Women and religious minorities under the Hudood Laws in Pakistan

Naeem Shakir, Advocate, Lahore High Court, Pakistan

 

Despite international treaties, covenants, human rights declarations, movements at global or local levels and resistance against repressive laws, norms, customs, administrative measures and policies, fundamental human rights continue to be enormously violated in the world in general, and throughout Asia in particular. The weaker and marginalised sections of society are more vulnerable and hardest-hit. In Pakistan, religious minorities and women have suffered tremendously because of state legislation, especially on account of the Hudood Laws. General Zia-ul-Haq promulgated these laws to introduce the punishments of hadd into criminal law, in order to bring it into conformity with the injunctions of Islam as set out in the Holy Quran and Sunnah. These laws include the

  1. Offence of Zina (Enforcement of Hudood) Ordinance 1979;

  1. Offences against Property (Enforcement of Hudood) Ordinance 1979;

III.       Prohibition Enforcement of Hadd Order IV 1979;

  1. Offence of Qazf (Enforcement of Hudood) Ordinance 1979; and,

  1. Execution of the Punishment of Whipping Ordinance 1979.

These laws were supposedly made to Islamise Pakistani society, and provide justice to the people. However, in the process, the military adopted administrative and legislative measures in an arbitrary, non-democratic and sectarian manner. Apart from legislation on religious lines, a religious court was established by amending the Constitution. The introduction of a new court, the Federal Shariat Court, not only jeopardized the whole judicial system of the country but impaired the independence of the Parliament as well, because it was empowered to annul any regulation found repugnant to the Holy Quran and Sunnah in its judgement.

Ironically, these provisions and the Islamic punishments—which included stoning to death, amputation of hands and feet and flogging in public—were also made applicable to non-Muslim citizens of the country. Minorities have been consistently raising their voices against the application of a Shariah to which they do not belong. Women too have been very critical about the enforcement of these laws, particularly against the law relating to adultery and rape.

The Offence of Zina (Enforcement of Hudood) Ordinance 1979 (the Ordinance) has been the most contentious piece of legislation because of its conceptual inaccuracies, textual errors, religious and gender discrimination, and of course, abuse in application of law. A brief examination of the law will help capture the vulnerable situation felt by women and religious minorities in Pakistan. But unless the text of the law is laid before the reader, it cannot be properly appreciated. Therefore the text is given hereunder.

The Offence of Zina (Enforcement of Hudood) Ordinance, 1979

An Ordinance to bring in conformity with the injunctions of Islam the law relating to the offence of zina

WHEREAS it is necessary to modify the existing law relating to zina so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Quran and Sunnah;

AND WHEREAS the President is satisfied that circumstances exist which render it necessary to take immediate action;

Now THEREFORE, in pursuance of the Proclamation of the fifth day of July 1977 (C.M.L.A. Order No. 1 of 1977), and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance:-

  1. Short title, extent and commencement.

(1) This Ordinance may be called the Offence of Zina (Enforcement of Hudood ) Ordinance, 1979.

(2) It extends to the whole of Pakistan.

(3) It shall come into force on the twelfth day of Rabi-ul-Awwal, 1399 Hijri, that is, the tenth day of February 1979.

  1. Definitions.

In this Ordinance, unless there is anything repugnant in the subject of context,

(a) “adult” means a person who has attained, being a male, the age of eighteen years or, being a female, the age of sixteen years, or has obtained puberty;

(b) “hadd” means punishment ordained by the Holy Quran or Sunnah;

(c) “marriage” means marriage which is not void according to the personal law of the parties, and “married” shall be construed accordingly;

(d) “muhsan” means-

(i) a Muslim adult man who is not insane and has had sexual intercourse with a Muslim adult woman who, at the time he had sexual intercourse with her, was married to him and was not insane; or

(ii) a Muslim adult woman who is not insane and has had sexual intercourse with a Muslim adult man who, at the time she had sexual intercourse with him, was married to her and was not insane; and

(e) “tazir” means any punishment other than hadd, and all other terms and expressions not defined in this Ordinance shall have the same meaning as the Pakistan Penal Code, or the Code of Criminal Procedure, 1898.

