Hudud Ordinances

 ( 1979 In Law ) 

• 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.

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.

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 ostracised by their families, and had become social outcasts.

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.See Safia Bibi v. State in PLD 1985 FSC 120; Zafran Bibi v. State in PLD 2002 FSC 1 Washington Times, A victory for Pakistani women 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 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 organisations. 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 a jail sentence of 3 years with 15 stripes of lashings and a fine of 100 rupees under tazir. Her rapist was acquitted. The 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 of to shut this door.Lau, "Twenty-Five Years of Hudood Ordinances", 2007: p.1310-311 Protection of Women (Criminal Laws Amendment) Act, 2006, at Statement of Objects and Reasons (Pak.), http://www.pakistani.org/pakistan/legislation/2006/wpb.html (last visited Oct. 27, 2007) (on file with the Washington and Lee Law Review).

A number of international and Pakistani human rights organisations argue that Hudood Ordinance goes beyond what is required by sharia. Muttahida Qaumi Movement, "Particular coterie of religious scholars wish to deprive women of their just and basic rights" , 7 September 2006 They are opposed by right wing religious parties (Muttahida Majlis-e-Amal (MMA)), who accuse them of departing from Islamic values.

Furthermore, the ordinance became a tool of misuse to quell and compromise women’s fundamental rights.

The study that found the ordinance was 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:

1. 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;
2. a complainant accuses his "former" spouse of zina when she remarries;
3. 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".Javaid Iqbal, 'Crimes against Women in Pakistan` in PLD 1988 J 195 quoted in The Role of Islam in the Legal System of Pakistan, Martin Lau, (BRILL, 2006) p.121 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."

In 2006, then President Pervez Musharraf again proposed reform of the ordinance. The Hindu, "Musharraf wants Hudood laws amended" On November 15, 2006, the "Protection of Women (Criminal Laws Amendment) Act" was passed in the National Assembly, allowing rape to be prosecutable under civil law. The bill was ratified by the Senate 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 Pakistan Penal Code, 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 criticised 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