by Asma Jahangir

(Ed. note: This story appeared as an op-ed article on Sept. 12, 2003, in the Daily Times published in Islamabad. The author is the U.N. special rapporteur on extrajudicial, summary or arbitrary executions and is the former chairperson of the Human Rights Commission of Pakistan [HRCP].)

The Women's Commission has again reminded us of women's suffering on account of oppressive laws. The Hudood Ordinances enacted in 1979 are the worst in this regard, though they have been equally harsh on those who have restricted access to justice or who choose to disobey traditional values.

In practice, all criminal legal systems discriminate against the underprivileged. In Pakistan, such gaps are wider still because of laws like the extremely discriminatory Hudood Ordinances. The law, its interpretations and the procedure are all flawed in a number of crucial areas. This results in gross injustice to the marginalised sections of society.

It is far easier to fabricate charges of a crime, like the offence of zina (adultery), than to invent a story of murder or injury where the complainant needs to at least produce the victim to be taken seriously. Anyone can allege zina and have his adversaries apprehended without a convincing story. A number of people have been arrested on secret information received by the police or on mere unsubstantiated allegations. Most supporters of the hudood laws recognise the problem of false allegations against innocent people but brush aside the issue on the plea that injustice is the norm in our society. Moreover, in the case of zina, the law of qazf (making false charges) within the ordinance operates as a safety valve against false accusations of zina.

A former chief justice of Pakistan said that in more than 80 percent of zina cases the accused victim eventually won. The statement seems to imply that finally justice was served. Such assertions only show that support for the hudood laws is either based on a poor knowledge of the legal system and social realities or on an ill-founded belief that all statutes made in the name of Islam must be kept regardless of the consequences.

The ordinances are a compilation of five separate laws: offences of theft and armed robbery; zina and rape; qazf; use and sale of alcohol; and, lastly, the procedure for whipping. It prescribes two sets of punishments: hadd (singular form of hudood referring to punishments in the Qur'an related to adultery and fornication, making false accusations, theft and the consumption of alcohol) and tazir. The hadd punishment requires very specific evidence based either on the confession of the accused or the testimony of a specified number of eyewitnesses. In the case of zina, the number of eyewitnesses must be at least four. All witnesses for the hadd sentence must be adult male Muslims who are "truthful persons and abstain from major sins." If the accused is a non-Muslim, the witnesses may also be non-Muslim. The law either presumes that non-Muslims will only rob or rape non-Muslims or the lawmakers wanted to leave less room for non-Muslim offenders to escape the hadd punishment. Punishments under hadd are severe: stoning to death in the case of rape and zina or amputation of one's hand for theft of a particular type.

Thus far hadd has never been executed, although it has been awarded in a number of cases. A total of 26 sentences were awarded up to 1988. All of them, except one, were reversed by the superior courts. Zahid Iqbal was convicted for stealing goods worth 11,000 rupees (US2), and his sentence was amputation of his right hand. He mysteriously escaped from prison though after an uproar in the international media. Hadd punishment for theft can be awarded for stealing a clock from a mosque but not applied to a person accused of embezzlement of millions of dollars from the exchequer. The testimony of women is not considered for hadd punishment even though she may be the victim, as in cases of rape. Since hadd has never been executed, the obvious discrimination in the law gives the impression that the State considers women and non-Muslims to be unreliable citizens.

It is the punishment of tazir which practically impinges on the lives of ordinary people. The procedure in tazir trials is the same as in all other punishments. Women and non-Muslims may testify. Practically all the offences were brought from the Penal Code or enacted on the same pattern except that additions were made in the offences of zina and qazf. Prior to the Hudood Ordinances, adultery was punishable only for the male partner, and rape of a minor wife was punishable. Post-Hudood altered the very scheme of the law, making all forms of zina punishable with a maximum of 10 years of imprisonment and the infliction of 30 lashes. Raping a wife was made legal, and the law of qazf was added to the list of offences.

At a superficial level, these changes may appear to promote morality, but, in reality, they have only given unscrupulous elements in society and the law enforcement agencies a handle on which to exploit women's vulnerability. Under the old law, women could not be convicted of adultery. Since the law made women culpable, however, thousands have been imprisoned under the hudood laws.

A very large number of women have been tortured, molested and raped by the police with impunity. From 1980 to 1987, the Federal Shariat Court (FSC) alone heard 3,399 appeals of zina involving female prisoners. This is only the tip of the iceberg, given the number of women arrested and released before reaching the appeal stage. Once a woman is accused of zina, she stands stigmatised regardless of subsequent acquittals. Apart from a couple of isolated women prisoners, the majority of them come from extremely disadvantaged sections of society. These figures beg some compelling questions: Was there less zina before the promulgation of the hudood law? How is it that once women are made punishable under the law thousands of complaints are filed as against hardly any under the old law which protected women? Why are nearly all women accused of zina poor and illiterate? Are they more promiscuous than the rich and the famous living in our society?

In many cases, women alleging rape have been arrested and convicted of zina. The accused men are given the benefit of the doubt and acquitted by the FSC. The present trend is to arrest all married couples who contract a nikkah (a religious ritual formalising the engagement of a couple before marriage) without the blessings of their families. The female is pressured by the police and by some judges to abandon her husband. She remains in a bind. Denial exposes her to the risk of being prosecuted for zina, and acceptance keeps her from securing bail.

The defenders of the Hudood Ordinances argue that such miscarriages of justice are relatively low. This is incorrect. Secondly, the relief comes too late and only after the woman has been imprisoned and humiliated. In addition, the judiciary only reluctantly and partially has accepted the gender viewpoint and that too after years of struggle by women activists.

False charges of zina are hardly prosecuted. Only 1 percent of victims dare to enter the legal maze again. In all such cases, they have had to face innumerable legal hurdles in prosecuting anyone on the charge of qazf. Allegations of qazf need to be overly precise. A former husband alleged that his wife was abducted by her second husband for the purpose of committing zina. His former wife and husband were apprehended on charges of zina, but the complainant was given the benefit of the doubt on the grounds of not having actually witnessed the marriage. A husband cannot be awarded qazf even if he falsely accuses his wife of adultery before a court of law.

A number of Pakistani couples perform nikkah without a formal "rukhsati" ("the departure" in which members of the groom's family take the bride to their home, i.e., the movement of the bride to the groom's home). In recent years, many incidents have been reported where the parties fell apart before rukhsati, but the groom raped the bride to seek vengeance. Under Pakistani law, it is not an offence though.

The contradictions of the Whipping Ordinance are surpassed only by its absurdities. It attempts to make humane what is manifestly inhuman in terms of who can administer the punishment, how it is to be administered, what weather conditions must prevail, how the convict must be dressed, etc. In short, a Mediterranean climate with a made-to-order whip, Victorian courtesies and a special dress code are needed for the execution of whipping!

Women have argued their case well for the repeal of the Hudood Ordinances. They still face a formidable opposition, but a principled position eventually does

triumph. The Women's Commission must continue to press for the repeal of this law.