  1. Ordinance to override other Laws.

The provision of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force.

  1. Zina.

A man and a woman are said to commit ‘zina’ if they willfully have sexual intercourse without being validly married to each other.

Explanation:- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of zina.

  1. Zina liable to hadd.

(1) Zina is zina liable to hadd if:-

(a) it is committed by a man who is an adult and is not insane with a woman to whom he is not, and does not suspect himself to be married; or

(b) it is committed by a woman who is adult and is not insane with a man to whom she is not, and does not suspect herself to be, married.

(2) Whoever is guilty of zina liable to hadd shall, subject to the provisions of this Ordinance,-

(a) if he is a muhsan, be stoned to death at public place; or

(b) if he or she is not a muhsan, be punished, at a public place, with whipping numbering one hundred stripes.

(3) No punishment under sub-section (2) shall be executed until it has been confirmed by the Court to which an appeal from the order of conviction lies; and if the punishment be of whipping, until it is confirmed and executed, the convict shall be dealt with in the same manner as if sentenced to simple imprisonment.

  1. Zina-bil-jabr.

(1) A person is said to commit zina-bil-jabr if he or she has sexual intercourse with a woman or a man, as the case may be, to whom he or she is not validly married, in any of the following circumstances, namely:-

(a) against the will of the victim,

(b) without the consent of the victim,

(c) with the consent of the victim, when the consent has been obtained by putting the victim in fear of death or of hurt, or;

(d) with the consent of the victim, when the offender knows that the offender is not validly married to the victim and that consent is given because the victim believes that the offender is another person to whom the victim is or believes herself or himself to be validly married.

Explanation:- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of zina-bil-jabr.

(2) Zina-bil-jabr is zina-bil-jabr liable to hadd if it is committed in the circumstances specified in sub-section (1) of section 5.

(3)Whoever is guilty of zina-bil-jabr liable to hadd shall subject to the provisions to this Ordinance,-

(a) if he or she is a muhsan, be stoned to death at a public place; or

(b) if he or she is not muhsan, be punished whipping numbering one hundred stripes, at a public place, and with such other punishment, including the sentence of death, as the Court may deem fit having regard to the circumstances of the case.

(4) No punishment under sub-section (3) shall be executed until it has been confirmed by the Court to which an appeal from the order of conviction lies; and if the punishment be of whipping until it is confirmed and executed shall be dealt with in the same manner as if sentenced to simple imprisonment.

  1. Punishment for zina or zina-bil-jabr where convict is an adult.

A person guilty of zina or zina-bil-jabr shall, if he is not an adult, be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both, and may also be awarded the punishment of whipping not exceeding thirty stripes:

Provided that, in the case of zina-bil-jabr, if the offender is not under the age of fifteen years, the punishment of whipping shall be awarded with or without any other punishment.

  1. Proof of zina or zina-bil-jabr liable to hadd.

Proof of zina-bil-jabr liable to hadd shall be in one of the following forms, namely:-

(a) the accused makes before a Court of competent jurisdiction a confession of the commission of the offence; or

(b) at least four Muslim adult male witnesses, about whom the Court is satisfied, having regard to the requirements of tazkiya al-shuhood, that they are truthful persons and abstain from major sins (kabair), give evidence as eye-witnesses of the act of penetration necessary to the offence:

Provided that, if the accused is a non-Muslim, the eyewitnesses may be non-Muslims.

Explanation:- In this section “tazkiya-al-shahood” means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness.

  1. Case in which hadd shall not be enforced.

(1) In a case in which the offence of zina or zin-bil-jabr is proved only by the confession of the convict, hadd, or such part of it as is yet to be enforced, shall not be enforced if the convict retracts his confession before the hadd or such other part is enforced.

(2) In case in which the offence of zina or zina-bil-jabr is proved only by testimony, hadd or such part of it as is yet to be enforced, shall not be enforced, so as to reduce the number of eyewitnesses to less than four.

