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June 12, 2006

Consensus on amending Hudood Ordinance

Opinion

June 12, 2006

KARACHI: In a major breakthrough some eminent Islamic scholars on Sunday reached a consensus in a Geo TV programme about rectifying the lacunae in a much-talked-about Islamic law promulgated during the dictatorship of Gen Ziaul Haq in 1979.

The scholars belonging to different schools of thought and having ideological differences reached the consensus after a heated debate in the Zara Sochieye debate programme, a part of Geo TV’s Hudood Ordinance initiative.

Mufti Muneeb ur Rehman, chairman Ruet-e-Hilal Committee, MNA Maulana Abdul Malik of the Muttahida Majlis-e-Amal (MMA), Javed Ahmed Ghamidi, director, Idara Al-Mawrid, and Dr Tufail Hashmi, author of the Hudood Ordinance in the Light of the Book and Sunnah, reached a consensus on making at least three immediate amendments to the Hudood Ordinances to bring them in conformity with the Islamic laws and to make the legislation more just.

The scholars agreed that many fabricated FIRs regarding zina, or adultery/fornication cases had been filed in the past because of which many innocent people, both men and women, have been languishing in jails.

To reduce the number of false FIRs, they agreed that an FIR in a zina case — but not zina bil-jabr/rape — should not be registered unless four witnesses are Hudood Ordinance in the Light of the Book and Sunnah, reached a consensus on making at least three immediate amendments to the Hudood Ordinances to bring them in conformity with the Islamic laws and to make the legislation more just.

The scholars agreed that many fabricated FIRs regarding zina, or adultery/fornication cases had been filed in the past because of which many innocent people, both men and women, have been languishing in jails.

To reduce the number of false FIRs, they agreed that an FIR in a zina case — but not zina bil-jabr/rape — should not be registered unless four witnesses are willing to make a written declaration verifying an act of zina.



Mufti Muneeb ur Rahman and Maulana Abdul Malik vociferously stated that Allah Almighty wants zina to be a crime that remains within the four walls and not brought to courts for trials and sentences.

Javed Ghamdi and Tufail Hashmi also agreed with them saying, “This explains the rationale behind the requirement of four witnesses to prove an act of zina, but not zina bil-jabr/rape.”

Mufti Muneeb and Maulana Malik criticised the police and suggested that all cases be brought to judges instead, Dr. Hashmi said the police role only comes into crimes that creates chaos in society, such as robbery, rape, etc, not for zina (consensual sex).

The scholars also agreed that there is no concept of keeping women in jails in Islam. All the panelists concurred that Islam protects women’s respect, and when she is sent to jail, her acceptability and respect within her family, community as well as society are compromised.

Even the accused women, who are convicted of zina through four eyewitnesses, can only be awarded a Hudd punishment and not Tazeer punishment as the Ordinance suggests. Therefore, the scholars confirmed that a woman, at least for zina, should not be put in jail in accordance with Islamic laws.

This consensus of the ulema can be seen as a major breakthrough, since 95 per cent of the women jailed for zina are later acquitted of the crime. If such a recommendation is finally approved and adopted, a great injustice against women can be put to an end.

Mufti Muneeb, Maulana Malik, Dr. Hashmi and Prof. Ghamidi repeatedly noted that the Tazeer punishments should be separated from the Hudood Ordinance and instead incorporated in the Pakistan Penal Code.

On the issue of qazf, or false accusation of zina, Prof. Ghamdi and Dr. Hashmi said the existing Qazf Ordinance has many lacunae. Once a case is in the court and it is realised that the accuser/witnesses has levelled a false accusation/evidence against someone, he should be punished with Hudd Qazf.

In the Hudood Ordinance, the one who has been falsely accused has to file another and separate case against the accuser and if he/she doesn’t, the court does not act by itself against the person who makes a wrong accusation.

All the panelists agreed that it is un-Islamic and referred to Surah-e-Noor of the Holy Quran, which categorically states that if the accuser fails to produce four true witnesses, he should be awarded 80 lashes. Maulana Malik also cited a Hadith referring to the law of Qazf.

The scholars debated at length the main question of zina bil-jabr and its evidence requirement and punishment.

While Prof. Ghamidi and Dr. Hashmi said that rape is separate from fornication/adultery and therefore should have its own specific requirements of evidence and punishments, Maulana Malik and Mufti Muneeb held the view that according to the dictionary zina, or fornication/adultery, and zina bil-jabr, or rape, are the same since these are acts of zina. The only difference, they added, is that in the former, both parties get punished, while in the latter, the victim is not.

