Hudood Ordinance

By T H Shah

Hudood Ordinance has been matter of great debate in religious as well as liberal political circles of Pakistan. Its advocates keep in mind the Islamization of Pakistani society in tripartite sense i.e. social, political and economic, while the opponents of hudood ordinance are adamant upon its extermination for irrelevance to the crux of jurisprudence and socio-economic milieu of the state of Pakistan. The advocates of Hudood Ordinance opine the creation of Pakistan as a result of an ideology characterized by Islam, and the phenomenon was not at all ignored in the past constitutional developments. That is why every abrogated constitution of Pakistan emphasizes the Islamization of Pakistani society. Hudood Ordinance is the creation of an orthodox mind-set and flouts the very crux of jurisprudence as opined by modernist scholars & parliamentarians.

Introduction

Hudood Ordinance was promulgated in the country in 1977 (12 th Rabi-ul-Awal 1399) under the aegis of military regime. The word ‘Hud’ implies the punishment prescribed in the light of Holy Quran and Sunnah. Following is the text of Hudood Ordinance.

1) According to the Hudood Ordinance, preparation, transportation & use of liquor/wine were prohibited and were considered a culpable crime throughout Pakistan. Any person found guilty of the said crime would be liable to thirty lashes and five years imprisonment.

2) The second Hudood Law relates to the crime of theft. It states that if a person commits a crime of theft, his right hand would be amputated. If he commits the same crime second time, his left hand would be amputated. The habitual thief was to be awarded life imprisonment.

3) The third Hudood Law is meant for adultery. According to this law if a person, man or woman, indulges in an act of adultery, he or she would be stoned to death. The act of stoning the adulterer would be initiated by the first eye-witness. The culprit will, then, be shot dead. The law has been enacted in the light of Islamic spirit.

Opinions of Advocates of Hudood Ordinance

Those who framed the ordinance refer following verses of “The Holy Quran”

“And whoso judge not by that which Allah has sent down, these who are the disbelievers”(Al-Maidah 45)

“Judge between them by which Allah has revealed” (Al-Maidah 49)

Hudood Ordinance is mainly concerned with the system of Islamic punishment quite different & distinct from other systems of punishment in western society. The advocates of Hudood Ordinance say that “the sole object of Islamic System of Punishments is an establishment of civilization the hallmark of which is the dignity of man, racial extermination and supremacy of justice. This ideal

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scheme of thing can be realized in an Islamic society. Only Islamic society can guarantee such type of civilization.”Renowned Western scholar, Emerson writes in his collection of essays that “The true test of civilization is not the census, nor the size of cities, nor the crops-no, but the kind of man the country turns out.” They add that “European society is based on the system of Roman and Catholic Law, The superficial analysis designates this society to the level of high development, but this Roman & Catholic System of Law has not been able to bless the Western people with the spiritual sense.” Moreover they say that “Westerns has big cities, technologically, they are up to the high mark and are visibly marked by great affluence, but all this progress is barren and sham. It is materialistic and adventitious. The real advance is in respect to the progress and growth. It is not to turn out a sophisticated gadget but a complete human being. Westerns are well expert in the use of fork and knife, showing refinement and elegance; they know how to conduct table-talk, and how to pick up all the odds and ends of a trivial and flaccid routine, but no amount of outer refinement can dress the moral and spiritual vacuum which is their inevitable predicament because physical-sophistication is a moral under-sophistication. On the other hands, the penal laws of Islam meant not only for outer-refinement, but inner-refinement as well. In brief, we can say that social refinement is the aim the Islamic System of Punishment want of pursue”

The advocates of Hudood Ordinance also opine that Hudood laws are the laws of God and can not be rescinded or amended by any human effort. They argue in the light of following verse of the Holy Quran.

“These are the commandments (Huds) of Allah, do not exceed them”

“These are the commandments (Huds) of Allah, do not touch them”

In Arabic the word ‘Hud’ implies to ‘stop’ ‘restrict’ ‘curb’ or ‘to limit’ the watch door is termed as ‘Hudaad’ as he stop other from entering the home. These commandments are called ‘Hudoods’ as they are safeguard against sins, and these can not be violated at any cost because of having Quranic base.

