The Hudud Ordinances are laws in Pakistan enacted in 1979 as part of the Islamisation of Pakistan by Muhammad Zia-ul-Haq, the sixth president of Pakistan. It replaced parts of the British-era Pakistan Penal Code, adding new criminal offences of adultery and fornication, and new punishments of whipping, amputation, and stoning to death.Lau, "Twenty-Five Years of Hudood Ordinances", 2007: p.1296Lau, "Twenty-Five Years of Hudood Ordinances", 2007: p.1292 The Deobandi ʿulamāʾ declared these Ordinances as un-Islamic. After much controversy and criticism, parts of the law were extensively revised in 2006 by the Women's Protection Bill.
The Hudood law was intended to implement Shari'a law or bring Pakistani law into "conformity with the injunctions of Islam", by enforcing punishments mentioned in the Quran and sunnah for zina (extramarital sex),The Offence of Zina (Enforcement Of Hudood) Ordinance, 1979 : English text of the law qazf (false accusation of zina), theft, and consumption of alcohol. The system provided for two kinds of offences — hadd and tazir — with different punishments to go with them. Hadd offences (fixed punishment) require a higher standard of proof than tazir (discretionary punishment, a different category of sharia than Hudud but still part of the ordinances) and their punishments are more severe.
The zina provisions of the law were particularly controversial and critics alleged that there were "hundreds of incidents where a woman subjected to rape, or even gang rape, was eventually accused of zina" and incarcerated. In 2006 the laws were updated, excusing such women who failed to prove the rape.
Ordinances The ordinances follow the classical mainly Hanafi jurisprudence doctrine. One non-classical feature is that Hadd punishments can only be carried out after an appeal to the Federal Shariat Court has failed. The Federal Shariat Court, which has "exclusive jurisdiction" to examine whether or not a law is in accordance with the injunctions of Islam, was created along with the Ordinances.Lau, "Twenty-Five Years of Hudood Ordinances", 2007: p.1294
Under the ordinances, tazir punishments often involve flogging.
Offences Against Property (theft) ordinance
Officially known as "The Offences Against Property (Enforcement Of Hudood) Ordinance (VI of 1979)."
Offences Against Property liable to hadd must be theft of something nisab level of value, i.e. property worth more than 4.457 grams of gold (about USD $258 ) from a place where the property was protected.Kennedy, Islamization of Laws and Economy, 1996: p.56 evidence must be from a confession by the accused, or at least two Muslim adult male witnesses who are `tazkiyah-al-shuhood`, (truthful and non-sinners). Punishment for "theft liable to hadd"; first offence: "amputation of his right hand from the joint of the wrist"; second offence: "amputation of his left foot up to the ankle"; third offence: imprisonment for life; Theft liable to tazir: Whoever commits theft, which, is not liable to 'hadd' or for which there is no confession or evidence provided by two qualifying Muslim adult male witnesses, or for which 'hadd' may not be imposed or enforced under this Ordinance; Punishment for theft liable to tazir: is stipulated in the Pakistan Penal Code (Act XLV of 1860).
For robbery liable to hadd, the right hand of the offender and his left foot should be amputated by a surgeon.
Zina (extramarital) Ordinance
Officially known as "The Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)" refers to fornication, adultery and zina bil jabbar (rape). The most controversial of the four ordinances,Lau, "Twenty-Five Years of Hudood Ordinances", 2007: p.1302 it has several distinct categories of sexual offences and assigned punishments for each: zina liable to hadd; punishable by stoning to death for the adulterer public whipping of 100 lashes for a fornicator zina liable to tazir; punishable by imprisonment for up to ten years zina-bil-jabr liable to hadd; zina-bil-jabr liable to tazir;
Further Zina offenses are (or as of 1991 were)Kennedy, Islamization of Laws and Economy, 1996: p.80 kidnapping sodomy enticement attempted rape abetment of zina crime deceitful marriage conspiracy to engage in prostitution
Under hadd, eyewitnesses evidence of the act of penetration by "at least four Muslim adult male witnesses", about whom "the court is satisfied", that "they are truthful persons and abstain from major sins (kabair)" (tazkiyah al-shuhood). Because of this stringent standard, no accused has ever been found guilty and stoned to death in Pakistan,As of 1991, only a handful of hadd cases were brought before the district courts, and only two hadd convictions (both property cases) survived appeal before the Federal Shariat Court. Both of these were later overturned by the Supreme Court. (source: ) and punishments have been awarded only under the Tazir provision of the Hudood Ordinance which uses circumstantial evidence.
The ordinance also abolished Pakistan's statutory rape law.
The 2006 Act has now removed zina bil jabbar from the Zina Hudood Ordinance and inserted sections 375 and 376 for Rape and Punishment respectively in the Pakistan Penal Code to replace it.
