Hudood Ordinaces- The Crime And Punishment For Zina
The Hudood Ordinances are a set of laws that were introduced by Presidential decree in 1979 under the then President General Zia Ul Haq. These laws were intended “to bring in conformity with the injunctions of Islam” certain aspects of the criminal justice system and make certain offences punishable by hadd, which is defined as “punishment ordained by the Holy Quran or Sunnah.” The quotations are from the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Ordinance No. VII of 1979, 9 February 1979, preamble and sec. 2(b), respectively. Hereinafter: Zina Ordinance. . The laws introduced under the Hudood Ordinances cover the offences of Zina (various forms of unlawful sexual intercourse) Qazf (wrongful accusation of Zina crimes), and offences Against Property and Prohibition. An offence of Zina occurs, under the Ordinance, whenever “a man and a woman… wilfully have sexual intercourse without being validly married to each other.” Section 4 of the Zina Ordinance.
Offences of rape are called Zina bil Jabr (literally meaning ‘forced adultery’ in the Arabic original) as they have occurred without the consent of the victim. Significantly, however, the Zina Ordinance excludes marital rape from the definition of that offence.
According to The Human Rights Commission of Pakistan, every two hours a woman is raped in Pakistan and every eight hours a woman is subjected to gang rape. While these figures are derived from reported incidents in 2002, the frequency of rapes is in reality much higher. The combination of social taboos, discriminatory laws and victimization at the hands of the police are key reasons why many rapes remain unreported.
The following account is not a true story in the sense that we do not know a girl named Priya with a sister named Leila, who underwent everything that is told here. Nor are the localities real. Nevertheless, everything recounted here did actually happen to women, girls and men in Pakistan. The story combines several true incidents, to elucidate the plight of Pakistani women and girls under the Hudood Ordinances.
Priya - victim of rape and of discriminatory laws, Prisoner of Conscience
Priya is a 13 year old girl who lives in Roshan Colony in Karachi. She has grown up in a small one bedroom shack with her five brothers and sisters while her eldest sister is married and lives in the neighbouring colony. Priya is fortunate that she is able to attend the girl’s government school and does not have to work like her older sisters or brothers do. With the exception of her younger brother Suhail who attends a nearby boys’ government school, the home is empty when Priya returns from school as both her parents and her older siblings are away at work till 5 or 6 pm.
One day as Priya as is on her way home to meet her brother after school she is abducted by her neighbour who drags her indoors and rapes her, though she struggles to fight back she falls unconscious. Meanwhile Suhail who is waiting for her to come home begins to worry. He wanders around the neighbourhood in the hope of finding her and then stumbles across her bruised and unconscious body in an alley behind their house.
Later that evening Priya’s father and brother go to the police station to file a First Information Report (which is required for a criminal investigation to begin) on the rape of Priya. Meanwhile, Priya’s mother and older sister take her to a hospital to be examined by a doctor. The medical reports confirm that she has been sexually assaulted and the case is brought in front of the magistrate.
While Priya was able to fully describe her attacker and could give details of his name and where he lived, she had no other proof of rape other than the medical examination and her own testimony. Since the crime of Zina bil jabr in her case was liable to a hadd punishment, her own testimony was not admissible as evidence - under section 8 of the Zina Ordinance, proof of Zina-bil-jabr liable to hadd is only attained either by the perpetrator’s confession or by the testimony of four men. The testimony of her brother appeared to have been changed from what he originally accounted to the police.
Priya’s neighbour Aslam denied the charges of rape or having had any sexual relationship with her, and twisted the story saying that he often caught her staring at him but was never inclined to act indecently. He portrayed himself as a respectable, pious man and the young girl as having unsound character. Without his confession or four male eye witnesses Priya was unable to prove that the act of penetration had been non-consensual.
Having attained puberty a few months earlier, Priya was for legal purposes (under Section 2(a) of the Zina Ordinance) considered to be an adult despite the fact that she was only 13 years old. Since the medical examination was proof that penetration did occur and the judge did not see there to be any clear evidence proving her perpetrator was the accused Under section 10 of the Zina Ordinance, if the judge felt there was proof linking the accused to the crime he could have been convicted of Zina bil Jabr liable to tazir, which is a lesser punishment and is applied to cases where evidence falls short of hadd requirements but still proves the accused perpetrated the crime. This only applies if the court does not feel that the complainant was filing a false accusation. , the legal table turned against Priya: Because any sexual relationship by a sane “adult” out of wedlock is considered a crime under the Zina Ordinance, she herself was now charged with Zina under that Ordinance and put in detention to await her trial. Meanwhile Priya’s father who had filed the rape complaint with the police was facing charges for Qazf- the wrongful accusation of rape- and was detained while Aslam, the perpetrator, was allowed to go free as there was no sufficient evidence to prove that he had been a party to the sexual offence concerning Priya.
While her mother tried to find a way of appealing the detention of her husband and daughter, the eldest daughter Leila went with one of her brothers to the police station to ensure the case was kept open and to obtain a copy of the testimony submitted by the police officer to the court. At the police station Leila was asked to enter a separate room to discuss the case of her sister and the testimony that had been recorded by the police. She appeared from the room thirty minutes later shaking and in tears and begged her brother to leave immediately- she had been raped by two police officers and threatened not to pry any further into her sister’s case or else they would bring charges of Zina against her. Being happily married, the charges of Zina had vast implications for Leila as the maximum punishment for adultery is death by stoning.
