Reality of Objections on Hudood Ordinance

For quite sometime, Hudood Ordinance and its relative laws have been under discussion in the media. Some secular quarters, organizations for women's freedom and NGOs are aggressively propagating the repeal of these laws which are, strangely, attributed to cruelty, suppression of women's rights and injustice against them. The question arises, whether or not the existing laws relating to illicit sex relationships (which are called Hudood Ordinance), are really contradictory to Divine laws or those practiced by the Prophet (PBUH)? Additionally, what is the importance of the objections raised by NGOs and international organizations and what is the solution that Islam presents about them?

First of all it is necessary to understand that the code of life which Almighty Allah has bestowed upon mankind is comprehensive and complete in all respects. Not only have the guidelines for conducting day to day affairs been provided but even minor details and commands have been clarified in those laws. If Islam gives guidelines for day to day activities like eating, drinking, sleeping, and waking up, how can it be silent on major social issues and punishments on committing crimes?

Secondly, Islam is a complete code of life. To disregard some of the laws and implement the remaining ones is against the spirit of Islam; in fact, it is absolutely forbidden, because in this way, the problems which are of paramount importance under Shari�ah laws, may not be solved.

The Holy Qur'an says in the following passage:
"Then is it only a part of the Book that ye believe in, and do ye reject the rest? But what is the reward for those among you who behave like this but disgrace in this life? And on�the Day of Judgement they shall be consigned to the most grievous penalty." (Part of Ayat 85 of Surah Al-Baqarah)

This is the reason that Islam does not impose the punishment of hand-cutting on a convicted thief unless there is full implementation of economic, social, external, educational and administrative systems of government under the Islamic jurisprudence. During a drought in Caliph Umar�s (RAA) reign, the punishment of hand-cutting was not imposed on a thief, as the prevailing economic situation did not warrant such penalty. This was not the personal view of Caliph Umar (RAA), but a verdict substantiated by a Hadith of the Prophet (PBUH). Therefore, the punishment of hand-cutting of a thief can only be imposed when the state fulfils the people's basic needs such as food, clothing, shelter, education and health etc. And the state cannot fulfil their needs unless the economic and social systems of Islam are fully implemented. Our existing system of capitalism neither guarantees the fulfilment of basic needs of the people nor does it have a clear vision of the future, in this respect.

In the same manner, the external policy of Islam which is based on holy war (Jihad), supports the economic system of Islam. By conquering new territories, the resources of tax collection are enhanced which contribute
to fulfil the needs of the people in a better way and bring about welfare to the society.

The social system of Islam, which regulates relationships between men and women, clearly defines the rules of dowry and other entitlements to be given promptly to the deserving people of society. This system also very clearly places responsibilities on certain relatives of orphans, widows or divorcees so that these "displaced" people do not indulge in robbery or beggary. Similarly, moral and ethical training is imparted to the people through the Islamic educational system, to generate among them the fear of Allah, and to discourage them to commit crimes at any stage.

Additionally, in an Islamic state the people are educated about the punishment of theft or other crimes so that they become fully aware of the consequences of such crimes. The only authority of imposing penalties (Hudood) against criminals is an Islamic state in which the rulers are elected by the people through an oath of allegiance (bai'at), who put this responsibility on their rulers' shoulders. Shariyat does not permit common people to set up their own courts of arbitration (punchayats) or rings of community leaders (jirgas) to pronounce judgement on any alleged criminal.

From this detailed account it is clear that these limits (Hudood) of Allah (SWT) are not implemented in isolation, but that they are merely a part of a complete and coherent system. Thus, the implementation of hand-cutting of thief necessitates the prevalence of economic, external, social, educational and administrative systems of the government.

In the same spirit, the Hudood of illicit sex relationships are implemented simultaneously with the implementation of the economic, social, educational and administrative systems of the government. In other words, a society where an Islamic system prevails would prevent circumstances which could result in the committing of adultery/fornication. Although Islam encourages a woman to play an active role in the society, it also teaches us to organize the relationship between men and women. Thus, a woman may be a doctor, judge, lawyer, teacher, trader, economist, scientist or a politician, but she must fulfil these responsibilities under the injunctions of Islam. For example, in Islam there is no permission for free and unnecessary intermixing of men and women, nor can a woman stay with a stranger male in solitude (khilwat). A woman needs the company of a male Mehram relative if she undertakes a journey of over 24 hours.

