By
S. Iftikhar Murshed*
Abstract
The Hudood Ordinances deviate from the spirit of Islamic law which is founded on the rights of the people. Not only has this been ignored in the ordinances, but some of the injunctions of the Qur’an have also been misinterpreted. For instance, zina or adultery is the only offence specified by the Qur’an that punishes those who accuse others of the crime but are unable to meet the quadruple evidentiary requirement of four witnesses to establish guilt. If adultery is not proved, the accused are considered innocent and are not liable to any form of punishment under tazir which relies on circumstantial evidence and is not sanctioned by the Qur’an. Furthermore rape, which is a crime of violence, is not a sub-category of the Qur’anic zina law which pertains exclusively to consensual extramarital sex. In Islamic jurisprudence, it is a crime under hiraba and the perpetrator, not the victim, is punished if proven guilty. Absolute prohibition is also not deducible from the Qur’an because intoxicants are not included among things forbidden or haram. The amputation of the hand for theft is a punishment of the last resort. It has to be seen in the context of the fundamental principle of Islamic law that no duty (taklif) can be imposed on the individual without his being granted a corresponding right (haqq) which means that the state must first fulfill its part of the social contract by providing economic and social security to all citizens. If a person is compelled by extreme poverty to steal, it implies that the state has failed to provide him the means to earn a reasonable livelihood and, therefore, cannot impose a punishment of such severity on him. Till the Hudood laws are repealed in their entirety, the long night of oppression, that women in particular have undergone, will not come to an end.
If bad laws are the worst form of tyranny as Edmund Burke believed, then this was proved by General Muhammad Zia-ul-Haq’s Hudood Ordinances promulgated in 1979 and enforced the following year. The fundamental principle that was ignored is that Islamic law is founded on the rights of people and those who aim to establish a Muslim state based on the shariah commit the supreme folly of starting “with the hudood punishment. This is the end result of Islamic law, not the beginning. The beginning is the rights of people. There is no punishment in Islam which has no corresponding right.”1 These rights were violated with the introduction of the hudood laws and women, in particular, suffered the most. In the process the actual injunctions of the Qur’an were misinterpreted and distorted. Till then Pakistan’s criminal legal system was founded on Anglo-Saxon law and this included the colonial era’s Penal Code, the Criminal Procedure Code and the Evidence Act which was applied countrywide minus the tribal areas where customary law prevailed.2Though this system continued, the procedures and punishments for some of the offences were changed and the claim was made that these modifications, known as the Hudood Ordinances, were in conformity with the textual commandments of the Qur’an.
Hudood, the plural of Hadd which means boundary or limit, has been defined as an “Arabic term indicating crimes that are textually specified (i.e., in the Quran and sunnah) and are accompanied by stipulated punishments. Often they are called the grand sins, kaba’ir. These include zina (adultery), qazf (slander), hiraba (highway robbery), khamr (the drinking of alcohol) and ridda (apostasy).”3
The criminal laws which collectively constitute the 1979 Hudood Ordinances of Pakistan are: (i) the Offence of Zina Ordinance relating to adultery, fornication, rape and abduction; (ii) the Offence of Qazf Ordinance dealing with false accusation of zina which includes both adultery and fornication; (iii) The Prohibition Order proscribing the use of alcohol and drugs; (iv) the Offence Against Property Ordinance pertaining to theft and armed robbery, and; (v) the Execution of Punishment of Whipping Ordinance. Alongside these a sixth ordinance amending the Code of Criminal Procedure was also promulgated.4
Adultery, rape, theft, armed robbery and the consumption of alcohol were already offences in Pakistan prior to the Hudood Ordinances which introduced two new crimes namely, Qazf and fornication.5
A former Chief Justice of Pakistan, Mr. Muhammad Munir, who is remembered as much for his insightful 387-page report on the anti-Ahmadi disturbances of 1953 in Lahore as for his controversial validation in 1958 of constitutional deviations under the infamous doctrine of necessity, observed that the Hudood Ordinances of 1979 did not include apostasy and murder. Both, according to Justice Munir, constitute hudood offences and the judge does not have the discretion to alter the punishments because these are mandated by the Qur’an and the sunnah.6
The punishments prescribed under the Hudood Ordinances are harsh but these were justified on the ground that they were recognized by Muslim jurists as being in conformity with the laws of Islam. What resulted was a distortion of Islamic tenets because some of the laws thus enacted were completely at variance with the actual injunctions of the Qur’an. The reason was that spurious Traditions of the Prophet influenced the jurists.
Several scholars have dwelt at length on this problem. For instance Justice Munir commented that there could be no two opinions about the authenticity of the Quran, “but the moment we enter hadis, which is a record of the actions, sayings and approvals of the Holy Prophet, we enter into a field of controversy. That most of the Ahadis were invented or fabricated does not admit of any doubt. Abu Daud accepted only 4,800 out of 500,000 Ahadis and Bukhari relied only on 2,000 out of 40,000 narrators of Hadis. According to Tabqat-ul-Kubra, Abdulla, the son of Imam Ahmed bin Hanbal stated that his father had reduced into writing ten million traditions which he could repeat from memory. And this despite the Holy Prophet’s warning that his sunnah was not to be recorded unless ‘ye know for a surety.’ And several compilations were burnt during the Khilafat-i-Rashida. This was done lest the authority of the Qur’an be affected. ‘My words do not’ the Prophet had said ‘abrogate the word of God but the word of God can abrogate my sayings’ (Mishkat, Book V. Col. XVI). The Holy Prophet himself burnt one collection, two others were burnt, one by Hazrat Abu Bakr and the other by Hazrat Usman (The Qur’anic Law of Crimes, by Mir Waliullah, pp. 42-43).”7
The Offence of Zina Ordinance
The punishment for adultery ordained by the Qur’an is a hundred stripes.8 In Islamic law, the term zina or adultery “signifies voluntary sexual intercourse between a man and a woman not married to one another, irrespective of whether one or both of them are married to other persons or not: hence, it does not – in contrast with the usage prevalent in most Western languages – differentiate between the concepts of
‘adultery’ (i.e., sexual intercourse of a married man with a woman other than his wife, or a married woman with a man other than her husband) and
‘fornication’ (i.e., sexual intercourse between two unmarried persons).”9 In this sense the inclusion of fornication as a punishable offence under zina in the Hudood Ordinances was in accordance with Islamic law.
