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Home > Women’s Rights > Pakistan: Extracts from the NCSW Report on Hudood Ordinance

Pakistan: Extracts from the NCSW Report on Hudood Ordinance

21 July 2009

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Date: 3 July 2009

NATIONAL COMMISSION ON THE STATUS OF WOMEN’S REPORT ON HUDOOD ORDINANCES 1979

The National Commission on the Status of Women, set up in 1999 to advise on eradicating laws discriminatory to women, submitted a detailed report and recommendations on Hudood laws in 2003. Extracts from the report and the recommendations to repeal the laws, follow:

INTRODUCTION

In 1979 the following four Hudood Ordinances were enforced:

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

2. Offence of Qazf (Enforcement of Hadd) Ordinance, 1979

3. Offence Against Property (Enforcement of Hudood) Ordinance, 1979

4. Prohibition (Enforcement of Hadd) Order, 1979

Without going into motives of the Zia-ul-Haq Government at the time for the enforcement of these Ordinances, which essentially lie in the political domain, it is obvious that these Ordinances were hurriedly drafted and equally hurriedly enforced. In fact, it would appear that a number of sections from the Pakistan Penal Code (“PPC”) relating to the offences described in the Ordinances were lifted from the PPC and incorporated in the Hudood Ordinances along with additional provisions., which were supposed to be in accordance with the injunctions of the Quran and Sunnah. The introduction of these Ordinances was meant to give an Islamic appearance to the State.

However, after the introduction of these Ordinances, in particular the Ordinance relating to the offence of Zina and Qazf, coupled with the subsequent enforcement of Qisas and Diyat Ordinance, it was found that instead of remedying social ills, these Ordinances led to an increase in injustice against women and, in fact, became an instrument of oppression against women. There were hundreds of incidents where a woman subjected to rape, or even gang rape, was eventually accused of Zina and thereby subjected to wrong and unjust persecution and great ordeal. In this connection the lacunae in the law were greatly exploited by unscrupulous elements to perpetrate great cruelty on women and children, particularly minor females. The strict requirements regarding string and sustained pressure from women’s rights groups in civil society, no woman was subjected to the punishment of flogging (lashes), or for that matter “Rajam”, but nevertheless, the threat remained and that in itself caused great distress to the women who even otherwise remain the most exploited individuals in our society.

Various women’s NGOs and human rights organizations repeatedly protested against the injustice and ill effects of the enforcement of these Ordinances but the protests were in vain. More and more women were subjected to torment because of these laws and the incidents of rape increased as time went by and the jails began to be filled with women on trial under the Zina Ordinance. Even thought the Qazf Ordinance was meant to eliminate incidents of false accusation against women, it brought no relief to the women, because often their tormentors were powerful individuals and any attempt by the victim to seek redress under this law resulted in further misery for them. Apart from Zina and Qazf Ordinances, the Ordinance regarding property too, was of no avail in curbing incidents of theft and robbery, while the Ordinance regarding Prohibition failed to control the spread of narcotics and illegal spirits in the country. It was thus obvious that these Ordinances had failed in fulfilling their stated objectives. Islam essentially is a religion that promotes justice, but when in the name of Islam, injustice is perpetrated then it becomes necessary to examine the laws introduced in the name of Islam and determine what went wrong.

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 Committee thereupon held its first meeting in Karachi on 27-28th May 2002 and subsequently five other meetings. From the very beginning the Committee agreed that it would be necessary to examine various Ordinances section by section, and as the meetings progressed, each section was dealt with in detail and all the members often with differing opinions were able to express their opinions with force and conviction. At the conclusion of the meetings, detailed Minutes were compiled, which were transcribed from various tapes made at the time of the meetings and were then distributed amongst all the members of the Committee, requesting their comments and/or recommendations, keeping in view the terms of reference of the Committee.

