Hudood Ordinance
is presented as a Divine law that cannot be touched. The question
is, is it a Divine Law?
The Hudood Ordinance
itself is not the Divine Word of Allah, but is in close reference
to it. It was made after great deliberation between legal experts
and religious scholars and is an essential step towards the
creation of an Islamic Republic.
The Hudood Ordinance
is NOT the Divine Law. It aims to be an interpretation of the
Word of Allah, but it fails to be a true representation of Quran
and Sunnah. It is an Ordinance that was passed hurriedly without
any homework or public debate and was promulgated to achieve
narrow political interests rather than with the intention to
establish the writ of Allah in the country.
ISSUE
Argument
in favor of the Hudood Ordinance
Argument against
the Hudood Ordinance
The Hudood
Ordinance treats Zina and Zina bil Jabr in a similar way as
far as the requirements of evidence and the nature of punishments
are concerned. Should Zina and Zina bil Jabr be treated in the
same manner?
Zina and zina bil
jabr are both two forms of the same crime and therefore, the
rules of evidence that apply for zina will apply for bil jabr.
The only difference is that one is consensual and, therefore,
both the man and the woman involved will be punished. And in
zina bil jabr, the woman is innocent and, therefore, will not
be punished. Islam only makes a distinction between married
and unmarried parties. For the case to be tried under Tazeer,
4 witnesses are not required and punishments can still be given.
In fact, these punishments are very severe and include life
imprisonment.
Tazeer is a secondary
issue. The first is that we must recognize that Zina and zina
bil jabr are two very different crimes. Zina is hudd (maximum
punishment) whilst other (bil jabr) comes under the realm of
Tazeer (mitigated punishment) since Allah has not mentioned
it as a hudd. Zina bil jabr therefore, is either seen as harraba
(theft of property) or as a part of fisad fil arz (that which
involves terror and force) in the Quran. The method of proving
zina bil jabr through the testimony of four witnesses is a man
made idea and not the rule of Allah since it is not hudd to
begin with. Zina bil jabr comes under Tazeer and in the same
manner, for zina, there cannot be Tazeer since it is directly
a hadd crime. This means that a person should be immediately
acquitted for zina if the condition of 4 witnesses is not met.
There can be no lesser punishment. Again, the other problem
is that the Hudood Ordinance contains Hudd as well as Tazeer
punishments. When a crime does not fulfill the conditions to
be tried under hudd, it is tried under Tazeer. This is a flawed
idea since a crime is either 100% proven or not. If the evidence
does not meet the conditions of hudd, the case has to go in
the favour of the victim..
ISSUE
Argument
in favor of the Hudood Ordinance
Argument against
the Hudood Ordinance
Qazf is a
law that applies against those who falsely accuse someone of
zina. It is presented in the Hudood Ordinance as a separate
ordinance than the Zina Ordinance and it states that once the
case has run its course and it is found that the accused is
not guilty then the accused has to file a separate case against
the person who falsely accused her/him. Should Qazf apply automatically
or should there be a separate Ordinance for it?
According to Surah
Noor, Qazf applies automatically if a person accuses someone
of zina but is unable to bring 4 witnesses. A person guilty
of Qazf is liable to be punished with 80 lashes and his/her
evidence will never be accepted in a court of law. He/she is,
in the Words of Allah, a “transgressor”. This is
one area which can be improved and changed in the Hudood Ordinance.
The changed version will lead to fewer false accusations of
zina. This should be condition that applies at the time somebody
files an FIR against someone for zina. If 4 witnesses are not
brought at the time of filing a zina complaint, the accuser
should be flogged right there and then. (From the people we
have interviewed, all religious scholars think that this change
should be made in the Ordinance.)
The Quran refers
to Qazf as a means of protecting women. Surah Noor says that
if a person accuses a pious woman of zina and is unable to produce
4 witnesses to prove his/her accusation, he/she must be flogged
with 80 lashes. The main point of the verse is to protect women
from being falsely accused or slandered. If Qazf is made part
of the Zina Ordinance, many false zina cases would not be attended
to and it will surely limit misuse of the Ordinance. This should
be condition that applies at the time somebody files an FIR
against someone for zina. If 4 witnesses are not brought at
the time of filing a zina complaint, the accuser should be flogged
right there and then. Most zina cases end up as false accusations
but only 1% of them find their way back in the courts again
as Qazf cases.
