Pakistan's Hudood Ordinance: Veils and jails

Pakistan's Hudood Ordinance: Veils and jails September 1, 2006
Jailed for what?

On February 22, 1979, the then President of Pakistan General Zia-ul-Haq began his infamous “Islamisation” campaign and promulgated four separate ordinances collectively known as the Hudood Ordinances. The Hudood Ordinances (plural for the singular Hadd, meaning limits), which cover theft, adultery, rape, and bearing false witness, amended Pakistan’s laws to make sexual offences crimes against the state. The number of women in Pakistan’s prisons swelled from 79 on the date of the promulgation to several thousand in the months and years that followed.

In the decades since, the Hudood Ordinances have become convenient tools for law enforcement bodies to intrude in the lives of citizens and intimidate and harass those they want to target. In a patriarchal society rife with misogynistic feudal and tribal practices, the laws have become convenient ways to subjugate an already oppressed female population. Scores of charges have been filed and thousands of women imprisoned on concocted charges of illicit sexual relations. Their lives and reputations are destroyed by the resulting ostracism and stigma.

On July 7 this year, nearly 27 years after that fateful day which so drastically changed the lives of Pakistani women, President Pervez Musharraf, another General, promulgated the “Law Reforms Ordinance 2006” under which women prisoners on trial under the Hudood Ordinances became immediately eligible for bail. In the puffery and promises accompanying the announcement, General Musharraf’s Minister for Women and Youth Affairs declared that the Hudood Ordinances were “going to be done away with”.

Newspapers across the world lauded the General’s move, which promised the release of as many as 1,300 women from Pakistan’s jails. The Los Angeles Times celebrated Musharraf’s moderation in a laudatory piece entitled “Moderate Islam on the March” penned by none other than the otherwise unerringly critical Irshad Manji. The Christian Science Monitor called the General’s move “a progressive step” towards the “enlightened moderation” philosophy the General is so fond of touting as his guiding principle.

Nearly giddy in their attempt to report on a good news story from the Muslim world otherwise so grotesquely rid with wars, destruction and terrorist attacks, few Western reporters questioned the value of a temporary bail provision that left intact the source of the problem; the law itself was almost pristinely untouched. Even fewer questioned the viability of the proposed changes, which require DNA tests of all rape victims and suspects in a country that boasts only one DNA lab for a population of 162 million. Amid the heady talk of reform, it seemed that one General had finally mustered the courage to undo what another had so despotically stuffed down the throats of a subjugated polity. If one believed these optimistic appraisals by the international media, it seemed that the Damocles sword hanging over the heads of Pakistani women was on the verge of being lifted.

The celebrations, however, were premature. On July 17, a mere ten days after the initial announcement of the Law Reforms Act 2006, General Musharraf backtracked and declared that the Hudood Ordinances would be “amended” and not “repealed”. In an uncharacteristically deferential move designed to maintain the political mileage derived from the initial announcement of the release, the General asked the Council of Islamic Ideology to recommend changes that would “Islamise” the Hudood laws. The crafty terminology disguised the reality that a virtual bevy of commissions (Islamic and otherwise) had already declared the Hudood laws un-Islamic and contrary to Article 23 of Pakistan’s Constitution which guarantees each citizen equal rights regardless of gender. Indeed, the Council of Islamic Ideology itself has already recommended complete repeal of the Hudood Ordinances. A recent report issued by the council unequivocally declared that “the Hudood Ordinance does not derive itself from the Koran and Hadith” and that “partial amendments cannot bring it in accord of the Koran and Sunna.” Ultimately, Musharraf’s artful rhetoric and evasive deference aimed to disguise the fact that he who commands enough power unilaterally to add bail provisions to a law without consultation with either the judiciary or the legislature is hardly at the mercy of such councils and commissions if truly motivated to make groundbreaking changes.