Opinions of Opponents of Hudood Ordinance

The opponents of Hudood Ordinance flout it on following grounds:

1. Socio-economic structure: Is it possible to enforce Hudood Ordinance in the present socio-economic structure of Pakistan? To understand the nature of this phenomenon, it is imperative to know the aims of Islamic teachings. The prime objective of Islamic teachings is to create a society guaranteeing the development of human personality. It is not development that wealth concentrate in the hands of the few and large fraction of population die of hunger and poverty. Islam aims at creating such society where social justice prevails, and no one can go scot-free of the clutches of law on account of any privileged status. Keeping in mind the rate of crimes, violations of human rights like honor killings, corruption and nepotism as well as growing poverty we can not forebode well the imposition of Hudood Ordinance in the country. Say the Prophet Hazrat Muhammad (S.A.W) Lo! Poverty and penury may lead you to apostasy. In the days of second Caliph Hazrat Umer Bin-al-Khatab, famine broke out in the Arabian Peninsula. The rightly guided Caliph the enforcement of Hud punishment for Sariqa (theft) because in the circumstances, the state was unable to provide economic security to the citizens. Therefore, state was not in its right to award a punishment for which provision of economic security was pre-requisite.

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The decision of the Hazrat Umer Bin-al-Khatab was completely in sync with the spirit of the Holy Quran. As Quran says, “Do you, then, believe in part of the Book and disbelieve in part? There is, therefore, no reward for such among you as do this, except disgrace in the present life and on the Day of Judgment, they shall be driven to a most severe chastisement” Al-Baqarah If not its complete abolition, it can be amended in the light of suggestions put forward by lawyers, judges, intellectuals and political activists.

Opinion of the Intellectuals

2. Dr. Farzan Bari, Director Centre for Women Study Quaid-e-Azam University Islamabad, opines that “The Hudood Ordinance which equates rape with Zina (Adultery), demands rape victim to bring four witnesses-pious Muslim men to prove the crime against them, excludes a non-muslim witness and a woman in case of Hud, and treats even a ten years old female child as adult on the basis of her reaching puberty, has created a havoc in the lives of poor women. These laws were introduced in the name of Islamisation, which was the political project of a military dictator Ziaul Haq who initiated the process in order to legitimize its own illegitimate rule. His regime had done a major disservice to Islam by introducing this un-Islamic piece of legislation in the name of Islam that had brought a bad name and defamed Islam wrongly as retrogressive and anti-women religion. All those who claim the Hudood Ordinance of 1979 as law of Allah clearly have political motives and are conspiring against Islam. We need to expose such self-proclaimed religious leaders whose retrogressive interpretation of Islam is only to promote their own vested interests”

3. Parveen Parvez, a lawyer at Karachi City Court, says that, “This law is mostly used for revenge. Most cases are registered by parents against their daughters who have married of their own choice, or husband whose wives re-marry after divorce”

Maulana Moudoodi, a renowned scholar of Jammat-i-Islami while commenting upon the system of Islamic Punishment says that,

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Technical faults in Hudood Ordinance

Following are the technical faults in Hudood Ordinance:

1. Hudood Ordinance designates rape with equal level of adultery which is quite anti-Quranic. Because the girls who are raped are also imprisoned in our jails under Zina laws.

2. Former Chief Justice of Federal Shariat Court opines that “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 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 percent”

3. “Two sets of punishment 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 us thus excluded by default. So if a crime is committed in a place where there are only women, the rapist or thief can not be brought to justice, because the only witnesses are women. Are they trying to say that Islam does not recognize women as witness, when the murderers of Hazrat Usman were caught on the evidence of just one woman?” (Justice Majida Rizvi)

4. The Hudood Ordinance could not produce the desired results, for substantiation, read this paragraph of the 1997 Report of Commission of Inquiry for Women, “The 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 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”

5. The word Hadd has been misinterpreted under Hudood Ordinance as the word “Hadd” occupies special and specific meaning in the light of Quran and Sunnah of Holy Prophet Muhammed (SAW).According to the theologians, Hadd is applicable only on a habitual culprit. It means that before applying Hadd, the culprit may be subjected to some other kind of punishment.