The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 prescribes stoning to death for rape or zina if the crime is committed by married adult Muslims or a hundred lashes for adult non-Muslims or single Muslims. The claim that this is in accordance with the sunnah is unacceptable. The Qur’an does not differentiate illicit sexual relations between married and unmarried adults and, as such, the punishment is the same whether the offender is married or single. Furthermore, there is no death penalty in the Qur’an for extramarital sex and it is inconceivable that Prophet Muhammad could have violated its laws. Stoning to death for this offence is a Jewish punishment and was awarded by the Prophet to “a Jew and Jewess in one case and others apparently occurred before the revelation of” the law relating to adultery. 10
The Qur’an is free from contradictions and its injunctions on a particular issue, which are often repeated in its various chapters, reinforce and explain each other. If, as some Muslim jurists believe, stoning to death is mandatory for adultery despite there being no warrant for such punishment in the Holy Book, then this cannot be reconciled with the Qur’anic ordinance that the penalty is halved for a person in bondage.11
Commenting on this injunction, Maulana Muhammad Ali (1874-1951) observes: “It is plainly laid down here that if a married slave-girl commits adultery, her punishment is half of the punishment prescribed for the free married woman who commits adultery. This shows that the Holy Qur’an never contemplated stoning as the punishment for adultery because it could not be halved, as a matter of fact the Holy Book nowhere speaks of stoning; the only punishment for adultery it speaks of is a hundred stripes (24:2).”12
The death penalty for this crime was challenged as un-Islamic in the Federal Shariat Court of Pakistan in 1981.13The court, which was established the previous year, is an appellate body and consists of eight judges three of whom are from the ulema (religious scholars) and hence have no legal experience. Of the five judges who heard the case, only one upheld stoning to death, three were of the opinion that it was not Islamic and one believed that it was permissible as a tazir sentence i.e., “a fall-back position from Hadd.”14
The judge who claimed that Islam ordained stoning to death, Justice Karimullah Durrani, was apparently confused because he also stated that verse 3 of chapter 24, titled An-Nur (The Light) of the Qur’an “prohibits marriage between an adulterer and a non-adulterer.” He then attempted to substantiate this by quoting the translation of the verse as: “The adulterer shall not marry save an adulteress or an idolatress and an adulteress no one shall marry save an adulterer or idolater. All that is forbidden unto believers.”15 The obvious implication is that capital punishment was never envisaged by the Qur’an because the question of marriage does not arise if adulterers are to be put to death. Justice Durrani must have believed that the English rendition of the Qur’anic passage quoted by him was accurate or else he would not have used it in a court of law and especially when it was deliberating on an issue of such importance. However this did not deter him from upholding the death penalty as Islamic and he cited a number of Ahadis including one in which Ali ibn Abi Talib (598-661), the fourth of rightly guided caliphs, objected to this form of punishment in the case of a woman who had been sentenced to stoning by Caliph Usman on giving birth to a child after only six months of marriage. Ali is said to have proved from two verses of the Qur’an that it was possible for a woman to give birth after six months of conception. Accordingly, Usman revoked the sentence “but the woman could not be saved as she had by then been stoned to death.”16
Whereas the Qur’anic verse cited by Justice Durrani rules out capital punishment, the translation of the passage he relied upon is inaccurate because it violates a fundamental principle of Islamic law i.e., “once a crime has been expiated by the transgressor’s undergoing the ordained legal punishment (in this case, a hundred stripes), it must be regarded insofar as the society is concerned, as atoned for and done with.” 17
Therefore if the offenders have been punished, there can be no religious justification disallowing them from marrying persons who have never been guilty of adultery.
Muhammad Asad (1900-1992) in his The Message of the Qur’an resolves this problem by rendering the verse as: “The adulterer couples with none other than an adulteress – that is, a woman who accords (to her own lust) a place side by side with God; and the adulteress couples with none other than an adulterer – that is, a man who accords (to his own lust) a place side by side with God: this is forbidden unto the believers.” The twelfth century philosopher, historian and theologian, Abu’l-Fakhr ad-Din ar-Razi, famed for his Qur’an commentary titled Mafatih al-Ghayb (“The Keys of the Unseen”) from the Qur’anic line “ With Him are the Keys of the Unseen” (6:59),18 was of the view that the formulation of this verse is a mere statement of fact and cannot be construed as an injunction. Asad explains that the verb yankihu, which appears twice in this passage cannot, “have the customary meaning of ‘he marries’ but must, rather, be understood in its general sense – applicable to both lawful as well as unlawful sexual intercourse – namely, ‘he couples with.’ It is in this sense that the great commentator Abu Muslim (as quoted by Razi) explains the above verse, which stresses the fact that both partners are equally guilty inasmuch as they commit their sin consciously – implying that neither of them can excuse himself or herself on the ground of having been merely ‘seduced.’”19
As a majority of the judges in the Federal Shariat Court were of the view that stoning to death for adultery was not Islamic, the punishment was set aside. This unleashed countrywide protest rallies organized by the ulema. Zia-ul-Haq succumbed to the pressure and enacted a constitutional amendment empowering the Federal Shariat Court to review its own judgments.20 The judges, with the exception of one, were replaced and in 1981 the government filed a review petition. The reconstituted court announced its decision on 20 June 1982 with the comment that the Federal Shariat Court was not competent to examine the Islamic character of the Hudood Ordinances. Five of the six judges upheld stoning to death (rajm) as a Hadd punishment while one was of the view that it was an Islamic punishment but under tazir. 21 Thus it was political expediency and not any selfless commitment to the actual injunctions of the Qur’an that prompted the revision of the earlier judgment.