(3) In the case mentioned in sub-section (1), the Court may order retrial.

(4) In the case mentioned in sub-section (2), the Court may award tazir on the basis of the evidence on record.

  1. Zina or zina-bil-jabr liable to tazir.

(1) Subject to provisions of section 7, whoever commits zina or zina-bil-jabr which is not liable to hadd, or for which proof in either of the forms mentioned in section 8 is not available and the punishment of qazf liable to hadd has not been awarded to the complainant, for which hadd may not be enforced under this Ordinance, shall be liable to tazir.

(2) Whoever commits zina liable to tazir shall be punished with rigorous imprisonment for a term which [may extend to] ten years and with whipping numbering thirty stripes, and shall also be liable to a fine.

(3) [Subject to sub-section (4), whoever] commits zina-bil-jabr liable to tazir shall be punished with imprisonment for a term which shall not be less than four years nor more than twenty five years and shall also be awarded the punishment of whipping numbering thirty stripes.

(4) When zina-bil-jabr liable to tazir is committed by two or more persons in furtherance of common intention of all, each of such person shall be punished with death.

  1. Kidnapping, abducting or inducing women to compel for marriage, etc.

Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she will be forced or seduced to illicit inter-course, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes, and shall also be liable to fine; and whipping not exceeding thirty stripes, and shall also be liable to fine; and whoever by means of criminal intimidation as defined in the Pakistan Penal Code, or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit inter-course with another person shall also be punishable as aforesaid.

  1. Kidnapping or abducting in order to subject person to an unnatural lust.

Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected, to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with death or rigorous imprisonment for a term which may extend to twenty five years, and shall also be awarded the punishment of whipping not exceeding thirty stripes.

  1. Selling person for purposes of prostitution, etc.

Whoever sells, lets to hire, or otherwise disposes of any person with intent that such person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any time be employed or used for any such purpose, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes, and shall also be liable to fine.

Explanation:-

(a) When a female is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she be used for the purpose of prostitution.

(c) For the purposes of this section and section 14 “illicit intercourse” means sexual intercourse between persons not united by marriage.

  1. Buying person for purposes of prostitution, etc.

Whoever buys, hires or otherwise obtains possession of any person with intent that such person shall at any time be employed or used for the purposes of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or for knowing it to be likely that such person will at any time be employed or used for any such purpose, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes, and shall also be liable to fine.

Explanation:- Any prostitute or any person keeping or managing a brothel, who buys, or hires or otherwise obtains possession of a female shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution.

  1. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage.

Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit with him in that belief, shall be punished with rigorous imprisonment for a term which may extend to twenty-five years and with whipping not exceeding thirty stripes, and shall also be liable to fine.

  1. Enticing or taking away or detaining with criminal intent a woman.

Whoever takes or entices away any woman with intent that she may have illicit intercourse with any person, or conceals or detains with intent any woman, shall be punished with imprisonment of either description for a term which may extend to seven years and with whipping not exceeding thirty stripes, and shall also be liable to fine.

  1. Mode of execution of punishment of stoning to death.

The punishment of stoning to death awarded under section 5 or section 6 shall be executed in the following manner, namely:-

Such of the witnesses who deposed against the convict as may be available shall start stoning him and, while stoning is being carried on, he may be shot dead, whereupon stoning and shooting shall be stopped.

  1. Punishment for attempting to commit an offence.

Whoever attempts to commit an offence punishable under this Ordinance with imprisonment or whipping, or to cause such an offence to be committed, and in such attempt does any act towards commission of an offence, shall be punished with imprisonment for a term which may extend to one-half of the longest term provided for that offence, with whipping not exceeding thirty stripes, or with such fine as is provided for the offence, or with any two of, or all the punishments.

  1. Application of certain provisions of Pakistan Penal Code, and amendment.

(1) Unless otherwise expressly provided in this Ordinance, the provisions of section 34 to 38 of Chapter II, sections 63 to 72 of Chapter III and Chapters V and VA of the Pakistan Penal Code, shall apply, mutatis mutandis, in respect of offences under this Ordinance.

