PAKISTAN: HUDUD & QISAS LAWS v THE MAKING OF SELF RELIANT WOMEN

Women to be made self-reliant: Sumaira; World Rural Women’s Day observed

ISLAMABAD, Oct 15 (APP): Minister for Women Development and Youth Affairs Sumaira Malik said Sunday the government was committed to making women self-reliant in every sphere of life through political, economical and social empowerment.

In connection with World Rural Women’s Day observed on Sunday with a theme ‘Rural women: leaders of tomorrow’, Sumaira said the government was alive to the difficulties being faced by women and the ministry’s programmes especially ‘Women’s Political School’ was effectively empowering the segment at grassroots level.

She said the project was receiving wide appreciation, and was expected to usher in a silent revolution for uplift of womenfolk. It also aimed at moulding women representatives into a dynamic female leaders at grassroots level which would lead to national prosperity, she added.

She said the women were contributing their valuable services for the prosperity and development of the country and their numerical strength was visible in every department as a result of the government’s sincere steps like, besides other measures, enhancement of their representation at national and local level.

She said that ministry was taking steps to increase number of its women crisis centres across the country and the step, she added, would help raise the profile of women in all respects.

These centers, the minister said, would serve as vocational institutions as well where women in distress would be acquiring training in different skills to make earning on it and that a legal expert with direct coordination with gender crime cell, would also be available for facilitation of the female sufferers, therein.

Moreover, the minister said under ministry’s IT training programme, as many as 3,000 women councillors were being imparted training in computer skills to help them effectively discharge duties at grass roots level.

Another programme, ‘Community campaign to prevent violence against women’, of which first phase had been successfully completed, was yielding positive results by creating awareness among the public and private sectors to curb gender discrimination at all strata of the society.

The Day was launched by several international NGOs during the 4th UN world conference on women in Beijing in 1995.


Pakistan has Hudud Laws, part of Shari'ah Law that proscribes "carved in stone punishments" for various crimes. How is such a nation going to give women any rights at all, if it has Hudud Laws?!? There is a movement in Pakistan to have the Hudud Laws repealed and or re-interpreted but 'traditionalists' want no part of it, so the Hudud Laws remain intact.

Here are a couple of excerpts that describe what Hudud Laws are and their respective punishments, pay special attention to WIKIPEDIA's missing pieces about Hudud Laws concerning fornication amongst unmarried individuals & how they are applied to rape victims:


Hudud ( Arabic حدود, also transliterated hadud, hudood; plural for hadd, حد, limit, or restriction) is the word often used in Islamic social and legal literature for the bounds of acceptable behaviour and the punishments for serious crimes.
In legal terms (Islamic law being usually referred to as Sharia, شريعة) the term is used to describe laws that define a level of crime classification. Crimes classified under Hudud are the most severe of crimes and carry severe punishments. The punishment prescribed for murder is beheading; for theft, the amputation of the right hand; for blasphemy, stoning, and for drunkenness, severe flagellation. These punishments can be better understood in the context of the time they were introduced: the society in Arabia where Islam was first established was almost entirely lawless and blood feuds, which carried on for generations, were a widespread result of disputes. The method with which Islam brought these disputes to an end was straightforward retaliation (qisas) against the guilty parties. This may explain the name of these punishments - hadh - limitation [of feuds]. The Qur'an and hadith instruct that hudud punishments be used sparingly and only when the offender had been accused by four eyewitnesses of spotless moral character or has confessed to the crime.
There are minor differences in views between the four major Sunni madhhabs about sentencing and specifications for these laws. It is often argued that, since Sharia is God's law and states certain punishments for each crime, they are immutable. However, with liberal movements in Islam expressing concerns about hadith validity, a major component of how Islamic law is created, questions have arisen about administering certain punishments. Incompatibilities with human rights in the way Islamic law is practised in many countries has led Tariq Ramadan to call for an international moratorium on the punishments of hudud laws until greater scholarly consensus can be reached[1]. It has also been argued, that the Hudud portion of Sharia is incompatible with humanist understanding of human rights.