In rounding off his judgment validating stoning to death for adultery one of the judges said “this is a matter of pure belief and faith as followers of the Holy Prophet (Peace be upon him) and his Caliphs which requires no reasoning or arguments.”22 Thus the judge had no compunction of sentencing a person to death without thought or reason on the basis of his belief alone. Yet in several of its passages the Qur’an emphasizes the use of reason, for instance, “Verily, the vilest of all creatures in the sight of God are those deaf, those dumb ones who do not use their reason.”23
In another verse, it describes itself in the words “In (all) this, behold, there are messages indeed for people who think!”24 To Aristotle “Law is reason free from passion” and if justice is to be served, reason, and not emotion, must govern the verdicts of the courts.
The Qur’an requires the evidence of four firsthand witnesses, as against two for all other criminal and civil suits, to prove adultery.25 The mandatory punishment of a hundred stripes which has to witnessed by an unspecified number of people26 can, therefore, seldom be imposed. Even in the unlikely event that adultery is proved, the purpose of the seemingly harsh punishment is to shame rather than cause serious corporal injury. According to Maulana Muhammad Ali, “It aimed more at disgracing the culprit than at torturing him. In the time of the Prophet, and even for some time after him, there was no whip, and flogging was carried out by beating with a stick or with the hand or with shoes. The culprit was not stripped naked, but he was required to take off thick clothes.” 27
During the first hearing at Pakistan’s Federal Shariat Court in 1981when stoning to death was declared un-Islamic, Justice Agha Ali Hyder referred to the opinion expressed by Maulana Abul A’la Maududi (1903-1979): “If the offender was old or infirm a broom with a hundred sticks was considered sufficient, so that one blow would meet the ends of justice.” The judge was attempting to prove that understanding human nature is fundamental to the spirit of Islam.28 The fallibility of all humans is recognized by the Qur’an which declares “man has been created weak.”29
Furthermore, the opinion of important Islamic jurists is that for adultery to be proved the four witnesses must have actually seen penetration failing which the evidence is considered insufficient. This conclusion is founded on an authenticated Tradition according to which the Prophet repeatedly ignored the confession of a man that he had committed adultery. When the latter persisted, the Prophet cross- examined him in some detail in order to determine whether penetration had actually occurred.30 Eventually the person was punished because of his confession but the woman was neither prosecuted nor was her alleged indiscretion even investigated. The indispensible prerequisite for the evidence to be admissible is that the witnesses must be of irreproachable probity and there must not have been any intrusion into the privacy of the accused. Under these conditions it is virtually impossible to establish guilt unless the act was performed in public. The Qur’an undoubtedly forbids adultery in the strongest possible terms but the inescapable implication is that the punishment is for public indecency rather than for private extramarital sexual intercourse.31 Professor M. Cherif Bassiouni of the DePaul University, Chicago, who was nominated for the Nobel Peace Prize in 1999 for his work on the international criminal justice system, writes: “the requirement of proof and its exigencies lead to the conclusion that the policy of the harsh penalty is to deter public aspects of this form of sexual practice.”32
The Qur’anic requirement of four witnesses was intended to protect citizens, in particular women, against slander and false accusations of adultery as is evident from the passage: “And as for those who accuse chaste women (of adultery), and then are unable to produce four witnesses (in support of their allegation), flog them with eighty stripes; and ever after refuse to accept from them any testimony – since it is they, they that are truly depraved!”33
The import of the verses on the zina laws as enunciated and elaborated in the Qur’an is that the honour not only of women but also of men has to be safeguarded. Among the specified hadd crimes, it is only for adultery that punishment is mandated for the accusers if they are unable to substantiate their allegations through the quadruple evidentiary stipulations. Even then, the two preconditions for such evidence to be admissible are that the four witnesses must have actually seen penetration during the illicit sexual act without intrusion into the privacy of the accused. If these stringent evidentiary requirements are not met then those leveling the accusations are to be punished with eighty stripes and the accused are considered innocent insofar as the state is concerned. Adultery is a major sin and punishable by the state only if conclusively proved. Individuals are responsible for their private sexual indiscretions to God.
From this it follows that unproven accusations of adultery cannot be punished under tazir as in other hadd offences. Circumstantial evidence which is the basis of the tazir punishments in Pakistan for adultery is not in accord with Islamic jurisprudence. In 1981 tazir was challenged in the Federal Shariat Court on the ground that the only form of punishment recognized by the Qur’an was hadd.34 However, instead of examining this important issue on merit, the court dismissed the petition on technical grounds. By allowing adultery to be prosecuted as a tazir punishment, the zina ordinance of Pakistan violates the mandatory evidentiary requirements specified by the Qur’an. Lawyers and human rights activists have no doubt that the tazir punishment of zina is “the most insidious element” of the hudood laws. It has been, and continues to be, extensively applied and the impact is that thousands of citizens, mostly women, languish in prison.35
The preamble of the zina ordinance claims that its purpose is “to modify the existing law relating to zina so as to bring it in conformity with the Holy Qur’an and Sunnah.” By including rape or zina-bil-jabr within its ambit, it violates the letter and spirit of the Qur’anic law on adultery. The textual formulation of the Qur’an on the subject pertains only to consensual extramarital sexual intercourse and not rape.
This distortion of Islamic law under the zina ordinance was partially rectified by the Protection of Women (Criminal Laws Amendment) Act, 2006 which was approved through only a minimum number of majority votes by the National Assembly of Pakistan on 15 November 2006, by the Senate a few days later and came into force on 1 December of that year. Consequently rape was taken out of the Hudood Ordinances and included in the Pakistan Penal Code. What needs to emphasized here is that this crime of violence should never have been subsumed as a sub-category of the zina ordinance as it is not permissible under Islamic legal principles.