Today if we survey the crime-corners of newspapers, there are plenty of stories of rape, gang-rape or murders which are committed due to the non-implementation of the Islamic laws. An Islamic state prohibits nudity, licentiousness and condemns sources which propagate such acts and thus create frustration and immorality among the youth. For example, checks on immoral Internet websites, effective censorship on cable channels and restriction on import and distribution of national and foreign magazines and such literature which tend to spread immorality and vulgarity, can be aimed to keep the society free from immorality and unhealthy trends.

In addition to these steps, proper education system should promote ethical and moral values among the youth. The rule of Holy Qur'an should be fully implemented with regard to marriages of mature boys and girls without
unnecessary delay, so that there is minimum possibility of any sinful act being committed by either of them. In spite of these laws and precautions, if a man or a woman transgresses the limits of morality and commits the heinous act of adultery/fornication, it is then, that he or she deserves stoning in public places or death penalty under the Islamic law, which would be justice.

It is a matter of regret that during President Zia ul Haque's reign, the people were misled by the name Islamization of the Pakistani laws, where British laws were sprinkled over with a few Islamic laws. Therefore, today there is no Islamic definition of female dress in Pakistani laws nor there is any restriction on mixed gatherings or co-education in Pakistani institutions.

Not only this, Internet websites, clubs, cable networks, video centres, obscene shows of Indian actresses in public places in the name of Basant festival, are being held freely under official patronage. The unrestricted distribution of obscene magazines in the open market is a common affair which stimulates indecency in the society.

In the name of family planning, and contrary to Islamic teachings, early marriages of adult men and women are being discouraged. This is the reason that sex-related crimes, suicides, harassment of women and rape cases and other such evils are on the rise. On the other hand, with the implementation of just a few Islamic laws, it is trying to be proved that Islamic laws are, in reality, impracticable. So, in this environment the aim of implementing some Islamic punishments is to give a wrong impression to the general public that Islam is incapable of ridding the society of evils, although in reality the non-implementation of Islamic laws or partial implementation is the real cause of social evils.

Another objection to the Hudood Ordinance is that there is no differentiation in cases of voluntary illicit sex and rape. As a result, when a woman is subjected to sexual excesses, a case of illegitimate sex is instituted by law against her in case she gets pregnant. In fact, if there was no such differentiation in drafting the Hudood Ordinance, it doesn't mean that there is no law in Islam for dealing with rape cases. No need to attribute drafting omissions to Islam, nor does it mean that, on this basis, we throw out all Islamic laws as redundant. The Hudood Ordinance is, no doubt, a man-made law, but Hudood (limits) by themselves are part of Divine laws, so there can be no debate on these regulations. If there is any mistake in drafting the Divine rules, it should be pointed out and corrected, but fingers should not be raised against the Divine rules themselves which are above any criticism or degradation by human beings.

For some past years, NGOs are busy in making fun of the Hudood of Allah, with the Hudood Ordinance as their basis. What is the reason that these foreign funded NGOs avoid raising issues such as illicit sex and rape? Why do they not appeal to the authorities to put a ban on Indian movies, in which nearly each film shows a rape case? Are Islamic punishments helping in spread nudity and harassment of women, or is it such movies? Islamic punishments discourage not only rape, but also adultery and fornication. The Indian actress, Preity Zinta, in a recent interview, herself blames Indian media, TV and film industry for the increasing cases of harassment of women. She says, �In a country where women are so politically independent that out of 29 states, 5 are ruled by women,--why do men pester women in buses and trains, and make them victims of physical abuse? I think that the dominance of sex in our media is one major reason.� (Nawa-i-Insan)

Now let�s come to the difference between rape and adultery/fornication. As far as adultery and fornication are concerned, according to Islam, four witnesses are necessarily required. Only then can the Had (punishment) be imposed. If there are less than four witnesses, there can be no punishment. Similarly, confession is taken as proof of adultery or fornication, and pregnancy also serves as proof to the sin. However, if there is no proof, no punishment can be imposed, however doubtful the circumstances are, because according to the rules of Fiqh, no one can be punished on the basis of suspicion. Ibn Abbas relates that the Prophet (PBUH) once said, �If I could stone to death anyone without witnesses, I would stone so-and-so woman, because her actions, her house, and the people who come and go in her house, show it.� But the Prophet (PBUH) did not punish her without four witnesses.

