Hudood Ordinance Totally Explained

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The Hudood Ordinance (Urdu: حدود مسودہ) (also spelled Hudud) was a law in Pakistan that was enacted in 1979 as part of then military ruler Zia-ul-Haq's Islamization process, and replaced/revised in 2006 by the Women's Protection Bill. The Hudood Law was ostensibly intended to implement Islamic Shari'a law, by enforcing punishments mentioned in the Quran and sunnah for Zina (extramarital sex), Qazf (false accusation of zina), Offence Against Property (theft), and Prohibition (the drinking of alcohol).
The ordinance has been criticized as leading to "hundreds of incidents where a woman subjected to rape, or even gang rape, was eventually accused of Zina" and incarcerated, and defended as punishment ordained by God and victim of "extremely unjust propaganda".

Sentences

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.

Controversy

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 good standing of "the act of penetration". In practice this is virtually impossible as no man of good standing would stand there and watch the violent act. Failure to find such proof of the rape places the woman at risk of prosecution for accusing an innocent man of adultery, which doesn't require such strong evidence. Moreover, to prove rape the female victim has to admit that sexual intercourse had taken place. If the alleged offender, however, is acquitted for want of further evidence the woman now faces charges for either adultery, if she's married, or for fornication, if she isn't married. According to a report by Pakistan National Commission on the Status of Women (NCSW) "an estimated 80% of women" in jail in 2003 were there as because "they had failed to prove rape charges and were consequently convicted of adultery."
Stories of great personal suffering by women who have claimed to be raped have appeared in the press in the years following the passing of the Hudood ordinances.

The evidence of guilt was there for all to see: a newborn baby in the arms of its mother, a village woman named Zafran Bibi. Her crime: she'd been raped. Her sentence: death by stoning. Now Ms. Zafran, who is about 26, is in solitary confinement in a death-row cell ...
Thumping a fat red statute book, the white-bearded judge who convicted her, Anwar Ali Khan, said he'd simply followed the letter of the Koran-based law, known as hudood, that mandates punishments.
"The illegitimate child isn't disowned by her and therefore is proof of zina," he said, referring to laws that forbid any sexual contact outside marriage. Furthermore, he said, in accusing her brother-in-law of raping her, Ms. Zafran had confessed to her crime.

However, Mufti Taqi Usmani, an instrumental figure in making the law, has stated

If anyone says that she was punished because of Qazaf (false accusation of rape) then Qazaf Ordinance, Clause no. 3, Exemption no. 2 clearly states that if someone approaches the legal authorities with a rape complaint, she can't be punished in case she's unable to present 4 witnesses. No court of law can be in its right mind to award such a punishment.

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, but they're 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.
In 2006, President Musharraf again proposed reform of the Ordinance. 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 23 November 2006, and became law after President Musharraf signed it on 1 December 2006.
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. Other legal experts have claimed that the original law wasn't so unbalanced as its opponents claim or that the reforms will be impossible to enforce.

Comparison with Quran and sunnah

The relevant Quranic verses are 24:4 ("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 [...]") and 24:6-9 in the case of marital disputes.
   Both the Quran and the hadith forbid zina (sexual intercourse outside of marriage). A person who commits a sexual act outside of marriage is considered to have committed a grave sin. 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) isn't a true believer of their faith." (Imam Bukhari and Muslim; see also Ibn Al-Atsir, Jami al-Ushul, XII/329 no. 9330)
   Zina has been defined in the Islamic legal tradition as an act of sexual intercourse outside of a valid marriage. Although zina is a necessary component of rape, it isn't sufficient. Rape possess an additional element to zina, namely, coercion. Thus, medieval Muslim scholars recognized the distinction between consensual and coercive zina, and held the victim of coercive zina to be relieved of any moral or legal liability.
   Acts of rape occurred at the time of the Prophet Muhammad, as is expressed in a hadith narrated by Imams Tirmidhi and Abu Dawud through Wa'il 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 had accompanied the Prophet on his emigration from 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. When they put him 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 I who did this." The Prophet said to the girl, "Go now, God has already pardoned you." The Prophet then said to the man (acknowledging his confession), “Stone him.” He then said, “Actually, he's already learned 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'd obtain forgiveness from 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 zina, which wasn't 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 zina. The only difference is that with zina both actors receive the punishment, while with rape only the rapist receives the punishment, while the victim is freed. But the threatened punishment upon perpetrators in both cases is the same.
   Several other texts of the hadith support this argument, as is seen in the narration by Imam al-Tirmidhi:
ť There was a girl who was raped (at the time of the Prophet). She was freed from punishment for zina (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: ť That Shafiyyah bin Abi Ubaid reports: "A male slave met a female slave and forces her to engage in sexual relations, so Khalifah Umar (a close friend of the prophet) said, "'Punish him with a lashings but don't punish the woman.'" (see Ibn al-Atsir, Jami al-Ushul, IV/269 no 1822).

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