CONCLUSION

At the end of the meetings there was general consensus amongst the members that the Hudood Ordinances, as drafted, are defective, that they are lacunae, and also that the major part of these Ordinances consists of sections that were lifted from the Pakistan Penal Code. Generally, it was felt that considerable confusion arose because of certain sections of PPC being lifted and included as part of the Ordinances, rather than adding to the Pakistan Penal Code additional sections that have been introduced in the Ordinances. After receiving written comments from some of the Committee members, a final meeting was held in Karachi on 16.8.2003, where the members present gave their opinions in person and also authorized Justice (R) Majida Razvi and Justice (R) M. Shaiq Usmani to draft the Report and the Recommendations of the Committee. The opinions given in person and sent in writing by the members are presented below.

1. Justice (retd.) Majida Razvi said that her opinion is on record that Hudood Laws are full of lacunae and are badly drafted. In her opinion these do not reflect the correct principles of Islamic criminal law and are not in accordance with Islamic injunctions. These have caused great misery to women and ought to be repealed and the original laws be restored.

2. Justice (retd.) M. Shaiq Usmani said that due to numerous defects and lacunae in the Hudood Ordinances a number of anomalies have been created which have led to injustice, particularly to women, in the implementation of Zina and Qazf Ordinances. The defects in the Ordinances are so basic that amending these would serve no useful purpose and may bring about more injustice. The experience of the last 24 years has shown that these Ordinances have been counter-productive and have added to the misery of the people in general and women in particular. Thus he was of the view that the Hudood Ordinances ought to be repealed.

3. Ms. Hina Jilani said that the Committee’s terms of reference were either to recommend repeal of the Hudood Ordinances or to amend them. The Committee should not go beyond the terms of reference. Moreover, the Committee cannot recommend effect preservation of the present law or to introduce fresh law as it would also be beyond its terms of reference. She also said that the tenor of the Committee’s report was such that it would appear that it sees no problem with the concept of the Hudood Ordinances being in accord with the Quran and Sunnah. This too, she said was beyond the terms of reference of the Committee and was never a part of discussion, and hence, should not form part of the report of the Committee. She recommended the repealing of Hudood Ordinances.

4. Dr. M. Farooq Khan said that the manner in which the Hudood Ordinances have been promulgated has no basis in the Quran and Sunnah. He was in agreement with others to the effect that there are a number of loopholes and lacunae in the Hudood Ordinances and as such he was of the opinion that any amendment would serve no purpose at all and thus the Ordinances ought to be repealed.

5. Ms. Nahida Mahboob Elahi said that she sees no purpose in giving these Hudood Ordinances the cover of PPC because that was not part of the terms and reference of the Committee. She was of the view that the Hudood Ordinances should be repealed and the original law be reinstated.

6. Dr. Farida Ahmed said that she did not agree with the statement that these Ordinances have no basis in the Quran and Sunnah. According to her, these Ordinances are based on the Quran and Sunnah. However, she felt that there might be some loopholes and lacunae in these Ordinances, which can be corrected through amendment rather than repealing.

7. Syed Afzal Haider said that there is no doubt that after the enforcement of these Hudood Ordinances, the incidents of gang rape have increased; he felt that there are many defects as loopholes in the Hudood Ordiances and he was of the view that the Ordinances ought to be repealed and the original laws be reinstated.

8. Dr. Faqir Hussain said that recommending the mere repeal of the Offence of Zina (Enforcement of the Hudood) Ordinance, without an alternative reformative framework, is not appropriate, as it would cause void/gap in legislation, which is undesirable. As such, the Special Committee may assist the Government/Parliament by stating in the Report the grounds/reasons for its repeal and the principles of alternative legislation. As regards the said Ordinance, his conclusion was that the Ordinance is not in accordance with the injunctions of Islam and as such should be repealed. Instead, on the pattern of Qisas and Diyat law, the offence of Zina (adultery/fornication) may be added to the Pakistan Penal Code, carrying the Hadd punishments of 100 stripes to be awarded on confession or the evidence of 4 credible eye witnesses, should automatically lead to the invocation of the law of Qazf (false accusation) against such person/witness. He added that in his view, Rajam (stoning to death) is a Taazir (discretionary) punishment for the offence of Zina-bil-Jabr (rape), which is prescribed by the State and can be varied. All the remaining offences in the said Ordinance, having been borrowed from the PPC, may be reverted back to the said Code.