In Islamic law it is the perpetrator of rape and not the victim that is punished. According to a well-authenticated Tradition, when a woman reported to the Prophet that she had been forced to commit adultery, he punished the perpetrator but not the woman.36 Similarly Caliph Umar ibn al-Khattab punished the rapist of a slave girl but did not prosecute her.37 These and other Traditions as well as the writings of Islamic legal scholars absolve rape victims of any transgression.
In Islamic jurisprudence rape is not categorized as a criminal offence under zina but under the hadd crime of hiraba which involves forcible taking, highway robbery, terrorism and waging war against the state. In a well-thought-through paper, Columbia University’s Asifa Quraishi has demonstrated that it is in discussions of hiraba that the crime of rape appears.38 For example in the Fiqh-us-Sunnah which summarizes the main traditional schools of Islamic law, hiraba is defined as “a single person or group of people causing public disruption, killing, forcibly taking property or money, attacking or raping women (hatk al’arad), killing cattle or disrupting agriculture.”39
The classification of rape under hiraba is also confirmed by some of the most eminent scholars of Islamic law. According to the Maliki School, a person who “obstructs the road, even without the intention to take money, intending to harm someone, or intending to rape a woman” is liable for punishment under hiraba.”40 This was elaborated by Ibn ‘Arabi (1165-1240) in his comments on an incident in which a group was attacked and a woman among them was raped. The question arose whether the crime was an offence under hiraba as weapons were not used and neither was any money taken. Ibn ‘Arabi’s terse response was “hiraba with the private parts” had occurred and this was infinitely worse than the mere taking of money.41
Ibn Hazm (994-1064), the renowned Cordova-born theologian of Arab-Persian decent, who, as a follower of the Zahiri (exoterist) School of Law, believed that only the “explicit” and not the hidden meanings of the Qur’an were admissible. Despite this literalist predilection, he defined a hiraba offender as “One who puts fear on the road, whether or not with a weapon, at night or day, in urban areas or in open spaces, in the palace of a caliph or a mosque, with or without accomplices, in the desert or in the village, in a large or small city, with one or more people…making people fear that they’ll be killed, or have money taken, or be raped whether the attackers are one or many.”42
These views of some of the most outstanding thinkers and scholars leave little doubt that in Islamic jurisprudence rape, which is a crime of violence, is an offence under hiraba and cannot be included as a sub- category of the Zina Ordinance. In a hiraba prosecution, the rapist and not the victim is the focus. The almost impossible condition of four witnesses is dispensed with and circumstantial evidence including those of forensic experts is admissible. The classification of rape as a zina offence with its stringent evidentiary requirements has resulted in the persecution instead of the protection of women. Thus criminals went free while the victims were punished.
In 1983 alone, 1,684 cases of zina were reported to the police, the following year the number increased to 1,842.43 The Pakistan National Commission on the Status of Women (NCSW), which was established in 1999 as an advisory body for the eradication of laws discriminatory to women, reported that 80 percent of the female prisoners in 2003 had been convicted for alleged adultery after they had failed to prove allegations of rape. A human rights survey conducted in mid-2006 revealed that a staggering 200,000 Hudood-related cases were pending in the courts and this had resulted in the unjust detention of those awaiting sentence, mostly women. By early 2007 there were 6,500 imprisoned females in Pakistan.44
These figures, like all statistics, are cold-blooded and do not depict what these victims of the law, particularly women, have undergone since the promulgation of the Hudood Ordinances. Rape victims have been violated while in police custody, they have been ostracized by their peers and in, a patriarchal society with its skewed code of honour, many have been killed by their own families. To cite just one example, 15 year old Jehan Mina, a rape victim who had become pregnant, was awarded a hundred stripes for adultery on account of her pregnancy while her assailant went free for want of evidence. Her father had died some years earlier, her mother had remarried and entrusted her to the care of her grandfather who wanted to kill the child because of the “dishonor” she had brought to the family. By the time Jehan was convicted on 22
February 1983 she had given birth and the sentence was changed to three years’ rigorous imprisonment “in view of her tender age” and was to be enforced after two years in order to enable her to care of the infant. In the words of an eminent lawyer “such compassion is sometimes more revolting than the sentence itself.”45 Thousands of other similar incidents have been documented by human rights group but nothing has been done to strike down the Hudood laws.
In June 2006, the Council of Islamic Ideology, which is an advisory body with no power of enforcement, proposed that women detained under Hudood charges be released on bail. In a unanimous decision in April 2007 the Council ruled that a woman forced to have sexual intercourse should not be considered guilty of adultery but should, instead, be viewed as a victim of rape. The press note issued on the occasion stated: “In this case (rape), the woman will be a complainant and the state will be bound to investigate, arrest the rapist and punish him if the crime is proved.”
According to Justice Dorab Patel, a former judge of the Supreme Court of Pakistan, rape, even in a civilized jurisprudence, is difficult to prove because it is usually un-witnessed. The burden of proof rests with the prosecution and, under the rule of prudence, courts cannot convict a person accused of rape on the exclusive testimony of the victim. Common sense is however abandoned under the Hudood laws because rape victims are prosecuted for adultery on the basis of two questionable assumptions. First, the allegation of rape was false because the accused was acquitted and second, the allegation is an admission of sexual intercourse and implies a confession of adultery. In other words the implied confession is an admission of guilt while an allegation of rape is a repudiation of guilt. Justice Dorab Patel recalled: “The law declared on this question by the Supreme Court in Rehmani’s case (PLD 1978 SC 200) is clear beyond any doubt. We held in this case that only a statement which is a clear admission of guilt, or of the facts constituting the guilt, is a confession. We also pointed out that a statement cannot be treated as a confession by relying on the inculpatory part and excluding the exculpatory part.”46 The assumption that an unproven allegation of rape amounts to confession is, therefore, contrary to the law declared by the Supreme Court.