The following is a Question & Answer on Hudud and Qisas as found in Malaysia and other Islamic nations, they even mention how Hudud and Qisas Laws apply to non-moslems if they are in the minority. Please pay special attention to how these Islamic sources do not spare the details as WIKIPEDIA does:


Q & A on the Hudud and Qisas Enactment (from ALIRAN)

1. What is the Hudud and Qisas Law?

Hudud and Qisas laws deal with offences and punishments that are interpreted by Muslim juristic scholars to be derived from the Qur’an and the Sunnah (of the prophet). Hudud literally means limit. According to some scholars, the word “hudud” is not used in the Qur’an specifically in terms of punishment. However juristic opinion has reduced hudud to mean mandatory punishment. Under Hudud law, theft, robbery, illicit sex, alcohol consumption and apostasy are considered offences. Punishment for these offences are corporal in nature, involving whipping, stoning to death and amputation of limbs.
Qisas (law of retaliation) refers to offences that involve bodily injury or loss of life. The punishment is death or imprisonment, but compensation in the form of a sum of money or property (diyat and irsy) is accepted if the guardian of the victim forgives the offender. In Malaysia both Hudud and Qisas offences are contained in the set of legislation known as the Syariah Criminal Code Enactment. In Kelantan the law is formally called the Syariah Criminal Code (11) Enactment 1993 and was passed on November 25, 1993. In Terengganu the Syariah Criminal Offences (Hudud and Qisas) Bill was passed on July 8, 2002.

2. What offences are covered in the Kelantan and Terengganu Enactments?

Six offences are recognised under the Enactment as Hudud offences, namely:

1) Sariqah (theft)
2) Hirabah (robbery)
3) Zina (unlawful carnal intercourse)
4) Qazaf (accusation of zina which cannot be proved by four witnesses)
5) Syurb (drinking liquor or intoxicating drink)
6) Irtidad or riddah (apostasy) The second set of offences refer to homicide and bodily injury and listedunder Qisas.

3. What are the punishments prescribed for the offences?

Syurb - is consumption of liquor or other intoxicating drinks. The act ofconsumption in itself regardless of whether a person is intoxicated by it, is punishable with whipping of not less that 40 stripes for first offenders, 80 stripes and imprisonment for repeat offenders.

Sariqah (theft) - is punishable by the amputation of the offender’s righthand. For a second offender, amputation of his left leg and for a third andsubsequent offender imprisonment as deemed fit by the court. However the offender shall not be liable for the above punishments if amongst others, the value of the stolen property is less than a prescribed sum, the owner of the stolen property failed to take adequate steps to protect his property, the property is freely available or the property is valueless in Islam e.g. liquor or entertainment equipment.

Hirabah - For the crime of armed robbery, the punishment is: death and thereafter crucifixion if the victim is killed and his or another person’sproperty is taken; or death if the victim is killed but no property is take; or amputation of the right hand and left leg if the victim is not killed or injured.

Zina - is categorised under the Bill as: illicit intercourse by an unmarried person with another person the punishment for which is whipping of 100 stripes and 1 year imprisonment; and adultery; the punishment for which is stoning until death.

Qazaf - The Qur’anic injunction against qazaf is to prohibit the accusationof chaste women of zina (illicit intercourse). Under the Bill, any person who accuses another of illicit intercourse without bringing forth 4 adultmale Muslim witnesses, is to be punished with whipping of 80 stripes. Section 9 specifically states that any person complaining of rape in a case where such rape is not proven shall be deemed to have committed qazaf. In relation to married couples, zina may be proven by unrebutted sworn allegation of a person against his/her spouse.

Liwat - is defined under the Bill as sodomy by a man with another person who is not his wife. Liwat is to be proven in the same manner as zina.

Irtidad or Riddah - The punishment for blasphemy or apostasy by anunrepentant offender is death and forfeiture of property.

4. What evidence is needed to prove Hudud offences?

Every offence except zina must be proven by the testimony of 2 adultprincipled male Muslim witnesses who have not committed any major sins nor continue to commit minor sins. Zina is to be proven by the testimony of 4 adult principled male Muslim witnesses. Zina can also be proven by pregnancy of or birth of a child by a woman not then married unless she brings proof to the contrary. In the event there is insufficient evidence for the purposes of meting out hudud punishments, then the offender may nevertheless be punished by the court with non-hudud punishments. This is known as ta’zir punishment.

5. Can Hudud punishment be reduced and adjusted?

Hudud punishment is mandatory. Section 50 of the Terengganu Enactmentprovides that hudud punishments may not be reduced, substituted, stayed or in any way varied. Nor can the offender be forgiven.

