the ones i found compelling are bolded out.
Ten reasons to repeal the Hudood laws
by Sherry Rehman
For the first time in twenty-five years, the National Assembly has
been heatedly debating the Hudood Ordinances for the last three weeks
on every Private Member’s Day. The five criminal laws remain
stubbornly on the statute books despite the much-repeated promises of
General Pervez Musharraf that they should be done away with. But
while the General ran a virtual ordinance factory during his three-
year tenure as Chief Executive, and even promulgated ordinances after
the NA was elected, he chose not to repeal these laws. Given that the
government has the numbers to do away with the ordinance, which the
two PPP governments did not have during their fragmented tenures, it
has come as a shock to many that now when the Pakistan Peoples Party
Parliamentarians has actually challenged these laws by tabling a bill
that includes their repeal, the government has opposed it on entirely
spurious grounds
The Advisor on Women’s Development, Ms Niloufer Bakhtiyar, opposed
the bill on the floor of the House on March 24th saying that while
she agreed in principle with the contents of the Women’s Empowerment
Act 2004, she could not but oppose it on technical grounds. She
argued that the bill carried too many clauses for the ministry to
deal with. Interesting, because if that were indeed the case, the
bill would have long ago been disallowed on technical grounds and
returned by the Speaker’s chamber to the prime mover. So Ms Bakhtiyar
was either moved by partisan pique that she has not been able to
introduce her own bill, with all the resources of her ministry, or
she was defending the government party’s commitment to the religious
right to not support the repeal of the Hudood Ordinances.
The sad fact is that only a few weeks ago the leader of the PML-Q,
Chaudhry Shujaat, gave such a commitment to the Amir of Jama’at-e
Islami, Qazi Hussain Ahmed, on the floor of the House during the
critical last round of voting on the 17th amendment. The amendment
subsumes all the interventions made by General Musharraf in the
Constitution and empowers him at the cost of the Parliament.
Unsurprisingly, the Mutahidda Majlis-e-Amal members fired the
heaviest salvos against the repeal of Hudood Ordinances. The Alliance
is increasingly relying on a dangerous mix of propaganda and
hagiography, often cast in chaste Arabic, to throw theological red
herrings into the debate. It is important, therefore, in this growing
atmosphere of acrimony and obfuscation, to understand the facts about
the Hudood Ordinances and why they must be repealed.
Is it, as the religious right maintains, a conspiracy of the liberal
classes? Or is it a case of an imperfect justice system needing less
flawed laws that create social injustices? A dispassionate look at
the laws throws up at least ten, if not more, reasons to repeal them.
Let’s consider them.
- The disrespected Constitution of Pakistan, even in its tattered
state still prohibits any laws that discriminate against women and
minorities.
**
2. It would be salutary to remember that General Ziaul Haq introduced
these laws in 1979 without any public or parliamentary debate. There
is consensus now that he misused Islam to legitimise his blatant and
unconstitutional usurpation of power. Therefore, they are entirely
man-made and have no sacral link to the spirit, and in many cases,
even the letter of Islam.
**
**
3. More than one National Commission on the Status of Women has
recommended their repeal.** Justice Majida Rizvi has condemned these
laws as repugnant to Islam. Justice Nasir Aslam Zahid has said that
they were drafted in a hurry and were not in conjunction with the
principles of Quran and Sunnah.
-
The crux of the matter is that the HOs have transformed the
landscape of tazir punishments as well; most Hudood laws are now
applied as tazir punishments for zina, for qazf, for prohibition etc.
**A compelling application in point is the fact that prior to the HOs,
children under the age of seven, for instance, bore no criminal
liability. Now they do. ** -
Despite the fact that Islam forbids discrimination on the basis of
sex, colour, caste, or creed, this law makes minorities victims of
double jeopardy, because while their testimony is second rated,
punishments opposed to their own Shariah [creed] are still applicable
to them in an arbitrary manner.
**6. Findings reveal that the HOs are the most misused laws to keep
poor, dispossessed women in police lock-ups without access to defense
counsel or speedy justice. A sample survey of Lahore’s Central Jail
shows that from 1980-87, 47 percent of the women imprisoned were
booked under the offence of zina. Data from Karachi Police Station
(South) shows that 80 percent of the cases registered are under this
law. Specifically, the application of the zina or adultery laws has
legally blurred the distinction between rape and extra-marital sex.
This has resulted in the absurd situation of rape victims being
treated as accomplice since they are unable to produce witnesses,
which in turn has invariably led to their imprisonment and physical
punishment. The notion that the Zina Ordinance is not an issue since
90 percent of women get acquitted under it ignores completely the
social realities in any country, particularly the semi-feudal
Pakistan. Clearly, something is drastically wrong with a law under
which 90 percent of the women are kept behind bars unjustifiably.
(One woman was known to be under trial for seven years before she was
released on acquittal). **
- These laws encourage honour killings and injuries because they
allow these crimes to be compoundable offences. Statistics reveal
that most honour crimes are perpetrated by close kin or family
members, who are then conveniently forgiven by the heirs of the
victim. As it stands, only Pakistan and Saudi Arabia accept these
laws in their totality. All other Muslim countries have rejected or
amended them in the interests of justice and equality.
**8. These laws discriminate against women as they de-link puberty from
adulthood. In contemporary society a girl can reach puberty at the
age of ten. But at age ten, no girl can tell the difference between
paedophilia and rape, nor should she be allowed or forced to enter
into contracts such as the marriage contract. The HOs also reject the
definition of adulthood as defined under the 1973 Constitution which
puts it at a minimum of eighteen years of age. **
**9. They reduce the testimony of women to half, despite the fact that
most of the recorded Islamic Hadith are based on the sole testimony
of Hazrat Ayesha. If one woman’s testimony is acceptable for the
basis of much sacral law, then why is one woman’s testimony not
acceptable in a case of rape in a women’s hostel, for instance? **
- So far hadd has never been executed but it has been awarded. That
means that these laws have little use except to keep our superior
courts busy in overturning their sentences. Most jurists and experts
on law have concluded that the defects in these ordinances are so
basic that amending these would serve no useful purpose and will
cause more miscarriages of justice. If the delivery of justice is the
objective of law, the only option is the total repeal of the Hudood
Ordinances 1979.
Sherry Rehman is the former Editor of the newsmagazine Herald, and
currently a member of the National Assembly. She is also the prime
mover of the Women’s Empowerment Bill by the PPPP.