Hudood Ordinance

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The Hudood Ordinance (Urdu: حدود مسودہ ) was a law in Pakistan, that was abolished in 2006. It has been replaced by the Women's Protection Bill.

Originally, the Hudood Law was ostensibly intended to implement Muslim Shari'a law, which enforces punishments mentioned in the Quran and sunnah for a number of crimes, including extra-marital sex (zina^[1]), the drinking of alcohol, and theft. It was enacted in 1979 as part of then military ruler Zia-ul-Haq's Islamization process.

The ordinance is most criticized for making it exceptionally difficult and dangerous to prove an allegation of rape. A woman alleging rape is required to provide four adult male witnesses of "the act of penetration", and if the accused man is Muslim, the witnesses must be Muslims themselves. Failure to prove rape places the woman at risk of prosecution for the accusing an innocent man of adultery, which does not require such strong evidence.^[2]

[edit] Hudood Law VS Quran and Sunnah

The above clause of Hudood law are exact opposite of Quranic verses 24:4 and a number of hadith

And those who launch a charge against chaste women, and produce not four witnesses (to support their allegations),- flog them with eighty stripes; and reject their evidence ever after: for such men are wicked transgressors

and 24:6-9 in case of marital disuptes Quran Ch 24

Islam, as shown in both the Koran and the hadith forbids perzinahan (sexual intercourse outside of marriage). A person who commits a sexual act outside of marriage is considered to lose their faith. As the Prophet said in one of the texts of the hadith narrated by Abdullah bin Abbas:

A person who commits this act (sexual intercourse outside of marriage) is not a true believer of their faith Imam Bukhari and Muslim (See Ibn Al-Atsir, Jami al-Ushul, XII/329 no. 9330).

Perzinahan is the act of sexual intercourse outside of a valid marriage. The primary element of perzinahan is the physical act of sexual intercourse outside of marriage. Perzinahan could be the possible base for the formulation of the act of rape, but rape of course cannot be identified with perzinahan. Acts of rape possess an extra element to that of other sexual relations outside of marriage; that is, the force and violence used creating a traumatic experience for the victim.

Acts of rape also occurred at the time of the Prophet Muhammad, as is expressed in a text of the hadith narrated by Imam Turmudzi and Abu Dawud, from close friend Wail bin Hujr (see Ibn al-Atsir, Jami al-Ushul, IV/270, no 1823).

“One day (at the time of the Prophet) a woman left her house to go and pray at the Mosque. On her way she was met by a man who forced her to have sexual intercourse. The woman screamed while the man raped her. After he raped her the man ran away. A group of men (who accompanied the Prophet on his flight form Mecca to Medina) passed by the girl and she said to them (pointing in the direction of the man running) “that man just raped me”. They then ran after him and caught him and when face to face with the woman she said “yes that was the person”. They went to the Prophet and the man said “Yes Prophet it was me who did this”. The Prophet said to the girl “go now, God has already pardoned you”. The Prophet then said to the man (while appreciating his confession) “stone him”. He then said “Actually, he has already learnt his lesson and if someone learns their lesson all the people of Median will understand”.

Those who committed acts of rape at the time of the Prophet were punished, while the victim was freed with the hope that they would obtain forgiveness form God. At that time the punishment for rape – which had been carried out with force and violence was precisely the same punishment as those who committed perzinahan, which was not carried out with force or violence. As a result, the majority of religious teachers of the hadith and of fiqh place the act of rape on the same level as the act of perzinahan. The only difference is that with perzinahan both actors have to receive the punishment, while with rape only the rapist receives the punishment, while the victim is freed. But the threat of punishment facing both of the cases is the same.

Several other texts of the hadith support this argument, as is seen in the narration by Imam al-Turmudzi:

“There was a girl who was raped (at the time of the Prophet), she was freed from punishment for perzinahan (sexual intercourse outside of marriage), while the perpetrator was subjected to punishment”

In the narration by Imam Bukhari and Malik, from Nafi mawla Ibn Umar it says: “That Shafiyyah bin Abi Ubaid reports: “that a male slave meets a female slave and forces her to engage in sexual relations, so Khalifah Umar ( a close friend of the prophet) says punish him with a lashings but do not punish the woman (see Ibn al-Atsir, Jami al-Ushul, IV/269 no 1822).

For married Muslims, the maximum punishment for zina is death by stoning, or for unmarried couples or non-Muslims, 100 lashes. In practice, only imprisonment has ever been enforced, because the maximum punishments require four eyewitnesses as above.

The maximum punishments for drinking alcohol and theft are respectively 80 lashes and amputation of the right hand.

A number of international, Islamist and Pakistani human rights organizations campaign for the law's repeal. Some have argued that it goes beyond what is required by Shari'a,^[3] but they are opposed by culturally conservative religious parties, who accuse them of departing from Islamic values and would only support changes which accord with their own interpretation of Shari'a. The governments of Benazir Bhutto and Nawaz Sharif both set up commissions to investigate the Hudood Ordinance. Both commissions recommended amending certain aspects of the law, but neither government followed through.

The case of Mukhtaran Bibi, gang-raped in 2002, gained sustained international attention. In 2006, she was nominated for the North-South Prize of the Council of Europe and was invited to address the United Nations.

In 2006, President Musharraf again proposed reform of the Ordinance.^[4] On November 15 2006, the "Women's Protection Bill" was passed in Pakistan's National Assembly, allowing rape to be prosecutable under civil law. The bill was ratified by Pakistan's Senate on 23rd November 2006,^[5] and became law after President Musharraf signed it on 1 December 2006.^[6]

The reforms have come under considerable opposition from Islamist groups in Pakistan, who insist that law should stay in Sharia form but amended. Some Islamists have fiercly criticised the laws.^[7] Other legal experts have claimed that the original law was not so unbalanced as its opponents claim^[8] or that the reforms will be impossible to enforce.^[9]