The New Changes Made to the Hudood Ordinance (HDO) and its Opposition By The Religious Scholars.

Disclaimer: the following work is merely a collection and translation of different articles and therefore I take only credit in collecting the most relevant facts and opinions of other people. In the end I have given a conclusion which solely reflects my opinions and understanding of the situation.

Background

In the late 1970’s there was a popular demand by the people of Pakistan for the implementation of Islamic laws in the country. The Nizam-e-Mustafa movement was on its peak. Under such conditions General Zia ul Haq, who had just seized power in a coup, introduced certain measures that on the face were Islamic but in reality had no value.

However the hudood ordinance (HDO) was an exception because unlike other measures, that were only the brain child of General Zia or his associates, this was formed after due consultations and discussions with lawyers, judges and Ulema. Furthermore it was accepted by all the Ulemas of Pakistan belonging to different sects.

Despite its merits it was rejected altogether by the western minded sections of the society. It was criticized as a law that is oppressive towards women. The most common propaganda was that a women who has been raped needs to provide four witnesses in order to verify her claim in a court of law. The Ulema instead of answering these allegations in a logical and reasonable way started conjuring up conspiracy theories, theories that accused western nations and governments for devising ill plans against Islam. Due to their inadequate and ill timed responses the general public became convinced that the law is oppressive by nature.


The hudood ordinance at a glance

The ordinance consists of 110 articles with considerable number of sub articles. Some of crimes that are dealt with in this law are:

1. Rape or consensual extra marital sex.
2. Qazf: false accusation.
3. Blasphemy against the Prophet Pbuh.
4. Alcohol consumption.
5. Theft.

Before I go further it has become necessary to explain what Islam says about extra marital sex. The picture below clearly describes the difference between an Islamic system and other systems. In Islam families are the most basic and important units. The basic aim of most of the Islamic principles is to uphold a safe and healthy family life and safeguard family values. That is the reason why rape or consensual sex is considered as cognized offence rather than crime against individual.

Now back to our hudood ordinance. Depending upon the crime there are two types of punishments that can be executed.

1. Punishment of Hud. Hud is a term in Islamic jurisprudence that means the nature, method and magnitude of the punishment cannot be changed.
2. Taazeer: this term means that the nature, method and magnitude of the punishment can be changed and decided according to the Qazi or judge.

The Hud punishment for rape and consensual sex is death by stoning for married men and 100 lashes for unmarried men. The requirement for four witnesses is needed only for executing Hud punishment. If rape/consensual sex are proven by the means of physical evidence or less than four witnesses then the criminals can receive punishment according to Taazeer.

There are people who would criticize the need for two sorts of punishments but they are ignorant of the fact that rape is one of the crimes in the world where physical evidence has little or no implications. One such example is the stureplan case that emerged in Stockholm in 2007 and 2008 (details at the end). Furthermore a jail sentence, although has been practiced, is a unislamic concept. In Islam sentences are short but severe e.g. lashes, chopping of hands, heavy fines and death.


The changes made through Women Protection Bill 2006

In 2006 a bill was proposed in the country by the above mentioned name and some changes were made. There was a big hue and cry from various religious leaders and political parties. I will give a brief list of some of the prominent changes made and why they were objected to as being unislamic.

1. Hud punishment for rape has been abolished completely. Only taazeer punishment can be given.
2. Rape/consensual sex are no longer a cognized offence. This means that no FIR can be reported in a police station and the case must be taken directly to the court with two witnesses. This also limits the powers of the court to act in such cases.
3. Previously if a person was acquitted of the crime of rape, a trial against him/her could be initiated in the same court at the same moment for the crime of consensual sex. Now a person acquitted of rape can not be tried for consensual sex.
4. According to many Ahadith of the Prophet Muhammad PBUH if a person is found guilty of a crime in a court and the punishment of Hud has been declared by the court then no one has the right to change the decision. Therefore article 20 section 5 clearly states that provincial government cannot change the verdict if someone has been given the punishment of Hud. In the new law article 20 section 5 has been removed.
5. According to article 3 of HDO, it is to be given dominance over other laws i.e. if a conflict arises between laws stated in HDO and any other ordinance than the laws stated in HDO are to be implemented. This article has been removed as well from the new Law.
6. It was stated in HDO that if during court procedures a person is found guilty of an offence that is regarded as crime by legislations other than the HDO then he/she can be given punishment by the same court. This was done as to remove the complexities within the legal system and make it more efficient. However this provision has been removed in the new law as well.

Why the HDO never worked?

A single law or legislation is not enough to run a society. In a successful judicial system different legislations strengthen and support each other. Loop holes and back doors in one law can lead to failures in others. Therefore the HDO was misused by people and many women suffered.

HDO will never work unless it is supplemented by strict anti-corruption laws and social education programmes. An active participation from both religious leaders and legal experts will be required for this process. Especially the religious scholars need to come forward and educate the masses and realize that it is their fault in the first place that led to misconceptions and dislike for the HDO.


The Stureplan case

The case is interesting in the sense that it clearly describes the technical and legal difficulties when dealing with issues like rape. A woman met two men at a pub. She went with them to an apartment owned by one of the men and all three got heavily drunk. The next morning the woman reported both men to the police and charged them with raping her. On medical examination it was found that the woman had been treated violently and had many bruises on her body. Both men were arrested.

The district court after hearing both the parties decided in favour of both the men and set them free. The main reasons behind this decision were firstly all three were heavily drunk and no one could give a clear account of the situation. Secondly both men admitted to having violent sex with the woman and considered it a form of foreplay and they even said that the woman had agreed to this act. The response from the media and general public was in favour of the woman and both the judges and the legal system were heavily criticized. After a few months the case went to the appeals court where the judges surprisingly gave a totally new verdict, agreeing with the woman the court found both men guilty and were imprisoned.

Such complexities are common in dealing with such cases. Physical evidence is meaningless and in the end it is one mans word against the others and the courts have to decide which version of the story is the true one.

By guest writer Musafir