9. Ms. Shahla Zia gave her opinion in writing and was of the view that the Hudood Ordinances ought to be repealed.

10. Ms. Charmaine Hidayatullah gave her opinion in writing and was of the view that the Hudood Ordinances had brought about great injustice in the society, particularly in so far as women are concerned, and thus the recommendations of the Special Committee may be given effect to as soon as possible.

11. Ch. Naeem Shakir was the representative of non-Muslim Pakistani. He gave his opinion in writing and was of the opinion that the Hudood Laws being Shariat Laws should only be enforced against Muslims and not non-Muslims. He was also very concerned about the fact that the Hudood Ordinances have provided for the Presiding Officer of the Court to be a Muslim and stated that there is no justification for it. Similarly, he was also concerned about the requirements for the witnesses for offences under the Hudood Ordinances being Muslims and saw no justification for it. In so far as the Ordinances themselves are concerned, as a lawyer he felt that there are far too many lacunae in the law and that these were very defective. Consequently, he recommended that the Hudood Ordinances should be repealed.

12. Justice (retd.) Nasir Aslam Zahid gave his opinion in writing and was of the view that the Hudood Ordinances, in particular the Zina Ordinance, have been used as an instrument of injustice mostly against women and helpless persons in the country. Consequently, he was of the view that these Ordinances ought to be repealed.

13. Dr. S.M. Zaman gave his opinion in writing and was of the view that while there were a number of flaws in the Hudood Ordinances, he felt that these did not justify repeal of the Ordinances. He was of the view that these Ordinances ought to be maintained although they could be reviewed and amended with a view to removing possible injustice and discrimination.

14. Ms. Rahila Durrani gave her opinion that the Zina Ordinance in particular has inherent flaws and is discriminatory towards women and has resulted in oppression of women in as much as a number of women are languishing in jails. She, therefore, recommended that the Hudood Ordinances should be relealed.

15. Justice (Retd.) Taqi Usmani, Allama Aqil Turabi and Noor Muhammad Shahtaj did not provide comments in writing, or their opinion with regard to the Hudood Ordinances even though Allama Aqil Turabi and Noor Muhammad Shahtaj did participate in most of the meetings. Justice (retd.) Taqi Usmani was nominated but declined to participate.

Recommendations of the Special Committee to review the (enforcement of Hudood) Ordinances, 1979

An examination of the Minutes of all five meetings which have been summarized in this report, as well as considered opinion of the members of the Committee, including the Chairperson, would reveal that out of fifteen (15) members, who have actively participated in the deliberations regarding the Hudood Ordinances and have given their views in person and in writing, twelve (12) members have recommended that the Hudood Ordinances should be repealed, while only two (2) members have recommended that these should not be repealed but amended with a view to removing lacunae and defective parts of it, and one (1) member has stated that the recommendations of the Committee should be given effect to.

This Special Committee, therefore, wishes to record that the participating Members of the Committee are unanimous in arriving at the conclusion that the Hudood Ordinances as enforced are full of lacunae and anomalies and the enforcement of these had brought about injustice rather than justice, which should be the main purpose of the enforcement of Islamic law. Consequently, by a majority, this Special Committee recommends that all four Hudood Ordinances, 1979 should be repealed and the original laws with regard to the offences mentioned in these Ordinances be restored. However, in order to give due consideration to those members in minority (2) who have recommended amendment to the Ordinances rather than their repeal, the Special Committee suggests that if, after repealing as recommended by the Committee, Hudood laws are required to be enforced, the draft Bill should be first widely circulated with a view to seeking the opinions of various sections of civil society in general, and women’s rights groups in particular, and subsequently it should be placed before the Parliament for a full-fledged debate.

JUSTICE ( R) MAJIDA RAZVI

CHAIRPERSON

SPECIAL COMMITTEE TO REVIEW THE (ENFORCEMENT OF HUDOOD) ORDINANCES, 1979