6. What is the difference in the notion of crime between Hudud and anysecular penal code?

Under secular laws, an action is considered criminal if it brings aboutserious harm or death to another party or when there is victimizationinvolved. The violation of private property rights, including bodily rights(as in physical assault and rape) is also construed to be a crime. Although Hudud and Qisas are informed by these premises, there are additional areas in the Islamic law which are outside the bounds of these justifications. For example, under secular law, a sexual relationship between consenting adults is not a crime as it does not bring injurious harm to another party. Drinking of alcohol is not a victimizing act, hence it is also not a crime. However, drunken driving is, as it can potentially cause serious harm toanother party. The right to renounce one’s religion is also not a crime asit is considered a human right to religious freedom, with no repercussionsof victimization. In contrast, Hudud law “criminalizes” all of these actions, namely, sex outside marriage, drinking of alcohol and therenouncement of the Islamic religion. Hudud proponents say that these laws are divinely ordained by God. However, the codification and formalization of these laws are mediated by human actions and subjected to human interpretations.

7. How can Hudud be subjected to human interpretations?

The hudud provisions have been formed through the opinions of jurists inMuslim jurisprudence. The methodology of interpretation that is usedinvolves ijtihad (independent reasoning) and qiyas (analogy). Their viewsare further subjected to sanctions through a politico-legal process of ijmaor consensus of the jurists or through majority opinion (jumhur). Thefounding of the four schools of jurisprudence by the four great imams (AbuHaniffa, Malik ibn Anas, Shaf’i and Hanbal) were all in the Abbasid period, stretching from the 8th to the 13th century, or 100 years after the Prophet’ s death.

8. What other countries have a similar law?

Hudud laws were introduced in Pakistan in 1979 under the rule of General Zia ul-Haq. In Sudan President Numeiri introduced Hudud by replacing the old Penal Code of 1974 with the new Penal Code of 1983. In the new Penal Code of Sudan, Hudud offences such as adultery are unlawful and the punishment will vary for Muslims and non-Muslims and whether one was married or unmarried. In Nigeria the northern state of Zamfara was the first to introduce the Hudud law in January 2000. Nine other Muslim-majority states in Northern Nigeria have subsequently adopted the Hudud to a lesser or greater extent.

9. Is Hudud only applicable to Muslims?

In countries with a population that are not predominantly Muslim (e.g Nigeria and Sudan), the laws are not applicable to non-Muslims. In countries where non-Muslims are of very small minority or non-existent and where an Islamic state is established (such as in Saudi Arabia, Iran), Hudud offences and punishments are incorporated into the law of the land and apply to all citizens.

10. Is there a chance that Hudud may overstep the legal rights of non-Muslims?

In all likelihood it will. As Malaysia is a plural society and where theconcentration of one ethnic community is not necessarily confined to oneregion or state there are bound to be clashes and overlaps in application. For example in any crime the victim and perpetrator may be of different religions. If the alleged rapist is a Muslim and the victim is a non-Muslim, there will be the question as to under what law the charge would be brought about. Under Hudud the alleged male perpetrator may stand to gain because of the impossibility of getting the testimonies of four Muslim male witnesses. Under Hudud, Muslims who commit robbery of property that is valueless in Islam e.g. liquor or entertainment equipment will have a chance of escaping any prosecution. In another worst-case scenario, such as in an incident of gang-rapes, where there are multiple perpetrators and victims (comprising Muslims and non-Muslims), eye-witness accounts of the rapes which may be offered by the victims would not be admissible as evidence as they may not be Muslim and male. In all of these hypothetical cases non-Muslims will stand to see justice taken away from them.

11. What effect will Hudud have on race relations?

The bleak scenario is that Muslim and non-Muslims will be forcibly divided not just in the cultural and social sense but in a legalistic sense too. Aparallel legal system established exclusively for Muslims will lead to theenhancement of structural discrimination, where race and religion (and gender) can be legally invoked to justify unequal treatments and other unfair provisions in society. Eventually it will also lead to a geographical divide between Muslims and non-Muslims where one can expect an exodus of non-Muslims to more “non-Muslim” states or even emigration abroad.

12. What effect will Hudud have on gender relations?

Like race relations Hudud will also setback the struggle for gender equality in society. Many provisions in the Hudud discriminate against women. Women are not accepted as witnesses and women are also most likely to be prosecuted for slander if they are not able to prove rape. In cases of adultery, women on account of them being pregnant will immediately be charged for the offence while it will be impossible to charge the male partner because of the requirement of four male Muslim witnesses.

