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The Laws Affecting the The Laws Affecting the Rights of Women in Rights of Women in

Pakistan: with specific Pakistan: with specific reference to Hudood reference to Hudood

LawsLaws

Presentation Presentation by by

Justice (R) Majida RazviJustice (R) Majida Razvi

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Constitution of Pakistan, Constitution of Pakistan, 19731973

Art. 4 Right of individual:Art. 4 Right of individual:

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

of every other person for the time of every other person for the time being within being within Pakistan.Pakistan.

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Fundamental Rights:Fundamental Rights: Guarantee equality in Guarantee equality in all spheres of lifeall spheres of life

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

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

(2)(2) There shall be no discrimination on the basis of sex There shall be no discrimination on the basis of sex alonealone

(3)(3) Nothing in this Article shall prevent the State from Nothing in this Article shall prevent the State from making any special making any special provision for the protection of women provision for the protection of women and childrenand children

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Art.27Art.27 Safeguard against Safeguard against discrimination in services:discrimination in services:

(1) (1) No citizen otherwise qualified for No citizen otherwise qualified for appointment in the service of appointment in the service of

Pakistan Pakistan shall be shall be discriminated against in discriminated against in respect of any such appointment on respect of any such appointment on

the ground only of race, the ground only of race, religion, caste, religion, caste, sex, residence or sex, residence or place of birthplace of birth

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Principles of PolicyPrinciples of Policy

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

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

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

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

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

and adequate livelihood with and adequate livelihood with reasonable rest and leisure.reasonable rest and leisure.

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Main Discriminatory Laws in Main Discriminatory Laws in PakistanPakistan

Citizenship Act, 1951Citizenship Act, 1951

Qisas & Diyat Act 1997Qisas & Diyat Act 1997

Hudood Ordinances, 1979Hudood Ordinances, 1979

Qanoon-e-Shahadat Qanoon-e-Shahadat

All Other Discriminatory LawsAll Other Discriminatory Laws

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Citizenship Act, 1951Citizenship Act, 1951

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

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

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

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

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Qisas & Diyat Act, 1997Qisas & Diyat Act, 1997

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

Absence of mandatory provision for Absence of mandatory provision for compensation to women victims of compensation to women victims of violence violence

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

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

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

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

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

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

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

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

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The Review of The Review of Hudood Hudood

Ordinances, 1979 Ordinances, 1979

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Context of Promulgation Context of Promulgation of Hudood Ordinances, of Hudood Ordinances,

19791979

PoliticalPolitical LegalLegal

(Constitutional Guarantees; (Constitutional Guarantees; ‘Islamization Laws)‘Islamization Laws)

Socio-cultural Socio-cultural

(Constitution vs. Customary (Constitution vs. Customary Laws, e.g. Laws, e.g. Jirga Jirga system, system, “Honour” Killings)“Honour” Killings)

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Enforcement of Hudood Enforcement of Hudood Laws in PakistanLaws in Pakistan

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

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

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

4.4. Prohibition (Enforcement of Hadd) Order, Prohibition (Enforcement of Hadd) Order, 19791979

5.5. Execution of Punishment of Whipping Execution of Punishment of Whipping OrderOrder

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Key Issues Key Issues 1.1. The Question arises as to why a law is introduced? The Question arises as to why a law is introduced?

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

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

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Offence Against Property Offence Against Property (Enforcement of Hudood) Ordinance, 1979 (Enforcement of Hudood) Ordinance, 1979

……..7/26……..7/26

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

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

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

Is it fair that the Tazeer provisions are mixed with Is it fair that the Tazeer provisions are mixed with

the Hudood provisions?the Hudood provisions?

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3.3. In the Hudood Laws In the Hudood Laws Section 8, which deals Section 8, which deals with the production of with the production of evidence for Zina and evidence for Zina and Zina-bil-Jabr is Zina-bil-Jabr is confusing. Since both confusing. Since both the offences are the offences are distinctive, the required distinctive, the required evidence for each of the evidence for each of the two should be different two should be different and distinctive; because and distinctive; because under the existing law, under the existing law, the victim in Zina-bil-the victim in Zina-bil-Jabr becomes an Jabr becomes an accused, which is unjust accused, which is unjust and against the spirit of and against the spirit of the Islamic legal the Islamic legal system. The law system. The law actually encourages actually encourages rape.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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4.4. The law provides same punishment for The law provides same punishment for Zina & Zina & Zina-bil-Jabr, which is not Zina-bil-Jabr, which is not according to Quran & according to Quran & Sunnah Sunnah while while Zina, is described in the Qur’an Zina, is described in the Qur’an (Sura (Sura Nur 24:2 Surah) Zinah-bil-Jabr is not Nur 24:2 Surah) Zinah-bil-Jabr is not mentioned in the Qur’an and mentioned in the Qur’an and hence hence punishment for punishment for Zina is Hud while Zina is Hud while Zind-bil-Jabr is Tazeer.Zind-bil-Jabr is Tazeer.

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

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

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

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

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

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

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

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

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

11. 11. Is it justified Is it justified that:that:

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 2958

Ever after: for such men

Are wicked transgressors-

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12.12. The Nisab figure of The Nisab figure of 4.457 grams of gold 4.457 grams of gold in section 6 of in section 6 of Offence Against Offence Against Property Ordinance, Property Ordinance, 19791979 was too low to was too low to determine theft liable determine theft liable to Hadd, therefore, it to Hadd, therefore, it should be revised. should be revised. There must be a There must be a nexus between this nexus between this amount and what the amount and what the Holy Prophet (PBUH) Holy Prophet (PBUH) prescribed.prescribed.

As to the thief, 742

Male or female,

Cut off his or her hands:

A punishment by way

Of example, from Allah,

For their crime:

And Allah is Exalted in Power,

Full of Wisdom.

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

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

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

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

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

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Recommendations Given by Recommendations Given by the Special Committee Setup the Special Committee Setup

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

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

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

OrdinanceOrdinance were defective and led to injustice against women. were defective and led to injustice against women.

The The main defects pointed out were as follows:main defects pointed out were as follows:

1.1. Exclusion of women’s evidenceExclusion of women’s evidence2.2. Exclusion of non-Muslim Pakistani citizens’ evidenceExclusion of non-Muslim Pakistani citizens’ evidence3.3. Exclusion of non-Muslim judges from presiding – Exclusion of non-Muslim judges from presiding –

unless the accused is a non-Muslimunless the accused is a non-Muslim4.4. Linkage of adulthood with puberty Linkage of adulthood with puberty 5.5. Proof of Zina (adultery & fornication) and Zina-bil-Proof of Zina (adultery & fornication) and Zina-bil-

Jabr (rape) – same requirementsJabr (rape) – same requirements6.6. Law provides that an offender can retract his Law provides that an offender can retract his

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

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

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

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

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

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