The Prohibition Order
The former Chief Justice of Pakistan, Justice Muhammad Munir, was of the opinion that the absolute prohibition of intoxicants “is not deducible from the Qur’an, because these are not included in the things which were declared haram (forbidden).”47 At the time of Prophet Muhammad two types of alcoholic beverages, sakar and khamar, were known in Arabia and only these are referred to in the Qur’an. The former was derived from dates and the latter from grapes through a process which involved boiling in water till two-thirds of the liquid evaporated and the residue was lawful for drinking. Two verses of the Qur’an favour its use and two are against it.48
Justice Munir was convinced that cut and dried answers on prohibition were not available in Islamic jurisprudence and “the lawfulness or otherwise of intoxicating drinks is not so simple as it is considered to be.” The Qur’an expressly prohibits carrion, blood, swine flesh and animals sacrificed other than in the name of God and that is where it ends.49 The four textual references in the Holy Book to intoxicants are:
(i) “They will ask thee about intoxicants and games of chance. Say: ‘In both there is great evil as well as some benefit to man; but the evil which they cause is greater than the benefit which they bring.’”50
(ii) “O you who have attained to faith! Do not attempt to pray while you are in a state of drunkenness, (but wait) until you know what you are saying…”51
(iii) “O you who have attained to faith! Intoxicants, and games of chance, and idolatrous practices, and the divining of the future are but a loathsome evil of Satan’s doing: shun it, then, so that you may attain to a happy state!”52
(iv) “And (We grant you nourishment) from the fruit of date- palms and vines: from it you derive intoxicants as well as wholesome subsistence – in this behold, there is a message indeed for people who use their reason.” 53
Though the Qur’an neither categorically prohibits the consumption of intoxicating drinks nor indicates any punishment, the Mishkat al- Masabih, which contains 4434 to 5945 Traditions of the Prophet in 29 books, prescribes 80 lashes. There has been a substantial amount of discussion on the subject. Burhan-ud-din Ali Abi Bakr al- Marghinani’s (1152-1197) Hidaya, an authoritative guide to fiqh (Islamic jurisprudence) which is the basis of Anglo-Islamic law in Pakistan and India, dwells at some length on the differences of views expressed by jurists especially Abu Hanifa (699-767). Known also as Al-Imam al- Azam(the Great Imam), Abu Hanifa’s opinion was that “Khamar is the name of an intoxicant made from grapes and by a particular process. Therefore, all other intoxicants made from figs, dates, wheat and barley are not khamar and the Qur’anic Ordinances relating to Khamar cannot apply to them.”54 In other words intoxicants made from these substances “can be drunk in moderate quantities or as a medicine but not so as to produce a state of khamar which is a word derived from the same root as mukhammirat and according to all lexicographers means a state of stupefaction or loss of senses.”55
The implication, therefore, is that the motive of the law or the ratio legis is that the use of Khamar is prohibited because it intoxicates. Scholars such as Mir Waliullah (1887-1964) believed that imbibing any other intoxicant is a sin and a culpable offence if taken in such quantities so as to result in inebriation i.e., stupefaction or loss of senses.56 Abu Hanifa’s opinion is that punishment for drunkenness is permissible if the person cannot comprehend what is said to him, is unable to differentiate between a man and a woman or between two objects while two of his disciples believed that he should not be able to speak coherently and many jurists agree with this definition. According to Imam Shafi’i (767-820) a state of intoxication is established if a person cannot walk without staggering or becomes giddy.57With the exception of the Hanafis, Islamic jurists are of the opinion that drinking spirits is unlawful. Imam Abu Hanifa’s conclusion is that it is neither unlawful nor punishable provided it is taken in moderate quantities or as a medicine.58
What emerges is that there is no unanimity of opinion among Muslim jurists whether the taking of intoxicants is prohibited in Islam. Yet, under the Hudood laws of Pakistan, the punishment is not only harsh but its application also defies logic and common sense. The punishment for drinking as per the Ordinance is eighty lashes on the evidence of two witnesses. If however a person is drunk and the medical report confirms that he has been imbibing, hadd is not applicable unless two witnesses testify that they have seen him drinking. “On the other hand, if a person sips a spoon of an alcoholic beverage in the presence of two pious male
Muslims, he is awarded hadd.”59Furthermore the taking of narcotics and drugs does not invite hadd under the Ordinance.
The Offence Against Property Ordinance.
The Qur’an states: “It is but a just recompense for those who make war on God and his apostle, and endeavour to spread corruption on earth, that they are being slain in great numbers, or crucified in great numbers, or have, in result of their perverseness, their hands and feet cut off in great numbers, or are being (entirely) banished from (the face of) the earth: such is their ignominy in this world. But in the life to come (yet more) awesome suffering awaits them – save for such (of them) as repent ere you (O believers) become more powerful than they: for you must know that God is much-forgiving, a dispenser of grace. ”60 Though the words clearly show that the verses deal with the punishment that is to be awarded to those who wage war, instigate rebellion and create disorder in the land, the Hudood Ordinance on the Offence Against Property “Enforcement of Hadood Ordinance 1979” considers the passage as prescribing punishment for highway robbery accompanied by murder or otherwise and accordingly awards the following penalties, as summarized by Justice Munir, for these crimes which are not even mentioned in the cited Qur’anic passage:
(i) “When no murder has been committed nor any property has been taken away whipping not exceeding 30 and 3 years rigorous imprisonment.
(ii) “Where no property is taken away but hurt is caused as for hurt under the existing law.