Evidence for rape is ocular evidence of four adult male witnesses orconfession of the accused. The victim’s own statement has no testimonial value. Even if medical examination is taken and a sexual act has been proved to have taken place, the accused can still be acquitted. The woman is then convicted of zina. The onus is upon the victim to prove that she was not a consenting party to her rape. Even minors can be convicted of zina, unlike what is provided in the existing penal code, where consent of a minor is immaterial and statutory rape is applicable. In Pakistan, even twelve-year old victims of rape have received punishment for zina. In Pakistan today, there are hundreds of women in jail on charges of Hudud offences. This number is rapidly increasing and there is even a new jail in Larkana especially built for women.

13. Is Hudud law presently being implemented in this country?

Although the Kelantan State Assembly has passed the Syariah CriminalEnactment in 1993 it has yet to be implemented. So far nobody has beencharged for the Hudud or Qisas offence.

14. Is the law constitutionally legal?

Criminal law is in federal hands. But the power to create and punishoffences against the precepts of Islam has been assigned to the states bySchedule 9, List 2, Item 1. However, this power is still subjected toseveral restrictions. Syariah courts only have jurisdictions over personsprofessing the religion of Islam. Syariah courts also do not havejurisdiction in respect of offences “except in so far as conferred byfederal law”, and also state authorities can only legislate for Islamicoffences “except in regard to matters included in the Federal List”.

As onelegal expert Dr Shad Faruqi opines, this has made the Constitution“..hopelessly ambiguous”. He states that, “In Schedule 9, List 1, Item 4 itassigns the entire field of criminal law and procedure to the federalParliament without specifying the areas permitted to the states.” As itstands now it appears that the states can enact laws for residual matters as khalwat, zina, drinking, not fasting or missing Friday prayers. But in the last two decades the state legislatures have also interpreted their powers expansively by enacting laws against homosexuality and apostasy. Law on apostasy is nevertheless a violation of the constitutional guarantee offreedom of religion in Article 11. Because of the ambiguous nature of the Constitution and irregular precedence set before, there is no clear legalopinion as to whether the Kelantan and Terengganu Enactments are outright unconstitutional. Until and unless the Hudud is enforced and challenged on constitutional grounds there will be no basis to conclude on the validity or invalidity of the law.


15. What is the part in Hudud which violates the principles of the Malaysian Constitution?

Article 11 is interpreted to mean freedom of religion and therefore issupposed to be a guarantee against prosecution on the basis of choice ofreligion. Article 8 provides that every citizen is equal before the law,hence the discriminatory nature of the Hudud against non-Muslims and women can be interpreted as being unconstitutional. Hudud also regulates and controls private and consensual activities unlike secular law which generally does not legislate on “private matters”, especially on activities that are not injurious and “victimizing”. Hudud also specifies punishments that cannot be substituted or lessened at the discretion of the judge. There is no such finality in secular law as law reforms are an ongoing concern, and adjustments are made in accordance with changing place, time and current sensitivities.

16. Is there a difference between a ‘PAS’ Hudud and an ‘UMNO’ Hudud?

It will be hard to imagine the difference between a “PAS” Hudud and analleged “UMNO” Hudud. Perhaps in the UMNO case, the standards andrequirement of evidence will be modified so as not to appear toogender-biased and discriminatory against non-Muslims. Perhaps certainoffences such as drinking and the renouncement of Islam (apostasy) will not be subjected to harsh punishments, but with more emphasis on “forced rehabilitation”. Until UMNO is prepared to present its own version of the Hudud, we cannot be sure that it will be “more just”. Whatever it is, Hudud in whatever form is already a manifestation of an imminent parallel legal system aiming to separate the rights of Muslims from non-Muslims. In the worst-case scenario all citizens will be subjected to the sovereignty of one (most likely, Islamic) law. Ironically, in the best-case scenario this maylead to the creation of a non-Muslim nation alongside a Muslim one. We may be heading for a constitutional crisis if this delicate issue is not handled decisively.

17. What is to be done?

It will be difficult to repeal any law once passed. The strategy of stallingthe implementation of Hudud (in the Kelantan case) is only temporary. If PAS manages to win the overwhelming support of the Malay electorate there will be less of a reason to postpone the implementation of the law.