6. Hudood Ordinance is also defected from the perspective of difference between Hudood punishments and the punishments granted under the penal law of the country. The framers of Hudood Ordinance did not ponder on the difference between the two.

7. The definition of “Mohsin, Ehsan” in Hudood Ordinance is not in accordance with the Islamic spirit. Because the definition of “Mohsin or Ehsna” does not fulfill the criterion made compulsory by Islam. The definition of these terms altered in accordance with the criterion of Islamic theology.

8. Hudood Ordinance is equally applicable on Non-Muslim community within the state which is inappropriate. In the matters of adultery, Non-Muslims should be treated according to their own Personal Law. Once a Jews man and woman committed adultery. They brought their case before the Prophet of Allah in the hope of finding easiness in Islam. The Prophet of Allah asked them of the punishment of the committed crime in their own religion. When ‘Torah’ was brought, it stated the punishment of ‘Rajam’. The Prophet of Allah decreed his decision according to ‘Torah’. It clearly states that Hudood Ordinance can not be applied on Non-Muslims or blasphemers.

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9. The phenomenon of ‘Rajam’ is also a controversial in Hudood Ordinance, as Rajam is not proved by Holy Quran. It demands a comprehensive debate on the part of religious scholars.

Political Activists Opionios

a) “The Pakistan People’s Party (PPP) has submitted a private member’s resolution in the Senate declaring the punishments prescribed under the Hudood Ordinance 1979 for adultery as un-Islamic. Senator Babar said the PPP resolution stated that, “This house is of the view that while Islam prescribes Hadd punishments for certain offences, the punishments prescribed under the Enforcement of Hudood (Punishment for Zina) Ordinance 1979 is un-Islamic”

b) Asma Jahangir opines that, “Since the law came into effect, thousands of women have gone to jail---all across the country. Before there hardly any women seen in jail. Women marrying without the consent of their parents are also liable to having Zina charges brought against them. One such example is the case of Azra Parveen, whose father complained to the police that his daughter was living with a man, Arif Hussain, without being married to him. Both the accused claimed that they were married and produced a nikahnama. Despite that, the trial court awarded them ten years imprisonment and thirty stripes. After one year of imprisonment, both the accused were acquitted on appeal. (PLD 1982 FSC 42) She adds, “Clearly, there is a particular section of the social strata which has been most persecuted as a result of Hudood laws, and that is the most magnificent one. Of the women who have been affected, 99.9 percent are from poor classes. A woman gets stigmatized once Zina charges are brought against her. Interestingly, most cases of women being charged in court as per the Hudood Ordinance are from urban areas”

Editorials on Hudood Ordinance

Hudood Laws

After having reached an agreement over the Legal Framework Order (LFO) with the MMA, the government appears to be least interested in issues that may antagonise the mullahs, in whom it has found a "friendly opposition". It was perhaps against this backdrop that no government functionary was available to even chair the launching ceremony of the report published by the National Commission on the Status of Women (NCSW), which recommends repeal in Toto of the controversial set of Hudood laws. Although the commission publicized its recommendations a few months back, it was only on January 22, 2003 that it formally released its detailed report, but without much fanfare, as the government clearly distanced itself from the otherwise high-profile commission. Created in July 2000 as a revolutionary step to promoting the cause of the otherwise socially and economically marginalized half of the population, the commission now seems to have lost its utility for the military-backed government amid a consonantly changing political expediency.

According to the NCSW report, 12 of the 15 members of the commission have advocated for the abolition of the Hudood laws that were enacted by the late dictator Gen Ziaul Haq as part of his drive to Islamize the polity. Only two members of the commission recommended that these laws should be fine tuned with a view to removing the lacunae they contain. The findings of the commission, comprising experts from various social and legislative fields, however, leaves little doubt that the two-decade old Islamic laws are flawed and discriminatory against women.

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According to the commission, these laws have promoted injustice rather than justice — the basic purpose of any legislative measure. It is this discriminatory nature of these laws that the rights groups in Pakistan and internationally have been agitating against since their enactment. However, the influence of clergy has obstructed efforts in the past to repeal or amend these laws.

