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A look at Pakistans Hudood Laws

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    A look at Pakistans Hudood Laws

    http://www.jang.com.pk/thenews/jun20...02/oped/o1.htm
    Distorting Hudood Ordinance

    Amna Bano

    Once again Hudood Ordinance is at the centre of a controversy. Zafran Bibi's case has brought out harsh criticism of the Hudood Ordinance from women rights groups demanding for it to be repealed on the basis that it is against women. Others have claimed it to be un-Islamic. But, the reality is that Hudood Ordinance is neither un-Islamic nor against women. It is the same as given in Shariah and more men have been punished under Hudood Ordinance than women. There is need for a more informed and academic debate over Hudood Ordinance than just extreme accusations from the rights groups. The underlying issue that needs debate is whether Pakistanis want to hold onto Shariah laws or move on to modern laws to deal with issues of their personal conduct.

    First as for the outcry of some women group representatives that the law is especially against women, one has to provide some proof to make these claims. But, if one looks at the data, it presents a different story. A look at the number of cases registered under the Zina clause show that more men are being punished under this law than women. According to the data available at the Federal Shariat Court headquarters in Islamabad, in the year 1999, 76 cases were appealed in total in the Shariat Court. Out of these only nine cases were appealed by women and 66 by men. The term 'appeal' means that these cases were decided against the applicant in the lower courts. So, basically 66 men were convicted in the lower courts under Hudood Law as compared to only nine women in 1999.

    In 2000, out of the total appeal cases in the Shariat Court, 15 were moved by women and 73 by men. In 2001, only 23 cases were appealed by women in the Shariat Court as compared to 152 by men. So, clearly, women are not the only ones being punished under this law. But, still, whenever there is a mention of Hudood Ordinance it is only in the context of exploitation of women. It is difficult to understand why the NGOs and the activists take such a partial view of this law.

    As for Hudood Ordinance being against the spirit of Islam, none of the critics have ever bothered to publish an academic work to prove that Hudood Ordinance is against Islam. Having a degree in Shariah and Law, one knows that it is the same as given in Islam. Hudood is the plural of hadd. There are seven hadds in Islamic perspective. Hadd-ul-Zina is one of these hadds and covers every sexual issue -- rape, adultery, homosexuality, bisexuality, etc. The Hudood Ordinance as enshrined in Pakistan's constitution is based on this Shariah law.

    The main criticism of this law is that it requires four witnesses to prove a rape or an adultery case. The critics of Hudood Ordinance make much issue of this but there is a good explanation given in Shariah for this. In Islam the evidence in proving a crime is directly proportional to the punishment for that crime. The more heinous the crime, the tougher is the punishment for it, and the tougher the punishment the more demanding is the criteria to prove the crime. That is the reason that Islam requires four witnesses to prove zina or a rape case as both these acts entail the highest punishment of death. Because it is dealing with the lives of people, therefore, Islam has given both man and woman the protection against being wrongly accused of these acts by asking for four witnesses.

    Also, it is important to remember that the demand for four witnesses is not just limited to proving a rape but also applies to a zina case and benefits the women equally. If a man lodges a zina case against a woman, then he has to produce four witnesses, just like in the case of a rape, failing which they themselves will be charged with qazf, carrying 80 slashes as punishment. More importantly, in case of rape, if presence of witnesses is impossible, then it is not a dead end as much emphasis is placed on circumstantial evidence.

    True, the law as implemented has caused some problems. One is when the police lodges an FIR against a woman, it never discloses the name of the complainant. As a consequence even when the woman is proved innocent, she cannot lodge a case of qazf against the accuser, as his name was never disclosed. Also, there is need to have a discussion around the issue of bail because if the women are kept in jail during the proceedings of the case, then even if they are proven innocent they have to live forever with the stigma of being in jail. However, the lobbyists against Hudood Ordinance need to be careful about their claims too. There is need for educated and informed debate on this ordinance and women rights groups need to make this debate more informed.

    The bottom line is that Pakistanis as a nation need to decide whether they want Shariah Law or not. The reasons given in Shariah for having Hudood laws is to have an ordered way of life and a clean and upright society. In the specific context of zina, Islam maintains that adultery is forbidden to protect the children, women and men by saving their family names and their father's names so that it is clear as to whom they belong and who is responsible for their maintenance. Illegitimate children have no right to the property of their father.

    Pakistan as a society might feel that there is no need for following such laws and that we need modern laws to deal with personal code of conduct. That is fair enough. But, those who are advocating for the removal of these laws should make it clear what is it that they don't approve of. To say that it should be repealed because it is un-Islamic or against women is just not right because the facts do not support these claims.

    The writer is a practicing lawyer with a degree in Shariah and Law

    How can a man die better than facing fearful odds for the ashes of his fathers and the Temple of his Gods?

    #2
    You should post this article Women’s Rights in Pakistan. It will come to a good discussion.

    I agree with the theme where it is argued in this article that the respective groups for or against the Hadood laws take their stats too far.

    Anyway, I have a few short comments:

    The statistics that show that more men have been charged under Hadood laws, the author forgot to mention who brought in the charges against those men? Other men or women? Mostly those who argue against the specific Zina-Law being against women, accuse that when a woman brings a rape/adultery case to the court it usually ends up being against her as a source of committing adultery.

    Secondly, the issue of 4 witnesses is very concerning. People don't rape in front of witnesses, and according to the current laws no woman can come forward or bring charges if she can't provide the 4 witnesses; if she still does come forward and fails to provide the witnesses, she will be punished for false accusation.

    Also, in the same manner its far easier to get witnesses in Pakistan. And there is no law or national database that challenges their 'credibility'. Which even from the understood Sharia law in Pakistan, is mandatory to do so in such cases.
    I know that you believe that you understood what you think I said, but I am not sure you realize that what you heard is not what I meant.
    - Robert McCloskey

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