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The Laws Affecting the Rights of Women in

Pakistan: with specific reference to Hudood

Laws

Presentation by

Justice (R) Majida Razvi

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Constitution of Pakistan, 1973

Art. 4 Right of individual:

(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and

of every other person for the time being within Pakistan.

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Fundamental Rights: Guarantee equality in all spheres of life

Art. 8: Laws inconsistent with or in derogation of Fundamental Rights to be void: (1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.

Art. 25: Equality of Citizens: (1) All citizens are equal before law and are entitled to equal protection of law

(2) There shall be no discrimination on the basis of sex alone(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children

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Art.27 Safeguard against discrimination in services:

(1) No citizen otherwise qualified for appointment in the

service of Pakistan shall be discriminated against in

respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth

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Principles of Policy

Art. 34. Full Participation of Women in National Life: Steps shall be taken to ensure full participation of women in all spheres of national life.

Art. 37.Promotion of Social Justice and eradication of social evils:

(e) Make provision for securing just and humane conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex, and for maternity benefits for women in employment.

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Art. 38. Promotion of social and economic well-being of the people: The State shall-

(b) provide for all citizens, within the available resources of the country, facilities for work

and adequate livelihood with reasonable rest and leisure.

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Main Discriminatory Laws in Pakistan

Citizenship Act, 1951 Qisas & Diyat Act 1997 Hudood Ordinances, 1979 Qanoon-e-Shahadat All Other Discriminatory Laws

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Citizenship Act, 1951

In general the language of the Act itself is discriminatory as it speaks only of male

Section 10: Only a foreigner female married to a Pakistani is entitled to apply for Pakistani citizenship, whereas, a foreigner male married to a Pakistani women is not entitled to apply for Pakistani citizenship.

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Recently, the government has allowed only the children of such couple to get Pakistani citizenship.

Recently amendments were proposed by the members of Treasury Bench but the bill was defeated.

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Qisas & Diyat Act, 1997

Shifting of responsibility from State to Individual (s): Right to waive Qisas or compound the offence of murder by any one of the legal heirs at any stage u/s 309, PPC

Absence of mandatory provision for compensation to women victims of violence

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Exemption from Qisas to the following u/s 306, PPC:

a. When the offender causes death of his child or grandchild how low-so-ever; and

b. When any wali of the victim is a direct descendant, how low-so-ever, of the offender

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Application of the law of inheritance for the disbursement of Diyat among heirs of the victims, as provided u/s 330 of PPC

Mere declaration of Swara/Vani i.e. giving of female relatives of accused in marriage as badl-e-sulh as invalid u/s 310, PPC & no penal clause to that effectIn 2005 the Government Introduced some amendments which also provided punishment for violation of section 310, PPC – minimum punishment 3 years – maximum 10 years

No provision for women (mother or grandmother) to exercise the right to Qisas on behalf of minor or insane, who is the only wali of the victim u/s 313 (b)

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Interpretation of the principles of Qur’an and Sunnah by the Judiciary as directed u/s 338-F

Exercise of discretionary powers by the judiciary without any defined parameters.

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The Review of Hudood

Ordinances, 1979

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Context of Promulgation of Hudood Ordinances,

1979

Political Legal

(Constitutional Guarantees; ‘Islamization Laws)

Socio-cultural (Constitution vs. Customary

Laws, e.g. Jirga system, “Honour” Killings)

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Enforcement of Hudood Laws in Pakistan

1. Offence Against Property (Enforcement of Hadood) Ordinance, 1979

2. Offences of Zina (Enforcement of Hadood) Ordinance, 1979

3. Offences of Qazf (Enforcement of Hadd) Ordinance, 1979

4. Prohibition (Enforcement of Hadd) Order, 1979

5. Execution of Punishment of Whipping Order

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Key Issues 1. The Question arises as to why a law is

introduced? Naturally to do justice between the citizens. We have seen, since the introduction of Hudood Laws since 1979 there has been constant injustices to the people. If we see the record, since the introduction the number of Women booked under Hudood Laws were 85%. These Women and some cases Men also languished in Jails for years for no fault that they have committed.As such a law which causes injustice to the people must be removed from the statute books

2.Majority of the sections in Hudood Laws are taken from Pakistan Penal Code and only a few sections in each Ordinance are dealing with Hadd Offences which are as follows:

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Offence Against Property (Enforcement of Hudood) Ordinance, 1979

……..7/26

Offence of Qazaf(Enforcement of Hudood) Ordinance, 1979 ……..5/20

Offence of Zina(Enforcement of Hudood) Ordinance, 1979 ….…..6/22

The Prohibition(Enforcement of Hudood) Ordinance, 1979 ……..4/33

Is it fair that the Tazeer provisions are mixed

with the Hudood provisions?

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3. In the Hudood Laws Section 8, which deals with the production of evidence for Zina and Zina-bil-Jabr is confusing. Since both the offences are distinctive, the required evidence for each of the two should be different and distinctive; because under the existing law, the victim in Zina-bil-Jabr becomes an accused, which is unjust and against the spirit of the Islamic legal system. The law actually encourages rape.

The women and the man guilty of adultery or

Fornication – 2954

Flog each of them with a hundred stripes. 2955

Let not compassion move you

In their case, in a matter

Prescribed by Allah, if ye believe

In Allah and the Last Day:

And let a party

Of the Believers

Witness their punishment. 2956

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4. The law provides same punishment for Zina & Zina-bil-Jabr, which is not according to Quran & Sunnah while Zina, is described in the Qur’an (Sura Nur 24:2 Surah) Zinah-bil-Jabr is not mentioned in the Qur’an and hence punishment for Zina is Hud while Zind-bil-Jabr is Tazeer.