(iii) “Where property of a certain value has been taken away but no murder has been committed, cutting of the right hand from the wrist and left foot from the ankle.61
The jurists in Pakistan who based the punishments in the Offence Against Property Ordinance on the quoted passage of the Qur’an cite classical commentators that the text is a legal injunction. A closer look at the textual formulation suggests that this is an inaccurate interpretation because the four passive verbs “slain,” “crucified,” “cut off,” and “banished” are in the present tense and do not indicate the future or the imperative mood. It is, therefore, not a divine commandment but a statement of fact. What is implied is that a deviation from all ethical and moral values leads to strife for the attainment of mundane objectives such as power and wealth for which communities and nations have gone to war through the ages.
Furthermore it is inconceivable that the Qur’an would ordain that those “who make war on God and His apostle” should be slain, crucified, mutilated and banished “in great numbers” as that would imply “arbitrariness on the part of the Divine Law-Giver.”62Only a group of persons, or even a single individual, may be involved in fomenting rebellion and endeavouring “to spread corruption” and it would therefore violate all norms of justice if people are punished “in great numbers” for the wrong-doings of a few.
Commentators also have difficulty in explaining the phrase they “are being (entirely) banished from (the face of) the earth.” Some believe it means the transgressors will be banished from the land of Islam, but not once is the word “earth (ard)”used in the Qur’an in such a restrictive sense. Others have advanced the absurd proposition that the offenders should be incarcerated “in a subterranean dungeon” as that “would constitute their banishment from the face of the earth!”63
The Qur’anic passage does not mention highway robbery or murder and neither does it contain any legal injunction but Pakistani jurists have derived laws from it pertaining to property under the category of hiraba offences because they believe violence or taking forcibly as in dacoity is involved.64Punishment for non-violent theft or saraqa has been enjoined in the Qur’an but the manner in which it has been interpreted is literal and ignores the underlying spirit of the laws in the scripture.
The punishment for theft as specified in the Qur’an is harsh: “Now as for the man who steals and the woman who steals, cut off the hand of either of them in requital for what they have wrought, as a deterrent ordained by God: for God is almighty wise. But as for him who repents after having thus done wrong and makes amends, behold, God will accept his repentance: verily, God is much-forgiving, a dispenser of grace.”65The extreme severity of this form of punishment has to be seen from the fundamental principle of Islamic law that no obligation or duty (taklif) can be imposed on the individual without his being granted a corresponding right (haqq) by the community or state. Implicit in the failure to fulfill duties and obligations is punishment. However, the punishment cannot and must not be inflicted if the government has not fulfilled its part of the social contract by providing the corresponding right in respect of the obligation. Unless the state guarantees and provides social security within its economic resources to every member of the community, whether a believer or a non-believer, it cannot impose the punishment.
In an Islamic society, each individual is entitled to a share in the economic resources of the community. Islam recognizes that poverty is as soul-destroying as unrestrained materialism and this was acknowledged by Prophet Muhammad who said: “Poverty may well turn into a denial of truth (kufr).”66Islam, like other religions, emphasizes God- consciousness and spirituality but it also discourages the renunciation of worldly pursuits, “…But as for monastic asceticism – We did not enjoin it upon them…”67If material progress results in a more equitable distribution of wealth then such advancement is in accord with the tenets of the religion. The Qur’an thus emphasizes unity between the spiritual and the temporal aspects of mortal existence because it flows from the oneness of God. Moderation is the norm and the human race is told “And thus have We willed you to be a community of the middle way”68 and this is the bedrock on which Islamic society is founded.
In the context of the punishment for theft, the implication is that the state must first ensure that “every man, woman and child has (a) enough to eat and wear, (b) an adequate home, (c) equal opportunities and facilities for education, and (d) free medical care in health and in sickness. A corollary of these rights is the right to productive and remunerative work while of working age and good health, and a provision (by the community or the state) of adequate nourishment, shelter etc., in cases of disability resulting from illness, widowhood, enforced unemployment, old age or under age.”69 These rights can only be assured by a welfare state which has the resources at its disposal. If such resources are not available as during the early years of the Prophet’s ministry, then the privations have to be shared equally by the entire community without which there cannot be social justice. Pakistan is not a welfare state that is envisaged by Islam nor are its resources distributed equitably. Till poverty is eradicated the state does not even have the right to enact a law that prescribes the amputation of the hand of a person who is impelled by poverty to steal.
Furthermore, the formulation of the Qur’anic passage on theft makes it clear that the punishment of cutting off of the hand is not awarded if the thief repents and implicitly it is not imposed if the offence is committed for the first time. It therefore applies to a habitual thief.70Some commentators also believe that the phrase “cutting off of the hand” may be construed either literally or metaphorically. If “taken metaphorically, it would simply mean restraining a thief by imprisonment or otherwise.”71
This is probably a correct interpretation as in classical Arabic idiom, the amputation of “one’s hands and feet is often synonymous with destroying one’s power” i.e., rendering a person incapable of committing the offence.72
Justice Munir refers to Section 95 of the proviso of the Offence Against Property “Enforcement of Hudood Ordinance 1979” which states “where the Ordinance provides that if a person commits the offence for the third time he would be imprisoned for life. But if he is sincerely penitent the High Court may release him on such terms and conditions as it may deem fit.”Thus for the first offence, the thief loses his right hand while for the second his left foot up to the ankle. Such a person “will present a funny appearance and will hardly be able to commit theft for the third time, and if he is entitled on the third offence to get his freedom, can he not be put in a penitentiary on the commission of the first offence if he is given time to repent and reform himself.”73The same views were also expressed by several other jurists, notably Justice Muhammad Sharif a former member of the Islamic Commission.