Once against it is likely that the NCSW recommendations, which are reached after laborious research and investigations, will meet the same fate as similar such proposals in the past. The MMA has understandably registered its opposition to any move to repeal a law that it says is divine, while the government has yet to make its position clear on its future course of action with regard to the NCSW proposals. But this does not augur well for a government that has taken upon itself to transform Pakistan into a modern, forward-looking state. The government must state its position on Hudood laws, present the NCSW recommendations in the Parliament and let the vote determine the ideological divide. Political compulsions must not be allowed to dictate the government action, but the interest of the women. The News Tuesday January 27, 2004-- Zil Haj 04, 1424 A.H.

The News: July 13, 2004-- Jamadi-ul-Awwal 24, 1425 A.H.

An important step

Prime Minister Chaudhry Shujaat Hussain has ruled out any hasty decision regarding amendments in the Hudood Ordinance. Addressing a conference of mashaikh and ulema in Islamabad, the prime minister said the amendments would be incorporated in the ordinance after due consultation with the Council of Islamic Ideology. He said that the law ministry had sent him a draft law amending the ordinance but he has directed that the cabinet after considering it should send it to the Council of Islamic Ideology before it is finally approved. The views of the ulema and mashaikh should also be taken into consideration in this regard.

The prime minister’s decision to send the draft of the amended ordinance to the Council of Islamic Ideology is a highly significant step. It would be appreciated in the political and religious circles mainly because in view of the sensitive nature of the law, the government has sent it for advice by the Council, which has representation from all schools of thought. It is hoped that the Council will consider this draft from various angles while examining it in the light of the Holy Quran and the Sunnah. The Islamic principle of ijtihad would also be kept in view while assessing it from various angles. The council should also make arrangements for wider consultation on it while making its final recommendations.

The present government needs to be commended as through this action it has proved that in its 45 days rule, it does not want to unilaterally impose any decision from above on the people. The Council of Islamic Ideology was established in the 1973 Constitution to meet the requirement of examining all laws of the country with a view to determine weather these did not go against the spirit of the Holy Quran and the Sunnah. The process was to be based on consultation among the ulema and experts in Islamic jurisprudence, and by arriving at mutual understanding amongst all schools of Islamic thought. Unfortunately the army rule that followed only four years after the promulgation of the constitution saw promulgation of laws according to whims and fancies. The result was obvious: the aims and objectives of the Islamic Ideology Council could not be enforced in this ten-year period, as also till today.

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It is high time that we seriously make an effort to amend these laws keeping in view the principle stated above. This requires a cool, scholarly consideration of these amendments in the light of Islamic principles. Man-made laws can never be the last word on any issue. Muslim scholars and aaiymah from distinguished Islamic fiqah have provided us with guiding principles in the light of Islamic traditions for meeting the challenges of the times through ijtihad and ijma. We should utilize these principles in assessing these laws. Mere slogans and demagogic stances would not achieve the purpose.

Identification of problem

1 The concept of hadood is getting complicated phenomena in present scenario. First of all we should clarify our mind as far as the concept of hadood law and hadood ordinance is concerned. There is a great difference between the hadood ordinance and hadood laws. Hadood laws are those laws which are given in the Quran regarding Hud.Hud is a settled boundary settled by Quran which restrict some practices against islam. Contrary t o that Hadood ordinance is some thing which is man made .Basically it is a set of laws and penalties enforced by Military regime of General Zia Ul Haq on Feburary 10, 1979.this ordinance was given constitutional protection later on in 1985. The general impression is this that hudood laws and hadood ordinance is the same thing.

Starting in 1983, with the Zari Sarfraz Commission, a number of Commissions and Review Committees had examined and critiqued these laws. The Commission of Inquiry on Women, headed by Justice Nasir Aslam Zahid, had recommended the repeal of the Hudood Ordinances in 1997. No action was taken on any recommendation. In 2002, the National Commission on the Status of Women constituted a Committee to re-examine these laws with a view to (1) determine whether or not these Ordinances ought to be repealed; and (2) determine whether or not these Ordinances could be improved through amendments.