As far as rape is concerned, there are clear commands for it in Islam. There is no question of the punishment of an abused woman. Therefore if a woman claims that she was coerced into the act, the according to this rule of Fiqh she will not be punished. For example if a woman becomes pregnant without the presence of her husband, then such a claim by a woman (i.e. she was forced) will be enough to save her from punishment .It is related by Sa�eed that Khalaf Bin Khalifa was told by Hashim that once a woman who had become pregnant without her husband, was brought before Hazrat Umar Bin Khattab (RA). He asked her the reason, to which she replied, �I sleep very deeply. A man had sex with me when I was asleep�and he had done it before I woke up.� Hazrat Umar (RA) did not punish the woman. Similarly, Bar�aa Bin Sabra relates that a pregnant woman was brought before Hazrat Umar (RA) who claimed that she had been forced; Hazrat Umar (RA) said, �Let her go.� (Reference: Nizam ul Aqubat, written by Abdul Rehman al Maliki 37-38) All companions of the Prophet (PBUH) agree upon these incidents, so for as they have Shara�� importance.

Thus in cases of Allah�s Hudood, there is no concept of injustice with anyone. Thus in an Islamic State, no woman may be stoned to death without any proof of her having illicit sex relationships, or in case of her being raped. Neither can she be kept in jail year after year, for no reason at all. In fact, the rapist is severely punished, for which even less than 4 witnesses suffice, because the condition of 4 witnesses is only in case of voluntary sex. (Reference: Nizam ul Aqubat, written by Abdul Rehman al Maliki, 39, 181) Another important problem that is raised about Hudood Ordinance is that a man can wrongly accuse his wife of adultery and under this ordinance, have her sent to jail, so it should be abolished. The truth is that according to Islam, if a man accuses his wife of adultery, the law of �La�aan� is applied.

According to the Qur�an:
�And (as for) those who accuse their wives and have no witnesses except themselves, the evidence of one of these (should be taken) four times, bearing Allah to witness that he is most surely of the truthful ones. And the fifth (time) that the curse of Allah be on him if he is one of the liars. And it shall avert the chastisement from her if she testify four times, bearing Allah to witness that he is most surely one of the liars; And the fifth (time) that the wrath of Allah be on her if he is one of the truthful.� (Surah Nur, Ayats 6-9)

In this way, after the court�s procedures, the man and woman become Haram (unlawful) for each other for ever, and no case of adultery/fornication is held. Thus leaving aside the fact that there a great many errors in the drafting of the Hudood Ordinance and other Pakistani law, Islam deals with these matters in the best possible way. Thus the accusation of the so-called organizations for �women�s freedom�, that it is actually Islamic laws which are behind false accusation and punishment of women, is wrong, because her, not even a man, let alone a woman is punished.

On the other hand, if a man accuses any woman other than his wife of adultery/fornication, he will have to bring forward 4 witnesses who had, according to the laws of Shari�ah actually seen the act being committed. If he fails to do so, he will be punished accordingly.

�And those who launch a charge against chaste women, and produce not four witnesses (to support their allegations), - flog them with eighty stripes; and reject their evidence ever after: for such men are wicked transgressors.� (Surah Nur, Ayat 4)

Thus, there is severe punishment for accusing an honourable, innocent woman of unlawful sex. In actuality, it is the aim of these organizations of women�s rights and NGOs to have the few Islamic laws which are being implemented in Pakistan, abolished. It is part of the present government�s �de-Islamization�. Accordingly, by making a basis of the injustices done according to the Hudood Ordinance, attempts are being made to repeal the laws of Qisas and Diyat and the Blasphemy Act, whereas no NGO has been able to point out any problems in the Qisas and Diyat Ordinance.