The hadd punishments awarded under the Ordinance on property are ludicrous. For example a person’s hand can be amputated if two adult male Muslims see him stealing anything worth more than two thousand rupees from an enclosed space but even if any number of women or non-Muslims see him making away with millions he is not liable for hadd and is awarded punishment under tazir. “Similarly, a Rolls Royce can be stolen with impunity of hadd, since the robbers did not take it from an enclosed room.” 74
Conclusion
There has been no dearth of commissions and committees starting from the Zari Sarfraz Commission in 1983 that have examined and critiqued the Hudood Ordinances of Pakistan. In 1997, the Commission of Inquiry on Women headed by Justice Nasir Aslam Zahid recommended the repeal of these laws.
In 2003 the Pakistan National Commission on the Status of Women established a 15-member Special Committee chaired by Justice Majida Rizvi to advise the government on eradicating laws discriminatory to women and make recommendations on the Hudood Laws. The members of the committee observed that the ordinances had been hurriedly drafted and enforced with indecent haste. Justice Majida Rizvi was of the view that the Hudood laws “do not reflect the correct principles of Islamic criminal law and are not in accordance with Islamic injunctions.” Justice Shaiq Usman felt that the defects of the ordinances were so basic that amending these would not serve any purpose and might even result in more injustice. Twelve of the fifteen members of the Special Committee recommended that the ordinances be repealed.
During an interview in September 2008, Justice Khalil-ur-Rahman Ramday of the Pakistan Supreme Court claimed that the Hudood Ordinances had in fact not made any sharp changes to the existing laws. Soon after the creation of the Federal Shariat Court in 1981 he had been deputed by the Punjab government to assist the court in reviewing all the laws that had been in place since 1841in order to determine whether any of them were contrary to the injunctions of Islam. The findings of the court were that hardly any of the laws enacted during the colonial era were repugnant to Islam “and whatever little un-Islamic provisions were found, unfortunately were the ones enacted after 1947 and not by the British.” Justice Ramday cited the Qanoon-e-Shahadat which sought to bring the Evidence Act of 1872 in line with the requirements of Islam but in actual fact little was changed except the nomenclature of the law. This was because the Qur’an specifies only a few laws and all that is required of society is the doing of justice. Implicit in this is the recognition that new laws would have to be enacted and constantly reviewed in accordance with the constantly changing needs of the people.75
It may be correct that little in the Anglo-Saxon laws was found repugnant to Islam and were accordingly retained. Nevertheless the few new laws and procedures that were introduced with the promulgation of the Hudood Ordinances reflected the misogynistic predilections of a patriarchal society and not the gender egalitarian emphasis of Islamic doctrine. The impact was entirely negative. Though hadd penalties such as stoning to death, the amputation of a limb and the flogging of women have not been executed, so long as these punishments remain in the statute books ordinary citizens, particularly women, will continue to live in fear.
Furthermore, the Qanoon-e-Shahadat which lays down the evidentiary procedures for tazir punishments (the rules of evidence for hadd are included in the Ordinances) may have introduced only nine new sections and merely changed the numbering of the Evidence Act of 1872, but these additions have generated controversy and protests. The emphasis in the Qanoon-e-Shahadat is the ocular evidence of witnesses of sound character whose number is determined in accordance with the offence: “The Court shall determine the competence of a witness in accordance with the qualifications prescribed in the injunctions of Islam as laid down in the Holy Qur’an and Sunnah for a witness, and, where such witness is not forthcoming, the Court may take the evidence of a witness who may be available.” The original text of the new law specified the testimony of two men or of two women and one man for all matters. After vehement public protests this was amended thereby implying “that either the recommended law was not truly Islamic or the fundamentalists had compromised their beliefs under pressure.” The new law has had no impact because the Evidence Act of 1872 continues to be applied by the courts.76
The recommendations for the repeal of the Hudood Ordinances have fallen on deaf ears because of the fear that this could unleash a violent backlash from the extremist fringe of Pakistani society. Even if the hadd punishments, which have till now not been carried out, are revoked it will make little difference unless the arbitrary tazir penalties, which have been enforced and caused so much suffering, are also abrogated. It is not hadd punishments alone that have to be struck down from the statute books but the Hudood Ordinances in their entirety.
A former chief justice of the Dhaka High Court once remarked “Law is an expression of the common sense of the race. A Portuguese proverb says: ‘Like king, like law; like law, like people.’ It obliges us to do what is proper and not simply what is just. It is, therefore, a repository of the morals of the people. It does not, by itself, generate justice, which has to be imported in its application.” 77The application of laws that do not protect but persecute ordinary citizens can never generate justice. When such laws are wrongly presented as being divinely ordained they are immoral. These reasons warrant the immediate repeal of the Hudood Ordinances only then will the long night of tyranny come to an end.
Note. All quotes from the Qur’an are from Muhammad Asad’s The Message of the Qur’an.
References:
1. Hasan Gai Eaton’s prologue in Muhammad Asad’s The Message of the Qur’an, p. v; published by the Book Foundation, Bristol, England; 2003.
2. Jahangir, Asma; Jilani, Hina; The Hudood Ordinances, A Divine Sanction? p. 23; Sang- e-Meel Publications, Lahore, 2003.
3. Encyclopedia of Islamic Civilisation and Religion; p.239; edited by Ian Richard Netton; Routledge, New York; 2008.
4. Muhammad, Munir; From Jinnah to Zia; pp. 124-125; Vanguard Books Ltd., Lahore; 1980.
5. The Hudood Ordinances, A Divine Sanction?; p.24.
6. From Jinnah to Zia; p.125.
7. Ibid.; p.142.
8. Qur’an; “An-Nur (The Light),” 24:2.
9. Asad, Muhammad; The Message of the Qur’an; p. 594; published by The Book Foundation, Bristol, England; 2003.
10. Ali, Muhammad (Maulana); The Holy Qur’an; p.679; Specialty Promotions Co. Inc. Chicago; 1973.
11. Qur’an; “An-Nisaa (Women),” 4:25.
12. Ali, Muhammad (Maulana), The Holy Qur’an; pp. 197-198.
13. PLD 1981 FSC 145 Hazoor Baksh.
14. The Hudood Ordinances, A Divine Sanction?; p.24.
15. Ibid.; p.27.
16. Ibid.; p.28.
17. Asad, Muhammad; The Message of the Qur’an; p.595.
18. Glasse, Cyril; The Concise Encyclopedia of Islam (Revised Edittion); Stacey International; London; 2002.
19. Ibid.; p.595.
20. Constitution (Amendment) Order 1981 (P.O. No. 5 of 1981) Section 3 (w.e.f. 13 April 1981) cited in The Hudood Ordinances, A Divine Sanction? p.29.