(2) Whoever is guilty of the abetment of an offence liable to hadd under this Ordinance shall be liable to the punishment provided for such offence as tazir.

(3) In the Pakistan Penal Code,

(a) section 366, section 372, section 373, section 375 and section 376 of Chapter XVI shall stand repealed; and

(b) in section 367, the words and comma or to the unnatural lust of any person, shall be omitted.

  1. Application of Code of Criminal Procedure 1898 and amendment.

(1) The provisions of the Code of Criminal Procedure, 1898, hereafter in this section referred to as Code, shall apply, mutatis mutandis in respect of cases under this Ordinance:

Provided that, if it appears in evidence that the offender had committed a different offence under any other law, he may, if the Court is competent to try that offence and award punishment therefor, be convicted and punished for that offence.

Provided further that an offence punishable under this Ordinance shall be triable by a Court of Sessions and not by a Magistrate authorized under section 30 of the said Code and an appeal from the order of the Court of Sessions shall lie to the Federal Shariat Court:

Provided further that a trial by a Court of Sessions under this Ordinance shall ordinarily be held at the headquarters of Tehsil in which the offence is alleged to have been committed.

(2) The provisions of the Code relating to the confirmation of sentence of death shall apply, mutatis mutandis, to confirmation of sentence under this Ordinance.

(3) The provisions of section 198, section 199, section 199A or section 199B of the Code shall not apply to the cognizance of an offence punishable under section 15 or section 16 of the Ordinance.

(4) The provisions of sub-section (3) of section 391 or section 393 of the Code shall not apply in respect of the punishment of whipping awarded under this Ordinance.

(5) The provisions of Chapter XXIX of the Code shall not apply in respect of punishments awarded under section 5 or section 6 of this Ordinance.

(6) In the Code, section 561 shall stand repealed.

  1. Presiding Officer of Court to be Muslim.

The Presiding Officer of the Court by which case is tried, or an appeal is heard, under this Ordinance shall be a Muslim.

Provided that, if the accused is a non-Muslim, the Presiding Officer may be a non-Muslim.

  1. Saving.

Nothing in this Ordinance shall be deemed to apply to the cases pending before any Court immediately before the commencement of this Ordinance, or to offences committed before such commencement.

This legislation has played havoc with the lives of women in Pakistan due to the inherent flaws and lacunas in the text, and because it has been applied in bad faith by prosecuting lawyers, both public and private. The National Commission on the Status of Women, a statutory body of the federal government of Pakistan, has recognized this fact in that 80% of women languishing in jails are there as a result of the ambiguities in this legislation with regards to adultery, rape, kidnapping and abduction.

Rape is endemic in Pakistan. The 2002 annual report of the Human Rights Commission of Pakistan observes that ‘one woman is being raped every two hours, and one woman is gang-raped every eight hours’ Most of the cases go unreported because of social taboos and the stigma that the wretched act carries against a woman. For those who do come forward, they face immense legal and administrative obstacles to having their cases heard.

The Commission recently assigned a Special Committee, consisting of judges, lawyers and Islamic scholars, , among whom the author was a member, to review the Hudood Laws. The Special Committee has taken serious exception to the lacunas, abuse and flawed application of the legislation and has made recommendations that would bring about radical changes in the statute, and make it inapplicable to non-Muslim citizens of the State. Some areas of the Ordinance that the Special Committee took particular exception to are as follows.

Under the Ordinance, sexual intercourse is adultery whether it is with or without the consent of a woman who is not married with a man. The result has been that whenever a woman has complained of rape, particularly if coming from a village, she has been roped into the offence. Her statement that she has been engaged in sexual intercourse has been treated as a confession allowing her to be charged with the offence of zina. At the same time, it is virtually impossible for her to prove that she was raped, and did not engage in the sexual act voluntarily, because section 8 of the Ordinance requires evidence of at least four adult male Muslim eye witnesses who have physically seen the act of penetration. But the matter does not end here. The credibility of the witnesses has to be measured and tested in the light of the Islamic principle ‘tazkiya tu shahood’ which requires a witness to be a person who abstains from major sins as described under the injunctions of Islam.