On a long-term basis the struggle to repeal Hudud law must involve the struggle to repeal all draconian and unjust laws, whether passed underreligious or secular guises. All laws that violate the principles of humanrights and equality must be abolished. The movement to institute humanrights is not necessarily western-oriented. It is as much a cultural need towant human dignity to be protected as it is a universal obligation toappreciate the rights of a community to cultural and religious practice.However, ultimately we must recognize that the greatest rights worthdefending are rights that are invoked purely on the basis of us beinghumans. Which means equal treatment, equal access to opportunities and equal dignity for all, regardless of religion, race, class, nationality andgender. The only viable movement in this direction would be to restore ourdemocratic institutions and push for a genuine regime of human rights.



Also, here is a sample article of the injustices suffered by women under Hudud Laws (pay special attention to what happens to women that have been raped):


South Asia confronts trend of violence against women

ISLAMABAD: Changing laws is the easy part, changing attitudes is something else.

Shameful stories in recent days of horrific rapes in Pakistan and India, murders in Afghanistan and an impoverished Bangladeshi mother offering to sell an eye have all underscored how far South Asia has to go to give downtrodden womenfolk justice.

Delegates from Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka were meeting in Islamabad this week for a conference to review how efforts over the past decade to promote the women’s agenda was faring in a region rife with stories of rapes, acid attacks, honour and dowry killings, and human trafficking.

“There’s a lot of law writing, standard setting, programmes being planned, but whether any of this is having a change on the ground situation? People working on the ground say no,” Radhika Coomaraswamy, a former UN special rapporteur on violence against women, told Reuters.

“The biggest problem in South Asia we find is that people are using culture and religion to deny women’s rights,” she said, adding that this was regardless of whether the reactionaries were Hindu, Muslim or Buddhist.

She believed that South Asian men felt threatened by social cultural changes, partly spread by globalisation and mass media, and women were bearing the brunt of their fears.

“Let’s study masculinity in South Asian men for a change, and find out whether that maybe can give us a clue as to why women are not moving forward.”

A UN Development Fund for Women (UNIFEM) prepared for the Islamabad meeting noted violence against women in South Asia was on the rise, based on cases reported to the police.

The data may be raw, but even then so many cases go unreported that it renders the size of the problem almost invisible, according to Coomaraswamy, now director of the International Centre for Ethnic Studies in Colombo.

The media has played a major role in exposing the plight of women in South Asia.

Late last month in Bangladesh, 26-year-old Shefali Begum offered to sell one of her eyes in desperation to earn enough money to feed her 2 year old daughter.

In Afghanistan, bodies of three women were found on the roadside on Monday. They had been raped and strangled. Their killers left a note warning other women not to work with aid organisations.

And in India yesterday, rights groups were outraged when a court allowed a man convicted of raping and partly blinding a young nurse to offer to marry his victim. He was sentenced to life in prison after the woman refused the offer.

“Men feel women are going out of their control,” said Coomaraswamy, adding “They try to control them through violence.”

For the past week Pakistani newspapers have highlighted the case of 17-year-old Nazish Asghar, who threatened self-immolation unless the government ensured there would be no protection for men, including police officers, she has accused of rape.

The student said she was abducted and gang-raped over 37 days, and then raped by police after being rescued.

Nilofar Bakhtiar, special advisor on women’s affairs to Prime Minister Shaukat Aziz, said women are becoming more confident in reporting such crimes to police, but many still believe that remaining silent is the safer course of action.

While Pakistan recently introduced legislation to outlaw honour killings, it has still to review Islamic hudud laws governing rape. Bakhtiar hopes there will be changes soon.

“Our main focus is on the part where ‘zina’ (adultery) is involved,” she explained. “When a woman goes to the police station to report a rape case, if she does not have four (male) witnesses ... she is put behind bars for adultery.”

After running into stiff resistance from leaders of Pakistan’s feudal rural communities over the law on honour killing, Bakhtiar knows she faces a stiffer battle over the hudud ordinance.

Noeleen Heyzer, executive director of the UN Development Fund for Women (UNIFEM), said enlightenment must prevail if women are to be given a chance of justice, and they must translate greater political representation into real influence.

“If we don’t look at the power structure we won’t end impunity,” Heyzer said, advocating quotas like those in place in Pakistan to give women a greater say.


Pertinent Links:

1) Women to be made self-reliant: Sumaira; World Rural Women’s Day observed

2) Wikipedia - Hudud

3) Q & A on the Hudud and Qisas Enactment (from ALIRAN)