Hudud Ordinances


The Hudud Ordinances are laws in Pakistan enacted in 1979 as part of the Islamisation of Pakistan by Muhammad Zia-ul-Haq, the sixth president of Pakistan. It replaced parts of the British-era Pakistan Penal Code, adding new criminal offences of adultery and fornication, and new punishments of whipping, amputation, and stoning to death. After much controversy and criticism parts of the law were extensively revised in 2006 by the Women's Protection Bill.
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 and sunnah for zina, qazf, theft, and consumption of alcohol. The system provided for two kinds of offences — hadd and tazir — with different punishments to go with them. Hadd offences require a higher standard of proof than tazir and their punishments are more severe.
The zina provisions of the law were particularly controversial and critics alleged that there were "hundreds of incidents where a woman subjected to rape, or even gang rape, was eventually accused of zina" and incarcerated. In 2006 the laws were updated, excusing such women who failed to prove the rape.

Ordinances

The ordinances follow the classical mainly Hanafi jurisprudence doctrine. One non-classical feature is that Hadd punishments can only be carried out after an appeal to the Federal Shariat Court 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.
Under the ordinances, tazir punishments often involve flogging.

Offences Against Property (theft) ordinance

Officially known as "The Offences Against Property Ordinance."
  • 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
  • *from a place where the property was protected.
  • *evidence must be from a confession by the accused, or at least two Muslim adult male witnesses who are `tazkiyah-al-shuhood`,.
  • 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.
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 Ordinance " refers to fornication, adultery and zina bil jabbar. The most controversial of the four ordinances, 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
  • 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 ". 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 provision of the Hudood Ordinance which uses circumstantial evidence.
The ordinance also abolished Pakistan's statutory rape law.
The 2006 Act has now removed zina bil jabbar from the Zina Hudood Ordinance and inserted sections 375 and 376 for Rape and Punishment respectively in the Pakistan Penal Code to replace it.

Qazf (false accusation of fornication or adultery) Ordinance

Officially known as: "The Offence of Qazf Ordinance of 1979". It described the offence of false accusation of Zina either written, verbal or "by visible representations", with intent to cause harm, and without producing four witnesses in support of the accusation before the Court, or who "according to the finding of the Court", a witness has given false evidence of the commission of zina or rape, or when a complainant has made a false accusation of rape;
  • 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 testify that the defendant committed qazf.
  • 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 Order of 1979", described the offence of producing, importing, selling, owning, possessing or consuming alcohol.
  • 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 :
  • *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, 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.
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, the ordinance made it dangerous to file rape charges as the women could be punished under tazir if they 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. In 2004, eighty-eight of the two hundred and forty-six women held at the Karachi Central Jail were held under the Hudood Ordinance's Zina laws all most all the women were working class, factory and domestic workers, and almost all were there because of a complaint filed by a family member saying they had committed Zina.

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.
A woman alleging rape was Initially required to provide eyewitnesses of good standing and moral character 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 principle, the failure to find such proof of the rape does not place the woman herself at risk of prosecution. According to Mufti Taqi Usmani, who was instrumental in the creation of the ordinances:
If anyone says that she was punished because of Qazaf 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 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 to shut this door.

A number of international and Pakistani human rights organisations argue that Hudood Ordinance goes beyond what is required by sharia. They are opposed by right wing religious parties, who accuse them of departing from Islamic values.
Furthermore, the ordinance became a tool of misuse to quell and compromise women’s fundamental rights.