Prof. Ghamidi and Dr. Hashmi insisted that zina bil-jabr is a crime against humanity and society and comes under hiraba –- the crimes stated by Allah Almighty in Surah Maidah — and should be punished according to the punishments suggested by the Holy Quran regarding such heinous crimes, and should not be confused with zina’s evidence requirement and punishment mentioned in the Holy Quran.

The debate indicated that if the confusion (zina and zina bil-jabr) is not cleared, one would be indicating that the shariah wants four witnesses for zina bil-jabr as well as for zina, and that a victim, who accuses a rapist, will not only worry about what society will think when she admits being raped while seeking justice, but if she cannot produce four witnesses against the accused, she in return can be liable under the Qazf Ordinance.

While the scholars disagreed on this point, the programme clarified that the discussion was held only on the Hudood Ordinance, which is a man-made interpretation of Hudood Allah and therefore should be treated as such.

Mufti Muneeb reiterated that he and Maulana Malik are in favor of making corrections to the ordinance and improving it but would not side with those who want to repeal it.

At the end of the show, the scholars presented their closing arguments, thanking Geo TV for offering the leading ulema of the country an opportunity to come together on a single platform and hold an intellectual debate on the Hudood Ordinance in the light of the Holy Quran and Sunnah.

The Zara Sochieye debate was the culminating point of a long series of discussions on the Hudood Ordinance under the Zara Sochieye initiative.

Geo TV interviewed various religious scholars and legal experts from across Pakistan, covering different ideologies and schools of thought. The main objective was to bring to the forefront an issue that has remained controversial for almost three decades, and has divided society. Most importantly, many scholars indicated it was important to talk about the Hudood Ordinance because it had been promulgated in the name of Islam, professing to be in conformity with the Holy Quran and Sunnah, while in fact it has led to many acts of injustice in society. Hence, Islamic scholars were asked the primary question of whether they think the Hudood Ordinance is a divine law that cannot be touched (as many have assumed for so long), or is it a man-made law that can be improved upon.

Similarly, Justice K.M.A Samdhani (Law Secretary 1978-80), Dr. Mahmood Ghazi (involved in the drafting/reviewing process of the Hudood Ordinance and the current Director of the International Islamic University), Dr. Khalid Masood (Chairman of the Council of Islamic Ideology), Justice Haziqul Khairi (the Chief Justice of the Federal Shariat Court), along with many others, have all agreed that the Ordinance is man made and is not Hudood Allah and, therefore, can be changed, amended and improved.

Scholars who had been associated with the drafting of the Ordinance, such a Justice (retd.) Mufti Taqi Usmani has himself mentioned areas that need to be changed in the Ordinance especially on the issue of Qazf. Taqi Usmani in a written draft on the Hudood Ordinance had also indicated punishment under Tazeer for Zina should be reviewed.

Given the misrepresentation of the religion within the Ordinance, apart from Islamci scholars other have also demanded for change and even repeal has been recommended in the past. Under the chairpersonship of Justice (retd.) Nasir Aslam Zahid, The Commission of Inquiry on Women, recommended repeal of the law in 1997. The commission was a representative body of legal experts, ulema and human rights activists.

Again, in 2003, the National Commission on the Status of Women under the leadership of Justice (retd.) Majida Rizvi also recommended repeal of the Ordinance. These reports had been handed over to the governments of the time and were later expected to be discussed in the Parliament.

Early this year, the Council of Islamic Ideology studied these laws again and developed a report pointing out the weaknesses in the Ordinance in the light of the Holy Quran and Sunnah. The report is currently with the legal committee of the council which is working on a legal draft of the recommended changes. Again, this report may fall prey to the fact that the Council is a recommendatory body and will hand in the report to the Ministry of Religious Affairs.

Last week, the newly appointed Chief Justice of the Federal Shariat Court Justice Haziq ul Khairi mentioned that the Hudood Ordinance issue will be amongst the priority in his terms.

However, throughout twenty seven years of such criticism, commissions, recommendations and debate, the parliament has not opened the floor for discussion on the Ordinance. Such debate and discussion on the controversial laws can only be seen as an appeal to the parliament to bring this issue on to the table and make decisions regarding the law that will make it conform to the true spirit of Islam and while doing so, benefit the people of Pakistan. The Ordinance, now enshrined as a part of the Constitution of Pakistan, cannot be changed or repealed unless there is a majority in the parliament, accepting that these changes will be made. Now that the whole country is thinking, the question is: when will parliament think?