5. The issue of attainment of puberty should be de- linked from adulthood. How can a girl at the age of 10 years or a boy at the age of 15 years, if she/he attains puberty, have understanding to know the implications of Zina or Zina-bil-Jabr after being enticed away and abused?

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6. Another question which arises is whether punishment of Rajam comes under Hadd or Tazeer? And under what conditions should it be awarded, particularly with reference to the Quranic verses.

7. Whether the existing Hudood provisions in the Hudood Ordinances 1979, are in accordance with the Islamic Injunctions, particularly with reference to the Federal Shariat Court’s judgment in Huzoor Bux case, wherein two different Benches gave conflicting judegments; one holding that Rajam is not in accordance with the Islamic injunctions (PLD 1981, 145) and the other stating that it was so (PLD 1983, FSC 255)?

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8. Is the provision of only “male witnesses” a correct interpretation of the Qur’anic verse as the literal translation differs on this point? And whether by providing for only Muslim male witnesses does the law not attach leniency towards the perverse elements who, despite their involvement in such heinous crime, are likely to go totally free or just be penalized with mitigated punishments?

9. Is it just that a law made applicable to non-Muslims but they are debarred from being represented by a non-Muslim counsel? Is it fair, equitable and in the spirit of Islamic injunctions as regards testimony,

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that a non-Muslim witness cannot be judged under the Rule of Tazkiyat-ul-Shahood, and as such the evidence becomes a secondary evidence. The law discriminatory against Muslim witness as no weight is given to the testimony of a non-Muslim.

The Law provides that a non-Muslim Judge can preside only when the offender is a non-Muslim. As such the said non-Muslim Judge will be interpreting the Islamic Law in the case of a non-Muslim but he can not interpret the same law in the case of a Muslim offender. There is no rationale to such Law.

10. In view of exclusion of non-Muslim as witnesses and presiding officers of the Court, what is the rationale of application of this law to non-Muslims?The law is in-violation of the Constitution as well as the Shariat Act.

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The law provides that the case of Zina should be disposed off first and only if it is not proved then a fresh case of Qazf be filed, which against the Quranic injunctions (Sora Nur 24-4 )

11. Is it justified that:

And those who launchA charge against chaste women,And produce not four witnesses(To support their allegations)-Flog them with eighty stripes;And reject their evidence 2958

Ever after: for such menAre wicked transgressors-

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12. The Nisab figure of 4.457 grams of gold in section 6 of Offence Against Property Ordinance, 1979 was too low to determine theft liable to Hadd, therefore, it should be revised. There must be a nexus between this amount and what the Holy Prophet (PBUH) prescribed.

As to the thief, 742

Male or female,Cut off his or her hands:A punishment by wayOf example, from Allah,For their crime:And Allah is Exalted in Power,Full of Wisdom.

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13. The list of exemptions (section 10 of Offence Against Property Ordinance) wherein Hadd shall not be imposed, have no rationale and are not in accordance with the injunction of Islam.

14.Sections 3(1) & 3(2) of Prohibition Order dealing with intoxicants and drugs (such as opium), respectively are overlapping with other legislation

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15. Whether the punishment for drinking liable to Hadd was a Qur’anic punishment or had been derived from Sunnah.

16. The rationale of including other offences not related to the Hudood, e.g. “enticing women”, “cohabiting with women” and “selling and using women prostitutes” etc., under Hudood Laws?

17. The question before you is whether all the Ordinances are repugnant to Islamic injunctions and require to be repealed and drafted afresh, or could they be modified through some amendments and brought in conformity with Islamic injunctions?

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Recommendations Given by the Special Committee Setup

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

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This Special Committee, therefore, wishes to record that the Members of the Committee are unanimous in arriving at the conclusion that the Hudood Laws as enforced are full of lacunas and anomalies and the enforcement of these has brought about injustice rather than justice, which is the main purpose of enforcement of Islamic law. Consequently, by a majority this Special Committee recommends that all four Hudood Ordinances, 1979 should be repealed and the original law with regard to offences mentioned in these Ordinances be restored. However, in order to give due consideration to those members in minority who have recommended amendment to the Ordinances rather than repealing of it, the Special Committee suggests that if after repealing as recommended by the Committee, Hudood laws are required to be enforced, the draft of it should be first widely circulated with a view to seeking opinions of various sections of population and then these should be placed before the Parliament for a full fledged debate.

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Impact of Hudood Ordinances, 1979 It was felt that a number of sections of this

Ordinance were defective and led to injustice against

women. The main defects pointed out were as follows:

1. Exclusion of women’s evidence2. Exclusion of non-Muslim Pakistani citizens’

evidence3. Exclusion of non-Muslim judges from

presiding – unless the accused is a non-Muslim

4. Linkage of adulthood with puberty 5. Proof of Zina (adultery & fornication) and

Zina-bil-Jabr (rape) – same requirements6. Law provides that an offender can retract his

statement even at the last moment before implementation of the sentence. The Courts become ‘functus officio’. No procedure/forum is provided under the law to deal with such situation.

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7. Requirements of witnesses based on religion, to be adjudged on Islamic Principles of Tazkia-tul-Shahood (adult, sane, devout, believing, practising Muslim Men who abstain from major sins)

8. Punishment of Rajm (stoning to death), being given as Hadd punishment, is against Qur’anic injunctions

9. Even where women report rape, they are charged under Zina Ordinance, therefore the victim becomes the offender – vast majority of women in prison, awaiting trial for years, are booked under Hudood (Zina) law

10. Complaints accusing women of alleged Zina, without being tried for QAZF (false allegation), is against Islamic injunctions

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11. Pakistani Constitution guarantees that non-Muslims are to be governed by their respective Personal Laws, whereas Hudood Laws (1979), being part of Tazeer (Criminal Law), are applicable to all citizens, including non-Muslims