used to file "nuisance or harassment suits against disobedient daughters or estranged wives." Kennedy, ''Islamization of Laws and Economy'', 1996: p.64 Three common patterns in the cases were:

# a man and a woman are accused of ''zina'' by the father or older brother of the accused woman, the complainant(s) not consenting to the marriage or relationship; #a complainant accuses his "former" spouse of ''zina'' when she remarries; #a girl bring charges of rape against her 'boyfriend' after she is confronted by her relatives with alleged evidence of possible wrongdoing or dishonor.

Kennedy states that "clearly the perception that Zia's program significantly discriminated against women's rights is fundamentally flawed". Kennedy, ''Islamization of Laws and Economy'', 1996: p.79 84% of those convicted in district and sessions courts under Hudood law were men, and 90% of those whose convictions were upheld by the FSC were men, Kennedy, ''Islamization of Laws and Economy'', 1996: p.62 the law cannot be accused of gender bias. He does not argue with statements such as "eight out of every ten women in jail today are those charged with the offence of Zina". He also states "it is undoubtedly the case" that the Hudood Ordinances, or at least their implementation, "discriminated against Pakistan's lower socioeconomic classes". Only 2% of those convicted were middle-class (and none upper-class). Kennedy, ''Islamization of Laws and Economy'', 1996: p.77 Human rights attorney Sadakat Kadri replies that "Kennedy reached that mistaken view" because he compared male and female "conviction statistics as though they were alike, ignoring the fact that most men would have been rapists, whereas the women would all have been rape victims or alleged consenting adulterers."

Reforming the Hudood Ordinance

Attention to the Ordinance and suggestions for revising it were given by a number of government appointed commissions, a several-weeks-long televised debate on the subject of "No debate on Hudood Allah (Allah's laws as prescribed in Quran and Sunnah)-is the Hudood Ordinance (Man's interpretation of Allah's law) Islamic?" on Geo television channel, and a 2005

University of Karachi The University of Karachi ( sd, ; informally Karachi University, KU, or UoK) is a public research university located in Karachi, Sindh, Pakistan. Established in June 1951 by an act of Parliament and as a successor to the University of Sindh ...

Dept of Public Administration workshop. In 2006, then

President President most commonly refers to: *President (corporate title) * President (education), a leader of a college or university * President (government title) President may also refer to: Automobiles * Nissan President, a 1966–2010 Japanese ...

Pervez Musharraf General Pervez Musharraf ( ur, , Parvez Muśharraf; born 11 August 1943) is a former Pakistani politician and four-star general of the Pakistan Army who became the tenth president of Pakistan after the successful military takeover of t ...

again proposed reform of the ordinance. On November 15, 2006, the " Protection of Women (Criminal Laws Amendment) Act" was passed in the

National Assembly In politics, a national assembly is either a unicameral legislature, the lower house of a bicameral legislature, or both houses of a bicameral legislature together. In the English language it generally means "an assembly composed of the r ...

, allowing rape to be prosecutable under civil law. The bill was ratified by the

Senate A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...

on 23 November 2006, and became law after President Musharraf signed it on 1 December 2006. The bill *returns a number of offenses from the Zina Ordinance to the

, where they had been before 1979; **since rape, unlike ''zina'' and ''qazf'', is not mentioned in the Quran, rape is now excluded from Islamic criminal law. *reformulates and redefines the offenses of ''zina'' and ''qazf'' (the wrongful accusation of ''zina''); **no complaint of adultery or rape can be converted into one of fornication; *creates an entirely new set of procedures governing the prosecution of the offenses of adultery and fornication. Lau, "Twenty-Five Years of Hudood Ordinances", 2007: p.1308 **adds to the Pakistan Penal Code a new offense of false accusation of fornication, so that an accusation of fornication runs the risk of a lengthy prison sentence if his complaint does not result in a conviction; **adultery is the only offense retained in the Zina Ordinance. A complaint of adultery must be made to a judge with at least four witnesses testifying under oath that they witnessed the act of penetration. Lau, "Twenty-Five Years of Hudood Ordinances", 2007: p.1308-12 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. Human rights groups and activists in Pakistan have also criticized the bill, with one group complaining: "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. In contrast Martin Lau has said that the Act "cannot be dismissed as a mere window dressing undertaken to satisfy a Western audience." Lau, "Twenty-Five Years of Hudood Ordinances", 2007: p.1314

Criminal Law (Amendment) (Offense of Rape) Act 2016

On 7 October 2016, Pakistan's parliament unanimously passed a new anti-rape and anti-honour killing bills. The new laws introduced harsher punishments for the perpetrators of such crimes. According to the new anti-rape bill, DNA testing was made mandatory in rape cases. Sabotaging or disrupting the work of a police officer or Government official could result in imprisonment of 1 year under the new law. Government officials who are found taking advantage of their official position to commit act of rape (e.g. custodial rape) are liable to imprisonment for life and a fine. According to the new law, anyone who rapes a minor or a mentally or physically disabled person will be liable for the death penalty or life imprisonment. Recording of statement of the female survivor of rape or sexual harassment shall be done by an Investigating Officer, in the presence of a female police officer, or a female family member of the survivor. Survivors of rape shall be provided legal aid (if needed) by the Provincial Bar Council. The new law also declares that trials for offences such as rape and related crimes shall be conducted in-camera and also allows for the use of technology such as video links to record statements of the victim and witnesses, to spare them the humiliation or risk entailed by court appearances. The media will also be restricted from publishing or publicising the names or any information that would reveal the identity of a victim, except when publishing court judgements. The trial for rape shall conclude within three months. However, if the trial is not completed within three months then the case shall be brought to the notice of the Chief Justice of the High Court for appropriate directions. The new bill also ensures that sex workers are also included in the law's protection.

UN Women The United Nations Entity for Gender Equality and the Empowerment of Women, also known as UN Women, is a United Nations entity working for gender equality and the empowerment of women. UN Women advocates for the rights of women and girls, and foc ...

Executive Director,

Phumzile Mlambo-Ngcuka Phumzile Mlambo-Ngcuka (; born 3 November 1955), South African Government Information. is a South African politician and former United Nations official, who served as the Executive Director of UN Women with the rank of Under-Secretary-General o ...

, hailed the Government of Pakistan's decision to pass the anti-rape and anti-honour killing bills.

Bibliography

* Khan, Shahnaz. Zina and the Moral Regulation of Pakistani Women, Feminist Review, Volume: 75 issue: 1, page(s): 75-100, Issue published: December 1, 2003; Sage Journals, https://doi.org/10.1057/palgrave.fr.9400111 *

References

* * {{IslamismSA 1979 in law 1979 in Pakistan Law of Pakistan Repealed Pakistani legislation Sharia in Pakistan Women's rights in Pakistan Military government of Pakistan (1977–1988)

Ordinances

Offences Against Property (theft) ordinance

Zina (extramarital) Ordinance

Prohibition (alcohol) Order

Whipping Ordinance

Controversy and revision

Whipping

Zina (extramarital) Ordinance

Case study

Reforming the Hudood Ordinance

Criminal Law (Amendment) (Offense of Rape) Act 2016

See also

Bibliography

References