Weighed on the scales of political gain, the Hudood Ordinances expose how Generals past and present have managed to use the regulation of female sexuality in the name of Islam to their strategic advantage. General Zia-ul-Haq employed his Islamisation measures to pander to the nation’s Islamists and please Saudi Arabian benefactors who filled the country’s coffers. Similarly, General Musharraf, by adding a bail provision to the Hudood Ordinances, calculatedly brought Western attention to his status as the moderate stalwart bravely battling Pakistan’s Islamists. When The New York Times reported the story under the headline “Pakistan’s Islamists oppose Musharraf’s move to relax Hudood Laws”, it was obvious that President Musharraf’s political spinners had scored a bulls-eye. It was, of course, no accident that General Musharraf’s machinations emerged at a time when the United States Congress was considering a $5.1 billion arms package for Pakistan.

In a testament to the meaninglessness of the bail provision introduced by Musharraf, several women granted bail through the Law Reforms Act 2006 refused to leave the prisons on bail because they feared being killed. As Anis Haroon of the Aurat Foundation, who has been battling the Hudood Ordinances since their inception, aptly summarised, “such half-hearted measures to change the law are not going to benefit anyone, 1,300 more women will go in the prisons unless the laws are changed. Women being released will go out to worse circumstances or to families who put them there in the first place. This law has been amended before and those changes have been useless, this ordinance has to be repealed.”

The plight of these women who refuse freedom rather than risk death exposes the wide and intricate web of discriminatory laws that hold Pakistani women firmly within their suffocating grasp. The most controversial zina (adultery and fornication) laws under the Hudood Ordinances are the zina bil jabr or rape laws which require the testimony of four adult male Muslim witnesses to the act of penetration, and which punish the rape victim for zina if the witnesses cannot be produced. At the same time, equally problematic is the fact that the same zina laws under Hudood also criminalise thousands of women who are merely accused of illicit sexual relations by irate family members, abusive husbands or even intrusive neighbours. Although wrongful accusations of zina are punishable by the qazf provision, human rights lawyers in Pakistan report that this is rarely used and cases are easily registered against women at the behest of family members or other enemies. According to Amna Buttar, president of the Asian American Network Against Abuse, research in Pakistan’s prisons shows that many of the women imprisoned under zina laws are single or widowed women living alone, young brides who invoke the anger of greedy in-laws for not bringing enough dowry or even elderly women whose husbands wish to get rid of them. In several cases, pimps also file zina charges against women who refuse to work for them after being sold into sexual slavery.

In addition to the Hudood laws themselves, the Qanun-e-Shahadat or law of testimony makes a woman’s testimony equal to half of a man and completely excludes female testimony in Hudood cases. Furthermore, the law of Qisas and Diyat privatises violent crimes and allows families to settle even murder cases by paying blood money. In eliminating the possibility of state prosecution, this law allows family members to kill women in the name of honour without any fear of criminal penalty against the fathers, brothers, sons or husbands who no longer want them alive. In the light of such institutionalised discrimination it is hardly surprising that women accused of zina choose to languish in prison rather than risk death.

Stubbornly ignoring the legitimisation of women’s subjugation through this collusion of discriminatory laws, crafty politicians like Musharraf adeptly spew tasty morsels of reformist rhetoric that do little to effect actual change. Beneath the overt political opportunism surrounding both the promulgation and the superficial amendment of the Hudood Ordinances lie unresolved questions regarding Pakistan’s relationship with Islam and Islamic law.

Duped by the artificial comfort of political stability built on oppression, most Pakistanis today remain content to relegate such ideological wrangling to the occasional television show or newspaper article. In a political system where judicial and legislative institutions have been rendered effectively powerless, the intellectual spaces where citizens can wrangle with such questions and use the potency of their vote to invoke change have been obliterated.

In the meantime, Pakistan’s women remain legally condemned to being half humans, their safety predicated on colluding with a system that institutionalises their oppression and their bodies reduced to political pawns in a game played by military generals.

Rafia Zakaria is an attorney and member of the Asian American Network Against Abuse of Women.  She teaches courses on constitutional law and political philosophy. This article previously appeared in Frontline Magazine (India).

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