ISSUE
Argument
in favor of the Hudood Ordinance
Argument against
the Hudood Ordinance
The Zina
Ordinance in the Hudood Ordinance prescribes the punishment
of Rajam (stoning to death) as the Hudd punishment for a married
man and / or a married woman if found guilty of Zina or Zina
bil jabr liable to hudd. Is this a punishment prescribed in
the Quran?
Rajam as a punishment
was awarded in the time of the prophet (P.B.U.H) and the Caliphs.
Some also believe that there was a verse regarding Rajam that
was written on a leaf. At the time of the Prophet’s (P.B.U.H)
death, the leaf was misplaced and it was later discovered that
it may have been eaten by a goat and reference to it was later
added in several collections of ahadith.
Rajam has not been
mentioned in the Quran. The maximum or ‘hudd’ punishment
for zina is 100 lashes (that is, when the requirements for hudd
punishment are met). This in itself is a very severe punishment.
And therefore, the Quran states that solid proof, beyond any
doubt, is required before convicting the accused.
ISSUE
Argument
in favor of the Hudood Ordinance
Argument against
the Hudood Ordinance
Evidence
by women is unacceptable for a crime to be liable to hudd
punishment for all ordinances within the Hudood Ordinance.
Women as witnesses do not fulfill the criteria for a punishment
to be liable to hudd and in the case where women do provide
evidence, the case is automatically tried under tazeer.
In matters of Hudd,
a woman’s evidence is not accepted. But this does not
mean that women’s evidence is not accepted anywhere in
Islam. There are some things for which only women can be witnesses
such as birth. And then there are some where a woman's testimony
is not accepted such as the sighting of the moon. Islam does
not allow a woman to act as a witness to crimes of hudood. Women
are emotional and may not be in the right state of mind to report
on a crime of this nature. Also, the court of law is surrounded
by men from all sides and so it may be improper for a woman
to describe in detail, the acts of zina and zina bil jabr. Giving
witness is NOT a right, it is a responsibility and women have
been wavered this responsibility. However, where no male witnesses
are available, women may be witnesses but then the punishment
given will be that of tazeer, not hudd.
Wherever the Quran
talks about witnesses, it does not differentiate between the
two genders. The only place where the Quran talks about 2 females
in place of one male witness is to undertake business transactions
and in signing business contracts etc. Here too, there is actually
just one female witness. The other woman is only expected to
provide moral support, but does not act as a witness. The whole
idea of not accepting women’s evidence to be equal to
that of men’s, is a patriarchal interpretation of the
Quran and Sunnah. There are many Ahadith to support the fact
that the Holy Prophet (P.B.U.H) took decisions based solely
on the witness of a woman.
ISSUE
Argument
in favor of the Hudood Ordinance
Argument against
the Hudood Ordinance
How does
the Hudood Ordinance apply to Non Muslims? Do Non Muslims
come under the ambit of the Ordinance? For a crime to be liable
to hudd punishment, why is a Non Muslim’s evidence accepted
ONLY when the accused is a Non Muslim? Why can’t Non
Muslims be accepted as witnesses for hudd crimes if the law
is to apply to them as well?
The Hudood Ordinance
applies to all citizens of the country whether they are Muslims
or Non Muslims since it is part of the law of an Islamic state.
Also it would not be logical for there to be two parallel laws,
one for Muslims and the other for Non Muslims.
Non Muslims cannot be used as witness to a crime committed
by a Muslim since the Quran says “people amongst you”
and in other places uses the word “momineen” for
witnesses. Non Muslims may not grasp the nature of the sever
punishments prescribed by these laws and the consequences
of these crime in the Life Hereafter. They may also intentionally
do something to hurt Muslims. Since it is important that the
witnesses fulfill the requirements of “tazkiya-al-shahood”,
this would necessarily include a Muslim who says his prayers
regularly, fasts and abstains from major sins.
The Hudood Laws are
specifically for Muslims since they are stated in the Quran
and the Quran applies only to Muslims. Also, the Constitution
of Pakistan makes the rights of Non Muslims very clear allowing
them to live under their own personal religious laws for all
personal matters. We cannot enforce this law on Non Muslims
unless we first provide an Islamic welfare state where the rights
of minorities have been secured and they are given special protection.
As far as being witness to a hudd crime, the condition of
“tazkiya-ul-shahood” includes any person, Muslim
or Non Muslim, man or woman, who can be trusted and is honest
(i.e. not display honesty occasionally but are known to be
honest persons). A person who prays regularly or fasts etc,
may not necessarily be an upright and honest citizen of the
state.