21. The Hudood Ordinances, A Divine Sanction? pp. 29-30.
22. Ibid.; p.30.
23. Ibid.; “Al-Anfal (Spoils of War)” 8:22.
24. Qur’an; “Az-Zumar (The Throngs)” 39:42.
25. Ibid.; “An-Nur (The Light)” 24:4.
26. Ibid.; “An-Nur (The Light)” 24:2.
27. Ali, Muhammad (Maulana), The Holy Qur’an, pp. 679-680.
28. The Hudood Ordinances, A Divine Sanction? p.27.
29. Qur’an; “An-Nissa (Women)” 4:28.
30. Bukhari 8:528-35 (Bk. Nos. 806, 810, 812-14). Abu Daud 3: Nos. 4413-14.
31. Salama, Mamoun M.; “General Principles of Criminal Evidence in Islamic Jurisprudence,” In the Islamic Criminal Justice System; edited by M. Cherif Bassiouni; 1982; Oceana Publications, Inc.
32. Bassiouni, Cherif M; “Sources of Islamic Law and the Protection of Human Rights in the Islamic Criminal Justice System;” In the Islamic Criminal Justice System; Oceana Publications, Inc.
33. Qur’an; “An-Nur (The Light)” 24:4.
34. PLD 1981 FSC 284 Iqbal Shah.
35. The Hudood Ordinances, A Divine Sanction? p.32.
36. Bukhari. 8 Chapter 7. Mishkat al-Masabih 1:762 (citing hadith in Tirmidhi and Abu Daood).
37. See Malik 392. Al-Maqdisi 8:129
38. Asifa Quraishi, “Her Honour: An Islamic Critique of the Rape Laws of Pakistan from a Woman-Sensitive Perspective,” Michigan Journal of International Law (1997. Vol. 18, 287).
39. Sabiq, 1993, 450 – Sayed, Sabiq. Fiqh-us-Sunnah; 10th Edition. Mecca: Baq al Loq.
40. Al-Jaziri, Abdur Rahman; Kitab Al-Fiqh ‘Ala Al-Mathahib al-‘Arba’a; p.410-11; Cairo, 1981; Dar al-Irshad lil Talif wa-al-Tab’ wa al-Nashr.
41. Quoted by Asifa Quraishi in “Her Honour: An Islamic Critique of the Rape Laws of Pakistan from a Woman-Sensitive Perspective,” Michigan Journal of International Law, 1997. Vol. 18, 287.
42. Quoted by Asifa Quraishi from Fiqh-us-Sunnah; Mecca: Bab al-Loq, 1993; 2:450.
43. Ibid; p.32.
44. Vilani Peiris; “Musharraf’s reform of Pakistan’s rape law – a cynical manoeuvre” (24 January 2007); World Socialist Web Site.
45. The Hudood Ordinances, A Divine Sanction? pp. 55-57.
46. The Hudood Ordinances, A Divine Sanction? p. 14.
47. From Jinnah to Zia; p.126.
48. Ibid.; pp. 125-126.
49. Qur’an; “Al-Baqarah (The Cow)” 2:173; “Al-Maa’idah (The Repast)” 5:3.
50. Ibid; “Al-Baqarah (The Cow)” 2:219.
51. Ibid; “An-Nisaa (Women)” 4:43.
52. Ibid; “Al-Maa’idah (The Repast)” 5: 90.
53. Ibid; “An-Nahl (The Bee)” 16:67.
54. From Jinnah to Zia; p.127.
55. Ibid.; p.127.
56. Waliullah, Mir; Muslim Jurisprudence and the Qur’anic Law of Crimes; pp.76-77.
57. Hamiltion, Charles; The Hedaya:. Commentary on the Islamic Laws,(Translation); Grady’s edition; p. 194.
58. From Jinnah to Zia; pp. 127-128.
59. The Hudood Ordinance, A Divine Sanction? p.53.
60. ur’an; “Al-Maa’idah (The Repast)” 5:33 34.
61. From Jinnah to Zia; p.129
62. Asad, Muhammad; Message of the Qur’an; p.172.
63. Ibid.
64. Munir, Muhammad; From Jinnah to Zia; pp.128-129.
65. Qur’an; “Al-Maa’idah (The Repast) 5:38-39
66. Quoted by As-Suyuti in Al-Jami as-Saghir.
67. Qur’an; “Al-Hadid (Iron)” 57:27.
68. Ibid.; “Al-Baqarah (The Cow)” 2:143.
69. Asad, Muhammad; The Message of the Qur’an; p.174.
70. Ali, Muhammad (Maulana); The Holy Qur’an; p. 252.
71. Ibid.
72. Asad, Muhammad; The Message of the Qur’an; p. 172.
73. Munir, Muhammad; From Jinnah to Zia; p.130.
74. The Hadood Ordinances, A Divine Sanction? p.49.
75. Criterion; vol. 3 no. 3 (July-September 2008) “Interview with Justice Khalil-ur-Rahman Ramday,” pp. 21-22.
76. The Hudood Ordinances, A Divine Sanction? pp.30-31.
77. Forward by Justice S.M. Murshed, in Justice M.R. Kayani’s A Judge May Laugh and Even Cry; p. vi; Pakistan Writers Cooperative Society; Lahore; 1983