The Hudood Laws were promulgated by Gen. Zia-ul-Haq to introduce punishments of Hadd in criminal law of the country in order to bring it in conformity with the Injunctions of Islam as set out in the Holy Quran and Sunnah. These laws included, I. The Offence of Zina (Enforcement of Hudood) Ordinance 1979.II. The Offences against Property (Enforcement of Hudood) Ordinance, 1979.III. Prohibition Enforcement of Hadd Order IV 1979.IV. The Offence of Qazf (Enforcement of Hudood) Ordinance 1979.V. The Execution of the Punishment of Whipping Ordinance 1979.1. In each of four penal laws, with the exception of a couple of provisions about Hadd punishment, the rest of the provisions in the form of 'tazir' are practically the same as those existed in the Pakistan Penal Code. If the objective was to provide Hadd punishments to certain offences, those could have been introduced in the Pakistan Penal Code which was abundantly amended for introducing Arabic names of already mentioned offences in the said Code. Thus the very promulgation of these laws is misconceived.2. These laws were supposedly made to Islamise the Pakistan society, which function the military ruler had taken upon himself. He wanted to provide Muslim citizens an Islamic way of life. And in the process of lslamisation, he adopted administrative and legislative measures in an arbitrary, undemocratic anti sectarian level. Ironically enough these provisions and the Islamic punishments were also made applicable to non-Muslim citizens of the country. This is extremely-unjust. The minorities have been consistently raising, their voice .against the application of a Shariah to which they do not belong.

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The argument advanced in favour of application' of these laws to non-Muslim citizens, is that these provisions, since are public law, therefore are supposed to be applicable to all citizens irrespective of creeds or religion. This argument is fallacious and untenable as the declared base and foundation of this law is religiously sectarian. Application of Hudood laws on non-Muslim citizens of Pakistan tantamount to Section No .8 drinking liable to hadd. Whosoever being an adult Muslim takes intoxicating liquor by mouth is guilty of drinking liable to hadd and shall be punished with whipping numbering eighty stripes:

Provided that punishment shall not be executed unless it is confirmed by the Court to which an appeal from the order of conviction lies; and, until the provisions of the Code of Criminal Procedure, 1898, relating to the grant of bail or suspension of sentence, be dealt with in the same manner as if sentenced to simple imprisonment.

3. The Offences of Qazf (Enforcement of Hudood) Ordinance, 1979.Section 6. Proof of qazf liable to hadd shall be in one of the following forms namely:(a) the accused makes before Court of competent jurisdiction a confession of thecommission of the offence;(b) the accused commits qazf in the presence of the Court; and(c) at least two Muslim adult male witnesses, other than the victim of the qazf,about whom the Court is satisfied, having regard to the requirements oftazkiyah al-shudood, that they are truthful persons, and abstain from major sins(knbair), give direct evidence of the commission of qazf:Provided that, if the accused is a non-Muslim, the witnesses may, be non-Muslim:Provided further that the statement of the complainant or the person authorized by him shall berecorded before the statements of the witnesses are recorded.The aforementioned provisions are not only highly discriminatory against women andminorities but are simply outrageous, opposed to fundamental rights and in flagrantviolation of International Declaration of Human Rights which has been ratified by ourState.Since these Ordinances are based on Islamic Shariah, the framers of the laws wereparticular about maintaining the Islamic character of the Courts which would be vestedwith the jurisdiction to adjudicate such matters as are covered by the Ordinances.However, this objective to maintain the Islamic character of Courts has seriously prejudiced thestatus of Non-Muslim citizens. This would be evidenced by the reproduced provisions of theseOrdinances.4. The Offences of Zina (Enforcement of Hudood) Ordinance 1979.Section 21. Presiding Officer of Court to be Muslim. The Presiding Officer of the Courtby 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. Thetheoretic approach, that is totally opposed to the concept of the founder of the State ofPakistan.The provisions of these Laws are highly discriminatory against women and minorities ofthis country. The standard of evidence required for the proof of offences as laid down inthe provisions of these Ordinances has been especially provided, in the form of 'TazkiyaAI-Shuhood which mean the mode of inquiry adopted by a court to satisfy itself as to thecredibility of a witness. The text of the relevant provisions of these Ordinances is givenhereunder which would eloquently speak of being unjust, discriminatory on the basis ofgender and religion.The Offiences of Zina (Enforcment of Hudood) Ordinance 1979."Section 8. Proof of Zina or Zina-bil-Jabr liable to Hadd. Proof of zina-bil-jabr