Pregnancy is considered to be absolute proof of having committed the offence. Jehan Mina, a 15-year-old, was sentenced to 100 stripes after she was found to be pregnant. Her two male relatives had raped her. The Federal Shariat Court, while taking a ‘charitable view’ reduced the number of stripes to 10. Safia Bibi’s case brought shame to the whole nation when the world media flashed the news. Safia Bibi is blind, and so she was unable to identify her rapist, and thus was sentenced as her pregnancy served as absolute proof against her. Ironically, the judgement records that ‘taking a lenient view due to Safia Bibi’s blindness, she is sentenced to 30 stripes only’ Fahmida was the first woman who was sentenced to 100 stripes along with Allah Bakash, who was awarded punishment of death by stoning.

Zafran Bibi was sentenced to death by stoning for committing the offence of zina in April 2002. This is another case that embarrassed all, including the state functionaries, as the world media once again exposed the shameful situation for women in Pakistan. The female victim was sentenced but the male accused was acquitted for lack of evidence. According to Zafran Bibi, her brother-in-law Jamal Khan repeatedly raped her while her husband Niamat Gul was in jail. Her pregnancy again amounted to ‘evidence’ of her crime. Her father-in-law Zabta Khan lodged the report but in order to save his other son he accused a neighbour, Akmal Khan, of the offence.

This Ordinance also creates a gender imbalance, as the age for criminal liability is 18 for a male and 16 for a female, or if on attaining puberty. The rationale adopted by the authors of the Ordinance may have been that girls develop earlier than boys. But an essential ingredient in the commission of an offence is the intent to commit the offence. How can a girl of 11 or 12 years, having attained puberty, be expected to understand the implications of adultery, or rape, if enticed away and abused?

There is a difference of opinion among Muslim scholars on the punishment of hadd. Most agree that Hadd is punishment as provided in the Holy Quran. However, a few maintain that—and the Ordinance follows this argument—’Sunnah’ (the practice of the Prophet) is also a source of law upon which such punishment can be given. The punishment of stoning to death for adultery has been drawn not from the Holy Quran but from the Sunnah. Therefore this debate is very crucial for the determination of this punishment, which underpins the whole Ordinance. Likewise, the offence of zina-bil-jabr has been derived from the Sunnah, as the offence of rape is not mentioned in the Holy Quran.

Religious minorities have been hard-pressed under the rigours of this law, on which even Muslim scholars are in disagreement, particularly with regards to marriage. The concepts of marriage and divorce among the citizens of other religions are not the same as Muslims. Polygamy is allowed in Islam whereas other religions strictly forbid it. Some provisions of the Divorce Act applicable to minorities are in conflict with the Ordinance. Yet, section 1(2) of the Ordinance says that it shall extend to whole of Pakistan, and section 3 declares that its provisions shall have effect notwithstanding anything contained in any other law for the time being in force. These provisions are repressive, arbitrary and discriminatory, as despite being based on the Injunctions of Islam (as set out in the Holy Quran and Sunnah), they have been imposed on non-Muslim citizens as well.

All laws are subject to the Constitution of the Islamic Republic of Pakistan. Whereas article 227 of the Constitution provides that all existing laws shall be brought in conformity with the Injunctions of Islam, however, article 227(3) has declared that, “Nothing in this Part shall affect the Personal Laws of non-Muslim citizens or their status as citizens.” Therefore, the provisions of the Ordinance overriding other statutes offend the spirit of the Constitution. It may be recalled that in 1991 a federal statute was promulgated whereby Islamic Shariah became the supreme law of the land. Section 1(4) of the Enforcement of Shariah Act lays down that, “Nothing contained in this Act shall affect the Personal Laws, religious freedom, traditions, customs and way of life of the non-Muslims.” Therefore this law that has subjected non-Muslims to repression and discrimination for the last 24 years should be invalidated on these grounds alone.

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