Qazf (false accusation of fornication or adultery) Ordinance
Officially known as: "The Offence of Qazf (Enforcement of Hudood) Ordinance of 1979". It described the offence of false accusation of Zina (fornication and adultery) either written, verbal or "by visible representations", with intent to cause harm, and without producing four witnesses in support of the accusation before the Court, or who "according to the finding of the Court", a witness has given false evidence of the commission of zina or rape, or when a complainant has made a false accusation of rape; Proof of "qazf liable to hadd" includes the accused confessing to it in court, the accused committing qazf in court, or if two Muslim adult male witnesses (other than the victim of the qazf) testify that the defendant committed qazf. (If the accused is a non-Muslim, the witnesses may be non-Muslims.) Punishment of "qazf liable to hadd" will be a whipping numbering 80 stripes. "Qazf liable to Tazir" applies whenever proof in any of the forms mentioned above is not available, or when the perpetrator has committed 'qazf' against any of his descendants, or when the victim of qazf has died during the "pendency of the proceedings"; punishment of "qazf liable to tazir" shall be imprisonment for up to two years, a whipping of up to 40 stripes, and may also include a fine.
Prohibition (alcohol) Order
Officially known as: "The Prohibition (Enforcement of Hadd) Order of 1979", described the offence of producing, importing, selling, owning, possessing or consuming alcohol.
Producing, bottling, selling alcohol is punishable by imprisonment of up to five years, or flogging of up to 30 stripes, and may also be fined. Owning or possessing is punishable by imprisonment of up to two years, or flogging of up to 30 stripes, and may also be fined. Drinkers liable to hadd are adult Muslims who "takes intoxicating liquor by mouth" if they confess to drinking or evidence is given by "two Muslim adult male witness" of good character. They "shall be punished" with flogging of "eighty stripes". Drinkers liable to tazir include non-Muslim citizens of Pakistan who have been drinking (unless it is "part of a ceremony prescribed by his religion"): non-Muslim, non-citizens of Pakistan, who have been drinking in a public place; Muslims for whom "the offence stands proved by the evidence on the record" but not by hadd evidence of two Muslim witnesses, etc. these drinkers shall be punished by imprisonment of up to three years, flogging of up to 30 stripes, or both. Owning or possessing heroin, cocaine, opium or coca leaf is also punishable with imprisonment, flogging and fines.
Whipping Ordinance
"The Execution of the Punishment of Whipping Ordinance of 1979" was developed to regulate the punishment of whipping/flogging.
It specifies that whips shall be made of leather, or a cane or a branch of a tree, be no longer than 1.22 meters and no thicker than 1.25 cm. The convict shall be medically examined before flogging to determine if the flogging should be "applied in such manner and with such intervals" that it does not kill the offender being flogged. Flogging may be postponed if the offender is ill, pregnant, or if the weather is too cold, etc. Stripes shall not be applied to "the head, face, stomach or chest or the delicate parts of the body of the convict," and should not lacerate the skin of the convict.
Controversy and revision
Whipping In 1996 the Abolition of Whipping Act (passed by Benazir Bhutto's Pakistan People's Party), forbade sentences/punishments of whipping offenders except when imposed as a hadd punishment. It has "greatly reduced" the instances of corporal punishment.
Zina (extramarital) Ordinance In the two and a half decades the law was unchanged, several Pakistani government appointed commissions recommended the Zina Ordinance's repeal (such as the National Commission for the Status of Women in 2003, the Special Committee to Review the Hudood Ordinances, 1979, Commission of Inquiry for Women).See MUHAMMAD KHALUD MASUD, HUDOOD ORDINANCE 1979 (PAKISTAN): AN INTERIM BRIEF REPORT 126-66 (2006)| accessed 18 November 2014| (discussing the findings of commissions and organizations that have reviewed the Zina Ordinance and recommended reform or repeal)Moeen H. Cheema, Cases and Controversies: Pregnancy as Proof of Guilt Under Pakistan's Hudood Laws, 32 BROOK. J. INT'L L. 121, 128 n.20 (2006) (discussing the commissions that have recommended the repeal of the Hudood Ordinances).Lau, "Twenty-Five Years of Hudood Ordinances", 2007: p.1297-8 Critics of the law alleged that while no one had actually been executed by stoning or had their hand or foot amputated in punishment as a result of the law,Lau, "Twenty-Five Years of Hudood Ordinances", 2007: p.1305 the ordinance made it dangerous to file rape charges as the women could be punished under tazir if they failed to prove an allegation of rape. In 1979, before the ordinances went into effect there were 70 women held in Pakistani prisons; by 1988, there were 6000. In 2004, eighty-eight of the two hundred and forty-six women held at the Karachi Central Jail were held under the Hudood Ordinance's Zina laws. Almost all of the women were working class, factory and domestic workers, and almost all were there because of a complaint filed by a family member saying they had committed Zina.Jails and prisoners, State of Human Rights 2004, HRCP 1500 women are "believed to be in jail in March" in 2003 according to the HRCP report.Hudood Ordinance - The Crime And Punishment For Zina amnesty.orgIn 2003 the National Commission on Status of Women estimated 1500 women were in prison, but according to another report (statistics compiled by the Society for Advancement of Community Health Education and Training (SACHET) and Lawyers for Human Rights and Legal Aid (LHRLA) Team for Karachi Women Prison) 7000 women and children were kept in extremely poor conditions in 75 jails in 2003-2004 (sources: Violence against Women and Impediments in Access to Justice Pakistan: Pakistani religious law challenged )
According to legal scholar Martin Lau