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liable to hadd shall be in one of the following forms, namely;(a) the accused makes before Court of competent jurisdiction a confession of theoffence; or(b) at least four Muslim adult male witnesses, about whom the Court is satisfied,having regard to the requirements of tazkiyah al-shuhood, that they are truthfulpersons and abstain from major sins (kabair), give evidence as eye-witnessesof the act of penetration necessary to the offence:Provided that, if the accused is a non-Muslim, the eye witnesses may be non-Muslims.Explanation.-In this section "tazkiyah al shuhood" means the mode of inquiry adoptedby a Court to satisfy itself as to the credibility of a witness.5. The Offences Against Property (Enforcement of Hudood) Ordinance, 1979."Section 7 Proof of theft liable to hadd. The proof of theft liable to hadd shall be inone of the following forms, namely;(a) the accused pleads guilty of the commission of theft liable to hadd, and(b) at least two Muslim adult male witnesses, other than the victim of the theft,about whom the Court is satisfied, having regard to the requirements oftazkiyah al-shahood, that they are truthful persons and abstain from major sins(kabair), give evidence as eye witnesses of the occurrence:

Provided that, if the accused is a non-Muslim, the eye witnesses may be non-Muslims:Provided further that the statement of the victim of the theft or the person authorisedby him shall be recorded before the statements of the eye witnesses are recorded.Explanation: In this section, tazkiyah al shahood means the mode of inquiry adoptedby a Court to satisfy itself as to the credibility of a witness.Section 25. Presiding Officer of the Court to be a Muslim: 'the Presiding Officer of theCourt by which the case is tried, or an appeal is heard, under this Ordinance shall be aMuslim:Provided that, if the accused is a non-Muslim, the' Presiding Officer mat be a non-Muslim.The Prohibition (Enforcement of Hudood) Ordinance, 1979.Section 30. Presiding Officer of Court to be a Muslim: The Presiding Officer of theCourt by which a case is tried, or an appeal is heard, under this. Order shall be aMuslim:Provided that, if the accused is a non-Muslim; the Presiding Officer may be a non-Muslim.The Offences of Qazf (Enforcement of Hudood) Ordinance, 1979.Section 18. Presiding Officer of Court be a Muslim. The Presiding Officer; of the Court bywhich a case is tried, or an appeal is heard, under this Ordinance shall be a Muslim.It would not be out of place to mention here that Non-Muslim citizens are targeted in adiscriminatory way up to the appellate level in this Shariat dispensation.The sentences passed by these Courts are appealed against in the FederalShariat Court (which too was constituted by the military ruler). The non-Muslimlawyers are ousted professionally and as citizens before the Federal Shariat Courts aswould be best evidenced by the legislative provisions reproduced hereunder:The Federal Shariat Court (Procedure) Rules 1981 Section 1 (e) "Counsel" means alegal practitioner who is a Muslim and has been enrolled as an Advocate of a High Court for aperiod of not less than five years or as an Advocate of the Supreme Court; Provided that incases often than Shariat Petitions under Article 203D, in which any of the parties is non-Muslim, an advocate who is not a Muslim may appear as counsel for the non-Muslim party.6. The provisions of these laws do not provide a just situation during trail of cases forsuch offences.

