Repeal Hudood laws: NCSW

By Khurram Shahzad

ISLAMABAD: The Special Committee of the National Commission for the Status of Women (NCSW) on Hudood Ordinance has recommended the ordinance repealed, declaring it unjustified.

NCSW Chairperson Justice (r) Majida Rizvi, while launching a report on Thursday prepared by the special committee said that 12 members had recommended that the Hudood laws be repealed while only two members suggested that they not be repealed but amended to remove anomalies.

“This Special Committee, therefore, wishes to record that the participating members of the committee are unanimous in arriving at the conclusion that the Hudood laws as enforced are full of loopholes and anomalies and the enforcement of these has brought about injustice rather than justice, which should be the main purpose of the enforcement of Islamic law. Consequently, by a majority, this special committee recommends that all four Hudood Ordinances of 1979, should be repealed and the original laws with regard to the offences mentioned in these ordinances be restored,” she said. “However, in order to give due consideration to those minority members (two) who have recommended amendment to the ordinances rather than their repeal, the Special Committee suggests that if, after repealing as recommended by the Committee, Hudood laws are required to be enforced, the draft bill should be first widely circulated with a view to seeking the opinions of various sections of civil society in general, and women’s rights groups in particular, and subsequently it should be placed before the parliament for a full-fledged debate,” the committee added.

Ms Rizvi said as a result of deliberations of the meeting, 14 issues were identified by the committee members as the key issues in the zina (adultery) ordinance.

Those issues were: Is the law under discussion delivering justice? If not, then should it remain as part of the statute books? Is the existing provisions in the Hudood Ordinance 1979 are in accordance with the Islamic injunctions, particularly with reference to the Federal Shariat Court’s judgement in the Hazoor Bux case, in which two different benches gave conflicting judgements; one holding that Rajam is not according to the Islamic injunctions (PLD 1981 FSC 323) and the other stating that it was so (PLD 1983 FSC 255).

Is Section 8, which deals with the production of evidence for zina and zina-bil-jabr confusing and should the required evidence for each of the two be different and distinctive?

Under the existing law, the zina-bil-jabr victim becomes an accused, which is against the spirit of the Islamic legal system and encourages rape. The definition of “marriage” as provided in the ordinance in the context of time offence of zina.

Does the definition of “pregnancy” have any bearing on rape or zina?

Should the attainment of puberty be separated from adulthood? How can a girl at the age of 11 or a boy of the age of 15, if attained puberty, have enough understanding to know the implications of zina or zina-bil-jabr being enticed away and abused?

Can zina-bil-jabr be covered by zina as described in the Quran (Surah Noor 24:2)? (Zina-bil-jabr is not mentioned in the Quran and hence is a Tazeer issue).

Is the provision of only “male witnesses” a correct interpretation of the Quranic verse as the literal translation differs on the point? And does the law by providing for only Muslim male witnesses, attach leniency to the perverse elements who, despite their involvement in such heinous crimes, are likely to go free or just be penalised with mitigated punishments?

Does the punishment of Rajam come under Hadd or Tazeer? And under what conditions should it be awarded, particularly with reference to the verses of Surah Noor?

What is the rationale of including other offences not related to the Hudood, eg “enticing women”, “cohabiting with women” and “selling and using women prostitutes”?

Is it just that a law is made applicable to non-Muslims but they are prevented from being represented by a non-Muslim lawyer? Is it fair, equitable and in the spirit of Islamic injunctions that a non-Muslim witness cannot be judged under the Rule of Tazkiyatul-Shahood, and as such his evidence becomes a secondary evidence. Are non-Muslim witnesses discriminated as against Muslim witnesses because no weight is given to the testimony of a non-Muslim?

In view of exclusion of non-Muslims as witnesses and presiding officers of the court, what is the rationale of application of this law to the non-Muslims?

Can Tazeer punishments, in particular reference to the zina offences, be awarded under the Hudood laws? (Whether Tazeer is permissible as an alternative punishment)?

Is the entire ordinance is repugnant to the Islamic injunctions and needs to be repealed and drafted afresh, or could it be modified through some amendments and brought into conformity with Islamic injunctions?

The participants carried out brainstorming sessions on the issues. It was decided that each law would be discussed section by section to have an in-depth study of the law.

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