Another ridiculous thing which is also said about the Hudood Ordinance is that since there are so many drafting errors in it, it is impossible to correct them and thus the law should be altogether abolished. Someone should ask these organizations that if it is impossible to bring changes in the drafted law, can�t a correct ordinance be drafted according to the Islamic law? Where you are ready to draft a law for women�s protection against sexual harassment in offices, can the Islamic laws which deal with the root causes of such harassment not be drafted?

Additionally, if false cases are being made by the Hudood Ordinance, then they are also made under Section 302 of the Pakistan Penal Code, and other laws, and innocent people are punished. Why do these women�s rights organizations raise a movement against Section 302? Is this the way to solve problems? Indeed, it is not. False cases can be made anywhere, but such an accusation which has no proof, can be rejected. The truth is that in the present system of justice, the real problem is not of false cases being admitted in court, but that whenever someone has an FIR registered, the police put the accused into lock up, without any proof at all. Thus the police torture the accused, whether the case is of Hudood, or of Section 302, and all under our own laws which, incidentally, originated from British laws. According to this system of brutality and injustice, the court gives complete authority to the police, under physical remand, to investigate in any way they wish, or under judicial remand, to send the accused to jail. Thus, merely because of problems in our procedural laws, the case continues in court for a long period of time, and the accused wastes his/her life away in jail, and all under false premises, without any proof of his/her actually committing a crime.

The procedural law given to us by Islam is free from these defects. Neither is the accused kept in jail without any evidence against him/her, nor can s/he be tortured by the police, and neither can the case be prolonged. The decision of the �Qazi� can�t be challenged in any other court, except if it is against the facts, or the laws of Shari�ah, and even in such a case, the Qazi will be questioned. Other than this, there is no need for appeal after appeal, or to run around from court to court. Thus in an Islamic system of justice, there are divine commands for even the smallest problems. If witnesses are not enough, there is no question of any punishment being awarded. The claimant is responsible for proving the accusation whereas the innocent does not have to make an effort to prove his/her innocence. If the claimant is unable to prove the accusation, the case will be dismissed. Further, there is severe punishment for false witnesses in Islam.

If our organisations are really serious for the protection of women�s rights, then they should run a campaign for the abolishment of our police system which are based on the remains of the British rule. This system is the actual reason behind cruelty against women, not the limits extended by Allah.

In the same way, the inhuman customs of Karokari, marriage to the Qur�an, have nothing to do with Islam, but the reasons of such customs is a lack of knowledge of Islam, no implementation of an Islamic system, and in place of it, a feudal system. Those who try to create links between them and Islam are merely working on American and European policies to falsely accuse Islam. This is so that Islamic laws may be presented before common people as impractical, ridiculous, or as a hindrance to progress. Today, if we look at the present condition of Pakistani laws, then we see that all laws are based on British laws, especially the acts passed before partition, e.g. the Government of India Act 1935. Many such acts have had only the word �India� replaced by �Pakistan�, and thus been forced onto the Pakistanis. The Land Laws are an example. Similarly, in some acts, some Islamic clauses have been added, with the rest remaining unIslamic, e.g. in the laws of divorce, marriage, inheritance, guardianship, Islamic laws have been partly implemented. The question really is that if there was a Muslim personal Law in India, and both Hindus ans Muslims were leading their lives according to their Personal Laws, then what is the difference between then and today, after Pakistan has come inot being, especially when all laws relating to social, economical, political, judicial, educational and external policies are still under British influence. The need of the day is that not only that Hudood Ordinance and laws of Qisas and Diyat become Islamic, but that the entire system should be changed, so that the conditions of women especially, and of the common people, generally, may be bettered. This is the only way by which abuse and harassment and injustice with women may be solved, not by removing the few laws left.

Allah says in the Qur�an:
�O you who believe! enter into submission one and all and do not follow the footsteps of Shaitan; surely he is your open enemy.� (Surah al-Baqarah, Ayat 208)

And of the blessings of completely implementing Islam, Allah (SWT) says,
�Allah has promised to those of you who believe and do good that He will most certainly make them rulers in the earth as He made rulers those before them, and that He will most certainly establish for them their religion which He has chosen for them, and that He will most certainly, after their fear, give them security in exchange.� (Surah Nur, Ayat 55)