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The Ordinances do mention that if an accused is a non-Muslim, witness could be non-Muslim. But no provision has been framed about the accused belonging to differentreligions and victims also belonging to different religions. The non-Muslim citizensare victims of double jeopardy as at one hand their testimony is second rated andpunishments opposed to their own Shariah (creed) are applicable to them in anarbitrary manner on the other.6. The provisions of these laws are unjust, discriminatory and pressive against non-Muslim citizens of country. These laws particularly The Offence of Zina(Enforcement of Hudood) Ordinance 1979 are a serious invasion, against the PersonalLaw s of non-Muslim citizens of Pakistan.Ours is a feudal society. Though numerically, they fom thin minority the feudal lords possess60% of the total agriculture land of the country. The majority of the population is subjected tofeudal oppression. According to the report, of the Human Rights Commission of Pakistan, awoman is raped every two hours in Pakistan. Our daily papers in English, Urdu andregional languages provide authentic record (though not complete because ofunreported cases) about occurrences wherein women belonging to marginalizedsections of the society were subjected to rape and gang rape.Needless to emphasis that Hindus in Sindh and Christians in Punjab particularly are thepoorest victims of the application of Islamic Shariah and these Ordinances. The incidents ofabduction of Hindu and Christian women the a common feature. The perpetrators of theheinous crime in order to wriggle out of the provisions of the Offence of Zina (Enforcementof Hudood) Ordinance 1979, in a very mechanical manner manages the arrangement ofconversion to Islam of the abductee and her Islamic nikah (marriage) through a hired Muslimcleric. The Christian or Hindu woman is forcibly converted to Islam and married underIslamic Law. If she were married to Hindu or Christian, her previous marriage withHindu/Christian husband would practically stand dissolved. Why because per force, they aresupposedly Muslim now and a Muslim woman cannot have a non-Muslim husband. Thissituation also creates problem in inheritance. Why because after the so called conversion toIslam, the abductee would be governed by Islamic law. The abductee shall not be governed bythe law under which she was married or her personal law for succession or inheritance as theIslamic Shariah shall prevail to which the abductee has been freshly subjected to. Thissituation has rendered the institution of Christian marriage a fragile thing. The perpetrators ofsuch heinous crimes can easily avoid the rigors of these Ordinances merely on the plea thatthe accused is a Muslim.7. Each Ordinance provides an overriding clause that has caused serious repercussions for thenon-Muslim citizens. Section 3 of The Offences of Zina (Enforcement of Hudood) Ordinance,1979, provides as under;"3. Ordinance to override other Laws. The provisions of this Ordinance shall have effectnotwithstanding anything contained in any other law for the time being in force."And in the like manner other Hudood Laws contain such provisions. It may be stated that this overridingclause invades the Personal Laws of non-Muslims. For example section 11. of the Divorce Act of 1869, which is applicable to Christian, citizens of Pakistan provides as under;"Adulterer to be co-respondent. Upon any such petition resented by a husband, the petitioner shall make thealleged adulterer a co-respondent to the said petition, unless he is excused from so doing on one of thefollowing grounds, to be allowed by the Court:-(1) that the respondent is leading the life of a prostitute, and that the petitioner knows of no person with

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whom the adultery has been committed;(2) that the name of the alleged adulterer is unknown to the petitioner although he hasmade due efforts to discover it;(3) that the alleged adulterer is dead."And such like other provisions of law are now difficult to comply with because of the law on Zina underHudood. This is not only an oppressive situation for non-Muslim citizens but it violates the fundamental right as enshrined in Article 227 of the Constitution of Pakistan which is reproduced as under "227. Provisions relating to the Holy Quran and Sunnah :.-( I) all existing laws shall be brought in Conformity with the Injunctions of lslam as laid down in the Holy Quran and Sunnah, in this Part Referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to suchInjunctions.[Explanation.-In the application of this clause to the personal law of any Muslim sect, theExpression "Quran and Sunnah" shall mean the Quran and Sunnah as interpreted by that sect](2) Effect shall be given to the provisions of clause (1) only in the manner provided in this Part.(3) Nothing in this Part shall affect the personal laws of non-Muslim citizens or their status as citizens."The aforementioned provisions of law, inter alia are points of serious concern for the non-Muslim citizensAs the Hudood laws have had a prejudicial effect on them.I agree with the majority of the members of the Committee on the points raised on the subject during ourDeliberations as recorded in the minutes. I therefore would like to recommend repeal of the Hudood Laws.

