What does the Bill contain?
By Anwar Syed
Dawn,Sep 24

MUCH has been said about the positions, pro and con, taken by the various political parties and coalitions concerning the Protection of Women (Criminal Law Amendment) Bill that the government moved in the National Assembly a few weeks ago and which appears to be going nowhere. Some observers believe that, unnerved by the opposition, the government has decided to consign the bill to the proverbial “cold storage”.

We do know that the bill was intended to amend certain provisions in The Offence of Zina (Enforcement of Hudood) Ordinance (commonly known as the Hudood Ordinance), promulgated by General Ziaul Haq in February 1979 (less than two months before the execution of Zulfikar Ali Bhutto) largely to project himself as a champion of Islam and to ingratiate himself with the ulema.

Proceeding from the premise that the “hudood” invoked in Ziaul Haq’s ordinance are the word of God and His Prophet (PBUH), the Islamic political parties assembled in the MMA have argued that any amendment of its provisions would be tampering with the Quran and Sunnah and therefore intolerable. They threatened to resign their seats in the National Assembly and withdraw from the coalition government in Balochistan in case the Protection of Women Bill passed in the version recommended by a parliamentary select committee. It wanted to change that version. The proponents of the bill maintained that in no way did it violate the Quran and Sunnah. The Muttahida Qaumi Movement (MQM), a component of the ruling coalition at the centre and in Sindh, vowed to vote against the bill if it incorporated the MMA’s revisions.

So far, we (the newspaper readers and television viewers) have merely been punching the clouds. We have not been told the specifics over which they are fighting. Even reputable newsmen do not seem to know the provisions in the Hudood Ordinance that its critics want to take out and the nature of their objections to the same. Nor has the MMA identified the provisions in the Protection of Women Bill to which it objects and explained how these provisions violate the Quran and Sunnah.

Yet we must know what exactly the issues are if we are to consider them intelligently and constructively. We are thrown back to our own resources in this undertaking. I have located the text of the so-called Hudood Ordinance, studied it, and I will share with the readers my reaction to such of its provisions as might be open to objection.

The Ordinance has the purpose of modifying the existing law relating to zina so as to bring it into conformity with the injunctions of Islam as set out in the Quran and Sunnah. Before proceeding further, we must have a firm grasp of some of the key terms used. (1) An adult is one who is 18 years of age if male, and 16 (or past puberty) if female. (2) “muhsan” is a Muslim adult man or woman, married to a Muslim adult woman or man, and the marriage in each case has been consummated (that is, the party concerned has had sexual intercourse with his/her lawful spouse). (3) “Hudood” are the penalties prescribed by the Quran and Sunnah for named offences. (4) “Tazir” means any punishment other than the hudood. (5) “Zina” is wilfully committed sexual intercourse between a man and a woman who are not validly married to each other; “penetration” being sufficient to establish that the deed has been done.

If the parties to the act of zina are “muhsin” (that is Muslim adults and married, but not to each other, which makes their act “adultery”), they are to be stoned to death in a public place. (After the stoning has begun, the convicted person may be shot dead whereupon the stoning shall stop.) If a party to zina is a single person (unmarried), he/she is to be sentenced to whipping numbering 100 stripes.

We now come to section 6 of the Ordinance, dealing with “zina bil Jabr” (rape), which torments the advocates of women’s rights more than anything else in this document. “Zina bil jabr” may be said to have taken place if one of the following circumstances is present: (1) parties to the sexual intercourse are adults and they are not married to each other; (2) one of them performs the act with the other against the latter’s (victim’s) will or without her consent; (3) the victim’s consent is obtained by putting her in fear of death or hurt in the event of non-compliance; (4) the victim gives her consent in the mistaken belief that the other party (offender) is her husband and the offender knows that to be the case. If the convicted party is a “muhsin” (adult, muslim, and married to a third party), he/she is to be stoned to death; if not a muhsin, he/she is to be whipped (100 stripes) and, at the judge’s discretion, awarded additional penalties, possibly including death.

If the person convicted in a rape case is not an adult, he/she may be awarded imprisonment for five years and, presumably, fine and whipping (30 stripes).

Whipping is required if the convicted person is more than 15 years of age. Note that the penalty in cases of zina and zina bil jabr is to be executed only after the relevant appellate court has confirmed it. Until then the convicted person remains in simple imprisonment.

We come now to the matter of proving that zina or zina bil jabr has been committed. The party concerned may appear before a competent court and confess his/her wrongdoing. Alternatively, the court, in order to convict, must have the testimony of four truthful adult Muslim male witnesses able to say that they have seen with their own eyes the sexual intercourse between the accused parties (actual penetration) taking place. The hadd is not to be applied if at any stage the accused retracts her/his confession, or if any of the pious witnesses resiles from his testimony.

In this event the judge may award punishment under another law (tazir) on the basis of such evidence as he may on record. In rape cases that are not liable to hadd imprisonment for four to 25 years plus whipping (39 stripes) may be awarded. In cases of gang rape, all participants in the act will get the same punishment.

Sections 11 to 13 of the Ordinance prescribe penalties for kidnapping a woman to force her into an unwanted marriage or to engage in sexual intercourse, buying and selling women to give them into prostitution, or abducting a boy to sodomise him.

How do we evaluate the Hudood Ordinance? Not only is it for the most part unenforceable, it seems to misrepresent the objective of the Islamic pronouncements with regard to sex out of wedlock. Leaving aside confession, which in the vast majority of cases is not likely to be forthcoming, the evidence required to establish guilt is extremely difficult to adduce. Various provisions of the Ordinance emphasise that the accused must not be insane if they are to be put through a trial. It is most unlikely that two sane persons in any civilised society will have sexual intercourse in a manner and in a place wherein four adult males can see with their own eyes the act of carnal conjunction.

Why then does Islamic law require evidence virtually impossible to furnish for establishing guilt? This is a question that our ulema do not feel called upon to address. That is the way God’s law is, they will say, and theirs is not to reason why. But this attitude does not make the question go away. It stares us in the face: why have a law if it cannot be enforced? In my interpretation, the law has been so framed because it is not the lawmaker’s objective to get the state and its enforcers get involved with sexual relationships. Let them be a matter between the parties concerned and God, to be settled on the Day of Judgment. The lawmaker is concerned, here and now, with the prevention of a nuisance, that is, performance of sexual intercourse in public places. In this connection, recall also Islam’s emphasis on the individual’s right to privacy.