Desperate to get home Leila rushed through the streets offering her brother little explanation for her shaken behaviour. Her brother returned to his house to find his mother crying with despair over the detention of her daughter and husband. In addition to an emotional burden she now faced undetermined time without the main bread earner of the family which had grave implications for her ability to provide for her family in his absence.
The next morning Leila came to the house in tears saying that her husband had divorced her after she told him of the incidents at the police station. He had said he did not want to be with a woman who had been “spoilt” by others and pronounced the divorce out loud 3 times and swore to file the papers to be rid of her.
Over a year later, Priya still remained in prison awaiting her trial for Zina while her father also remained in detention and has to this day not been seen by a magistrate. Leila has been approached by a family for her hand in marriage and is looking at being remarried. Having a heavy financial burden her mother urges her to remarry as at least she will be provided for and she will lessen the burden on her mother. Overlooking the fact that she has not received any written confirmation of her divorce she agrees to marry again. Two months after her new marriage both Leila and her husband find themselves being arrested under Zina charges that have been brought forward by her ex-husband who claims her never divorced her. Since the pronouncement of the divorce was verbal, and was only heard by herself and her ex-husband, and since he had neglected to file the divorce papers, in the eyes of the state they appear to be married, making her new marriage void and the sexual relations she has had with her new husband illicit.
While it is legal for a husband to divorce his wife by pronouncing it out loud, he is then required to file the papers that take three months to process making this divorce legal. As there is no provision for a maximum period during which the husband must file the papers, many divorces remain legally un-recognised and the lack of a formal mechanism to help the woman ensure these papers go through, means that they are left at the mercy of their ex-husband and may face charges of Zina when attempting to remarry.
As illustrated in this account, the Zina Ordinance places a heavy, indeed almost impossible, burden of proof on women and girls who fall victim to rape. Once they complain, those women and girls are themselves exposed to charges of Zina - having admitted to the fact of “penetration” outside of wedlock, which is a crime under the Ordinance. In such a situation, the victims are in fact more likely to be convicted than the perpetrators.
The Constitution of Pakistan clearly states in article 25:
“(1) All citizens are equal before law and are entitled to equal protection of law
(2) There shall be no discrimination on the basis of sex alone”
Nevertheless, discriminatory laws like the Zina Ordinance remain in place and women continue to hesitate reporting incidents of sexual violence out of fear of possible repercussions.
According to the National Commission on the Status of Women, an independent statutory body, 88% of the women currently in jail in Pakistan have either been convicted or are awaiting trial for Zina. While the death penalty does exist for adultery, this sentence is rarely ever carried out. Most times if it is passed by a judge it is overturned in an appeal.
This was true for the case of Zafran Bibi who according to the Human Rights Commission of Pakistan, was sentenced to death by stoning for adultery in April 2000. She maintained that she had been raped by her brother –in-law while her husband was in prison, and was acquitted on appeal once her husband confirmed that he was indeed the father of the child that she gave birth to earlier that year.
However, the presence of these ordinances in the law-books means that the punishments could be carried out and therefore cannot be overlooked. Many women languish in jail for years before they are released. Even after release women remain victims to their past and most have never received justice.
Secular political parties, human rights groups and women’s groups continue to oppose the Hudood Ordinances and the National Commission on Women has recommended in September that the Ordinances be repealed.
Amnesty International continues to express concern over the presence of these laws as they are not in accordance with international legal standards for fair trial and pre-trial safeguards, as well as being blatantly discriminatory of women and girls. Additionally, Amnesty International is opposed to the use of all forms of punishment which are cruel, inhuman and degrading, such as the death penalty and corporal punishment, under any circumstances, including for crimes such as rape.
AI, therefore continues to call for the repeal of the Zina laws and ending practices that are discriminatory toward women and girls, in accordance with international human rights standards These standards are to be found, among other international treaties and declarations, in the Universal Declaration on Human Rights; the International Covenant on Civil and Political Rights (Pakistan is not a state party); the Convention for the Elimination of Discrimination Against Women (Pakistan is a state party); the UN Declaration on the Elimination of Violence against Women; and the Convention on the Rights of the Child (Pakistan is a state party). :
· Make all rape and other sexual attacks, including of spouses, a crime;
· Exercise due diligence in promoting and protecting all human rights of women, including the right to full equality in law and in practice;
· In particular, abolish all legal provisions that discriminate against women, whether explicitly or implicitly,
including the inadmissibility of evidence by women, and especially by rape victims, as well as any excessive burden of proof for rape and other forms of sexual attacks or exploitation;
· Ensure, in law and in practice, that all girls, namely females under the age of 18, are protected from all forms of sexual exploitation and sexual abuse;
· Ensure, in law and in practice, that detainees are either tried promptly or else are released pending their trial;
· Ensure that all trial procedures are in accordance with international standards of fair trial;
· Abolish the death penalty;
· Abolish all forms of corporal punishment.