A notable point

There is an important point enunciated by Dr. S.M Zaman, the Chairman Islamic Ideological Council of Pakistan concerning amendment or repealing of Hudood Ordinance. Following is the copy of his interview with The News

"It can't be a simple yes or no"

Dr. S.M. Zaman, Chairman Council of Islamic Ideology, sat on the special NCSW committee set up to review Hudood laws. And he has been one of the most vocal critics of the demand for the law's repeal

By Kamran Haider

NS: Aren't Hudood laws discriminatory?

S M Zaman: This is not a new question. In fact, this objection has been raised at a lot of forums which dealt with the issue of Hudood and tazeerat. The special committee set up under the National Commission on the Status of Women debated these issues at great length. It decided to hold an international meeting of Islamic scholars representing eminent scholars on it so that a solution acceptable to the majority of Muslims could be found.

Instead, the special committee decided to draw its own conclusions. The draft report of the committee, which represented the considered view of its members, was put aside.

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Finally, the chairperson of the NCSW put up one single question, as has been reported to me by a number of members who attended that session of the commission. That question was: Do you or don't you agree that the Hudood Laws should be repealed?

It can't be a simple, 'yes' or 'no'. There are a lot of grey areas around.

TNS: But doesn't the commission have the powers to make such recommendations?

SMZ: In the final analysis, the NCSW is not the body to decide whether a particular law is in accordance with Islamic injunctions.

I agree that the Ordinance 26 of 2000 which established this commission says the commission can review all laws, rules and regulations affecting the status and rights of women and suggest repeal, amendment, new legislation essential to eliminate discrimination, safeguard and promote the interest of women and achieve gender equality. But it adds that this has to be done in accordance with the Constitution.

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Now the Constitution expressly states in Article 227: "All existing laws shall be brought in conformity with the injunction of Islam as laid down in Holy Quran and Sunnah". That being the case, any recommendations or law or ordinance which is against the Islamic injunctions is invalid according to the Constitution. Articles 228 and 229 of the Constitution provide for the establishment of the Council of Islamic Ideology specifically for this purpose.

TNS: So even the parliament has no power to amend the Constitution?

SMZ: The parliament can bring about an amendment in the Constitution with a two-thirds majority. But the fact is that right now it (Article 227) is a part of the Constitution.

TNS: Are you saying that before repealing the Hudood Ordinance, the parliament will need to amend Article 227?

SMZ: I think it shouldn't be placed like this. The point is that the repeal of these ordinances will raise constitutional issues. Anybody will go to the court and say the repeal of these laws (Hudood) is against Article 227 and 2-A of the Constitution -- or even Article 2 which says Islam will be the state religion of Pakistan.

TNS: Don't you think the Hudood Ordinance should be repealed because it is widely believed that it hasn't served its purpose and has been used as a tool against women?

SMZ: How many laws in our country are serving their purpose? Laws against all sorts of crimes -- against bribery, theft -- do exist. But these crimes have been constantly on the rise. Now would you advocate that since the legislation against bribery and corruption has not worked, these laws should be repealed? The correct approach is that these provisions should be enforced, implemented effectively and causes of the failure of the implementing machinery probed.

TNS: But these laws have been used against women...

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SMZ: I don't agree with this at all. It is like the argument about the Islamic law of inheritance. For the sake of argument, let's suppose that the law of inheritance is discriminatory; should it be removed then? No.

As Muslims we know that men and women have been given specific roles and responsibilities. These have been prescribed right in the Holy Quran.

We shouldn't look at the law of inheritance in isolation. These laws are part of a whole system. In that system, for example, a woman is not responsible for the maintenance of a household at all. Even if she happens to be a millionaire, her husband can't call upon her as matter of obligation to contribute to the running of the household. It is the responsibility of the male.

The NGOs and the NCSW should work to secure for women rights granted by Allah but denied by our society.

TNS: Can't Islamic laws be amended or reviewed?

SMZ: What is ijtehad all about? It is there precisely for this purpose. But there are certain limitations. Islamic injunctions based on clear statements in the Quran or Sunnah can't be challenged. Others can be looked into and amended depending on the requirements of time.

(The writer is associated with the PFP as Director Research. He could be contacted at:tajammulhs@gmail.com)

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